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NCLT’s powers to rectify register of members restricted in case of breach of securities laws

– Sharon Pinto, Manager | sharon@vinodkothari.com

Introduction

A recent judgment by the Supreme Court in Ifb Agro Industries Limited vs Sicgil India Limited, has put to rest the concerns regarding rectificatory jurisdiction of NCLT u/s 59 of Companies Act, 2013 (section 111A of the erstwhile Companies Act, 1956). The ruling has shed light on the scope of NCLT jurisdiction in case of rectification of the register of members, in cases where there are violations of specific laws and the facts of the case are such that the same requires proper enquiry, adjudication under the specific statute. The two major questions addressed by Hon’ble Supreme Court are as follows:

  • What is the scope and ambit of Section 111A of the Companies Act, 1956 (‘Act, 1956’) / Section 59 of the Companies Act, 2013 (‘Act, 2013’), to rectify the register of members?
  • Which is the appropriate forum for adjudication and determination of violations and consequent actions under the SEBI (Substantial Acquisition of Shares and Takeover) Regulations 1997 (‘SEBI SAST Regulations’) and the SEBI (Prohibition of Insider Trading) Regulations 1992 (‘SEBI PIT Regulations’)?
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As social stock exchanges seem imminent, auditors get ready with social audit standards

ICAI and ICSI issue social audit standards

– Sharon Pinto & Kaushal Shah (corplaw@vinodkothari.com)

Background

As we understand, the concept of Social Stock Exchanges (‘SSEs’) have been brought under the regulatory purview of Securities and Exchange Board of India (‘SEBI’) for listing and raising of capital by Social Enterprises, the details of which can be read in our article Social stock exchanges: philanthropy on the bourses as well as our other resources linked with the concept of SSEs and social sectors.

Social Enterprises are defined under regulation 292A (h) of the SEBI (ICDR) Regulations, 2018 (‘ICDR Regulations’) and are expected to be engaged in the specified activities provided therein. With the objective to assess the impact created by such social activities by the Social Enterprises, Self Regulatory Organisations (‘SRO’s) recognised under ICAI, ICSI and such other bodies as may be prescribed by SEBI have been considered to be eligible to act as platforms to register Social Auditors. ICAI has approved the formation of an SRO named ‘Institute of Social Auditors of India’ while ‘ICSI Institute of Social Auditors’ is the recognsied SRO under ICSI. Such auditors are also required to undergo a certification program conducted by National Institute of Securities Market (‘NISM’).

ICAI has recently sought interest for the initial empanelment of Social Auditors.[1] The eligibility criteria for empanelment as a Social Audit firm requires having a track record of minimum three years of conducting social impact assessment. Further, average annual grants or expenditure of social enterprise of the last 3 financial years should be atleast Rs. 50 lakhs and the firm should have suitable human resources in the field of social development having experience of usage of relevant methodology of social audit. The disqualifications includes any individual or any of the partner/director of an entity being convicted for an offence of moral turpitude or declared as an undischarged insolvent/bankrupt or has been debarred by SEBI.  

To put it in simple terms, Social Auditors are required to conduct Social Audit of the activities carried on by Social Enterprises. To aid the Social Auditors in carrying out the Social Audit, both the SROs being ICAI and ICSI have rolled out the Social Audit Standards (‘SAS’) to assist and guide their empanelled auditors for the purpose of carrying out the audit in accordance with the SAS Framework. Looking at the imminence of SSEs to come into reality with SEBI granting in-principle approval to both BSE and NSE in December, 2022, SROs have rolled out SAS for the quick reference and guidance for their registered auditors.

In this write-up, we have covered the key takeaways from the SAS and its relevance, applicability as well as mapping with the global principles on social audit.

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LODR amended – Senior Management redefined | Material Subsidiaries details to be disclosed in CG report | CG norms ‘NA’ to REITs & InvITs |

– Aisha Begum Ansari & Lovish Jain | corplaw@vinodkothari.com

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Debenture Issuance -Recent developments & applicable compliances

– Vinita Nair, Senior Partner | vinta@vinodkothari.com

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2022 Wrapped Up: Regulatory review of corporate law developments

– Payal Agarwal, Assistant Manager (payal@vinodkothari.com)

2022 has been a relatively stable year when it comes to Companies Act, save changes in the forms and filing procedures with increasing online processes, there has been significant traction on the part of SEBI. While Structured Digital Database (SDD) remained the buzzword for the listed entities with the stock exchanges requiring them to submit quarterly compliance certificates, the stress for proper controls on insider trading remained the focal point. For social enterprises, a landmark development was the introduction of the concept of Social Stock Exchanges, which seems to be shortly getting into operational mode.

We have tried to briefly cover the major developments in corporate laws during the year 2022. You may also refer to our brief discussion of the same in this youtube video. For updates relevant to the financial sector including the overseas investment norms, refer 2022 in retrospect: Regulatory activity in the financial sector. You may also refer to our quick round-up of regulatory developments in IBC in the year 2022.

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Mutual Fund units now under the net of insider trading regulations

Numerous actionable for Asset Management Companies

– Vinita Nair, Senior Partner | corplaw@vinodkothari.com

Background

Investment in MFs are very common these days. As on March 31, 2022 there were about 1120 open ended schemes and 354 close ended schemes[1]. Presently, in terms of Reg. 32 of SEBI (Mutual Funds) Regulations, 1996 every close ended scheme, other than equity linked savings scheme, are required to be listed on stock exchanges. 

Until, the present amendment, SEBI (Prohibition of Insider Trading) Regulations, 2015 (‘PIT Regulations’) were applicable in case of dealing in securities that are listed or proposed to be listed while in possession of Unpublished Price Sensitive Information (‘UPSI’). Units of mutual funds were excluded from the definition of securities under PIT Regulations and therefore, remained outside the purview of the said regulations.

The erstwhile PIT Regulations of 1992 was amended in 2002 to mandate Asset management Companies (AMCs) and Mutual Fund (‘MF’) Trustees to frame internal procedures and conduct for prevention of insider trading, pursuant to which any security which was purchased or sold or was considered for purchase or sale by the organization on behalf of its clients/ schemes of MFs was required to be put on the restricted/ grey list. Thereafter, at the time of finalization of PIT Regulations, the committee led by Mr. N. K. Sodhi felt that there is no longer a special need for a special or separate circular for a specific class of market intermediaries and therefore, the said circulars be withdrawn to ensure consistency. The definition of securities in the proposed draft of PIT Regulations forming part of the said report provided for the meaning assigned to it under the Securities Contract (Regulation) Act, 1956 (‘SCRA’) without any exclusion. It was also explained that an MF set up as a trust, that can issue units of close-ended schemes which are traded in the market would also be a ‘company’ for purposes of the proposed regulations. However, the PIT Regulations as approved by SEBI in its meeting held on November 19, 2014 excluded MF units from the definition of securities. The thought process, as indicated in a news piece, was that even if a person has inside information regarding one company, he cannot possibly take advantage on that information by investing in a scheme, which is a diversified pool of securities of various companies and that there existed strict and transparent norms of NAV (net asset value) calculations and offence of front-running was already covered under SEBI (Fraudulent and Unfair Trade Practices) Regulations, 2003.

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IPO draft documents may be kept away from public view until SEBI/stock exchange observations, Issuers may choose an opportune time for public view

– Kaushal Shah, Executive | kaushal@vinodkothari.com

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Read our related resources :

  1. Deferred public disclosure of RHP in IPO/filing of pre DRHP in confidential mode
  2. Monitoring Agency now mandatory in case of Preferential Issue & QIP | ICDR Amendment

Deferred public disclosure of RHP in IPO/filing of pre DRHP in confidential mode

– Anushka Vohra, Manager | corplaw@vinodkothari.com

SEBI vide its notification dated November 21, 2022 has come up with SEBI (Issue of Capital and Disclosure Requirements) (Fourth Amendment) Regulations, 2022 (“Amendment”), effective immediately, making changes in the existing SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018 (“ICDR”) w.r.t. Initial Public Offer (“IPO”). The Amendment has introduced an alternate method for filing the draft IPO document, known as draft Red Herring Prospectus (DRHP).

Pursuant to this alternate method, the issuer will have the option to keep the information-rich DRHP confidential from the public at large until the issuer is sure to proceed with IPO i.e after receiving observation from SEBI on the draft RHP (“DRHP”) filed. Until such time, the issuer can interact with the QIBs only to gauge the market. Any kind of marketing of IPO apart from interacting with the QIBs is prohibited during this period.

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Monitoring Agency now mandatory in case of Preferential Issue & QIP | ICDR Amendment

– Kaushal Shah, Executive | kaushal@vinodkothari.com

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Read our relevant resources

  1. Deferred public disclosure of RHP in IPO/filing of pre-DRHP in confidential mode
  2. IPO draft documents may be kept away from public view until SEBI/stock exchange observations, Issuers may choose an opportune time for public view