Author Name:   monika

This case is basically related to IPO scam which came to light during 2003-06. SEBI found number of fake DEMAT holders and alleged NSDL for non performance of their tasks....

IPO Scam (2003-2005): With special reference to NSDL v. SEBI Case

The settlement system on Indian stock exchanges before the depositaries were established, was inefficient and embedded with high risk, due to the time that elapsed before trades were settled. The transfer was mainly governed by physical movement of papers. The physical delivery of securities was a process having fraught with delays and resultant risks. The system of transfer of ownership was grossly inefficient as every transfer involves physical movement of paper securities to the issuer for registration, with the change of ownership being evidenced by an endorsement on the security certificate. In many cases the process of transfer would take much longer than the two months stipulated in the Companies Act, and a significant proportion of transactions would end up as bad delivery due to faulty compliance of paper work. This brings theft, forgery, mutilation of certificates and other irregularities. All this added to costs and delays in settlement. This also restricted liquidity and made investor grievance redressed time consuming.

Thus the Depositories Act, 1996 was passed to provide for the establishment of depositories in securities with the objective of ensuring free transferability of securities with speed, accuracy and security. Two depositories, viz., NSDL and CDSL, have come up to provide instantaneous electronic transfer of securities. The process was known as dematerialization.

The IPO Scam in the year 2005-2006 made us aware of the abuse and misuse of the IPO allotment process. The buying and sharing process in the shares allotted through IPOs to nearly 21 companies in the year 2003, 2004 and 2005. It involved manipulation of the initial public offers (IPOs) by financiers and market players by using fictitious or benaami DEMAT Accounts. In the year 2005, the IPO scam came to light when the private ‘Yes Bank’ launched its initial public offering. Roopalben Panchal, a resident of Ahmedabad, had allegedly opened several fake DEMAT accounts and subsequently she raised finances on the shares allotted to her through Bharat Overseas Bank branches. After detecting the irregularities in the buying of shares of YES BANK’s IPO, the SEBI started a broad investigation. SEBI decided to release the orders of a sub-committee looking into NSDLs role in the IPO scam and case of irregularities in dematerialisation of the shares of a company. Thus the case comes up as NSDL v. SEBI case appealed to Securities Appellate Tribunal.

National Securities Depository Limited: An Overview
The Companies Act, 1956 deals with issue, allotment and transfer of securities and various aspects relating to company management. Also, with the objectives of improving market efficiency, enhancing transparency, checking unfair trade practices and bringing the Indian market upto international standards, a package of reforms consisting of measures to liberalize, regulate and develop the securities market; the Security Exchange Board of India was introduced during the 1990s.

NSDL was established with the sole aim of extending a paper-free security market in the country. The Depositories Act, 1996, defines a depository to mean "a company formed and registered under the Companies Act, 1956 and which has been granted a certificate of registration under sub-section (IA) of section 12 of the Securities and Exchange Board of India Act, 1992. The operations of the depositories are primarily governed by the Depositories Act, 1996, Securities and Exchange Board of India (Depositories & Participants) Regulations, 1996, Bye- Laws approved by SEBI, and Business Rules framed in accordance with the Regulations and Bye-Laws.

If either the issuer or the investor opts to hold his securities in a DEMAT form, the issuer enters into an agreement with the depository to enable the investors to dematerialise their securities. There are some intermediaries between depository and investors which acts as an agent of the depositories. They are known as a Depository Participants (as per sec. 4 of the Depositories Act). However, it is the DP which gets charged by the NSDL, but the clients don’t get charged. The DPs may in turn charge the clients.

National Securities Depository Limited is the first depository to be set-up in India on December 12, 1995, however came to operation on November 8, 1996. It is a public limited company incorporated under the Companies Act, 1956 which gets managed by Board of Directors. It gets sponsored by the Industrial Development Bank of India (IDBI), Unit Trust of India (UTI) and the National Stock Exchange (NSE).

Working of NSDL Depository System:
· The investors at first open their account with the Depository Participants. The Account system gets maintained by the computer and it is called DM.

· Companies use a computer system called DPM to connect to the NSDL Central system. Through this system, the company can electronically receive DEMAT requests, confirm to that requests and can receive beneficial owner’s data from the depository itself.

· Stock exchanges also get the securities made by the brokers using a computer system which is connected to NSDL through DPM.

· Therefore, the computer system of NSDL gets installed by depository intermediaries through DPM, companies through DPM-SHRs and Stock Exchanges through DPM-CC. These are connected through leased lines. Every transactions first passes through and gets recorded in DM. This central system maintains account of all the account holders in the depository system. The computer system used by all the entities is having their common software to regulate the account.

Role of SEBI in regulating NSDL
It was the SEBI’s policy to start up a system of paperless trading where everything became digitalized and the physical securities got removed with the introduction of dematerialization process. In order to get the feedback of the dematerialization process, SEBI established some depository units like NSDL and CSDL.

NSDL gets governed by the Depositories Act-1996, which provided for the Dematerialization Rules to book entry-based transfer of securities in settlement of securities trade. NSDL is a Public Limited Company under the Companies Act, 1956 and performs its functions for the profit of its shareholders. The depositories in India are regulated under:
- The Depositories Act, 1996.
- SEBI (Depositories and Participants) Regulations, 1996.
- Companies Act, 1956.
- Securities and Exchange Board of India Act, 1992.
- Prevention of Money Laundering Act, 2002.

SEBI Regulations has a far bearing impact on the depositories. Chapter II of the Securities And Exchange Board of India (Depositories and Participants) Regulations 1996 deals with regulations in terms of registration of Depositories. Within a year of registration, the depositories are required to apply for certificates. Chapter III deals with the certificate for commencement of business.
If the issuer or the investors wants to go for holding the securities in a DEMAT format then there is an agreement between the issuer and the depository. However, such agreement is not necessary if the depository is the issuer of the security or if the central or state government is the issuer of the securities.

IPO Scam: 2003-2006
The Scam came to the limelight when the primary market got manipulated by financers and market players with the use of benaami DEMAT accounts. Certain entities obtained the IPO shares which was reserved for retail applicants through thousand of benaami DEMAT account. Then the shares got transferred to the financers on the first day of listing. This brings them a huge profit by the price difference between IPO price and Listing price.

In the year 2005, ‘YES BANK’, a private entity launched its initial public offering. One of the scammers ‘Roopalben Panchal’ opened the fake DEMAT account and then raised finances on the shares allotted to her through Bharat Overseas Bank branch. On October, 2012 it was found that Purushottam Budhwani, was controlling over 5,000 demat accounts.

Himani Patel, funded 61 benami applicant and had 635 different DEMAT Account and they made 645 multiple application for 96 shares amounting Rs. 48960/-. The money for the same was routed through 22 different bank accounts in which Himani Patel was the first holder. Thus, on the basis of the allotment each application got 16 shares total numbering 10160 shares of Suzlon. These shares were off market transferred to Himani Patel’s DEMAT a/c prior to listing. The shares were sold for more than Rs.839/- compared to the IPO price of Rs.510/-. Therefore, Rs. 33,52,636/- amount was illegally earned by her.

Similarly there was fraud in Jet Airways IPO, NTPC IPO and Tata Consultancy IPO, where more than 10,000 fake DEMAT Account was found by the SEBI and thus there was a complete scam.

On 12th January, 2006 SEBI issued an ad-interim order wherein it stated that NSDL, and Depository participants being in an agent-principal relationship in terms of the Depositories Act, 1996 are liable for the conduct of their Depository Participants. Also the Depositories are the intermediaries of SEBI so they have the responsibility of protecting the interest of the investors. Thus, SEBI had indicted NSDL as far back as in 2006 for being responsible for not properly monitoring the Depository Participants and thus being responsible for this huge scam. With this the SEBI issued ex-parte ad-interim order under Section 19 of the Depositories Act, 1996 read with Section 11,11B of the Securities and Exchange Board of India Act, for completing the inquiry. The SEBI initiated adjudication proceedings against NSDL under section 15 H of the SEBI Act, 1992 and section 19 H of the Depositories Act, 1996. Thus the SEBI levied a monitory penalty of Rs. 5 Crores on NSDL.

The irregularities by NSDL during the Scam
Role of DPs:
Numerous DEMAT accounts were opened by the DPs on a single day with all the account holders having the same address. Even the addresses of the BO account holders were that of the sub-brokers of the DPs who procured DEMAT clients for the DPs. The genuineness of such DEMAT clients were not get ascertained by the DPs. Some of the DPs were found to have not only opened DEMAT accounts in fictitious / benami names but had also provided IPO financing to such fictitious / benami account holders thereby facilitating the cornering of retail portion of IPOs. There was also violation of KYC (Know Your Customer) norms applicable for opening of bank accounts and there was violation of guidelines relating to the IPO financing schemes of the banks.
SEBI found in case of Karvy Stock Broking Ltd. (Karvey DP), that Karvy had an arrangement with BhOB and through that Karvy opened several DEMAT accounts in the name of people introduced by sub-brokers. However, in reality none of the DEMAT accounts were actually introduced through sub-brokers. While moving through investigation procedures, it was found that actually Karvy DP played a dubious role by forging the bank letters and opening the forged DEMAT account.

Role of Depositories:
There existed a principal-agent relationship between depositories and depository participants. This means that the depositories are liable for the acts of their participants. It was said by the SEBI that there existed error in the part of the depository. For example, the DEMAT account was opened without obtaining adequate proof of identity or address. Even though the audit reports showed that there existed some problems for inspection of depository participants, but no steps were taken. The laws of NSDL say that there should a Disciplinary Action Committee to have a control over these depositories’ participants. However, there were no such steps taken by the NSDL.

While inspecting the procedures taken by NSDL while punishing DPs, it was found that NSDL does not impose penalties for violations which got rectified immediately after inspection. Also the penalties were mainly based on monetary terms and also waive the penalties imposed, if the DP reports rectification of deficiencies. This shows that in reality no penalty was imposed on the DPs by the NSDL.
The investigation suggests that the DPs had failed to comply with the provisions of the SEBI regulations and it was repeated several times. There was continuous infringement of the provisions of the depositories act but there was no one to cross-check the same. This shows that there was contributory negligence of NSDL on its part. The entire scheme for cornering the retail portion of IPOs has succeeded because of the active involvement of both the Depository Participants and the Depositories.

Controversies Related
The controversy basically started with the appointment of CB Bhave as the Chairperson of the SEBI at a time when SEBI was investigating the propriety of the actions of the NSDL. CB Bhave had been the CMD of NSDL prior to his appointment as Chairman of SEBI. This led to an obvious conflict of interests. Thus, in order to avoid this conflict it was decided that the investigation be carried out by an independent Committee. The committee was mainly formed to dispose of quasi judicial proceedings pending against the NSDL. However, the committee held that the SEBI has failed to regulate the matters of IPO irregularities.

Thus basically two issues arise in the case, whether SEBI has power to declare the order of special committee as ultra vires? And whether the order is required to be declared as void? The SEBI declared the orders of the Special Committee ultra vires because instead of focusing on NSDL, it was largely concentrating on the role of SEBI. On 22.6.2010, The Securities Appellate Tribunal, Mumbai, disposed of Appeal No. 21 of 2010 filed by NSDL challenging the order passé by the committee under Section 15T of the SEBI Act, 1992. The Tribunal held that all the observations against NSDL in the said order will be expunged. Thus, as a result of the orders dated 9.11.2009, 2.2.2010 and 22.6.2010 all the culprits of this major scam have managed to go scot free and escaped all accountability.

Orders and Analysis
Special committee’s report found that National Securities Depository (NSDL) was at fault for the alleged irregularities related to the IPO scam during 2003-06. Under the chairmanship of C B Bhave, the board on 2010 set aside the special committee report and had cleared NSDL with mismanagement charges on the IPO scam. A committee consisting of then Sebi board members G Mohan Gopal, and V Leeladhar on December 2008 had passed three orders and found that NSDL had failed in its duty of supervising, investigating, monitoring data and directed it to conduct an independent inquiry to establish individual responsibility.

The committee was not satisfied over the manner in which SEBI was functioning and looking into the entire scam. The committee held that SEBI had failed to carry out its' regulatory role adequately and recommended it to make a Code of Conduct for depositories. However, SEBI held that the findings of the committee were “outside the confines of delegation” and were without the authority of law. Thus the orders were held to be ‘null, void’ and so decided to look into the matter afresh. However, on 2009, the NDSL won an appeal before the Securities Appellate Tribunal, a court designated to hear appeals against SEBI’s rulings.

The order of SEBI states that Pravin Ratilal Shares and Stock Brockers Ltd., Depository Participant of National Services Depository Limited prima facie appeared to have grossly failed in adhering to the “Know Your Client” (“KYC”) norms laid down by SEBI, thereby facilitating opening of DEMAT accounts in fictitious /benami names and cornering the retail portion of shares in Initial Public Offerings. Also, orders were passed by the SEBI to Karvy Stock Broking Ltd. , Depository Participants was prohibited from opening fresh DEMAT account till 2007.

In the issue of Yes Bank, SEBI directed NSDL to ensure that the 6315 demate a/c of Roopalben and 1315 demate a/c of Sugandh must not be utilized for manipulation of IPO in future. The Securities & Exchange Board of India barred 13 investors from trading in the shares of Yes Bank Ltd and participating in future public issues.

Conclusion
Thus, it can be concluded that the IPO Scams held in the market during 2003-2006 was one of the biggest scam which Indian market received. The market analysts believe that retail allotments were not only fixed to the Yes Bank and IDFC cases but it was more than that. This obviously has brought the role of Depository System mainly NSDL in question. Many provisions which were required to be followed by the depository were not followed according to the SEBI guidelines. Fake DEMAT accounts in such a huge number have put us to a need of revisiting the applicable laws governing the depositories and the depository participants.

Even if clean chit has been given by the SEBI to the NSDL in terms of its involvement in the scam, the Supreme Court has still asked the SEBI to keep a stand on either of the side of NSDL. The need of the hour is to have a check and balance on the scheme of both NSDL and SEBI. The special committee which was appointed to find out the liability of the NSDL in the scam also put on some liability to the SEBI. So, there is some sort of amendment which is required to be led down in the provisions governing the SEBI and NSDL. The need of the hour is to impose a criminal penalty against the scamsters. Section 68A of the Companies Act says that public issue in the name of a fictious title is a crime and so an imprisonment upto 5 years can be imposed on them. Small investors have incurred a heavy loss so their share prices are required to get recovered by these scamsters.

References:
Articles Referred:
· Dr. Kirit Somaiya, ‘Story of DEMAT Scams’, 2008
· NISM, “Workbook for NISM-Series VI: Depository Operations Certification Examination”, 2010.
· NSDL, “Handbook for NSDL Depository Operations Module”, published by NSDL, 2011
· Atin Kumar Das, “Law relating to Depositories with special reference to India: An Analytical Study”, April 9 2011.
· Narendra Jadav, “Development of Securities Market-The Indian Experience”, 2007.

Online Newspapers Referred:
· http://www.financialexpress.com/news/ready-to-revisit-verdict-on-nsdl-role-in-ipo-scam-sebi-tells-sc/788032/0
· http://www.business-standard.com/article/markets/sebi-to-revisit-nsdl-clean-chit-in-ipo-scam-111051000053_1.html
· http://www.securitiestechnologymonitor.com/news/-24438-1.html
· http://www.telegraphindia.com/1110426/jsp/business/story_13902586.jsp
· http://www.thehindubusinessline.com/markets/stock-markets/apex-court-seeks-sebi-stand-on-ipo-scam-report/article1579464.ece

# 2007 74 SCL 821 SAT
# Section 2(1)(e) of the Depositories Act reads as: “depository” means a company formed and registered under the Companies Act, 1956 and which has been granted a certificate of registration under sun-section (1A) of section 12 of the Securities and Exchange Board of India Act, 1992
Section 4 reads as- (1) A depository shall enter into an agreement with one or more
participants as its agent. And participant. (2) Every agreement under sub-section (I) shall be in such form as may be specified by the bye-laws.
Shri R.J. Uttamchandani &Amp v National Securities Depository on 19 June, 2009

# Section 29 of the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996.

# ‘SC to scrutinize SEBI ruling in NSDL case’, Realpolitik, Vol.8 Issue 8, March 2013. Accessed at http://www.realpolitik.in/index.php?option=com_content&view=article&catid=65:other-stories&id=137:sc-to-scrutinise-sebi-ruling-in-nsdl-case

# Section 19 reads as: Power of Board to issue directions in certain cases- Save as provided in this Act, if after making or causing to be made an enquiry or inspection, the Board is satisfied that it is necessary- (i) in the interest of investors, or orderly development of securities market; or (ii) to prevent the affairs of any depository or participant being conducted in the manner detrimental to the interests of investors or securities market. It may issue such directions- (a) to any depository or participant or any person associated with the securities market; or (b) to any issuer as may be appropriate in the interest of investors or the securities market.

# Section 11B reads as: POWER TO ISSUE DIRECTIONS- Save as otherwise provided in section 11, if after making or causing to be made an enquiry, the Board is satisfied that it is necessary, - (i) in the interest of investors, or orderly development of securities market; or (ii) to prevent the affairs of any intermediary or other persons referred to in section 12 being conducted in a manner detrimental to the interests of investors or securities market; or (iii) to secure the proper management of any such intermediary or person, it may issue such directions, - (a) to any person or class of persons referred to in section 12, or associated with the securities market; or (b) to any company in respect of matters specified in section 11A, as may be appropriate in the interests of investors in securities and the securities market.

# Section 15H reads as: PENALTY FOR NON-DISCLOSURE OF ACQUISITION OF SHARES AND TAKE-OVER- If any person, who is required under this Act or any rules or regulations made there under, fails to, -(i) disclose the aggregate of his shareholding in the body corporate before he acquires any shares of that body corporate; or (ii) make a public announcement to acquire shares at a minimum price, he shall be liable to a penalty not exceeding five lakh rupees.

# Section 19H reads as: Power to adjudicate. (1) For the purpose of adjudging under sections 19A, 19B, 19C, 19D, 19E, 19F and 19G, the Board shall appoint any officer not below the rank of a Division Chief of the Securities and Exchange Board of India to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty. (2) While holding an inquiry, the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document, which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section (1), he may impose such penalty as he thinks fit in accordance with the provisions of any of those sections.

# Order Under sections 11 and 11B of the Securities and Exchange Board of India Act, 1992 in the matter of Investigation into Initial Public Offerings. WTM/GA/101/ISD/11/06

#  Section 15T reads as: Appeal to the Securities Appellate Board-

(1) Save as provided in sub-section (2), any person aggrieved by an order made by an Adjudicating Officer under this Act, may prefer an appeal to a Securities Appellate Tribunal having jurisdiction in the matter.

(2) No appeal shall lie to the Securities Appellate Tribunal from an order made by an Adjudicating Officer with the consent of the parties.

(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Officer is received by him and it shall be in such form and be accompanied by such fee as may be prescribed :

Provided that the Securities Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an appeal under sub-section (1), the Securities Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(5) The Securities Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Adjudicating Officer.

(6) The appeal filed before the securities Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.

# Bussiness Standards, New Delhi May 10, 2011 ‘Sebi to revisit NSDL clean chit in IPO scam’, accessed at
http://www.business-standard.com/article/markets/sebi-to-revisit-nsdl-clean-chit-in-ipo-scam111051000053_1.html

#  Before SEBI, ‘In the matter of IPO investigations- M/S Pravin Ratilal Share and Stock Brokers Ltd.’, Accessed at http://www.sebi.gov.in/cmorder/pravinratilal.html

# SEBI vs Karvy Stock Broking Ltd. on 22 June, 2007

# D.N.A ‘Sebi detects benami-demat accounts fraud in Yes Bank IPO’, Dec. 2005, Accessed at http://www.dnaindia.com/money/1002441/report-sebi-detects-benami-demat-accounts-fraud-in-yes-bank-ipo.

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