TMI Blog2021 (9) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of ₹ 300 crores of an unencumbered asset, the value of which may be duly certified by the Chartered Accountant-cum-Valuer, who have no conflict of interest having regard to the parties involved and interest in the subject matter and may be any one of the following. 1. PricewaterhouseCoopers Private Limited 2. Ernst and Young 3. KPMG The bank guarantee already furnished by the applicant/Dalmia to the extent of ₹ 344.07 crores shall stand discharged on the applicant/Dalmia fulfilling the above conditions to the satisfaction of the Trial Court. The applicant/Dalmia shall also file an affidavit before this Court to the extent that the asset, which is being furnished as security, is an unencumbered property. It is clarified that any observations made in this order will not affect the merits of the case, when the appeals are heard on merits. - Civil Appeal No(s).5395-5398/2019, 6773-6776/2019, 6241-6244/2019, 6768-6771/2019, 6767/2019 - - - Dated:- 21-9-2021 - HON'BLE MR. JUSTICE VINEET SARAN AND HON'BLE MR. JUSTICE ANIRUDDHA BOSE For Appellant: Mr. Anuj Berry, Adv., Mr. P.S.S. Bhargava, Adv., Mr. S. S. Shroff, AOR, Mr. Shyam Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify the Interim Order dated 27.08.2019 to the extent that the Mutual Fund units of Respondent No.5-Applicant, kept with the Respondent No.1-ISSL, be released in favour of the Respondent No.5-Applicant by way of transfer of the said Mutual Fund units and crediting the same in the demat account of the Respondent No.5-Applicant. This is subject to the Applicant furnishing requisite Bank Guarantee of equivalent value as the Mutual Fund units, to the satisfaction of the Trial Court. The Respondent No.5-Applicant shall comply with this requirement within one month of filing of application for release of Mutual Fund units (along with a copy of this order) before the Trial Court. The Trial Court shall also dispose of such application expeditiously. It is clarified that the Interim Order dated 27.08.2019 shall continue to operate as it was as against the other parties/non- Applicants herein. In compliance of the above-said order, it is admitted by the parties that the bank guarantee for a sum of ₹ 344.07 crores was furnished by the applicant/Dalmia. Subsequent to the furnishing of the bank guarantee, the mutual funds were transferred in the account of the applicant/Dalmia. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sent statement of holdings to DCEL and OCL which do not depict the true status of their holdings. AFSPL has knowingly misrepresented to DCEL and OCL that their units were available in their accounts as on a particular date, when actually these units were not in these accounts on those dates. 85.4. The holding statement, purportedly stamped and signed by NSDL, which was provided by AFSPL to DCEL and OCL at their request, was non-genuine and misleading in nature and did not reflect the true status of the holdings in the accounts of DCEL and OCL. 85.5. This conduct of AFSPL in actively concealing the status of the holdings of DCEL and OCL can also be seen in its email dated November 09, 2018, wherein it has confirmed that the holdings of DCEL and OCL are intact with it, whereas actually these accounts had nil holdings as on that date and had been posted as collateral with the clearing member, ISSL. 85.6. Just before quarter end 31/12/2017 and financial year end 31/03/2018, AFSPL ensured that it fraudulently transferred these MF units to the accounts of DCEL and OCL. As explained above, the reason could to escape scrutiny of independent auditor verification when finalizing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Himanshu Arora Jitendra Tiwari Section 15HA of the SEBI Act, 1992 ₹ 2,00,00,000/- (Rs. Two Crores only) ₹ 2,00,00,000/- (Rs. Two Crores only) ₹ 10,00,000/- (Rs. Ten lakhs only) ₹ 5,00,000/- (Rs. Five lakhs only) Section 15HB of the SEBI Act, 1992 ₹ 50,00,000/- (Rs. Fifty lakhs only) ₹ 50,00,000/- (Rs. Fifty lakhs only) ₹ 2,00,000/- (Rs. Two lakhs only) ₹ 1,00,000/- (Rs. One lakh only) Section 19G of the Depositories Act, 1996 ₹ 50,00,000/- (Rs. Fifty lakhs only) ₹ 50,00,000/- (Rs. Fifty lakhs only) ₹ 2,00,000/- (Rs. Two lakhs only) ₹ 1,00,000/- (Rs. One lakh only) Total ₹ 3,00,00,000/- (Rs. Three Crores only) ₹ 3,00,00,000/- (Rs. Three Crores only) ₹ 14,00,000/- (Rs. Fourteen lakhs only) ₹ 7,00,000/- (Rs. Seven lakhs only) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no. 4/Allied Financial Services Pvt. Ltd., was a part of the fraud, if any, that was committed, and they were equally responsible for pledging the mutual funds and as such the condition of providing bank guarantee for release of the mutual funds in favour of the applicant/Dalmia is perfectly justified and does not call for any modification. Mr. Sunil Jain and Mr. Sandeep Bisht learned counsel for respondent no.4/ Allied Financial Services Pvt. Ltd. have supported the submissions of Mr. K.V. Viswanathan to the extent of opposing the prayer for modification of the order dated 16.03.2021 and so has Mr. Rishi K. Awasthi, learned counsel for the retail investor. Mr. Kunal Katariya learned counsel appearing for Novjoy Emporium Pvt. Ltd. (which is not a party in the present application) has explained the entire modus operandi of the transactions which take place in such cases and we appreciate the clarity with which he has explained the same to us. Having heard the learned counsel for the parties at length and having gone through the record, and also keeping in view the findings recorded by the SEBI about the degree of involvement of the applicant/Dalmia in the said tran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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