High Court orders winding up of Enbee Plantation
Bhopal: As Enbee Plantation Limited has failed to settle the dues of the investors/debenture-holders even after 11 years of the order issued on 7 April 2004 to pay within 18 months of the approval of the modified scheme for payment of dues, the Madhya Pradesh High Court on August 11 ordered that the “company deserves to be and is hereby directed for winding up.
Jabalpur High Court’s single judge bench of Justice Sanjay Yadav ordered that a copy of this order be sent to the Official Liquidator and the Registrar within a week. The Official Liquidator shall take into his custody all the property, effects and actionable claims to which petitioner-company is or appears to be entitled. The Petitioner (Enbee Plantation) has been directed to furnish statement of affairs warranted under Section 454 of 1956 Act within the time stipulated under sub-section (3) of Section 454 i.e. within twenty-one days from the date of communication of this order.
The official Liquidator has been asked to submit a report to the High Court on 15 September 2015.
The order said: “the Court is convinced that the modified scheme approved by order-dated 7 April 2004 having not been honoured for over eleven years, the petitioner-company deserves to be wound up.”
Regarding a proposed modified scheme filed by Enbee Plantation on 13 May 2015, the order says that as it is contrary to the scheme which was approved on 7 April 2004, and hence would not warrant any consideration.
From the order of 7 April 2004, under the modified scheme which was being considered the entire dues were to be cleared within 18 months with a rider that if the Court feels would suo motu reduce the period to 16 months.
From the modified scheme, it was borne out that the following terms of compromise were acceded to by the company, viz:
The interest owned by the company on debentures issued by the company (whether redeemed or not and whether converted into equity or not) will be recalculated at 5% per annum from the respective due dates to the effective date and the amounts so determined shall be frozen and no further interest will accrue.
That the amount of Rs.40.28 crores due to debenture holders on account of principal would be paid in 9 installments within a period of 18 months as per the schedule of repayment.
The first installment would be paid within 90 days from the effective day. In the event the period 90 days’ commencing from the effective date expires later than May, 2004 then the schedule of repayment would stand suitably modified.
The interest as re-calculated shall be paid to debentures holding having a principal of Rs.6000/- or less in two installments within a period of four months after completion of their repayment of the principal.
The debenture holders of principal value of Rs.11000/- or less but more than Rs.6000 will be paid outstanding interest as re-calculated within 9 months from completion of the repayment of the principal. Interest as recalculated due to other debenture holders will be repaid within a period of one year from the date of completion of repayment of the principal amount.
In the event there is any delay on the part of the company in repayment of the installments of principal amounts, the company shall pay interest at the rate
of 5% per annum for the period of delay and such interest shall be paid after the entire amount of principal has been repaid in full.
The repayment of the amount due to debenture holders would discharge the company against all liabilities towards debenture holders and all claims made by debenture holders would stand automatically withdrawn. The company would also be absolved of any action of any nature whatsoever which arises out of or is related to the investment schemes and the re-payment scheme.
All proceedings, complaints, disputes etc. whether civil or criminal raised by debenture holders would stand settled in terms of the compromise on the effective date.
The proposal by petitioner for a modified scheme for payment was opposed by the intervenors, who are investers/debenture-holders in Enbee. It was contended by them that it is not 3.10 crores which the company has to pay but the amount, which is due, is approximately Rs.63.49 crores of which Rs.40.28 crores are towards principal and Rs.23.21 crores towards interest, which was noticed when modified scheme was proposed and the same was considered by order of 7 April 2004.
After repeated opportunities, petitioner (Enbee Plantation) filed a scheme for repayment under the head “mechanism for repayment to the debenture-holders/creditors” on 13 May 2015 which was considered by the court on 11 August 2015. It was proposed to have an Escrow Manager who will take into custody the complete record of the deposit/debenture-holder and reconcile it with the record held by Registrar, Court Commissioner or any other person, body or authority and will finalize the writ of outstanding deposit/debenture-holders and will open an Escrow Account of Enbee Plantations Limited for payment to the investors/Debenture-holders after resolution by the Board wherein the company shall deposit Rupees 10 lakhs and will maintain Rupees 5 Lakhs till payment to all the deposit- holders and the debenture holders. That, the Escrow Manager shall examine the genuineness of the claim and the investors /debenture-holders shall be free to communicate with Escrow Manager who, in turn, will report to the Court through Registrar. Besides this, various other measures were also suggested to facilitate payment to the investors/debenture holders. However, the High Court order points out “there is no whisper as to the time within which the petitioner will clear the entire dues, which they have failed to for last 12 years.”
The High Court order comes in response to a petition emanating from an application preferred by the petitioner under Sections 391 – 393 of the Companies Act, 1956 that being a limited company incorporated under 1956 Act, it was carrying on agro-forestry based activities invited investment from the public in the years 1996, 1997 and 1998 and collected Rs.12296.98 lakhs under three different schemes. On coming into vogue the Securities and Exchange Board of India (Collective Investment Schemes) Regulations, 1999 on 15 October 1999; whereunder, a company like the petitioner had to either seek registration with SEBI by complying with various conditions of eligibility or to wind up the investment schemes.
Enbee choset to wind up. It formulated a scheme for closure of its investment schemes and for repayment of the amount due to investors. The repayment scheme envisaged issuance of redeemable optionally convertible debentures carrying on interest @ 10%. The debentures were redeemable in four equal annual installments commencing from June, 2000. The debenture was also divided in four parts, viz. A B, C and D. The investors not opting to redeem were to be allotted equity shares in the company. It was pointed out that the scheme was approved by 80% of the investors. Since the petitioner-company could raise funds to the tune of Rs.90.68 crores and thus, defaulted in repaying Rs.43.37 crores and interest of Rs.23.05. Even the directions by the SEBI on 14 February 2003 were not honoured by the petitioner.
2003 order under Section 11B of the SEBI Act 1992 read with Regulation 65 OF SEBI (Collective Investment Schemes) Regulations, 1999 in the matter of ENBEE PLANTATIONS LIMITED, BHOPAL
Securities and Exchange Board of India (hereinafter referred to as SEBI) vide its detailed order dated February 14, 2003 under section 11B of the SEBI Act, 1992 read with Regulations 65 of SEBI (Collective Investment Schemes) Regulations, 1999 directed Enbee Plantations Ltd. ( hereinafter referred to as the company ) to refund the money collected under its Collective Investment Schemes with returns which is due to the investors as per the terms of the offer within a period of one month from the date of the said order. It was also mentioned in the aforesaid order of SEBI that in case of failure of the company to comply with the Order of SEBI, actions as permitted under the SEBI Act 1992 and SEBI (Collective Investment Schemes) Regulations, 1999 would be adopted.
The aforesaid order of SEBI was forwarded to the company at its registered office address , vide letter dated February 24, 2003 and the copies were sent to the Chief Executive Officer and the Managing Director of the company. However, the order in original was sent to the company at its registered office and the copy of the order sent to its Managing Director were returned undelivered with the comments “ refused to accept”. The copy of the order sent to the Chief Executive Officer of the company was not returned as undelivered. The aforesaid order in original was again sent to the company at its alternate address on March 13, 2003 and copies of the said order were sent to its branch offices. SEBI also issued a Press Release on February 28, 2003 with respect to the above order issued by SEBI. It is observed that the company has failed to comply with the directions contained in the order dated February 14, 2003.
Therefore, in exercise of the powers conferred upon me under Section 11B read with Section 4(3) of the SEBI Act, 1992 and Regulation 65 of SEBI (Collective Investment Schemes) Regulations, 1999, I, hereby debar the company/its promoters /its directors /its managers/persons in charge of business of its schemes ( whose names and addresses are mentioned in the Annexure herewith ) from operating in the capital market and from accessing the capital market for a period of 5 years from the date of this order.
In case however, any aggrieved person, whose name is mentioned in the enclosed Annexure, was not aware of the previous order and the warning issued vide said order and was not responsible for the conduct of the business of the company, he may apply in writing, within 15 days, from the date of the order, with all the supporting documents, to SEBI.
This is without prejudice to SEBI’s right to take any other action as it may deem fit.
SECURITIES AND EXCHANGE BOARD OF INDIA
DATA OF THE PROSECUTION CASES LAUNCHED FOR VIOLATION OF SEBI (COLLECTIVE INVESTMENT SCHEME) REGULATIONS,1999 (As on 31st March 2011)
In the case filed by SEBI against Enbee Plantation, the accused beside Enbee Plantation, were Sandeep Maheshwari and five others.