SCM SOLIFERT LIMITED & ANR. versus COMPETITION COMMISSION OF INDIA on 17 April 2018

[2018] 4 S.C.R. 302

SUPREME COURT REPORTS

[2018] 4 S.C.R.

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SCM SOLIFERT LIMITED & ANR.

v.

COMPETITION COMMISSION OF INDIA

(Civil Appeal No. 10678 of 2016)

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APRIL 17, 2018

[ARUN MISHRA AND NAVIN SINHA, JJ.]

Competition Act, 2002 – ss.5(a)(i), (ii), 6(2), 43A – Appellantsacquired shares of a company (‘MCFL’) on two occasions – Firstacquisition was for 24.46% paid up share capital and the secondCacquisition was for a further 1.7% paid up share capital – Appellantsfiled notice disclosing details of the first acquisition and notifyingsecond acquisition within 30 days of the second acquisition –Competition Commission imposed penalty u/s.43A for failing to notifythe proposed combination before the acquisition as required u/s.6(2)D– Order upheld by appellate tribunal – On appeal, held: Unders.6(2) the proposal to enter into combination is required to be notifiedto the Commission – Notification has to be made before enteringinto the combination – Notice of s.6(2) is to be given prior toconsummation of the acquisition – Ex post facto notice is notcontemplated u/s.6(2) – Further, Sch.1 to the CombinationERegulations, 2011 provides that acquisition of shares or voting rightsreferred to in s.5(a)(i) or s.5(a)(ii) does not entitle the acquirer tohold 25% or more of the total shares or voting rights of the company,directly or indirectly – In the instant case, by the second transactionappellant’s holding exceeded more than 25%, as its totalFshareholding increased to 25.3% and thus, prior permission wasrequired – Explanation to Sch.1 further states that acquisition ofless than 10% of the total shares or voting rights of an enterprise issolely an investment – Beyond this threshold, the transaction isrequired to be looked at carefully – Appellant’s first acquisitionwas a part of the long-term plan to try and take over ‘MCFL’, whichGwas simply not an investment– Purchase of 24.46% equity stake,vested power to exercise influence – Thus, there was a failure tocomply with s.6(2) in regard to the acquisition of 24.46% equity ofthe shareholding – In the facts of the case, information was disclosedbelatedly – Imposition of penalty was right – CCI (Procedure in H

regard to the Transaction of Business Relating to Combinations)Regulations, 2011 – rr. 4,5 and Entry I of Schedule I – SEBI(Substantial Acquisition of Shares and Takeovers) Regulations,2011.

Competition Act, 2002 – s.6(2) – Legislative mandate of –Discussed.

Competition Act, 2002 – s.43A – Imposition of penalty under– Discretion for – Held: Imposition of penalty u/s.43A is on accountof breach of a civil obligation – Thus, a penalty has to follow –Discretion u/s.43A is with respect to quantum.

Competition Act, 2002 – ss.6(2),31(1) – Vide two transactions,appellants acquired shares of a company (‘MCFL’) and filed noticedisclosing the details thereof within 30 days of the secondacquisition – Competition Commission approved the proposedcombination, however, imposed penalty for failing to notify theproposed combination before the acquisition as required u/s.6(2) –Plea of appellants that after approval of the proposed combinationu/s.31(1), penalty ought not to have been imposed – Held: Merelyby grant of approval by the Commission violation of provisions doesnot become condonable ipso facto, when prior notice was not givenu/s.6(2).

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1.1 Section 6 of the Competition Act, 2002 dealswith regulation of combinations. Any person or enterprise beforeentering into a combination, has to give notice to the Commissiondisclosing the details within 30 days of (a) approval of the proposalrelating to merger or amalgamation as provided in the Act; (b)execution of any agreement or other document for acquisitionreferred to in Section 5(a) of the Act or acquiring of control undersection 5(b). Section 43A deals with the power to impose a penaltyfor non-furnishing of information on combinations. Any person orenterprise who fails to give notice under Section 6(2) of the Actto the Commission, the Commission, in such an event, isauthorized to impose the penalty which may extend to 1% of thetotal turnover or the assets, whichever is higher. [Paras 9, 10and 11][308-E; 309-C-D, E-F]

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A1.2 Regulation 5 of the CCI (Procedure in regard to theTransaction of Business Relating to Combinations) Regulations,2011 deals with the form of notice for the proposed combination.Regulation 5(8) provides that “other document” in Section 6(2)(b)to mean any binding document by whatever name called,conveying an agreement or decision to acquire control, shares,Bvoting rights or assets. Schedule 1 to the Combination Regulationsprovides that acquisition of shares or voting rights referred to inSection 5(a)(i) or Section 5(a)(ii) of the Act does not entitle theacquirer to hold 25% or more of the total shares or voting rightsof the company, directly or indirectly. The Explanation makes itCclear that the acquisition of less than 10% of the total shares orvoting rights of an enterprise shall be treated solely as aninvestment. [Paras 13, 14][310-A-B, F-G]

1.3 Through the first acquisition of the shares of MCFL bythe appellants, there was acquisition of 24.46% equity shareDcapital of MCFL on a single day of which 19.9% were acquiredthrough the block and bulk deals. The contemporaneous PressRelease dated 3.7.2013 issued by the appellants indicated thatthe objective was not to make an investment in MCFL. It referred“investment is very strategic and a good fit with the company’sbusiness”. There was a pointer in the Press Release of its intentEwhen it stated that DFPCL looks forward to working closely withMCFL to “enhance long-term value for the shareholder of bothcompanies”. Not only the appellants but another player Zuarigroup also made a significant purchase of shares of MCFL i.e.

9.72% on 2.4.2013 is also not in dispute. Thus, it is apparent that Fthe appellant’s first acquisition was a part of the long-term planto try and take over MCFL, which was simply not an investment.The purchase of 24.46% equity stake, vested power to exerciseinfluence as was reflected in Press Release-II also. Theacquisition of less than 10% of the total shares or voting rights of an enterprise is solely an investment. It also indicates thatGbeyond this threshold, the transaction is required to be lookedcarefully. Thus, there was a failure to comply with the provisionsof Section 6(2) of the Act in regard to the acquisition of 24.46%of the shareholding. [Para 16][311-F-H; 312-A-C]

1.4 It is apparent from Section 6(2) of the Act that theproposal to enter into combination is required to be notified tothe Commission. The legislative mandate is apparent that thenotification has to be made before entering into the combination.The Commission has been established to prevent practices havingan adverse effect on the competition. Section 6(2A) provides thatno combination shall come into effect until 210 days have passedfrom the date of notice or passing of orders under Section 31 bythe Commission, whichever is earlier. The provisions made inRegulation 5(8) also buttresses the aforesaid conclusion. Noticeof Section 6(2) is to be given prior to consummation of theacquisition. Ex post facto notice is not contemplated under theprovisions of section 6(2). Same would be in violation of theprovisions of the Act. The expression “proposes to enter into acombination” in Section 6(2) and further details to be disclosedin the notice to the Commission are of the ‘proposedcombination’. [Paras 18, 19][312-E-H; 313-A]

2. The factum of the approval of the combinationsubsequently by the Commission is not going to provide aninsulation when the provisions of the Act have been violated andprior notice had not been given under Section 6(2). Merely bygrant of approval by the Commission violation of provisions doesnot become condonable ipso facto. In the facts of the case,information was disclosed belatedly. The imposition of penaltywas warranted due to the violation of the provision and it wasrightly imposed. [Paras 21, 22][313-D-E, G]

3. There was no requirement of mens rea under Section43A or an intentional breach as an essential element forlevy of penalty. Mens rea is important to adjudge criminal orquasi-criminal liability. The imposition of penalty under Section43A is on account of breach of a civil obligation, and theproceedings are neither criminal nor quasi-criminal. Thus, apenalty has to follow. Discretion is with respect toquantum. [Paras 23, 24][313-H; 314-A, G]

Hindustan Steel Ltd. v. State of Orissa AIR 1970 SC253 : [1970] 1 SCR 753 -relied on.

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Case Law Reference

[1970] 1 SCR 753 relied onPara 23

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10678of 2016.

From the Judgment and Order dated 30.08.2016 of the AppellateTribunal at New Delhi in Appeal No. 59 of 2015.

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Amit Sibal, Sr. Adv., G. R. Bhatia, Abdullah Hussain, Ms. KanikaChaudhary, Avinash Amanath, Abhay Kumar, Advs. for the Appellants.

Salman Khurshid, Sr. Ad.v, Samar Bansal, Neeraj Shekhar,Ms. Shreya Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by D

ARUN MISHRA, J. 1. The appellants SCM Solifert Limitedand another are in appeal under section 53T of the Competition Act,2002 (hereinafter referred to as “the Act”) as against the final judgmentand order dated 30.08.2016 passed in Appeal No.59 of 2015 by theCompetition Appellate Tribunal thereby affirming the order passed byEthe Competition Commission of India under section 43A of the Act.

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2. The Competition Commission of India initiated the proceedingsagainst the appellants on whom due to the failure to notify a proposedcombination as required under section 6(2) of the Act, the penalty ofRupees Two crores was imposed under section 43A of the Act. On3.07.2013, the appellants had purchased 2,89,91,150 shares of MangaloreChemicals and Fertilisers Limited (in short referred to as “the MCFL”)constituting 24.46 paid up share capital of the MCFL on the BombayStock Exchange.

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3. The first transaction of the acquisition of the shares was byway of the purchase of shares conducted through bulk and block deals.It was followed by press release dated 3.7.2013 by Deepak Fertiliserand Petrochemicals Corporation Limited filed with the Stock Exchanges,in compliance with the requirements of the Listing Agreement.

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4. On the second acquisition of the shares on 23.04.2014 theappellants made a purchase order in the open market for the purchaseof up to 20 lacs equity shares representing 1.7 percent shares of theMCFL. Subsequently, an open offer in terms of the SEBI (SubstantialAcquisition of Shares and Takeovers) Regulations, 2011 (for short, “theRegulations, 2011”) was made for acquiring up to 26 percent of sharesof the MCFL.

5. The appellants filed a notice disclosing details of the firstacquisition and notifying the second acquisition under Section 6(2) of theAct with the Commission on 22.04.2014 within thirty days of the publicannouncement pursuant to the Regulations, 2011 for the acquisition of1.7 percent of the MCFL. The Competition Commission vide its orderdated 30.07.2014 under section 31(1) of the Act approved the proposedcombination, however, directed to initiate penalty proceedings againstthe appellants under section 43A of the Act. Pursuant to that, a showcause notice was issued on the ground of failure to notify in accordanceto section 6(2) of the Act, in regard to first and second acquisitions ofshares.

6. It was the case on behalf of the appellants that first acquisitionwas made solely for the purpose of investment under Entry I of ScheduleI of the CCI (Procedure in regard to the Transaction of Business Relatingto Combinations) Regulations, 2011, (hereinafter referred to as “theCompetition Regulations”). Thereby, it assumed exemption from thenotification. It was also urged that the second acquisition was notified tothe Commission within the stipulated time of 30 days as specified insection 6(2) of the Act. The purchase was not consummated becauseas per the Escrow Agreement dated 28.04.2014, the shares purchasedin the second acquisition were credited to a specifically designatedEscrow account of J.M. Financial Services Limited. The sole purposeof entering into an escrow agreement was that the transaction was notconsummated prior to approval of the Commission. The Commissionhas imposed the penalty of 2 crores; the appellate tribunal has affirmedthe order. The Commission has held that the appellants have violatedsection 6(2) of the Act by failing to notify the proposed combination.

7. It was urged by learned counsel on behalf of the appellants thatfirst acquisition did not fall within the purview of Entry 1 Schedule 1.

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AThe interpretation made by the Commission of the Entry 1 of Schedule1 is incorrect. With respect to the second acquisition of shares, it wasurged that the sole purpose of creation of Escrow Account was to ensurethat the appellants could not exercise the legal and beneficial rightsaccruing through the shares, as the account was operatable solely onthe basis of instructions of the Manager and to the exclusion of theBappellants. After approval of the proposed combination, penalty oughtnot to have been imposed. Violation, if any, was technical, not willful,deliberate or mala fide.

8. Per contra, the Commission has rightly imposed the penalty.There was a breach of provisions contained in section 6(2). The penaltyCimposed is meager. The first acquisition of shares was notifiable. It couldnot have been termed solely as an investment. Reliance has been placedon Press Release issued on 3.7.2013, which referred investment being“very strategic”, and the appellant also notified to the public that they“look forward to working closely with MCFL in the future”. TheDknowledge of acquisition by the Zuari group of 9.72% shares in MCFLon 2.4.2013 was admitted in the reply filed by the appellants. There wasthe acquisition of a large number of shares on the same day through theblock and bulk deals. MCFL was not very profitable. Therefore, purchaseof shares could not be said to be a sound investment by a prudent investor.

E9. To appreciate the rival submissions, it is necessary to refer tocertain provisions contained in the Act. Section 6 of the Act deals withregulation of combinations and the same is extracted hereunder:

“Section 6: Regulation of combinations

(1) No person or enterprise shall enter into a combination, whichFcauses or is likely to cause an appreciable adverse effect oncompetition within the relevant market in India and such acombination shall be void.

(2) Subject to the provisions contained in sub-section (1), any personor enterprise, who or which proposes to enter into a combination,G13 [shall] give notice to the Commission, in the form as may bespecified, and the fee which may be determined, by regulations,disclosing the details of the proposed combination, within thirtydays of—

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(a) approval of the proposal relating to merger or amalgamation,referred to in clause (c) of section 5, by the board of directors ofthe enterprises concerned with such merger or amalgamation, asthe case may be; (b) execution of any agreement or other document for acquisitionreferred to in clause (a) of section 5 or acquiring of control referredto in clause (b) of that section.

(2A) No combination shall come into effect until two hundred andten days have passed from the day on which the notice has beengiven to the Commission under sub-section (2) or the Commissionhas passed orders under section 31, whichever is earlier.”

10. Any person or enterprise before entering into a combination,has to give notice to the Commission disclosing the details within 30days of (a) approval of the proposal relating to merger or amalgamationas provided in the Act; (b) execution of any agreement or other documentfor acquisition referred to in section 5(a) of the Act or acquiring of controlunder section 5(b). No combination shall come into effect as provided insection 6(2A) until 210 days have passed from the day when notice hasbeen given to the Commission.

11. Section 42 of the Act deals with contravention of the orders ofthe Commission. Section 43A deals with the power to impose a penaltyfor non-furnishing of information on combinations. Any person orenterprise who fails to give notice under section 6(2) of the Act to theCommission, the Commission, in such an event, is authorized to imposethe penalty which may extend to 1% of the total turnover or the assets,whichever is higher.

12. Section 43A is extracted hereunder:

“Section 43A: Power to impose the penalty for non-furnishing of information on combinations If any person or enterprise who fails to give notice tothe Commission under sub-section (2) of section 6, the Commissionshall impose on such person or enterprise a penalty which mayextend to one percent, of the total turnover or the assets, whicheveris higher, of such a combination.”

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A13. Regulation 4 of the Combination Regulations deals withcategories of transactions not likely to have an appreciable adverse effecton competition in India. Regulation 5 deals with the form of notice forthe proposed combination. Regulation 5(8) provides that “otherdocument” in section 6(2)(b) to mean any binding document by whatevername called, conveying an agreement or decision to acquire control,Bshares, voting rights or assets. Rule 5(8) is extracted hereunder :

“5. Form of notice for the proposed combination -

(1) ……

(8) The reference to the “other document” in clause (b) of sub-section (2) of section 6 of the Act shall mean any binding document,by whatever name called, conveying an agreement or decision toacquire control, shares, voting rights or assets:

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Provided that if the acquisition is without the consent of theenterprise being acquired, any document executed by the acquiringDenterprise by whatever name called, conveying a decision toacquire control, shares or voting rights shall be the “otherdocument”.

Provided further that where a public announcement has beenmade in terms of the Securities and Exchange Board of IndiaE(Substantial Acquisition of Shares and Takeovers) Regulations,2011, for the acquisition of shares, voting rights or control, suchpublic announcement shall be deemed to be the“other document”.”

14. Schedule 1 to the Combination Regulations provides thatFacquisition of shares or voting rights referred to in section 5(a)(i) orSection 5(a)(ii) of the Act does not entitle the acquirer to hold 25% ormore of the total shares or voting rights of the company, directly orindirectly. The Explanation makes it clear that the acquisition of lessthan 10% of the total shares or voting rights of an enterprise shall betreated solely as an investment. Schedule 1 to the CombinationGRegulations is extracted hereunder:

“(1) An acquisition of shares or voting rights, referred to in sub-clause (i) or sub-clause (ii) of clause (a) of section 5 of the Act,solely as an investment or in the ordinary course of business in so H

far as the total shares or voting rights held by the acquirer directlyor indirectly, does not entitle the acquirer to hold twenty five percent (25%) or more of the total shares or voting rights of thecompany, of which shares or voting rights are being acquired,directly or indirectly or in accordance with the execution of anydocument including a share holders” agreement or articles ofassociation, not leading to acquisition of control of the enterprisewhose shares or voting rights are being acquired.

Explanation:- The acquisition of less than ten percent of the totalshares or voting rights of an enterprise shall be treated as solelyas an investment. Provided that in relation to the said acquisition– (A) the Acquirer has ability to exercise only such rights that theexercisable by the ordinary shareholders of the enterprise whoseshares or voting rights are being acquired to the extent of theirrespective shareholding; and (B) the Acquirer is not a member ofthe board of directors of the enterprise whose shares or votingrights are being acquired and does not have a right or intention tonominate a director on the board of directors of the enterprisewhose shares or voting rights are being acquired and does notintend to participate in the affairs or management of the enterprisewhose shares or voting rights are being acquired.”

15. The procedure for imposition of penalty is provided underRegulation 48 of the new Regulations. A show cause notice has to begiven and thereafter if an oral hearing is granted, then the Commission isempowered to impose the penalty considering the facts and circumstancesof the case.

16. First, we deal with the acquisition of the shares of MCFL bythe appellants on 3.11.2013. There was the acquisition of 24.46% equityshare capital of MCFL on a single day of which 19.9% were acquiredthrough the block and bulk deals. The contemporaneous Press Releasedated 3.7.2013 issued by the appellants filed with the stock exchanges,in compliance with the requirement of the Listing Agreement indicatedthat the objective was not to make an investment in MCFL. The PressRelease referred “investment is very strategic and a good fit with thecompany’s business”. There was a pointer in the Press Release of itsintent when it stated that DFPCL looks forward to working closely withMCFL to “enhance long-term value for the shareholder of both AB

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Acompanies”. Not only the appellants but another player Zuari group alsomade a significant purchase of shares of MCFL i.e. 9.72% on 2.4.2013is also not in dispute. Thus, it is apparent that the appellant’s firstacquisition was a part of the long-term plan to try and take over MCFL,which was simply not an investment. The purchase of 24.46% equitystake, vested power to exercise influence as was reflected in PressBRelease-II also. The acquisition of less than 10% of the total shares orvoting rights of an enterprise is solely an investment. It also indicatesthat beyond this threshold, the transaction is required to be looked carefully.Thus, there was a failure to comply with the provisions of section 6(2) ofthe Act in regard to the acquisition of 24.46% of the shareholding. TheCprovisions of section 6(2) were not at all complied with.

17. Coming to the second acquisition of shares of 0.8% equityshares of MCFL, the dispute is as to whether the notifying within 30days of the purchase was compliance of the provision as per provisionsof section 6(2) it should have been notified before the acquisition. As aDcorollary, it was also argued that the equity shares purchased secondtime were placed in the Escrow Account. The appellants could not haveexercised the beneficial rights until the Commission made the approvalof the proposed combination. What was essential under section 2(e)was the voting rights and the appellants could not have exercised votingrights by placing shares in the escrow account.E

18. We find no merits in the submissions raised. It is apparentfrom section 6(2) of the Act that the proposal to enter into combinationis required to be notified to the Commission. The legislative mandate isapparent that the notification has to be made before entering into thecombination. The Preamble of the Act contains that the CommissionFhas been established to prevent practices having an adverse effect onthe competition. The combination cannot be entered into and shall comeinto effect before order is passed by Commission or lapse of certaintime from date of notice is also apparent from the terminology used insection 6(2A) which provides that no combination shall come into effectGuntil 210 days have passed from the date of notice or passing of ordersunder section 31 by the Commission, whichever is earlier. The provisionsmade in Regulation 5(8) also buttresses the aforesaid conclusion. Noticeof Section 6(2) is to be given prior to consummation of the acquisition.Ex post facto notice is not contemplated under the provisions of section6(2). Same would be in violation of the provisions of the Act.H

19. The expression “proposes to enter into a combination” insection 6(2) and further details to be disclosed in the notice to theCommission are of the ‘proposed combination’ and the specific provisionscontained in section 6(2A) of the Act provides that no combination shallcome into effect until 210 days have passed from the date on whichnotice has been given or passing of orders under section 31 by theCommission, whichever is earlier. The intent of the Act is that theCommission has to permit combination to be formed, and has anopportunity to assess whether the proposed combination would causean appreciable adverse effect on competition. In case combination is tobe notified ex-post facto for approval, it would defeat the very intendmentof the provisions of the Act.

20. When the transaction has been completed and acquisition hasbeen made and the latter transaction has exceeded holding more than25% by the second purchase, obviously prior permission was required,as discussed hereinabove, as its total shareholding increased to 25.3%.Thus, we have no hesitation to hold that the notification under section6(2) of the Act has to be ex-ante.

21. The factum of the approval of the combination subsequentlyby the Commission is not going to provide an insulation when theprovisions of the Act have been violated and prior notice had not beengiven under section 6(2). It was open to impose a penalty under section43A. Merely by grant of approval by the Commission violation ofprovisions does not become condonable ipso facto.

22. The provisions contained in section 43A make it clear that theCommission shall impose the penalty which may in its discretion extendto 1% of the total turnover or the assets, whichever is higher, of thecombination. It has been found on facts that the turnover of thecombination was Rs.3322 crores per annum, 1% of which would beRs.33.22 crores. The Commission had imposed a nominal penalty ofRs.2 crores which amounts to only 0.06% of the total turnover. In thefacts of the case, information was disclosed belatedly. The imposition ofpenalty was warranted due to the violation of the provision and it wasrightly imposed.

23. There was no requirement of mens rea under section 43A oran intentional breach as an essential element for levy of penalty. TheAct does not use the expression “the failure has to be willful or mala AB

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Afide” for the purpose of imposition of penalty. The breach of the provisionsof the Act is punishable and considering the nature of the breach, it isdiscretionary to impose the extent of penalty. Mens rea is important toadjudge criminal or quasi-criminal liability, not in case of violation of thecivil statutory provision. In Hindustan Steel Ltd. v. State of Orissa AIR1970 SC 253, with respect to the failure to comply with the civil obligationBthis Court has laid down thus:

“In our opinion, mens rea is not an essential ingredient forcontravention of the provision of a civil Act. In our view, the penaltyis attracted as soon as a contravention of the statutory obligationsas contemplated by the Act is established and, therefore, theCintention of the parties committing such violation becomesimmaterial. In other words, the breach of a civil obligation whichattracts penalty under the provisions of an Act would immediatelyattract the levy of penalty irrespective of the fact whether thecontravention was made by the defaulter with any guilty intentionDor not. This apart that unless the language of the statute indicatesthe need to establish the element of mens rea. It is generallysufficient to prove that a default in complying with the statute hasoccurred. The penalty has to follow and only the quantum of penaltyis discretionary “

In our considered opinion, the penalty is attracted as soon as theEcontravention of the statutory obligation as contemplated by theAct and the Regulation is established and hence intention of theparties committing such violation becomes wholly irrelevant.

We also further hold that unless the language of the statuteindicates the need to establish the presence of men’s rea, it iswholly unnecessary to ascertain whether such a violation wasintentional or not. On a careful perusal of Section 15(D) (b) andSection 15-E of the Act, there is nothing which requires that men’srea must be proved before a penalty can be imposed under theseprovisions. Hence once the contravention is established then thepenalty is to follow.”

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24. The imposition of penalty under section 43A is on account ofbreach of a civil obligation, and the proceedings are neither criminal norquasi-criminal. Thus, a penalty has to follow. Discretion in the provisionunder section 43A is with respect to quantum. Thus, we find that in viewof the submissions made by learned counsel for the appellants no caseHfor our interference is made out.

25. The judgment and order passed by the Commission as affirmedby the appellate tribunal are in accordance with law. The appeal beingdevoid of merit, deserves dismissal and is hereby dismissed. No costs.

Divya Pandey

Appeal dismissed.

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