FRANKLIN TEMPLETON TRUSTEE SERVICES PRIVATE LIMITED AND ANOTHERversusAMRUTA GARG AND OTHERS ETC.

880                      [2022]REPORTS
               SUPREME COURT    6 S.C.R. 880                 [2022] 6 S.C.R.


A        FRANKLIN TEMPLETON TRUSTEE SERVICES PRIVATE
                    LIMITED AND ANOTHER
                                         v.
                    AMRUTA GARG AND OTHERS ETC.
B                            I. A. NO. 53453 of 2022
                                         in
                       (Civil Appeal Nos. 498-501 of 2021)
                                AUGUST 12, 2022
C           [S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]
             Security and Exchange Board of India (Mutual Funds)
      Regulations, 1996 – Regulation 52 – Applicability – Regulation 52,
      which relates to and permits deduction of expenses including
      commission payable to the distributor, is applicable when the scheme
D     is in operation, and not post the decision of the trustees in terms of
      Regulation 39(2)(a) read with Regulation 39(3), when, upon
      publication of notices, the ceasure mandate of Regulation 40 is
      triggered.
             Security and Exchange Board of India (Mutual Funds)
E     Regulations, 1996 – Regulations 40 and 52 – Held: Regulations 40
      and 52 need to be read harmoniously – When read together,
      Regulation 52, authorising and specifying the limit of the fees and
      expenses payable to the asset management company, would apply
      only when the scheme is in operation, and not after publication of
      the notice under Clause (b) to sub-regulation 3 to Regulation 39
F     resulting in ceasure of any business activities in respect of the scheme
      to be wound up.
            Security and Exchange Board of India (Mutual Funds)
      Regulations, 1996 – Regulation 41 – Applicability – Regulation 41,
      which deals with the procedure and manner of winding up, applies
G     once the notice under Regulation 39(3)(b) is published and the
      unitholders’ approval under Regulation 18(15)(c) of the Regulations
      is received.
           Security and Exchange Board of India (Mutual Funds)
      Regulations, 1996 – Regulation 41 – Claim for entitlement to
H
                                        880
 FRANKLIN TEMPLETON TRUSTEE SERVICES PVT. LTD. v.                         881
          AMRUTA GARG AND OTHERS ETC.

payment of commission under clause (b) to sub-regulation 2 to             A
Regulation 41 – Held: In a given case, some of the recurring expenses
mentioned in clause (b) to Regulation 52(4) like audit fee, insurance
premium, cost of statutory advertisements, etc., would be covered
and would satisfy the requirement of clause (b) to Regulation 41(2)
– However, if and only when they fall under and meet the
                                                                          B
requirement of the expenses connected with the winding up can
they be allowed under Regulation 41(2)(b) – Commission payable
to the mutual fund distributers is certainly not an expense connected
with the winding up of the scheme.
       Security and Exchange Board of India (Mutual Funds)
Regulations, 1996 – Regulation 39(2)(b) and 52(4) (b) – Claim for         C
commission payment by mutual fund distributors as an amount ‘due
and payable under the scheme’ , on ground that it was an amount
or payment that had accrued before the publication of notices under
Regulation 39(2)(b), but was not paid as it was payable in future –
Held: Not tenable – The expression ‘due and payable’ has to be            D
interpreted with reference to the context in which the words appear
– In the context of the Regulations in question, the expression refers
to the present liabilities which may be payable in praesenti or in
future – There must be an existing obligation to pay though the
appointed date of payment may not have arrived – Clause (b) to
Regulation 52(4) refers to recurring expenses, that is, expenses which    E
will recur from time to time – It does not refer to one-time payment
which is deferred – The recurring liability is not a present liability,
but an obligation which, on satisfaction of certain conditions, may
accrue in future – The right to claim commission may not accrue
and become due and payable – On and after publication of the              F
winding up notice in terms of Regulation 39(3)(b), the trustees and
the asset management company cannot claim any payment on account
of recurring expenses under clause (b) to sub- regulation (4) to
Regulation 52 – Words and Phrases – Expression ‘due and payable’.
       Security and Exchange Board of India (Mutual Funds)                G
Regulations, 1996 – Regulation 39(3)(b) and 41 – On publication
of notices in terms of Regulation 39(3)(b), the business of the mutual
fund comes to a stop and therefore, on and from that date the trail
commission is not payable, as the scheme is to be wound up and the
money is to be collected and paid to the unitholders, in terms of and
                                                                          H
882                SUPREME COURT REPORTS                       [2022] 6 S.C.R.


A     as per the mandate of Regulation 41 – Even if a distributor renders
      some services to the unitholders after publication of the notice under
      Regulation 39(3)(b), it would not entitle him to claim an amount
      from the asset management company.
             CIVIL APPELLATE JURISDICTION: I.A. No. 53453 of 2022
B     in Civil Appeal Nos. 498-501 of 2021.
            From the Judgment and Order dated 24.10.2020 of the High Court
      of Karnataka at Bengaluru in WP Nos. 8644, 8545 of 2020 and WA No.
      399 of 2020.
            Dr. Abhishek Manu Singhvi, Neeraj Kishan Kaul, Janak
C     Dwarkadas, Sr. Advs., Ashim Sood, Mohit Rohatgi, Rajendra Dangwal,
      Jasmeet Singh, Ms. Ira S. Mahajan, Arzoo Aneja, Ramachandra Madan,
      Ms. Ankita Singhania, Pushpendra Singh Bhadoriya, Advs. for the
      Appellants.
             Tushar Mehta, SG, Ms. Priyanka Das, Rajat Nair, Ms. Garima
D     Prasad, Sughosh Subramanyam, Pratap Venugopal, Ms. Surekha Raman,
      Akhil Abraham Roy, Vijay Valsan, M/s. K J John And Co, Nithyaesh
      Natraj, Vaibhav R. Venkatesh, Gopal Singh, Arjun Garg, Abhinav
      Shrivastava, Ms. Supriya Juneja, Ms. Christi Jain, Sanjay Kapur, Ms.
      Subhra Kapur, Ms. Megha Karnwal, Arjun Bhatia, Aashish Kumar, Ms.
E     Akshata Joshi, Dheeraj Nair, Kumar Kislay, Angad Baxi, Shivam Singh,
      Abhnav Singh, Manish Kumar, Ms. Madhumita Bhattacharjee, Advs.
      for the Respondents.
                The Order of the Court was passed by
                SANJIV KHANNA, J.
F
             1. This Court, vide order dated 03rd August 2022, dismissed the
      aforesaid application filed on behalf of the Foundation of Independent
      Financial Advisors,1 while stating that the reasons for such dismissal
      would follow. The order further directed that Rs. 684,00,00,000/- (Rupees
      Six Hundred and Eighty Four Crores) be distributed to the unitholders.
G     As a corollary, the stay granted by us vide order dated 12 th April 2022,
      while issuing notice in the application therein, also stood vacated. By the
      present order, we provide the reasons for dismissal of the captioned
      application.

      1
H         For short, ‘FIFA’
    FRANKLIN TEMPLETON TRUSTEE SERVICES PVT. LTD. v.                            883
    AMRUTA GARG AND OTHERS ETC. [SANJIV KHANNA, J.]

       2. FIFA claims that independent financial advisors/mutual fund           A
distributors are entitled to payment of commission agreed between them
and Franklin Templeton Asset Management (India) Private Limited,
which are in the nature of recurring expenses as per Regulation 52 of
the Security and Exchange Board of India (Mutual Funds) Regulations,
19962. Our attention is drawn to sub-clause (i) of Regulation 52(4)(b),
                                                                                B
which states that ‘recurring expenses’ encompass marketing and selling
expenses, including agents’ commission, if any. The circular issued by
Security and Exchange Board of India3 dated 22nd October 2018, while
referring to Regulation 52, states that the asset management companies/
mutual funds shall adopt a full trail model of commission in all schemes,
without payment of any upfront commission or upfronting of any trail            C
commission, directly or indirectly. Upfronting of trail commission is allowed
only in case of inflows through Systematic Investment Plans.
       3. At the outset, we must state that FIFA is claiming commission
for the period from 23rd April 2020 and up to 17th March 2021. The
commission/service charges payable prior to 23rd April 2020 are not             D
subject matter of the present application. 23rd April 2020 is relevant as it
is the date of publication of notices under Regulation 39(3)(b).
Accordingly, on and from the said date, the trustees/asset management
company ceased to carry on business in respect of the six schemes so
wound up. In our opinion, Regulation 52, which relates to and permits
deduction of expenses including commission payable to the distributor, is       E
applicable when the scheme is in operation, and not post the decision of
the trustees in terms of Regulation 39(2)(a) read with Regulation 39(3),
when, upon publication of notices, the ceasure mandate of Regulation
40 is triggered. On and from the date of publication of notices under
Regulation 39(3)(b), the trustees/asset management company cannot               F
carry on business activities, create or cancel units and issue or redeem
units of the scheme. It would be a different matter if the unitholders do
not approve the winding up of the scheme, which is not a fact in the
present case, as the unitholders have consented to the winding up of the
six Schemes in accordance with Regulation 18(15)(c).
                                                                                G
      4. If we are to accept the contention of FIFA, the necessary
sequitur is to also acknowledge and accept that the asset management
company, even post the publication of notices under Regulation 39(3)(b),
2
    For short, “Regulations’’
3
    For short, “SEBI”                                                           H
884             SUPREME COURT REPORTS                            [2022] 6 S.C.R.


A     would be entitled to fees and expenses mentioned and covered by
      Regulation 52, as per the terms and quantum specified in sub-regulation
      6 to Regulation 52. Sub-clause (c) to Regulation 52(6) specifies the
      percentage of total expenses of the scheme which is allowable, varying
      from 2.5% to 1.75% of the daily net assets. This, in our opinion, would
      not be a correct interpretation and lead to anomalies and tribulation with
B
      adverse consequences for the suffering unitholders, and undo the embargo
      directing the ceasure of business. Regulations 40 and 52 need to be read
      harmoniously. When read together, Regulation 52, authorising and
      specifying the limit of the fees and expenses payable to the asset
      management company, would apply only when the scheme is in operation,
C     and not after publication of the notice under Clause (b) to sub-regulation
      3 to Regulation 39 resulting in ceasure of any business activities in respect
      of the scheme to be wound up.
             5. Regulation 41, which deals with the procedure and manner of
      winding up, applies once the notice under Regulation 39(3)(b) is published
D     and the unitholders’ approval under Regulation 18(15)(c) of the
      Regulations is received. We are not required to interpret sub-regulation
      1 to Regulation 41, as we have already interpreted it in our earlier order
      dated 14th July 2021 read with the order dated 12th February 2021.
      However, FIFA claims that they would be entitled to payment of
      commission under clause (b) to sub-regulation 2 to Regulation 41 which,
E     for the sake of convenience, is quoted below:
            “41. (1) ….
            (2)(a) ….
            (b) The proceeds of sale realised under clause (a), shall be first
F           utilised towards discharge of such liabilities as are due and payable
            under the scheme and after making appropriate provision for
            meeting the expenses connected with such winding up, the balance
            shall be paid to the unitholders in proportion to their respective
            interest in the assets of the scheme as on the date when the
G           decision for winding up was taken.
            (3) ….
            (4) ….”
           We would concede that, in the given case, some of the recurring
      expenses mentioned in clause (b) to Regulation 52(4) like audit fee,
H
    FRANKLIN TEMPLETON TRUSTEE SERVICES PVT. LTD. v.                            885
    AMRUTA GARG AND OTHERS ETC. [SANJIV KHANNA, J.]

insurance premium, cost of statutory advertisements, etc., would be             A
covered and would satisfy the requirement of clause (b) to Regulation
41(2). However, if and only when they fall under and meet the
requirement of the expenses connected with the winding up can they be
allowed under Regulation 41(2)(b). Such expenses are allowed not
because of clause (b) to Regulation 52(4), but because the expenses
                                                                                B
incurred would satisfy the requirement of being connected with such
winding up under Regulation 41(2)(b). Commission payable to the mutual
fund distributers is certainly not an expense connected with the winding
up of the scheme.
       6. In the aforesaid background, FIFA has claimed that the
commission payment due to the mutual fund distributors on and from              C
23rd April 2020 is an amount ‘due and payable under the scheme’, as it is
an amount or payment that had accrued before the publication of notices
under Regulation 39(2)(b), but was not paid as it was payable in future.
Commission payable to mutual fund distributors is in the nature of trail,
and therefore, is payment due for the services rendered to the unitholders      D
prior to the winding up. This argument is farfetched and fallacious.
       7. In our order dated 14th July 2021, we have explained that the
expression ‘due and payable’ has to be interpreted with reference to the
context in which the words appear. In the context of the Regulations in
question, we have held that the expression refers to the present liabilities    E
which may be payable in praesenti or in futuro. There must be an
existing obligation to pay though the appointed date of payment may not
have arrived. Any liability which is not due and payable, in facts and in
law, would not be covered by the expression ‘due and payable’.4 Clause
(b) to Regulation 52(4) refers to recurring expenses, that is, expenses
which will recur from time to time. It does not refer to one-time payment       F
which is deferred. The recurring liability is not a present liability, but an
obligation which, on satisfaction of certain conditions, may accrue in
future. The right to claim commission may not accrue and become due
and payable. Distributor commission, as a recurring liability, is not payable
if the unitholder(s) redeem the unit. Winding up of the scheme entails          G
similar effects and consequences.
       8. As noticed above, it is the asset management company which
is entitled to charge fees and expenses in terms of sub-regulations (1)

4
    See paragraph 78 in the judgment reported as (2021) 9 SCC 606               H
886             SUPREME COURT REPORTS                             [2022] 6 S.C.R.


A     and (2) of Regulation 52. The mutual fund distributors are not entitled to
      direct payment from the unitholders. Payment to the distributors is made
      by the asset management company, from the amount that they deduct
      as a recurring expense in terms of Regulation 52(4)(b). On and after
      publication of the winding up notice in terms of Regulation 39(3)(b), the
      trustees and the asset management company cannot claim any payment
B
      on account of recurring expenses under clause (b) to sub- regulation (4)
      to Regulation 52. That being the position, as held above, the claim of
      FIFA has to be rejected. If the amount cannot be due and payable to the
      principal, the claim of the agent or a third party, in view of the Regulations,
      must also fail.
C            9. The claim of FIFA, on the basis of the Circular dated 22nd
      October 2018, which has been referred to above, is equally misconceived
      and untenable. The Circular dated 22nd October 2018 bars the asset
      management company from making upfront payment or upfronting of
      any trail commission, except in case of inflows through Systematic
D     Investment Plans. It is also stipulated that, when the Systematic
      Investment Plan is discontinued for a period for which commission is
      paid, the commission amount has to be recovered on pro rata basis
      from the distributor. As a deduction, it follows that on publication of
      notices in terms of Regulation 39(3)(b), the business of the mutual fund
      comes to a stop and therefore, on and from that date the trail commission
E     is not payable, as the scheme is to be wound up and the money is to be
      collected and paid to the unitholders, in terms of and as per the mandate
      of Regulation 41. Even if a distributor renders some services to the
      unitholders after publication of the notice under Regulation 39(3)(b), it
      would not entitle him to claim an amount from the asset management
F     company. The Circular dated 22nd October 2018 cannot override the
      Regulations. The Circular does not intend to do so. It has been issued to
      bring about transparency in expenses, reduce portfolio churning and mis-
      selling in mutual fund schemes. The intent behind specifying total expense
      ratio and the performance disclosure for mutual funds is to bring greater
      transparency in expenses and to not confer any right on the mutual fund
G     distributors to claim expenses under clause (b) to Regulation 41(2), which
      pertains to the procedure and manner of winding up.
             10. Franklin Templeton Trustee Services Private Limited and
      Franklin Templeton Asset Management (India) Private Limited have
      filed an affidavit before us stating that they have borne liquidation expenses
H
 FRANKLIN TEMPLETON TRUSTEE SERVICES PVT. LTD. v.                                887
 AMRUTA GARG AND OTHERS ETC. [SANJIV KHANNA, J.]

amounting to approximately Rs. 40,00,00,000/- (Rupees Forty Crores)              A
towards various services such as liquidator’s fee, disbursement expenses,
fees for the e-voting platform and the scrutinizer for voting results, etc.
It is stated by them that this amount is not intended to be charged to the
six Schemes in the interest of the unitholders of the Schemes. We have
taken the said statement on record.
                                                                                 B
       11. For the aforesaid reasons, the application IA No. 53453/2022
filed by FIFA is dismissed, without any orders as to costs.


Bibhuti Bhushan Bose                                    Application dismissed.
                                                                                 C




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