1970 (10) TMI 49 - SC - Companies Law

Whether the High Court ought, in exercise of the power under Order 41, rule 33, of the Code of Civil Procedure, to have vacated the writ of mandamus issued requiring them to grant permission for quotation of the company s shares? Held that - An appellate court may, in appropriate cases, pass any decree and make any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision. That power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed any appeal or objection. But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons. The orders passed against the Union and the two exchanges were in substance distinct. Against the Union the order was made quashing its order in appeal against the orders of the exchanges; and against the exchanges the order was made directing inclusion of the shares in the list of quoted shares. The exchanges acquiesced in the direction. We need, however, not express any final opinion on this question. We are informed at the Bar that the Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending. We need not pre-judge the result of that application or the appeal, if any, which may be filed in this court. Appeal dismissed.

Issues Involved:
1. Validity of permission granted by Bombay Stock Exchange after the expiry of seven weeks under Section 73(1) of the Companies Act, 1956.
2. Effect of permission granted by only one out of three Stock Exchanges on the validity of the allotment of shares under Section 73(1) of the Companies Act, 1956.
3. Jurisdiction of the High Court to issue writs of mandamus requiring Stock Exchanges to enlist the shares.
4. Interpretation of Section 73 of the Companies Act, 1956, in the context of the Securities Contracts (Regulation) Act, 1956.
5. Applicability and interpretation of Section 22 of the Securities Contracts (Regulation) Act, 1956.
6. Constitutionality of Section 73 of the Companies Act, 1956, and Section 22 of the Securities Contracts (Regulation) Act, 1956.

Detailed Analysis:

1. Validity of Permission Granted by Bombay Stock Exchange:
The Supreme Court analyzed Section 73(1) of the Companies Act, 1956, which mandates that permission for the shares to be dealt in must be granted within four weeks from the date of closing of the subscription lists, or within an extended period not exceeding seven weeks. The Court held that if the Stock Exchange intimates that the application will be given further consideration within the prescribed period, the application is not deemed to be refused. The Court clarified that the phrase "permission has not been granted" should be interpreted as "permission has been refused." Therefore, the permission granted by the Bombay Stock Exchange after the expiry of seven weeks was valid as the Exchange had intimated further consideration within the prescribed period.

2. Effect of Permission Granted by One Out of Three Stock Exchanges:
The Court held that the object of Section 73(1) is to ensure that subscribers have the facility to convert their holdings into cash by securing permission for quotation of shares on a recognized Stock Exchange. The Court stated that even if permission is obtained from one or more, but not all, of the exchanges approached, the facility of ensuring quick conversion is still available. Thus, the allotment of shares does not become void merely because only one out of three exchanges granted permission. The Court emphasized that the penalty of avoidance of allotment of shares is attracted only when no permission is obtained from any exchange.

3. Jurisdiction of the High Court to Issue Writs of Mandamus:
The Court addressed the contention that the High Court had no jurisdiction to issue writs of mandamus requiring the Calcutta and Delhi Stock Exchanges to enlist the shares of the company. The Court noted that the High Court's power under Order 41, Rule 33, of the Code of Civil Procedure, is discretionary and can be exercised to pass any decree and make any order appropriate to the ends of justice. The High Court had not exercised this power apparently for good reasons, and the Stock Exchanges had acquiesced in the direction.

4. Interpretation of Section 73 of the Companies Act, 1956:
The Court interpreted Section 73 of the Companies Act, 1956, in light of the Securities Contracts (Regulation) Act, 1956. The Court stated that the provision aims to ensure that representations made in the prospectus are carried out and that the investment by the holder of stock is fluid by procuring permission for quotation of shares in a recognized Stock Exchange. The Court held that the allotment of shares becomes void only when permission for quotation is not obtained from any exchange.

5. Applicability and Interpretation of Section 22 of the Securities Contracts (Regulation) Act, 1956:
The Court examined Section 22 of the Securities Contracts (Regulation) Act, 1956, which provides that a company can appeal to the Central Government if a recognized Stock Exchange refuses to list its securities. The Central Government may vary or set aside the decision of the Stock Exchange. The Court noted that the provision ensures that companies have a recourse mechanism if their applications for listing are refused.

6. Constitutionality of Section 73 of the Companies Act, 1956, and Section 22 of the Securities Contracts (Regulation) Act, 1956:
The Court did not find it necessary to decide on the constitutionality of Section 73 of the Companies Act, 1956, and Section 22 of the Securities Contracts (Regulation) Act, 1956, as the issues were resolved based on the interpretation of the statutory provisions.

Conclusion:
The Supreme Court dismissed the appeals and upheld the High Court's decision, confirming the validity of the permission granted by the Bombay Stock Exchange and the allotment of shares. The Court emphasized the importance of ensuring that subscribers have the facility to convert their holdings into cash by securing permission for quotation of shares on a recognized Stock Exchange. The Court also highlighted the discretionary power of the High Court to issue writs of mandamus and the recourse mechanism provided under Section 22 of the Securities Contracts (Regulation) Act, 1956.

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