Securities and Exchange Board of India Act, 1992 – SEBI (Mutual Funds) Regulations, 1996 – Violation of, when – Market integrity paramount, profit or loss to investors immaterial to determine whether a regulatory infraction occurred – Kotak Mahindra Mutual Fund launched 6 close ended schemes (a scheme having a fixed maturity period) between 2013 and 2016 which were to mature in or around April/May 2019 – Rs.266 crore (out of Rs. 1625 crore) collected under the said Schemes was invested in debt securities, i.e., Zero Coupon Non-Convertible Debentures (ZCNCDs) issued by ESSEL group of companies and were backed by a pledge over 22.8% shares of Zee Entertainment Enterprises Limited (ZEEL) – Drop in the share value of ZEEL, resulting in the security cover to drop below 1.5 times the exposure – Kotak Mahindra Asset Management Company Limited (Kotak AMC) agreed with other lenders of ZEEL for restructuring the redemption of the ZCNDCs and maturity dates of ZCNCDs were extended beyond the maturity dates of the Schemes – The 6 Schemes matured and ideally, the entire amount therein should have been paid to the unitholders as per the scheme document however, a part of the amount was withheld and was paid only subsequently – Show Cause Notice issued by SEBI to Kotak AMC – Order passed by the Whole Time Member, SEBI inter alia imposing penalties of Rs.50,00,000/- on Kotak AMC for lack of due diligence and care while investing in ESSEL Group Companies; extension of maturity dates of the ZCNCDs; and inadequate disclosures to the investors and to SEBI – Adjudicating Officer levied penalties on Kotak TRUSTEE and its senior executives – Appeals thereagainst, partly allowed by Tribunal – Challenge to – Plea of Kotak AMC inter alia is that its act of extending the maturity dates of ZCNCDS beyond the maturity dates of the Schemes and consequential partial redemption of the Schemes by winding them up much after the maturity dates did neither cause any loss to the unitholders nor did anyone complain rather, it only resulted in profits to the unitholders: Held: The contention that no loss was caused to the investors/unitholders and, on the contrary, they gained and, hence, action should not have been taken is no defence at all – The 1996 Regulations make no distinction between a breach resulting in profit and a violation resulting in loss – Breaches of the regulatory framework, fortuitously, could ultimately result in gain but excusing a breach which led to profit is likely to incentivize the next breach – Progression from profit to greed, from greed to regulatory breach and from breach to systemic failure is not too unfamiliar – Market integrity being the paramount consideration, profit or loss to investors is immaterial to determine whether a regulatory infraction has occurred – A wrongdoer cannot be allowed to use the plea of the investors having gained, notwithstanding the violation, as a shield for evading penalty – The 1996 Regulations operate in a specific field: to ensure compliance – Variable scenarios of violation is not contemplated – The ordinary intent behind investments in mutual funds is stability and security coupled with profits – Kotak AMC having represented to the unitholders, who invested in the Schemes, that their investment would be for a fixed term and that the returns would be credited to them on the maturity dates or soon thereafter, it is a roll over in the manner ordained, as noticed, that could have saved it from breach – Since no notification of a proposed roll over was made to the unitholders as well as to SEBI, there was no roll over – The breach is brazen and indefensible – Also, the argument that taking of steps as postulated by the regulatory mechanism would have resulted in loss to the investors and that was sought to be averted, is wholly opposed to the very scheme of the securities law – The course adopted by Kotak AMC was wholly unknown to, and irreconcilable with, the legislative scheme enacted under the SEBI Act – It departed from the carefully calibrated framework established under the SEBI Act by not winding up the Schemes on the respective dates of maturity, thereby inviting penalty – Any breach committed to avert loss in the given circumstances does not find favour in law – Compliance with the regulatory mechanism being mandatory and non-negotiable, it is no valid defence that compliance with law would have resulted in loss – All three parties, viz. Kotak AMC, Kotak Trustee and the Senior Executives failed to ensure compliance with the 1996 Regulations – No scope for grant of any relief on merits – Appeals of Kotak AMC, Kotak Trustee and the Senior Executives dismissed – Kotak AMC and Kotak Trustee will, however, bear costs assessed at Rs.30 lakh and 20 lakh, respectively. [Paras 32-34, 42, 52, 53] SEBI (Mutual Funds) Regulations, 1996 – rr.33(4), 39 – Violation of – Extension of maturity dates of the ZCNCDs; inadequate disclosures to the investors and SEBI: Held: Regulation 33(4) casts a statutory duty of information being provided to the unitholders and SEBI – Regulation 39, dealing with winding up of a close-ended scheme, provides in sub-regulation (1) that a close-ended scheme shall be wound up on the expiry of duration fixed in the scheme on the redemption of the units unless it is rolled over for a further period under sub-regulation (4) of regulation 33 – The first scheme to mature was FMP Series 127 on 08.04.2019 – Regulation 33(4) r/w regulation 39 of the 1996 Regulations, in its plain language, lays down what was required of the appellants – The only exception provided by the regulations is, if the scheme is rolled over – Admittedly, this was not done – Neither is that the contention of the appellants – The unitholders and SEBI were kept in the dark – Statutory violation of this nature has to be strictly viewed – After the entire operation, right from the decision to extend the ZCNCDs to the execution of agreements inter alia with KONTI and EDISON, the decision not to invoke pledge, and several others, none of this was ever intimated to SEBI till SEBI knocked on KOTAK AMC’s doors – It was imperative for Kotak AMC, at the very least, to apprise SEBI being the regulator, of the proposed action when the action itself was not in consonance with the regulations – All three parties, viz. Kotak AMC, Kotak Trustee and the Senior Executives failed to ensure compliance with the 1996 Regulations. [Paras 24, 25, 38, 39, 40, 42] Securities and Exchange Board of India Act, 1992 – SEBI (Mutual Funds) Regulations, 1996 – Contention of Kotak AMC that it was not the only fund which had invested in ESSEL securities – Several mutual funds in the market had also invested in ESSEL securities and without acting against the other market participants, SEBI has singled Kotak AMC out for action which is wholly arbitrary and incorrect: Held: Contention rejected, as has been rightly done by the Whole Time Member and the Tribunal – Apart from the established principle that negative equality cannot be claimed, there is ex facie violation of the 1996 Regulations – Kotak AMC can neither seek shelter under the alleged violations of others to justify its own breach nor would existence of other violations, if at all, absolve Kotak AMC of its own liability – Illegality is not cured by numbers; a collective wrong remains illegal, regardless of majority. [Para 28]
Circular – Securities and Exchange Board of India Act, 1992 – SEBI (Mutual Funds) Regulations, 1996 – Kotak AMC contended that a circular issued by SEBI dtd.28.12.2018 which permits creation of a segregated portfolio would enure to its benefit – It was contended that despite non-invocation of the 2018 circular, the action of partial redemption would be saved thereby:
Held: This is in stark contrast with the stance adopted by Kotak AMC before the Whole Time Member (WTM) – It was their specific stand before the WTM and in its replies to the Show Cause Notices, that the act of partial winding up cannot amount to creation of a segregated portfolio – The WTM held that the division of portfolios in part amounted to segregation but the same being a technical violation, it was not proceeded further – However, before this Court, Kotak AMC contended that albeit without following the procedure under the 2018 Circular, it acted in accordance with it and thus, no violation of regulation
33 of the 1996 Regulations can be attributed to it – Once Kotak AMC claimed that it in fact did not segregate the portfolio, the question of claiming benefit thereof, by any stretch of imagination, cannot arise – To claim segregation, Kotak AMC would have had to scrupulously follow the procedure under the 2018 Circular, clause 3 of which mandates that a provision therefor must be made in the Scheme Information Documents (SID) – The WTM held that there was no provision in the SID for Kotak AMC to undertake such a course – That apart, the procedure under the 2018 Circular, such as issuance of press release, trustee approval, intimation to unitholders, allotment of segregated units, etc. was not followed – It is, admittedly, not Kotak AMC’s case that this was done. [Paras 36, 37]
Financial and Technical Matters – Findings of Expert Regulator – No challenge to:
Held: In cases of financial and technical matters, the line of thinking adopted by the expert regulator, if found reasonable, cogent, and in consonance with the established principles of law, may not be lightly departed from – Given that the WTM duly considered all the relevant factors, its reasoning deserves deference. [Para 17] Securities and Exchange Board of India Act, 1992 – SEBI (Mutual Funds) Regulations, 1996 – Violation of – Penalty imposed upon Senior Executives – Waiver of, when not warranted – It was contended on behalf of Senior Executives, that while a beneficial outcome cannot justify a regulatory infraction, the absence of investor prejudice may be considered a mitigating factor for waiving penalty: Held: The conduct of the Senior Executives is material – They are supposed to be individuals who are domain experts, being well-versed in the field of securities law – It is unimaginable that they were not aware of the consequences of infraction of the regulatory framework – Future of the unitholders was put to immense risk by them – In matters such as this, where the margin for error is virtually non-existent, the conduct of the Senior Executives treads beyond condonable limits and, consequently, disentitles them even to any interference with the penalty imposed – Waiver. [Para 51]
Securities and Exchange Board of India Act, 1992 – SEBI (Mutual Funds) Regulations, 1996 – Violation of – Committing a breach to save investors, no justification for deviation from the regulatory mandate and does not absolve liability – Plea on behalf of Kotak AMC inter alia is that taking of steps as postulated by the regulatory mechanism would have resulted in loss to the investors and that was sought to be averted and; its act of extending the maturity dates of ZCNCDS beyond the maturity dates of the Schemes and consequential partial redemption of the Schemes by winding them up much after the maturity dates did neither cause any loss to the unitholders nor did anyone complain and rather, it only resulted in profits to the unitholders:
Held: Taking of steps as postulated by the regulatory mechanism would have resulted in loss to the investors and that was sought to be averted is wholly opposed to the very scheme of the securities law – Those interested to invest in mutual funds are put on guard from the very inception with regard to the likely risks involved – The ‘Risk Disclosure Statement’ and the ‘Due Diligence Advisory’, comprise the ‘Statutory Disclaimer’ – Those willing to invest in mutual funds despite such disclaimer do so at their own risk and peril – Committing a breach to save such investors is no justification for deviation from the regulatory mandate and does not absolve liability – The statutory scheme is consequence-neutral and the regulatory regime has been designed to enforce compliance, irrespective of the outcome – In any event, in an appeal u/s.15Z, this Court is not to sit in judgment over the expediency of the breach, the pecuniary consequence of the breach and the absence of complaints – Commission of breach having practically stood admitted and established, any justification by referring to investor satisfaction and/or absence of complaint would not provide any immunity to the appellants. [Para 34]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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