2013 (7) TMI 606 - SC - Companies Law

Regulating provisions for unlisted shares - Whether the shares of a public company which is an unlisted company on being transferred would attract the provisions of SCR Act - Held that - The transactions were hit by the provisions of the SCR Act and the guidelines - the consideration for transfer of shares were duly paid shares of public limited company though not listed in the stock exchange come within the definition of securities - the provisions of Regulation Act apply relied upon East Indian Produce Ltd. v. Naresh Acharya Bhaduri & Ors (1985 (8) TMI 314 - HIGH COURT OF CALCUTTA) - whatever is capable of being bought and sold in a market is marketable there was no warrant for limiting the expression marketable securities only to those securities which are quoted in the stock exchange - the provisions of the Regulation Act would cover unlisted Securities of Public Limited Company - shares of Public Limited Company not listed in the stock-exchange was covered within the ambit of Regulation Act. Nature of Contract - whether the contract in question is a spot delivery contract Held that - The contract in question is not a spot delivery contract formal agreement was executed later on and the delivery also took place at a later date - decided against petitioner.

Issues Involved:
1. Applicability of the Securities Contracts (Regulation) Act, 1956 to unlisted shares of a public limited company.
2. Legality of the contract for the sale of shares under Sections 13 and 16 of the Regulation Act.
3. Whether the transaction qualifies as a "spot delivery contract."

Detailed Analysis:

1. Applicability of the Securities Contracts (Regulation) Act, 1956 to Unlisted Shares:
The primary issue was whether the provisions of the Securities Contracts (Regulation) Act, 1956 (the Regulation Act) applied to the shares of a public limited company that were not listed on any recognized stock exchange. The appellant contended that unlisted shares do not fall within the definition of "securities" under Section 2(h)(i) of the Regulation Act, arguing that for shares to be marketable, they must be listed on a stock exchange. The respondent countered that the Regulation Act applies to all shares of a public limited company, whether listed or not, as long as they are marketable.

The Court held that the definition of "securities" under Section 2(h)(i) includes shares of a public limited company, regardless of whether they are listed. The term "marketable" was interpreted to mean "saleable," and the Court emphasized that free transferability is the key criterion for marketability. The Court cited previous judgments, including the Calcutta High Court's decision in East Indian Produce Ltd., which supported the view that unlisted shares are covered under the Regulation Act. The Court distinguished the Bombay High Court's decision in Dahiben Umedbhai Patel, which dealt with private company shares, and concluded that the Regulation Act applies to unlisted shares of a public limited company.

2. Legality of the Contract for Sale of Shares under Sections 13 and 16 of the Regulation Act:
The second issue was whether the contract for the sale of shares between the appellant and the respondent violated Sections 13 and 16 of the Regulation Act. Section 13 makes contracts in notified areas illegal if not made between members of a recognized stock exchange. Section 16 allows the Central Government to prohibit contracts to prevent undesirable speculation.

The Court noted that the contract was entered into in a notified area and was not between members of a recognized stock exchange. The Central Government had issued a notification under Section 16 prohibiting such contracts unless they were spot delivery contracts. The Court held that since the contract did not qualify as a spot delivery contract, it was illegal under Sections 13 and 16 of the Regulation Act.

3. Whether the Transaction Qualifies as a "Spot Delivery Contract":
The final issue was whether the transaction between the appellant and the respondent qualified as a "spot delivery contract" as defined under Section 2(i) of the Regulation Act. A spot delivery contract requires the actual delivery of securities and payment of the price on the same day or the next day.

The Court examined the terms of the agreement and found that the consideration for the shares was paid much after the date of the alleged sale. The agreement dated 21st November 1994 indicated that part of the consideration, including Rs. 10 lakhs and dividends up to the accounting year 1989-90, was paid long after the transfer of shares on 30th October 1987. The Court rejected the appellant's argument that the payment was made to buy peace, concluding that it was part of the consideration for the sale of shares. Therefore, the transaction did not meet the definition of a spot delivery contract.

Conclusion:
The Court upheld the decisions of the Company Law Board and the High Court, concluding that the provisions of the Regulation Act applied to the unlisted shares of the public limited company, the contract for the sale of shares was illegal under Sections 13 and 16 of the Regulation Act, and the transaction did not qualify as a spot delivery contract. Consequently, the appeal was dismissed.

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