9911796707
TMI Blog1994 (8) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, Western Region Branch, Bombay while disposing of three sets of references made by respondent No. 2 company in accordance with clause ( c ) of sub-section (4) of section 22A of Securities Contracts (Regulation) Act, 1956 ('SCRA'). The facts which gave rise to the passing of the order under challenge in these three petitions are required to be set out in detail to appreciate the grievance made by the petitioners. 3. The respondent No. 2 is a public limited company registered under the provisions of the Companies Act, 1956. The company undertakes con struction of high-tech projects and is managed by persons with technical knowledge and the industrial experience. The company has undertaken large number of projects which are of importance for the national economy. The authorised capital of the company is Rs. 50 crores divided into 5 crores shares of Rs. 10 each. The shares of the company are duly listed on the stock exchanges in India. In the year 1989, the holding of the shares was distributed as follows: Name of shareholder No. of shares Per cent of shares 1. Gammon family (including estate of late Mr. J.C. Gammon) 5,31,396 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abria. The acquisition by Chhabrias of .huge volume of shares amounting to 24.4 per cent of the capital of respondent No. 2 company was obviously not as a pure investment proposition but a determined effort for a takeover bid of the company. 5. Bhavi Investments Ltd., a shareholder of respondent No. 2 company, filed two applications before Company Law Board under sections 247 and 250 of the Companies Act. In the first application, it was claimed that large scale of shares in two blocks, 2,76,913 shares purchased by Chhabria Investments Ltd. and 2,42,112 shares lodged by Hong Kong Shanghai Banking Corpn. for registration in the name of Hong Kong Bank (Agency) (P.) Ltd. were lodged with a view to reduce the control of respondent No. 2 company. Bhavi Investments Ltd. requested the Company Law Board to determine the true persons who were financially interested to takeover the control of the company. The applicants stated that Hong Kong Bank (Agency) (P.) Ltd. was not disclosing identity of the beneficiary and therefore requested to restrain the transfer and freezing the various rights of shares lodged and to be lodged by the unknown raider for a period of three years in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 'company' under clause ( a ) of sub-section (1) of section 22A means a company whose securities are listed on recognised stock exchange. The section demands that a company shall, before the expiry of two months from the date on which the instrument of transfer of any of its securities is lodged for the purpose of registration of such transfer, shall form an opinion in good faith and in case it decides not to register on the grounds mentioned in clauses ( b ) , (c) and ( d ) of sub-section (3), it then shall make a reference to the Company Law Board and forward copies of such reference to the transferor and the transferee. Between 1-12-1988 and 30-12-1988, the Hong Kong Bank (Agency) (P.) Ltd. has lodged 2,42,112 shares with the respondent No. 2 company. The board of directors in the meeting held on 22-1-1989 decided to refuse registration and made reference to Company Law Board on 30-1-1989. The lodgement of the shares by Hong Kong Bank (Agency) (P.) Ltd. belongs to Group I. Alaknanda Mfg. Finance (P.) Ltd., Tracstar Investments (P.) Ltd., Tezpore Tea Co. Ltd., Malleswara Finance Investment Co. (P.) Ltd., Manswar Investments (P.) Ltd., Cruickshank Co. Ltd., Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently the provision should be construed as unreasonable. Shri Shah submitted that the finding recorded by the Company Law Board that the action of the board of directors in declining to register transfer was bona fide and the transfer would have led to change in the constitution of the board of directors and would have adversely affected the company and the public interest, is not correct. The learned counsel also submitted that the Company Law Board was in error in not permitting the petitioners to tender affidavits on 18-11-1991 to bring on record subsequent events only on the ground that the arguments were already concluded and the proceedings were adjourned for passing orders. 7. Shri Advocate General and Shri Rana on the other hand submitted that the challenge to the constitutional validity of clause ( c ) of sub-section (3) of section 22 A is without any substance. Shri Advocate General submitted that the Company Law Board has approved the decision of the board of directors on references made and the findings recorded by the Company Law Board are mere findings of fact and cannot be disturbed in exercise of writ j urisdiction. Shri Advocate General further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be freely transferable. Sub-sections (3), (4) and (6) read as follows : "(3) Notwithstanding anything contained in its articles or in section 82 or section 111 of the Companies Act, 1956 (1 of 1956), but subject to the other provisions of this section, a company may refuse to register the transfer of any of its securities in the name of the transferee on any one or more of the following grounds and on no other ground, namely : ( a )that the instrument of transfer is not proper or has not been duly stamped and executed or that the certificate relating to the security has not been delivered to the company or that any other requirement under the law relating to registration of such transfer has not been complied with; ( b )that the transfer of the security is in contravention of any law; ( c )that the transfer of the security is likely to result in such change in the composition of the board of directors as would be prejudicial to the interests of the company or to the public interest; ( d )that the transfer of the security is prohibited by any order of any court, Tribunal or other authority under any law for the time being in force. (4) A company shall, before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the provision of clause (c) of sub-section (3) is violative of article 14 because the powers have been conferred upon the' board of directors without prescribing the guidelines as to how the powers should be exercised. The submission is devoid of any merit. The plain reading of clause (c) of sub-section (3) makes it clear that there is in-built guideline prescribed by the Parliament. The board of directors is required to examine whether the transfer is likely to result in change in composition of the Board and even if so, the transfer cannot be refused unless such change would be prejudicial to the interest of the company or to the public interest. It is, therefore, obvious that the Parliament did not confer unregulated powers on the board of directors but specified the cases where it is permissible to refuse transfer. Initially, it was open for the company to refuse to register the transfer without assigning any reason, but after the enactment of section 111, it is incumbent to give reasons for such refusal. The provision of section 111 applies to all the companies but after the enactment of section 22A, the transferability and registration of shares of company whose securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer in the Company Law Board to give any direction in relation to any matter and consequently the Company Law Board even after dismissal of the appeal preferred under sub-section (3) of section 111 can direct the company to purchase the shares and pay the amount of consideration to the transferee whose application for registration of transfer stands rejected. In support of the submission, Shri Shah invited our attention to order dated 11-4-1972 passed by Member, Company Law Board in Appeal Nos. 6 to 16 of 1971. It is impossible to accede to the submission of the learned counsel that section 637 A empowers the Company Law Board to give any such direction while disposing of the appeal under sub-section (5) of section 111. Company Law Board while exercising powers of an appellate authority under sub-section (3) of section 111 cannot travel beyond the powers set out under sub-section (5) of section 111 and cannot issue direction under the guise of adjusting the equities. The plain reading of section 63 7A makes it clear that the powers conferred on the Company Law Board under the section cannot be imported while disposing of appeal under section 111. The mere fact that} the member of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances of the case. The Company Law Board has also referred to the earlier order passed under section 215 and which order exhaustively discusses the modus operandi adopted by Chhabria to raid respondent No. 2 company and to gain control. The order sets out in detail the manner in which Chhabria and the various companies set up by Chhabria were trying to gather shares only with a view to gain control over the company. The detailed discussion in the order passed by the Company Law Board while exercising powers under sections 247 and 250 of the Companies Act and the discussion in the impugned order, leave no manner of doubt that the petitioners and Chhabria were clearly attempting to get the shares transferred with a view to change the composition of the board of directors. In our judgment, the decision of the board of directors on this count, and which is approved by the Company Law Board, cannot be faulted with. 15. Clause (c) of sub-section (3) of section 22A permits refusal of transfer of securities provided the change in the composition of the Board would be prejudicial to the interest of the company or public interest. The Company Law Board noticed that the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide and does not suffer from any infirmity. It is, therefore, obvious that the impugned decision is not required to be disturbed in exercise of writ jurisdiction. 16. Shri Shah then submitted that the Company Law Board was in error in not permitting the petitioners to file additional affidavits on 18-11 -1991. The learned counsel urged that the petitioners were desirous of an opportunity to bring subsequent events on record and refusal by the Company Law Board has caused prejudice to the petitioners. It is impossible to accede to the contention. The impugned order sets out that arguments were concluded on 9-8-1991, and the order was reserved for more than two months thereafter. On 18-11-1991, the petitioners had tried to file affidavits to claim that the refusal to register the shares was mala fide and made with collateral object. The Company Law Board points out that the petitioners had adequate opportunity to plead their case at the time of hearing held on number of days. The references were filed in the year 1989 and were heard from November 1990 onwards. The Company Law Board held that any further opportunity for hearing on merit was not necessary. We do not find any err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17. Accordingly, rule in each of the petition stands discharged with costs. 18. At this juncture, Shri Shah submits that the company should be restrained by an injunction from transferring the ownership in shares in dispute, making payment of divided or from issuing right shares or bonus shares. The learned counsel submitted that the right to dividend, right shares and bonus shares should be kept in abeyance for a period of two months to enable the petitioners to approach the Supreme Court and in support of the submission, reliance is placed on section 206(1). We are unable to find any substance in the contention. The section comes into operation during the interregnum between the date of lodgement of application of transfer of shares and the date of registration. The section has no application whatsoever when the transfer is refused. There is one more factor which is required to be mentioned at this juncture. During the pendency of these petitions, the petitioners had taken out notice of motion for several interim reliefs and interim relief claimed in prayer ( d ) was that the petitioners should be allowed to sell the shares pending the hearing and final disposal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
