If Subrata Roy, the recalcitrant head of the Sahara Group,
today finds himself in police custody in Lucknow after the Supreme Court issued
a non-bailable warrant in his name on 26 February, it is simply because he has
tried to be too clever by half.
However, there was one bright and diligent officer in Sebi,
the markets watchdog, who was cleverer than him. And it is due largely to the
efforts of this one man, an upright man called KM Abraham, that Roy is now
getting his comeuppance.
It is interesting that Abraham, a wholetime director of Sebi
till July 2011, was not given an extension at Sebi, allegedly due to political
pressure, but he exposed the Sahara Group’s two shadowy companies so thoroughly
that neither the Securities Appellate Tribunal, nor the Supreme Court, could
have found fault with it. Abraham is now a Additional Chief Secretary with the
Kerala government in Thiruvananthapuram.
He is the man most responsible for bringing the Sahara boss
to justice.
It was Abraham’s order against the Sahara India Real Estate
Corporation (SIREC) and Sahara Housing Investment Corporation (SHIC), dated 23
June 2011, that finally brought Roy to heel.
As we noted before, Abraham stumbled on the hanky-panky of
these two companies almost by accident. It happened when the Group filed a
Draft Red Herring Prospectus (DRHP) to raise equity for real estate company
Sahara Prime City Ltd through an initial public offering (IPO). The DRHP
disclosed details of two associate group companies that were raising huge
amounts of money from the public through optionally fully convertible
debentures without so much as a Sebi by-your-leave.
Sebi fired its first shot and asked the two companies to
stop raising money through an order dated 24 November 2010, but, Sahara did it
usual jig: use the courts to stymie the regulator. Sahara rushed to the Lucknow
bench of the Allahabad High Court, which stayed Sebi's order but not its
investigation. Sebi moved the Supreme Court, but the apex court too was not of
much help. It merely directed the high court to expedite the case. The high
court vacated its stay only on 7 April 2011, when it found that the Sahara
group was not cooperating with Sebi as it had directed. Clearly, the group was
merely into using courts for its own convenience, and not for actually
accompanying with its orders – a pattern it has exhibited right to the end,
when Roy did not turn up in the Supreme Court on 26 February despite being
explicitly ordered to do so.
The Saharas and Roy clearly had
nothing but indirect contempt for the law.
But back to Abraham. His monumental research on the Sahara
group started bearing fruit from 29 April 2011, when the Allahabad High Court
lost patience with Sahara and dismissed the group’s petition against Sebi with
these caustic remarks: “A person, who comes to the court, is supposed to come
with clean hands and bona fide intentions, and has to abide by the orders
passed by the court, more so in a case where the parties' counsel agree for
certain actions to be undertaken. If some assurance is given by any person to
the court, as has been done in the present case, and the said assurance/understanding
is not honoured, the court would not come to his rescue. The application is,
therefore, rejected."
The matter then went back to the Supreme Court which asked
Sebi to conduct its inquiry after giving company officials a fair hearing. The
final Sebi order, which incorporates the details of those hearings, is a
telling indictment of how close to the wind the group has been sailing. This is
what Sebi found.
The Sahara Group primarily challenged Sebi's intrusion into
the affairs of SIREC and SHIC saying that OFCDs were not under Sebi's
jurisdiction since they were hybrid instruments - neither shares nor debentures. Sebi
demolished this argument easily since they were debentures that could be
converted into shares. This contention was later upheld by the Securities
Appellate Tribunal and the Supreme Court in 2012.
But while Sahara was arguing with Sebi, it claimed that the
OFCDs were being privately placed with the Sahara Parivar and not the general
public. When no public offer was involved, how could Sebi intervene?
Sebi kayoed this argument simply: when Sahara offices and
agents were busy hawking these OFCDs, and when the two companies had garnered
over six million investors, many of whom had no connection with the Sahara
group, the offers were effectively not a private placement.
Sahara's clout in the corridors of power was visible when it
produced opinions from the Law Ministry supporting its case. But the ministry
had its own discordant views. While one Additional Solicitor General (ASG),
Mohan Parasaran, leaned towards the Sahara Group's claim that the OFCDs were
not a public issue, another ASG, Parag Tripathi, held otherwise. Section 67(3)
of the Companies Act clearly says that where the number of investors exceeds
50, it cannot be termed a private placement. This contention was later upheld
by the Supreme Court bench comprising KS Radhakrishnan and JS Khehar.
However, so far it was all about interpreting the law on
hybrid instruments and private placement of shares. But Abraham’s real
discovery was not just technical violations of the law, but real indicators of
stark illegalities. These are his main findings.
Abraham showed how the Group, in contravention of Schedule
II of the Companies Act, tried to deliberately exclude Sebi from vetting the
DRHPs of the two companies. The Schedule specifies that while filing the DHRP,
company directors have to file a declaration saying that they have complied
with all provisions of the Companies Act and the Sebi guidelines, among other
things. But the directors of the two Sahara companies excluded all references
to Sebi while signing their declarations.
Said Abraham: “I also suspect that there has been a
reprehensible attempt to conceal this applicability of the provisions of laws
and the jurisdiction of Sebi on the issue itself, by making changes in the form
and structure of the statutory declaration filed by the directors of the two
companies."
Sebi's second major charge against Sahara was that it tried
to bypass its strict laws on investor protection. In this context, it points
out that SHIC's privately placed issue of OFCDs opened in 2008 and SIREC’s (the
name of this company was changed later) had no closing date at all!
In fact, said Abraham, another Sahara company, Sahara India
Commercial Corporation, had kept an issue for an overall size of Rs 17,250
crore open for 10 years!
How did these massive irregularities happen? Abraham
obviously does not venture to answer who facilitated this, but he pointed out
the dangers: “Such an alternative conduit of capital mobilisation bypassing
much of the regulatory framework applicable to issue of capital could
potentially subject our country's financial market and its investors to
inordinate risks. Needless to say, the risk that such softer paths could be
misused for massive money laundering is also dangerously real. Any dilution of
the regulatory regime for the issue of capital by companies in India clearly is
antithetical to our own objectives of investor protection.”
What Abraham suspected was that Sahara money could be
laundered money, something the Supreme Court too alluded too – though that was
beyond the scope of the court’s final judgment dated 31 August 2012. Despite
Sahara denials of benami transactions, Judge JS Khehar, one of the two judges
on the bench, observed: “Despite restraint, one is compelled to record that the
whole affair seems to be doubtful, dubious and questionable. Money transactions
are not expected to be casual, certainly not in the manner expressed by the two
companies.” (Read the full judgment here).
In his own order, Abraham raised the following issues: “Can
an (OFCD) issuer file an Information Memorandum, open the issue and keep the
same open indefinitely? In fact, does it mean that an issuer need not even
close the issue and keep it open perpetually?"
Apparently, for Sahara everything's possible.
Abraham’s investigation clearly pointed to a lack of
corporate governance at Sahara companies – to say the least. The two companies,
SIREC and SHIC - which were expecting to raise Rs 40,000 crore between them -
did not even have a proper list of investors.
Said Abraham in his order: “The two companies... are without
doubt, clearly in gross violation of the provisions of the laws applicable to
public companies making offers of securities to the public. (They) seem to be
unable to furnish even basic data on the identity of its (sic) own
investors..".
To find out the names of its own investors, SIREC apparently
needed the help of professional accounting firms. Asked Abraham: “If the
identity of the investors and addresses themselves are not readily available
with the firm - and the compilation and authentication of the data across the
thousands of service centres will have to, as admitted by SIREC, require the
support of professional accounting firms at this stage, then I wonder what real
safeguards can possibly be there in place for investor protection?”
Abraham went as far as he could to dub the OFCD schemes of
the two Sahara companies as a threat to investor safety, if not actually a
Ponzi scheme. Says Abraham: “The learned counsel (the Sahara lawyer), at one
point in the submissions before me, mentioned the fact that there are no
investor complaints at all, from any investor in the OFCDs raised by the two
companies. Going by the history of scams in financial markets across the globe,
the number of investor complaints has never been a good measure or indicator of
the risk to which the investors are exposed.
“Most major 'Ponzi' schemes in the financial markets, which
have finally blown up in the face of millions of unsuspecting investors, have
historically never been accompanied by a gradual build-up of investor
complaints. But when financial catastrophes have indeed finally erupted, they
do so with little warning and lead to major collapses in the financial markets
with disastrous consequences to investors.”
Abraham’s final order pointed out that the two companies had
not complied with even the basic rules for investor protection designed by Sebi
(which, in retrospect, is explained by the fact that the companies were all
along try to evade Sebi's jurisdiction).
Worse, the companies were planning to raise Rs 40,000 crore
without having the basic financial strengths to do so. Said Abraham: “SIREC did
not have any distributable profit for the financial year ending March 31, 2008.
SIREC had a negative net worth at the time of the offer and the net worth of
SHIC was around Rs 11 lakh.
“The subscribed capital of the two companies is very small
in comparison to the liabilities on their balance sheets. The OFCDs raised are
of the order of at least a few thousand crores of rupees, with the requirements
for funds indicated at Rs 40,000 crore. To compound these concerns, all the
OFCDs are unsecured - there is no charge on either the assets of the companies
or on the revenue streams from the various projects undertaken by the two
companies."
Abraham discovered that the Sahara group apparently intended
to rotate money between one group company and another without reference to OFCD
investors. The DRHPs of both companies stated that “the money not required
immediately by the company may be parked/invested inter alia by way of
circulating capital with partnership firms or joint ventures or in the fixed
deposits of various banks.”
Observed Abraham: “This means that such funds mobilised
beyond the pale of law, could be potentially diverted into various activities
of the group companies, without any significant accountability or reporting
requirements.”
The Sebi order also pointed out that cheques from investors
were sought in the name of Sahara India, Subrata Roy's partnership firm, but
OFCD certificates were issued in the name of Sahara Housing Investment
Corporation. Money apparently moved from one pocket of Sahara to another
without investors really getting to know.
The Supreme Court agreed with almost all the contentions of
Abraham in his final order against the two Sahara companies. His work was so
meticulous and unimpeachable that nobody could challenge their authenticity.
The optimistic note we can conclude on is this: when an
upright man does a good and through job of investigation, it is not possible
for anyone to overturn the truth. Satyameva Jayate.
R Jagannathan
http://www.thehindu.com/news/
