2021 (9) TMI 1376

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....ti Kartik Uday, AOR, Mr. Pruthvi Dhinoja, Adv., Mr. Mukul Rohatgi, Sr. Adv., Mr. Guru Krishna Kumar, Sr. Adv., Mr. Ajay Bhargava, Adv., Mr. Mahesh Agarwal, Adv., Ms. Trishala Trivedi, Adv., Mr. Rishabh Parikh, Adv., Ms. Raddhika Khanna, Adv., M/S. Khaitan & Co., AOR, Mr. Rishi Awasthi, Adv., Mr. Smarhar Singh, AOR, Mr. Sandeep Bisht, Adv., Mr. Yati Ranjan, Adv., Mr. Ranjan Kumar Pandey, AOR, Mr. Ashish Prasad, Adv., Mr. Abhiraj Arora, Adv., Mr. Rohit Sharma, Adv., Mr. J. Rajesh, Adv., Mr. Mahfooz Ahsan Nazki, AOR, Ms. Pratiksha Sharma, AOR, Mr. Ankit Acharya, Adv., Mr. Shreyas Awasthi, Adv., Mr. Sidharth Sethi, AOR, Mr. Divyanshu Goyal, AOR, Mr. Pushpdeep Singh Sodhi, Adv., Ms. Shikha Sinha, Adv. And Mr. Mayank Kapoor, Adv. ORDER I.A No.84110/2021 This application has been filed by the appellant/respondent no.5/Dalmia Cements (Bharat) group (for short, "applicant/Dalmia") seeking modification of the order dated 16.03.2021 passed by this Court, which in turn had modified the earlier order dated 27.08.2019. The offending portion of the order dated 27.08.2019 of which the modification was sought earlier is extracted below: "3. On the option being exercised, IL & FS S....

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....odify order dated 16.03.2021 passed by this Hon'ble Court in IA No.100812 of 2020 in Civil Appeal No.5395-5398 of 2021 and direct the Chief Metropolitan Magistrate (East), Karkardooma Courts, Delhi to release the original Bank Guarantee No.OGT0005210053201 dated 23.03.2021 of IndusInd Bank Limited amounting to Rs. 344.07 crores furnished by Dalmia Cement (Bharat) Ltd./Applicant pursuant to order dated 16.03.2021 passed by this Hon'ble Court on such terms and condition as may deem fit by this Hon'ble Court; (c) Pass such order(s) as this Hon'ble Court may deem fit." The relevant paragraphs no.84, 85 & 150 of the order of SEBI dated 02.07.2021 are extracted below: "84. In view of the above discussion, including the admission by AFSPL, I hold that ASPL has fraudulently misrepresented to NEPL, the status of the MF units in its demat account by sending a nongenuine holding statement, while the MF units were actually fraudulently transferred for using as collateral by AFSPL. 85. Therefore, in summary, I find that 85.1. From the very start of the relationship with DCEL and OCL, AFSPL laid the groundwork to ensure that details of any transactions in t....

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....s were actually fraudulently transferred for using as collateral by AFSPL." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150. In view of the above, I, in exercise of the powers conferred upon me under Sections 11(1), 11(4A), 11B(1) and 11B(2) of the SEBI Act, 1992, and Sections 19(1), 19(2) and 19G of the Depositories Act, 1996, read with Section 19 of the SEBI Act, 1992, hereby issue the following directions: 150.1. AFSPL and Mr. Awanish Kumar Mishra are restrained from accessing the securities market and from buying, selling or dealing in securities, either directly or indirectly, in any manner whatsoever, for a period of seven (07) years from the date of this Order. 150.2. Mr. Awanish Kumar Mishra is restrained from associating with a listed entity, a material subsidiary of a listed entity or a SEBI registered intermediary in any capacity, either directly or indirectly, in any manner whatsoever, for a period of seven (07) years from the date of this Order. ....

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....ations made in the body of the orders, the security which has been furnished in lieu of the mutual funds in the form of bank guarantee needs to be waived as in the aforesaid facts the ownership of the mutual funds of the applicant/Dalmia is not disputed. It is contended that for furnishing the bank guarantee, the applicant is unnecessarily saddled with huge expenses amounting to Rs. 3.05 crores per annum towards commission for issuance of bank guarantee and in addition a sum of Rs. 103.22 crores of the applicant's funds are blocked towards margin for issuance of aforesaid bank guarantee of Rs. 344.07 crores. It has been contended that the worth of the applicant company is over 18,000 crores, with a turnover of over 8,000 crores per annum and, as such, if at all any security is to be furnished, the same may be in the form of corporate guarantee and not in the form of bank guarantee. It is further contended that the applicant/Dalmia has suffered because of the fraud committed by respondent no.1/IL & FS Securities Services Ltd as well as respondent no.4/Allied Services Pvt. Ltd. and the applicant/Dalmia should not be made to further suffer because of such fraud regarding which a clear....