The Securities & Exchange Board of India (Sebi) has told the Supreme Court that it is empowered to issue orders prohibiting companies and brokers from accessing the capital market in the interest of investors. Such orders may seem penal but are actually preventive and remedial in nature, said Sebi.
If the nature and gravity of the misconduct is such that it is likely to affect adversely the securities market or the interests of the investors in general, it is the statutory duty of the board to issue under section 11B of Sebi Act, 1992 such directions as may be necessary to protect the integrity of the market or the interests of the investor including a direction to restrain the delinquent from accessing the securities market, Sebi said in an affidavit filed through counsel Pratap Venugopal.
The apex court is examining if the regulator has the power to issue orders barring companies and brokers from accessing the securities market under section 11B of the SEBI Act, 1992.
The court had admitted an appeal that challenged the Sebi order against Bonanza Biotech Ltd (BBL), Design Auto System Ltd (DASL) and their directors in connection with the alleged irregularities in allotment of shares. Sebi had barred them from accessing the capital market for 7 years and imposed a penalty of Rs 1 crore on them. The Securities Appellate Tribunal had upheld the regulators order.
Sebi, in the affidavit, said an inquiry had revealed that between August 2001 and January 2002, DASL had made a preferential allotment of 10 crore shares in favour of BBL.
DASL then dematerialised the shares, which were credited to BBLs demat account with the Central Depository Services Ltd, Sebi said.
The regulator also said such unlisted shares cannot be distinguished from the listed shares as they were in demat form and were traded on the BSE without its permission.
Admittedly, 98,21,074 shares were sold to the unsuspecting general public. The proceedings were initiated against them and on March 6, 2007, the order was passed, the regulator said.
When such directions are issued, the object is not to punish the delinquent but to protect and safeguard the market and the interest of the investors, which is the primary duty cast on the board under the act. The directions may sometimes perceived to be penal by the entity to whom those are issued but it would be only incidental and the purpose or the basis of the order or the directions would nevertheless be to protect the securities market and interests of the investors, said the regulator in the affidavit.