WTM/PS/62/ERO/IMD/OCT/2015

BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA

CORAM: PRASHANT SARAN, WHOLE TIME MEMBER
ORDER
Under sections 11, 11(4), 11A and 11B of the Securities and Exchange Board of India
Act, 1992
In the matter of Sunheaven Agro India Limited
In respect of:
1. Sunheaven Agro India Limited [CIN: U01400WB2009PLC138649],
2. Mr. Suranjan Mondal [PAN: ARVPM0151E],
3. Mr. Kashi Nath Chanda [PAN: AGHPC3011C],
4. Mr. Mrityunjay Bar [PAN: AMDPB4850A],
5. Mr. Pijush Kanti Jana [PAN: AFOPJ5148P],
6. Mr. Madhab Chandra Das [PAN: AHXPD5528L],
7. Mr. Khokon Biswas [PAN: AIYPB1370J],
8. Mr. Provash Bala [PAN: AUTPB3478J],
9. Mr. Kanai Lal Pramanik [DIN: 02744054] and
10. Mr. Ganesh Dam [PAN: ADUPD3470E]
_______________________________________________________________________
Date of Hearing: April 22, 2015
Appearance:
For Noticees: 1. Mr. Bichitra Nanda Muni, Advocate for Sunheaven Agro India Limited, Mr.
Madhav Chandra Das, Mr. Khokon Biswas, Mr. Provash Bala, Mr. Kanai Lal
Pramanik and Mr. Ganesh Dam
2. Mr. Kalicharan Maity, authorized representative of Mr. Pijush Kanti Jana
and Mr. Suranjan Mondal
For SEBI:

Ms. Soma Majumdar, General Manager,

Mr. N. Murugan, Assistant General Manager,
Ms. Nikki Agarwal, Assistant Manager.
_______________________________________________________________________
1.

Securities and Exchange Board of India (hereinafter referred to as SEBI), vide an exparte interim Order dated November 20, 2014 (hereinafter referred to as the interim
order) had observed that the company, Sunheaven Agro India Limited (hereinafter
referred to as Sunheaven or the Company) is prima facie engaged in fund mobilising
Page 1 of 17

activity from the public, by making offer and issuing Redeemable Preference Shares
(hereinafter referred to as RPS) and had allegedly violated the provisions of Sections
56, 60 [read with Section 2(36)], 73 of the Companies Act, 1956 read with the
Companies Act, 2013. In order to protect the investors who have subscribed to the
impugned offer and issue of RPS and to prevent the Company from further carrying
on with its fund mobilizing activity under the offer of RPS, SEBI had issued the
following directions:

6. In view of the foregoing, I, in exercise of the powers conferred upon me under Sections 11,
11(4), 11A and 11B of the SEBI Act, hereby issue the following directionsi. SHAIL shall not mobilize funds from investors through the Offer of Redeemable
Preference Shares or through the issuance of equity shares or any other securities, to the
public and/or invite subscription, in any manner whatsoever, either directly or indirectly
till further directions;
ii. SHAIL and its present Directors, viz. Shri Madhab Chandra Das, Shri Khokon
Biswas, Shri Provash Bala, Shri Kanai Lal Pramanik and Shri Ganesh Dam
including its past Directors, viz. Shri Suranjan Mondal, Shri Kashi Nath Chanda,
Shri Mrityunjay Bar and Shri Pijush Kanti Jana, are prohibited from issuing prospectus
or any offer document or issue advertisement for soliciting money from the public for the
issue of securities, in any manner whatsoever, either directly or indirectly, till further
orders;
iii. SHAIL and its abovementioned Directors, are restrained from accessing the securities
market and further prohibited from buying, selling or otherwise dealing in the securities
market, either directly or indirectly, till further directions;
iv. SHAIL shall provide a full inventory of all its assets and properties;
v. SHAIL's abovementioned Directors shall provide a full inventory of all their assets and
properties;
vi. SHAIL and its present Directors shall not dispose of any of the properties or alienate
or encumber any of the assets owned/acquired by that company through the Offer of
Redeemable Preference Shares, without prior permission from SEBI;
vii. SHAIL and its present Directors shall not divert any funds raised from public at large
through the Offer of Redeemable Preference Shares, which are kept in bank account(s)
and/or in the custody of SHAIL;
viii.
SHAIL shall furnish complete and relevant information in respect of preference
shares (as sought by SEBI letters dated July 30, 2013 and January 31, 2014), within
21 days from the date of receipt of this Order.
7. The above directions shall take effect immediately and shall be in force until further orders.

9. This Order is without prejudice to the right of SEBI to take any other action that may
be initiated against SHAIL and its abovementioned past and present Directors in
accordance with law.
Page 2 of 17

2.

The interim order observed that the prima facie observations made therein were on the
basis of the information obtained from the 'MCA 21 Portal' and the documents
received from the complainants. The interim order advised the Company and its
directors that they may file their replies within 21 days from the date of receipt of the
order and also to seek an opportunity of personal hearing.

3.

The interim order was forwarded to the Company and its directors, Mr. Suranjan
Mondal, Mr. Kashi Nath Chanda, Mr. Mrityunjay Bar, Mr. Pijush Kanti Jana, Mr.
Madhab Chandra Das, Mr. Khokon Biswas, Mr. Provash Bala, Mr. Kanai Lal Pramanik
and Mr. Ganesh Dam (hereinafter collectively referred to as the noticees) vide letter
dated November 20, 2014. The letters issued to the Company and its directors, Mr.
Suranjan Mondal, Mr. Madhab Chandra Das, Khokon Biswas, Mr. Provash Bala, Mr.
Kanai Lal Parmanik and Mr. Ganesh Dam had returned undelivered.

4.

The noticee namely Mr. Kashi Nath Chanda vide his letter dated December 04, 2014,
submitted his reply which was taken on record. As no other reply was received, SEBI
proceeded further and granted an opportunity of personal hearing to the Company
and its directors on April 22, 2015, the same was communicated vide the public notice
dated April 14, 2015 in the newspaper namely Anand Bazar Patrika and on April 15,
2015 in the newspaper namely Times of India. The Company and its directors were
advised that in case they fail to appear before SEBI on the aforesaid date, then the
matter would be proceeded ex-parte on the basis of material available on record. On
the date of personal hearing, Mr. Bichitra Nanda Muni, Advocate appeared for
Sunheaven Agro India Limited and its directors namely Mr. Madhab Chandra Das,
Mr. Khokon Biswas, Mr. Provash Bala, Mr. Kanai Lal Pramanik and Mr. Ganesh Dam
and had submitted the reply dated April 22, 2015. The same was taken on record.
On the date of hearing, one Mr. Kalicharan Maity also appeared as authorized
representative of Mr. Pijush Kanti Jana and Mr. Suranjan Mondal. During the course

Page 3 of 17

of personal hearing, he had filed a copy of the reply dated July 14, 2014, of the noticee
namely Mr. Pijush Kanti Jana and Form 32 pertaining to Mr. Suranjan Mondal.
Other noticees namely Mr. Kashi Nath Chandra and Mr. Mrityunjay Bar had failed to
turn up for the personal hearing. SEBI, in the meantime, had received a letter dated
April 28, 2015 from one Mr. Subhasis Chakraborty, advocate, who while writing on
behalf of the noticee namely Mr. Kashi Nath Chandra requested for another
opportunity of personal hearing and a time of 30 days for submitting the information
regarding the entire affairs. As no further details were received from the said noticee
even after the 30 days and considering the reasonable opportunities already afforded
to the Company and its directors for making the submissions in the matter, the matter
is being proceeded further as against the noticees on the basis of the material available
on record.
5.

The submissions of the noticees, in brief are as under:

i. The Company vide its letter dated April 22, 2015, through its advocate, filed the list
and copies of the title deeds of the properties owned by it and submitted as under:
a. The Company has complied with the directions contained in the interim order.
b. The Company has already stopped all activities of mobilizing funds through the
issuance of RPS since March 31, 2013.
c. The Company has repaid an amount of 4,27,10,600 out of the total amount of
11,99,99,900 and has submitted the Form SH-7 with the Registrar of Companies,
West Bengal.
d. The Company requested SEBI to lift the embargo as mentioned in the interim order
regarding disposal/ sale of the properties and sought time for completion of the
redemption process.

ii. Mr. Kashi Nath Chanda vide his letter dated December 04, 2014 and another letter
received by SEBI on April 28, 2015 (through Mr. Subhasis Chakraborty, advocate),
submitted as under:

Page 4 of 17

a. He had deposited 5,50,000 with the Company and had become an agent of the
said Company. He had also given a loan of 2,50,000 to the Company.

b. By misrepresentation/ false statement he became the director of the Company.

Later on becoming aware of the activities of the Company, he had resigned on
January 15, 2013. His resignation was accepted on January 29, 2013.

c. He had no financial share in the Company.

6.

Thereafter, SEBI also received a letter dated April 22, 2015, from one Mr. Subhasis
Chakraborty, advocate writing on behalf of Investors and Agents of Sunheaven Agro
India Group of Companies alleging therein that the chairman, directors and executives
of the Company had raised funds illegally on the basis of business of ponzi schemes.
Vide this letter, the said advocate also submitted the details of the group companies of
Sunheaven Agro India Limited and requested to initiate appropriate action against
these.

7.

I have considered the interim order, the submissions of the Company, Mr. Kashi Nath
Chanda and the material available on record. The following are the observations from
the interim order:

i.

SHAIL was incorporated on October 1, 2009, with the ROC, Kolkata, with CIN
No. as U01400WB2009PLC138649. SHAIL has its Office at 36/1 Jessore
Road, Champadali More, Barasat, Kolkata700124, West Bengal, India.
ii. The present Directors in SHAIL are Shri Madhab Chandra Das, Shri Khokon
Biswas, Shri Provash Bala, Shri Kanai Lal Pramanik and Shri Ganesh Dam.
iii. Shri Suranjan Mondal, Shri Kashi Nath Chanda, Shri Mritynjay Bar and Shri
Pijush Kanti Jana, who were earlier Directors in SHAIL, have since resigned.
iv. Form 2 (Form for Return of Allotment filed by SHAIL with the ROC in accordance
with the provisions of the Companies Act, 1956, for the Financial Years 200910,
201011, 201112 and 201213), revealed that the company issued and allotted
Redeemable Preference Shares ("Offer of Redeemable Preference Shares"),
details of which are provided belowYear

2009- 10
2010-11

Date of
allotment

15.01.2010
29.03.2010
07.05.2010

Type of
Security

No. of
No. of persons to Total Amount
Securities
whom issued
()
Issued
(Approximate)
60700
56
607000
246550
**10
2465500
238900
161
2389000

Page 5 of 17

21.06.2010
21.08.2010
06.10.2010
25.11.2010
29.12.2010
30.12.2010
25.05.2011
20.06.2011
25.06.2011
15.09.2011
08.12.2011
16.02.2012
22.02.2012
27.03.2012
05.06.2012
20.11.2012
22.08.2012

194900
218
1949000
348830
402
3488300
165520
184
1655200
202440
205
2024400
304780
259
3047800
Preferenc
202440
205
2024400
e Shares
2011-12
845310
659
8453100
of 10
578160
413
5781600
178400
227
1784000
396750
291
3967500
1154910
713
11549100
1186940
456
11869400
1190490
836
11904900
1077140
884
10771400
2012-13
1131370
791
11313700
381155
237
3811550
908595
575
9085950
1,09,94,280
Total
7,772 10,99,42,800
**On 29.03.2010, the company filed scanned copy of only one page of list of preference
shareholders which consist of 10 persons. 13100 preference shares were allotted to those 10
persons. The details pertaining to allotment of the remaining preference shares i.e. 2452400
(2465500-13100) were not available on the MCA 21 Portal.

v. From the Balance Sheet filed by SHAIL with the ROC, Kolkata, it is observed that
the company also collected 0.55 Crores through share application money (pending
allotment) during the Financial Years 200910 and 201011.

8.

I note that the Company has not disputed the observations and the allegations made
against it and its directors in the interim order. The interim order alleged that the
Company had issued and allotted RPS to about 7,772 individuals/ investors and had
mobilized funds amounting to about 10.99 crore during the financial years 2009-10,
2010-11, 2011-12 and 2012-13, without complying the public issue norms as
stipulated under Sections 56, 60 read with Section 2(36) and 73 of the Companies Act,
1956. Further, the Company was also found to have collected 0.55 crore as share
application money (pending allotment) during the financial years 2009-10 and 201011. The interim order had also alleged that the Company, by issuing shares to more than
49 persons, had made a public issue of RPSs in terms of the first proviso to Section
67(3) of the Companies Act, 1956. It has also been noted from the Form 2 that the
allotment of RPS had happened during the Financial Years 2009-10, 2010-11, 2011-12
and 2012-13.
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9.

In order to ascertain whether an issue of securities is a 'public issue' or done on 'private

placement', it is necessary to make a reference to Section 67(3) of the Companies Act,
1956, which reads as under:
67. (1) Any reference in this Act or in the articles of a company to offering shares or
debentures to the public shall, subject to any provision to the contrary contained in this Act
and subject also to the provisions of sub-sections (3) and (4), be construed as including a
reference to offering them to any section of the public, whether selected as members or debenture
holders of the company concerned or as clients of the person issuing the prospectus or in any
other manner.
(2) ...
(3) No offer or invitation shall be treated as made to the public by virtue of sub- section (1)
or sub- section (2), as the case may be, if the offer or invitation can properly be regarded, in
all the circumstances(a) as not being calculated to result, directly or indirectly, in the shares or debentures becoming
available for subscription or purchase by persons other than those receiving the offer or
invitation; or
(b) otherwise as being a domestic concern of the persons making and receiving the offer or
invitation
Provided that nothing contained in this sub-section shall apply in a case where the offer or
invitation to subscribe for shares or debentures is made to fifty persons or more:
Provided further that nothing contained in the first proviso shall apply to non-banking
financial companies or public financial institutions specified in section 4A of the Companies
Act, 1956 (1 of 1956).
In terms of Section 67(3), as amended by the Companies (Amendment) Act, 2000, with
effect from December 13, 2000, no offer or invitation shall be treated as made to the public
by virtue of sub-sections (1) or (2), as the case may be, if the offer or invitation can
properly be regarded, in all circumstances - (a) as not being calculated to result, directly
or indirectly, in the shares or debentures becoming available for subscription or
purchase by persons other than those receiving the offer or invitation; or (b) otherwise
as being a domestic concern of the persons making and receiving the offer or
invitation. More importantly, in terms of the first proviso to the aforesaid section, the
provisions of Section 67(3) shall not apply in a case where the offer or invitation to
subscribe for shares or debentures is made to fifty persons or more. Therefore, the
number of subscribers becomes relevant to decide whether an issue of shares are for
public or on a private placement basis. In view of the same, if an offer of securities are
made to fifty or more persons, it would be deemed to be a public issue.
Page 7 of 17

10.

The Hon'ble Supreme Court of India in the matter of Sahara India Real Estate
Corporation Limited & Others Vs. SEBI and another (Civil Appeal Nos. 9813 and
9833 of 2011; decided on August 31, 2012) (the Sahara case) had inter alia held that
Section 67(1) deals with the offer of shares and debentures to the public and Section 67(2)
deals with invitation to the public to subscribe for shares and debentures and how those
expressions are to be understood, when reference is made to the Act or in the articles of a
company. The emphasis in Section 67(1) and (2) is on the section of the public. Section
67(3) states that no offer or invitation shall be treated as made to the public, by virtue of
subsections (1) and (2), that is to any section of the public, if the offer or invitation is not
being calculated to result, directly or indirectly, in the shares or debentures becoming available
for subscription or purchase by persons other than those receiving the offer or invitation or
otherwise as being a domestic concern of the persons making and receiving the offer or
invitations. Section 67(3) is, therefore, an exception to Sections 67(1) and (2). If the
circumstances mentioned in clauses (1) and (b) of Section 67(3) are satisfied, then the
offer/invitation would not be treated as being made to the public.
The first proviso to Section 67(3) was inserted by the Companies (Amendment) Act, 2000
w.e.f. 13.12.2000, which clearly indicates, nothing contained in Sub-section (3) of Section
67 shall apply in a case where the offer or invitation to subscribe for shares or debentures is
made to fifty persons or more.
Resultantly, if an offer of securities is made to fifty or more persons, it would be deemed to be
a public issue, even if it is of domestic concern or proved that the shares or debentures are not
available for subscription or purchase by persons other than those received the offer or
invitation.
I may, therefore, indicate, subject to what has been stated above, in India that any share or
debenture issue beyond forty nine persons, would be a public issue attracting all the relevant
provisions of the SEBI Act, regulations framed thereunder, the Companies Act, pertaining
to the public issue.

11.

It can be seen that the number of persons to whom RPS were allotted clearly exceeded
49. Therefore, considering the number of persons from whom monies were mobilised
by the Company by issuing RPSs, which is definitely more than 49 persons, it can be
concluded that the Company had made a public issue of RPS in terms of the first proviso
to Section 67(3) of the Companies Act, 1956.

12.

By making a public issue of RPS, as discussed above, the Company was mandated to
comply with all the legal provisions that govern and regulate public issue of such
securities, including the Companies Act, 1956 and the SEBI Act and regulations. In

Page 8 of 17

this context, I refer and rely on the below mentioned observation made by the Hon'ble
Supreme Court of India in the matter of Sahara case:
... ... that any share or debenture issue beyond forty nine persons, would be a public issue
attracting all the relevant provisions of the SEBI Act, regulations framed thereunder, the
Companies Act, pertaining to the public issue.
13.

In view of the above observations, by virtue of Section 55A(a) and (b), the SEBI has
jurisdiction and would govern the issue of RPS as the same was made to more than 49
persons. As alleged in the interim order, the Company was mandated to comply with
the provisions of Sections 56, 60 and 73 of the Companies Act, 1956 in respect of its
offer and issue of RPS. In terms of Section 56(1) of the Companies Act, 1956, every
prospectus issued by or on behalf of a company, shall state the matters specified in
Part I and set out the reports specified in Part II of Schedule II of that Act. Further,
as per Section 56(3) of the Companies Act, 1956, no one shall issue any form of
application for shares in a company, unless the form is accompanied by abridged
prospectus, contain disclosures as specified. Section 2(36) of the Companies Act read
with Section 60 thereof, mandates a company to register its 'prospectus' with the RoC,
before making a public offer/ issuing the 'prospectus'.

14.

The interim order has alleged that the Company failed to comply with Section 73 of the
Companies Act, 1956 in respect of its issuance of RPS. By issuing RPS to more than
49 persons, the Company had to compulsorily list such securities in compliance with
Section 73(1) of the Companies Act, 1956. As per Section 73(1) Companies Act, 1956,
a company is required to make an application to one or more recognized stock
exchanges for permission for the shares or debentures to be offered to be dealt with
in the stock exchange. There is no material on record to say that the Company has
filed an application with a recognised stock exchange to enable the RPS to be dealt
with in such exchange. Therefore, the Company has failed to comply with this
requirement.

15.

Section 73(2) of the Companies Act, 1956 states that "Where the permission has not been
applied under subsection (1) or such permission having been applied for, has not been granted as
Page 9 of 17

aforesaid, the company shall forthwith repay without interest all moneys received from applicants in
pursuance of the prospectus, and, if any such money is not repaid within eight days after the company
becomes liable to repay it, the company and every director of the company who is an officer in default
shall, on and from the expiry of the eighth day, be jointly and severally liable to repay that money with
interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed,
having regard to the length of the period of delay in making the repayment of such money". As the
Company failed to make an application for listing such RPS, the Company had to
forthwith repay such money collected from investors. If such repayments are not made
within 8 days after the Company becomes liable to repay, the Company and every
director of the Company, who is an officer in default, is jointly and severally liable to
repay with interest at such rate. Further, there is no material on record to say that the
Company has complied with the provision of Section 73(3) and has kept the moneys
received in a separate bank account maintained with a Scheduled Bank.
16.

I note that the Company had mobilized about 11.54 crore (i.e. 10.99 + 0.55 crore)
from atleast 7,772 persons under its offer and issue of RPS and in doing so it has failed
to comply with the provisions of the Companies Act, 1956. The details taken from the
MCA 21 portal and the correspondence of the Company are sufficient to substantiate
the charges.

17.

Liability of the directors: I note that the interim order was issued against the directors
of the Company, namely Mr. Suranjan Mondal, Mr. Kashi Nath Chanda, Mr.
Mrityunjay Bar, Mr. Pijush Kanti Jana, Mr. Madhab Chandra Das, Mr. Khokon Biswas,
Mr. Provash Bala, Mr. Kanai Lal Pramanik and Mr. Ganesh Dam.
a. The details of the appointment and resignations of the directors of the Company are
as under:
Name
Mr. Madhab Chandra Das
Mr. Khokon Biswas
Mr. Provash Bala
Mr. Kanai Lal Pramanik
Mr. Ganesh Dam

Date of Appointment
01/10/2009
01/10/2009
28/05/2010
01/10/2009
01/10/2009

Page 10 of 17

Date of Cession
-

Mr. Suranjan Mondal

Mr. Kashi Nath Chanda
Mr. Mrityunjay Bar
Mr. Pijush Kanti Jana
Mr. Mangol Bhattacharjee

28/09/2012
28/09/2012
28/09/2012
19/05/2014
15/09/2014

29/01/2013
29/01/2013
29/01/2013
03/11/2014
-

b. I note that the Company had commenced the offer and issuance of RPS from 20092010 and continued with its money mobilization activity till the financial year 2012-13
(November 20, 2012 being the last allotment as per the details available on record).
Sections 56 of the Companies Act, 1956 imposes the liability for the compliance, on
the company, every director, and persons responsible for the issuance of the
prospectus. The liability of the Company to repay under Section 73(2) read with
Sections 11, 11B and 27 of the SEBI Act, is a continuing and the same continues till
all the repayments are made to the investors/ public. Therefore, the directors who
were present during the period when the Company had made the offer and allotted
RPS shall be liable for violation of Sections 56, 60 and 73 read with Sections, 11, 11B
and 27 of the SEBI Act, including the default in making refunds as mandated therein.
As the liability to make repayments under Section 73(2) of the Companies Act read
with Section 27 of the SEBI Act is a continuing liability, the persons who joined the
Companys Board pursuant to the offer and allotment of RPS shall also be liable if the
Company and the concerned directors have failed to make refunds, as mandated under
the discussed provisions of law.
c. The noticees namely Mr. Madhab Chandra Das, Mr. Khokon Biswas, Mr. Kanai
Lal Pramanik and Mr. Ganesh Dam were appointed as the directors of the
Company on October 01, 2009 and these continue to be the directors in the Company.
Mr. Provash Bala was appointed as a director of the Company on May 28, 2010 and
he also continues to be a director of the Company. As noted from the table above,
these persons were present in the Company at the relevant time, when the discussed
violations were committed. These noticees have failed to make refunds to the investors
when such securities were not listed in terms of the Section 73 of the Companies Act,
1956 read with Section 27 of the SEBI Act.
Page 11 of 17

d. Further, the noticees namely Mr. Suranjan Mondal, Mr. Kashi Nath Chanda and
Mr. Mrityunjay Bar were appointed as the directors of the Company on September
28, 2012 and had resigned on January 29, 2013. It can be seen that these persons were
also the directors of the Company at the relevant time, when the violation of the public
issue norms were committed by the Company. These noticees have also failed to make
any refunds to the investors as required under Section 73(2) of the Companies Act,
1956 read with Section 27 of the SEBI Act. Therefore, these persons are liable for the
violations committed during the respective tenure as directors and for making
repayments of moneys collected under the offer and issue of RPS.
e. The noticee, Mr. Pijush Kanti Jana was appointed as the directors of the Company
on May 19, 2014 i.e. after the dates of the impugned public issue and had resigned on
November 03, 2014. I note that he has failed to exercise necessary diligence after
becoming director in the Company. Further, he did not make any attempt to report
the wrongdoings of the Company to the appropriate authorities. Further, he had also
not taken any steps to remedy the violations committed. The inaction by him against
the management (for violating the public issue norms as stipulated under the
Companies Act, 1956, while making the offer and issuing the preference shares),
suggests possible collusion with the Company and its management. Therefore, I hold
Mr. Pijush Kanti Jana to be responsible for the affairs of the Company and liable for
the contraventions found against the Company and also for the consequences of such
violations.
f. I note that Mr. Mangol Bhattacharjee was appointed as director of the Company on
September 15, 2014 i.e. after the impugned issues. He has not exercised necessary
diligence after becoming director in the Company. The very inaction by him against
the management (for violating the public issue norms as stipulated under the
Companies Act, 1956 while making the offer and issuing the preference shares), even
after the receipt of the interim order, leads one to conclude on a possible collusion with
the Company and its management. Further, Mr. Mangol Bhattacharjee has also not
Page 12 of 17

taken any steps to remedy the violations committed. Therefore, I hold Mr. Mangol
Bhattacharjee also to be responsible for the affairs of the Company and hence liable
for the contraventions found against the Company and for the consequences of such
violations. SEBI is advised to issue a show cause notice to him for further appropriate
directions in case the Company and directors fail to refund the amounts collected from
investors against offer and/ or allotment of RPS.
18.

In view of the discussion above, it can be concluded that all these persons being the
persons in-charge of and responsible for the conduct of the business of the Company,
are responsible for the contraventions committed by the Company as found above.
For such violations, appropriate directions need to be issued to the above directors.

19.

Moreover, Sunheaven Agro India Limited was required to provide full inventory of
the assets and properties which have not been provided despite a direction in the interim
order to provide the same within 21 days from the date of receipt of interim order. The
Company has submitted copies of only eleven sale deeds, which were executed in the
year 2011 and a valuation report of land. No other detail has been submitted by the
Company.

20.

In view of the above, appropriate action in accordance with law needs to be initiated
against the Company and the directors in charge of the affairs of the Company during
the relevant period. Further, I also note that one Investors and Agents of Sunheaven
Agro India Group of Companies through Mr. Subhasis Chakraborty, Advocate while
submitting the details of the group companies of the Sunheaven has alleged that such
companies are collecting moneys since 2009 and assuring the refunds with high
returns.

21.

In view of the foregoing, I, in exercise of the powers conferred upon me under section
19 of the Securities and Exchange Board of India Act, 1992 read with Sections 11 and
11B thereof hereby issue the following directions:

Page 13 of 17

a. The

Company,

Sunheaven

Agro

India

Limited

[CIN:

U01400WB2009PLC138649], Mr. Suranjan Mondal [PAN: ARVPM0151E], Mr.

Kashi Nath Chanda [PAN: AGHPC3011C], Mr. Mrityunjay Bar [PAN:
AMDPB4850A], Mr. Pijush Kanti Jana [PAN: AFOPJ5148P], Mr. Madhab
Chandra Das [PAN: AHXPD5528L], Mr. Khokon Biswas [PAN: AIYPB1370J],
Mr. Provash Bala [PAN: AUTPB3478J], Mr. Kanai Lal Pramanik [DIN:
02744054], Mr. Ganesh Dam [PAN: ADUPD3470E] and Mr. Mangol
Bhattacharjee jointly and severally, shall forthwith refund the money collected by the
Company through the issuance of Redeemable Preference Shares (which have been
found to be issued in contravention of the public issue norms stipulated under the Companies Act,
1956), to the investors including the money collected from investors, till date, pending
allotment of RPS, if any, with an interest of 15% per annum compounded at half yearly
intervals, from the date when the repayments became due (in terms of Section 73(2) of the
Companies Act, 1956) to the investors till the date of actual payment.
b. The repayments to investors shall be effected only in cash through Bank Demand
Draft or Pay Order.
c. The Company/ its present management is permitted to sell the assets of the Company
only for the sole purpose of making the refunds as directed above and deposit the
proceeds in an Escrow Account opened with a nationalised Bank.
d. The Company shall issue public notice, in all editions of two National Dailies (one
English and one Hindi) and in one local daily (in Bengali) with wide circulation,
detailing the modalities for refund, including details on contact persons including
names, addresses and contact details, within fifteen days of this Order coming into
effect.
e. After completing the aforesaid repayments, the Company shall file a report of such
completion of repayment with SEBI, within a period of three months from the date
of this order, certified by two independent peer reviewed Chartered Accountants who
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are in the panel of any public authority or public institution. For the purpose of this
Order, a peer reviewed Chartered Accountant shall mean a Chartered Accountant,
who has been categorized so by the Institute of Chartered Accountants of India
(ICAI).
f. Sunheaven Agro India Limited and its directors Mr. Suranjan Mondal, Mr.
Kashi Nath Chanda, Mr. Mrityunjay Bar, Mr. Pijush Kanti Jana, Mr. Madhab
Chandra Das, Mr. Khokon Biswas, Mr. Provash Bala, Mr. Kanai Lal Pramanik,
Mr. Ganesh Dam and Mr. Mangol Bhattacharjee are also directed to provide a full
inventory of all their assets and properties and details of all their bank accounts, demat
accounts and holdings of shares/ securities, if held in physical form.
g. In case of failure of Sunheaven Agro India Limited and its directors Mr. Suranjan
Mondal, Mr. Kashi Nath Chanda, Mr. Mrityunjay Bar, Mr. Pijush Kanti Jana,
Mr. Madhab Chandra Das, Mr. Khokon Biswas, Mr. Provash Bala, Mr. Kanai
Lal Pramanik, Mr. Ganesh Dam and Mr. Mangol Bhattacharjee, to comply with
the aforesaid directions SEBI, on the expiry of the three months period from the date
of this order,i.

shall recover such amounts in accordance with Section 28A of the SEBI Act
including such other provisions contained in securities laws.

ii.

may initiate appropriate action against the Company, its promoters/ directors and
the persons/officers in charge, including adjudication proceedings against them,
in accordance with law.

iii.

would make a reference to the State Government/ Local Police to register a

civil/ criminal case against the Company, its promoters, directors and its
managers/ persons in-charge of the business and its schemes, for offences of
fraud, cheating, criminal breach of trust and misappropriation of public funds; and

iv.

would also make a reference to the Ministry of Corporate Affairs, to initiate the
process of winding up of the Company.

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h. The Company is directed not to, directly or indirectly, access the capital market by
issuing prospectus, offer document or advertisement soliciting money from the public
and is further restrained and prohibited from buying, selling or otherwise dealing in
the securities market, directly or indirectly in whatsoever manner, from the date of
this Order till the expiry of four (4) years from the date of completion of refunds
to investors, made to the satisfaction of SEBI, as directed above. The Company is
restrained from accessing the securities market for the purposes of raising funds with
immediate effect.
i. Sunheaven Agro India Limited and its directors Mr. Suranjan Mondal, Mr.
Kashi Nath Chanda, Mr. Mrityunjay Bar, Mr. Pijush Kanti Jana, Mr. Madhab
Chandra Das, Mr. Khokon Biswas, Mr. Provash Bala, Mr. Kanai Lal Pramanik
and Mr. Ganesh Dam are restrained from accessing the securities market and are
further prohibited from buying, selling or otherwise dealing in securities, directly or
indirectly, with immediate effect. They are also restrained from associating themselves
with any listed public company and any public company which intends to raise money
from the public, with immediate effect. This restraint shall continue to be in force for
a further period of four (4) years on completion of the repayments, as directed above.
j. The above directions shall come into force with immediate effect.
22.

SEBI is advised to issue a show cause notice to Mr. Mangol Bhattacharjee for any
further direction that would be appropriate in case the Company and its directors fail
to refund the amounts collected from the investors against the offer and/ or allotment
of RPS.

23.

This Order is without prejudice to any action, including adjudication and prosecution
proceedings, that might be taken by SEBI in respect of the above violations committed
by the Company, its promoters, directors and other key persons.

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24.

SEBI may examine the role of the group companies of Sunheaven Agro India Limited,
in the light of the letter dated April 22, 2015 from the Investors and Agents of
Sunheaven Agro India Group of Companies.

25.

Copy of this Order shall be forwarded to the recognised stock exchanges and
depositories for information and necessary action.

26.

A copy of this Order shall also be forwarded to the Ministry of Corporate Affairs/
concerned Registrar of Companies, for their information and necessary action with
respect to the directions/ restraint imposed above against the Company and the
individuals.

Date : October 08, 2015

Place : Mumbai

PRASHANT SARAN
WHOLE TIME MEMBER
SECURITIES AND EXCHANGE BOARD OF INDIA

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