1982 (12) TMI 149 - HC - Companies Law

Summary

Issues Involved:
1. Breach of Agreement and Claim for Damages
2. Illegality of Contract under the Securities Contracts (Regulation) Act, 1956
3. Marketability of Shares of a Private Limited Company

Detailed Analysis:

1. Breach of Agreement and Claim for Damages
The plaintiffs-respondents sold and delivered 875 ordinary shares and 1,780 redeemable cumulative preference shares of A. Mac Rae & Co. Pvt. Ltd. to defendants Nos. 1 to 4, with Rs. 10,000 paid on signing the agreement. Defendants failed to pay the annual instalments, leading plaintiffs to file a suit to recover the amount of the fourth and fifth instalments. Defendants contested, claiming damages due to alleged misrepresentations by plaintiffs about the company's liabilities, invoking Section 59 of the Sale of Goods Act, 1930, to argue that the purchase price was extinguished.

The learned single judge held that the remedy for the breach of the stipulation in clause 6 of the agreement was to sue on the indemnity provided by the plaintiffs. The judge found that the defendants failed to plead their claim for damages by way of a set-off and did not specify the quantum of damages. Consequently, the judge ruled against the defendants on issues Nos. 1 to 4, which dealt with the alleged misrepresentations by the plaintiffs.

2. Illegality of Contract under the Securities Contracts (Regulation) Act, 1956
The main issue was whether the agreement was illegal and void under Section 13 of the Securities Contracts (Regulation) Act, 1956. The defendants argued that the contract was not a "spot delivery contract" as defined in Section 2(i) of the Act and thus not exempt from Section 13. The learned judge, after analyzing the provisions of the Regulation Act, concluded that the shares of a private limited company were not "marketable securities" as defined in Section 2(h) of the Act. The judge reasoned that the Act intended to control securities normally dealt with on the stock exchange, i.e., shares of a public limited company, and thus did not apply to shares of a private limited company. Consequently, the transaction was not illegal, and the plaintiffs' suit was decreed.

3. Marketability of Shares of a Private Limited Company
The appellants contended that all shares, including those of a private company, should be considered marketable securities under the Regulation Act. They argued that the Act was meant to regulate all contracts in securities, not just those involving public companies. The respondents countered that shares of a private company are not marketable due to restrictions on transferability, such as rights of pre-emption, making them unsuitable for trading in a stock exchange market.

The court held that "marketable" in the context of the Act meant securities that could be freely sold and bought in the market, which is not the case for shares of a private limited company due to their restricted transferability. The court noted that the definition of "securities" in the Regulation Act implied marketability, which shares of a private company lacked. Therefore, the shares of a private company did not fall within the definition of "securities" under the Act, and the contract was not void under Section 13.

Conclusion:
The appeal was dismissed, upholding the lower court's findings that the contract was not illegal under the Securities Contracts (Regulation) Act, 1956, and that the defendants' claim for damages was not properly pleaded. The court affirmed that shares of a private limited company are not marketable securities under the Act, and thus the transaction in question was valid. The prayer for leave to appeal to the Supreme Court was rejected.