1. Inter se transfer of shares among promoters — Exemption under Regulation 10 of SEBI Takeover Regulations, 2011 — Dispute over three-year holding period requirement for listed target company. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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2017 Supreme(SC) 1001
SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, SANJAY KISHAN KAUL, JJ.
LAUREL ENERGETICS PVT. LTD. - APPELLANT
VERSUS
SECURITIES AND EXCHANGE BOARD OF INDIA - RESPONDENT
CIVIL APPEAL NO.5675 OF 2017
CIVIL APPEAL NO.5694 OF 2017
Decided on : 13-07-2017
The Court held that Regulation 10 of the SEBI Takeover Regulations, 2011, must be interpreted literally. Exemption for inter se transfers requires promoters to be named as such in the Target Company's shareholding pattern for three years; the regulation's object cannot override clear and unambiguous statutory language.
Headnote:SEBI Takeover Regulations, 2011–Regulation 10–Exemption provision–Persons must be named as promoters in shareholding pattern filed by Target Company–Persons named as promoters in shareholding pattern filed by Target Company in terms of listing agreement between two Stock Exchanges is what is to be looked at–For this purpose persons must be promoters of Target Company for not less than three years prior to proposed acquisition in order that exemption under Paragraph 10 would apply–Order of Appellate Tribunal upheld–Appeals dismissed. (Paras 11 and 12)
(1986) 3 SCC 62 ;(2005) 8 SCC 252–Distinguished.1987 (Supp) SCC 751–Relied.
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2. Whether Regulation 10 should be interpreted based on its object to allow exemptions for promoters of a predecessor company despite the target company's recent listing. (Para 7 , 8 , 9 )
3. The regulation requires promoters to be named in the target company's shareholding pattern for three years; plain language precludes lifting the corporate veil or using extrinsic objects. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 )
4. Clear and unambiguous statutory language prevails over the statement of objects and reasons or attempts to lift the corporate veil where not expressly permitted by the regulation. (Para 26 , 27 , 28 )
5. Appeals dismissed. (Para 29 )
6. How is the three-year period for promoter exemption under Regulation 10 of the SEBI Takeover Regulations, 2011, calculated?
The period is computed from the date the target company is listed on a stock exchange, as promoters must be named in the shareholding pattern filed by the target company for at least three years prior to the acquisition. (Para 11 , 12 )
7. Can the object of a regulation be used to override the plain language of a statutory provision?
No. Where the words used in the legislation are clear and unambiguous, the statement of objects and reasons cannot control the actual words used, although it may serve as an extrinsic aid if ambiguity exists. (Para 26 , 27 )
8. When can the corporate veil be lifted to grant exemptions under Regulation 10 of the SEBI Takeover Regulations, 2011?
The corporate veil is lifted only in specific circumstances expressly provided for in the regulation, such as under sub-regulation (iii) regarding holding and subsidiary companies; it cannot be lifted by the court to distort plain language. (Para 17 , 18 , 19 , 23 )
JUDGMENT :
R.F.NARIMAN, J.
1. The present appeals relate to an interesting question regarding the interpretation of Regulation 10 of the SEBI Takeover Regulations of 2011.
2. The factual backdrop in which the present controversy arises is that Indiabulls Real Estate Ltd. (hereinafter referred to as “IBREL”) was incorporated as a Public Limited Company on 4th April, 2006, which carried on the business of real estate. It was later listed on the National Stock Exchange as well as the Bombay Stock Exchange in 2007. We are further informed that the aforesaid company entered into the business of generating power thereafter, in the year 2009. The appellant herein was incorporated as a private Ltd. Company, being a wholly owned subsidiary of Nettle Construction Pvt. Ltd., some time in 2010. This Company in turn, was wholly owned by Mr. Rajiv Rattan. Both the Appellant and Rajiv Rattan were listed as promoters of the said company in IBREL in the Annual Report for the Financial Year 2009-2010.
3. For the purpose of disposing of the present appeals, the “Target Company” is Rattan India Infrastructure Ltd. It was originally incorporated as a wholly owned subsidiary of IBREL on 9th November, 2010 with a different name which is not material for the purpose of these appeals.
4. In 2011, the Board of Directors of IBREL framed a demerger scheme by which the power business of the company would be demerged and would vest in the Target Company. The High Court of Delhi sanctioned the aforesaid demerger by its judgment and order dated 17th October, 2011. What is important for the purpose of this appeal is that on 19th July, 2012, an information Memorandum in terms of the listing agreement was filed by the Target Company, pursuant to which it was actually listed on the Bombay Stock Exchange and the National Stock Exchange on 20th July, 2012. The appellant acquired 18% of the equity share holding of the target company at a price of Rs.6.30 per share some time in July, 2014. It made certain other purchases with which we are not concerned, because the price paid for those acquisitions was less than Rs.6.30 per share.
5. On 20th October, 2015 Laurel and Arbutus Consultancy LLP along with various other entities, who were persons acting in concert, made a public announcement under Regulation 15(1) of the SEBI Substantial Acquisition of Shares and Takeover Regulations, 2011 when an open offer was made for acquisition of 35,93,90,094 equity shares of the Target Company from the equity shareholders of the Target Company at the price of Rs.3.20 per share. Necessary formalities were observed thereafter, but by a letter dated 4th December, 2015, SEBI observed that the exemption provisions contained in Regulation 10 would not apply to the 2014 acquisition, as a result of which the price of Rs.3.20 per share was not accepted and the higher price of Rs.6.30 was stated to be an amount that would have to be paid to the equity shareholders of the Target Company. By a letter dated 5th May, 2016, containing SEBI's Order, SEBI stated:
“It has been observed that the acquisitions made through inter se transfers amongst promoters on July 9, July 10, 2014 September 5, 2014, and October 20, 2014, were not exempted from open offer obligations. You are advised to revise the Offer Price accordingly. Further, along with the consideration amount, you are advised to pay a simple interest of 10% per annum from the scheduled date of payment of consideration based on these triggering dates to the actual date of payment of consideration to the shareholders who were holding shares in the Target Company on the date of violation and whose shares are accepted in the Open Offer, after adjustment of dividend paid, if any. You are also advised to enhance the financial arrangements and the amount maintained in the escrow account in terms of the revised Offer Price and the revised Offer Size, if any.”
6. From the aforesaid order, the Appellate Tribunal dismissed an appeal on 5th April, 2017, holding t
