Investment Law.docx

The Foreign Direct Investment means “cross border investment made by a resident in one economy in an enterprise in another economy, with the objective of establishing a lasting interest in the investee economy. Mostly the investment is into production by either buying a company in the target country or by expanding operations of an existing business in that country”. Such investments can take place for many reasons, including to take advantage of cheaper wages, special investment privileges (e.g. tax exemptions) offered by the country. Countries Seek FDI for the purpose of three (a) Domestic capital is inadequate for purpose of economic growth;(b) Foreign capital is usually essential, at least as a temporary measure, during the period when the capital market is in the process of development;(c) Foreign capital usually brings it with other scarce productive factors like technical knowhow, business expertise and knowledge. EVOLUTION OF FDI IN INDIA

Historically, India had followed an extremely careful and selective approach while formulating FDI policy in view of the governance of “import-substitution strategy” of industrialisation. The regulatory framework was consolidated through the enactment of Foreign Exchange Regulation Act (FERA), 1973 wherein foreign equity holding in a joint venture was allowed only up to 40 per cent. Subsequently, various exemptions were extended to foreign companies engaged in export oriented businesses and high technology and high priority areas including allowing equity holdings of over 40 per cent. Moreover, drawing from successes of other country experiences in Asia, Government not only established special economic zones (SEZs) but also designed liberal policy and provided incentives for promoting FDI in these zones with a view to promote exports. The announcements of Industrial Policy (1980 and 1982) and Technology Policy (1983) provided for a liberal attitude towards foreign investments in terms of changes in policy directions. The policy was characterised by de-licensing of some of the industrial rules and promotion of Indian manufacturing exports as well as emphasising on modernisation of industries through liberalised imports of capital goods and technology. This was supported by trade liberalisation measures in the form of tariff reduction and shifting of large number of items from import licensing to Open General Licensing (OGL). Post-Liberalisation Period

A major shift occurred when India embarked upon economic liberalisation and reforms program in 1991 aiming to raise its growth potential and integrating with the world economy. Industrial policy reforms slowly but surely removed restrictions on investment projects and business expansion on the one hand and allowed increased access to foreign technology and funding on the other. A series of measures that were directed towards liberalizing foreign investment.

LEGAL AS WELL AS REGULATORY FRAMEWORK FOR FDI IN INDIA The Government has put in place a policy framework on Foreign Direct Investment which is embodied in the Circular on Consolidated FDI Policy, issued which is updated every six months, to capture and keep pace with the regulatory changes. The latest Consolidated FDI policy has been in effect from 28 August 2017. The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India makes policy pronouncements on FDI through Press Notes/ Press Releases which are notified by the Reserve Bank of India as amendments to the Foreign Exchange Management (Transfer or Issue of Security by Persons Resident Outside India) Regulations, 2000 (notification No.FEMA 20/2000-RB dated May 3, 2000). The procedural instructions are issued by the Reserve Bank of India vide A.P. DIR. (series) Circulars. Thus, regulatory framework for FDI consists of Acts, Regulations, Press Notes, Press Releases, Clarifications, etc. The Indian companies can receive FDI under two routes1. Automatic route- Also called ‘Entry route for investment’ there are sectors where the government of India make’s provision for FDI to enter without the approval of either RBI or Government. 2. Government route- It is in contrast of automatic route as in it prior approval for investment must be taken either from the Foreign Investment Promotion Board (FIPB), Ministry of Finance, DIPP as the case may be.

What is a depository system? There are essentially four players in the depository system: (i) The Depository (ii) The Participant (iii) The Beneficial Owner, and (iv) The Issuer.

(i) The Depository A Depository is an organization which holds the securities of a shareholder in electronic form at the request of the shareholder. The depository acts as a de facto owner of the securities lodged with it for the limited purpose of transfer of ownership. It functions as a custodian of securities of its clients. The development of Information technology has paved the way for many innovative things in the stock exchange. The stocks scam which shook the stock market during the 1990s also made the government to take preventive measures to avoid the recurrence of such scams. All these resulted in the introduction of a new type of stock trade called dematerialization. At present there are two depositories in India: (a) National Securities Depository Ltd. (NSDL), and (b) Central Depository Services (India) Ltd. (CDSL). National Securities Depository Limited which commenced operations during November 1996 was promoted by IDBI, UTI and National Stock Exchange (NSE). Central Depository Services (India) Limited commenced operations during February 1999. It was promoted by Mumbai Stock Exchange in association with Bank of Baroda, Bank of India, State Bank of India and HDFC Bank. What is Dematerialization: Dematerialization on the other hand is a process wherein the shares, after being handed over to the depository will be used at the time of sale or transfer of the shares from one shareholder to another. Since the physical transfer of share / stock does not occur, it is called Scripless transfer or scripless trade. Under dematerialization of shares, physical transfer of shares is avoided and the transactions take place through the electronic media. This saves time and stationery and also prevents the loss of documents in transit. (ii) Depository Participant: In India, a Depository Participant (DP) is described as an Agent (law) of the depository. They are the intermediaries between the depository and the investors. The relationship between the DPs and the depository is governed by an agreement made between the two under the Depositories Act. In a strictly legal sense, a DP is an entity who is registered as such with SEBI under the sub section 1A of Section 12 of the SEBI Act. As per the provisions of this Act, a DP can offer depository-related services only after obtaining a certificate of registration from SEBI. As of 2012, there were 288 DPs of NSDL and 563 DPs of CDSL registered with SEBI.

SEBI (D&P) Regulations, 1996 prescribe a minimum net worth of Rs. 50 lakh for stockbrokers, R&T agents and non-banking finance companies (NBFC), for granting them a certificate of registration to act as DPs. If a stockbroker seeks to act as a DP in more than one depository, he should comply with the specified net worth criterion separately for each such depository. No minimum net worth criterion has been prescribed for other categories of DPs; however, depositories can fix a higher net worth criterion for their DPs. (iii) The Beneficial Owner: Beneficial owner means a person whose name is recorded as such with a depository. A beneficial owner is the real owner of the securities who has lodged his securities with the depository in the form of book entry. He has all the rights and liabilities associated with the securities. (iv) The Issuer: The issuer is the company which issues the security. It maintains a register for recording the names of the registered owners of securities, the depositories. These issuers send a list of shareholders, who opt for the depository system, to the depositories. Benefits of Depository system: 1. Depository system takes hold of all securities in the country listed in that particular stock exchange. 2. Introduction of electronic system enables speedy transactions and accuracy. 3. In a depository system, the security holders can sell and buy securities by which liquidity is brought to the securities. 4. Blank transfers are avoided and holding of shares in Benami names is also prevented. 5. Registration and stamp charges for the sale of securities could be easily collected by the government which was evaded under the previous system. 6. Depository promotes more activity in the capital market as trading in genuine share. is ensured under Depository system. 7. Depository avoids use of stationery and prevents delay in registration of transfers. 8. Dividend and interest on securities are properly distributed through this system and in the case of convertible debentures, on the due date, the securities are converted into company shares. 9. Depository acts as collateral security for the raising of loans from any financial institution. Services provided by Depository      

Dematerialisation (usually known as demat) is converting physical certificates of Securities to electronic form Rematerialisation, known as remat, is reverse of demat, i.e. getting physical certificates from the electronic securities Transfer of securities, change of beneficial ownership Settlement of trades done on exchange connected to the Depository Pledging and Unpledging of Securities for loan against shares Corporate action benefits directly transfer to the Demat and Bank account of customer

What are ADRs or GDRs? American Depositary Receipts (ADRs) are securities offered by non-US companies who want to list on any of the US exchange. Each ADR represents a certain number of a company's regular

shares. These are deposited in a custodial account in the US. ADRs allow US investors to buy shares of these companies without the costs of investing directly in a foreign stock exchange. ADRs are issued by an approved New York bank or trust company against the deposit of the original shares. When transactions are made, the ADRs change hands, not the certificates. This eliminates the actual transfer of stock certificates between the US and foreign countries. Global Depositary Receipts (GDRs) are negotiable certificate held in the bank of one country representing a specific number of shares of a stock traded on the exchange of another country. This is a financial instrument used by the companies to raise capital in either dollars or Euros. GDRs are also called European Depositary Receipt. These are mainly traded in European countries and particularly in London. However, ADRs and GDRs make it easier for individuals to invest in foreign companies, due to the widespread availability of price information, lower transaction costs, and timely dividend distributions. Why do Companies go for ADRs or GDRs? Indian companies need capital from time to time to expand their business. If any foreign investor wants to invest in any Indian company, they follow two main strategies. Either the foreign investors can buy the shares in Indian equity markets or the Indian firms can list their shares abroad in order to make these shares available to foreigners. But the foreign investors often find it very difficult to invest in India due to poor market design of the equity market. Here, they have to pay hefty transaction costs. This is an obvious motivation for Indian firms to bypass the incompetent Indian equity market mechanisms and go for the well-functioning overseas equity markets. When they issue shares in forms of ADRs or GDRs, their shares commanded a higher price over their prices on the Indian bourses.

STOCK EXCHANGE Stock exchange is the term commonly used for a secondary market, which provide a place where different types of existing securities such as shares, debentures and bonds, government securities can be bought and sold on a regular basis. A stock exchange is generally organised as an association, a society or a company with a limited number of members. It is open only to these members who act as brokers for the buyers and sellers. The Securities Contract (Regulation) Act has defined stock exchange as an “ association, organisation or body of individuals, whether incorporated or not, established for the purpose of assisting, regulating and controlling business of buying, selling and dealing in securities”. Chutiye ke notes---1st Stock Exchange -1875 in Bombay- by native share and stockbrokers association. At world level, first stock exchange in 1675. FUNCTIONS OF A STOCK EXCHANGE The functions of stock exchange can be enumerated as follows: 1. Provides ready and continuous market: By providing a place where listed securities can be bought and sold regularly and conveniently, a stock exchange ensures a ready and continuous market for various shares, debentures, bonds and government securities. This lends a high degree of liquidity to holdings in these securities as the investor can encash their holdings as and when they want. 2. Provides information about prices and sales: A stock exchange maintains complete record of all transactions taking place in different securities every day and supplies regular information on their prices and sales volumes to press and other media. In fact, now-a-days, you can get information about minute to minute movement in prices of selected shares on TV channels like CNBC, Zee News, NDTV and Headlines Today. This enables the investors in taking quick decisions on purchase and sale of securities in which they are interested. Not only that, such information helps them in ascertaining the trend in prices and the worth of their holdings. This enables them to seek bank loans, if required. 3. Provides safety to dealings and investment: Transactions on the stock exchange are conducted only amongst its members with adequate transparency and in strict conformity to its rules and regulations which include the procedure and timings of delivery and payment to be followed. This provides a high degree of safety to dealings at the stock exchange. There is little risk of loss on account of non-payment or non- delivery. Securities and Exchange Board of India (SEBI) also regulates the business in stock exchanges in India and the working of the stock brokers. Not only that, a stock exchange allows trading only in securities that have been listed with it; and for listing any security, it satisfies itself about the genuineness and soundness of the company and provides for disclosure of certain information on regular basis. Though this may not guarantee the soundness and profitability of the company, it does provide some assurance on their genuineness and enables them to keep track of their progress.

4. Helps in mobilisation of savings and capital formation: Efficient functioning of stock market creates a conducive climate for an active and growing primary market. Good performance and outlook for shares in the stock exchanges imparts buoyancy to the new issue market, which helps in mobilising savings for investment in industrial and commercial establishments. Not only that, the stock exchanges provide liquidity and profitability to dealings and investments in shares and debentures. It also educates people on where and how to invest their savings to get a fair return. This encourages the habit of saving, investment and risk-taking among the common people. Thus it helps mobilising surplus savings for investment in corporate and government securities and contributes to capital formation. 5. Barometer of economic and business conditions: Stock exchanges reflect the changing conditions of economic health of a country, as the shares prices are highly sensitive to changing economic, social and political conditions. It is observed that during the periods of economic prosperity, the share prices tend to rise. Conversely, prices tend to fall when there is economic stagnation and the business activities slow down as a result of depressions. Thus, the intensity of trading at stock exchanges and the corresponding rise on fall in the prices of securities reflects the investors’ assessment of the economic and business conditions in a country, and acts as the barometer which indicates the general conditions of the atmosphere of business. 6. Better Allocation of funds: As a result of stock market transactions, funds flow from the less profitable to more profitable enterprises and they avail of the greater potential for growth. Financial resources of the economy are thus better allocated.

3. CREDIT RATING AGENCY INTRODUCTION

Credit rating, in general sense, is the evaluation of the credit worthiness of an individual or of a business concern or of an instrument of a business based on relevant factors indicating ability and willingness to pay obligations as well as net worth. A credit rating is a letter or number used by a mercantile or other agency in reports and credit rating books to denote the ability and disposition of various businesses (individual, proprietorship, partnership or corporation) to meet their financial obligations. It also states that ratings are used as a guide to the investment quality of bonds and stocks, based on security of principal and interest (or dividends), earning power, mortgage position, market history and marketability. Credit ratings establish a link between risk and return. An investor or any other interested person uses the rating to assess the risk-level and compares the offered rate of return with his expected rate of return. EVOLUTION OF CREDIT RATING

The first Mercantile Credit Agency was established in New York in 1841. Its first rating guide was published in 1859 by Robert Dun. Another similar agency was set up by John Bradstreet which published its rating guide in 1857. These two agencies were merged to form Dun and Bradstreet in 1933 which acquired Moody’s Investor Service in 1962. Moody’s was founded by Moody in 1900. The other world renowned rating agency namely Standard and Poor was created in 1941 by merging the Standard Statistics Company and Poor’s Publishing Company which had their origin earlier. In India CRISIL (Credit Rating and Information Services (India) Limited) was set up as the first credit rating agency in 1987. This was followed by ICRA Limited (Investment Information and Credit Rating Agency of India Limited) in 1991 and CARE (Credit Analyses and Research Limited) in 1994 and then in 1999 Fitch Rating India Pvt. Ltd. now known as India Ratings and Research Pvt. Ltd., Brickwork Rating Pvt. Ltd. in 2008 and SMERA (SME Rating Agency of India Limited) in 2011. All these Six credit rating agencies are registered with the SEBI. USES OF CREDIT RATING Credit rating is extremely important as it not only plays a role in investor protection but also benefits industry as a whole in terms of direct mobilization of savings from individuals. Rating also provide a marketing tool to the company and its investment bankers in placing company’s debt obligations with a investor base that is aware of, and comfortable with, the level of risk. Ratings also encourage discipline amongst corporate borrowers to improve their financial structure and operating risks to obtain a better rating for their debt obligations and thereby lower the cost of borrowing. Companies those get a lower rating are forewarned, as it were and have the freedom, if they desire, to take steps on their financial or business risks and thereby improve their standing in the market. The need for reliable information in channelization of the resources to the most productive uses can hardly be overemphasized. Relevant and reliable information helps the investors to arrive at their investment decisions. These include offer documents of the issuers, research reports of market intermediaries and media reports. In the developed markets, credit rating agencies have also come to occupy a leading position as information providers along with rating of financial instruments. Particularly for the credit related opinions in respect of debt related instruments, such agencies offer independent opinions which are objective, well researched and credible. Credit rating is useful to investors, issuers, intermediaries and regulators. For Investors The main purpose of credit rating is to communicate to the investors the relative ranking of the default loss probability for a given fixed income investment, in comparison with other rated instruments. In a way it is essentially an information service. In the absence of professional credit rating, the investor has to largely depend on his familiarity with the names of promoters or collaborators of a company issuing debt instruments. This is not a reliable method. Credit rating by skilled, competent and credible professionals eliminates or at least minimizes the role of name recognition and replaces it with a well

researched and properly analyzed opinion. This method provides a low cost supplement to investors. Large investors use information provided by rating agencies such as upgrades and downgrades and alter their portfolio mix by operating in the secondary market. Investors also use the industry reports, corporate reports, seminars and open access provided by the credit rating agencies. For Issuers The market places immense faith in opinion of credit rating agencies, hence the issuers also depend on their critical analysis. This enables the issuers of highly rated instruments to access the market even during adverse market conditions. Credit rating provides a basis for determining the additional return (over and above a risk free return) which investors must get in order to be compensated for the additional risk that they bear. The difference in price leads to significant cost savings in the case of highly rated instruments. For Intermediaries Rating is useful to Intermediaries such as merchant bankers for planning, pricing, underwriting and placement of the issues. Intermediaries like brokers and dealers in securities use rating as an input for monitoring risk exposures. Merchant bankers also use credit rating for pre-packaging issues by way of asset securitization/structured obligations. For Regulators The Reserve Bank of India (RBI) prescribes a number of regulatory uses of ratings. The RBI requires that a NBFC must have minimum investment grade credit rating if it intends to accept public deposits. As per money market regulations of the RBI, a corporate must get an issue of CP rated and can issue such paper subject to a minimum rating. SEBI has also stipulated that ratings are compulsory for all public issue of debentures. SEBI has also made mandatory for acceptance of public deposit by Collective Investment Schemes. FACTORS FOR SUCCESS OF A RATING SYSTEM Credible and independent structure and procedures;– Objectivity and impartiality of opinions; – Analytical research, integrity and consistency; – Professionalism and industry related expertise; – Confidentiality; –Timeliness of rating review and announcement of changes; Ability to reach wide range of investors by means of press reports, print or electronic media and investor oriented research services. REGULATORY FRAMEWORK SEBI (CREDIT RATING AGENCIES) REGULATIONS, 1999 SEBI regulations for Credit Rating Agencies (CRAs) cover rating of securities only and not rating of fixed deposits, foreign exchange, country ratings, real estates etc. CRAs can be promoted by public financial institutions, scheduled commercial banks, foreign banks operating in India, foreign credit rating agencies recognised in the country of their incorporation, having at least five years experience in rating, or any company or a body

corporate having continuous net worth of minimum 100 crore for the previous five years. CRAs would be required to have a minimum net worth of 5 crore. A CRA can not rate a security issued by its promoter. No Chairman, Director or Employee of the promoters shall be Chairman, Director or Employee of CRA or its rating committee. A CRA can not rate securities issued by any borrower, subsidiary, an associate promoter of CRA, if there are common Chairman, Directors and Employees between the CRA or its rating committee and these entities. A CRA can not rate a security issued by its associate or subsidiary if the CRA or its rating committee has a Chairman, Director or Employee who is also a Chairman, Director or Employee of any such entity. CRAs would have to carry out periodic reviews of the ratings given during the lifetime of the rated instrument. For ensuring that corporate provide correct/ adequate information to CRAs, a clause would be incorporated in the listing agreement of the stock exchanges requiring the companies to co-operate with the rating agencies in giving correct and adequate information. Issuers coming out with a public/rights issue of debt securities would be required to incorporate an undertaking in the offer documents promising necessary co-operation with the rating agency in providing true and adequate information. Registration of Credit Rating Agencies [Reg. 3 & 4] Any person proposing to commence any activity as a credit rating agency should make an application to SEBI for the grant of a certificate of registration for the purpose. Any person, who before the said date carrying on any activity as a credit rating agency, should make an application to SEBI for the grant of a certificate within a period of three months from such date. However SEBI may, where it is of the opinion that it is necessary to do so, for reasons to be recorded in writing, extend the said period up to a maximum of six months from such date. An application for the grant of a certificate should be made to SEBI accompanied by a non-refundable specified application fee. Any person who fails to make an application for the grant of a certificate within the period specified in that sub-regulation, ceases to carry on rating activity. Promoter of Credit Rating Agency [Reg 4] SEBI should not consider an application unless the applicant is promoted by a person belonging to any of the following categories, namely: (i) a public financial institution; (ii) a scheduled commercial bank; (iii) a foreign bank operating in India with the approval of the Reserve Bank of India; (iv) a foreign credit rating agency recognized under Indian Law and having at least five years experience in rating securities; (v) any company or a body corporate, having continuous net worth of minimum rupees one hundred crores as per its audited annual accounts for the previous five years in relation to the date on which application to SEBI is made seeking registration. Eligibility Criteria [Reg 5] SEBI shall not consider an application for the grant of a certificate unless the applicant satisfies the following conditions, namely:

(a) the applicant is set up and registered as a company under the Companies Act, 2013; (b) the applicant has, in its Memorandum of Association, specified rating activity as one of its main objects; (c) the applicant has a minimum net worth of ` 5 crores. However a credit rating agency existing at the commencement of these regulations, with a net worth of less than ` 5 crores, shall be deemed to have satisfied this condition, if it increases its net worth to the said minimum within a period of three years of such commencement. (d) the applicant has adequate infrastructure, to enable it to provide rating services in accordance with the provisions of the Act and these regulations; (e) the applicant and the promoters of the applicant, have professional competence, financial soundness and general reputation of fairness and integrity in business transactions, to the satisfaction of SEBI;(f) neither the applicant, nor its promoter, nor any director of the applicant or its promoter, is involved in any legal proceeding connected with the securities market, which may have an adverse impact on the interests of the investors; (g) neither the applicant, nor its promoters, nor any director, of its promoter has at any time in the past been convicted of any offence involving moral turpitude or any economic offence;

(h) the applicant has, in its employment, persons having adequate professional and other relevant experience to the satisfaction of the SEBI;

Application to Conform to the Requirements [Reg 6] Any application for a certificate, which is not complete in all respects or does not conform to the requirement or instructions as specified should be rejected by SEBI. However before rejecting any application, the applicant should be given an opportunity to remove, within thirty days of the date of receipt of relevant communication, from SEBI such objections as may be indicated by SEBI. It has been further provided that SEBI may on sufficient reason being shown, extend the time for removal of objections by such further time, not exceeding thirty days to enable the applicant to remove such objections. Furnishing of Information, Clarification and Personal Representation [Reg 7] SEBI may require the applicant to furnish such further information or clarification as it consider necessary, for the purpose of processing of the application. SEBI if so desires, may ask the applicant or its authorised representative to appear before SEBI for personal representation in connection with the grant of a certificate. Grant of Certificate [Reg 8]

SEBI grants a certificate after getting satisfied that the applicant is eligible for the grant of a certificate of registration. The grant of certificate of registration should be subject to the payment of the specified registration fee in the manner prescribed. Conditions of Certificate [Reg 9] The certificate granted is subject to the condition that the credit rating agency should comply with the provisions of the Act, the regulations made thereunder and the guidelines, directives, circulars and instructions issued by SEBI from time to time on the subject of credit rating. The credit rating agency should forthwith inform SEBI in writing where any information or particulars furnished to SEBI by a credit rating agency is found to be false or misleading in any material particular; or has undergone change subsequently to its furnishing at the time of the application for a certificate. The period of validity of certificate of registration shall be three years. Procedure where Certificate is not granted [Reg 11] SEBI may reject the application if after considering an application is of the opinion that a certificate should not be granted or renewed, after giving the applicant a reasonable opportunity of being heard. The decision of SEBI not to grant or not to renew the certificate should be communicated by SEBI to the applicant within a period of thirty days of such decision, stating the grounds of the decision. Any applicant aggrieved by the decision of SEBI rejecting his application may, within a period of thirty days from the date of receipt by him of the communication apply to SEBI in writing for re-consideration of such decision. Where an application for re-consideration is made, SEBI should consider the application and communicate to the applicant its decision in writing, as soon as may be.

Effect of Refusal to Grant Certificate [Reg 12] An applicant whose application for the grant of a certificate has been rejected should not undertake any rating activity. An applicant, whose application for the grant of a certificate has been rejected by SEBI, should on and from the date of the receipt of the communication ceases to carry on any rating activity. If SEBI is satisfied that it is in the interest of the investors, it may permit the credit rating agency to complete the rating assignments already entered into by it, during the pendency of the application or period of validity of the certificate. SEBI in order to protect the interest of investors may issue directions with regard to the transfer of records, documents or reports relating to the activities of a credit rating agency, whose application for the grant or renewal of a certificate has been rejected and for this purpose also determines the terms and conditions of such appointment. Code of Conduct [Reg 13] Every credit rating agency is required to abide by the Code of Conduct as per SEBI Regulations: (1) A credit rating agency in the conduct of its business should observe high standards of

integrity and fairness in all its dealings with its clients. (2) A credit rating agency should fulfill its obligations in an ethical manner. (3) A credit rating agency should render at all times high standards of service, exercise due diligence, ensure proper care and exercise independent professional judgement. It shall wherever necessary, disclose to the clients, possible sources of conflict of duties and interests, while providing unbiased services. (4) The credit rating agency should avoid any conflict of interest of any member of its rating committee participating in the rating analysis. Any potential conflict of interest shall be disclosed to the client. (5) A credit rating agency should not indulge in unfair competition nor they wean away client of any other rating agency on assurance of higher rating. (6) A credit rating agency should not make any exaggerated statement, whether oral or written, to the client either about its qualification or its capability to render certain services or its achievements in regard to services rendered to other clients. (7) A credit rating agency should always endeavour to ensure that all professional dealings are effected in a prompt and efficient manner. (8) A credit rating agency should not divulge to other clients, press or any other party any confidential information about its client, which has come to its knowledge, without making disclosure to the concerned person of the rated company/client. Agreement with the client [Reg14] Every credit rating agency is required to enter into a written agreement with each client whose securities it proposes to rate, and every such agreement should include the following provisions, namely: (a) the rights and liabilities of each party in respect of the rating of securities shall be defined; (b) the fee to be charged by the credit rating agency shall be specified; (c) the client shall agree to a periodic review of the rating by the credit rating agency during the tenure of the rated instrument and to co-operate with the credit rating agency in order to enable the latter to arrive at, and maintain, a true and accurate rating of the clients’ securities and shall in particular provide to the latter, true, adequate and timely information for the purpose; (d) the credit rating agency shall disclose to the client the rating assigned to the securities of the latter through regular methods of dissemination, irrespective of whether the rating is or is not accepted by the client; (e) the client shall agree to disclose the rating assigned to the client’s listed securities by any credit rating agency during the last three years and any rating given in respect of the client’s securities by any other credit rating agency, which has not been accepted by the client in the offer document;

(f) the client shall agree to obtain a rating for any issue of debt securities in accordance with the relevant regulations Appointment of Compliance Officer [Reg 20AIt is under an obligation to appoint a compliance officer who will be responsible for monitoring the compliance of the Act, Rules and Regulations, notifications, guidelines, instructions etc issued by SEBI or the Central Government. The compliance officer should immediately and independently report to SEBI any non-compliance observed by him.

Maintenance of Books of Accounts Records, etc. [Reg 21] Credit rating agency should keep and maintain, for a minimum period of five years, the following books of accounts, records and documents, namely: (i) copy of its balance sheet, as on the end of each accounting period; (ii) a copy of its profit and loss account for each accounting period; (iii) a copy of the auditor’s report on its accounts for each accounting period. (iv) a copy of the agreement entered into, with each client; (v) information supplied by each of the clients; (vi) correspondence with each client;

Notice of Inspection or Investigation [Reg 30] SEBI shall give ten days written notice to the credit rating agency before ordering an inspection or investigation. SEBI in the interest of the investors may order in writing, direct that the inspection or investigation of the affairs of the credit rating agency to be taken up without such notice. During the course of an inspection or investigation, the credit rating agency against whom the inspection or investigation is being carried out should be bound to discharge all its obligations as provided in this regulation.

Obligations of Credit Rating Agency [Reg 31] It should be the duty of credit rating agency whose affairs are being inspected or investigated, and of every director, officer or employee thereof, to produce to the inspecting or investigating officer such books, accounts and other documents in its or his custody or control and furnish him with such statements and information relating to its rating activities, as the inspecting officer may require within such reasonable period as may be specified by the officer. The credit rating agency should allow the inspecting officer to have reasonable access to the premises occupied by such credit rating agency or by any other person on its behalf and extend to the inspecting officer reasonable facility for examining any books, records, documents and computer data in the possession of the credit rating agency

and to provide copies of documents or other materials which, in the opinion of the inspecting officer, are relevant for the purposes of the inspection or investigation, as the case may be. The inspecting officer, in the course of inspection or investigation, should be entitled to examine, or record the statements, of any officer, director or employee of the credit rating agency for the purposes connected with the inspection or investigation. Every director, officer or employee of the credit rating agency is bound to render to the inspecting officer all assistance in connection with the inspection or investigation which the inspecting officer may reasonably require. The inspecting officer should as soon as possible, on completion of the inspection or investigation, submit a report to SEBI. However if directed to do so by SEBI, he may submit an interim report. SEBI after considering the inspection report or the interim report referred to in regulation communicate the findings of the inspecting officer to the credit rating agency and give it a reasonable opportunity of being heard in the matter. SEBI may call upon the credit rating agency on receipt of the explanation, if any to take such measures as it may deem fit in the interest of the securities market and for due compliance with the provisions of the Act and the regulations. ACTION IN CASE OF DEFAULT [Reg 34] A credit rating agency which – (a) fails to comply with any condition subject to which a certificate has been granted; (b) contravenes any of the provisions of the Act or these regulations or any other regulations made under the Act; shall be dealt with in the manner provided under Chapter V of the Securities and Exchange Board of India (Intermediaries) Regulations, 2008. 4. Who are primary market intermediaries? Discuss SEBI Regulations with respect to Merchant Bankers and Underwriters. / What do you understand by bankers to the issue? Discuss the SEBI regulations with respect to bankers to issue. (2014)/ What do you understand by Merchant Bankers? Discuss the SEBI regulations with respect to Merchant Bankers. (2015)/What do you understand by Bankers to issue? Discuss the SEBI regulations with respect to Bankers to issue. (2016)

INTERMEDIARIES Intermediaries are service providers and are an integral part of any financial system. The market Regulator, SEBI regulates various intermediaries in the primary and secondary markets through its Regulations for these intermediaries. SEBI has defined the role of each of the intermediary, the eligibility criteria for granting registration, their functions and responsibilities and the code of conduct to which they are bound. These Regulations also empower SEBI to inspect the functioning of these intermediaries and to collect fees from them and to impose penalties on erring entities. As per Section 11 of SEBI Act, it is the duty of SEBI to register and regulate the working of stock brokers, sub-brokers, share transfer agents, bankers to an issue, trustees of trust deeds, registrars to an issue, merchant bankers,

underwriters, portfolio managers, investment advisers and such other intermediaries who may be associated with securities market in any manner. SEBI has issued regulations in respect of each intermediary to ensure proper services to be rendered by them to the investors and the capital market which is discussed below. PRIMARY MARKET INTERMEDIARIES The following market intermediaries are involved in the primary market: 1.

Merchant Bankers/Lead Managers

2.

Registrars and Share Transfer Agents

3.

Underwriters

4.

Bankers to issue

5.

Debenture Trustees.

1. MERCHANT BANKERS – ‘Merchant Banker’ means any person engaged in the business of issue management either by making arrangements regarding selling, buying or subscribing to securities or acting as manager, consultant, adviser or rendering corporate advisory services in relation to such issue management. They do not take any core banking activities. They provide the consultation services at the time of merger amalgamation and in lieu of their services they charge certain fees from clients.

SEBI (MERCHANT BANKERS) REGULATIONS, 1992 The activities of the merchant bankers in the Indian capital market are regulated by SEBI (Merchant Bankers) Regulations, 1992. Section 2 (cb) defines ‘merchant bankers’ “merchant banker” means any person who is engaged in the business of issue management either by making arrangements regarding selling, buying or subscribing to securities or acting as manager, consultant, adviser or rendering corporate advisory service in relation to such issue management; Regulation 3 of SEBI (Merchant Bankers) Regulations, 1992 lays down that an application by a person desiring to become merchant banker shall be made to SEBI in the prescribed form (Form A) seeking grant of a certificate of initial registration alongwith a non-refundable application fee as specified in Schedule II of these Regulations. The aforesaid application shall be made for any one of the following categories of the merchant banker namely:–

(a) Category I, that is – (i) to carry on any activity of the issue management, which will, inter alia, consist of preparation of prospectus and other information relating to the issue, determining financial structure, tie up of financiers and final allotment and refund of the subscriptions; and (ii) to act as adviser, consultant, manager, underwriter, portfolio manager; (b) Category II, that is to act as adviser, consultant, co-manager, underwriter, portfolio manager; (c) Category III, that is to act as underwriter, adviser, and consultant to an issue; (d) Category IV, that is to act only as adviser or consultant to an issue.

Regulation 4 and 5- deal with the methodology for application and furnishing of information, clarification and personal representation by the applicant. Incomplete or non-conforming applications shall be rejected after giving an opportunity to remove the deficiencies within a time specified by SEBI. Regulation 6 lists out the following considerations for being taken into account by SEBI to grant the certificate of registration. (a) the applicant shall be a body corporate other than a non-banking financial company as defined under clause (f) of section 45-I of the RBI Act, 1934; (b) the applicant has in his employment a minimum of two persons who have the experience to conduct the business of the merchant banker; (c) a person directly or indirectly connected with the applicant has not been granted registration by SEBI; (Here the expression “directly or indirectly connected” means any person being an associate, subsidiary or interconnected or group company of the applicant in case of the applicant being a body corporate) (d) the applicant fulfils the capital adequacy requirement; (e) the applicant, his partner, director or principal officer is not involved in any litigation connected with the securities market which has an adverse bearing on the business of the applicant; (f) the applicant, his director, partner or principal officer has not at any time been convicted for any offence involving moral turpitude or has been found guilty of any offence; (g) the applicant has the professional qualification from an institution recognised by the Government in finance, law or business management; (h) the applicant is a fit and proper person; (i) grant of certificate to the applicant is in the interest of investors. Regulation 7 prescribes that the capital adequacy requirement shall be a networth of not less than five crore rupees. (‘Networth’ means the sum of paid-up capital and free reserves of the applicant at the time of making application.) Regulation 8, 9A and 10 deal with procedure for registration, renewal of certificate conditions of registration and procedure where registration is not granted. Regulation 11 stipulate that on refusal of registration by SEBI, the applicant shall cease to carry on any activity as a merchant banker from the date of receipt of SEBI’s refusal letter. Regulation 12 provides for payment of fees and consequences of failure to pay annual fees. It

provides that SEBI may suspend the registration certificate if merchant banker fails to pay fees. GENERAL OBLIGATIONS AND RESPONSIBILITIES OF MERCHANT BANKER Chapter III of the Regulations containing Regulations 13 to 28 deal with general obligations and responsibilities of Merchant Bankers Regulation 13 stipulates that every merchant banker shall abide by the code of conduct which has been specified in Schedule III. Regulation 13A provides that no merchant banker other than a bank or a public financial institution who has been granted a certificate of registration shall carry on any business other than that of the securities market. However, a merchant banker who has been granted certificate of registration under these regulations may ensure market making in accordance with Chapter XB of SEBI (ICDR) Regulations, 2009. Regulations 14 to 17 deal with maintenance of books of accounts, records, submission of half-yearly results, rectifying deficiencies pointed out in the auditors report etc. Appointment of Compliance Officer- Regulation 28A requires every merchant banker to appoint a compliance officer who shall be responsible for monitoring the compliance of the Act, rules and regulations, notifications guidelines, instructions etc. issued by SEBI or Central Government and for redressal of investor grievances. Compliance officer is required to immediately and independently report to SEBI, any non-compliance observed by him and ensure that observations made or deficiencies pointed out by SEBI on/in the draft prospectus or letter of offer as the case may be, do not occur. Procedure For Inspection Chapter IV containing Regulations 29 to 34 lays down the procedure for inspection of the merchant bankers offices and records by SEBI. Regulation 29 empowers SEBI to appoint one or more persons as inspecting authority to undertake inspection of books of accounts, records etc. of the merchant banker, to ensure that such books and records are maintained in the prescribed manner, the provisions of SEBI Act and the rules and regulations there under are complied with to investigate into complaints from investors, other merchant bankers or other persons on any matter having a bearing on the activities of the merchant banker and to investigate suo-motu in the interest of the securities business or investors interest into the working of the merchant banker. Regulation 30 and 31 authorise SEBI to undertake such inspection with or without notice and the obligations of the merchant bankers in relation to such inspection. Regulation 32 provides for the submission of an inspection report to SEBI by the inspecting authority on completion of inspection. Regulation 33 requires that SEBI or chairman shall after consideration of inspection or investigation report take such action as SEBI or chairman may deem fit and appropriate including action under Chapter V of the SEBI (Intermediaries) Regulations, 2008.

Regulation 34 permits SEBI to appoint a qualified auditor to investigate into the books of accounts or the affairs of the merchant banker and such auditor shall have the same powers of the inspecting authority referred to above. 2. REGISTRARS AND SHARE TRANSFER AGENTS The Registrars to an Issue and Share Transfer Agents constitute an important category of intermediaries in the primary market. They render very useful services in mobilising new capital and facilitating proper records of the details of the investors, so that the basis for allotment could be decided and allotment ensured as per SEBI Regulations. SEBI (REGISTRARS TO AN ISSUE AND SHARE TRANSFER AGENTS) REGULATIONS, 1993 SEBI (Registrars to an Issue and Share Transfer Agents) Regulations, 1993 were notified by SEBI on 31st May, 1993 in exercise of the powers conferred by Section 30 of SEBI Act, 1992, with the approval of Central Government.

3. UNDERWRITERS Underwriters represent one of the key elements among the capital market intermediaries. They facilitate raising of capital by assuring to take up the unsubscribed portion upto a specified limit. Underwriting is an arrangement whereby certain parties assure the issuing company to take up shares, debentures or other securities to a specified extent in case the public subscription does not amount to the expected levels. For this purpose, an arrangement (agreement) will be entered into between the issuing company and the assuring party such as a financial institution, banks, merchant banker, broker or other person.

SEBI (UNDERWRITERS) REGULATIONS, 1993 Section 2(f) defines ‘underwriter’- “underwriter” means a person who engages in the business of underwriting of an issue of securities of a body corporate; 2(fa) defines -- “underwriting” means an agreement with or without conditions to subscribe to the securities of a body corporate when the existing shareholders of such body corporate or the public do not subscribe to the securities offered to them. These regulations were notified by SEBI in exercise of the powers conferred by Section 30 of SEBI Act, 1992 with the approval of Central Government. Chapter I contains preliminary matters including definitions. Chapter II deals with the procedure for registration of underwriters and it contains Regulations 3 to 12. Regulation 3 lays down that the applicant seeking the certificate shall apply to SEBI in form A. Regulation 4 and 5 requires the applicant to furnish further information and clarification to SEBI regarding matters relevant to underwriting. If SEBI on receipt of further information is

of the opinion that the information so furnished is not sufficient to decide on the application and seeking further information through correspondence may delay the matter, it may require the applicant or its principal officer to appear before SEBI in order to give an opportunity to the applicant to give further clarifications on the application.

Regulation 5 provides that an application not complete in all respects and not conforming to instructions specified in the form would be rejected. The applicant would be given an opportunity to remove within one month, the objections as may be indicated by SEBI. SEBI may however extend the time by another one month in order to enable the applicant to comply with the requirements of SEBI. Regulation 6 prescribes the following conditions for consideration of the application: 1. The applicant shall have necessary infrastructure like adequate office space, equipments and manpower and past experience in underwriting, employing at least two persons with such experience. No person directly or indirectly connected with the applicant should have been granted registration by SEBI. SEBI shall take into account whether a previous application for a certificate of any person directly or indirectly connected with the applicant has been rejected by SEBI or any disciplinary action has been taken against such person under the Act or any rules/regulations. 2. The applicant should be a fit and proper person, fulfilling the capital adequacy requirements and no director, partner or principal officer should have been at any time convicted for an offence involving moral turpitude or found guilty of any economic offence. Regulation 7 prescribes for the following capital adequacy requirement: 1. The networth should not be less than ` 20 lakhs. 2. The stock broker who acts as a underwriter should have capital adequacy as prescribed by the stock exchange of which he is a member. Regulations 8 and 8A, 9A deal with grant of certificate of initial registration and permanent registration, conditions of registration. Regulations 10 and 11 deal with the procedure where registration is not granted and the effect of refusal to grant certificate of permanent registration. Regulation 12 prescribes fees payable and consequences of failure to pay fees. OBLIGATIONS AND RESPONSIBILITIES OF UNDERWRITERS Chapter III consisting of Regulation 13 to 18 deals with these matters. Every underwriter shall abide by the code of conduct at all times.

Regulation 16 to 18 relate to maintenance of proper accounts, books and records and their preservation for 5 years and SEBI’s power call for and obtain information from the underwriter. INSPECTION AND DISCIPLINARY PROCEEDINGS Chapter IV containing Regulations 19 to 24 makes provisions on this subject. SEBI is empowered to appoint inspectors to ensure that books of accounts, records etc. are maintained properly and the Act along with the rules and regulations are duly complied with. SEBI is also empowered to investigate into complaints received from investors, other underwriters etc. as well as under their own power to investigate suo motu in the interest of securities business and the investors. Regulations 20 and 21 lay down the procedure for inspection and obligations of underwriter during such inspections. Regulations 22 relate to submission of inspection report to SEBI. Regulation 23 provides that SEBI or the chairman after the consideration of inspection or investigation report may take action under Chapter V of SEBI (Intermediaries) Regulations, 2008. Regulation 24 authorises SEBI to appoint a qualified auditor to investigate into the affairs and the accounts of the underwriter with the same powers as applicable in the case of SEBI appointed inspecting authority.

4. BANKER TO AN ISSUEMeans a scheduled bank carrying on all or any of the following activities: •

Acceptance of application and application monies;

•

Acceptance of allotment or call monies;

•

Refund of application monies;

•

Payment of dividend or interest warrants.

SEBI (BANKERS TO AN ISSUE) REGULATIONS, 1994 SEBI notified these regulations effected from 14th July, 1994 in exercise of the powers conferred by Section 30 of SEBI Act, 1994 after approval by the Central Government. Chapter I deals with preliminary matters and definitions. Chapter II containing Regulations 3 to 11 deals with procedure of registration for Bankers to an Issue with SEBI. Regulations 3 to 5 prescribe that the application by a scheduled bank for grant of certificate of initial registration as a banker to an issue should be made to SEBI in Form A conforming to the instructions therein failing which, it shall be rejected after giving due opportunity to remove

such defects within specified time. SEBI may call for and obtain further information or clarification from the applicant. CONSIDERATION OF APPLICATION Regulation 6 prescribes the matters that are considered by SEBI in relation to the application: (a) the applicant has the necessary infrastructure, communication and data processing facilities and manpower to effectively discharge his activities; (b) the applicant or any of its directors is not involved in any litigation connected with the securities market and which has an adverse bearing on the business of the applicant or has not been convicted of any economic offence; (c) the applicant is a scheduled bank; (d) the applicant is a fit and proper person; (e) grant of certificate to the applicant is in the interest of investors. PROCEDURE FOR REGISTRATION Regulations 7, 7A, and 8A deal with the grant of certificate of initial registration and permanent registration, conditions of registration. Regulation 9 relates to the procedure where the registration is not granted, leading to the rejection of the application after giving an opportunity to the applicant to be heard. The applicant has right to appeal for reconsideration and SEBI shall reconsider the application and communicate its decision to the applicant in writing. Regulation 10 lays down that the applicant whose application is refused by SEBI shall cease to carry on any activity as a banker to an issue from the date on which he receives the communication of refusal. Regulation 11 imposes the duty on the applicant to pay the fees as prescribed. Non-payment of fees may result in suspension of the registration and the applicant shall cease to carry on the activity as a banker to the issue during the period of suspension. GENERAL OBLIGATIONS AND RESPONSIBILITIES Regulation 12 requires every banker to an issue to maintain the following records with respect to: (a) the number of applications received, the names of the investors, the dates on which the applications were received and the amounts so received from the investors; (b) the time within which the applications received from the investors were forwarded to the body corporate or registrar to an issue as the case may be; (c) the dates and amount of the refund monies paid to the investors; (d) dates, names and amount of dividend/interest warrant paid to the investors. The Banker to an issue shall intimate to SEBI about the place where these documents are kept and shall preserve them for a minimum period of 3 years. Regulation 13 requires the banker to inform SEBI as to the number of issues for which he was engaged as banker and certain other additional information regarding the monies received, the refunds made and the dividend/ interest warrant paid. Regulation 14 requires the banker to enter into an agreement with the body corporate for whom he is the banker to an issue with regard to the following matters: (a) the number of centres at which the application and the application monies of an issue of a body corporate will be collected from the investors; (b) the time within which the statements regarding the applications and the application monies received from the investors investing in an issue of a

body corporate will be forwarded to the registrar to an issue of the body corporate, as the case may be; (c) the daily statement will be sent by the designated controlling branch of the bankers to the issue to the registrar to an issue indicating the number of body corporate and the amount of application money received. Regulation 15 requires the banker to issue to inform SEBI about disciplinary action taken, if any by the RBI against him in relation to issue payment work. If as a result of such action the banker to issue is prohibited from carrying on the activities, the certificate shall be deemed to have been cancelled or suspended as the case may be. CODE OF CONDUCT Regulation 16 prescribes that every banker to an issue shall abide by the Code of Conduct as specified in Schedule III of the Regulations. COMPLIANCE OFFICER Regulation 16A provides that every banker to an issue is required to appoint a compliance officer responsible for monitoring the compliance of the Act, rules and regulations, notifications, guidelines, instructions etc. issued by SEBI or Central Government. He shall also be entrusted with the responsibility of redressal of investors’ grievances. He is required to immediately and independently report to SEBI regarding any non-compliance observed by him. PROCEDURE FOR INSPECTION Chapter IV containing Regulation 17 to 22 deals with inspection of Banker to an Issue. Regulation 17 and 18 authorise SEBI to request RBI to undertake inspection of the books of accounts, records and documents of the banker, to ensure their proper maintenance, and compliance with SEBI Act, Rules and Regulations, to investigate into the complaints received from investors, body corporates or any other person an any matter having a bearing of the activities of the banker as a banker to an issue and to investigate into any other matter referred by SEBI. Regulation 19 lays down that RBI shall on receipt of the request from SEBI take appropriate steps to undertake inspection of Bankers to an Issue for such purposes as may be required by SEBI. Regulation 20 requires that the banker shall offer all assistance and co-operation to RBI’s inspecting officers to facilitate the inspection. Regulation 21 stipulates that the RBI shall furnish to SEBI, copy of the inspection report along with copies of other relevant documents in support of the observations made by the inspecting authority. ACTION ON INSPECTION OR INVESTIGATION REPORT SEBI or the Chairman after consideration of inspection or investigation report may take such action as the SEBI or its chairman may deem fit and appropriate including action under Chapter V of SEBI (Intermediaries) Regulations, 2008. PROCEDURE FOR ACTION IN CASE OF DEFAULT

Regulation 23 provides that banker to an issue who contravenes any of the provisions of the Act, rules or regulations framed thereunder, shall be dealt with in the manner provided under Chapter V of the SEBI (Intermediaries) Regulations, 2008.

DEBENTURE TRUSTEES Debentures, Bonds and other hybrid instruments in most cases unless otherwise specified, carry securities for the investors unlike in the case of equity and preference shares. It is necessary that the company makes proper arrangements to extend assurances and comply with legal requirements in favour of the investors who are entitled to this type of security. Intermediaries such as Trustees who are generally Banks and Financial Institutions render this service to the investors for a fee payable by the company. The issuing company has to complete the process of finalising and executing the trust deed or document and get it registered within the prescribed period and file the charge with the Registrar of Companies (ROC) in respect of the security offered. SEBI (DEBENTURE TRUSTEES) REGULATIONS, 1993 These regulations were notified by SEBI effective from 29th December, 1993 in exercise of the powers conferred by Section 30 of SEBI Act, 1992 after previous approval of the Central Government. Chapter I contains preliminary matters and definitions. Chapter II consisting Regulations 3 to 12 deals with the procedure for initial or permanent registration of debenture trustees. Regulation 3 stipulates that the application for registration shall be made in Form A. Schedule II of these regulation accompanied by a non-refundable application fee as prescribed in Regulation 4 authorises SEBI to call for and obtain further information from the applicant before granting the registration. The applicant or its principal officer may, if so required, appear before SEBI for personal representation. Regulation 5 stipulates that an application which is incomplete and does not conform to instructions shall be rejected after giving an opportunity to the applicant to remove such objections within time specified. Regulation 6 lays down that SEBI shall take into account the following matters in considering the application, namely that the applicant: (1) has the necessary infrastructure like adequate office space, equipments, and manpower to effectively discharge his activities; (2) has any past experience as a debenture trustee or has in his employment minimum two persons who had the experience in matters which are relevant to a debenture trustee; or (3) any person, directly or indirectly connected with the applicant has not been granted registration by SEBI under the Act; (4) has in his employment at least one person who possesses the professional qualification in law from an institution recognised by the Government; or (5) any of its director or principal officer is or has at any time been convicted for any offence involving moral turpitude or has been found guilty of any economic offence and is a fit and proper person; (6) is a fit and proper person; (7) fulfills the capital adequacy requirements specified in Regulation 7A of these Regulations.

Regulation 7 lays down that to be a debenture trustee the applicant shall be a scheduled bank carrying on commercial activity, a public financial institution, an insurance company or a body corporate. Regulation 7A of the Regulations provide that the capital adequacy requirement of debenture trustee shall not be less than the networth of 2 crore. Regulations 8 and 9A deal with the procedure for registration and the renewal thereof, conditions of registration, time period for disposal of application and period of validity of certificate. Regulation 10 lays down that if an applicant does not fulfill the requirements of Regulation 6 above, it may be rejected after giving reasonable opportunity to the applicant for being heard. The rejection shall be conveyed in writing by SEBI and the applicant may again apply for reconsideration of SEBI. After due reconsideration SEBI shall communicate its bindings in writing to the applicant. Regulations 11 and 12 deal with effect of refusal to grant certificate of permanent registration by SEBI and nonpayment of fees by the applicant. In the absence of a valid certificate the trustee shall cease to act as a debenture trustee. RESPONSIBILITIES AND OBLIGATIONS OF DEBENTURE TRUSTEES Chapter III containing Regulations 13 to 18 deals with this topic. Regulation 13 lays down that no debenture trustee who has been granted a certificate by SEBI shall act as debenture trustee unless he enters into a written agreement with the body corporate before the opening of the subscription list for issue of debentures and the agreement inter alia contains that debenture trustee has agreed to act as such under the trust deed for securing an issue of debentures for the body corporate and the time limit within which the security for the debentures shall be created. Regulation 13A stipulates that no debenture trustee shall act as such for any issue of debentures in case: (a) it is an associate of the body corporate; or (b) it has lent and the loan is not yet fully repaid or is proposing to lend money to the body corporate. However, the requirement shall not be applicable in respect of debentures issued prior to the commencement of Companies (Amendment) Act, 2000 where – (i) recovery proceedings in respect of the assets charged against security has been initiated or the body corporate has been referred to Board for Industrial and Financial Reconstruction under Sick Industrial Companies (Special Provisions) Act, 1985 prior to commencement of SEBI (Debenture Trustee) Regulations, 2003. Regulation 14 provides that every debenture trustee shall amongst other matters accept the trust deed which contains the matters specified in Schedule IV to the Regulations. DUTIES OF DEBENTURE TRUSTEES—

Regulation 15 casts the following duties on the debenture trustees: (1) call for periodical reports from the body corporate; (2) take possession of trust property in accordance with the provisions of the trust deed; (3) enforce security in the interest of the debenture holders; (4) do such acts as necessary in the event the security becomes enforceable; (5) carry out such acts as are necessary for the protection of the debenture holders and to do all things necessary in order to resolve the grievances of the debenture holders—see regulations too many provisions MAINTENANCE OF RECORDS Regulations 17 and 18 deal with maintenance of books of accounts, records and documents relating to trusteeship functions for a period of not less than five financial years preceding the current financial year. Every debenture trustee would inform SEBI about the place where the books of accounts records and documents are maintained and furnish various information to SEBI. APPOINTMENT OF COMPLIANCE OFFICER Every debenture trustee is required to appoint a compliance officer responsible for monitoring the compliance of the Act, rules and regulations, notifications, guidelines, instructions etc. issued by SEBI or Central Government. He is also responsible for redressal of investor grievances. The compliance officer is under an obligation to immediately and independently report to SEBI any non-compliance observed by him. He would also report any non-compliance of the requirements specified in the listing agreement with respect to debenture issues and debentureholders, by the body corporate to SEBI. INFORMATION TO SEBI Debenture trustee is required to submit the following information and documents to SEBI, as and when SEBI may require – (a) The number and nature of the grievances of the debenture holders received and resolved. (b) Copies of the trust deed. (c) Non-Payment or delayed payment of interest to debenture holders, if any, in respect of each issue of debentures of a body corporate. (d) Details of despatch and transfer of debenture certificates giving therein the dates, modes etc. (e) Any other particular or document which is relevant to debenture trustee. ACTION ON INSPECTION OR INVESTIGATION REPORT Chapter IV consisting of Regulation 19 to 24 deals with inspection and disciplinary proceedings. SEBI Board or chairman, may after consideration of inspection or investigation report take such action as the Board or chairman may deem fit and appropriate including action under Chapter V of SEBI (Intermediaries) Regulations, 2008. PROCEDURE FOR ACTION IN CASE OF DEFAULT Regulation 25 of Chapter V lays down that a debenture trustee would be dealt with in the manner provided under Chapter V of SEBI (Intermediaries) Regulations, 2008, if he fails to

comply with the conditions of registration, contravenes the provisions of SEBI Act/Companies Act, Rules and Regulations