TMI Blog2011 (3) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... eals alongwith some others are the promoters of Blue Coasts Hotels Limited (formerly known as Blue Coasts Hotels and Resorts Limited and hereinafter referred to as the target company). Morepen Laboratories Limited is a group company of the appellants and it shall be referred to hereinafter as Morepen. It took a loan of ₹ 325 lacs from Dombivli Nagari Sahakari Bank Limited and another sum of ₹ 10 crores from Lakshmi Vilas Bank Limited (for short Dombivli Bank and Lakshmi Bank respectively) in the year 2002. It hypothecated its plant and machinery to secure the loans and in addition thereto, the appellants who were holding large number of shares of the target company had pledged those shares by way of collateral security. The pledge was created in favour of both the banks. Morepen defaulted in the repayment of the loans as a result whereof both the banks invoked on March 10, 2004 the pledges created in their favour. The pledged shares were then transferred from the demat accounts of the appellants to the demat accounts of the banks. Upon the shares being so transferred, the names of the banks came to be recorded as the beneficial owners of those shares in the records of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Epitome Holdings (P) Ltd. 250000 shares 3.) M/s. React Investments Financial Services (P) Ltd 190000 shares 4.) M/s. Liquid Holdings (P) Ltd. 200000 shares ------------------- 807000 shares ------------------ We have on record copies of the delivery instruction slips (DIS) duly executed by the banks in favour of the appellants transferring the shares from their demat account to those of the appellants. Since the shares that were transferred back to the appellants were in excess of the limit(s) prescribed by Regulation 11(1) of the takeover code, the Securities and Exchange Board of India (for short the Board) was of the view that the appellants on acquiring the shares from the two banks ought to have complied with this regulation by making a public announcement to acquire shares of the target ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of ₹ 2 lacs has been levied for the violation of Regulation 11(1) of the takeover code and another sum of ₹ 1 lac has been imposed for violating Regulation 7. Hence these appeals. 3. We have heard the learned senior counsel on behalf of the appellants and Shri Kumar Desai learned counsel for the Board. Before we deal with their contentions, it is necessary to refer to the relevant statutory provisions. Shares in demateralised form are regulated by the Depositories Act, 1996 and the regulations framed thereunder. This Act makes a distinction between a registered owner and a beneficial owner of a security. As per section 10 of this Act, a depository is deemed to be the registered owner for the purposes of effecting transfer of ownership of security on behalf of a beneficial owner. Beneficial owner is defined to mean a person whose name is recorded as such with a depository. A beneficial owner is entitled to all the rights and benefits and is subjected to all the liabilities in respect of his securities held by a depository. Section 12 of the Depositories Act deals with pledge or hypothecation of securities held in a depository. A beneficial owner may with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediately inform the participants of the pledger and pledgee of the change who in turn shall make the necessary changes in their records and inform the pledger and pledgee respectively. (10) (a) If a beneficial owner intends to create a hypothecation on a security owned by him he may do so in accordance with the provisions of sub-regulations (1) to (9). (b) The provisions of sub regulations (1) to (9) shall mutatis mutandis apply in such cases of hypothecation: Provided that the depository before registering the hypothecatee as a beneficial owner shall obtain the prior concurrence of the hypothecator. (11) No transfer of security in respect of which a notice or entry of pledge or hypothecation is in force shall be effected by a participant without the concurrence of the pledgee or the hypothecatee as the case may be. We may also notice that section 150 of the Companies Act requires every company to keep a register of its members and enter therein their particulars as referred to in the section. The word member has been defined in Section 41 of the Companies Act and sub-section (3) thereof provides that every person holding equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... banks and they were registered as beneficial owners in the records of the depository. When the loan account was settled, the banks transferred back the shares to the appellants by executing DIS. It is argued by the learned senior counsel for the appellants that the shares throughout remained under pledge even when they were transferred in the name of the banks on the invocation of the pledge and that the banks did not acquire those shares. The argument is that the appellants throughout remained the beneficial owners of the shares and that when they were transferred back to them by the banks there was no acquisition by them so as to attract the provisions of Regulations 7 and 11 of the takeover code. The learned senior counsel very strenuously argued that the relationship between the appellants and the banks even after the transfer of shares to the latter continued to be that of pledgor and pledgee and that the banks were throughout holding the shares as collateral security which were released on repayment/settlement of the loan. In support of his argument Shri Chaudhary relied upon the two letters dated December 13, 2004 and December 19, 2007 which have been reproduced hereinabove. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the banks as beneficial owners of the shares in its records and made the necessary amendments therein. The depository then immediately informed the participants of the pledgors and the pledgees of the change and the participants also recorded the necessary changes in their records. Upon the banks being recorded as beneficial owners of the shares in the records of the depository, they became members of the target company and they acquired not only the shares but also the voting rights attached thereto. But for the exemption granted to them under Regulation 3(1)(f)(iv) of the takeover code, they would have been required to comply with the provisions of Regulation 11(1) by making a public announcement to acquire further shares of the target company as envisaged therein. The shares acquired by the banks ceased to be the security for the loans as the banks had become the beneficial owners thereof. In December 2007, Morpen paid the entire loan amounts to the banks and settled the loan accounts. It was then that the banks issued a no dues certificate to Morepen, the principal borrower and simultaneously executed DIS requiring their participants to debit their accounts and transfer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different from the transfer by which the shares came to the banks upon invocation of pledge and by no process of reasoning can it be said that the banks continued to hold the shares as collateral security which was returned to the appellants on the repayment of the loan. 6. We may now take note of another submission made by the learned senior counsel for the appellants. He contends that the banks may have become beneficial owners of the shares when they were transferred in their demat account but they had not become the real owners of the shares and they could not have gained title to the said shares in the absence of any consideration. There is no merit in this contention at all. The Depositories Act, 1996 provides for only two category of owners viz. registered owner who has necessarily to be a depository and a beneficial owner in whom all the rights vest. Once the beneficial ownership stands transferred to the banks the parties cannot circumvent the legal provisions by entering into an agreement to make a declaration otherwise. The law also prescribes a mode for the creation and revocation of a pledge. The parties cannot agree to create a pledge contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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