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TMI Blog2001 (10) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... OK BHAN, JJ. Mihir Thakore, Ms. Sunita Dutt, Pradeep Sancheti and Niiesh Parikh for the Appellant. K.S. Cooper, V.A. Bobde, T.K. Cooper, U.A. Rana Mahesh Agarwal, Mamkrishnan, Rishi Agarwal, V.K. Verma (N.P.) and Ms. Shalini Mittal for the Respondent. JUDGMENT Kirpal, J. - This is an appeal against the decision of the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992 ('the Special Court'). According to the decree the Special Court found that a sum of Rs. 60,64,71,275.12p. was payable by the appellant to the respondent who was also held entitled to interest at the rate of 20 per cent per annum from 25-11-1991, till the payment of the decretal amount. Costs were also awarded in favour of the respondent. We are informed that the decretal amount including the costs have been paid to the respondent by 1995. 2. The respondent had filed a suit against the appellant basing dues on three transactions which had taken place between them. On 23-8-1991 the appellant purchased Government of India securities 2008-A of face value of Rs. 10 crores at the rate of Rs. 101.50 and on 26-8-1991 it purchased similar securities of the face value of Rs. 7 crores at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese securities were also negotiated by Mr. Hiten P. Dalai and disguised sales made at such negotiated prices to counter parties/banks designated by Mr. Hiten P. Dalai ? 9. Whether pursuant to the alleged informal arrangement stated in Para 4 of the written statement, the plaintiffs had directly or indirectly lent and advanced monies to Mr. Hiten P. Dalai under purported transaction of face value of Rs. 58.39 crores and/or face value of Rs. 60 crores which are part of their transactions involving the plaintiffs, Mr. Hiten Dalai, Bank of Karad and Citibank by which Hiten P. Dalai received directly or indirectly monies from the plaintiffs which he subsequently repaid ? 10.Whether the suit transactions entered into by the plaintiffs with the Can Bank Mutual Fund were in fact entered into by the plaintiffs on behalf of Hiten Dalai as alleged in Para 5( d) of the written statement of defendant No. 1 ? 11.Whether in such transactions, plaintiffs were carrying Hiten P. Dalal's open position as their own position as stated in para 4 ol the written statement ? 12.Whether in the suit transactions the defendants fund was used as intermediary for transfer of monies advanced by the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised was not taken in their written statement and in fact it was contrary to the contents of the written statement. The Special Court in its order also dealt with the question of transaction being opposed to the public policy and observed as follows : "36. Thus before the Court there is no proof or material to show that there is any illegality. What the defendants want is to now lead evidence in support of a case which has not been pleaded at all. They want to built up in evidence a case which might or might not ultimately convince the Court that all such transactions were against public policy. As stated above, such a case is not pleaded. It is in fact contrary to the pleadings. None of the authorities cited by Mr. Salve support the proposition that the Court must admit or will admit evidence merely to enable a party to ultimately prove to the Court a case which has not been pleaded. None of the authorities support the proposition that the Court must admit or will admit evidence merely to enable a party to ultimately prove to the Court a case which has not been pleaded. None of the authorities support the proposition that the Court must permit evidence, on the ground that a possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants case that the suit contracts are fictitious. In fact, as set out above, it is the defendant's case that the suit transactions are genuine and entered into in normal course of securities business. There is no averment that the prices under the suit contracts are derived prices. There is no averment that on the basis of derived prices, plaintiffs made a profit of 15% on a resale of the securities purchased from the defendants. No such case has been pleaded in the pleadings. In fact, even though the alleged 15% arrangement is set out in the written statement and even though it is averred that the suit contracts are part of the 15% arrangement, it has significantly not been averred that in these transactions, profit of 15% had been earned by the plaintiffs. If that be so there is no question of permitting evidence in support of such a plea." 5. On the question of squaring up of the transaction, a plea which was squarely taken in the written statement, the counsel for the appellants made a statement that it did not wish to lead any further evidence. 6. By judgment dated 13-3-1995, issues 1,2,8,9, 10, 11, 12, 14, 15, 16, 17 and 18 were answered in negative; issues 3, 4 and 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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