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Sahara Judgment

Sahara Judgment

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Published by: Firstpost on Aug 31, 2012
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03/06/2014

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REPORTABLE
IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9813 OF 2011
Sahara India Real Estate Corporation Limited & Ors. .. AppellantsVersusSecurities and Exchange Board of India & Anr. .. RespondentsWITH
CIVIL APPEAL NO. 9833 OF 2011 J U D G M E N TK. S. RADHAKRISHNAN, J.
1. We are, in these appeals, primarily concerned with thepowers of the Securities and Exchange Board of India (for short'SEBI') under Section 55A(b) of the Companies Act, 1956 toadminister various provisions relating to issue and transfer of securities to the public by listed companies or companies whichintend to get their securities listed on any recognized stockexchange in India and also the question whether Optionally FullyConvertible Debentures (for short 'OFCDs') offered by the
 
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appellants should have been listed on any recognized stockexchange in India, being Public Issue under Section 73 read withSection 60B and allied provisions of the Companies Act andwhether they had violated the Securities and Exchange Board of India (Disclosure and Investor Protection) Guidelines, 2000 [forshort 'DIP Guidelines'] and various regulations of the Securitiesand Exchange Board of India (Issue of Capital and DisclosureRequirements) Regulations, 2009 [for short 'ICDR 2009'], and alsowhether OFCDs issued are securities under the SecuritiesContracts (Regulation) Act, 1956 [for short 'SCR Act'].2. Sahara India Real Estate Corporation Limited (for short'SIRECL') and Sahara Housing Investment Corporation Limited (forshort 'SHICL”), appellants herein (conveniently called Saharas),are the companies controlled by Sahara Group. Saharas haveraised almost identical issues on facts as well as on questions of law before us and hence we are disposing off both the appeals byway of a common judgment.3. SIRECL was originally incorporated as Sahara India “C” 
 
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Junxion Corporation Limited on 28.10.2005 as a public limitedcompany under the Companies Act and it changed its name toSIRECL on 7.3.2008. As per the Balance Sheet of the company ason 31.12.2007, its cash and bank balances were Rs.6,71,882 andits net current assets worth Rs.6,54,660. Company had no fixedassets nor any investment as on that date. SIRECL's operationaland other expenses for the three quarters ending 31.12.2007 wereRs.9,292 and the loss carried forward to the Balance Sheet as onthat date was Rs.3,28,345.4. SIRECL, in its Extraordinary General Meeting held on3.3.2008, resolved through a special resolution passed in terms of Section 81(1A) of the Companies Act to raise funds throughunsecured OFCDs by way of private placement to friends,associates, group companies, workers/employees and otherindividuals associated/affiliated or connected in any manner withSahara Group of Companies (for short ‘Sahara Group’) withoutgiving any advertisement to general public. Company authorizedits Board of Directors to decide the terms and conditions andrevision thereof, namely, face value of each OFCD, minimum

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