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TMI Blog2018 (1) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... their alternative plea for redemption. No relief is sought against defendant no.2. 2. In or around July 1995, plaintiff no.1 approached defendant no.1 seeking a loan in a sum of Rs. 5,00,00,000/ (Rupees Five Crores Only). The loan, admittedly, was sanctioned by defendant no.1 vide its letter dated 11th July, 1995, repayable in 8 months, i.e., on 12th March, 1996. Material terms are as set out hereinbelow: "1. Facility Principal Amount: Rs. 500 lakhs (Rs. Five Hundred lakhs only) Nature of Facility: Loan against shares Rate of Interest: Calculated at monthly/rests payable in arrears Period: 8 months Date of Maturity: 12th March, 1996 Collateral Security: Pledge of following shares: Name of scrip No. Sesa Goa Ltd. 200000 Margin: 30% Rate of Interest: 24% 2. General Conditions Precedent The availment of the Facility will be subject tour receiving, in a form and substance satisfactory to us, of: a)..... e) Agreement of Pledge in form and substance satisfactory to us duly executed f) pledge of collateral security at our office/custodial (if specified) g) Demand Promissory Note for Rs. 5,00,00,000. h) postdated cheques fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such defaulted amount. The Borrower further agrees that RCL shall be entitled to change rates and/or periodicity of interest and compensatory interest etc. mentioned in clause 2 hereinabove and this clause at any time by giving ___ days notice to the Borrower and/or notifying in a local newspaper and shall thereafter be entitled to charge interest at the changed rate as if the same was provided for in this agreement. 5. (a) For the consideration aforesaid the Borrower has hereby pledged and delivered the shares and securities in marketable lot described in the Second Schedule hereto and the shares and securities that maybe hereafter delivered to RCL pursuant this agreement whether for the purpose of forming Additional Security for any sum already lent and advanced or by way of substitution for and in lieu of any shares and securities which may have been delivered or may be delivered to RCL under this Agreement or otherwise howsoever (hereinafter called the said Securities) shall to be deemed to have been pledged as security to RCL for the due repayment by the Borrower to RCL of any moneys due to RCL from time to time. The expression "the moneys due to RCL" in this and subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12th July 1995, expressly empowered defendant no.1 to deal with the said securities pledged and provided, inter alia, : "b) I have pledged the said securities with M/s. Reliance Capital Ltd. having its corporate office at Mittal Chambers, Ground Floor, 228, Nariman Point, Bombay 400 021, as collateral security with an authority to M/s. Reliance Capital Ltd. to sell, transfer and/or dispose of the said securities as they deem fit. c) ..... 1. To sell and transfer the said securities to any party/person and receive the sale consideration in respect of the said securities and apply the same against liquidation of the loan sanctioned and paid to me." Plaintiff no.1 also, under cover of a letter dated 12th July, 1995, forwarded to defendant no.1 cheques for monthly interest @ 24% p.a. as well as for the principal sum of Rs. 5 Crores. 4. Thereafter, plaintiffs sought an additional advance of Rs. 5 Crores on the same terms and conditions save and except as to the tenure of the loan. While no new sanction letter was issued by defendant no.1 in respect of this advance, admittedly this second amount of Rs. 5 Crores was also advanced on the same terms and conditions as stipulated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sell the shares pledged in its favour to secure the entire sum of Rs. 10 Crores which was then outstanding alongwith unpaid interest, though counsel for plaintiffs argued that this letter was restricted to second loan/tranche because it stated "proceeds of sale shall be appropriated towards recovery of Rs. 5 Crores which is overdue" and on that date only second loan was due. It should, however, be noted that the letter says "Re:Loan of Rs. 10 Crores given to you" and first loan was in any ways falling due for repayment on 12th March, 1996. 7. Meanwhile, the postdated cheque furnished by plaintiff no.1 for repayment of the first tranche of Rs. 5 Crores was dishonoured. By its letter dated 21st March, 1996 , defendant no.1 recorded this default and called upon plaintiff no.1 to forthwith repay the said sum of Rs. 5 Crores alongwith overdue interest thereon @ 36% p.a. (though interest payable was only 24% p.a.) for the period for which the amount remained outstanding. 8. By their reply dated 29th March, 1996, plaintiffs sought extension of time to pay the amounts that had fallen due along with interest. Plaintiffs, in this letter, however, did not question the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, plaintiffs sought details of the shares already sold by defendant no.1 and requested not to press for any sale of the remaining shares lying in their custody "to adjust against the remaining amount due to you either in the NSE or BSE." Plaintiff no.1 claimed that he was "in the process of placing this equity myself and your offer if floated would jeopardize my negotiations." This according to defendant no.1 was more than apparent that plaintiffs themselves treated the two tranches of Rs. 5 crores each as constituting a single loan of Rs. 10 crores, part of which was outstanding along with overdue interest and that plaintiffs were fully aware that defendant no.1 intended to sell the pledged securities to recover the amounts due. 12. Meanwhile, defendant no.1 during the subsistence of the pledge, lodged the share certificates and share transfer forms with Sesa Sterlite Ltd. (Defendant No.2) for transfer of the shares in the name of defendant no.1. This was as a step in aid to a future enforcement of the pledge and the sale of the pledged securities. 13. By their letter dated 30th August, 1996 defendant no.2 Sesa Sterlite Ltd. informed plaintiffs of the lodgment by defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.1, which both sides have not produced. The letter thus proceeded on the basis that the 1,59,936 equity shares of Sesa Sterlite Ltd. had been appropriated by defendant no.1 to itself at a cost of Rs. 310/ per share and that defendant no.1 was liable to render accounts on that basis and to pay over to plaintiffs the balance remaining along with interest at the rate of 24% per annum. In other words, the letter constituted an assertion that the pledge had come to an end and that defendant no.1 was now the owner of the shares. 16. By its letter dated 3rd January, 1997 addressed to plaintiff no.1, defendant no.1 recorded the sale, at a net rate of Rs. 255/ per share, of 50,000 of the pledged securities for an aggregate sum of Rs. 1,27,50,000/. By their Advocates' reply dated 15th January, 1997 plaintiffs reiterated the contents of Exh.P31, their earlier letter dated 30th December, 1996 and then observed: "In view of what is aforesaid my client fails to understand as to after having appropriated the shares of Sesa Goa Ltd. @ Rs. 310/ per share, why are you now intimating my client about the sale of the said shares. My client submits that it is totally within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lients had become legal owners of the shares, they were free to decide as to when to dispose off the shares belonging to themselves. xxxxxxxx 6. With reference to paragraph 6 of your letter, my client submits that all the transactions of shares upto June 19, 1996 were, undertaken with the knowledge and consent of my client. Infact, my client has already stated through my earlier correspondence that about one lakh shares have been disposed off by your clients between the rates of Rs. 430/ to Rs. 350/ per share. However, my client does not admit any transaction undertaken by your clients thereafter i.e. August 8, 1996 since your clients had appropriated the said shares lying with them on August 8, 1996 as already made clear in my letter dated December 30, 1996. In view of the same my client denies the rest of your allegations and contentions in the paragraph under reply. As far as my client is concerned both, the loan accounts as set out by you stand fully settled and in fact my client has to recover substantial excess amounts lying with your clients alongwith interest thereon as demanded earlier. Without prejudice to what is stated hereinabove my client denies that your ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) and (e) of the suit were relatable to this primary case set up by plaintiffs. Prayer (a) was for a declaration that the entire loan of Rs. 10 crores together with interest thereon stood repaid on or about 8th August, 1996 to the 1st defendant while prayer (e) was for payment over to plaintiff no.1 of an amount of Rs. 1,35,82,049/ alleged to be due on accounts being drawn on the basis that the shares had been appropriated at the rate of Rs. 310/ per share. The plaint also included an alternative plea which was framed thus: "22. Without prejudice to what is aforesaid, the plaintiffs state that since 1st defendants by their letter dated 29th April, 1997 refuted that they had appropriated the shares lying with them on 8th August, 1996 @ 310/ per share and that they were not bound and liable to pay to the plaintiff no.1 any surplus balance amount at all, on their own showing defendants no.1 had no title to the said 1,61,486 shares lying with them as pledged shares, pledged by plaintiff no.1. The plaintiffs say that thus defendant no.1 had no marketable title and were not entitled to sell the said shares in the market. The plaintiffs say that plaintiffs are ready and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86/ shares of the Defendant No.2 by the defendant no.1 was unlawful? 5. Does defendant no.1 prove that Mr. Sadashiv Rao did not have the power, right or authority to enter into the agreement mentioned in paragraph 14 of the Plaint? 6. Does defendant no.1 prove that the transfer of 1,61,486/ shares of the Defendant No.2 Company to defendant no.1 was not by way of sale but was only to facilitate sale of the said shares in exercise of its right as pledgee? 7. Does defendant no.1 prove that it was entitled to sell the 1,61,486/ shares of the Defendant No.2 in its capacity as pledge as alleged in paragraph 13 of the Written Statement? 8. Does defendant no.1 prove that 1,61,486/ shares of the Defendant No.2 were sold by defendant no.1 after due notice to the plaintiff no.1? 9. Does the defendant no.1 prove that only a sum of Rs. 5,61,413.50 stood to the credit of the loan account of plaintiff no.1 as per Exhibit "1" to the Written Statement? 10. What order?" 25. Issue nos.1, 2, 5, and 6 relate to the main plea set up by plaintiffs while issue nos.4, 7 and 8 relate to the alternative plea. Issue nos.3 and 9, which concerns the number of shares that were pledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greed appropriation of 1,61,486 shares of defendant no.2 company at the rate of Rs. 310/ per share, plaintiffs having abandoned their main plea including prayer for accounts, I do not consider it necessary to deal with all those arguments. Therefore, I am not dealing with issue nos.1,2,5 and 6. 28. ISSUE NO.3 : Plaintiffs had initially filed a suit on the footing that 3,87,000 equity shares of defendant no.2 were pledged by plaintiffs with defendant no.1 to secure the aforementioned advance of Rs. 10 crores. Subsequently, by way of an amendment effected on 1st October, 2014 plaintiffs revised this figure of 3,87,000 shares to 3,87,400 shares. At the same time, plaintiffs also amended the plaint to incorporate the following averments: "10. ..... RIDER "F" In the first week of July, 1996, the Defendant No.1 had called for additional security and accordingly, the Plaintiff No.1 handed over 400shares of the Defendant No.2 company under the cover of his letter dated 8th July, 1996 as pledge. The Plaintiffs crave leave to refer to and rely upon the letter dated 8th July, 1996 addressed by Plaintiff No.1 to the Defendant No.1 enclosing the aforesaid shares when produced. ......" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o plaintiff no.1 on 21st January, 1997 in its books of accounts [Exh.D10]. The fact that defendant no.1 has given credit in respect of dividend on 1,61,386 shares to plaintiff no.1 in its books, shows that it certainly had more than 1,61,086 shares pledged by plaintiff no.1 with it as on the date of book closure of defendant no.2. Hence, the defence of replacement of 400 shares is contrary to defendant no.1's own records and pleadings. In my view, the 400 equity shares have been handed over by plaintiffs to defendant no.1 as additional security. 32. ISSUE NOS.4,7, 8 and 9 : It is plaintiffs' case : (a) that two loans of Rs. 5 crores each were advanced by defendant no.1 to plaintiffs. The first loan was for a tenure of 8 months maturing on 12th March 1996 while the second loan was for a tenure of 6 months, maturing on 17th January 1996; (b) that 200,000 shares of Sesa Sterlite Limited were pledged by plaintiffs with defendant no.1 to secure the first loan and 1,87,000 shares of defendant no.2 Sesa Sterlite Limited were offered as a security for the second; (c) that plaintiffs have fully repaid the second loan and that amounts remained outstanding only on the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the alleged oral agreement struck with Mr. Rao, that defendant no.1 had become owners of the shares and plaintiffs were unconcerned with how the shares were dealt with by defendant no.1; (f) that plaintiffs at no point in time objected to the sale of the shares by defendant no.1, on the ground that notice had not been given of such sale or otherwise; (g) that plaintiffs at no point in time sought to redeem the pledged securities by tendering the outstanding amount. Even in the plaint, plaintiffs' plea for redemption was in the alternative. Their main plea proceeded on the basis that the pledge had come to an end and that defendant no.1 had become owners of the shares on 8th August, 1996. It is only at the stage of oral evidence that plaintiffs for the first time abandoned their principal plea and fell back on their alternative one; (h) that the two pleas raised by plaintiffs in the plaint are mutually destructive and, in any event, the alternative plea which plaintiffs have chosen to press is entirely unsupported by the evidence on record; 34. While it is true that two amounts of Rs. 5 crores were separately advanced by defendant no.1 to plaintiffs, in my view, after b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters dated 29th March, 1996, 7th May, 1996, 6th June, 1996 and 12th August, 1996 not only treat the two advances as a composite one, but also concede that both loans were outstanding. It is only on sale of the pledged securities that the amounts advanced to plaintiffs and the interest due thereupon were fully recovered. Whether defendant no.1 was justified in selling all those shares that they sold is a point which has been dealt with later. Plaintiffs have argued that the second loan was fully repaid on the basis that defendant no.1 ought to have appropriated the payments made by plaintiffs towards the second loan which fell due first. In this behalf, plaintiffs also relied on Section 59 and 60 of the Indian Contract Act which are reproduced herein: "59. Application of payment where debt to the discharged is indicated: Where a debtors, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly". "60. Application of payment where debt to be discharged is not indicated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case of waiver or of illegality for want of notice is required to be specifically pleaded so that defendants have full notice of plaintiffs' case. 38 It was also plaintiffs' case that : (i) a notice under Section 176 of the Act is mandatory, as held by a Division Bench of Calcutta High Court in Hulas Kunwar V/s. Allahabad Bank Ltd AIR 1958 Cal. 644 and in Official Assignee V/s. Madholal Sindhu AIR 1947 Bombay 217. Counsel Ms. Sonal submitted that it has not been reversed by the Federal Court on this point of law and therefore it is still good law. (ii) Clause 14 (ii) of the Pledge Agreement requires a seven days "written notice" to be given to plaintiff no.1 for repayment before defendant no.1 can sell or otherwise dispose of the pledged securities. (iii) Clause 16 of the Pledge Agreement lays down the procedure for giving a notice under the Pledge Agreement as follows: "16. Any notice, demand or communication to be served or given by a party to the other party may be served or given by telex or fax or by leaving the same at or posting the same by post under Certificate of Posting addressed to the Borrower at its place of business, residence or office and every suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chart showing the conversion of 1,61,450 shares into 64,58,000 shares and the details of the dividend that has accrued on them was also submitted by plaintiffs. (vi) If defendant no.1 was ready and willing to perform its part of the contract, namely, return the shares against receipt of the balance loan amount, it could have stated so in its written statement or additional written statement. However, defendant no.1 has not stated so and has justified sale of the pledged shares by it and accordingly issues have been framed by this Hon'ble Court. It is not the case of defendant no.1 in its written statement or additional written statement that it was ready to return the balance pledged shares and that the suit is bad for non tender of hard cash. (vii) The pledge was brought to an end by plaintiffs when they filed the present suit for redemption and expressed their willingness to repay the balance loan amount and to redeem the pledged shares. Section 177 of the Indian Contract Act which is reproduced hereunder further elaborates such a situation. Section 177 - Defaulting pawnor's right to redeem - If a time is stipulated for the payment of the debt, or performance of the promise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the loan amount. In this respect Mr. Chandurkar placed reliance on the following cases: 4 Lallan Prasad v Rahmat Ali, AIR 1967 SC 1322, wherein it is held as under (para17) : "if the pawnee is not in a position to deliver the goods he cannot have both the payment of the debt and also the goods." 5 Smt. Artibala Mohanty v. State Bank of India, AIR 1991 Orissa 260, in which it is held as under : "Where the Bank as the pawnee was not in a position to deliver back the goods on account of the seizure made by the police. The Bank as the pawnee having refused to perform its obligation of redelivering the goods on debts being satisfied cannot claim any interest from the date on which the petitioner wanted release of the goods pledged by satisfying the debt." 14. It may be seen that the circumstances of the case show that there was reasonable apprehension in the minds of the plaintiffs that even if they were to pay whole of the loan with interest gold ornaments would not be returned to them in such circumstances they were justified in not making actual payment of loan amount. The appellate Court was justified in holding that the liability of the plaintiffs to pay interest w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the pledged goods does not make any difference to the principle that in case of a suit filed for redemption and detinue in the event of an invalid sale, tender of hard cash is not required to be made by the pledger. The law does not recognize any difference between a pledge of shares which are listed on bourses and a pledge of gold ornaments nor does the law put any greater burden on a pledgor of easily available and replaceable goods like shares of listed companies, than on a pledger of gold ornaments or paintings. Any distinction drawn between easily available and replaceable goods and non- replaceable goods would put a higher burden on the pledger of the former, would be arbitrary. 41. Per contra, counsel for defendant no.1 submitted plaintiff's case that they are entitled to redeem the pledged securities including all accruals thereupon such as bonus shares issued and dividend paid out merely by tendering the amount due from plaintiffs to defendant no.1 on the date of institution of the suit is patently erroneous. According to Mr. Sen, it is settled law that a pledgor must, as a precondition for instituting a suit for redemption, deposit the amount outstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Supra) regarding payment of the outstanding amount being a precondition for the exercise of a right of redemption are equally of no assistance insofar as those are cases where an honest tender was in fact made in an attempt to redeem the pledged securities. The reliance on the proposition in Aratibala Mohanty (Supra) that interest would cease to run in the event a pledgee renders himself incapable of returning the pledged securities is also inapposite. In the present case, shares being fungible securities, no question can possibly arise of the pledgee being unable to "return" the security. In the event a valid tender is made of the outstanding amount, the pledgee would merely have to purchase the shares from the market and return it to the pledgor. In the present case, no occasion arose to do so because no tender was in fact made of the outstanding amount by plaintiffs. On the contrary, plaintiffs repeatedly reiterated that they had no interest in the pledged securities, defendant no.1 had become the owner of the shares and was free to deal with them as it pleased without even informing plaintiffs (Exh.P33). Plaintiffs have claimed on the basis of the Judgment of the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing the pledge. Plaintiffs could not but have known that this was done by defendant no.1 with an intention to enforce the pledge by sale of the securities. It is for this reason that plaintiffs also attempted to prevent the transfer by defendant no.2 Sesa Sterlite Limited, of the pledged securities in the name of defendant no.1. Subsequently, in circumstances about which there is a dispute between the parties, plaintiffs withdrew their objection for transfer of the shares in the name of defendant no.1. That dispute notwithstanding, it is clear that plaintiffs knew at the time that defendant no.1 proposed to deal with the shares. 43. At no point in time did plaintiffs object to such sale or contend that the sale was illegal or invalid on account of want of notice. On the contrary, plaintiffs repeatedly asserted that defendant no.1 had become the owner of the shares and was free to deal with the shares as it pleased. Having taken this contention till the filing of the suit and in the suit itself and having actively affirmed the freedom of defendant no.1 to sell the shares, plaintiffs cannot be heard to contend that they have not received notice of such sale or that the sale i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaint which has been abandoned and the alternative plea. PW1 also was unable to make out a case that plaintiffs had offered the balance amount in return for the pledged shares which defendant no.1 was not ready to give up. PW1 was unable to indicate where in the correspondence or in the pleadings plaintiffs have set up any case that the sale of the pledged shares were invalid on the ground that no notice had been given to plaintiffs. 47 The argument regarding waiver of right to sell pledged securities by defendant no.1 is also devoid of merit. The sanction letter dated 11th July, 1995 (Exh.P1), at clause 4(b) (4) expressly provided that "No failure to exercise or delay in exercising any of our rights hereunder or under any other documents will act as a waiver of that or any other right nor shall any single or partial exercise preclude any future exercise of that right." As such, no argument of waiver, merely on the ground of forbearance or extension of time, is available to plaintiffs. Plaintiffs have in support of their case of waiver relied on the judgments of the Hon'ble Calcutta High Court in Hulas Kunwar v. Allahabad Bank Ltd. (Supra) and the judgment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997. As observed earlier, defendant no.1 could not have levied interest at the rate of 36% on the amounts outstanding for any period. 52. The sanction letter dated 11th June, 1995 [Exh.P1] which contains the terms and conditions for both the loans, provided for the rate of interest to be at 24%. Clause 4(b)(1) thereof, provides that defendant no.1 would be entitled to notify plaintiff no.1 of the change in interest rate and thereafter be entitled to charge interest at such notified rate. Clause 4(b)(1) is as under: "4(b)(1) Notwithstanding what is stated hereinabove, we shall, at any time and from time to time, be entitled to notify you and thereafter charge interest at such notified rate and this letter shall be construed as if such revised rates were mentioned therein." This clause deals with change in the rate of interest before any default made by plaintiff no.1 while clause 4(b)(2) of the sanction letter deals with additional interest at the rate of 2% above the interest rate for the facility that could be levied by defendant no.1 post default. The aforesaid clause of the sanction letter read with clause 16 of the Pledge Agreement reproduced earlier, makes it clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured upon presentation [cheque at Sr. No.8 of Exh.P5 and cheque at Sr. No.6 of Exh.P11]. Yet, defendant no.1 did not levy interest at monthly rests or additional interest thereafter. 57. Mr. Sen, counsel for defendant no.1 argued that interest was to be calculated at monthly rests which was payable in arrears and therefore would have been levied only after plaintiff no.1 had defaulted in making payment of any installment towards interest or the principle amount and not before. Interest at monthly rests or any other rests was not demanded by defendant no.1 in its letters dated 23rd February, 1996 [Exh.P17], 7th March, 1996 [Exh.P18] and 21st March, 1996 [Exh.P19]. Even in the Statement of Account maintained by defendant no.1 [Exh.D10], interest has not been levied at monthly rests or any additional interest charged. Defendant no.1 had never levied interest at monthly rests or otherwise additional interest and hence is not entitled to. 58. Therefore, sale of any pledged share in excess of what was only required to be sold to recover the amount due, would be illegal. The counsels agree that the last of the pledged shares that was sold by defendant no.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant no.1 had to render accounts and to pay over the alleged surplus. Rendering of accounts will squarely apply to both the primary case of plaintiffs and the alternative plea. Moreover, issue no.9 reads as under : (9) Does the defendant no.1 prove that only a sum of Rs. 5,61,413.50 stood to the credit of the loan account of plaintiff no.1 as per Exhibit "1" to the Written Statement? 61. This situation, that more shares were sold than required, would not have arisen but for the decision of defendant no.1 to unilaterally chose to calculate interest @ 36% per annum and appropriate to itself the sale proceeds. Defendant no.1 was not even providing plaintiffs with detailed breakup of the calculations despite repeatedly being called upon to produce. As could be seen from the evidence, plaintiffs were repeatedly asking defendant no.1 to provide the breakup. If only defendant no.1 had been honest in its calculations and provided timely statements, this situation would not have arisen. It is true that it was plaintiff no.1 who had approached defendant no.1 for financial assistance and plaintiff no.1 had defaulted in its payment but at the same time, defendant no.1 could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed..........." 64. In the circumstances, I am inclined to reject the submissions of Mr. Sen and hold that plaintiffs are entitled to the shares with accretions and unearned dividend but the entitlement will be based on the statement of defendant no.1 and defe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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