Appeals Nos 1772 and 1773 of 1970
Appeals from the judgment and order dated July 24 1970 of the Delhi High Court in Letters Patent Appeals Nos 72 and 73 of 1969
C K Daphtary section P Nayar for the appellant in both the appeals
N A Palkhivala Santosh Chatterjee G section Chatterjee and A M Parikh for respondent No 1 in both the appeals
B N Kirpal and Bishamber Lal for respondent No 2 in CA No 1772 of 1970
B Sen and O P Khaitan for respondent No 2 in CA No 1773 of 1970
N A Palkhivala Bhuvanesh Kumari Santosh Chatterjee J B Dadachanji for intervener No 1
M C Setalvad Santosh Chatterjee C M Oberoi and J B Dadachanji for intervener No 2
C K Daphtary and 1
N Shroff for intervener No 3
A N Sinha and Rathin Das for intervener No 4
C K Daphtary and section K Dholakia for intervener No 5
The Judgment of the Court was delivered by Shah J
On May 29 1965 the Allied International Products Ltd hereinafter called the Company issued a prospectus offering to the public for subscription 500000 equity shares 664 of Rs 10 each and 10000 cumulative preference shares of Rs 100 each and intimating that applications are being made to Bombay Calcutta and Delhi Stock Exchanges for permission to deal in for official quotations of the shares of the Company
On June 3 1965 the Company submitted applications to the Stock Exchanges at Bombay Calcutta and Delhi which are recognised Stock Exchanges within the meaning of section 239 of the  for enlisting its shares
The subscription list of the Company was closed on June 21 1965
On June 22 1965 the Bombay Stock Exchange extended the time for consideration of the application till the expiry of seven weeks from the date of closing of the subscription list and requested the Company to furnish certain particulars to facilitate compliance with section 73 of the Indian 
On August 6 1965 the Exchange informed the Company that the application was receiving further consideration and requested that certain formalities be complied with
On September 13 1965
the Exchange informed the Company that it had considered and approved the application for enlisting its shares
On June 9 1965 the Calcutta Stock Exchange called upon the Company to modify certain Articles of Association and by letter dated July 12 1965 asked for particulars in respect of specified matters
On July 27 1965 the Calcutta Stock Exchange granted time for compliance till the end of the seventh week from the date of the closing of the subscription list
On November 5 1965 the Calcutta Stock Exchange rejected the application of the Company for enlisting the shares
The Delhi Stock Exchange informed the Company on July 10 1965 that in order to facilitate compliance with the provi sions of section 73 of the  the allotment of shares should be finalised as soon as possible in consultation with the Stock Exchange
By another letter dated August 9 1965 the Exchange informed the Company that the matter of enlistment of shares was under consideration and the Company will be intimated of the decision of the Exchange as soon as it is taken
The Delhi Stock Exchange by letter dated December 4 1965 rejected the application of the Company for enlistment of its shares
The Company challenged the orders passed by the Calcutta and Delhi Stock Exchanges rejecting the applications for enlistment in separate appeals under section 22 of the Securities Contracts Regulations Act 42 of 1956
The Central Government dismissed the appeals
In the orders recording dismissal it was recited that the Exchange did not grant the permission for the shares 665 to be enlisted before the expiry of four weeks from the date of closing of the subscription list as required by section 7 3 1 of the  and that the Exchange did not notify any extension of time for the grant of the permission within four weeks
The Company then moved petitions id the High Court of Delhi for the issue of writs quashing the orders passed by the Central Government in appeals under section 22 of the  and the orders of the Stock Exchanges rejecting the application of the Company as void illegal and of no effect and for orders directing the Stock Exchanges to grant enlistment of the shares of the Company and further declaring section 22 of the Securities Contracts
Regulation Act 42 of 1956 and section 73 of the  ultra vires the Constitution of India
Rangarajan I was of the opinion that grant of permission by the Bombay Stock Exchange was valid and that allotment of shares did not become void merely because one out of the three Exchanges alone gave the permission to enlist the Company s shares
The learned Judge quashed the order of the Central Government and directed that writs of mandamus do issue against the Calcutta and Delhi Stock Exchanges requiring them to enlist the shares of the Company
Against the decision of Rangarajan J the Union of India appealed to a Division Bench of the High Court of Delhi
The two Exchanges acquiesced in the orders passed against them
The High Court confirmed the orders of Rangarajan J With certificate granted by the High Court the Union of India has appealed to this Court
In support of these appeals two principal contentions were urged on behalf of the Union  1 The permission granted by the Bombay Stock Exchange after the expiry of seven weeks violated the provisions of section 731 of the and was on that account invalid and 2 that grant of permission by one out of the three Exchanges did not protect the allotment of shares from being invalid under section 731 of the 
The two Stock Exchanges which had acquiesced in the judgment of the Rangarajan J urged that the order granting writs of mandamus requiring the two Exchanges to enlist the shares of the Company was without jurisdiction
Rangarajan J it was L436 Sup
CI70 6 66 said could only direct that the applications be considered by the two Exchanges
The relevant provisions of section 73 of the  in force at the date of the applications for permission for the shares to be dealt in the Exchanges provided 1 Where a prospectus whether issued generally or not states that application has been made or will be made for permission for the shares or debentures offered thereby to be dealt in on a recognised stock exchange any allotment made on an application in pursuance of he pros tu shall whenever made be void if the permission has not been applied for before the tenth day after the first issue of the prospectus or if the permission has not been granted before the expiry of four weeks from the date of the closing of the subscription lists or such longer period not exceeding seven weeks as may within the said four weeks be notified to the applicant for permission by or on behalf of the Stock Exchange
2 Where the permission has not been applied for as aforesaid or has not been granted as aforesaid the company shall forthwith repay without interest all moneys received from applicants in pursuance of the prospectus and if any such money is not repaid within eight days after the company becomes liable to repay it the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of five per cent per annum from the expiry of the eighth day Provided 5 For the purpose of this section permission shall not be deemed to be refused if it is intimated that the application for permission though not at present granted will be given further consideration
7 No prospectus shall state that application has been made for permission for the shares or debentures offered thereby to be dealt in on any stock exchange unless it is a recognised stock exchange
 667 By the  machinery is set up for extending recognition to and for withdrawal of recognition to Stock Exchanges and for other incidental matters such as the making of rules and bye laws of the Exchanges and appeals against the orders of recognised Exchanges
By section 22 of the Act it is provided  Where a recognised stock exchange acting in pursuance of any power given to it by its bye laws refuses to list the securities of any public company the company shall be entitled to be furnished with the reason for such refusal and may appeal against the decision of the recognised stock exchange to the Central Government and the Central Government may after giving the stock exchange an opportunity of being heard vary or set aside the decision of the recognised stock exchange and when it does so the stock exchange shall be bound to act in conformity with the orders of the Central Government Sub section 5 of section 73 of the  is intended to be explanatory of sub sections
1  2 of section 73
Before that sub section was amended by Act 31 of 1965 different phraseology was used in sub sections
1  2 and in sub section
5  the former used the expression permission has not been granted whereas sub section
5 used the expression permission shall not be deemed to be refused
The expression permission has not been granted is ambiguous  it may mean permission has been refused  it may also mean that the application for permission is under consideration and has not been disposed of
Sub sections 1  2 of section 73 were borrowed from section 51 of the English Companies Act 1948 with slight modifications
But the draftsman of the Indian Act for reasons which it is difficult to appreciate substituted the expression permission has not been granted for the expression permission has been refused
In enacting sub section
5 of section 73 the words used in sub section
5 of section 51 of the English Act viz Permission shall not be deemed to be refused were adopted
In our judgment the expression permission has not been granted in sub sections
1  2 was intended in the context in which it occurs and in the light of the object of the enactment to mean permission has been refused
A Stock Exchange fulfils a vital function in the economic development of a nation its main function is to liquify capital by enabling a person who has invested money in say a factory or a railway to convert it into cash by disposing of his share in the enterprise to some one else
Investment in joint stock companies is attractive to the public because the value of the shares is announced day after day in the Stock Exchanges and the shares 66 8 quoted on the Exchanges are capable of almost immediate conversion into money
In modern days a company stands little chance of inducing the public to subscribe to its capital unless its shares are quoted in an approved Stock Exchange
All public companies are anxious to obtain permission from reputed exchanges for securing quotations of their shares and the management of a company is anxious to inform the investing public that the shares of the company will be quoted on the Stock exchange To prevent malpractices the Parliament enacted legislation which aimed at securing control over the proper functioning of the Stock Exchanges and also placed stringent restrictions upon the representations made by the companies in issuing prospectus inviting subscriptions
The Parliament enacted the 42 of 1956 and simultaneously made provision in section 73 of the  for ensuring that representations made in the prospectus are carried out and fluidity of the investment by the holder of stock is ensured by procuring permission for quotation of shares in a recognized stock exchange
Under sub section
1 of section 73 an application for permission to secure quotation if not previously made shall be made before the tenth day after the first issue of the prospectus and if the
application is not so made the allotment is void
Again if the Exchange rejects the application within four weeks or within seven weeks after extending the time the allotment will be void unless within that period the Exchange has informed the Company that further consideration will be given to the application
It is however not enacted in section 731 that if the application is not granted within the time prescribed it cannot be granted after the expiry of the prescribed period even if the Exchange has intimated that it will give further consideration to the application
Sub section 5 contains a clear implication to the contrary
If the Exchange has intimated within the period prescribed by sub section
1 that the application will be given further consideration it is not to be deemed that the application is refused
The Exchange is not obliged to give any intimation relating to the consideration of the application before the last day of the prescribed period
If no intimation is given till the last date of the prescribed period no inference of refusal follows
It would then be difficult to hold that if the Exchange intimates that it is considering the application or intends to give further consideration to the application that such an inference may follow
The amendment made by Act 31 of 1965 in sub section
5 by the substitution of the expression Permission shall not be deemed to be refused by the expression it shall not be deemed that permission has not been granted also gives a clue to the legislative intention that the inference of refusal will not be made if the 669 Exchange has intimated to the applicant that further consideration will be given to the application
We are unable to hold that permission for enlistment of shares can be given within the initial four weeks or if time be extended within seven weeks from the date of the closing of the subscription list and if permission be not granted by the Exchange within those seven weeks the allotment becomes void even if the Stock Exchange intimates that it is giving further consideration to the application
The intendment of sub sections
1 2  5 is plain
If within four weeks from the date of the closing of the subscription list the Stock Exchange sends no intimation either extending the time or notifying that the application though not at present granted will be given further consideration the application is deemed to be refused
If the Stock Exchange so desires it may intimate that the period is being extended to seven weeks
The Exchange may say nothing more within the extended period in which case on the expiry of the extended period the allotment becomes void
If however within the four weeks or within the extended period of seven weeks the Exchange intimates that even though the application for permission is not at present granted the application will be given further considera tion the application is not deemed to be re fused until it is finally decided
The application for allotment of shares and acceptance thereof constitute a contract between the Company and the applicant
Section 731 of the imposes a penalty whereby the allotment of shares becomes void on the happening of the contingency specified therein
The imposition of penalty depends upon the violation of the Exchange and when imposed operates to invalidate all contracts resulting from allotment of shares between the applicants for shares and the Company
Such a provision must be strictly construed
Unless the statute in clear terms so provides when the Exchange intimates its desire to consider the application further an inference that the Exchange has still rejected the application cannot be made
It is true that in the prospectus issued by the Company it was intimated that applications are being made to the Bombay Calcutta and Delhi Stock Exchanges for permission for official quotations of the shares of the Company
It is not contended and it cannot reasonably be contended that only one application for permission to secure quotation of the shares in an approved Exchange may be made
The expression a recognised stock exchange means any recognised exchange
More applications than one for quotation of shares may therefore be made In the present case three applications were submitted on June 3 1965
Two of these applications were rejected and one was granted
We 670 are unable to hold that unless all the applications were granted the allotment of shares must by virtue of sub section
1 of section 73 be invalid
The object of section 731 is that the subscribers to the shares must have facility to approach an Exchange for having their holdings converted whenever they desire
Even if out of several Exchanges approached one or more but not all have granted the application for enlistment
the facility of ensuring quick conversion is still avail able
If after representing in the prospectus that an application has been made to a recognised exchange for enlistment or will be made within the prescribed period the Company is unable to obtain permission for enlistment from any exchange the allotment will be invalid
But sub section
1 is not intended to mean that it will be invalid even if permission is obtained but not from all the Exchanges to which applications have beer made
Section 731 is enacted with the object that the subscribers will be ensured the facility of easy convertibility of their holdings when they have subscribed to the shares on the re presentation in the prospectus that an application for quotation of shares has been II be made
The allotment of shares will be invalid only or WI when permission for quotation is not obtained
When permission from one or more of the Exchanges is obtained it carries out the object of the Act
It will be a mechanical interpretation wholly divorced from the true object and intendment of the Act to hold that even if permission is secured for quotation of shares in an Exchange the allotment will be invalid because another exchange has not granted the permission
That this is the true meaning of section 731 is clear from the fact that the penalty of avoidance of allotment of shares is attracted not only where the permission  applied for has not been granted but where no application has been made within the prescribed period If applications are made to several exchanges some within the period of ten days after the first issue of the prospectus and some beyond or that one or more applications but not all is or are defective and the error is not rectified it would be unreasonable to hold that because some of the applications made beyond the tenth day after the first issue of the prospectus or are defective are liable to be rejected the applications properly made before some of the Exchanges are also ineffective and the allotment made may be invalid
Counsel for the Calcutta Stock Exchange urged that where a person is induced to subscribe for shares relying upon a representation that an application is made or intended to be made for quotation of the shares in an Exchange near his home town and it is found that the application is not made or if made it is rejected by the Exchange it would be a great hardship to the 67 1 shareholder if he is bound by the allotment even if the condition of securing quotation in the Exchange convenient to him is not carried out
But section 731 declares the entire allotment void  it does not take into consideration the right or convenience of individual shareholders
An enquiry whether a shareholder or a class of share holders was or were induced to subscribe for shares on the representation is irrelevant in determining whether the allotment is for failure to secure compliance with a statutory condition rendered invalid
We need not consider whether the individual shareholder who finds that an Exchange convenient to him has not listed the shares furnishes a cause of action to him for avoiding the contract
We are in the view we have taken not called upon to decide whether the provisions of section 73 of the  are ultra vires nor do we consider it necessary to decide whether section 22 of the  is ultra vires
It was urged on behalf of the Delhi and Calcutta Stock Ex changes that the High Court ought in exercise of the power under O 41 r 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
An Appellate Court may in appropriate case 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 a 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 order 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 Me Exchanges acquiesced in the direction
We need however not express any final opinion in 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
The appeals fail and are dismissed with costs
There will be one hearing fee in favour of the Company
The other parties will bear their own costs
Appeals dismissed


Summary:
The first respondents limited company issued a prospectus offering its shares to the public for subscription
it was mentioned in the prospectus that the company was applying to the Bombay Calcutta and Delhi Stock Exchanges which were recognised exchanges within the meaning of section 239 of the  for enlistment of its shares
On June 3 1956 the Company submitted the applications
The subscription list was closed on June 21 1965
On June 22 1965 the Bombay Exchange extended the time for consideration of the application till the expiry of seven weeks from the date of closing of the subscription list
On August 6 1965 the Exchange informed the company that the application was receiving further consideration
On September 13 1965 the Exchange informed the company that its application for enlisting its shares had been approved
The Calcutta and Delhi Exchanges rejected the applications made to them
The company Challenged the orders passed by the Calcutta and Delhi Exchanges in appeals to the Central Government under section 22 of the 
The Central Government dismissed the appeals
The company filed writ petitions in the High Court
The Single Judge held that the grant of permission by the Bombay Exchange was valid and that allotment of shares did not become void merely because one out of the three exchanges alone gave the permission to enlist the company s shakes
He quashed the order of the Central Government and
directed the issue of mandamus to the Calcutta and Delhi Exchanges requiring them to enlist the shares of the company
The Union of India appealed to the Division Bench
The Calcutta and Delhi Exchanges acquiesced in the orders passed against them
The High Court confirmed the order of the Single Judge
With certificate the Union of India appealed to this Court
The questions that fell for consideration were  i whether the permission granted by the Bombay Exchange after the expiry of seven weeks from the date of closing of the subscription list violated the provisions of section 731 of the and was on that account invalid ii whether the grant of permission by one out of three Exchanges was sufficient to protect the allotment of shares from being invalid under section 731 of the  iii whether a shareholder who buys shares on the 15 L436SupP71 662 representation that the shares would be enlisted in an Exchange convenient to him is bound by the allotment even when the condition of securing quotation in an Exchange convenient to him has not been carried out iv Whether in the circumstances of the case the High Court ought in exercise of its power under O41 r 33 of the Code of Civil Procedure to have vacated the writ of Mandamus requiring the Calcutta  Delhi Exchanges to grant permission for quotation of the Company s shares
HELD  i It was not possible to accept the argument that permission for enlistment of shares can be given within the initial period of four weeks or if time be extended within seven weeks from the date of closing of the subscription list and if permission be not granted by the Exchange within those seven weeks the allotment becomes void even if the Stook Exchanges intimates that it is giving further consideration to the application
669 B The intendment of sub sections
1 2 and 5 of section 75 of the is plain
If within four weeks from the date of the closing of the subscription list the stock exchange sends no intimation either extending time or notifying that the application  though not at present granted will be given further consideration the application is deemed to be refused
If the Stock Exchange so desires it may intimate that the period is being extended to seven weeks
The Exchange may say nothing more during the extended period in which case on the expiry of the extended period the allotment becomes void
If however within the four weeks or within the extended period of seven weeks the Exchange intimates that even though the application for permission is not at present granted the application will be given further consideration the application is not deemed to be refused until it is finally granted
669 C D Being a penal provision section 731 must be strictly construed
Unless the statute in clear terms so provides when the Exchange intimates its desire to consider the application further an inference that the Exchange has still rejected the application cannot be made
669 F The amendment made by Act 31 of 1965 in sub section
5 by the substitution of the expression permission shall not be deemed to be refused by the expression it shall not be deemed that permission has been granted also gives a clue to the legislative intention that the inference of refusal shall not be made if the Exchange has intimated to the applicant that further consideration will be given to the application
668 H ii It cannot be held that unless all the applications to different Exchanges were granted the allotment of shares must by virtue of sub section
1 of section 73 be invalid
The object of section 731 is that the subscribers to the shares must have facility to approach on Exchange for having their holding converted whenever they desire
Even if out of several exchange I approached one or more but not all have granted the application for enlistment the facility of ensuring quick conversion is still available
 It after representing in the prospectus that an application bag been made to a recognised exchange for enlistment or will be made within the prescribed period the company is unable to obtain permission for enlistment from any Exchange the allotment will be invalid
But sub section
1 is not intended to mean that it will be invalid even if permission is obtained but not from all the Exchanges to which applications have been made
670 A C iii Section 73 1 declares the entire allotment void  it does not take into consideration the right or convenience of individual shareholders
663 An enquiry whether a shareholder or a class of shareholders was or were induced to subscribe for shares on the representation that the company was applying for enlistment to several exchanges one of which was convenient to him is irrelevant in determining whether the allotment is tendered invalid for failure to secure compliance with a statutory condition
671 B iv An appellate court may in appropriate case pass any decree and make any order appropriate to the ends of justice even if a party has not appealed against an adverse decision
The power may be exercised by the Court notwithstanding that the appeal is as to a 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 an appeal or objection
671 E The Court did not give a final opinion on the question whether in the present case the discretion was correctly exercised by the High Court because the Calcutta and Delhi Exchanges had applied for certificates in the High Court of Delhi and the application was pending 671 G