S.E.B.I. Vs. Sahara India Real Estate Corporation Ltd. & Ors.
EmailAppeal: I.A. Nos. 101-103
In
Contempt Petitions (C) No. 412 – 413 of 2012
In
Civil Appeals No. 9813 and 9833 of 2011
And
Contempt Petition (C) No. 260 of 2013
In
Civil Appeal No. 8643 of 2012
In
Contempt Petitions (C) No. 412 – 413 of 2012
In
Civil Appeals No. 9813 and 9833 of 2011
And
Contempt Petition (C) No. 260 of 2013
In
Civil Appeal No. 8643 of 2012
Petitioner: S.E.B.I.
Respondent: Sahara India Real Estate Corporation Ltd. & Ors.
Apeal: I.A. Nos. 101-103
In
Contempt Petitions (C) No. 412 – 413 of 2012
In
Civil Appeals No. 9813 and 9833 of 2011
And
Contempt Petition (C) No. 260 of 2013
In
Civil Appeal No. 8643 of 2012
In
Contempt Petitions (C) No. 412 – 413 of 2012
In
Civil Appeals No. 9813 and 9833 of 2011
And
Contempt Petition (C) No. 260 of 2013
In
Civil Appeal No. 8643 of 2012
Judges: T.S. Thakur & A.K. Sikri, JJ.
Date of Judgment: Jun 04, 2014
Appearances:
Appearances
Mr. Pratap Venugopal, Mr. Gaurav Nair, M/s K.J. John & Co. and Vishwa Pal Singh, Advocates for the Petitioner
Dr. Rajeev Dhavan, Senior Advocate, Mr. Keshav Mohan, Mr. Gaurav Kejriwal, Mr. Jatin Pore, Mr. Sandeep Bajaj, Mrs. Shally Bhasin Maheshwari and Mr. Gautam Awasthi, Advocates with him for the respondents.
Mr. Pratap Venugopal, Mr. Gaurav Nair, M/s K.J. John & Co. and Vishwa Pal Singh, Advocates for the Petitioner
Dr. Rajeev Dhavan, Senior Advocate, Mr. Keshav Mohan, Mr. Gaurav Kejriwal, Mr. Jatin Pore, Mr. Sandeep Bajaj, Mrs. Shally Bhasin Maheshwari and Mr. Gautam Awasthi, Advocates with him for the respondents.
Head Note:
CONTEMPT OF COURTS
Contempt of Courts Act, 1971
Section 2 – Constitution of India, 1950, Article 136 – Interlocutory Applications – Contempt proceedings against directors of Sahara – One of them (Mr. Subrata Roy) having been confined to custody for non-compliance – Conditional orders of bail already passed – Condition to deposit Rs. 5,000/- crores in cash and give a bank guarantee of Rs. 5,000/- crores – No compliance – IAs moved for (i) lifting ban vide orders dated 21.11.2013 and of SEBI dated 13.02.2013 regarding operation of Bank Accounts/ deposits/ sale of securities, (ii) lifting restrictions in respect of movable and immovable properties on conditions to utilize the net proceeds for repayment and (iii) pass such orders as may be deemed fit – Proposals given for available provision of amount available in banks/ investments, bonds, FDs Securities and Bonds to the tune of Rs. 2,500/- crores – Proposal for sale of immovable properties in India to raise another amount of Rs. 2,500/- crores and Rs. 5,000/- crores from properties in UK and USA – Prayer for relaxation in jail conditions and grant of bail – If can be allowed. Held that relaxation of bail conditions cannot be allowed due to conduct of contemners. Even prayer to shift them from Tihar Jail to Guest House is not acceptable as such prayer made earlier was not accepted. Hence, that part of prayer for modification of bail conditions or shifting is declined. So far as proposal to arrange amount for deposit (Rs. 10,000/- crores), the restrain orders passed by Court and SEBI have the effect of preventing contemners from complying with directions of Court. Hence, permission given to sell 9 properties located in India but not less than circle rate of that city. Directions for sale of properties in London and New York to be made after receiving information sought and verified. Orders dated 21.11.2013 and SEBI orders dated 13.02.2013, modified.
Contempt of Courts Act, 1971
Section 2 – Constitution of India, 1950, Article 136 – Interlocutory Applications – Contempt proceedings against directors of Sahara – One of them (Mr. Subrata Roy) having been confined to custody for non-compliance – Conditional orders of bail already passed – Condition to deposit Rs. 5,000/- crores in cash and give a bank guarantee of Rs. 5,000/- crores – No compliance – IAs moved for (i) lifting ban vide orders dated 21.11.2013 and of SEBI dated 13.02.2013 regarding operation of Bank Accounts/ deposits/ sale of securities, (ii) lifting restrictions in respect of movable and immovable properties on conditions to utilize the net proceeds for repayment and (iii) pass such orders as may be deemed fit – Proposals given for available provision of amount available in banks/ investments, bonds, FDs Securities and Bonds to the tune of Rs. 2,500/- crores – Proposal for sale of immovable properties in India to raise another amount of Rs. 2,500/- crores and Rs. 5,000/- crores from properties in UK and USA – Prayer for relaxation in jail conditions and grant of bail – If can be allowed. Held that relaxation of bail conditions cannot be allowed due to conduct of contemners. Even prayer to shift them from Tihar Jail to Guest House is not acceptable as such prayer made earlier was not accepted. Hence, that part of prayer for modification of bail conditions or shifting is declined. So far as proposal to arrange amount for deposit (Rs. 10,000/- crores), the restrain orders passed by Court and SEBI have the effect of preventing contemners from complying with directions of Court. Hence, permission given to sell 9 properties located in India but not less than circle rate of that city. Directions for sale of properties in London and New York to be made after receiving information sought and verified. Orders dated 21.11.2013 and SEBI orders dated 13.02.2013, modified.
Held:
We are not inclined to modify order dated 26th March, 2014 granting interim bail to the contemnors upon conditions stipulated in the said order. We say so because the background in which the contemnors came to be committed to the jail and the finding recorded by the Court that they have at all earlier stages tried to adopt dilatory tactics and avoided to comply with the orders passed by the Court does not in our view call for any modification of the terms on which the contemnors can be released. Requests to shift the contemnors from Tihar Jail to a guest house made repeatedly over several hearings in the past have been declined by this Court. (Para 17)
The prayer now made is a repetition of similar prayers made in the past which have not cut any ice with the bench hearing the matter. The Bench has passed a conditional bail order after due and proper consideration having regard to the attendant circumstances including conduct of the contemnors. The order can be modified only under very compelling circumstances. The only reason given by the applicants is that interim release or transfer of the contemnors to a guest house would enable them to dispose of the properties speedily and enable them to arrange for the requisite Bank Guarantees. We don’t think so. (Para 18)
The restraint order issued by the SEBI and by this Court forbidding transfer and alienation of moveable and immoveable assets by the Sahara Group of companies has the effect of preventing the contemnors from complying with the directions of this Court which require them to deposit Rs.5,000/- crores in cash besides a bank guarantee for a similar amount of Rs.5,000/- crores. Nothing should prevent them from taking steps to comply with the said directions or the conditions subject to which they have been granted interim bail. Restraint against transfer of the assets by the contemnors and the companies promoted by them precisely has the effect of doing so. (Para 20)
Saharas need to eventually deposit a substantial amount which according to the current estimate may be in the neighbourhood of Rs. 30,000 to Rs. 35,000 crores inclusive of interest accrued on the principal amount. Sale of valuable properties at a price lesser than the market value of such assets is bound to prejudicially affect the interest of the depositors and defeat the orders passed by this Court in its letter and spirit. In that background we had indicated to Dr. Dhawan learned counsel for the appellants that the restraint orders cannot be lifted in toto and that Saharas should come forward with a proposal for sale of such properties as were sufficient to comply with the interim bail direction of this Court regarding deposit of Rs.5,000/- crores in cash and a bank guarantee of Rs.5.000/- in addition. (Para 20)
Keeping in view the total number of properties held by Sahara Group of companies, transfer of sale and/or mortgage of the nine items of properties situated in nine cities mentioned in the note and extracted above should, in our opinion, suffice to enable the contemnors to comply with the 26th March, 2014 directions of this Court. In order, however, to ensure that the sale value is fair and reasonable, we need to make it clear that no item of property shall be sold at a price lesser than the circle value of the properties fixed for the area where such property is located. (Para 21)
As regards properties situated in London and New York we have by an interlocutory Order passed on 29th May, 2014 directed the contemnors to furnish certain additional information necessary for permitting the sale of the said assets. The information demanded includes permission/approval from the Bank of China with whom the said properties are mortgaged and shares held by Saharas for repayment of the loans borrowed from the said bank hypothecated/pledged. (Para 22)
Ed.: For specific directions/ modifications, see para 23 of judgement, matter referred to Three Judges Bench.
JUDGEMENT:
T.S. Thakur, J.
1. Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) (hereinafter referred to as ‘Saharas’ for short) invited and claim to have collected deposits from general public including cobblers, labourers, artisans and peasants in the form of what were described as ‘Optional Fully Convertible Debentures’ (OFCD). On a complaint received from Professional Group of Investors Protection, SEBI found that the mobilisation of funds under the Red Herring Prospectus (RHP) dated 13th March, 2008 and 6th October, 2009 issued by the two companies was not legally permissible. By an ad interim ex parte order dated 24th November, 2010 SEBI directed Saharas not to offer their equity shares/OFCDS or any other securities to the public or invite subscription in any manner whatsoever either directly or indirectly pending further orders. Aggrieved by the said order Saharas approached the High Court at Bombay but the High Court not only declined to interfere with the directions issued by SEBI but also passed a further order on 23rd June, 2011, directing the promoter Mr. Subrata Roy Sahara and Directors Miss Vandana Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary of Saharas to jointly and severely refund the amount collected by Saharas in terms of the RHPs issued by them alongwith interest @ 15% p.a. from the date of the receipt of the deposits till the date of such repayment. Pursuant thereto the SEBI ordered that the refund of the amount shall be made only in cash through demand drafts or pay orders. The SEBI issued further directions including a direction that Sahara Commodity Services Corporation Limited (earlier known as SIRECL) and SHICL shall not access the security market for raising funds till the time the aforesaid payments are not made to the satisfaction of the SEBI.
2. Aggrieved by the order aforementioned, Saharas filed an appeal before the Securities Appellate Tribunal (SAT) who concurred with the view taken by the SEBI, and while affirming the order passed by the SEBI, directed Saharas to refund the amount collected from the investors within a period of six weeks.
3. Appeals No.9813 and 9833 of 2011 were then preferred by Saharas against the above orders in which this Court by an order dated 28th November, 2011 extended the period for making the refund upto 9th January, 2012 but finally disposed of the appeals by an order dated 31st August, 2012. This Court while doing so modified the order passed by the SEBI and the SAT and directed Saharas to deposit with the SEBI the amount collected by them through their RHPs together with interest @ 15% p.a. within a period of three months. The amount when deposited was directed to be invested in a nationalised bank to earn interest. Saharas were also directed to furnish details with supporting documents to establish whether they had refunded any amount to the investors who had subscribed through the RHPs in question. SEBI was then to examine the correctness of the details so furnished. Failure to prove the refund of the amount by Saharas had to give rise to an inference that Saharas had not refunded the amount to the real and genuine subscribers as directed by the SEBI.
4. It is common ground that directions issued by this Court by its order dated 31st August, 2012 were not complied with. Instead Appeal No.221 of 2012 was preferred by Saharas before the SAT which was dismissed by the Tribunal as premature. This dismissal was assailed by the Saharas in C.A. No. 8643 of 2012 that came to be disposed of by a three-Judge Bench of this Court by an order dated 5th December, 2012 with the following among other directions:
‘(I) The appellants shall immediately hand over the Demand Drafts, which they have produced in Court, to SEBI, for a total sum of 5120/-Crores and deposit the balance in terms of the order of 31st August, 2012, namely, 17,400/- Crores and the entire amount, including the amount mentioned above, together with interest at the rate of 15 per cent, per annum, with SEBI, in two installments. The first installment of 10,000/-Crores, shall be deposited with SEBI within the first week of January, 2013. The remaining balance, along with the interest, as calculated, shall be deposited within the first week of February, 2013. The time for filing documents in support of the refunds made to any person, as claimed by the appellants, is extended by a period of 15 days. On receipt of the said documents, SEBI shall implement the directions contained in the order passed on 31st August, 2012. In default of deposit of the said documents within the stipulated period, or in the event of default of deposit of either of the two installments, the directions contained in paragraph 10 of the aforesaid order dated 31st August, 2012, shall immediately come into effect and SEBI will be entitled to take all legal remedies, including attachment and sale of properties, freezing of bank accounts etc. for realisation of the balance dues.’
5. Pursuant to the above, Saharas deposited Rs.5120/- crores with the SEBI but failed to pay the remaining amount. The balance amount payable is in the vicinity of Rs.12280/- crores, exclusive of interest payable on the same. SEBI then filed Contempt Petitions No.412 and 413 of 2012 and, Contempt Petition No.260 of 2013 against the contemnors for non-compliance of the directions of this Court. Various orders have been passed in these contempt petitions from time to time, and those which are germane for our purpose, shall be adverted to hereinafter at the appropriate stage. The applications (IAs) which we are dealing with in this order, are filed in these contempt petitions and arise out of the earlier orders passed.
6. It is pertinent to point out at this stage that in the course of the proceedings in the above contempt petitions some proposals appear to have been explored by the parties for compliance with the directions of this Court but all such proposal were found to be unsatisfactory eventually leading to the issue of non-bailable warrants against Mr. Subrata Roy Sahara for his production before this Court. Three other Directors of Saharas were also ordered to remain present before this Court.
7. On 4th March, 2014 when the contemnors appeared before this Court one of them in custody, this Court recorded a finding that the directions issued by the Court by its order dated 31st August, 2012 and 5th December, 2012 and those issued on 25th February, 2013 in CA No.8643 of 2012 and IA No.67 of 2013 had not been complied with, despite sufficient opportunities to the contemnors to do so. It was also held that contemnors had adopted dilatory tactics to delay the proceedings before the SEBI, the High Court and even before this Court. It was further found that no acceptable proposal was presented to comply with the directions of this Court which left no option for this Court except to commit three out of the four contemnors to judicial custody. The contemnors are, ever since the said order, in judicial custody in Delhi’s Tihar Jail.
8. It is clear from the above narration that as per the orders passed, a huge amount of nearly Rs.33,000/- crores is yet to be deposited. It is also apparent that deadlines for depositing this amount are long over. No doubt various proposals have been given by Saharas for making payments but none has fructified. From the tenor of orders passed earlier, it can easily be gauged that these proposals did not inspire confidence. In this backdrop when the matter again came on 26th March, 2014, and the contemnors insisted on granting bail to them, this Court passed a conditional Order granting interim bail to the contemnors; the condition being that they deposit Rs.10,000/- crores. Out of this a sum of Rs.5,000/- crores had to be deposited in cash before this Court while the balance amount of Rs.5000/- crores had to be secured by a bank guarantee of a nationalised bank, furnished in favour of the SEBI. Upon compliance with those conditions the contemnors were directed to be released from the custody and the amount deposited by them to be transferred to the SEBI. Since we are directly concerned with this order, we may, as well, extract the same:
‘We have gone through the fresh proposal filed on 25.3.2014. Through the same is not in compliance with our Order dated 31.8.2012 or the Order passed by the three-Judge Bench of this Court on 5.12.2012 in Civil Appeal No.8643 of 2012 and on 25.2.2013 in I.A. No. 67 of 2013 in Civil Appeal No.9813 of 2011 with I.A. No.5 of 2013 in Civil Appeal No.9833 of 2011, we are inclined to grant interim bail to the contemnors who are detained by virtue of our order dated 4.3.2014, on the condition that they would pay the amount of Rs.10,000 crores’ out of which Rs.5,000 crores to be deposited before this Court and for the balance a Bank Guarantee of a nationalised bank be furnished in favour of S.E.B.I. and be deposited before this Court.
On compliance, the contemnors be released forthwith and the amount deposited be released to S.E.B.I.
We make it clear that this order is passed in order to facilitate the contemnors to further raise the balance amount so as to comply with the Court’s Orders mentioned above.’
9. Instead of complying with the above directions Mr. Subrata Roy Sahara filed Writ Petition (Crl.) No. 57 of 2014 challenging the validity of the order of this Court dated 4th March, 2014 on the ground that the same was void and non-est in the eyes of law. A declaration to the effect that continued incarceration of the petitioner Mr. Subrata Roy Sahara in custody was illegal and a writ of habeas corpus and directions for release of the petitioner from custody were also prayed for. The said writ petition was heard by a Bench comprising Hon’ble K.S. Radhakrishnan and J.S. Khehar, J.J. and came to be dismissed vide detailed judgment dated 6th May, 2014.
10. Having traversed in brief, the otherwise long journey of this case, we revert back to the IAs which are the subject matter of the instant order. In the present I.As. No.101-103 of 2014 filed in Contempt Petitions (C) No.412 and 413 of 2012 and Contempt Petitions (C) No. 260 of 2013, the contemnors have made the following prayers:
‘(a) Lift the restrictions imposed by this Hon’ble Court vide its order dated 21.11.2013 and SEBI’s order dated 13.2.2013, in respect of operation of the Bank Accounts/deposits/demat accounts/sale of securities mentioned at Annexure-A;
(b) Lift the restrictions imposed by this Hon’ble Court vide its order dated 21.11.2013 and SEBI’s order dated 13.02.2013 in respect of the movable and immovable properties mentioned in Annexure B, on condition that net proceeds (after costs and taxes) thereof be utilized exclusively for payment ordered by this Hon’ble Court.
(c) pass such further or other order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.’
11. Justice K.S. Radhakrishnan having demitted office and, Justice J.S. Khehar having recused himself from the further hearing of the case, the applications were listed before us for urgent hearing on 19th May, 2014 when the same were heard in part and directed to come up for continuation on 29th May, 2014.
12. Appearing for the contemnors, Dr. Rajiv Dhawan made a three-fold submission before us. Firstly, he contended that the order passed by this Court on 26th March, 2014 granting interim bail subject to the conditions stipulated in the said order deserved to be modified as the conditions stipulated therein were not only onerous but incapable of being complied with in the facts and circumstances of the case. Alternatively, he contended that compliance with the conditions stipulated by this Court would require sale of several items of immovable properties held by Sahara Group of companies which sales can be finalised only if the contemnors were enlarged from custody with a view to enable them to negotiate the sale transactions. He submitted that keeping in view the extent and nature of the properties which shall have to be sold as also the amounts that have been ordered to be deposited compliance with the conditions stipulated by this Court is extremely difficult, if not impossible, unless the contemnors are enlarged from jail and allowed to take steps necessary for compliance. It was further contended by Dr. Dhawan that the restraint orders against the sale of the moveable and immoveable properties held by the ‘Saharas’ made it impossible for them to arrange compliance unless the embargo placed upon such sale and transfer by this Court’s Order dated 21st November, 2013 and that passed by SEBI on 13th February, 2013 are lifted. He argued that even if the contemnors were not enlarged on bail till such time the directions issued by this Court on 26th March, 2014 were not complied with, the restraint orders would prevent the contemnors from raising necessary funds to comply with the directions issued by this Court. He urged that the total amount currently lying in several bank accounts and/or invested with banks and companies in the form of FDs, Bonds and securities etc. came to Rs.2500/- crores approximately. The broad details of the amounts so available have been given by Saharas in the note submitted by Dr. Dhawan as under:
Details of approx. Rs 2500 Crores along with interest accrued thereon to be paid by Saharas within 5 working days of lifting the embargo (Pg 39′ 54)
a) Fixed Deposits 1688.74 crores
b) Savings Account 464.44 crores
c) Current Account 18.45 crores
a) Securities & Bonds 142.86 crores
b) Government Bonds 72.33 crores
c) Bank/PSU Bond 34.85 crores
———————-
2421.67 crores
———————-
Total approx. Rs 2500 crores along with interest accrued thereon
13. Encashment of the FDs, sale and transfer of the bonds and securities would, argued Dr. Dhawan, help the contemnors to partly comply with the directions regarding deposit of Rs.5000/- crores by moping Rs.2500/- crores. A further sum of Rs.2500/- crores approximately would have to be raised for deposit which will be possible only by sale of the immovable properties situated in nine different cities details whereof were filed by Dr. Dhawan in the form of a statement with the estimated value of such properties which is as under:
Sr. No. Properties Valuation as per Page Nos. Of
the Valuation Volume I
Report (Rs. In
crores)
1. Pune 575 60 ‘ 76 @ 73
2. Ahmedabad 470 81 -98 @ 94
3. Amritsar 153.75 99′ 127 @ 111
4. Chauma 1430 128 -148 @ 140
5. Vasai 1169.72 143′ 160 @ 149
6. Ajmer 160 161 -175 @ 167
7. Bhavnagar 103 176′ 191 @ 188
8. Jodhpur 112 192 -208 @ 204
9. Bhopal 125 209′ 224@ 222
TOTAL 4298.47
14. It was submitted that sale of the above items of property may also not fully satisfy the conditions stipulated by this Court for grant of interim bail thereby leave no option for Saharas except to sell three other items of hotel properties situated outside the country. One of these hotels by the name Grosvenor House is situated in London while the remaining two hotels are in New York (U.S.A.). It was urged that the said three items of property also need to be sold to raise the margin money which the banks concerned insist upon to enable them to issue a bank guarantee. It was submitted that while the contemnors propose to mortgage Aamby Valley properties, details whereof are given in the Annexure B to I.As. No.101-103, the contemnors would require funds to service any financial arrangement made with the bank/banks. It was also contended that according to the estimate of the contemnors, the properties situated in London and New York would fetch an amount of Rs.5,000/- crores to the contemnors which may be utilised in full or in part towards the margin money necessary for obtaining the bank guarantee(s). The estimated value of these three properties is indicated by the contemnors as under:
Shares of Value as per Expected Sales Immediate Page No.
entities the Valuation Value Advances
owning the report expected
following
offshore
properties
Grosvenor GBP 516,000,000 GBP 645,000,000 USD 50,000,000 667-Vol III
House, Rs Rs 63,661,500,000 Rs 2,900,000,000
London 50,929,200,000
Plaza Hotel, USD USD 635,000,000 USD 50,000,000 415-Vol III
New York 592,000,000 Rs 36,830,000,000 Rs 2,900,000,000
Rs
34,336,000,000
Dreams USD USD 252,000,000 USD 50,000,000 231-Vol III
Downtown 252,000,000 Rs 14,616,000,000 Rs 2,900,000,000
Hotel, New Rs
York 14,616,000,000
Total Rs USD
115,107,500,000 150,000,000
Rs
8,700,000,000
Net Rs 50,366,156,000
Realistic
Equity
Value to
Sahara in
India
15. On behalf of the respondent-SEBI it was argued by Mr. Venugopal that he has no objection to the encashment of the FD receipts and other securities and bonds etc. provided the maturity value and sale consideration of such FDRs, securities and bonds is directed to be deposited in the designated bank account of SEBI viz. SEBI Sahara Refund Account bearing No.012210110003740 with the Bank of India, Bandra Kurla Complex Branch, Mumbai. As regards sale or mortgage of properties situated in nine different cities mentioned above, Mr. Venugopal submitted that appropriate safeguards need be provided for such sale and transfer. Mr. Venugopal suggested the following safeguards in this regard:
(i) Details of valuation, buyer(s) and terms of sales together with letter (s) of intent be submitted in advance to this Hon’ble Court;
(ii) Buyer(s) ought not to be related party/parties qua the Sahara Group entities/Director etc. and an affidavit of undertaking to that effect be filed in this Hon’ble Court.
(iii) The sale proceeds be deposited by the buyer directly to the designated Bank Account of SEBI viz. ‘SEBI-Sahara Refund Account’ bearing No.012210110003740 with Bank of India, Bandra-Kurla Complex Branch, Mumbai; and
(iv) Actual release of title deeds by SEBI to the buyer be made only upon receipt of sale proceeds in the aforementioned Bank Account.
16. A direction to the effect that the sale of the properties shall not be for a price lesser than the circle rates prescribed for the area where the properties are situated was also suggested as an additional safeguard, by the learned counsel. It was also submitted by Mr. Venugopal that so long as the valuation of the assets situated outside the country is fair and reasonable, the SEBI had no objection to the sale thereof to enable the contemnors to raise funds necessary for compliance with the directions of this Court.
17. We have given our careful consideration to the submissions made at the bar. It is apparent, from the submissions made at the bar, that these IAs have two limbs: In the first instance, the contemnors want relaxation in the restraint orders over the Bank deposits and immovable properties to comply with the directions of this Court regarding deposit of the amounts. That part of the prayer does not pose any difficulty, as the same is in aid of compliance with the directions of this Court. Second set of prayers is for grant of bail or relaxation of jail conditions in the interregnum. Here, we have our reservations. We are not inclined to modify order dated 26th March, 2014 granting interim bail to the contemnors upon conditions stipulated in the said order. We say so because the background in which the contemnors came to be committed to the jail and the finding recorded by the Court that they have at all earlier stages tried to adopt dilatory tactics and avoided to comply with the orders passed by the Court does not in our view call for any modification of the terms on which the contemnors can be released. Dr. Dhawan pleaded, in the alternative, that the least which could be done was to shift the contemnors from Tihar Jail to a guest house for incarceration to enable them to take decisions that are necessary for compliance with the directions issued by this Court. This request was opposed by Mr. Venugopal, according to whom similar requests made repeatedly over several hearings in the past have been declined by this Court, although no specific order refusing the same was recorded. In support of that submission, our attention was drawn to the averments made by the applicant in I.As No.2 to 4 filed by them on 20th May, 2014 which averments clearly show that similar prayers were indeed made in the past also.
18. Apart from the fact that the prayer now made is a repetition of similar prayers made in the past which have not cut any ice with the bench hearing the matter, we see no reason to make a departure from the usual course in the present case. The Bench has passed a conditional bail order after due and proper consideration having regard to the attendant circumstances including conduct of the contemnors. The order can be modified only under very compelling circumstances. The only reason given by the applicants is that interim release or transfer of the contemnors to a guest house would enable them to dispose of the properties speedily and enable them to arrange for the requisite Bank Guarantees. We don’t think so. It is noteworthy that the total amount to be deposited is between Rs. 33000/- to Rs. 35000/- crores. To show their bonafides, the contemnors have been directed to deposit less than 1/3rd of that amount as a condition for bail. After all, even when this part of the order is complied with and the contemnors are set free, they will have to arrange the deposit of the balance amount, which again is very substantial. That apart, it is not the case of the contemnors that they or anyone of them suffers from any medical condition that calls for hospitalisation or an atmosphere conducive for recovery from any disease. This Court has already issued directions permitting visitation to those who need to visit the contemnors in jail. That arrangement has not been found to be inadequate as at present so to call for any change.
19. The prayer for modification of the order, accordingly, fails.
20. We, however, find considerable merit in the submission made by Dr. Dhawan that the restraint order issued by the SEBI and by this Court forbidding transfer and alienation of moveable and immoveable assets by the Sahara Group of companies has the effect of preventing the contemnors from complying with the directions of this Court which require them to deposit Rs.5,000/- crores in cash besides a bank guarantee for a similar amount of Rs.5,000/- crores. While it is true that the contemnors stand committed to prison for their non-compliance with the directions of this Court, nothing should prevent them from taking steps to comply with the said directions or the conditions subject to which they have been granted interim bail. Restraint against transfer of the assets by the contemnors and the companies promoted by them precisely has the effect of doing so. The question, however, is as to what extent should the orders of restraint be modified. That aspect assumes importance because of the fact that Saharas need to eventually deposit a substantial amount which according to the current estimate may be in the neighbourhood of Rs. 30,000 to Rs. 35,000 crores inclusive of interest accrued on the principal amount. Sale of valuable properties at a price lesser than the market value of such assets is bound to prejudicially affect the interest of the depositors and defeat the orders passed by this Court in its letter and spirit. That is particularly so because according to Mr. Venugopal, SEBI is unable to value the properties or process the sale and transfer thereof. It was in that background that we had indicated to Dr. Dhawan learned counsel for the appellants that the restraint orders cannot be lifted in toto and that Saharas should come forward with a proposal for sale of such properties as were sufficient to comply with the interim bail direction of this Court regarding deposit of Rs.5,000/- crores in cash and a bank guarantee of Rs.5.000/- in addition. Dr. Dhawan has pursuant to that observation confined his prayer for permission to sell/transfer only nine items of properties situated in nine different cities in the country and disclosed the estimated value of such property in the statement which we have extracted above. Dr. Dhawan on instructions made a statement that although the note filed by him mentions the names of nine different cities without giving details of the properties situated in those cities but the fact remains that the properties referred to in the note are only nine in number and no more.
21. Keeping in view the total number of properties held by Sahara Group of companies, transfer of sale and/or mortgage of the nine items of properties situated in nine cities mentioned in the note and extracted above should, in our opinion, suffice to enable the contemnors to comply with the 26th March, 2014 directions of this Court. In order, however, to ensure that the sale value is fair and reasonable, we need to make it clear that no item of property shall be sold at a price lesser than the circle value of the properties fixed for the area where such property is located.
22. As regards properties situated in London and New York we have by an interlocutory Order passed on 29th May, 2014 directed the contemnors to furnish certain additional information necessary for permitting the sale of the said assets. The information demanded includes permission/approval from the Bank of China with whom the said properties are mortgaged and shares held by Saharas for repayment of the loans borrowed from the said bank hypothecated/pledged. We have also directed Saharas to get the amount outstanding towards the loan transactions qua the said properties confirmed from the Bank of China so as to give us a clear picture of the extent of liability that remains to be discharged against the said assets. The fact that the valuation reports regarding the three assets were prepared at the instance of the Bank of China shall also have to be verified and confirmed by the Bank of China, especially because no sale of the assets in question can be permitted at a price lesser than the price at which the said assets have been valued by the valuers who are said to be valuers of repute. Directions regarding sale of the assets outside the country can, therefore, await the furnishing of information and verification of the facts.
23. In the result we dispose of these I.As with the following directions:
(i) The prayer for modification of the terms stipulated in our order dated 26th March, 2014 granting interim bail to the contemnors is declined and the I.As to that extent dismissed.
(ii) Prayer for shifting the contemnors to a guest house for continued custody and detention till they comply with the directions of this Court for their release on interim bail is also declined and the I.As dismissed to that extent.
(iii) Orders dated 21st November, 2013 passed by this Court and that dated 13th February, 2013 passed by SEBI restraining sale and transfer of moveable and immoveable properties held by Saharas are modified to the following extent:
(a) FDs, bonds and securities held by Sahara Group of companies may be encashed by the holders thereof subject to the condition that the maturity value/sale consideration of such FDs, bonds and securities shall be deposited in the designated bank account of SEBI referred to in the earlier part of this order and details of such maturity values and sale consideration furnished to this Court on affidavit to be filed within four weeks from the date the FDs, bonds and securities are encashed, sold and/or transferred.
(b) Immovable properties owned by Sahara Group of companies situated in 9 different cities mentioned in the note filed by Dr. Dhawan and extracted in the body of this order with an estimated value of Rs.2500/- crores are permitted to be sold by the companies/other entities persons in whose names such properties are held subject to the condition that such sales are not for a price lower than the estimated value indicated in the statement filed before this Court or the circle rates fixed for the area in which such properties are situated. The seller shall furnish to this Court the details of the valuation of the properties sold and the terms of sales together with a declaration that the purchasers is not a related party qua Saharas. Needless to say that upon deposit of the sale consideration the title deeds of the property shall be released by SEBI in favour of the purchaser(s).
(c) The sale consideration of the properties less transaction cost and statutory dues on the same shall be deposited with the SEBI to the extent the same is necessary to make a total deposit of Rs.5,000/- crores inclusive of the maturity value and sale proceeds of the FDs, bonds and securities etc. permitted to be encashed and sold in terms of direction (iii) (a) above. The balance/excess amount of the sale consideration shall be deposited by Saharas in a separate account to be opened in a nationalised bank which deposit shall remain subject to further orders of this Court.
(d) Saharas are also permitted to charge its immovable properties situated in Aamby Valley (Pune), the details whereof are given in Annexure B to IAs No.101-103, for purposes of furnishing a bank guarantee for an amount of Rs.5,000/- crores and/or for deposit of Rs.5,000/- crores if there is any shortfall despite encashment and sales permitted in terms of (iii)(a) and (iii)(b) above.
(e) In modification of the orders dated 26th March, 2014, we direct that the Bank guarantees to the tune of Rs.5000/- crores shall be furnished from a nationalised bank or a scheduled bank only. Co-operative Bank Guarantees shall not suffice.
(iv) In so far as sale of the three properties situated outside the country are concerned, the question is left open to be determined after the requisite documents/information is made available by Sahara in terms of our order dated 29th May, 2014.
(v) Keeping in view the importance of the issues that fall for determination in these proceedings and the ramifications that the directions issued by this Court may have as also the fact that one very important order which is sought to be enforced in these proceedings was passed by a three-Judge Bench, we refer these proceedings to a three-Judge Bench to be constituted by the Hon’ble Chief Justice of India.
(vi) We are further of the view that having regard to the nature of these proceedings and the stakes that are involved, we need to appoint an amicus curiae. We accordingly, request Mr. F.S. Nariman, Senior Advocate to assist the Court as an amicus curiae. Shri Nariman shall be free to associate two juniors of his choice to brief him in the matter.
(vii) We direct that the Amicus curiae shall be paid his fee @ Rs.1,10,000/- per hearing while the juniors assisting him shall be paid Rs.10,000/- per person for every hearing. The amount so due shall be paid by SEBI by debit to account Saharas.
*************
1. Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) (hereinafter referred to as ‘Saharas’ for short) invited and claim to have collected deposits from general public including cobblers, labourers, artisans and peasants in the form of what were described as ‘Optional Fully Convertible Debentures’ (OFCD). On a complaint received from Professional Group of Investors Protection, SEBI found that the mobilisation of funds under the Red Herring Prospectus (RHP) dated 13th March, 2008 and 6th October, 2009 issued by the two companies was not legally permissible. By an ad interim ex parte order dated 24th November, 2010 SEBI directed Saharas not to offer their equity shares/OFCDS or any other securities to the public or invite subscription in any manner whatsoever either directly or indirectly pending further orders. Aggrieved by the said order Saharas approached the High Court at Bombay but the High Court not only declined to interfere with the directions issued by SEBI but also passed a further order on 23rd June, 2011, directing the promoter Mr. Subrata Roy Sahara and Directors Miss Vandana Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary of Saharas to jointly and severely refund the amount collected by Saharas in terms of the RHPs issued by them alongwith interest @ 15% p.a. from the date of the receipt of the deposits till the date of such repayment. Pursuant thereto the SEBI ordered that the refund of the amount shall be made only in cash through demand drafts or pay orders. The SEBI issued further directions including a direction that Sahara Commodity Services Corporation Limited (earlier known as SIRECL) and SHICL shall not access the security market for raising funds till the time the aforesaid payments are not made to the satisfaction of the SEBI.
2. Aggrieved by the order aforementioned, Saharas filed an appeal before the Securities Appellate Tribunal (SAT) who concurred with the view taken by the SEBI, and while affirming the order passed by the SEBI, directed Saharas to refund the amount collected from the investors within a period of six weeks.
3. Appeals No.9813 and 9833 of 2011 were then preferred by Saharas against the above orders in which this Court by an order dated 28th November, 2011 extended the period for making the refund upto 9th January, 2012 but finally disposed of the appeals by an order dated 31st August, 2012. This Court while doing so modified the order passed by the SEBI and the SAT and directed Saharas to deposit with the SEBI the amount collected by them through their RHPs together with interest @ 15% p.a. within a period of three months. The amount when deposited was directed to be invested in a nationalised bank to earn interest. Saharas were also directed to furnish details with supporting documents to establish whether they had refunded any amount to the investors who had subscribed through the RHPs in question. SEBI was then to examine the correctness of the details so furnished. Failure to prove the refund of the amount by Saharas had to give rise to an inference that Saharas had not refunded the amount to the real and genuine subscribers as directed by the SEBI.
4. It is common ground that directions issued by this Court by its order dated 31st August, 2012 were not complied with. Instead Appeal No.221 of 2012 was preferred by Saharas before the SAT which was dismissed by the Tribunal as premature. This dismissal was assailed by the Saharas in C.A. No. 8643 of 2012 that came to be disposed of by a three-Judge Bench of this Court by an order dated 5th December, 2012 with the following among other directions:
‘(I) The appellants shall immediately hand over the Demand Drafts, which they have produced in Court, to SEBI, for a total sum of 5120/-Crores and deposit the balance in terms of the order of 31st August, 2012, namely, 17,400/- Crores and the entire amount, including the amount mentioned above, together with interest at the rate of 15 per cent, per annum, with SEBI, in two installments. The first installment of 10,000/-Crores, shall be deposited with SEBI within the first week of January, 2013. The remaining balance, along with the interest, as calculated, shall be deposited within the first week of February, 2013. The time for filing documents in support of the refunds made to any person, as claimed by the appellants, is extended by a period of 15 days. On receipt of the said documents, SEBI shall implement the directions contained in the order passed on 31st August, 2012. In default of deposit of the said documents within the stipulated period, or in the event of default of deposit of either of the two installments, the directions contained in paragraph 10 of the aforesaid order dated 31st August, 2012, shall immediately come into effect and SEBI will be entitled to take all legal remedies, including attachment and sale of properties, freezing of bank accounts etc. for realisation of the balance dues.’
5. Pursuant to the above, Saharas deposited Rs.5120/- crores with the SEBI but failed to pay the remaining amount. The balance amount payable is in the vicinity of Rs.12280/- crores, exclusive of interest payable on the same. SEBI then filed Contempt Petitions No.412 and 413 of 2012 and, Contempt Petition No.260 of 2013 against the contemnors for non-compliance of the directions of this Court. Various orders have been passed in these contempt petitions from time to time, and those which are germane for our purpose, shall be adverted to hereinafter at the appropriate stage. The applications (IAs) which we are dealing with in this order, are filed in these contempt petitions and arise out of the earlier orders passed.
6. It is pertinent to point out at this stage that in the course of the proceedings in the above contempt petitions some proposals appear to have been explored by the parties for compliance with the directions of this Court but all such proposal were found to be unsatisfactory eventually leading to the issue of non-bailable warrants against Mr. Subrata Roy Sahara for his production before this Court. Three other Directors of Saharas were also ordered to remain present before this Court.
7. On 4th March, 2014 when the contemnors appeared before this Court one of them in custody, this Court recorded a finding that the directions issued by the Court by its order dated 31st August, 2012 and 5th December, 2012 and those issued on 25th February, 2013 in CA No.8643 of 2012 and IA No.67 of 2013 had not been complied with, despite sufficient opportunities to the contemnors to do so. It was also held that contemnors had adopted dilatory tactics to delay the proceedings before the SEBI, the High Court and even before this Court. It was further found that no acceptable proposal was presented to comply with the directions of this Court which left no option for this Court except to commit three out of the four contemnors to judicial custody. The contemnors are, ever since the said order, in judicial custody in Delhi’s Tihar Jail.
8. It is clear from the above narration that as per the orders passed, a huge amount of nearly Rs.33,000/- crores is yet to be deposited. It is also apparent that deadlines for depositing this amount are long over. No doubt various proposals have been given by Saharas for making payments but none has fructified. From the tenor of orders passed earlier, it can easily be gauged that these proposals did not inspire confidence. In this backdrop when the matter again came on 26th March, 2014, and the contemnors insisted on granting bail to them, this Court passed a conditional Order granting interim bail to the contemnors; the condition being that they deposit Rs.10,000/- crores. Out of this a sum of Rs.5,000/- crores had to be deposited in cash before this Court while the balance amount of Rs.5000/- crores had to be secured by a bank guarantee of a nationalised bank, furnished in favour of the SEBI. Upon compliance with those conditions the contemnors were directed to be released from the custody and the amount deposited by them to be transferred to the SEBI. Since we are directly concerned with this order, we may, as well, extract the same:
‘We have gone through the fresh proposal filed on 25.3.2014. Through the same is not in compliance with our Order dated 31.8.2012 or the Order passed by the three-Judge Bench of this Court on 5.12.2012 in Civil Appeal No.8643 of 2012 and on 25.2.2013 in I.A. No. 67 of 2013 in Civil Appeal No.9813 of 2011 with I.A. No.5 of 2013 in Civil Appeal No.9833 of 2011, we are inclined to grant interim bail to the contemnors who are detained by virtue of our order dated 4.3.2014, on the condition that they would pay the amount of Rs.10,000 crores’ out of which Rs.5,000 crores to be deposited before this Court and for the balance a Bank Guarantee of a nationalised bank be furnished in favour of S.E.B.I. and be deposited before this Court.
On compliance, the contemnors be released forthwith and the amount deposited be released to S.E.B.I.
We make it clear that this order is passed in order to facilitate the contemnors to further raise the balance amount so as to comply with the Court’s Orders mentioned above.’
9. Instead of complying with the above directions Mr. Subrata Roy Sahara filed Writ Petition (Crl.) No. 57 of 2014 challenging the validity of the order of this Court dated 4th March, 2014 on the ground that the same was void and non-est in the eyes of law. A declaration to the effect that continued incarceration of the petitioner Mr. Subrata Roy Sahara in custody was illegal and a writ of habeas corpus and directions for release of the petitioner from custody were also prayed for. The said writ petition was heard by a Bench comprising Hon’ble K.S. Radhakrishnan and J.S. Khehar, J.J. and came to be dismissed vide detailed judgment dated 6th May, 2014.
10. Having traversed in brief, the otherwise long journey of this case, we revert back to the IAs which are the subject matter of the instant order. In the present I.As. No.101-103 of 2014 filed in Contempt Petitions (C) No.412 and 413 of 2012 and Contempt Petitions (C) No. 260 of 2013, the contemnors have made the following prayers:
‘(a) Lift the restrictions imposed by this Hon’ble Court vide its order dated 21.11.2013 and SEBI’s order dated 13.2.2013, in respect of operation of the Bank Accounts/deposits/demat accounts/sale of securities mentioned at Annexure-A;
(b) Lift the restrictions imposed by this Hon’ble Court vide its order dated 21.11.2013 and SEBI’s order dated 13.02.2013 in respect of the movable and immovable properties mentioned in Annexure B, on condition that net proceeds (after costs and taxes) thereof be utilized exclusively for payment ordered by this Hon’ble Court.
(c) pass such further or other order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.’
11. Justice K.S. Radhakrishnan having demitted office and, Justice J.S. Khehar having recused himself from the further hearing of the case, the applications were listed before us for urgent hearing on 19th May, 2014 when the same were heard in part and directed to come up for continuation on 29th May, 2014.
12. Appearing for the contemnors, Dr. Rajiv Dhawan made a three-fold submission before us. Firstly, he contended that the order passed by this Court on 26th March, 2014 granting interim bail subject to the conditions stipulated in the said order deserved to be modified as the conditions stipulated therein were not only onerous but incapable of being complied with in the facts and circumstances of the case. Alternatively, he contended that compliance with the conditions stipulated by this Court would require sale of several items of immovable properties held by Sahara Group of companies which sales can be finalised only if the contemnors were enlarged from custody with a view to enable them to negotiate the sale transactions. He submitted that keeping in view the extent and nature of the properties which shall have to be sold as also the amounts that have been ordered to be deposited compliance with the conditions stipulated by this Court is extremely difficult, if not impossible, unless the contemnors are enlarged from jail and allowed to take steps necessary for compliance. It was further contended by Dr. Dhawan that the restraint orders against the sale of the moveable and immoveable properties held by the ‘Saharas’ made it impossible for them to arrange compliance unless the embargo placed upon such sale and transfer by this Court’s Order dated 21st November, 2013 and that passed by SEBI on 13th February, 2013 are lifted. He argued that even if the contemnors were not enlarged on bail till such time the directions issued by this Court on 26th March, 2014 were not complied with, the restraint orders would prevent the contemnors from raising necessary funds to comply with the directions issued by this Court. He urged that the total amount currently lying in several bank accounts and/or invested with banks and companies in the form of FDs, Bonds and securities etc. came to Rs.2500/- crores approximately. The broad details of the amounts so available have been given by Saharas in the note submitted by Dr. Dhawan as under:
Details of approx. Rs 2500 Crores along with interest accrued thereon to be paid by Saharas within 5 working days of lifting the embargo (Pg 39′ 54)
a) Fixed Deposits 1688.74 crores
b) Savings Account 464.44 crores
c) Current Account 18.45 crores
a) Securities & Bonds 142.86 crores
b) Government Bonds 72.33 crores
c) Bank/PSU Bond 34.85 crores
———————-
2421.67 crores
———————-
Total approx. Rs 2500 crores along with interest accrued thereon
13. Encashment of the FDs, sale and transfer of the bonds and securities would, argued Dr. Dhawan, help the contemnors to partly comply with the directions regarding deposit of Rs.5000/- crores by moping Rs.2500/- crores. A further sum of Rs.2500/- crores approximately would have to be raised for deposit which will be possible only by sale of the immovable properties situated in nine different cities details whereof were filed by Dr. Dhawan in the form of a statement with the estimated value of such properties which is as under:
Sr. No. Properties Valuation as per Page Nos. Of
the Valuation Volume I
Report (Rs. In
crores)
1. Pune 575 60 ‘ 76 @ 73
2. Ahmedabad 470 81 -98 @ 94
3. Amritsar 153.75 99′ 127 @ 111
4. Chauma 1430 128 -148 @ 140
5. Vasai 1169.72 143′ 160 @ 149
6. Ajmer 160 161 -175 @ 167
7. Bhavnagar 103 176′ 191 @ 188
8. Jodhpur 112 192 -208 @ 204
9. Bhopal 125 209′ 224@ 222
TOTAL 4298.47
14. It was submitted that sale of the above items of property may also not fully satisfy the conditions stipulated by this Court for grant of interim bail thereby leave no option for Saharas except to sell three other items of hotel properties situated outside the country. One of these hotels by the name Grosvenor House is situated in London while the remaining two hotels are in New York (U.S.A.). It was urged that the said three items of property also need to be sold to raise the margin money which the banks concerned insist upon to enable them to issue a bank guarantee. It was submitted that while the contemnors propose to mortgage Aamby Valley properties, details whereof are given in the Annexure B to I.As. No.101-103, the contemnors would require funds to service any financial arrangement made with the bank/banks. It was also contended that according to the estimate of the contemnors, the properties situated in London and New York would fetch an amount of Rs.5,000/- crores to the contemnors which may be utilised in full or in part towards the margin money necessary for obtaining the bank guarantee(s). The estimated value of these three properties is indicated by the contemnors as under:
Shares of Value as per Expected Sales Immediate Page No.
entities the Valuation Value Advances
owning the report expected
following
offshore
properties
Grosvenor GBP 516,000,000 GBP 645,000,000 USD 50,000,000 667-Vol III
House, Rs Rs 63,661,500,000 Rs 2,900,000,000
London 50,929,200,000
Plaza Hotel, USD USD 635,000,000 USD 50,000,000 415-Vol III
New York 592,000,000 Rs 36,830,000,000 Rs 2,900,000,000
Rs
34,336,000,000
Dreams USD USD 252,000,000 USD 50,000,000 231-Vol III
Downtown 252,000,000 Rs 14,616,000,000 Rs 2,900,000,000
Hotel, New Rs
York 14,616,000,000
Total Rs USD
115,107,500,000 150,000,000
Rs
8,700,000,000
Net Rs 50,366,156,000
Realistic
Equity
Value to
Sahara in
India
15. On behalf of the respondent-SEBI it was argued by Mr. Venugopal that he has no objection to the encashment of the FD receipts and other securities and bonds etc. provided the maturity value and sale consideration of such FDRs, securities and bonds is directed to be deposited in the designated bank account of SEBI viz. SEBI Sahara Refund Account bearing No.012210110003740 with the Bank of India, Bandra Kurla Complex Branch, Mumbai. As regards sale or mortgage of properties situated in nine different cities mentioned above, Mr. Venugopal submitted that appropriate safeguards need be provided for such sale and transfer. Mr. Venugopal suggested the following safeguards in this regard:
(i) Details of valuation, buyer(s) and terms of sales together with letter (s) of intent be submitted in advance to this Hon’ble Court;
(ii) Buyer(s) ought not to be related party/parties qua the Sahara Group entities/Director etc. and an affidavit of undertaking to that effect be filed in this Hon’ble Court.
(iii) The sale proceeds be deposited by the buyer directly to the designated Bank Account of SEBI viz. ‘SEBI-Sahara Refund Account’ bearing No.012210110003740 with Bank of India, Bandra-Kurla Complex Branch, Mumbai; and
(iv) Actual release of title deeds by SEBI to the buyer be made only upon receipt of sale proceeds in the aforementioned Bank Account.
16. A direction to the effect that the sale of the properties shall not be for a price lesser than the circle rates prescribed for the area where the properties are situated was also suggested as an additional safeguard, by the learned counsel. It was also submitted by Mr. Venugopal that so long as the valuation of the assets situated outside the country is fair and reasonable, the SEBI had no objection to the sale thereof to enable the contemnors to raise funds necessary for compliance with the directions of this Court.
17. We have given our careful consideration to the submissions made at the bar. It is apparent, from the submissions made at the bar, that these IAs have two limbs: In the first instance, the contemnors want relaxation in the restraint orders over the Bank deposits and immovable properties to comply with the directions of this Court regarding deposit of the amounts. That part of the prayer does not pose any difficulty, as the same is in aid of compliance with the directions of this Court. Second set of prayers is for grant of bail or relaxation of jail conditions in the interregnum. Here, we have our reservations. We are not inclined to modify order dated 26th March, 2014 granting interim bail to the contemnors upon conditions stipulated in the said order. We say so because the background in which the contemnors came to be committed to the jail and the finding recorded by the Court that they have at all earlier stages tried to adopt dilatory tactics and avoided to comply with the orders passed by the Court does not in our view call for any modification of the terms on which the contemnors can be released. Dr. Dhawan pleaded, in the alternative, that the least which could be done was to shift the contemnors from Tihar Jail to a guest house for incarceration to enable them to take decisions that are necessary for compliance with the directions issued by this Court. This request was opposed by Mr. Venugopal, according to whom similar requests made repeatedly over several hearings in the past have been declined by this Court, although no specific order refusing the same was recorded. In support of that submission, our attention was drawn to the averments made by the applicant in I.As No.2 to 4 filed by them on 20th May, 2014 which averments clearly show that similar prayers were indeed made in the past also.
18. Apart from the fact that the prayer now made is a repetition of similar prayers made in the past which have not cut any ice with the bench hearing the matter, we see no reason to make a departure from the usual course in the present case. The Bench has passed a conditional bail order after due and proper consideration having regard to the attendant circumstances including conduct of the contemnors. The order can be modified only under very compelling circumstances. The only reason given by the applicants is that interim release or transfer of the contemnors to a guest house would enable them to dispose of the properties speedily and enable them to arrange for the requisite Bank Guarantees. We don’t think so. It is noteworthy that the total amount to be deposited is between Rs. 33000/- to Rs. 35000/- crores. To show their bonafides, the contemnors have been directed to deposit less than 1/3rd of that amount as a condition for bail. After all, even when this part of the order is complied with and the contemnors are set free, they will have to arrange the deposit of the balance amount, which again is very substantial. That apart, it is not the case of the contemnors that they or anyone of them suffers from any medical condition that calls for hospitalisation or an atmosphere conducive for recovery from any disease. This Court has already issued directions permitting visitation to those who need to visit the contemnors in jail. That arrangement has not been found to be inadequate as at present so to call for any change.
19. The prayer for modification of the order, accordingly, fails.
20. We, however, find considerable merit in the submission made by Dr. Dhawan that the restraint order issued by the SEBI and by this Court forbidding transfer and alienation of moveable and immoveable assets by the Sahara Group of companies has the effect of preventing the contemnors from complying with the directions of this Court which require them to deposit Rs.5,000/- crores in cash besides a bank guarantee for a similar amount of Rs.5,000/- crores. While it is true that the contemnors stand committed to prison for their non-compliance with the directions of this Court, nothing should prevent them from taking steps to comply with the said directions or the conditions subject to which they have been granted interim bail. Restraint against transfer of the assets by the contemnors and the companies promoted by them precisely has the effect of doing so. The question, however, is as to what extent should the orders of restraint be modified. That aspect assumes importance because of the fact that Saharas need to eventually deposit a substantial amount which according to the current estimate may be in the neighbourhood of Rs. 30,000 to Rs. 35,000 crores inclusive of interest accrued on the principal amount. Sale of valuable properties at a price lesser than the market value of such assets is bound to prejudicially affect the interest of the depositors and defeat the orders passed by this Court in its letter and spirit. That is particularly so because according to Mr. Venugopal, SEBI is unable to value the properties or process the sale and transfer thereof. It was in that background that we had indicated to Dr. Dhawan learned counsel for the appellants that the restraint orders cannot be lifted in toto and that Saharas should come forward with a proposal for sale of such properties as were sufficient to comply with the interim bail direction of this Court regarding deposit of Rs.5,000/- crores in cash and a bank guarantee of Rs.5.000/- in addition. Dr. Dhawan has pursuant to that observation confined his prayer for permission to sell/transfer only nine items of properties situated in nine different cities in the country and disclosed the estimated value of such property in the statement which we have extracted above. Dr. Dhawan on instructions made a statement that although the note filed by him mentions the names of nine different cities without giving details of the properties situated in those cities but the fact remains that the properties referred to in the note are only nine in number and no more.
21. Keeping in view the total number of properties held by Sahara Group of companies, transfer of sale and/or mortgage of the nine items of properties situated in nine cities mentioned in the note and extracted above should, in our opinion, suffice to enable the contemnors to comply with the 26th March, 2014 directions of this Court. In order, however, to ensure that the sale value is fair and reasonable, we need to make it clear that no item of property shall be sold at a price lesser than the circle value of the properties fixed for the area where such property is located.
22. As regards properties situated in London and New York we have by an interlocutory Order passed on 29th May, 2014 directed the contemnors to furnish certain additional information necessary for permitting the sale of the said assets. The information demanded includes permission/approval from the Bank of China with whom the said properties are mortgaged and shares held by Saharas for repayment of the loans borrowed from the said bank hypothecated/pledged. We have also directed Saharas to get the amount outstanding towards the loan transactions qua the said properties confirmed from the Bank of China so as to give us a clear picture of the extent of liability that remains to be discharged against the said assets. The fact that the valuation reports regarding the three assets were prepared at the instance of the Bank of China shall also have to be verified and confirmed by the Bank of China, especially because no sale of the assets in question can be permitted at a price lesser than the price at which the said assets have been valued by the valuers who are said to be valuers of repute. Directions regarding sale of the assets outside the country can, therefore, await the furnishing of information and verification of the facts.
23. In the result we dispose of these I.As with the following directions:
(i) The prayer for modification of the terms stipulated in our order dated 26th March, 2014 granting interim bail to the contemnors is declined and the I.As to that extent dismissed.
(ii) Prayer for shifting the contemnors to a guest house for continued custody and detention till they comply with the directions of this Court for their release on interim bail is also declined and the I.As dismissed to that extent.
(iii) Orders dated 21st November, 2013 passed by this Court and that dated 13th February, 2013 passed by SEBI restraining sale and transfer of moveable and immoveable properties held by Saharas are modified to the following extent:
(a) FDs, bonds and securities held by Sahara Group of companies may be encashed by the holders thereof subject to the condition that the maturity value/sale consideration of such FDs, bonds and securities shall be deposited in the designated bank account of SEBI referred to in the earlier part of this order and details of such maturity values and sale consideration furnished to this Court on affidavit to be filed within four weeks from the date the FDs, bonds and securities are encashed, sold and/or transferred.
(b) Immovable properties owned by Sahara Group of companies situated in 9 different cities mentioned in the note filed by Dr. Dhawan and extracted in the body of this order with an estimated value of Rs.2500/- crores are permitted to be sold by the companies/other entities persons in whose names such properties are held subject to the condition that such sales are not for a price lower than the estimated value indicated in the statement filed before this Court or the circle rates fixed for the area in which such properties are situated. The seller shall furnish to this Court the details of the valuation of the properties sold and the terms of sales together with a declaration that the purchasers is not a related party qua Saharas. Needless to say that upon deposit of the sale consideration the title deeds of the property shall be released by SEBI in favour of the purchaser(s).
(c) The sale consideration of the properties less transaction cost and statutory dues on the same shall be deposited with the SEBI to the extent the same is necessary to make a total deposit of Rs.5,000/- crores inclusive of the maturity value and sale proceeds of the FDs, bonds and securities etc. permitted to be encashed and sold in terms of direction (iii) (a) above. The balance/excess amount of the sale consideration shall be deposited by Saharas in a separate account to be opened in a nationalised bank which deposit shall remain subject to further orders of this Court.
(d) Saharas are also permitted to charge its immovable properties situated in Aamby Valley (Pune), the details whereof are given in Annexure B to IAs No.101-103, for purposes of furnishing a bank guarantee for an amount of Rs.5,000/- crores and/or for deposit of Rs.5,000/- crores if there is any shortfall despite encashment and sales permitted in terms of (iii)(a) and (iii)(b) above.
(e) In modification of the orders dated 26th March, 2014, we direct that the Bank guarantees to the tune of Rs.5000/- crores shall be furnished from a nationalised bank or a scheduled bank only. Co-operative Bank Guarantees shall not suffice.
(iv) In so far as sale of the three properties situated outside the country are concerned, the question is left open to be determined after the requisite documents/information is made available by Sahara in terms of our order dated 29th May, 2014.
(v) Keeping in view the importance of the issues that fall for determination in these proceedings and the ramifications that the directions issued by this Court may have as also the fact that one very important order which is sought to be enforced in these proceedings was passed by a three-Judge Bench, we refer these proceedings to a three-Judge Bench to be constituted by the Hon’ble Chief Justice of India.
(vi) We are further of the view that having regard to the nature of these proceedings and the stakes that are involved, we need to appoint an amicus curiae. We accordingly, request Mr. F.S. Nariman, Senior Advocate to assist the Court as an amicus curiae. Shri Nariman shall be free to associate two juniors of his choice to brief him in the matter.
(vii) We direct that the Amicus curiae shall be paid his fee @ Rs.1,10,000/- per hearing while the juniors assisting him shall be paid Rs.10,000/- per person for every hearing. The amount so due shall be paid by SEBI by debit to account Saharas.
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