JUDGMENT AND ORDER : 1. Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. B. Dutta, learned counsel appearing for the respondents Nos. 1-11, Mr. P.K. Pal, learned counsel appearing for the respondents No. 12 & 13, Mr. D.C. Roy, learned counsel appearing for the respondents No. 14(ii) and Mr. A. Lodh, learned counsel appearing for the respondents No. 14(iii), 14(iv) & 14(v). 2. By means of this writ petition, the petitioner who invested in the Pinnacle Ventures India Limited Company [PVIL in short] incorporated under the Companies Act, 1956 has urged for protection and payment with accrued yield of his investment. According to the petitioner, the petitioner invested by way of subscribing preference share worth of Rs. 50,000/- in the company-respondent. The petitioner has asserted that under the preference share issued during the financial years 2011-12, 2012-13, PVIL allotted preference shares, total being 9234 to individuals/investors and mobilized funds amounting to Rs. 3.85 crores approximately. In the context of allotment of the preference shares and the amount mobilized therein and when viewed in the light of refusal to submit the complete and relevant information to SEBI, by PVIL and its Directors, it would prima facie indicate that the preference shares were under public issue of securities. Number of persons to whom such issue was made, was above the limit of 49(forty nine) percent as prescribed under Section 67(3) of the Companies Act, 1956. 3. The petitioner has further asserted that the PVIL is not a non-banking financial company or a public financial institution within the meaning of Section 4A of the Companies Act, 1956 and therefore it is not covered under the second proviso to Section 67(3) and the Section 73(2) of the Companies Act, 1956. 4. Mr. Somik Deb, learned counsel appearing for the petitioner has asserted that the PVIL had the obligation to refund the amount with yield as collected from investors under the preference share issued. There is no instance that the PVIL has paid interest to the investors if such preference shares are not allotted within 8(eight) days. Even the PVIL as it surfaces did not deposit the amount collected from the investor's in a separate account, as it required under Section 73(3) of Companies Act, 1956, in a scheduled bank. 5. There is no instance that the PVIL has paid interest to the investors if such preference shares are not allotted within 8(eight) days. Even the PVIL as it surfaces did not deposit the amount collected from the investor's in a separate account, as it required under Section 73(3) of Companies Act, 1956, in a scheduled bank. 5. Having apprehensive by the turn of events, the petitioner has filed this writ petition for issuing the direction on the respondent-company and its Directors to return the investment made by the petitioner along with the promised return yield. It is not in dispute that before filing the writ petition on 01.09.2015, the Securities and Exchange Board of India [SEBI in short] on 24.07.2015 had come in season in the similar subject matter, but that fact was not noticed in the writ petition in a substantive manner. There is no dispute in the bar that the SEBI by the order dated 24.07.2015 has taken the following actions against the PVIL and passed further remedial measures in the form of the order: “Therefore, I in exercise of the powers conferred under section 19 of the Securities and Exchange Board of India Act, 1992 read with Sections 11(1), 11(4), 11A and 11-B thereof, hereby issue the following directions: (a) Pinnacle Ventures India Limited shall forthwith refund the money collected by the Company through the issuance of preference shares, including the money collected from investors, till date, pending allotment of securities, if any, with an interest of 15% per annum compounded at half yearly intervals, from the date when the repayments became due (in terms of Section 73(2) of the Companies Act, 1956) to the investors till the date of actual payment. (b) The directors of the Company namely, Shri Rohit Agarwal, Shri Ram Kumar, Shri Ashole Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, shall forthwith refund the money collected by the Company through the issuance of preference shares, including the money collected from investors, till date, pending allotment of securities, if any, with an interest of 15% per annum compounded at half yearly intervals, from the date when the repayments became due (in terms of Section 73(2) of the Companies Act, 1956) to the investors till the date of actual payment. (c) The repayments and interest payments to investors shall be effected only through Bank Demand Draft or Pay Order. (d) Pinnacle Ventures India Limited, Shri Rohit Agarwal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, shall issue public notice, in all editions of two National Dailies (one English and one Hindi) and in one local daily (in Bengali) with wide circulation, detailing the modalities for refund, including details of contact persons including names, addresses and contact details, within fifteen days from the date of this Order. (e) After completing the aforesaid repayments, Pinnacle Ventures India Limited, Shri Rohit Agarwal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, shall file a report of such completion of repayment with SEBI, within a period of three months from the date of this order, certified by two independent peer reviewed Chartered Accountants who are in the panel of any public authority or public institution. For the purpose of this Order, a peer reviewed Chartered Accountant shall mean a Chartered Accountants of India (“ICAI”). (f) Shri Rohit Agarwal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, are directed to provide a full inventory of all their assets and properties and details of all their accounts, demat accounts and holdings of shares/securities, if held in physical form. (g) In case of failure of Pinnacle Ventures India Limited, Shri Rohit Agarwal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, to comply with the aforesaid directions, SEBI, on the expiry of the three months period from the date of this order: (1) shall recover such amounts in accordance with Section 28-A of the SEBI Act including such other provisions contained in securities laws. (2) may initiate appropriate action against the Company, its promoters/directors and the persons/officers who are in default, including adjudication proceedings against them, in accordance with law. (2) may initiate appropriate action against the Company, its promoters/directors and the persons/officers who are in default, including adjudication proceedings against them, in accordance with law. (3) would make a reference to the State Government/Local Police to register a civil/ criminal case against the Company, its promoters, directors and its managers/persons in-charge of the business and its schemes, for offences of fraud, cheating, criminal breach of trust and misappropriation of public funds. (h) Pinnacle Ventures India Limited and its directors Shri Rohit Agarwal, Shri Ram Kumar, Shri Ashoke Ghosh, Shri Kousik Sarker, Shri Anjan Chatterjee, Shri Tapas Sarkar, Shri Sulalit Biswas and Shri Tridib Narayan Basu, are directed not to, directly or indirectly, access the securities market, by issuing prospectus, offer document or advertisement soliciting money from the public and are further restrained and prohibited from buying, selling or otherwise dealing in the securities market, directly or indirectly in whatsoever manner, from the date of this Order, till the expiry of 4 years form the date of completion of refunds to investors as directed above. The above said directors are also restrained from associating themselves with any listed public company and any public company which intends to raise money from the public, or any intermediary registered with SEBI from the date of this Order till the expiry of 4 years from the date of completion of refunds to investors. (i) The above directions shall come into force with immediate effect.” 6. It has been further observed in that order that the order is without prejudice to any action, including adjudication and prosecution proceedings that might be taken by SEBI in respect of the above violations committed by the PVIL, its promoters, directors and other key persons. A copy of that order was also sent to the Official Liquidator at Calcutta, for settling the priority claim as raised by the SEBI. The crux of the order is that the PVIL shall forthwith refund the money collected by the company issuing the preference shares including the money collected from investors till date, pending allotment of securities if any, with an interest of 15% per annum compounded with half yearly intervals, from the date when the repayment became due in terms of Section 73(2) of the Companies Act to the investor till the date of actual payment. 7. The SEBI has filed their counter-affidavit. 7. The SEBI has filed their counter-affidavit. In terms of the order passed by this court on 21.06.2016. The SEBI has also filed an additional counter-affidavit disclosing the status of the recovery. The said affidavit was filed on 30.07.2016 by the SEBI. But later on, they filed one petition for amendment of the said additional counter-affidavit on 09.09.2016. Even though the due process has not been followed, but this court taking a special view would allow the SEBI to amend the said additional counter-affidavit filed on 30.07.2016 in terms of the schedule of the said petition for amendment filed on 09.09.2016. The Registry is directed in view of this order to amend the additional counter-affidavit filed on 30.07.2016 in terms of the schedule as provided below the amendment petition/counter- affidavit dated 09.09.2016, which reads as under: “............SEBI has initiated recovery proceedings vide Certificate No. 934 of 2016 against the company and its directors under Section 28-A of the SEBI Act for recovery of Rs. 3.85 crores along with assured returns, interest, costs, etc.” 8. This court had on 21.06.2016 directed the SEBI in the background of the winding up petition and appointment of the Official Liquidator by the Calcutta High Court that by filing an additional affidavit the SEBI shall disclose what action it has taken on expiry of 3(three) months after passing of the order dated 24.07.2015 and how the SEBI has interfaced with the Official Liquidator who has taken control of assets and other properties of the company as reported by Mr. A. Lodh, learned counsel for the respondents No. 14(iii), 14(iv) and 14(v). It had been further directed that the SEBI may proffer suggestions in respect of protection of interest of the investors who had deposited a substantial sum against preferential shares. If the SEBI is inclined to lay further information or their plan/scheme, they shall remain at liberty to lay such schemes in order to protecting the investors, for whom the designated officer had filed the complaint to the SEBI. As stated the said affidavit has been filed for consideration of this court. In the said additional counter-affidavit dated 30.07.2016, the SEBI has reiterated that they had taken initiatives for recovery of Rs. As stated the said affidavit has been filed for consideration of this court. In the said additional counter-affidavit dated 30.07.2016, the SEBI has reiterated that they had taken initiatives for recovery of Rs. 3.85 crores as collected by the PVIL through the issuance of the preferential shares and all money collected from the investors till 24.07.2015 pending allotment of the security if any with an interest of 15% compounded at half yearly intervals, from the date when the repayments became due to the investors till the date of actual payments along with further interest, all costs, charges and expenses incurred in respect of all proceedings taken for recovery of the said sum in accordance with Section 28-A of the SEBI Act including such provisions contained in the securities and laws. The SEBI has also stated as under: “Be it stated that, in the SEBI Order dated July 24, 2015, the Hon'ble High Court of Calcutta, has vide order dated March 19th, 2015 directed the company to be wound up with immediate effect and a liquidator has been appointed with a direction to take possession forthwith of all the assets and properties of Pinnacle Ventures India Limited. Since under the Companies Act, 1956 no proceedings can be initiated, and/or continued without the leave of the Court which has passed the winding up order, SEBI has now initiated the process of obtaining leave of the Hon'ble High Court of Calcutta for initiating recovery proceedings against the company and its directors under section 28-A of the SEBI Act. Accordingly, a copy of the Recovery certificate no. 934 of 2016 dated 21.07.2016 has been forwarded to the Official Liquidator attached to High Court, Calcutta vide letter dated 21.07.2016 requesting to include the said claims under the head of ''Priority Claims." The SEBI has initiated the recovery proceedings vide certificate No. 934 of 2016 against the company and its directors under section 28-A of the SEBI Act for recovery of Rs. 3.85 crores along with returns interests etc. etc. 9. It has been further averred that Section 28A(3) of the SEBI Act provides as under: “Notwithstanding anything contained in any other law for the time being in force, the recovery of amounts by a Recovery Officer under sub-section (1), pursuant to non- compliance with any direction issued by the Board under section 11-B shall have precedence over any other claim against such person. 10. 10. As the PVIL has failed to refund the money to the investors as directed by the SEBI u/s 11B of SEBI Act, the Recovery Officer sent a letter dated 21.07.2016 to the Official Liquidator attached to the High Court of Calcutta requesting to account the amounts mentioned in the recovery certificate under the head of "Priority Claims." 11. It has been further asserted that in execution of the recovery certificate, the SEBI in exercise of power conferred under section 28-A (a) & (b) of SEBI Act attached bank account demat, mutual fund of the directors of PVIL by issuing notices of attachment dated July 21, 2016. In the paragraph6 of the said additional counter-affidavit, the SEBI has also revealed that by another letter under No. ERO/OW/PM/AR/M-2018/2015 dated 6th November, 2015, the SEBI requested the “Regional Director (Eastern Region), Ministry of Corporate Affairs, Kolkata” to initiate the process of winding up of Pinnacle Ventures India Limited for failing to repay the investors. It is already noted that Calcutta High Court has already permitted winding up of the company, the PVIL by engaging a financial liquidator who has set in the statutory proceeding for accepting the demand charge from the concerned persons. The SEBI has intervened on the basis of the certificate for recovery of Rs. 3.85 crore in the interest of the investors. 12. Mr. Somik Deb, learned counsel appearing for the petitioner has expressed in apprehension whether this proceeding as taken by the SEBI under section 11 of the SEBI Act, in respect of the investments which are not by way of the preferential share would be effective. But from a bare reading of the order of SEBI, it transpires clearly that not only the preferential share but also other investments have been taken care while determining the liability of the payment by the said company. 13. Having noticed as above, this court is of the view that interest of the petitioner is being taken care by the SEBI and they are representing the investors before the Official Liquidator for Priority Claims to the extent of Rs. 3.85 crores. 13. Having noticed as above, this court is of the view that interest of the petitioner is being taken care by the SEBI and they are representing the investors before the Official Liquidator for Priority Claims to the extent of Rs. 3.85 crores. As a measure of abundant caution, the respondents No. 12 and 13 are directed that if the investors like the petitioner are for any reason left out, the SEBI shall include their claims as has been reflected in this writ petition for purpose of recovery and if necessary, a supplementary proceeding under section 11 of the SEBI Act shall be taken up. 14. With this observations and direction, this writ petition stands disposed of. There shall be no order as to costs.