SECURITIES AND EXCHANGE BOARD OF INDIA

Transcription

1 WTM/TCN/ERO/ 97/Jan/2009 SECURITIES AND EXCHANGE BOARD OF INDIA CORAM: Dr. T. C. NAIR, WHOLE TIME MEMBER ORDER UNDER REGULATION 28 (2) OF SECURITIES AND EXCHANGE BOARD OF INDIA (INTERMEDIARIES) REGULATIONS, 2008 AGAINST SHIVAM STOCK BROKING PRIVATE LIMITED, MEMBER, THE CALCUTTA STOCK EXCHANGE ASSOCIATION LIMITED (SEBI REGISTRATION NO.INB ) IN THE MATTER OF M/S. GLOBAL CAPITAL MARKETS LIMITED. 1. The Securities and Exchange Board of India (hereinafter referred to as SEBI ) had investigated the price manipulation in the shares of companies with low market capitalization, commonly referred to as penny stocks listed on Calcutta Stock Exchange ( CSE ) during the year The Board, in order to protect the interest of investors and the integrity of the securities market had initiated investigation against several such companies which are listed on the Calcutta Stock Exchange Association Ltd. ( CSE ) and had taken action against the said companies, their promoters, brokers and unscrupulous traders who were found to have manipulated the prices of the shares of those companies. 2. M/s. Global Capital Markets Ltd. ( Global ) was one such company whose shares had witnessed a sharp rise in their price between to on the CSE. The average price of the scrip of 1

2 Global on the CSE went up from Rs.1.25/- on to Rs.15.10/- on The scrip had witnessed a price rise of around 1108% within a period of 2 months. The financial performance of the company was poor compared to substantial price rise of its scrip. Only three brokers - M/s. Sanju Kabra, A V Shares & Stock Brokers Pvt. Ltd. and Shivam Stock Broking (the noticee herein) had contributed 90.97% of the total turnover of the shares of Global at CSE. Most of the trades were executed as cross deals or synchronized trades amongst the brokers that matched in terms of price, order time and quantity. The cross deals and the synchronized trades that matched among the three brokers had constituted a major portion of the trades in the scrip and such trading pattern had artificially ramped up the price of the scrip. Based on prima facie, findings of the investigation, it was alleged that the noticee had violated SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 and Regulation 7 of SEBI (Stock Brokers and Sub Brokers) Regulations, 1992 read with code of conduct as specified in Schedule II of the said Regulations. Vide adinterim ex-parte order dated issued under Sections 11(4) (a), 11(4) (b) and 11(1) and 11B of the SEBI Act, 1992, SEBI had directed the noticee amongst others from buying, selling or dealing in securities in any manner, till further directions in this regard. 3. Pursuant to the aforesaid interim order dated September 29, 2005 the noticee filed the written submissions dated and in the matter. On being not satisfied with the explanation of the noticee and having found no mitigating or extenuating factors, SEBI, vide order dated January 12, 2006, inter alia, directed that the ex-parte interim order dated September 29, 2005, in so far as it relates to the noticee besides others shall continue till further orders. However, vide order dated August 11, 2008, the earlier orders restraining the noticee were revoked. 2

3 4. On completion of the investigations SEBI had appointed an Enquiry Officer vide order dated January 30, 2008 for the purposes of conducting an enquiry against the noticee in accordance with the provisions of the SEBI (Procedure For Holding Enquiry By Enquiry Officer and Imposing Penalty) Regulations, 2002 (Enquiry Regulations). 5. The Enquiry Officer issued a show cause notice dated to the noticee in terms of Regulation 6 of the said Regulations enclosing a copy of the findings of the investigations. The noticee had submitted his replies thereto to the Enquiry Officer who conducted the enquiry in accordance with the Regulations and submitted his report to the Board. The Enquiry Officer in his report had found that the noticee had contravened the provisions of clauses (a), (e) and (o) of sub-regulation (2) of Regulation 4 of the PFUTP Regulations 2003 and Regulation 7 read with Clause A (1), (2), (3), (4) and B (4) (a) of the Code of Conduct stipulated in Schedule II of the Brokers Regulations and recommended that the Certificate of Registration of the noticee be suspended for a period of two months in the proceeding in the scrip of Global. He further recommended that suspension period may be set off against the period of prohibition already undergone by the noticee vide SEBI interim order dated September 29, I have perused the show cause notice issued by the enquiry officer, the written submissions of the noticee, the interim orders dated September 29, 2005 and January 12, 2006, the enquiry report and other material on record. On perusal of the said documents, the following issues arise for consideration: a. Whether the noticee had violated the relevant provisions of the PFUTP Regulations while trading in the scrip of Global? 3

4 b. Whether the noticee had violated the relevant provisions of the Broker Regulations while dealing in the scrip of Global? 7. It is observed from the Enquiry Report that the trades of the noticee, A V Shares and Stock Brokers Pvt. Ltd. and Sanju Kabra had constituted around 91% of the total volumes in the scrip of Global traded at the CSE between to It is noticed that M/s Anjani Vanijya Pvt.Ltd, M/s A.S. Vanijya (P) Ltd, Ms Sangeeta Devi Agarwal, Ms Suman Devi Agarwal and M/s Safe Holdings Pvt.Ltd were the five major clients of the noticee who had traded more than 5% of the said volume. 8. The cross- deals of buy and sale orders in the scrip of Global were observed to have been executed at same quantity and for the same price by different clients of the noticee on its terminal. The details of such crossdeals are given in the Enquiry Report. 9. It is observed from the Enquiry Report that the trades executed between June 17, 2005 and September 16, 2005 between the price range of Rs.4.25 to Rs were bought and sold by the noticee in cross deals. 10. Further, the Enquiry Officer found that the noticee has executed a large number of synchronized trades with M/s A.V. Shares & Stock Brokers Pvt.Ltd and Mr. Sanju Kabra the details of which are contained in the Enquiry Report. As per the Enquiry Report, the noticee has executed the trades with M/s A.V. Shares & Stock Brokers Pvt.Ltd and Mr. Sanju Kabra on several dates at successively increasing price wherein the buy and sell orders are placed within a span of few seconds amounting to synchronized trades which has resulted in manipulation of price and volume of the scrip. 4

5 11. It was further observed that the clients of the broker, M/s Anjani Vanijya Pvt.Ltd and M/s A.S. Vanijya (P) Ltd share the same office address. These entities were also found to have been using the same telephone numbers. The details of their trading are given in the Enquiry report. Again, Ms Sangeeta Devi Agarwal and Ms Suman Devi Agarwal were sharing the same address. It has been observed from the Enquiry Report that the family members of the said Agarwal family have purchased shares of Global at a very low price-around Rs to Rs and exited from the market at around Rs From the trading data, it is observed that there were several synchronized trades amongst selected brokers that were matched in terms of order, time, quantity and price. The Order time of the trades showed that both buy and sale orders were given either in identical time or within a gap of few seconds. 13. I agree with the findings of the Enquiry Officer that the noticee had indulged in synchronized trades and cross deals in the scrip of Global. As observed by the Hon ble Securities Appellate Tribunal in Ketan Parekh V.SEBI (Appeal No. 2 of 2004), that synchronization or a negotiated deal ipso facto is not illegal and that a synchronized transaction will, however, be illegal or violative of the Regulations if it is executed with a view to manipulate the market or if it results in circular trading or is dubious in nature and is executed with a view to avoid regulatory detection or does not involve change of beneficial ownership or is executed to create false volumes resulting in upsetting the market equilibrium. The Tribunal further observed that whether a transaction has been executed with the intention to manipulate the market or defeat its mechanism will depend upon the intention of the parties which could be inferred from the attending circumstances because direct evidence in such 5

6 cases may not be available. The Tribunal observed that the intention of the parties can be noted from various factors which may be the nature of the transaction executed, the frequency with which such transactions are undertaken, the value of the transactions, whether they involve circular trading and whether there is real change of beneficial ownership, the conditions then prevailing in the market etc. In the present case against the noticee, the synchronized deals and the cross deals as brought above, the frequency of trades in the market and the fact that the price had shot up abnormally without any change in the economic fundamentals in an otherwise illiquid scrips and the attendent circumstances substantiates the violations against the noticee. 14. I also note that the Hon ble SAT in Chirag Pujara v. SEBI (Appeal No. 175 of 2007) has observed that executing matching trades with a prior understanding is by itself a serious violation of the Regulations which jeopardizes the integrity of the market. The trade data tabulated in enquiry report would show that the noticee has matched and synchronized trades with M Bhiwaniwala & Co, Ashok Kumar Kayan and Ahilya Commercial Pvt. Ltd. Such matching and synchronizing would not happen unless and until there is a prior understanding and meeting of minds. I also place reliance on the observations of the Hon ble SAT made in the matter of Triumph International Finance Ltd. V. SEBI (Appeal No. 35 of 2002). In the said appeal, the Hon ble Tribunal had observed as below - The question that arises for consideration is - could it be said that the appellant was innocent and whether such large number of trades could have matched on the screen without the knowledge and active involvement of the appellant as a broker. The answer has to be in the negative. It is the broker who plays a pivotal role in synchronizing the trades with the counter broker and 6

7 matches the same through the exchange mechanism by punching the buy and sell orders simultaneously. It is true that the brokers act on the advice of their clients but it is they who actually implement the game plan. The Hon ble SAT, in Nirmal Bang Securities Pvt. Ltd., Vs SEBI (Appeal no.54-57/2001), observed as follows: - BEB has been charged for synchronized deals with First Global. I have examined the data provided by the parties on this issue. I find many transactions between BEB and FGSB. There are many instances of such transactions. I find the scrip; quantity and price for these orders had been synchronized by the counter party brokers. Such transactions undoubtedly create an artificial market to mislead the genuine investors. Synchronized trading is violative of all prudential and transparent norms of trading in securities. Synchronized trading on a large scale can create false volumes. The argument that the parties had no means of knowing whether any entities controlled by the client is simultaneously entering any contra order elsewhere for the reason that in the online trading system, confidentiality of counter parties is ensured, is untenable. It was submitted by the Appellants that it was not possible for the broker to know who the counter party broker is and that trades were not synchronized but it was only a coincidence in some cases. Theoretically this is OK. But when parties decide to synchronize the transactions the story is different. There are many transactions giving an impression that these were all synchronized, otherwise there was no possibility of such perfect matching of quantity price etc. As the Respondent rightly stated it is too much of a coincidence over too long a period in to many transactions when both parties to the transaction had entered buy and sell orders for the same quantity of shares almost 7

8 simultaneously. The data furnished in the show cause notice certainly goes to prove the synchronized nature of the transaction whish is in violation of Regulation 4 of the FUTP Regulations. The facts on records categorically establish that BEB had indulged in synchronized trading in violation of Regulation 47 of the FUTP Regulations. In a synchronized trading intention is implicit. 15. Thus, I find that the noticee by his acts has created false or misleading appearance of trading in the shares of Global along with the other brokers and clients, which was responsible for the market manipulation in the scrips. Therefore, I agree with the findings of the Enquiry Officer that the noticee has violated the provisions of clauses (a), (e) and (o) of subregulation (2) of regulation 4 of the PFUTP Regulations. Further, by its acts, the noticee has not maintained high standards of integrity, promptitude and fairness in the conduct of his stock broking business. The noticee has not acted with due skill, care and diligence in the conduct of his business. I agree with the findings of Enquiry Officer that the noticee has contravened the provisions of Regulation 7 read with clauses A (1), (2), (3) and (4) of the Code of Conduct prescribed for stock brokers in the Broker Regulations. 16. A copy of the Enquiry Report was sent to the noticee and he was advised to submit his comments thereto, if any. Vide letter dated July 02, 2008, the noticee requested not to impose any further suspension so as to start their firm. However, he did not file any additional documents against the finding of the Enquiry Officer. 17. With respect to the quantum of penalty, I note that the Enquiry Officer has recommended that the certificate of registration of the noticee be suspended for a period of two months. While recommending the said penalty, the Enquiry Officer stated that the period of debarment already undergone by the noticee may be considered. 8

9 18. It is noted that the noticee was restrained from dealing in securities in any manner from September 29, 2005 to August 10, 2008 in view of the interim orders of SEBI. Considering the above factors and also the facts and circumstances of the case, I am of the considered view that the matter calls for no further penalty against the noticee. 19. Now, therefore, in exercise of powers under Section 19 of the SEBI Act, 1992 and Regulation 28(2) of the SEBI (Intermediaries) Regulations, 2008, I do not deem it fit to impose any further penalty against the noticee. 20. The matter is disposed off accordingly. 21. This order shall come into force with immediate effect. DATE: PLACE: MUMBAI T C NAIR WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA 9