Securities Appellate Tribunal (SAT): The Coram of Tarun Agarwala, J. (Presiding Officer), Dr C.K.G Nair (Member) and M.T. Joshi, J. (Judicial Member) allowed an appeal against the order of delisting the company as a shell company by Bombay Stock Exchange (BSE) and Securities and Exchange Board of India (SEBI).
An appeal was brought against the order of BSE and SEBI against their order of listing the company as shell companies as directed by the Ministry of Corporate Affairs.
The facts of the case were a list of shell companies was prepared by the SEBI with the request to initiate the necessary action as per the SEBI rules and regulations. Further instructions were given to stock exchanges to place the Companies in Graded Surveillance Measures (GSM) Stage VI with immediate effect, and thereafter initiate a process of verifying credentials/fundamentals of such Companies and appoint an independent auditor to conduct an audit or forensic audit of such listed companies. Moreover, a list of document to be verified during the process was also provided in order to seek the fundamentals of the company.
Ram Upadhyay, counsel for the appellant submitted that appellant was kept in the delisting company against which a representation before the respondent contending that their action in keeping them in the list of the suspected shell companies was wholly erroneous as well as their action in placing them in the GSM Stage VI and consequently requested to take immediate remedial action so that their reputation is salvaged and the hardships caused to the investors are removed. Despite the entire requirement being fulfilled on time the name of the appellant was not removed, thus an appeal was preferred by the appellant.
Gaurav Joshi, counsel for the respondent argued that the balance sheet of the company did not reflect the true and fair position of the company and considering the fact that the company had suspended its operations the entire assets should be written off. It was further submitted the expenses were marked under the wrong head which created the illusion that the company had a huge asset base which was incorrect.
The Tribunal after the submission held that approach adopted by SEBI as well as by BSE was totally erroneous. The court submitted that direction given by the SEBI to place the companies under GSM stage VI without verifying their credentials was wholly illegal and in violation of the principle of natural justice. It was further submitted that BSE could not pick holes in the balance sheet nor were they competent to hold whether any expenditure should be revenue expenditure or capital expenditure, for which an independent auditor should be appointed which was not complied with. The court further submitted that “the objective of the SEBI Act is to promote the development of, and to regulate the healthy growth of securities market as well as to protect the interest of the investors. It has the power to issue necessary direction if it is satisfied upon an inquiry that such direction is necessary for the interest of the investors.” Thus allowed the appeal and directed to take the action in accordance with the law.[SVC Industries Ltd. v. SEBI, Appeal No. 360 of 2018, decided on 27-05-2019]