2021 (10) TMI 1463 - AT - SEBI

Violations of the SEBI laws - violation of 1993 circular - Appellant had misused client funds for a debit balance of other clients during the relevant period - AO concluded that as the accounts were not settled for a long gap after almost four quarters the violation had occurred - HELD THAT - The order cannot be faulted with. The earlier circular had clearly stated that the funds of the client cannot be applied for any other purposes. The appellant s case was that the funds were applied by it for the dues for their associates group company etc. Now during the arguments only the issue of non- existence of formula in the previous circular is brought up. In fact the said formulization is nothing but the crystallization of the earlier circular. There is no merit in the appeal. The appeal is therefore dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal are:

(a) Whether the appellant, a registered stockbroker, violated the SEBI circular dated December 3, 2009 by failing to settle running client accounts within the prescribed time frame, specifically by not settling accounts in 40 instances over six quarters during the inspection period from April 1, 2014 to March 11, 2016.

(b) Whether the appellant violated the SEBI circular dated November 18, 1993 by misusing client funds, particularly by utilizing client funds to cover debit balances of other clients, including amounts due to group companies, associates, subsidiaries, directors, and their family members.

(c) Whether the penalty imposed by the Adjudicating Officer (AO) for these violations is justified, especially in light of the appellant's contention that certain formulas and provisions relied upon by SEBI were not in effect during the relevant period.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Violation of SEBI Circular dated December 3, 2009 - Non-settlement of Running Client Accounts

Relevant Legal Framework and Precedents: The SEBI circular dated December 3, 2009 mandates that brokers must settle client accounts, including securities, at least once in a calendar quarter or month, depending on client preference. This requirement aims to ensure transparency, proper reconciliation, and protection of client interests.

Court's Interpretation and Reasoning: The Tribunal observed that during the inspection period, the appellant failed to settle client accounts in 40 instances over six quarters. The appellant claimed that in 39 of these cases, the back office software rejected settlements due to reasons beyond its control, such as invalid or frozen mapped depository accounts, and that these accounts were settled later.

The AO concluded that the failure to settle accounts for a prolonged period-almost four quarters-constituted a violation of the circular. The Tribunal upheld this conclusion, emphasizing that the circular requires actual settlement within the stipulated timeframe, not delayed settlement.

Key Evidence and Findings: The list of unsettled accounts was provided to the appellant during inspection. The appellant's explanation regarding software rejections was considered but found insufficient to justify the prolonged delay in settlement.

Application of Law to Facts: The Tribunal applied the clear mandate of the circular to the facts, holding that irrespective of technical difficulties, the appellant was obligated to ensure timely settlement of client accounts.

Treatment of Competing Arguments: The appellant's argument that system errors caused delays was acknowledged but rejected as a valid excuse for non-compliance with the circular's requirements.

Conclusion: The Tribunal affirmed the finding of violation of the December 3, 2009 circular due to failure to settle client accounts within the prescribed period.

Issue (b): Violation of SEBI Circular dated November 18, 1993 - Misuse of Client Funds

Relevant Legal Framework and Precedents: The November 18, 1993 circular prohibits brokers from using client funds for purposes other than those authorized, such as payments on behalf of clients or settlement of debts due to clients. It mandates segregation of client funds and prohibits their misuse for other purposes.

Court's Interpretation and Reasoning: The AO found that the appellant had misused client funds by applying them to debit balances of other clients, including amounts due to group companies, associates, subsidiaries, directors, and their family members. The appellant argued that internal creditor balances (due to related entities) should not be considered misuse and that external creditor balances should also be factored in.

The Tribunal noted that the circular does not differentiate between internal and external accounts for the purpose of misuse. It emphasized that the circular clearly specifies the permissible use of client funds and that the appellant's application of such funds to cover other clients' debit balances violated this mandate.

Key Evidence and Findings: The AO's inspection revealed that funds lent by Axis Bank, amounting to Rs. 6 crore each, were involved, and the appellant's utilization of client funds did not comply with the circular's requirements.

Application of Law to Facts: The Tribunal applied the clear prohibition against misuse of client funds to the appellant's conduct, finding that the appellant's actions constituted a breach of the circular.

Treatment of Competing Arguments: The appellant's contention that internal creditor balances should be excluded was rejected on the basis that the circular makes no such distinction. The argument regarding the formula introduced in a later circular was also addressed.

Conclusion: The Tribunal upheld the finding of violation of the November 18, 1993 circular for misuse of client funds.

Issue (c): Validity of Penalty and Reliance on Subsequent Circulars

Relevant Legal Framework and Precedents: The appellant contended that the formula relied upon by SEBI in the show cause notice was introduced only in the circular dated September 26, 2016, effective from July 1, 2017, and thus was not applicable during the inspection period.

Court's Interpretation and Reasoning: The Tribunal observed that the later circular merely formalized and clarified the principles already enshrined in earlier circulars. The appellant's reliance on the non-existence of the formula during the relevant period was therefore misplaced.

The Tribunal emphasized that the fundamental principles prohibiting misuse of client funds and mandating segregation were clearly stated in the earlier circulars. The subsequent formula was a crystallization for mathematical clarity and did not alter the substantive obligations of brokers.

Key Evidence and Findings: The appellant's admission of violations and the AO's reliance on earlier circulars supported the imposition of penalty.

Application of Law to Facts: The Tribunal applied the law as it stood during the inspection period, finding no procedural or substantive infirmity in the AO's order.

Treatment of Competing Arguments: The appellant's argument regarding retrospective application of the formula was rejected. The respondent's submission that non-compliance was clearly established was accepted.

Conclusion: The Tribunal found no merit in the appellant's challenge to the penalty and upheld the AO's order.

3. SIGNIFICANT HOLDINGS

"The earlier circular had clearly stated that the funds of the client cannot be applied for any other purposes."

"The circular does not make such difference between any internal and external account."

"The said formulization is nothing but the crystallization of the earlier circular."

The Tribunal established the core principle that brokers must strictly comply with SEBI circulars requiring timely settlement of client accounts and segregation of client funds, prohibiting their misuse for any other purpose, including internal group dues.

The final determinations were:

(i) The appellant violated the SEBI circular dated December 3, 2009 by failing to settle running client accounts within the prescribed time frame.

(ii) The appellant violated the SEBI circular dated November 18, 1993 by misusing client funds to cover debit balances of other clients and related entities.

(iii) The penalty imposed by the AO is justified and upheld, with no interference warranted.