A DVANCE C OURSE FOR H ON ’ BLE J UDGES HANDLING C OMMERCIAL M ATTERS Dharmishta Raval, Raval &...
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Transcript of A DVANCE C OURSE FOR H ON ’ BLE J UDGES HANDLING C OMMERCIAL M ATTERS Dharmishta Raval, Raval &...
ADVANCE COURSE FOR HON’BLE JUDGES HANDLING COMMERCIAL MATTERS
Dharmishta Raval, Raval & Raval AdvocatesAhmedabad
SEBI JUDGE, JURY & EXECUTIONER?
SEPARATION OF POWERPRINCIPLE OF CONSTITUTIONALISM
Legislates Investigator Police power Quasi judicial authority – Judge Executioner
STATUTES AVAILABLE Sebi Act, 1992 Depositories Act, 1996 Securities Contract (Regulation) Act, 1956 -
delegated powers Companies Act –Delegated powers Repeal of Forward Contract Regulation Act &
Merger of FMC with SEBI, September 29, 2015
GUIDING PRINCIPLES OF SEBI ACT Preamble of Sebi Act
Protect the interest of investors Regulate the securities market Develop the securities market
Charging section of Sebi Act-Sc 11 Section 11 of the Sebi Act casts a duty to carry
out the above 3 objectives by such measures as it thinks fit.
JURISDICTION OF SEBI Section 2(h) of SC(R)Act defines”
securities”as,- Shares, scripts, bonds, debentures or other
marketable securities of a like nature in or of any incorporated company or other body corporate:
Units of mutual fund or collective investment scheme:
Security receipt under Sarfesi Act: Government Securities : Any instrument declared by the Central
Government as Security.
REGULATION OF PRIMARY MARKET -COMPANIESSEBI ACT
Section 11A of the Act empowers Sebi to specify matters relating to, -
Issue of capital, Offer document, Advertisements soliciting money from public
for issue of securities and Transfer of securities.
REGULATION OF COMPANIESCOMPANIES ACT Section 55 A of Companies Act 1956
delegates to SEBI the power to administer sections of Companies Act relating to ,-
Prospectus, allotment, refund, listing, Buy-back of securities Transfer of securities, Debentures & Dividend
REGULATION OF COMPANIESPRIMARY MARKET
Limited to listed companies or companies intending to get listed;
Not available vis-a vis,- Private companies: Legal entities other than companies: Entities not issuing securities.
PRIMARY MARKET INTERMEDIARIES
Regulates all the intermediaries in the primary market i.e.
Merchant Bankers Bankers to an issue Share Transfer Agents Registrar to issue Debenture Trustees
The Regulation of Intermediaries enables Sebi to regulate securities market, ensure investor protection, fair market practises, due diligence, true and fair disclosures.
INVESTOR PROTECTION Individual complaints with Sebi v/s SEC USA Systematic changes in the primary market Shorten the period of listing & allotment Shorten the period of refund
Case of Roopalben Panchal
REGULATION OF DEPOSITORIES DEPOSITORIES ACT ,1996 Securities are dematerialized No physical share certificate No numbering of share certificate Depository is the registered owner Optional Tri –partite Agreement International Experience
INVESTOR PROTECTION Maintaining physically the share certificates Non receipt of Share certificates Forged share certificate Delay in Transfers Corporate Practices
SC (R ) ACT Regulation of Secondary market Regulation of stock exchanges Regulation of transaction in securities market Regulation of intermediaries in the
Secondary Market e.g. stock brokers (SEBI Act)
STOCK- EXCHANGES Self Regulatory Organizations Sections 4, 7A & 9 of the Act empowers
stock exchanges to frame its own rules and bye-laws.
Power of Sebi to direct amendments to be made.
Examples inter-alia are,- Re-constitution of the Stock-Exchange Reconstitution of Governing Board.
REGULATION OF TRANSACTIONS IN SECURITIES Capital adequacy of brokers Margin Trade Guarantee fund Fully computerized system Shortening of Settlement cycles Surveillance of Transactions Transactions in notified areas other than thru
stock – exchange -illegal
LISTING AGREEMENT
Is a Statutory Agreement which is part of the Regulations of Stock Exchange
SEBI can direct amendment of listing agreement
Agreement consists of continuous obligations of the listed company to stock exchange, shareholders and public e.g.
Disclosures regarding Board practices, Corporate Governance, Information regarding Company.
REGULATION OF SECURITIES MARKET SEBI Regulates activities like - Substantial Acquisition of shares &Take-over Collective Investment schemes including
mutual funds and venture capital funds. -
Market manipulation and unfair Trade Practice
Prohibition of Insider Trading
SEBI -INVESTIGATOR Sebi is empowered to carry on investigations
when Transactions in Securities are being dealt with in a manner detrimental to the investors or Securities Market or
Any intermediary or any person associated with the Securities Market and has violated the Provision of the Act, Rules and the Regulations
Also has the power of search and seizure and impounding of documents and assets.
Hence jurisdiction of SEBI over Private Companies, other legal entities and investors during investigation.
SEBI-QUASI-JUDICIAL AUTHORITY Monetory Penalty An officer of Sebi (designated as adjudicating
officer) not below the rank of Division Chief can impose mometary penalty upto 25 corers for violating Sebi Act and regulations.
Before imposing monetary penalty, prior approval of Sebi Board or member is not required.
SEBI-QUASI-JUDICIAL AUTHORITY Cancellation of certificate of Registration of
Intermediaries Two stage enquiry.Like the departmental
enquiry The Order of cancellation has to be passed
by the Sebi Board member
SETTLEMENT OF PROCEEDINGS A person against whom proceedings are
initiated and directions are issued or monetory fine is imposed or a certificate of registration is cancelled can apply to Sebi for settlement of proceedings.
The settlement takes place in accordance with the Sebi (Settlement of Administrative and Civil Proceedings) Regulations 2014 on payment of amount as determined.
POWER TO ISSUE DIRECTIONS Preventive and Remedial Powers Sections 11, 11B,11(4) of Sebi Act and Sc. 12
A of SCRA Act and Sc. 19 of Depositories Act empowers Sebi to issue directions to,-
Intermediaries, Persons associated with the securities market, Stock exchanges Depository or To any company whose securities are listed or
proposed to be listed.
DIRECTIONS (CONTD) Directions can be issued during
investigations or inquiry. Post-facto hearing provided. Examples of directions are,-
• Prohibiting a person from buying selling or dealing in securities,
• Directions to Directors of Companies prohibiting them from accessing securities market.
• Directions for disgorgement
ENFORCEMENT POWERS Amendments in 2014 to enable Sebi to
recover monetary fines ,profits made or losses avoided to recover by ;-
attachment of property movable and immovable, bank accounts.
Sale of movable and immovable property. Appointment of receiver for management of
movable and immovable property,
DELEGATED LEGISLATION Sub-ordinate legislation as Sebi regulates
through Regulations, Guidelines and Circulars Regulations are substantive in nature. Independence to judge and prescribe the
policy to regulate the Securities market i.e. legislative independence
No prior approval of Government but to be placed on the house of the Parliament
Transparent procedure for drafting Regulations
Guidelines are binding in nature
MARKET MANIPULATION Sc 12 A of SEBI Act prohibits any
manipulative or deceptive device. Sec 12 A prohibits any device scheme or
artifice to defraud which operates as a fraud. Sebi has notified Sebi (Prohibition of
Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations 1995 and after its repeal in 2003
APPEAL Statutory Appeal lies only to Securities
Appellate Tribunal Civil court jurisdictions is barred. Appeal from SAT only to Supreme Court and
not to High Courts.
CASE LAWS AIR 2001 SC 1010 “BSE Brokers Forum, Bombay v. SEBI (quid pro quo not necessary) 1999(1) GLR 275 SEBI v/s Alka Synthetics (Auction
proceeds) AIR 2010 SC 3466 “SEBI v. Ajay Agarwal (IPO false
disclosure of capital structure)) AIR 2013 SC 3191 "N. Narayanan v. Adjudicating Officer,
SEBI (false disclosure to stock exchange and public) AIR 2004 SC 4219 “ Swedish Match v/s Sebi (Regulations
are reulatory) Clariant International Ltd. v. SEBI (seperation of power) (2013) 1 SCC 1 Sahara India Real Estate Corporation Ltd.
and Ors. Vs. SEBI and Anr.(Prmary market Regulation) AIR 2014 SC 3241 "Subrata Roy Sahara v. Union of India“
(Contempt of Supreme Court Order)
IOSCO IOSCO is an agency of International
Securities Market Regulators and has prescribed minimum principles which a regulator should follow.
IMF asessment of Sebi in 2011
WAY FORWARD FSLRC Report(Justice B N.Srikrishna Report) Has made recommendations for reform in the
capital market One unified Regulator One Financial Services Tribunal One legislation
THANK- YOU