FTIL puts firm foot down - FTIL challenges MCA’s petition firmly; Court stays MCA’s petition till March 11 which has been further extended till March 16

At the outset, embattled state of affairs can be dispelled with rectitude and mettle. FTIL toughly rebutted the Ministry of Corporate Affairs’ petition seeking supersession of the present board of directors of FTIL. Also, the Company Law Board (CLB) hearing that was to take place on 3^rd March, 2015, was stayed a day before, stating that it would be heard by the court on 4^th March, 2015, and no action will be initiated until then, according to the news reported by Business Standard on 2^nd March, 2015.

Further developments ensued, when the hearing took place before the court on 4^th March, 2015; the court adjourned the hearing till 11^th March, 2015 which has been further extended till March 16. In other words, the hearing for the petition filed by FTIL to stop the elimination of its board of directors, making FMC a party, will be heard on 16^th March, 2015. 

On 1^st March, 2015, Sunday, in the FT board meeting, a resolution was passed to oppose MCA’s petition to CLB seeking supersession of FTIL board strongly, terming it to be a clear attempt by MCA to render ineffective approach, and actually overthrow FTIL’s challenge and opposition to the proposed amalgamation of NSEL with FTIL.

“After considering on the matter and also considering that the issue is totally prejudice, mala-fide and not in the interest of FTIL its Board, its employees, its shareholders and other stake holders, we have decided to contest all issues raised by Union Of India vigorously as per the law of the land.”

Also, in the meeting, it was made clear that the material act of the new board since their joining has been its resolve to oppose the draft order and the proposed forced amalgamation by MCA, alluding such allegations of ‘mismanagement’ to be seemingly mala-fide and deserve to be challenged.

On the occasion, Mr.Venkat Chary, acting Chairman, FTIL, said, “After considering on the matter and also considering that the issue is totally prejudice, mala-fide and not in the interest of FTIL its Board, its employees, its shareholders and other stake holders, we have decided to contest all issues raised by Union Of India vigorously as per the law of the land.” He further added that as the Board is competent enough to deal with the current situation, the company will file a petition before the Honourable Bombay High Court or the Company Law Board or at any other appropriate forum as it deems fit.

In the meeting, It was further resolved that it is inequitable to seek replacement of the entire board since four legal suits are sub judice, which includes the representative suit, fit and proper and writ petition filed opposing amalgamation of NSEL with FTIL, as per the FTIL’s press note published on BSE website on 2^nd March, 2015.

FT also added in their press note that the board strongly believes that it has acted prudently in the larger interest of over 63000 shareholders.

It was further stated by the court that FTIL and its lenders are yet to file a reply to the MCA by 4^th March, 2015, stating why the NSEL-FTIL merger should not take place. FT has endeavoured to ply forward with grit to whittle out a trajectory, to legitimately protect the interests of all the shareholders, employees and other stakeholders.

Now, as per the latest developments that took place on 4^th March, 2015, the stay is retained by the court till 11^th March, 2015; the objective is to restrain the government, and seek reply from the ministry of corporate affairs.

 (Source 1 – 1. http://www.business-standard.com/article/markets/ftil-opposes-mca-s-petition-to-clb-for-removal-of-ftil-board-in-court-115030200113_1.html

2.  http://www.bseindia.com/xml-data/corpfiling/AttachLive/Financial_Technologies_(India)_Ltd_020315.pdf

3. http://www.business-standard.com/article/companies/hc-extends-stay-on-ftil-board-s-supersession-for-a-week-115030400890_1.html) 

Status Quo on Merger vacated – expected to imperil several stakes in one go

Who will reverse the irreversible after the damage is done? On 4 February, 2015, Bombay High Court vacated the status quo in the NSEL-FTIL merger order by the Ministry of Corporate Affairs (MCA). The court had ordered status quo in the matter on 27 November, 2014. Now, it has vacated its order allowing the government to pass a final order, after hearing from all stakeholders and parties viz. NSEL, FTIL, shareholders, creditors and others affected and related in the case. The decision was held by the two judge bench consisting of Justice V M Kanade and Justice Revati Mohite Dere.

The government was ordered to proceed with the hearings within 4 weeks and issue the final order within 4 weeks from then on, reported by Business Standard on February 4, 2015. As per the news reported, the order will become effective in two weeks from this time.

"In case of adverse order, however, the petitioner (FTIL in this case) may come back to the court. The final order would be kept in abeyance till the hearing continues in this court. The government's final order will be subject to the court's approval," the court said.

The government was perhaps in a hurry for action, thus acted in a breakneck speed on FMC’s recommendation of merger, on 21 October, 2014; it was a view and voice of myriad from the business world besides the media vents. It was time and again decried against by many, in vain. It was also denounced saying though the merger order was as per section 396 of the Companies Act, 1956, but it is usually done in the public interest, which was missing in this case.

On the occasion, incorporation of legal validity of the government’s order was urged for by Abhishek Manu Singhvi, NSEL’s senior counsel; he further questioned if it was in government’s jurisdiction to pass the merger order.

He argued saying, "Under Section 396 of the Companies Act, two public sector companies can be merged only in public interest provided the government is prima facie satisfied that the amalgamation will benefit shareholders and all concerned of the two companies which is absent in this case. While FTIL is a business oriented company with 63,000 shareholders with it, NSEL is a separate entity with no business and only liabilities. No rules in the world suggest merger of two legal entities with varied business interest." (As per the news report by Business Standard, February 4, 2015)

It was alleged by him that the government’s issued draft order, seemingly said to be the final order, was to protect the interest of 781 high net-worth investors (HNIs), whose total investments amount to 66% of the total defaulted sum of Rs. 5600 crore.

"The proposed merger order, if any, would be irreversible and hence would open a floodgate of litigations as a number of litigations of similar nature are pending before various courts."

Supplementing it, Janak Dwarkadas, another FTIL counsel said, “.. the government's draft order takes care of just 781 traders and completely neglects 63000 shareholders and 1500 employees of FTIL." (As per the news report by Business Standard, February 4, 2015)

Further, government’s counsel, Ranjit Kumar’s allegation that saving ‘Odin’ as FTIL’s core business and the sale of assets like Bourse Africa and Bahrain was in violation of the status quo order was rejected by the court.

On this, a Mumbai-based corporate lawyer reacted saying, "The proposed merger order, if any, would be irreversible and hence would open a floodgate of litigations as a number of litigations of similar nature are pending before various courts." (As per the news report by Business Standard, February 4, 2015)

(Source - http://www.business-standard.com/article/companies/bombay-hc-vacates-status-quo-order-on-ftil-nsel-merger-115020401320_1.html) 

Banks compete against FTIL-NSEL merger order

More revelations have arisen in a short span! But the latest news round-up is - Four banks that have extended loans to Financial Technologies (FTIL) have appealed to the high court to allow them to oppose the Ministry of Corporate Affairs’ (MCA) order to merge NSEL with FTIL, the parent company.

Times may have been turbulent for many in the recent past - for myriad businesses and organisations, yet some may still survive, if they are allowed to, given their credentials, growth and their commitment to protect their shareholders, investors, employees and, of course, the economy’s growth, to which they contribute, directly and indirectly.

According to the news that featured in Business Standard on  January 24, 2015, the banks have come forward, seeking court’s permission to intervene as opposition to the government’s merger order, and they are - Syndicate Bank, DBS Bank, Union Bank and Standard Chartered Bank. The plea was filed by them in December, 2014; they were asked to file a detailed reply by February 4, 2015, which happens to be the next date of hearing, by the high court.

The whole episode got flared up by the government’s order on the recommendation by the Forward Markets Commission (FMC) and the department of economic affairs. In the hearings, the outcome has been status quo thus far, as per the high court’s discretion, until it hears the arguments from both sides that are for and opposed to the merger order.

On occasions, FTIL has said that the idea is unsettling and uncalled-for, as the defaults of the subsidiary wing would be transferred to FTIL, which will have an adverse impact on it, specifically, affecting its shareholders’ interests and stakes. Also, several of the media vents and news agencies through their mouth pieces have voiced it out time and again, and it reverberates yet again.

Highhandedness of several will have only remnants from devastation to offer to people and future investors. Yet diligent, upright organisations will eke out a living. The only tenable elements would be the mettle to subsist, truthfulness to stand strong; indomitability and intent to protect numberless interests of shareholders, investors, employees and the economy at large.

It would, undeniably, be more unnerving if one had to imagine emasculation of a healthily burgeoning company, and the liabilities imposed on its investors that may have not invested for it. The tumbling impact of this would have steamrollers run on countless aspirations.

(Source - http://www.business-standard.com/article/finance/four-banks-oppose-nsel-ftil-merger-in-high-court-115012400048_1.html) 

Extended to yet ‘Next’ – NSEL - FTIL merger proceeds will stay as is where is - till Feb 4.

Status quo continues. Bombay HC has extended the stay on government’s NSEL-FTIL merger order till 4 February, 2015.

Perhaps new hopes elevated; the position is still as it is where it was; if it will mark a sublime beginning of the conclusion, is the question. Contrary to the unanimous views that emanated from a vast majority of the business fraternity and media spigots, the government has been steadfast in calling for an unwarranted merger of NSEL with FTIL, on 23 October, 2014. This caused a maelstrom of happenings all over, quaking business moorings and economy at large.

As scheduled, the hearing took place on 22 December, 2014, before Justice VM Kanade. The NSEL Investors Forum (NIF) was issued a notice for contempt of court; as the said forum had made allegations against the said Justice that he could be biased as his son had appeared for a nominee director of PD Agroprocessors, who is one of the defaulters in NSEL.

Who’s to judge whose integrity? Has faith in the judiciary among people dwindled, or is it just prejudicing to doubt eminence? But to affirm that justice is alive and omnipotent, the faith of both Forward Markets Commission’s (FMC) and Ministry of Corporate Affair’s (MCA) counsels in the judge was evident and audible in the court. They confirmed their acquiescence to it, reflecting their conviction and trust when they were asked if they had any objection, by the judge offering to recuse himself, if they had any.

On previous hearings, FTIL’s counsel Abhishek Manu Singhvi contended saying that the draft order for the amalgamation was issued under section 396 of the Companies Act and extended his argument stating that the merger needs to be approved by the boards of both the companies in question, along with the approval of ROC and Official Liquidator’s (OL) nod.

With hindsight, it was a recommendation by FMC and the department of economic affairs that triggered a shockwave which was followed by the government’s draft order for merger. The aim maybe to haste the merger, but it is, as debated all over, bound to dilapidate the scene adversely, and it is inimical for the economy and entrepreneurial growth at large. FTIL’s argument has been that the uncalled-for amalgamation will unavoidably transfer the default of NSEL to FTIL.

The fallout will prove to be "wet blanket" resulting in haplessness, plaguing the scene with waning interest among existing stakeholders, employees of the parent company, besides dismaying new investors across-the-board.  

Supreme Court dismisses SLP against Jignesh Shah’s bail

Pursuits defanged; efforts for special leave petition against Jignesh Shah’s bail order stymied

The scenes seem more ratcheted with the goings-on. Getting in the act, the efforts made by several trading clients of the crisis-hit NSEL was to reap self-desired fruition - by challenging the bail granted to Jignesh Shah, the promoter of FTIL by the Bombay high court, on 22^nd August, 2014, in the Supreme Court. Earlier this year, in August, Justice Abhay Thipsay of Bombay HC had granted bail to Jignesh Shah. 

Ultimately, the Supreme Court quashed the plea of the trading clients on Monday, 17^th November, 2014. What’s more; the state of Maharashtra wasn’t even issued notices by the bench that comprised Justice Pinaki Chandra Ghose and R K Agarwal.

To peal the overhang of the past happenings, trading clients exercised expedience. Discernibly, the appeal was in vain, when the SC quashed their special leave petition on Monday. It was flatly dismissed with no relief grant to them. Retrospectively, Justice Thipsay granted bail to Jignesh Shah, additionally stating that his custody was not necessary anymore for further investigation.

The HC then, in its judgement, pronounced saying, “Though termed as a "Rs 5000 crore NSEL scam", it is not that monies were received by NSEL, but they have gone from one bogus trader (investor) to another bogus trader (borrower).”

On another occasion, hearing on Forward Markets Commission’s mid-December order, last year, asserting that FTIL was ‘not fit and proper’ to hold shares in MCX or any other entity was before Judge S J Vazidar, last week.

On the occasion, Abhishek Manu Singhvi, FTIL’s counsel, said that the FMC’s order was implemented by the SEBI (Securities Exchange Bureau and Central Electricity Regulatory Commission (CERC) and constrained the company to go for a harried sale of its stakes in IEX, MCX and MCX-SX, which adversely impacted the companies’ valuation, entailing FTIL an enormous loss of over Rs. 1000 crore. In other words, the exits were, in a way, enforced ones, making the company face the brunt of financial damages.

“The FMC order was also being used by the government to forcibly merge the crisis-struck National Spot Exchange Limited (NSEL) with FTIL.”

FTIL’s argument was that the overall exit and sale of stakes have been ominously unsavoury; firstly, a loss of Rs. 291 crore in MCX; then Rs.250 crore lost in IEX and Rs.280 crore lost in the sale of MCX-SX stake. Furthermore, losses of Rs.11 crore from stake in Bourse Africa and Bahrain Financial Exchange incurred by the company steamrolled the state of affairs.

Counsel Singhvi’s view is – “the FMC order was also being used by the government to forcibly merge the crisis-struck National Spot Exchange (NSEL) with FTIL.”

FTIL was steadfast in filing a Writ Petition in the Bombay High Court against the government’s order to amalgamate NSEL with FTIL.

Also, the news featuring on Business Standard on 13^th Nov. 2014, reads, “FTIL also argued the fit and proper order did not specify the penalty for FTIL. This came six months later, forcing them to exit MCX at a loss.”

Unjust demeanour is evident; prejudices of sorts supersede the course of law, leaving mere footprints of agony for the present and future investors. It’s for us to muse earnestly if all of this is benign or malignant to the health of the economy at large. 

Supreme Court today dismissed the SLP filed by the trading clients challenging the Bombay High Court's Order dated 22.8.2014 granting bail to Mr Jignesh Shah.

NSEL-FTIL merger proposal- Standards ruptured. How Satyam case is different from FTIL’s.

Appalling ideas wished-for, to further impose on FTIL! Earlier, it was the proposed idea of NSEL-FTIL merger by Forward Markets Commission, which was subsequently ordered by the Ministry of Corporate Affairs (MCA); then taking possession of FTIL management has been on government’s anvil. Now, is it just getting arms over resources or getting the claws into the healthily operational organisation, for which the activism is being sped up?

“The government owes the nation an explanation as to why and on what grounds the Forward Markets Commission (FMC) has been making these proposals to breach FTIL’s limited liability……..”(Source – EconomicTimes, Oct. 28, 2014. Edit, PageNo.16).

Would there be a tenable reasoning to all that the nation is looking up for. Also, suggests the excerpts of the Economic Times’ edit page titled “Who’s Targeting FTILBreaching all Norms?”It reads as –“It is entirely unwarranted to do a Satyam on FTIL, on the pretext of speeding up the process of recovery from the defaulting traders of NSEL.

The government owes the nation an explanation as to why and on what grounds the Forward Markets Commission(FMC)has been making these proposals to breach FTIL’s limited liability when no wrongdoing or improper pecuniary gain has yet been established against its management and when there are clearly identified defaulters who carried out trades with non-existent underlying stocks and whose obligation to pay is beyond dispute? And why have the ministries of law and corporate affairs been indulging in these patently misconceived demands by the FMC?”

As it has been talked on countless forums that the Economic Offences Wing (EOW) has identified and frozen the assets of the defaulters and a panel has been set up by the Bombay High Court for recovery, what’s the panic to merge and take over all about? But what’s more stroppy is that the hounding actions taken on Satyam are being proposed for FTIL.

Straightforwardly, these are two diverse gears! There are contrasting events in both the cases, thus no parity can be drawn between the two. FTIL’s case cannot be labelled as a corporate scandal.

Here are some contrasting reasons as to how FTIL’s case is far different from Satyam’s, in detail:

Firstly, in the case of Satyam, the promoter had confessed in writing to the regulator of his wrong-doings, whereas there was vehement and consistent denial by the promoter of FTIL, of any wrong-doings whatsoever. The matter of his culpability is sub-judice. Also, the question whether NSEL itself is liable for the trading losses incurred by the 13,000 clients of the brokers who traded on the NSEL platform for higher returns (“Trading Clients”) is currently sub-judice before the Bombay High Court. Hence, the question of FTIL being held liable through piercing the corporate veil does not arise.

Secondly, Satyam’s promoter confessed siphoning-off the company’s funds to his realty firm Maytas infra. Whereas in the case of FTIL, even after 12 months of investigation byEOW, ED and CBI, not a single paisa of the Trading Clients’ money traced eitherto NSEL, Mr. Jignesh Shah or FTIL. On the contrary, the entire money of the Trading Clients (i.e. Rs. 5,500 Crores) has been traced to 22 Defaulters who used that for repaying loans, working capital requirements, real estate and luxury cars. In fact, 85% of the Trading Clients’ money is with just 7 Defaulters. Both the above aspects confirmed by the Bombay High Court’s Order of 22 August 2014 granting bail to Mr. Jignesh Shah.

Thirdly, Satyam’s promoter confessed fudging of books of account of Satyam. But in FTIL’s case, No major irregularities found in the ROC’s inspection of FTIL. FTIL audited by one of the Big-4 accounting firms which has not found any irregularities in FTIL’s accounts so far. Further, no loan defaults by FTIL till date have been found. FTIL was granted licenses to set up exchanges by Indian regulators (such as SEBI, CERC, FMC) and overseas regulators such as Singapore, Dubai, Mauritius, Bahrain etc. after thorough due-diligence and background check of the company and its promoters.

Thus, in the case of Satyam, there was a fraud in the company (i.e. Satyam) itself perpetrated by the promoters who were also in management. Hence, the remedy was to change the management- whereas in the case of FTIL, no fraud has been detected by the courts or investigating agencies. It is a case of payment and settlement defaults at FTIL’s subsidiary NSEL due to the 22 Defaulters failing to honor their pay-in obligations towards NSEL. Hence, the remedy lies in chasing these Defaulters and ensuring recovery of the Trading Clients’ monies from them.

In spite of all that, the actions are planned to be cuffed on FTIL. The sanctity of limited liability is expected to hobble with such actions, and it’s been time and again voiced out by numerous media houses. ‘Coming up good times’, as the colloquial more coined now and then - will it see the times when norms and laws are not violated, and also, the rights and ‘limited liability’ privileges of the investors across-the-board are protected, by even-handed outlook.

FINANCIAL TECHNOLOGIES INDUCTS MR. BERJIS DESAI AND MR. ANIL SINGHVI ON ITS BOARD OF DIRECTORS

Link- http://bit.ly/111SFVZ

Unprecedented Shocker - NSEL-FTIL merger

NSEL – FTIL amalgamation is supposed to be an unnerving move for all, juddering establishments and tenets of law - particularly, the Companies Act. Outnumbering excerpts of myriad media releases and stories have been of the view, and have articulately indicated that frequently. 

As one in the Business World editor’s note reads as - “As per the order of the Ministry of Corporate Affairs, NSEL will have to merge with FTIL and lose its existence. As a result, FTIL will have to bear the consequences of the Rs 5,574-crore fraud. The owners of the remaining 55 per cent will also bear the brunt. This goes against the fundamentals of limited liability. The reason so many companies register themselves as ‘limited’ is because shareholder’s liability is limited to the investment in the company.” Most in the business and media realm are crestfallen by the move. Beyond principles, the most startling side is how a limited company can be liable for another company’s liabilities.

Clearly, the shockwave is unprecedented for various reasons. First - the legal proceeds ascertained that there has been no trail of money leading to the promoters of the company. Second - It is also seen as a pre-judgement of Bombay High Court’s order, wherein the case is still being pursued, and the matter is sub-judice. Third - As the whole pursuit has been for recovery of trading clients’ monies, recently a historic order was passed by the Bombay High Court to form a 3-member committee that will determine the assets of the defaulters - this, obviously, came as a reprieve for the trading clients of NSEL. Thus the merger call by the MCA defeats the fundamental edifice of limited liability which is the basic principle of company law; as the law has been laid down to ensure limited liabilities are efficiently and impeccably managed.

“As per the order of the Ministry of Corporate Affairs, NSEL will have to merge with FTIL and lose its existence. As a result, FTIL will have to bear the consequences of the Rs 5,574-crore fraud. The owners of the remaining 55 per cent will also bear the brunt.

This goes against the fundamentals of limited liability. The reason so many companies register themselves as ‘limited’ is because shareholder’s liability is limited to the investment in the company.” (Source –Editor’s Note, Business World)

Experts may be of the opinion that the move may inflate the potential of raising questions at the country’s highest court  - ‘if the law is being abided by’ or being bent based on bureaucrats’ decisions? If yes, then the merit of law perhaps is being subverted out of prejudices. Then, for sure, it can be said as ‘the off beam precedent’ will undermine the sanctity of the ‘limited liability.’ 

FTIL - NSEL Merger – A marring move

In the wake of government’s proposal to revamp FTIL board following its order to merge NSEL with FTIL last week, the business community at large cedes it to be starkly unsavoury. The move has been debated on various media mouthpieces calling it unwarranted or “a bad precedent.” It has been countered by FTIL maintaining all the while that all efforts pertaining to recovery are being diligently escalated. Also, FTIL is a healthily functional company with the strength of over 1000 employees and over 60,000 shareholders; therefore, persecuting FTIL will be prejudiced and uncalled-for, for expediting recovery from the defaulters.

The outcry has gone unheard, and the merger proposed by Forward Market Commission (FMC) is believed to culminate, making all those who haven’t invested for it bear the brunt of liability. The massively voiced standpoint ‘why to foist one’s liability on the other’ has gone unheeded. The merger will not only have a tumbling impact on the tradition of limited liability - mainly, on the corporate India, but it will also discourage investors from investing in various portfolios, impacting the economy adversely. It is also viewed as the nosedive of defaulters to the extent of duping trading clients is being ignored, besides disregarding FTIL’s diligent recovery efforts.  

What’s more thwarting is that there’s no charge against the company itself, with no trace of fund squandering even to the promoters, yet the move has been initiated. Needless to say, the sanctity of the bourse and markets is being imperilled, setting a wrong precedent. On various occasions during the proceeds of the case, Bombay HC’s observation on some portraying as traders, being sceptical about their legitimacy as traders has been emphasised time and again, which has also been utterly condoned.

More precisely, Limited Liability of a parent company determines the amount of money and resources the company has invested in its subsidiary company; this emerges as the straightforward norm of modern financial officialdom, which is seen as being “violated and forsaken” and, principally, believed to send wrong indication to present and future investors. Thus, it will have a surging effect on the economy, as the ‘limited liability’ model is an indispensable offshoot to propel entrepreneurship and investment.

It is commonly viewed that a small section of trading clients claiming their money may not constitute a vast majority of people, thus the parity of ‘public interest’ action is far from being apt to the Companies Act provision, especially, in this scenario. The protection of public interest mechanism is equally workable across-the-board; therefore, safeguarding interests of parent company’s shareholders, employees and stakeholders at large is as much essential, which is being overlooked. As a result, to protect a handful of brokers of the crisis-hit NSEL, staking a colossal cluster of 60,000 investors and over 1000 employees of FTIL, is simply based on a decision of the bureaucracy. How far it is wise to substitute FTIL’s stakeholders’ liabilities and interests for NSEL’s, needs a relook, and a popular perspective.