SAT says control of NDTV not transferred to VCPL via loan agreement

Against the backdrop of an attempted takeover of NDTV by Adani Media Works, a Securities and Appelate Tribunal (SAT) order of July 20, 2022 assumes significance.

On Wednesday, NDTV's share price was hovering at Rs 388. The SAT has held that the loan agreement executed by the NDTV promoters with VCPL did not transfer control of NDTV to VCPL either directly or indirectly and, therefore, the findings given by the AO on the issue that the loan agreement is structured in such a way that in fact it transfers control to VCPL indirectly cannot be sustained. The findings in this regard were set aside.

The question which needs to be decided is, whether the minutes and the contents of the minutes of August 5, 2015 of the Board of Directors of NDTV was required to be disclosed 83 under Clause 36 of the listing agreement, SAT said in its July 20 order.

Read | NDTV says Adani entity's move to take control of shareholder 'without consent'

In the instant case, the AO has found that the information relating to VCPL loan agreements were material and price sensitive in nature on account of de facto control by VCPL.

"We have already held that there was no de facto control of VCPL on NDTV and, therefore, on this short ground the finding that the contents of the loan agreements were price sensitive in nature cannot be sustained," the Tribunal said.

"However, considering the peculiar structure of the loan agreement, coupled with the fact that the exercise of the warrant option or the call option if invoked would have a bearing on the performance/operations of the company and therefore, to that extent, when the matter was discussed in the minutes of the Boards' meeting on August 5, 2015, the said minutes should have been disclosed under Clause 36 of the listing agreement. Such disclosure would enable the shareholders and the public to take an informed decision on the investment or disinvestment in the securities of NDTV," SAT said.

In view of the aforesaid, we are of the view that NDTV by not disclosing the minutes of the meeting dated August 05, 2015 to the stock exchange violated Clause 36 of the listing agreement, SAT said.

Thus, while confirming the order of the AO only with regard to the violation of the Clause 36 of the listing agreement we find that the penalty of Rs 5 crore is excessive. A maximum penalty of Rs 1 crore could be imposed under Section 23A(a). In the given facts and circumstances of the case, and considering the factors involved under Section 23J of the SCRA is concerned, we find that the AO himself has held that the quantifiable gain or unfair advantage accrued to NDTV or extent of loss suffered by the investors as a result of the default cannot be computed. Consequently, the penalty for mere violation of non-disclosure under Clause 36 of the listing agreement cannot be penalized to the maximum amount quoted in the provision.

Considering the facts and circumstances, we are of the opinion that the penalty of Rs 5 crore is reduced to Rs 10 lakhs under Section 23A(a) of the SCRA, SAT said in an order.

In view of the aforesaid, the impugned order dated June 26, 2018 passed by the WTM in Appeal No. 293 of 2018 VCPL vs. SEBI cannot be sustained and is quashed. The appeal is allowed with no order as to costs.

Accordingly, the directions given by the WTM being excessive is set aside. Since a penalty has been imposed, we do not see any reason to issue any further direction under Section 11, 11B of the SEBI Act. The appeals are partly allowed with no order as to costs.

Appeal No. 80 of 2021 NDTV vs. SEBI against the order dated December 29, 2020 passed by the AO is partly allowed. The violation of Clause 36 of the listing agreement is upheld. However, the penalty of Rs 5 crores is reduced to Rs 10 lakhs, the SAT said.