A bench of Justices K S Radhakrishnan and J S Khehar ordered detention of Roy and two other Sahara directors - Ashok Roychaudhury and Ravishankar Dubey - and sent them to judicial custody in Delhi. It did not send another contemnor, Sahara director Vandana Bhargava, to custody and said she would coordinate with the detained persons to come out with a better refund proposal.
The bench permitted the contemnors to mention the matter for advancing the date of hearing if they had a "concrete and acceptable proposal to offer".
Trashing Roy's claim that vast majority of investors had been paid back their money, the bench said, "Documents and affidavits produced by the contemnors themselves would apparently falsify their refund theory and cast serious doubts about the existence of so-called investors. All the fact finding authorities have opined that majority of investors do not exist."
Explaining the harsh step it was forced to take, the court said, "Preservation of market integrity is extremely important for economic growth of this country for national interest. Maintaining investors' confidence requires market integrity and control of market abuse. Market abuse is a serious financial crime which undermines the very financial structure of this country and will make imbalance in wealth between haves and have nots."
It said despite numerous opportunities for refund, the Saharas adopted dilatory tactics. "Non-compliance of the orders passed by this court shakes the very foundation of our judicial system and undermines the rule of law, which we are bound to honour and protect. This is essential to maintain faith and confidence of the people of this country in judiciary," it said.
Roy was produced before the court by UP Police, which arrested him pursuant to the non-bailable arrest warrant issued against him for non-appearance in court on February 26. He stood up before Justices Radhakrishnan and Khehar and said, "Unconditionally I tender apology. Believe me, my reasons (for absence) were very genuine. I am very sorry for my absence on February 26."
The bench said it accepted the apology for absence but persisted with its question throughout the hearing about compliance with its August 31, 2012 judgment directing Sahara Housing and Sahara Real Estate to refund Rs 24,000 crore with 15% interest to nearly 3 crore investors.
Roy added to what his counsel - senior advocates Ram Jethmalani, Rajeev Dhavan, Ravishankar Prasad and C A Sundaram - argued. He said, "We were facing a bad situation. This kind of liquidity (cash in hand) is not there even with the banks. We are ready to sell the assets starting from tomorrow. Money will come. Whatever shortfall, we will make good by giving irrevocable bank guarantee. Be sympathetic to us. We will give bank guarantee for Rs 22,500 crore."
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Jethmalani argued that justice should be accompanied with compassion.
But the bench said when people did not pay up dues of Rs 2,000, they were sent to civil prison. "Should we allow every litigant to behave like this (like Roy) towards the court? Every statement in affidavits for last two years has been false. All wrong affidavits were filed before the court and they were absolutely incorrect and false statements were made in it. We are extremely sorry to say false affidavits were filed by you at every stage and that in itself is contempt of court," it said.
Justices Radhakrishnan and Khehar clarified that the Supreme Court would no longer involve itself in finding the modalities to recover the money. Either the Saharas pay up or they face consequences, the bench said.
"You sell your assets, mortgage them or take loans. That is your headache. You do whatever to comply with the order. For the last one and half years, we had tried to accommodate you. You said go to hell. What can we do? The court was forced to bring the hammer on you. Now you have to implement the order. You put the court in a corner and brought the situation on yourself," they said.
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The bench said the Saharas have to deposit the money and prove that they had returned the money to investors. "Whatever is proved to be returned, the Saharas will get that much money back. The rest will go to the government," the bench said.
Jethmalani said, "Please save Sahara from this tragedy of paying again to an investor to whom money had already been refunded." Roy said, "It is a bad cash flow situation. We have already paid Rs 5,120 crore. It is a business which has many other constraints. There are 9-10 crore small investors. The group has to maintain steady cash flow. There are 12 lakh persons directly or indirectly employed in the group."
He added, "Please understand our position. We have given all receipts about refund to Sebi. If I am not able to refund the money (through sale of assets and bank gurantee), I will come back before the court to face punishment. We have paid Rs 137 lakh crore to investors in last 37 years. My folded hand request to you is please allow us to sell our assets and pay and furnish bank guarantee for rest of the amount."
Roy reiterated that every small investor was paid back. "A rickshaw puller after getting back his money would not waste a Rs 2 stamp to write back to Sebi. With folded hands, on behalf of the 12 lakh people in Sahara group, I am requesting you to direct the Sebi to verify the documents. Everything will be clear."
But the bench said the earnestness in providing bank guarantee should have been shown a year and half ago when the judgment was passed.
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