Housewives of DLF: How the spouse factor led to Sebi crackdown
Reuters
While barring realty major DLF, its chairman KP Singh and five other senior executives from capital markets for three years, market regulator Sebi noted the role of three women it refers to as 'housewives' for their role in the matter and has revealed the complex dealings that go into real estate deals in India. (Read full text of order here)
The basis of the complaint against DLF was one Kimsuk Sinha who filed complaints in 2007 alleging that he had been duped of Rs 34 crore by Sudipti Estates Private Limited and related persons for the purchase of land.
He alleged that the firm was controlled by DLF Home Developers and DLF Estate Developers that were both part of DLF group and sought that the company not be allowed to list on the markets. However, the allegations were refuted by DLF, who said that the Sudipti Estates wasn't a part of the group.
However, Sebi in a show cause notice to the company noted that three real estate companies, Sudipti Builders, Felicite and Shalika lay at the heart of the controversy and the deals to acquire land.
In its show cause notices, the market regulator noted how three arms of DLF divested stake in Felicite to three 'housewives': Madhulika Basak, Niti Saxena and Padmaja Sanka all of whom happened to be wives of key managerial persons in DLF.
Here are the two charts that seek to explain the shareholding pattern:
Image courtesy: Sebi order
Image courtesy: Sebi order on DLF
Sebi in its show cause notices pointed out that despite divesting stake in the three companies, DLF continued to retain control of the three real estate companies, one of which was accused of fraud.
However, DLF refuted the show cause notice by Sebi saying that it wasn't illegal for a person to invest in a company's shares merely because she was a housewife or because a joint account held with her husband was being used to fund transactions.
"The fact that the spouses of certain employees of DLF were shareholders of Felicite does not lead to a legal inference that Felicite is a subsidiary of DLF," the company said in its submission.
The company also refuted the allegation that the 'housewives' continued to hold stake in one of the companies only while their husbands were employed by DLF. It pointed to the case of one Reema Hinduja who continued to be a shareholder in the company even after her husband quit the company and said that it was wrong to infer that the DLF had any control over the three real estate companies.
However, Sebi whole time member Rajeev Agarwal noted in his order that while it was an undisputed fact that the 'housewives' involved in the real estate companies used joint accounts with their husbands to fund the deals, the women who stake in the three companies weren't even regular investors.
"It is further noted that these 'Housewives' were not regular investors/traders in the
securities market and they did not have any income of their own," the Sebi order noted.
securities market and they did not have any income of their own," the Sebi order noted.
Sebi noted that the three women were the wives of the Group CFO, Senior Vice President (Finance) and Vice President (Finance) of DLF and the three executives were listed as key management persons in the company's prospectus for the IPO.
"They were also subject to the control of DLF due to their "employee and employer relationship". The respective wives held 100% shareholding of Felicite, which in turn held 100% shareholding in Shalika, which in turn held 100% shareholding in Sudipti. Therefore, it has been alleged that DLF never lost control of Felicite, Shalika and Sudipti," the order noted.
Sebi noted in its order that the purchase of all shares in Felicite were not made by the 'housewives' but their husbands and also pointed to the fact that the shares held by the women were only transferred to the wives of other senior management of DLF.
"In my view, it cannot be just a coincidence that Felicite is incorporated on March 26, 2006 with its 100% shareholding held by the wholly owned subsidiaries of DLF, those wholly owned subsidiaries subsequently sold their entire shareholding in Felicite to the 'Housewives' of three KMPs who made payments for the purchases made by their respective wives and subsequently, they transfer their entire shareholding to the DHDL (one of the three initial shareholders), wholly owned subsidiary
of DLF and the 'Housewives' of other KMPs," the order noted.
of DLF and the 'Housewives' of other KMPs," the order noted.
Sebi noted that the DLF management had employed a "plan, scheme, design and device to camouflage the association of DLF with its three subsidiaries namely, Felicite, Shalika and Sudipti" and noted that the realty major had actively concealed the filing of an FIR against one of the subsidiaries when it was filing for an IPO.
"In the facts and circumstances of this case, I find that the case of active and deliberate suppression of any material information so as to mislead and defraud the investors in the securities market in connection with the issue of shares of DLF in its IPO is clearly
made out in this case," the order noted.
made out in this case," the order noted.
Sebi noted that DLF suppressing the information about its subsidiary companies in its IPO filing constituted a grave offence and had larger implications on the safety and integrity of the capital markets.
"In my view, for the serious contraventions as found in the instant case, effective deterrent actions to safeguard the market integrity. It, therefore, becomes incumbent to deal with contraventions, digression and demeanour of the erring Noticees sternly and take appropriate actions for effective," the order noted while barring the DLF executives for three years.
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Sebi’s clampdown on DLF exposes India Inc’s dirty secret about subsidiaries
Reuters
Cases disposed off by Company Law Board have almost invariably a common thread running through them - the use of subsidiaries for dubious purposes. In fact, in the Indian context subsidiaries present a classic example of wheels within a wheel. There are companies with hundreds of subsidiaries as the Sebi order on DLF vividly brings out. Though in effect they are all subsidiaries, the multi-layering confers a sort of anonymity on some of the distant subsidiaries, so much so that the ultimate holding company glibly washes its hands off them and contends that it has nothing to do with them.
This is precisely what the saga of DLF all about as fas as its murky deals in the run up to the IPO in 2008 is concerned. Some of the companies, which were admittedly subsidiaries, morphed into independent entities having nothing to do with DLF with housewives of key managerial personnel of DLF becoming their shareholders. (Read more about that here)
Sebi's meticulous investigation showed that the housewives were just fronts for DLF---the money with which the housewives purchased the shares of these subsidiaries were in the final analysis provided by DLF. And these subsidiaries owned a sizeable part of the land bank, the major asset of DLF. The reason why DLF was coy about admitting that these companies indeed continued to be its subsidiaries was that many of the land owned by them were bedeviled by title disputes, a trade hazard of any realty company.
Subsidiaries lend themselves to misuse on two counts. First, plum assets are owned by them primarily for the promoters of the holding company and their associates. In other words, the non-promoter shareholders have no claim on such prime assets. Second, subsidiaries can be used to hide some of the disagreeable assets and liabilities of the holding company.
Since the IPO norms of the SEBI requires disclosure of material facts relating to both the issuing company and its subsidiaries, DLF had hastily de-subsidiarized these companies by roping in innocent housewives of its key managerial personnel. In fact, the SEBI verdict points out that around that time as many as 288 companies were banished so that they did not legally have anything to do with DLF, though de facto they were all DLF babies. The idea of such wholesale banishment was these companies holding dubious titles should not spoil the IPO party of DLF.
Incidentally, DLF succeeded in its mission---it pulled wool over everyone’s eyes, and walked away with more than Rs 9,000 crore with shares with a face value of Rs 2 issued at Rs 525. The merchant bankers to the issue happily went along with whatever DLF said or did not say in its prospectus. The Qualified Institutional Buyers who play the pied piper role in the Indian IPO market also did not think anything amiss in the feverish de-subsidiarization activity in the run up to the IPO. The biggest loser of course was the public which is now holding the can.
The Companies Act 2013 has done well to stop the wheel within the wheel within the wheel arrangement by prohibiting a subsidiary to be the holding company of another subsidiary. It has also done well to mandate presentation of consolidated accounts for holding companies which will bring out the true impact of financial transactions with their subsidiaries. However, neither the company law nor Sebi can stop companies that are not legally subsidiaries but effectively are, say by having stooges like housewives of key managerial personnel as the dominant shareholders. In other words, inconvenient subsidiaries could be dropped like hot potatoes at crucial times.
The SEBI order while making DLF and its promoters persona non grata in the securities market has not delisted the shares of DLF because it knew such a step would hurt the small investors more than anybody else. In a way this is poetic justice -- banishment from the securities market of those who tried to banish inconvenient subsidiaries!
Source : S Murlidharan; http://firstbiz.firstpost.com
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