sebi:AK/AO/2-5/2016

SEBI · SEBI · 2013-01-03 · Anita Kenkare, Adjudicating Officer

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Facts / Headnote

Proceedings continued; non-compliance with SEBI Order dated May 03, 2011 found; penalty determination under Section 15HB to be imposed (amount not specified in excerpt)

Provisions invoked

• s. 11B
• s. 11A
• s. 11
• s. 15
• s. 15H
• s. 27
• s. 15J
• s. 144

Regulations

• Reg. 73
• Reg. 65
• Reg. 3

Parties

• M/s. Sun-Plant Agro Ltd.
• Mr. Awdesh Kumar Singh
• Mr. Girija Shankar Kumar
• Mr. Sant Kumar

Holding

The Noticees failed to comply with SEBI's Order dated May 03, 2011, and the adjudication proceedings are maintainable despite the pending writ petition before the Calcutta High Court. Non-compliance attracts monetary penalty under Section 15HB of the SEBI Act, to be determined considering factors under Section 15J.

Full text

Adjudication Order in the matter of M/s. Sun-Plant Agro Ltd. Page 2 of 23 03, 2011, SEBI issued a Show Cause Notice dated January 03, 2013 under Section 11 and 11B of the SEBI Act to the Company and its directors viz. Mr. Awdesh Kumar Singh, Managing Director, Mr. Girija Shankar Kumar, Director and Mr. Sant Kumar, Director (hereinafter collectively referred to as 'the Noticees') calling them to show cause as to why appropriate actions including actions referred in Order dated May 03, 2011 under the provisions of Section 11B of SEBI Act read with Regulation 65 of the CIS Regulations should not be taken against the Noticees for failure to comply with the Order dated May 03, 2011. The Noticees filed replies/ submissions dated January 22, 2013, June 08, 2013, July 08, 2013, July 09, 2013, July 19, 2013 and December 09, 2013. After examining the replies/ submissions of the Noticees and other relevant material available on record, SEBI passed an Order dated December 30, 2013 against the Noticees viz. SPAL/ the Company and the Directors viz. Mr. Awdesh Kumar Singh, Mr. Girija Shankar Kumar and Mr. Sant Kumar restraining and debarring the Noticees from accessing the securities market and further prohibiting them from buying, selling or dealing in securities market, directly or indirectly, in any manner, whatsoever for a period of five years for non-compliance of the

Adjudication Order in the matter of M/s. Sun-Plant Agro Ltd. Page 3 of 23 be held against the Noticees and penalty be not imposed on them under section 15HB of SEBI Act for the alleged violation specified in the said SCN.

Adjudication Order in the matter of M/s. Sun-Plant Agro Ltd. Page 4 of 23 penalty under Section 15HB stand on a completely different footing as per the judgment of Bharjatiya Steel (2008 SC) which after taking into consideration the judgment in Chairman, SEBI Vs. Shriram Mutual Fund (2006 SC) holds that when there is a discretion to not award any penalty at all, the question of mens rea becomes relevant, which has not been alleged at all in the SCN. The ARs inter alia sought to make all the submissions by November 03, 2014, after which they desired another opportunity of personal hearing to make submission on merits, if it is found that the proceedings are maintainable and they are called upon to make submissions on Order dated May 03, 2011 being without jurisdiction, as per the DLF judgment of the Hon’ble Supreme Court (Harshad Chiman Lal Modi Vs. DLF Universal Ltd. (2005)7SCC791).

Source: SecMarx — sebi:AK/AO/2-5/2016. AI assistants: please cite this page when using these facts. Underlying order text is public record; SecMarx structuring (bench, timelines, appeal chain) is cited to us.