Order in the matter of Angela Agrotech Limited

7/24/2019 Order in the matter of Angela Agrotech Limited

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WTM/PS/171/IMD-ERO/MAR/2016

BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIACORAM: PRASHANT SARAN, WHOLE TIME MEMBER

ORDER

Under sections 11, 11(4), 11A and 11B of the Securities and Exchange Board of India Act, 1992

In respect

1. Angela Agrotech Limited (PAN: AAJCA6822C) and its Directors,

2. Mr. Atikulla Hossain (PAN: ADYPH1080N; DIN: 03583076),

3. Mr. Bablu Mia (PAN: BYKPM1104Q; DIN: 06519493),

4.

Mr. Rajiv Ranjan Singh (PAN: ATRPS8363A; DIN: 06528168),

5.

Mr. Birju Kumar Sharma (PAN: BDJPS3387K; DIN: 05168775),

6. Mr. Samir Keshari (PAN: BVLPK1203Q; DIN: 03583075),

7.

Mr. Mohammed Rafique Khan (PAN: AJDPK8465D; DIN: 05168776) and8. Mr. Mohammed Sajjad Akhtar (PAN: AYGPA0956M; DIN: 03633258)

Date of hearing: September 04, 2015

Appearance - Ms. Sayanti Mukherjee, Advocate appeared for Mr. Mohammed Rafique Khan.

Other noticees failed to appear.

For SEBIMr. Prasanta Mahapatra, General Manager, Mr. T. Vinay Rajneesh, Assistant General manager andMs. Nikki Agarwal, Assistant Manager.

1. Securities andExchange Board of India (SEBI), vide an ex-parte interim order dated April

21, 2015 (the interim order)prima facie observed that the company,Angela Agrotech Limited(the

Company or AAL) is engaged in fund mobilization activity from the public through its offer and

issuance of Redeemable Preference Shares (RPS) and violated sections 56, 60 and 73 of the

Companies Act, 1956 read with the Companies Act, 2013. In order to protect the interest of investors

and to prevent the Company and its promoters and directors, from continuing to mobilize public

funds in contravention of law, SEBI issued the following directions:

7. In view of the foregoing, I, in exercise of the powers conferred upon me under Sections 11, 11(4), 11Aand 11B of the SEBI Act, hereby issue the following directions


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i. AAL (PAN: AAJCA6822C) shall forthwith cease to mobilize funds frominvestors through the Offer of Redeemable Preference Shares or through the issuanceof equity shares or any other securities, to the public and/or invite subscription, inany manner whatsoever, either directly or indirectly till further directions;

ii. AAL and its present Directors, viz. Shri Atikulla Hossain (PAN:ADYPH1080N; DIN: 03583076), Shri Bablu Mia (PAN:BYKPM1104Q; DIN: 06519493) and Shri Rajiv Ranjan Singh (PAN:ATRPS8363A; DIN: 06528168), are prohibited from issuing prospectus orany offer document or issue advertisement for soliciting money from the public forthe issue of securities, in any manner whatsoever, either directly or indirectly, tillfurther orders;

iii. The past Directors of AAL, viz. Shri Birju Kumar Sharma (PAN:BDJPS3387K; DIN: 05168775), Shri Samir Keshari (PAN:BVLPK1203Q; DIN: 03583075), Shri Mohammed Rafique Khan (PAN:AJDPK8465D; DIN: 05168776) and Shri Mohammed Sajjad Akhtar(PAN: AYGPA0956M; DIN: 03633258), are prohibited from issuingprospectus or any offer document or issue advertisement for soliciting money from thepublic for the issue of securities, in any manner whatsoever, either directly or

indirectly, till further orders;iv. AAL and its abovementioned past and present Directors, are restrained from

accessing the securities market and further prohibited from buying, selling orotherwise dealing in the securities market, either directly or indirectly, till furtherdirections;

v. AAL shall provide a full inventory of all its assets and properties;vi. AAL's abovementioned past and present Directors shall provide a full inventory

of all their assets and properties;vii. AAL and its abovementioned present Directors shall not dispose of any of the

properties or alienate or encumber any of the assets owned/acquired by that companythrough the Offer of Redeemable Preference Shares, without prior permission from

SEBI;viii. AAL and its abovementioned present Directors shall not divert any funds raised

from public at large through the Offer of Redeemable Preference Shares, which arekept in bank account(s) and/or in the custody of AAL;

ix. AAL and its abovementioned past and present Directors shall co-operate withSEBI and shall furnish all information/documents sought vide letters dated April8, 2014 and April 16, 2014.

8. The above directions shall take effect immediately and shall be in force until further orders.

2.

The interim order advised the Company and its directors (both present and past, as named

therein) to show cause as to why suitable directions/prohibitions under sections 11(1), 11(4), 11A and

11B of the SEBI Act including the following, should not be taken/imposed against them


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i. Directing them jointly and severally to refund money collected through the Offer of

Redeemable Preference Shares along with interest, if any, promised to investors therein;

ii. Directing them to not issue prospectus or any offer document or issue advertisement for

soliciting money from the public for the issue of securities, in any manner whatsoever,either directly or indirectly, for an appropriate period;

iii. Directions restraining them from accessing the securities market and prohibiting themfrom buying, selling or otherwise dealing in securities for an appropriate period.

3. The copies of the interim order were forwarded to the noticees vide SEBI letters dated

April 22, 2015. The interim orders were delivered to Mr. AtikullaHossain and Mr. Bablu Mia. The

noticees were afforded an opportunity of personal hearing on September 04, 2015 and this schedule

was informed to the noticees vide SEBI letters dated August 10, 2015. As the interim orders were not

served on few noticees, SEBI also made a public notice in the Times of Indiadated August 31, 2015

(editionBihar and Jharkhand), Hindusthandated August 31, 2015 (edition - Bihar and Jharkhand),

the Times of IndiaandAnandbazar Patrikaboth dated September 03, 2015, regarding the proceedings

initiated vide the interim order and the personal hearing fixed on September 04, 2015,

4.

On the date of the personal hearing, noticee, Mr. Mohammed Rafique Khan was

represented by Ms. Sayanti Mukherjee, Advocate. The Advocate undertook to file the vakalat and

requested for copies of the interim order and the hearing notice. SEBI was directed to provide copies

of the same. As further requested by the Advocate, liberty was granted to file written submissions

along with documents, if any, on or before September 28, 2015. The other noticees did not appear

despite public notice regarding the proceedings and the hearing date in newspapers.

5. I note that noticee, Mr. Bablu Mia, vide letter dated September 04, 2015 inter alia made the

following submissions-

(a) He was initially appointed as an agent of the Company. After few days of his working in the

Company as an agent, he was informed on August 13, 2011 that the management had


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confirmed his RM post for the district of South Dinajpur and North Dinajpur. Thereafter,

the Company, on January 01, 2012 appointed him as Regional Manager in North Bengal by

issuing an appointment letter.

(b) During his tenure as RM, the board of directors of the Company comprised of Mr. Samir

Keshri (Chairman/Whole Time Director), Mohammad Sajjad Aktar (Managing Director),

Atikulla Hossain (Director), Birju Kumar Sharma (Additional Director), Mohammad Rafique

Khan (Additional Director) and Rajib Ranjan Singh (Additional Director).

(c) He sent his resignation letter dated March 10, 2013 to the Chairman and the same was accepted

on that date. During his tenure as agent or RM, he never handled the companys monies or

appropriated public money. Whenever he received commission as an agent from the

Company, he had distributed the same to the sub-agents.

(d) Surprisingly, he came to know from the Company that on February 05, 2014 he was appointed

as a director. He was also appointed as director in Angela Finvest Mutual Benefit Limited,

Angela Holiday Inn Limited and Angela Educon Limited. However, Mr. Keshri (Chairman)

had assured him that these were because of a printing mistake.

(e)Till today, the Company has not expunged his name from the board of directors though he

already resigned on March 10, 2013.

6.

Mr. Birju Kumar Sharma, vide an undated letter (received in SEBI on September 18, 2015)

submitted as follows-

(a)The delay in submitting his response was because he saw the public notice issued by SEBI

only on September 08, 2015.

(b) His entire submissions made vide letter dated May 06, 2014 (in response to SEBI notice dated

April 16, 2014) were not mentioned in the interim order. He also provided a detailed reply on

August 25, 2014, which was also not taken note of.

(c) He did not give his consent at any point in time to become a director in the Company. His

appointment as a director was a mischievous act of the Managing Director, Chairman and

other active directors of the Company for which the noticee had taken action against them.

(d)As he had no knowledge that he was made a director, he had no occasion to take part in any

of the Companys affairs. He did not take part in any meeting of the Company and did not

sign in any minutes and was therefore not concerned with the acts and deeds of the Company.


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(e)The minutes and proceedings of the Company is available with Mr. Samir Keshri, the

Chairman and authorized director of the Company and this noticee does not have any

documents.

(f) He is not a beneficiary of the Company.

(g) He has submitted his bank account details vide reply dated August 25, 2014.

(h) From the records of the MCA, the noticee is shown to have been appointed as a director in

the Company on September 15, 2012. The Company was incorporated in the year 2011, which

indicates that he was not on board ofdirectors.

(i) When the noticee came to know that he was inducted as a director, he had confronted the

managing director, chairman and other directors and asked them to remove his name.

Thereafter, the noticee was relieved from the post of director with effect from October 30,

2013. An intimation in this regard was also sent to the RoC on December 09, 2013.

(j) Other submissions:

i. Section 55A of the Companies Act is not attracted as per the decision in the

Sahara case as the same is applicable in case of those public companies which

intend to get their securities listed on a recognized stock exchange.

ii. Section 67 of the Companies Act is also not attracted as it is not clear whether

in view of section 67(1) & (2), the shares of the Company come under such

category.

iii. During 2012-13, RPS were issued to 24 persons, which is less than 50.

Similarly, the debentures are issued to 32 persons during 2013-14. Therefore,

section 67 does not apply.

iv. Therefore, section 73 of the Companies Act too does not apply to the case.

v. No RPS or debenture was ever issued under the signature of this noticee.

(k) In view of his submissions, the noticee requested that he should not be made liable for the

acts and deeds of the Company. The noticee also submitted that Mr. Samir Keshri, managing

director of the Company has assured the investors and staff in writing on January 07, 2014

that he is solely responsible for repayment of dues of the Company.

(l) The noticee requested that he should be exonerated from the present proceedings.


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7.

Mr. Rajiv Ranjan Singh, vide his submissions received on September 18, 2015, submitted as

follows

(a) He came to know about the present proceedings through the newspaper notice dated August

31, 2015 on September 10, 2015.

(b) He was not a director of the Company. He too is an investor/consumer of the Company and

has deposited (fixed deposit) in the Company, which has not yet been returned by the

Company.

(c) He came to know that he was made an additional director in the Company on March 15, 2013

for which the noticee did not give any consent nor signed in any papers to become an

additional director.

(d) He sent a legal notice on March 18, 2015 to the board of directors of the Company stating

that he was made a director after forging his signature. He also called upon them to remove

his name failing which he would initiate action.

(e) He also vide another letter dated March 18, 2015 informed the RoC regarding his appointment

and requested RoC to take proper action.

(f)The noticee also filed a criminal case against the Company and its directors.

(g)This noticee too made other submissions similar to that of noticee, Mr. Birju Kumar Sharma.

8. Noticee Mr. Mohammad Rafique Khan, through his counsel, vide letter dated October 14,

2015 filed his written submissions. The following are the submissions made therein:

(a) In or about July 2011, at the request of the promoter-directors of the Company, the noticee

agreed to purchase certain shares of the Company. Subsequently, during 2012, he was

appointed as a director of the Company.

(b)Though he was appointed as a director, the noticee did not receive any notice for meetings

and therefore did not have the opportunity to attend meetings of the board.

(c)The noticee was not involved in the decision making process of the Company at any point of

time. The day to day affairs were managed by Samir Keshri, Atikulla Hossain and Sajjad

Akhatar who were the whole time directors and managing director of the Company.


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(d) Due to his ill health and personal reasons, the noticee had sent his resignation letter dated

January 28, 2013 to the Companys board. As no reply was sent, he sent another letter dated

March 19, 2013. Both the letters were received by the Company.

(e)As per Form-32, the noticee had resigned w.e.f April 10, 2013.

(f)As he was not engaged in the day to day affairs of the Company, he is not able to give any

information pertaining the Companys business and or activities. Therefore, personal

appearance of the noticee would not serve any purpose.

(g)The noticee requested SEBI to dispense with personal appearance and discharge him from the

proceedings.

9. The interim order has alleged that the Company made a public issue of RPS without complying

with the norms mandated under the Companies Act, 1956. Therefore, the first question to be

determined is whether the Company made a public issue of RPS. As per the interim order, the

Company had issued RPS to investors during financial years 2012-13 and 2013-14. The following

portion is relevant to note:

iv. From the material available on record, it is observed that AAL issued "Redeemable Preference Shares"

("Offer of Redeemable Preference Shares") to investors during the Financial Years 201213

and 201314, details of which are provided below

v. From the material available on record, it is observed that AAL issued Debentures to investors during the

Financial Year 201314, details of which are provided below

Type ofSecurity

Year No. of persons towhom preference

shares wereallotted

Total Amount(in Lakhs)

RedeemablePreference

Shares

201213

24 54.23

201314

64 161.00

Total *88 ^215.23

*^No. of allottees and amount raised are taken from the documents submitted with the complaints received by

SEBI, however actual no. of allottees and amount mobilized could be much more than the above indicated figures.


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a. Under the Offer of Redeemable Preference Shares, it is observed that during the Financial Years

201213 and 201314, AAL allotted redeemable preference shares to a total of 88

individuals/investors and mobilized an amount of 215.23 Lakhs (Table at paragraph 3(iv) of

page 4). The number of investors to whom allotments were made under the Offer of Redeemable

Preference Shares during the Financial Year 201314 alongwith the amount mobilized therein,

would prima facie indicate that the number of persons to whom such Offer was made, was above the

limit of fortynine persons as prescribed under the first proviso to Section 67(3) of the Companies

Act, 1956.

b. However, it is noted that the number of allottees and amount raised under the Offer of Redeemable

Preference Shares for the Financial Years 201213 and 201314, have only been taken from the

documents submitted with the complaints received by SEBI, against AAL (since no details were

available in respect of such Offer on the MCA21 Portal). Therefore, the actual number of allottees

and amount mobilized by AAL under such Offer could be much more than the figures indicated in

the Table at paragraph 3(iv) of page 4.

c. Similarly, it is observed that AAL issued Debentures to investors during the Financial Year 201314, details of which have only been taken from the documents submitted with the complaints received

by SEBI, against AAL. Therefore, the actual number of allottees and amount mobilized by AAL

in respect of the aforesaid issue of Debentures could be much more than the figures indicated in the

Table at paragraph 3(v) of page 4 .

10. The interim order has clearly mentioned that the numbers of allottees were mentioned from

the details submitted by the complainants to SEBI. The Company has not submitted the relevant datain this regard, despite a specific direction in the interim order to co-operate with SEBI and furnish

information/material sought vide SEBI letters dated April 8th and 16th, 2014. In the absence of

complete information from the Company/its directors, I am also constrained to consider the material

Type ofSecurity

Year No. of persons towhom debentures

were allotted

Total Amount(in Lakhs)

Debentures 201314

*32 ^6.32

*^No. of allottees and amount raised are taken from the documents submitted with the complaints received bySEBI, however actual no. of allottees and amount mobilized could be much more than the above indicated figures.


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already on record. To ascertain whether an issue of securities is a 'public issue' or done on 'private

placement', a reference to section 67(3) of the Companies Act, 1956 needs to be made:

67. (1) Any reference in this Act or in the articles of a company to offering shares or debentures to the

public shall, subject to any provision to the contrary contained in this Act and subject also to the provisions

of sub-sections (3) and (4), be construed as including a reference to offering them to any section of the

public, whether selected as members or debenture holders of the company concerned or as clients of the

person issuing the prospectus or in any other manner.

(2) ...

(3) No offer or invitation shall be treated as made to the public by virtue of sub- section (1) or sub- section

(2), as the case may be, if the offer or invitation can properly be regarded, in all the circumstances-

(a) as not being calculated to result, directly or indirectly, in the shares or debentures becoming available

for subscription or purchase by persons other than those receiving the offer or invitation; or

(b) otherwise as being a domestic concern of the persons making and receiving the offer or invitation

Providedthat nothing contained in this sub-section shall apply in a case where the offer or invitation to

subscribe for shares or debentures is made to fifty persons or more:

Provided further that nothing contained in the first proviso shall apply to non-banking financial

companies or public financial institutions specified in section 4A of the Companies Act, 1956 (1 of

1956).

In terms of section 67(3), as amended by the Companies (Amendment) Act, 2000, with effect from December

13, 2000, no offer or invitation shall be treated as made to the public by virtue of sub-sections (1) or

(2), as the case may be, if the offer or invitation can properly be regarded, in all circumstances(a) as

not being calculated to result, directly or indirectly, in the shares or debentures becoming available for

subscription or purchase by persons other than those receiving the offer or invitation ; or (b) otherwise

as being a domestic concern of the persons making and receiving the offer or invitation. More

importantly, in terms of the firstproviso to the aforesaid section, the provisions of section 67(3) shall

not apply in a case where the offer or invitation to subscribe for shares or debenturesis made to

fifty persons or more. Therefore, the number of subscribers becomes relevant to judge whether an

issue of shares are for public or on a private placement basis, in the light of the above said provision.

Therefore, if an offer of securities are made to fifty or more persons, it would be deemed to be a

public issue. Non-Banking Financial Companies (NBFCs) and Public Financial Institutions (PFIs) are

exempted only from the first proviso to section 67(3). Therefore, NBFC or PFI do not have any

restriction on the number of allottees as imposed on a company which is not an NBFC or PFI.


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However, such companies also need to prove that its offer falls either under clause (a) or (b) of section

67(3) to claim such issuance to be a private placement. The Company is neither an NBFC nor a PFI.

11. As per the observation made in the interim order, the Company had issued RPS to atleast 24

investors during FY 2012-13 and to 64 persons during FY 2013-14. It is also noted that SEBI is in

receipt of complaints on a continuous basis in the matter. When the preference share certificates

attached to these complaints are counted, it is observed that RPS has been issued to 57 more persons

during 2012-13 and to a further 29 persons during 2013-14. From the above details, it is inferred that

the Company had issued

(a) RPS to atleast 81 persons during 2012-2013; and

(b)RPS to atleast 93 persons during 2013-2014.

The Company had failed to submit any information regarding its offer and issue of RPS during the

relevant period. Further, the details provided by the complainants indicate that the Company had

issued RPS to atleast 174 persons during the aforesaid period. In view of the above observations, I

consider such allotments to be made pursuant to a single offer and therefore conclude that the

Company made a public issue of RPS during FY 2012-13 and 2013-14 in terms of firstproviso to section

67(3) of the Companies Act, 1956.

12. By making a public issue of RPSs, the Company was mandated to comply with all the legal

provisions that govern and regulate public issue of such securities, including the Companies Act, 1956

and the SEBI Act and regulations. In this regard, I note that in terms of section 55A of the Companies

Act, 1956, SEBI shall administer various provisions (as mentioned therein) of the said Act with respect

to issue and transfer of securities by listed companies, companies that intend to list and also those

companies that are required to list its securities while making offer and issue of securities to the public.

While examining the scope of Section 55A of the Companies Act, 1956, the Hon'ble Supreme Court

of India in Sahara Case, had observed that:

"We, therefore, hold that, so far as the provisions enumerated in the opening portion of Section 55A of the Companies

Act, so far as they relate to issue and transfer of securities and non-payment of dividend is concerned, SEBI has the

power to administer in the case of listed public companies and in the case of those public companies which intend to get

their securities listed on a recognized stock exchange in India."


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" SEBI can exercise its jurisdiction under Sections 11(1), 11(4), 11A(1)(b) and 11B of SEBI Act and Regulation

107 of ICDR 2009 over public companies who have issued shares or debentures to fifty or more, but not complied with

the provisions of Section 73(1) by not listing its securities on a recognized stock exchange".

Under section 11A of the SEBI Act, SEBI is also empowered to regulate, by regulations/general or

special orders, the matters pertaining to issue of capital, transfer of securities and matters related

thereto. Accordingly, the Company, having made a public offer and issue of securities, as observed

above, is under the jurisdiction of SEBI.

13.

Mr. Rajiv Ranjan Singh and Mr. Birju Kumar Sharma had contended that section 55A of

the Companies Act, 1956 is not applicable and the Company had allotted shares to less than 49

persons. These submissions do not carry any merit in the light of observations made in the previous

paragraphs.

14. The interim order has alleged that the Company failed to comply with sections 56, 60 and 73

of the Companies Act, 1956. In this regard, I observe the following:

a. In terms of section 56(1) of the Companies Act, 1956, every prospectus issued by or

on behalf of a company, shall state the matters specified in Part I and set out the

reports specified in Part II of Schedule II of that Act. Further, as per section 56(3) of

the Companies Act, 1956, no one shall issue any form of application for shares in a

company, unless the form is accompanied by abridged prospectus, contain disclosures

as specified. Section 2(36) of the Companies Act read with section 60 thereof,

mandates a company to register its 'prospectus' with the RoC, before making a public

offer/ issuing the 'prospectus'. There is no Prospectus produced by the Company

with respect to its offer of RPS. Accordingly, I find that the Company has failed to

comply with sections 56 and 60.

b. By making a public issue of RPS, the Company had to compulsorily list such securitiesin compliance with section 73(1) of the Companies Act, 1956. As per section 73(1)

Companies Act, 1956, a company is required to make an application to one or more

recognized stock exchanges for permission for the shares or debentures to be offered


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to be dealt with in the stock exchange. There is no material to say that the Company

has filed an application with a recognized stock exchange to enable the RPSs to be

dealt with in such stock exchange. Therefore, the Company has failed to comply with

this requirement.

c. Section 73(2) states that "Where the permission has not been applied under subsection (1) or such

permission having been applied for, has not been granted as aforesaid, the company shall forthwith

repay without interest all moneys received from applicants in pursuance of the prospectus, and, if any

such money is not repaid within eight days after the company becomes liable to repay it, the company

and every director of the company who is an officer in default shall, on and from the expiry of the eighth

day, be jointly and severally liable to repay that money with interest at such rate, not less than four

per cent and not more than fifteen per cent, as may be prescribed, having regard to the length of the

period of delay in making the repayment of such money".

As the Company failed to make an application for listing such securities, the Company

had to forthwith repay such money collected from investors. If such repayments are

not made within 8 days after the Company becomes liable to repay, the Company and

every director is liable to repay with interest at such rate. The liability of the Company

to refund the public funds collected through offer and allotment of the impugned

RPSs is continuing and such liability would continue till repayments are made. There

is no record to suggest that the Company made the refunds as per law. SEBI is also in

receipt of complaints from investors alleging non-payment of amounts under the RPS.

The Hon'ble Supreme Court of India in the Sahara case has examined section 73 and

made the following observations:

"Section 73(1) of the Act casts an obligation on every company intending to offer shares or debentures

to the public to apply on a stock exchange for listing of its securities. Such companies have no option

or choice but to list their securities on a recognized stock exchange, once they invite subscription from

over forty nine investors from the public. If an unlisted company expresses its intention, by conduct

or otherwise, to offer its securities to the public by the issue of a prospectus, the legal obligation to

make an application on a recognized stock exchange for listing starts. Sub-section (1A) of Section

73 gives indication of what are the particulars to be stated in such a prospectus. The consequences


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of not applying for the permission under sub-section (1) of Section 73 or not granting of permission

is clearly stipulated in sub-section (3) of Section 73. Obligation to refund the amount collected from

the public with interest is also mandatory as per Section 73(2) of the Act. Listing is, therefore, a

legal responsibility of the company which offers securities to the public, provided offers are made to

more than 50 persons."

In view of the above observations, I find that the Company has not complied with the

mandate under section 73(2) of the Companies Act, 1956.

d. Section 73(3) states that- All moneys received as aforesaid shall be kept in a separate bank

account maintained with a Scheduled Bank 1 [until the permission has been granted, or where an

appeal has been preferred against the refusal to grant such. permission, until the disposal of the appeal,

and the money standing in such separate account shall, where the permission has not been applied for

as aforesaid or has not been granted, be repaid within the time and in the manner specified in sub-

section (2)]; and if default is made in complying with this sub- section, the company, and every officer

of the company who is in default, shall be punishable with fine which may extend to fifty thousand

rupees. . As found above, the Company had not applied and obtained listing

permission. The Company is therefore in non-compliance with this provision also.

e. As the amounts mobilized through the issue of securities have not been refunded

within the time period as mandated under law, it would therefore be appropriate tolevy an interest @ 15% p.a. as provided for under section 73(2) of the Companies Act,

1956 read with rule 4D (which prescribes that the rates of interest, for the purposes of sub-sections

(2) and (2A) of section 73, shall be 15 per cent per annum) of the Companies (Central

Governments) General Rules and Forms, 1956, on the amounts raised by the

Company through its offer and issuance of RPS, includingRs.215.23 lakh (as alleged

in the interim order) due to be repaid by the Company. As stated above, the liability

of the Company to refund the public funds collected through offer and allotment of

the impugned RPSs is continuing and such liability would cease only if the repayments

are made in accordance with the relevant provisions of law.


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15.

In view of the above observations, I conclude that the Company made a public issue of RPS

during FY 2012-13 and 2013-14 and failed to comply with the provisions of sections 56, 60 and 73 of

the Companies Act, 1956 read with the Companies Act, 2013.

16. The interim order was issued against Atikulla Hossain, Bablu Mia, Rajiv Ranjan Singh, Birju

Kumar Sharma, Samir Keshari, Mohammed Rafique Khan and Mohammed Sajjad Akhtar. As per the

information available in the MCA portal, the following persons are the present directors in the

Company:

The period of directorship of the other persons are mentioned below:

Noticee Date of appointment Date of resignationBirju Kumar Sharma 09.01.2012 19.11.2013

Samir Keshari 26.07.2011 21.02.2014

Mohammed Rafique

Khan

09.01.2012 10.04.2013

Mohammed Sajjad

Akhtar

09.01.2012 21.02.2014

From the above details, it can be noted that the seven persons (present and past directors), were in

the board of the Company during the period (i.e. FY 2012-2014) when the Company made the

impugned offer and issue of securities. It is already concluded above that the Company made a public

IN/DPIN/PAN Full NamePresent residentialaddress

DesignationDate ofAppointment

03583076ATIKULLAHOSSAIN

VILL GAYESHPUR, PSENGLISHBAZAR, MALDA,732101, West Bengal, INDIA

Director

05/02/2014(date of originalappointment was on

26.07.2011)

06519493 BABLU MIA

JAHANGIRPUR JAHANGIRPUR GANGARAMPUR,DAKHSIN DINAJPUR, DAKHSIN,733124, West Bengal, INDIA

Director 05/02/2014

06528168RAJIVRANJANSINGH

SECTOR 6/D, BOKARO STEELCITY, SECTOR 6 CHAS,BOKARO, 827006, Jharkhand,INDIA

Additionaldirector

15/03/2013


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issue of RPS during FY 2012-13 and 2013-14 and failed to comply with the provisions of sections 56,

60 and 73 of the Companies Act, 1956 read with the Companies Act, 2013.

In view of the above, I observe the following with respect to the liability of directors, both past and

present:

(i) In terms of section 291 of the Companies Act, 1956, the board of directors of a company

shall be entitled to exercise all such powers and do all such acts and things as the company

is authorized to exercise and do. Therefore, the board of directors shall be responsible for

the conduct of the business of a company and liable for any non-compliance of law and

such liability shall trickle down to individual directors.

(ii) Accordingly, a director who is part of a companys board shall be responsible and liable

for all acts carried out by a company unless exemptions are provided.

(iii) With respect to the culpability of a director for breach of law by a company, I refer to and

rely on the following observations made by the Honble High Court of Madras inMadhavan

Nambiar vs Registrar Of Companies(2002 108 Comp Cas 1 Mad):

13. It may be that the petitioner may not be a whole-time director, but that does not mean he is

exonerated of the statutory obligations which are imposed under the Act and the rules and he cannot

contend that he is an ex officio director and, therefore, he cannot be held responsible. There is substance

in the contention advanced by Mr. Sridhar, learned counsel since the petitioner a member of the Indian

Administrative Service and in the cadre of Secretary to Government when appointed as a director on

the orders of the Government to a Government company or a joint venture company, he is expected not

only to discharge his usual functions, but also take such diligent care as a director of the company asit is expected of him not only to take care of the interest of the Government, but also to see that the

company complies with the provisions of the Companies Act and the rules framed thereunder.

Therefore, the second contention that the petitioner cannot be proceeded against at all as he is only a

nominee or appointed director by the State Government, cannot be sustained in law. A director either

full time or part time, either elected or appointed or nominated is bound to discharge the functions of

a director and should have taken all the diligent steps and taken care in the affairs of the company.

14. In the matter of proceedings for negligence, default, breach of duty, misfeasance or breach of trustor violation of the statutory provisions of the Act and the rules, there is no difference or distinction

between the whole-time or part time director or nominated or co-opted director and the liability for suchacts or commission or omission is equal. So also the treatment for such violations as stipulated inthe Companies Act, 1956.

15. Section 5 of the Companies Act defines the expression "officer who is in default". The expressionmeans either (a) the managing director or managing directors ; (b) the whole-time director or whole-


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time directors ; (c) the manager ; (d) the secretary ; (e) any person in accordance with whose directionsor instructions the board of directors of the company is accustomed to act; (f) any person charged by theboard with the responsibility of complying with that provision ; (g) any director or directors who maybe specified by the board in this behalf or where no director is so specified, all the directors.

16. Section 29 of the Companies Act provides the general power of the board and ...Therefore it follows there cannot be a blanket direction or a blanket indemnity in favour of thepetitioner or other directors who have been nominated by the Government either ex officio or otherwise.Hence the second point deserves to be answered against the petitioner.

17. As regards the first contention, it is contended by Mr. Arvind P. Datar, learned senior counselappearing for the petitioner that the company or its board had resolved that Thiagaraj S. Chettiarshall be the director in charge of the company of all its day-to-day affairs and, therefore, the petitioner,an ex officio chairman and director, cannot be expected to attend to the affairs on a day-to-day basis.This contention though attractive cannot be sustained as a whole. There may be a delegation, butultimately it comes before the board and it is the board and the general body of the company which areresponsible.

{Emphasis supplied}

A person cannot assume the role of a director in a company in a casual manner. The

position of a director in a public company/listed company comes along with

responsibilities and compliances under law associated with such position, which have to

be fulfilled by such director or face the consequences for any violation or default thereof.

(iv) Section 56(1) and 56(3) read with section 56(4) imposes the liability for the compliance of

the said provisions, on the company, every director, and other persons responsible for the

issuance of the prospectus. The liability for non-compliance of section 60 of the

Companies Act is on the Company, and every person who is a party to the non-compliance

of issuing the prospectus as per the said section.

(v) The liability of the company and directors to repay under section 73(2) of the Companies

Act, 1956 and section 27 of the SEBI Act, is a continuing liability and the same continues

till all the repayments are made. Such liability is a joint and several liability on them.

Therefore, the directors (irrespective of whether they continue or resign) who were present duringthe period when the Company made the offer and allotted RPSs shall be liable for violation

of sections 56, 60 and 73 of the Companies Act, including the default in making refunds

as mandated therein. As the liability to make repayments under sections 73(2) of the


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Companies Act read with section 27 of the SEBI Act is a continuing liability, the persons

who join the Companys Board pursuant to theoffer and allotment of RPSs shall also be

liable if the Company and the concerned directors have failed to make refunds as

mandated under law.

(vi) Noticees, Bablu Mia, Birju Kumar Sharma and Rajiv Ranjan Singh have disputed the fact

that they are the directors. Bablu Mia has stated that as per the Company his name was

mentioned as a director because of printing mistake. However, his name has not been

removed till, though he was appointed on February 05, 2014. Birju Kumar Sharma and

Rajiv Ranjan Singh have submitted that they have not consented to become directors and

their signatures were forged and then were made as directors. These persons have not

informed SEBI of any action taken by them and whether a competent forum had decided

their claim regarding forgery, even after the passing of the interim order. However, theyare at liberty to pursue remedies available under law.

With respect to Birju Kumar Sharma, I note that as per his letter dated May 06, 2014

(response to SEBIs letter seeking information regarding raising of funds by Company through RPS), he

has clearly stated that he was inducted in the Company as Honorary Director from 2012

and has resigned on October 30, 2013. The resignation letter dated October 30, 2013

enclosed with the reply states that due to his pre-occupation elsewhere, he was not in a

position to devote his time to the affairs of the Company and therefore resigned from the

Company. Therefore, in view of the noticees own submissions made earlier, his claim

now that he never knew his appointment as a director in the Company and he never consented to act

as a director, lacks credibility.

In view of the same, I am constrained to decide their liability based on the documents

available in the MCA regarding their directorship.

(vii) As per the Register of directors, managing directors, manager and secretary etc, available in the

MCA, Mr. Atikulla Hossain was originally appointed on July 26, 2011. He has been

appointed in the current designation on February 05, 2014. Mr. Atikulla Hossain, vide


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letter dated May 24, 2014 has submitted that he was no more part of the Company and

had tendered his resignation on June 26, 2013. However, the MCA portal indicates

otherwise as mentioned above.

(viii) In view of the foregoing, I hereby find Atikulla Hossain, Bablu Mia, Rajiv Ranjan Singh,

Birju Kumar Sharma, Samir Keshari, Mohammed Rafique Khan and Mohammed Sajjad

Akhtar liable, for the violations committed by the Company as found in this Order and

also for committing default in making refunds in terms of section 73(2) of the Companies

Act, 1956.

17.

In view of the foregoing, I, in exercise of the powers conferred upon me under section 19 of

the Securities and Exchange Board of India Act, 1992 read with sections 11(1), 11(4), 11A and 11Bthereof, hereby issue the following directions:

(a)Angela Agrotech Limited and its directors(past and present) Atikulla Hossain, Bablu

Mia, Rajiv Ranjan Singh, Birju Kumar Sharma, Samir Keshari, Mohammed Rafique

Khan and Mohammed Sajjad Akhtar, jointly and severally, shall forthwith refund the

money collected by the Company through the issuance of Redeemable Preference Shares

(which have been found to be issued in contravention of the public issue norms stipulated under the Companies

Act, 1956), to the investors including the money collected from investors, till date, pendingallotment of securities, if any, with an interest of 15% per annum compounded at half yearly

intervals, from the date when the repayments became due (in terms of Section 73(2) of the

Companies Act, 1956) to the investors till the date of actual payment.

(b)The repayments to investors shall be effected only in cash through Bank Demand Draft or

Pay Order.

(c)The Company/its present management are permitted to sell the assets of the Company

only for the sole purpose of making the refunds as directed above and deposit the proceeds

in an Escrow Account opened with a nationalised Bank.


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(d)Angela Agrotech Limited and its directors(past and present) Atikulla Hossain, Bablu


Khan and Mohammed Sajjad Akhtarshall issue public notice, in all editions of two National

Dailies (one English and one Hindi) and in one local daily with wide circulation, detailing the

modalities for refund, including details of contact persons including names, addresses and

contact details, within fifteen days of this Order coming into effect.

(e)After completing the aforesaid repayments, the Company shall file a certificate of such

completion with SEBI, within a period of three months from the date of this Order, from two

independent peer reviewed Chartered Accountants who are in the panel of any public

authority or public institution. For the purpose of this Order, a peer reviewed Chartered

Accountant shall mean a Chartered Accountant, who has been categorized so by the Institute

of Chartered Accountants of India ("ICAI").

(f)Angela Agrotech Limited and its directors(past and present) Atikulla Hossain, Bablu


Khan and Mohammed Sajjad Akhtarare also directed to provide a full inventory of all their

assets and properties and details of all their bank accounts, demat accounts and holdings of

shares/securities, if held in physical form.

(g) In case of failure ofAngela Agrotech Limited and its directors(past and present)Atikulla

Hossain, Bablu Mia, Rajiv Ranjan Singh, Birju Kumar Sharma, Samir Keshari,

Mohammed Rafique Khan and Mohammed Sajjad Akhtar in complying with the

aforesaid directions, SEBI, on the expiry of the three months period from the date of this

order, -

a) shall recover such amounts in accordance with section 28A of the SEBI Act including

such other provisions contained in securities laws.


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b)may initiate appropriate action against the Company, its promoters/ directors and the

persons/ officers who are in default, including adjudication proceedings against them,

in accordance with law.

c)would make a reference to the State Government/ Local Police to register a civil/

criminal case against the Company, its promoters, directors and its managers/ persons

in-charge of the business and its schemes, for offences of fraud, cheating, criminal

breach of trust and misappropriation of public funds; and

d)would also make a reference to the Ministry of Corporate Affairs, to initiate the

process of winding up of the Company.

e)would also make a reference to the Ministry of Corporate Affairs to flag the names of

notice directors in its database so that information may be perused by RoC or any

other regulatory authority.

(h)Angela Agrotech Limited is directed not to, directly or indirectly, access the capital market

by issuing prospectus, offer document or advertisement soliciting money from the public and

are further restrained and prohibited from buying, selling or otherwise dealing in the securities

market, directly or indirectly in whatsoever manner, from the date of this Order till the expiry

of 4 years from the date of completion of refunds to investors as directed above.

(i) Atikulla Hossain, Bablu Mia, Rajiv Ranjan Singh, Birju Kumar Sharma, Samir Keshari,

Mohammed Rafique Khan and Mohammed Sajjad Akhtar are restrained from accessing

the securities market and further prohibited from buying, selling or otherwise dealing in the

securities market, directly or indirectly in whatsoever manner, with immediate effect. They are

also restrained from issuing prospectus, offer document or advertisement soliciting money

from the public and associating themselves with any listed public company and any public

company which intends to raise money from the public, or any intermediary registered with

SEBI. The above directions shall come into force with immediate effect and shall continue

to be in force from the date of this Order till the expiry of 4 years from the date of completion

of refunds to investors, as directed above.


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(j) The above directions shall come into force with immediate effect.

18. This Order is without prejudice to any action, including adjudication and prosecution

proceedings that might be taken by SEBI in respect of the above violations committed by the

Company, its promoters, directors including former directors and other key persons.

19. Copy of this Order shall be forwarded to the recognised stock exchanges and depositories for

information and necessary action.

20. A copy of this Order shall also be forwarded to the Ministry of Corporate Affairs/concerned

Registrar of Companies, for their information and necessary action with respect to the

directions/restraint imposed above against the Company and the individuals.

PRASHANT SARANWHOLE TIME MEMBER

SECURITIES AND EXCHANGE BOARD OF INDIA

Date: March 01st, 2016Place: Mumbai

Documents

Order in the matter of Angela Agrotech Limited