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IN TH
IN TH
E HON’BLEE HON’BLESUPREME COURT OF INDIA,
SUPREME COURT OF INDIA,
AT NEW DELHI.
AT NEW DELHI.
SPECIAL
SPECIAL LEAVE
LEAVE PETITION
PETITION NO.
NO.
Of
Of 2013
2013
M
MSS.. SSUSHMAUSHMA&& MMR R .. SSANJAYANJAYBBANSALANSAL
A
APPELLANTSPPELLANTS
V VSS..
S
SECURITIESECURITIES AANDNDEEXCHANGEXCHANGE BBOARD OFOARD OF IINDIANDIA
R
R ESPONDENTESPONDENT
29
29
ththBAR COUNCIL OF INDIA TRUST INTER UNIVERSITY,
BAR COUNCIL OF INDIA TRUST INTER UNIVERSITY,
MOOT COURT COMPETITION
MOOT COURT COMPETITION
2013-2014
2013-2014
SUBMITTED IN THE REGISTRY OF THE COURT
SUBMITTED IN THE REGISTRY OF THE COURT
ON BEHALF OF THE
ON BEHALF OF THE RESPONDENT
RESPONDENT
-SECURITIES AND EXCHANGE BOARD OF INDIA
-SECURITIES AND EXCHANGE BOARD OF INDIA
– –Page | II
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……...………..……… III INDEX OF AUTHORITY...IV STATEMENT OF JURISDICTION...VI STATEMENT OF FACTS...VII STATEMENT OF ISSUES...IX SUMMARY OF ARGUMENTS...X DETAILED PLEADING………..………1
ISSUE NO. 1: Whether the Petition is maintainable?...1 ISSUE NO.2 - Whether the telephonic conversation amounted to Inside Information?...3 ISSUE NO.3 - Whether Suresh Agarwal acted on the said Information and made profit Thereof?...5 PRAYER...6
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LIST OF ABBREVIATIONS
SEBI Securities and Exchange Board of India. SAT Securities and appellate tribunal.
AIR All India Reporter.
SC Supreme Court.
CIT Commissioner of Income Tax.
SEC Securities Exchange Commission.
US United States.
SCC Supreme Court Cases.
Sec. Section.
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INDEX OF AUTHORITY
S.NO. PARTICULARS
1 STATUTORY COMPILATIONS
1. THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT, 1992. 2. PROHIBITION OF INSIDER TRADING REGULATIONS, 1992.
3. CONSTITUTION OF INDIA.
4. COMPANIES ACT, 1956.
2 BOOKS REFERRED
1. Dr. J.N. Pandey, The Constitutional Law of India, Central Law Agency, 48th Edition.
2. M.P. Jain, Indian Constitutional Law, 256, (LexisNexis Butterworths Wadhwa, Nagpur, 2010).
3. A K Majumdar, G K Kapoor, Company Law, Taxmann Publications Pvt. Ltd., 15th Edition
H. Nejat Seyhun, Investment Intelligence from Insider Trading , The MIT Press; First Edition edition
3 DICTIONARIES & LAW LEXICONS:
i. Oxford Dictionary, 6th Ed., Oxford University Press, London, 2003.
ii. GARNER, BRYAN A.: “ A Dictionary Of Modern Legal Usage”, Oxford University Press 2nd ed. Oxford (1995)
iii. Greenberg, Daniel & Alexandra, Millbrook: “Stroud’s Judicial Dictionary Of
Words & Phrases”, VOL. 2, 6th ed., London: Sweet & Maxwell (2000).
4 WEBSITES REFERRED:
i. www.findlaw.com
ii. www.indiankanoon.com iii. www.indlawinfo.org
Page | V iv. www.jstor.org. v. www.judis.nic.in vi. www.lawsofindia.org vii. www.manupatra.com viii. www.scconline.com ix. www.supremecourtcaselaw.com 5 CASES REFERRED
1. Glaxosmithkline and Horlicks Limited v. Heinz India,
(MANU/DE/0011/2009).
2. Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666. 3. Bal Ram Prasad Rawat v. State of Uttar Pradesh, AIR 1981 SC 1575.
4. S.G. Chemicals & Dyes Trading Employees Union v. S.G. Chemicals & Dyes Trading Ltd., (1986) 2 SCC 624.
5. M.V. Vali Pero v. Fernandeo Lopez, AIR 1989 SC 2206. 6. Mathai @ Joby v. George (2010) 4 SCC 358.
7. N. Suriyakala v. Mohandoss and Ors (2007) 9 SCC 196.
8. SEC v. Texas Gulf Sulphur Co 401 F.2d 833, 848 (2d Cir.1968), cert. denied, 394 U.S 976 (1969).
9. Dirks v. SEC, 463 U.S 646(1983).
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STATEMENT OF JURISDICTION
The Hon’ble Supreme Court has the jurisdiction to try and entertain the present appeal under Article 136 of the Indian Constitution. Article 136 of the Indian Constitution reads as hereunder:
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any
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STATEMENT OF FACTS
Fortune India Ltd., is a Company incorporated under the Indian Companies Act, 1956, having its registered office at No.5, Avenue road, Bazaar Street, Mumbai was engaged in the business of Cotton yarn, manufacturing and trading. It was a listed Company, and its equity was listed in the Bombay Stock Exchange. The Company has been declaring dividend from the last ten years. One of the independent directors, Mr. Sanjay Bansal was a nominee of a Central Co-operative Bank.
DISCUSION OF THE BOARD OF DIRECTORS IN SEPTEMBER- 2012 MEETING.
Business proposal of either acquiring or merging with a Company engaged in the forward trading to effectively control over the periodical supply of high quality long staple cotton for the plant of the Company and to effectively meet demand for the garment industry engaged in supply of quality product for US / EU market.
Delta Future Trading Co. Ltd., also a listed Company with NSE having its registered office at No. 25, Avenue road, Bazaar Street, Mumbai was engaged in the business of forward trading of cotton, wheat and maize. The company has Mr. Mahesh Agarwal and Mr. Suresh Agarwal in its Board of Directors.
DECISSION OF THE BOARD OF DIRECTORS IN SEPTEMBER- 2012 MEETING.
The Board decided to acquire shares of a company engaged in business of manufacturing yarn.
The driver of the car overheard the proposal, while the two Agarwal brothers were discussing the pros and cons of the proposal while driving the car back home. Thereafter, next day, Mr. Suresh used his wife’s cell to talk to one Mrs. Susma, a sharebroker asking for the price of Fortune for the last about a month. There was no further discussion.
DRIVER ACQUAINTANCE
The driver of Agarwal brothers had acquaintance with the driver of Mrs. Susma. They in between their discussion, in the driver’s club about Fortune’s idea of sale or buy were loud enough to be heard by the driver of Mr. Bansal of Fortune. Mrs. Susma started acquiring shares of those two companies and Bansal started buying Delta’s shares after they got this scoop from their respective drivers.
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ADVERTISEMNT FOR PUBLIC AUCTION
After about two months, Fortune went for giving an advertisement for public auction for acquiring 60% shares of Delta. Mrs. Susma by the time held 30% shares and Bansal another 20%. Naturally, they made a fall through.
DECISSION OF SEBI TO AN ANONYMOUS COMPLAINT SEBI, on an anonymous complaint issued notice
to:-1. Fortune, its directors. 2. Delta, its directors. 3. Mrs. Susma.
SEBI after enquiry found that charge of insider trading was established against Sanjay Bansal, Agarwal brothers and Mrs. Susma and imposed penalty equal to double of the gains made by the parties.
APPEALS TO APPELLATE SECURITY TRIBUNAL
Aggrieved, by the orders of SEBI, Agarwal brothers, Bansal and Susma in separate appeals went to the Appellate Security Tribunal. The Tribunal found charges against Agarwal brothers not justified and exonerated them but upheld the order of the SEBI against Bansal and Susma.
Susma and Bansal submitted an SLP to the Supreme Court of India.
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STATEMENT OF ISSUES
ISSUE NO.1-WHETHER THE PETITION IS MAINTAINABLE?
ISSUE NO.2-WHETHER THE TELEPHONIC CONVERSATION AMOUNTED TO INSIDE INFORMATION?
ISSUE NO.3-WHETHER SURESH AGARWAL ACTED ON THE SAID INFORMATION AND MADE PROFIT THEREOF?
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SUMMARY OF ARGUMENTS
ISSUE No. 1: WHETHER THEPETITION ISMAINTAINABLE?
The present petition filed under Article 136 of the Indian Constitution is non
maintainable on the ground of Forum Non Conveniens1 , as an alternative and efficacious remedy is already available under Section 15Z of The SEBI Act, 1992. Supreme Court has imposed limitations on itself under Article 136 that it does not usually entertain appeals against an order of the tribunal unless the appellant has exhausted the alternative remedies provided by the relevant law. Article 136 does not confer upon a litigant a right to appeal against any order or judgement but vest the Supreme Court of India with a discretionary power to interfere with the orders of the lower Courts only in cases of exceptional character where gross injustice has been carried out. Furthermore, up to June 2013, 35439 SLPs which do not involve important constitutional issues or issues of general importance are pending in the Court. This shows that Supreme Court has merely become a Court of Appeal.
Doctrine of Lex Specialis states that where two laws govern the same factual situation,
a law governing a specific subject matter (lex specialis) over rides the laws which governs general matters (lex generalis). Therefore, when special provision has been provided under Section 15Z of the Act, then it would over ride the general provision
as provided under Article 136.
Even if the Hon'ble Court exercises its discretion under Article 136, both the
appellants, Mrs. Sushma and Mr. Sanjay Bansal would come within the ambit of the term insiders defined under Regulation 2(e) and 2(h) of Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992 and have used unpublished price sensitive information to make illegitimate profits.
ISSUE NO.2 - WHETHER THE TELEPHONIC CONVERSATION AMOUNTED TO INSIDE
INFORMATION?
The material information in the instant case about Fortune's intention to merge or acquire and the Delta's intention to acquire was already known to the insiders of both the companies i.e. Mr. Sanjay Bansal and Aggarwal brothers including Mrs.Sushma, the share broker, which means there was a breach of fiduciary duty to keep the information confidential. This fact is 1Glaxosmithkline and Horlicks Limited v. Heinz India (MANU/DE/0011/2009).
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corroborated by the fact that while driving car back home the Aggarwal brothers were discussing about the pros and cons of Fortune's idea of sale or buy exclusively and not any other company as overheard by their driver, which he was sharing with the driver of Mrs. Sushma which was subsequently over heard by the driver of Mr.Bansal of Fortune. The telephonic call made to Mrs. Sushma by Mr. Suresh intentionally by her wife's cell phone amounted to inside information as Sushma's subsequent conduct of purchasing the shares of Delta and that too in such a large quantity (30%) unambiguously exhibit that there was a exchange of price related sensitive information between the two. As per the doctrine of Res Gestae, the subsequent conduct of Mrs Sushma of purchasing shares clearly point towards the guilt of the accused.
ISSUE NO.3 - WHETHER SURESH AGARWAL ACTED ON THE SAID INFORMATION AND
MADEPROFITTHEREOF?
Suresh Agarwal acted on the insider information and accrued illegal profits thereof. It can be ascertained from the facts that Agarwal brothers acted suspiciously by using his wife's cell phone to call Share brokers, exclusively discussing about the acquisition of Fortunes shares subsequent to their meeting about acquiring shares of a similar company, and in the end Delta's take over by the Fortune. Mr. Suresh Agarwal's conversation with Sushma also resulted in her acquiring huge quantities of Delta's Shares.
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ISSUE No. 1: WHETHER THEPETITION ISMAINTAINABLE?
It is most humbly submitted that, the present petition filed under Article 136 of the Indian Constitution is non maintainable on the ground of Forum Non Conveniens2 , as an alternative and efficacious remedy is already available under Section 15Z of The SEBI Act, 1992, which reads "Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Securities Appellate Tribunal on him on any question of law arising out of such order....".
That , under the facts and circumstances of the instant case, the appellants namely Sushma and Sanjay Bansal, aggrieved by the order of the Securities Appellate Tribunal, filed an SLP to the Apex Court under Article 136 of the Constitution. Supreme Court has imposed limitations on itself that it does not usually entertain appeals against an order of the tribunal unless the appellant has exhausted the alternative remedies provided by the relevant law. The court has imposed this restriction in view of the heavy rush of the cases. In the year 2011, about 85% (eighty-five percent) of the cases were the SLPs3. Article 136 does not confer upon a litigant a right to appeal against any order or judgement4 but vest the Supreme Court of India with a discretionary power to interfere with the orders of the lower Courts only in cases of exceptional character where gross injustice has been carried out. This means that the Supreme Court can relax if special circumstances are present5. Furthermore SLP also acts against the mandate of S.15Z and the legislative intent to expeditiously file an appeal in the Apex Court within the prescribed period of 60 days6 as rights of public at large are involved. If SLPS are allowed under such circumstances the law of the land will be misused as no limits are prescribed under the Constitution of India for filing an SLP and it would further lead to conflict of laws as one being the law of the land while other the deri vative of same. That, the above proposition stands corroborated by the common law doctrine of Lex Specialis, relating to interpretation of laws, which can be applied both in domestic and
2Glaxosmithkline and Horlicks Limited v. Heinz India (MANU/DE/0011/2009).
3 Aju John, The SLP Court Of India, available at: www.mylaw.net/Article/the_slp_court_of_india/#.Uh9A6RtT (Visited on August 25, 2013).
4 Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666.
5 Bal Ram Prasad Rawat v. State of Uttar Pradesh, AIR 1981 SC 1575 ; S.G. Chemicals & Dyes Trading Employees Union v. S.G. Chemicals & Dyes Trading Ltd., (1986) 2 SCC 624, M.V. Vali Pero v. Fernandeo Lopez, AIR 1989 SC 2206 as cited in M.P. Jain, Indian Constitutional Law, (LexisNexis, Nagpur, 6th Edn.,
2010) pg.264.
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international law contexts. The doctrine states that where two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) over rides the laws which governs general matters (lex generalis)7 .
That, The Supreme Court in Mathai @ Joby v. George8 has lamented the abuse of Article 136 of the Constitution whereby unscrupulous litigants approach the Supreme Court at the drop of a hat, thereby clogging up the justice delivery system. The Supreme Court has held that there is urgent need to address the issue and has accordingly placed the matter before a larger bench for framing guidelines for entertaining Special Leave Petition under Article 136 of the Constitution. Furtheremore, in N. Suriyakala v. Mohandoss and Ors.9 , the Court observed, "In this connection we merely clarify the scope of Article 136. Article 136 of the Constitution is not a regular forum of appeal at all. It is a residual provision which enables the Supreme Court to interfere with the judgement or order of any Court or tribunal in India in its discretion".
That, Mr. K.K. Venugopal, Senior Advocate Supreme Court of India, has pointed in his R.K. Jain Memorial Lecture delivered on 30.01.2010 has pointed out that in 2009 almost 70,000
cases were filed in the Supreme Court of which an overwhelming number were SLPs under Article 13610. Furthermore, Upto June 2013, 35439 SLPs which do not involve important constitutional issues or issues of general importance are pending in the Court11.
Furthermore, Arguendo, even if the Hon'ble Court exercises its discretion under Article 136, both the appellants, Mrs. Sushma and Mr. Sanjay Bansal would come within the ambit of the term insiders defined under Regulation 2(e) and 2(h) of Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992 and have used unpublished price sensitive information to make illegitimate profits (discussed subsequently).
Therefore, in light of the above arguments it is vehemently prayed that the present petition should not be allowed under Article 136 of the Indian Constitution and should be moved before the appropriate Bench through appropriate channel of law i.e. S.15Z of the SEBI Act. When an exclusive provision to file an appeal exists under the law governing such transactions, the exclusive provision is ought to be followed.
7 Available at, www.trans-lex.org/9100. (Visited on August 26, 2013). 8 (2010) 4 SCC 358.
9 (2007) 9 SCC 196.
10 Available at, www.legalblog.in/2011/09/abuse-of-article-136-of-constitution.html. By Justice Markandey Katju (Visited on August 26, 2013).
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ISSUE NO.2 - WHETHER THE TELEPHONIC CONVERSATION AMOUNTED TO INSIDE
INFORMATION?
It is most humbly submitted, that insider trading on the basis of private information is highly profitable in the context of corporate take over's12. Important corporate decisions like mergers or takeovers or rights issue often affect the price of the stock materially. In order to answer the above question affirmatively it is pertinent to note the landmark case of SEC v. Texas Gulf Sulphur Co.13 in which it was discussed that it is important to determine when the information in question became material as it is to determine whether the information was material.
That, the material information in the instant case about Fortune's intention to merge or acquire and the Delta's intention to acquire was already known to the insiders of both the companies i.e. Mr. Sanjay Bansal and Aggarwal brothers including Mrs.Sushma, the share broker, which means there was a breach of fiduciary duty to keep the information
confidential. This fact is corroborated by the fact that while driving car back home the Aggarwal brothers were discussing about the pros and cons of Fortune's idea of sale or buy exclusively and not any other company as overheard by their driver, which he was sharing with the driver of Mrs. Sushma which was subsequently over heard by the driver of Mr.Bansal of Fortune.
That, the telephonic call made to Mrs. Sushma by Mr. Suresh intentionally by her wife's cell phone amounted to inside information as Sushma's subsequent conduct of purchasing the shares of Delta and that too in such a large quantity (30%) unambiguously exhibit that there was a exchange of price related sensitive information14 between the two. Whereas Mr. Sanjay Bansal also obtained 20% of the Delta's shares, as he would had made no loss being an independent director of Fortune due the absence of any monitory liability. Furthermore once the information is proved to be a disclosure of a material information, it is not important whether the purchasing of shares was predictions or not15. The same view can be taken with respect to information that remained unverified when it was received16. Furthermore
12 Laura Nyantung Beny, The Political Economy of Insider Trading Legislation and Enforcement: International Evidence, p.6. cited at Santhi Dasari, Inside or price sensitive information in insider trading of securities - An
analysis of English, U.S. and Indian Laws.
13 401 F.2d 833, 848 (2d Cir.1968), cert. denied, 394 U.S 976 (1969). 14 S.2(h) of SEBI (Insider Trading Regulations) 1992.
15Supra 10.
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Mrs.Sushma was merely a Share broker and not a Stock Analyst, whose interest and duty is merely restricted to buying and selling stocks and not analyzing the price of Fortune.
That, another test known as 'probability magnitude' test was also articulated for the first time in Texas Gulf Sulphur case17 . In case of mergers, one company will approach another to discuss the possibility of an acquisition. Therefore the insiders of both the company would be prohibited from trading. Therefore if any of insiders have brought the shares of the other company in the same proximity of events, it clearly signifies that price related insider information was already exchanged. The possibility of Aggawarl brothers selling their own shares and company's assets cannot be ruled out to Bansal and Sushma to accrue undue profits cannot be ruled out.
Furthermore, a call to a professional analyst i.e. Sushma, who analyses the information available in the market and advises the clients, the proof of trading based on non public information would be difficult to establish. The reason behind this is due to the fact that such analysts receive their information from various sources. However, in various cases just like the instant case the nature of transaction and close proximity between events exhibit insiders trading. In SEC v. Geon Industries18 , the court depended on the fact that the defendant had shown no prior interest in trading in the securities of the company until he gets the information from a company insider, similar to that of the instant case, neither of the two Appellants ever showed any interest or held any share previous to these material conversations.
That, in respect of the above preposition it is pertinent to highlight the doctrine of Res Gastae envisaged under S.6 of the Indian Evidence Act. Section 6 reads " Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and places.
According to this doctrine a transaction may be described as any physical act, or a series of connected acts, together with the words accompanying such act or acts. Every fact which is part of the same transaction as the fact in issue is deemed to be relevant to the fact in issue.
Proximity of place, proximity of time, proximity of events and proximity of space forms the same transaction. Under the facts and circumstances of the instant case, the proximity of events i.e. (i) the drivers over hearing Aggarwal brothers exclusively talk about fortune, (ii) Aggarwal brothers calling Mrs. Sushma, (iii) Mrs. Sushma and Mr.Sanjay Bansal 17Supra 11.
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immediately acquiring Delta's Share and (iv) subsequent acquisition of Delta by Fortune very unambiguously exhibit the guilt of the Appellants as the proximate nexus of events, place and timings are very closely linked.
ISSUE NO.3 - WHETHER SURESH AGARWAL ACTED ON THE SAID INFORMATION AND
MADEPROFITTHEREOF?
It is most humbly submitted that, Suresh Agarwal acted on the insider information and accrued illegal profits thereof. From the facts already discussed previously, it can be ascertained that, Agarwal brothers acted suspiciously by using his wife's cell phone to call Share brokers, exclusively discussing about the acquisition of Fortunes shares subsequent to their meeting about acquiring shares of a similar company, and in the end Delta's take over by the Fortune. Mr. Suresh Agarwal's conversation with Sushma also resulted in her acquiring huge quantities of Delta's Shares. All the ingredients of insiders trading are positively established in the previous issue.
That in this regard it is pertinent to observe that in India, an insider trader is made criminally liable by the virtue of section 24 of the Securities and Exchange Board of India Act, 1992 read with Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2002 ('Insider Trading Regulations'). The insider trading regulations in India prohibits dealing in securities of a listed public company in possession of unpublished
price-sensitive information. Therefore if any unpublished price price-sensitive information is leaked, the penetrator of such information can be held liable. The Insider Trading Regulations do not contain the requirement of motive for the conviction of insider trading. Further, the Regulations also do not contain the requirement of knowledge and intention for the conviction in insider trading. Regulation 4 of the Insider Trading Regulations states that any insider who deals in securities in contravention of the provisions of Regulations 3 or 3A of the Insider Trading Regulations shall be guilty of insider trading. Thus, once it is proved that he is an insider and has committed any of the acts prohibited by regulations 3 and 3A, it does not matter whether he had done it deliberately, intentionally or knowingly. Thus in India, insider trading can be called a crime of strict liability19.
Therefore, it is most humbly prayed that Mr. Suresh did act on insider's information and accrued undue profits by breaching his fiduciary duty towards his company.
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PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is most humbly prayed that this Honorable Court may be pleased to:
TO HOLD
That the present petition under Article 136 of the Indian Constitution is not
maintainable.
That the telephonic conversation amounted to inside information.
That Mr. Suresh Agarwal did not act on the said information and has not made any
profits thereof.
TO UPHOLD
The order passed by the Security Appellate Tribunal against Mrs. Sushma and Mr.
Sanjay Bansal.
MISCELLANEOUS
Any other relief that this Hon’ble Court may be pleased to grant in the interest of
equity, justice and good conscience.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSELS FOR RESPONDENT Sd.
