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1996 Supreme(Guj) 235

Gujarat High Court
Judgename :R.BALIA
Karnavati Fincap Ltd. - Appellant
Versus
Securities and Exchange Board of India - Respondent
S.C.A. 2692 of 1996
Decided On : 05/06/1996

Advocates Appeared: B.H.CHHATRAPATI, B.N.Kakadiya, K.N.RAVAL, S.N.Soparkar

Headnote:Security & Exchange Board of India Act - Secs. 11(2)(1), (3), 11A, 11B & 30 - Prohibition of Fraudulent & unfair Trade Practices relating to Securities Markets Regulations, 1995 - Inquiry with respect to securities dealt with on the stock exchange - Scope & ambit of - Provisions confer widest possible powers - All the persons associated with securities market are covered with in the scope, and ambit of inquiry under Sec. 11(2)(1) and if any body is found involved Board is competent to issue directions under Sec. 11A. Once an inquiry is to be conducted with respect to any securities dealt with at the stock exchanges or of any persons connected with such securities, whether the primary dealers or intermediary dealers and whether there was broker or the share transfer agent or in any capacity associated with the conduct of such transactions fall within the scope and ambit of inquiry under sec. 11(2) (i) and, if anybody is found involved in any mal-practice, it would be within the reach of Board to issue directions under section 11A.[Para 7]Regulations of 1995 sheds doubts, if any, about ambit of authority of SEBI regarding calling of information and holding of inquiry. These regulations are of legislative in nature and statutory in character, and bears the seal of approval by the Parliament, after they are made for their continued existence.[Paras 9 & 10]It cannot be said that Sub-sec. (2) provides an exhaustive list of measures which the Board can take and it cannot take other measures which are in consonance with the main purpose of the statute and consistent with the duty cast on it. It cannot be said that for protecting the interests of investors, the Board has no power to take appropriate measures to prevent and deal with fraudulent and manipulative transactions. The Board has such powers, nay duty, to take measures to prohibit unearth and deal with fraudulent and manipulative transactions to effectively protect the interests of investors. This is also necessary in order to promote healthy, fraud free and manipulative free development of securities market in the Country that effective measures are taken to check and prevent transactions which tend to artificially affect and manipulate market conditions to the advantage of a few and to the detriment of general genuine investors. Therefore, no prohibition can be read in the provisions of section 11(2) for not giving effect to Regulations of 1995.[Para 17]Power to call for information and documents relevant for the inquiry even from the persons against whom inquiry has not been instituted and/or cannot be instituted vests in the SEBI or in the person authorised to hold enquiry in terms of section 11(3). Exercise of such powers cannot be confined to the persons enumerated in clause (i) of section 11(2). To hold otherwise will be to infructuate the purpose of holding the inquiry by keeping out of reach of the inquiry authority, relevant documents and evidence which can be said to be of primary importance for the enquiry, and required by the authority for the purpose of such enquiry.[Para 23]

R. BALIA, J.

( 1 ) THESE two petitions raise identical issues and are therefore, decided by this common order.

( 2 ) PETITIONERS have challenged issuance of summons to them by the Security and exchange Board of India (for short SEBI)-respondent to appear, before the Invesitgating authority u/s. 11 (3) of the SEBI Act. The contention of the petitioners is that under the provisions of the CEBI Act and under the provisions that have been referred to in the summons, petitioners can called upon to furnish information nor an enquiry can be made against them. Their case is that the petitioners in both the cases are purchasers of securities namely shares of Mr. Madanlal B Purohit listed at Stock Exchange, Bombay. Merely because as investors they have dealt with those shares through Stock Brokers at stock Exchange, Bombay, they do not fall in category of person against whom inquiry can be instituted or from whom information can be called or discovery of documents can be made. Leanred counsel for the petitioners in support of his arguments relies on the statutory provisions contained in section-11, sub-section (2) clause (i) read with sections 11b and 12 of the SEBI Act. He contends that the combined reading of these provision leads to only one conclusion that only person who are covered by these provisions are stock exchanges, mutual funds, other persons associated with the securities market and intermediaries and self-regulatory organisations in the securities market. The persons referred to as "associated with the securites market, according to the learned counsel, refers only to persons enumerated in clause (ba) of sub-section (2) which has been inserted by the Securities Laws (Amendment) Act, 1995 with effect from 25. 1. 1995. His further contention is that section 11b confers on the SEBI power to issue directions in pursuance of any inquiry. For the present purpose, his argument is that such directions can be issued to any person or class of persons referred to in section 12 and persons referred to in section 12 does not include the investors like the petitioners. To buttress this argument, a reference was also made to object of the bill for amending the Securities laws in India.

( 3 ) LEARNED counsel for the respondent urged that reading of the provisions of section 11 without reading sub-section (1) and without referring to the provisions of (Prohibition of Fraudulent and Unfair Trade Practices releting to Securities Markets) Regulations, 1995 which have been framed under the powers conferred under Sec. 30 of the SEBI Act which has come into force after the same were placed before the Parliament for its approval, have a statutory force. It was also urged that object of SEBI Act is to secure a check on the mal-practice prevalant in dealing of the securities to protect the interest of investors. The provisions which have been made to achieve this object should not be read in a narrow and pedantic manner but full effect should be given to the provision to make it effective to fulfil the object. It was also urged that if language of the statute is clear, reference to the object clause of the bill is not permissible. It was further urged that the power has been conferred in widest possible aptitute in the matter of calling of information in the form of statement or documents by extending provisions of Civil procedure Code while trying a suit regarding discovery and production of the books of account and other documents and summoning and enforcing the attendance of persons and examining them on oath, apartfrom inspection of any books, registers and other documents of any person referred to in section 12 of the Act.

( 4 ) FOR examining the rival contentions, it would be appropriate to refer to the relevant provisions of sections 11, 11b and Section 12. Section 11 (1) imposes paramount duty on the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, and for a
























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