Money from abroad only after RBI accord: SC on Sahara

The court agreed that legal impediments in the transfer of money requires special permission by competent authority under the Foreign Exchange Management Act

The Supreme Court today said that the money likely to be arranged by Sahara Group from overseas to raise Rs 10,000 crore for the release of its jailed chief Subrato Roy would come into the country only after necessary clearances by RBI.

The court agreed that legal impediments in the transfer of money from escrow account of foreign bank agent requires special permission by competent authority under the Foreign Exchange Management Act (FEMA).

A bench headed by Justice T S Thakur said before the issue of transaction of amount from escrow account was settled, it would not like to pass any order on the issue.

"We do not consider it necessary to pass any direction on transfer of proposed account which exists of third party. Any direction can be passed on satisfaction of SEBI and amicus curiae," the bench, also comprising Justices A R Dave and A K Sikri said.

The issue came after senior advocate Shekhar Naphade, who is assisting the court as an amicus curiae, submitted that the legal requirement for external commercial borrowing requires clearance under FEMA which has not been complied with by the Sahara Group.

The court was hearing the issue of Sahara seeking its nod for raising 'junior loan' of USD 650 million (approx. Rs 3,600 crore) as a part of the scheme to overcome the liability with Bank of China which had lent money to it in purchasing stakes in three overseas hotels, Dream Downtown and The Plaza in New York and Grosvenor House in London.

The bench said certain aspects arising out of the foreign properties have to be verified, specifically the amount likely to be deposited in the SEBI-Sahara refund account.

Sahara also informed the bench that the escrow account has been shifted to Bank of America.

The Bench made it clear that it was not ready to consider any plea to allow Roy to walk out of the jail for some period to arranging money for his bail.

"Let us be realistic you can come out only if you make the payment," the bench said adding that Roy has to pay Rs 5000 crore and another Rs 5000 crore as bank guarantee.

"We don't see any change in the circumstances going by the history of the litigation. The balance amount you are unable to arrange for your release. What will happen after you are released for payment and refund to investors," the bench asked.

However, the bench gave relief to multiple depositors by lifting its earlier order restraining SEBI from reimbursing their amount.

"There is no reason why they should not get back their deposit with interest," the bench said while giving relief to 2781 such depositors whose credentials were verified by the SEBI and would lead to reimbursement of around Rs 28.10 crore.

The apex court also gave some relief to Sahara Group by agreeing that it should be allowed to operate bank accounts which are in the names of its various companies.