[2008] 9 S.C.R. 1096

'( ..

MAGHENDRA PAL TYAGI

JAYANT DAVAR AND ORS. (Civil Appeal Nos.3034-3036 of 2005)

JUNE 5, 2008 B

[C.K. THAKKER AND LOKESHWAR SINGH PANTA, .,

JJ.] r- Special Courts (Trial of offences relating to transactions c in Securities) Act, 1992: s. 3(2) - Transfer of shares to notified person - Appellant held shares of the Company - He applied for issue of duplicate shares on the pretext that these shares were lost - Consequently duplicate share certificate was issued- These shares were then sold to first respondent- When

D first respondent sold these shares in open market, they were returned to him as bad delivery- It was found that these shares .. were kept in abeyance as they were seized by CBI at the time of Share Transfer Scam -Application by First respondent that he is owner of these shares and entitled to corporate benefits

E -Allowed by Special Judge - Justification of- Held: Justified

- These shares were attached by CBI in proceedings initiated against the notified party and hence could not be transferred to any party - Appellant got the duplicate shares on the basis of misrepresentation - Therefore Special Judge was right in directing the appellant to pay to first respondent the amount ..

F received from him along with interest@ 18% p.a. - Share

Transfer Scam.

The appellant held 200 shares of fourth respondent company, which purportedly were lost. He applied to the

G fourth respondent company for issue of duplicate certificates in lieu of his lost shares. Pursuant to this, Fourth respondent company issued public notice in newspaper calling for objections if any against issue of duplicate shares to the appellant. Having not received any objec-

H 1096

MAGHENDRA PAL TYAGI v. JAYANT DAVAR 1097

AND ORS. .. tions, duplicate share certificates were issued to him.

On 8th July 1994, the appellant transferred these shares in favour of first respondent. The first respondent sold/transferred 200 shares which he got from the appellant and 50 Bonus Shares consequently acquired by him, B but the fourth respondent-company did not register the said transfer. This was done on the asking of the CBI, which was investigating the Share Transfer Scam, and

~- advising the first respondent and the transferee to approach the Custodian-second respondent. c The transfer agent received a letter from second respondent-Custodian regarding stop transfer of shares in favour of any person without permission of the custodian and also held in abeyance all the benefits accruing on t those shares as the said shares were seized by the CBI 0

~ at the time of raid laid on the places of deceased Harshad S. Mehta. The letter also revealed that deceased Harshad S. Mehta and his group were notified by custodian on 8.6.1992 under the provisions of the Act and all properties belonging to them stood attached simultaneously E with the issue of notification and fourth respondent was informed not to deal with those shares including transfer, pledge, issue of duplicate shares. The letter of 8th

~ October, 1997 revealed that the list furnished by the sec- ,, ond respondent-Custodian regarding properties of notitied person included original shares of the appellant which F he allegedly lost. The fourth respondent-company, therefore marked "stop transfer" against the duplicate shares which were transferred in the name of the first respondent and advised him to approach the stock exchange through whom those shares were purchased so that G through proper channel, the introducing broker as well " as the share holder, i.e. the appellant could be asked to replace the said shares with good shares.

Before the Special Judge, the first respondent filed H

A an application claiming that he is the real and only owner of these shares and, the shares were registered in his name accordingly, all corporate benefits accrued thereon since the date of registration of the 250 shares in his name, be paid to him in the interest of justice. The principal s prayer in the application was for lifting of attachment on these 250 shares.

The Special Judge allowed the application filed by first respondent holding that appellant sold the shares t9 the notified party and that taking advantage of fact that C the notified party because of notification could not apply

for transfer of the shares, appellant applied for the duplicate shares by making a misrepresentation that he had lost the shares and received the duplicate shares and then sold them to first respondent for Rs.2,92,400/-. The Spe- D cial Judge further held that the question of lifting of attachment of 250 shares did not arise, however applicantfirst respondent was entitled to recover from appellant the value of the shares. Accordingly appellant was directed to pay to first respondent an amount of Rs.2,92,400/ E - with interest @ 18% p.a. from 6th July 1994 till realization. The appellant filed review petition which was dismissed.

In appeal to this Court, appellant contended that the shares came in the hands of the notified person in illegal F and wrongful manner and were never transferred in his name in accordance with law and as such appellant could not be penalized for the acts and deed of a third person.

Dismissing the appeal, the Court

G HELD: 1. Indisputably, deceased Harshad Mehta was a notified person under sub-Section (2) of s.3 of the Special Courts (Trial of offences relating to transactions in -r Securities) Act, 1992. The appellant transacted the said shares with the deceased Harshad S. Mehta, after the H first day of April, 1991 and on or before 1st June, 1992,

MAGHENDRA PAL TYAGI v. JAYANT DAVAR 1099

AND ORS. y

6' the stipulated period covered under the Act. Claim sub- A mitted by the first respondent before the Special Judge arose out of the transaction of the said 250 shares between deceased Harshad S. Mehta and the appellant during the aforesaid period. The entire properties belonging to the notified party on the day of notification was attached 8 ... in terms of s.3(2) of the Act. The appellant knowing fully " well that he has already sold the shares to deceased Hashad S. Mehta, made a false representation to the fourth respondent-company that as he had lost original shares, therefore, duplicate shares were allotted to him which c stood in his name since late Harshad S. Mehta had not applied for change of the name. The whole exercise was done by the appellant on the basis of his mis-representation. [Para 15] [1108-B, C, D & E]

I' L. S. Synthetics Ltd. v. Fairgrowth Financial Services Lim- D

~ ited & Anr (2004) 11 SCC 456; Tejkumar Balakrishna Ruia v.

A.K. Menon (1997) 9 SCC 123; Ashwin S. Mehta & Ors. v.

Union of India & Ors. (2006) 2 sec 385 - relied on.

2. The Special Court has rightly concluded that 200 E duplicate shares were obtained by the appellant by misrepresentation. The said 200 shares plus 50 Bonus shares were attached by the CBI in proceedings initiated against deceased Harshad S. Mehta, therefore, the attached

.>- shares of the fourth respondent-company could not be ,

transferred to any party. The record of second respon- F dent-Custodian would reveal that 250 shares were sold by the appellant in the month of June, 1994 and payment of Rs.2,92,400/-was made by cheque dated 6th July, 1994.

In these circumstances, the Special Judge directed the appellant to pay to the first respondent an amount of Rs. G 2,92,400/- with interest at the rate of 18% per annum from

"T 6th July, 1994 till the date of realization. In the backdrop of the facts and circumstances and in the light of the provisions of law, the orders of the Special Judge do not suffer from any infirmity or illegality warranting interference H

A in exercise of appellate power. [Para 18] [1109-C, D, E & F]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3034-3036 of 2005

From the final Judgment and Order dated 10.10.2003, B 14.7.2004 and 18.8.2004 of the Special Court (TORTS) at Bombay in Misc. Appln. No. 186 of 2000, Mies Appln. No. 178 of 2004 in M.A. No. 186 of 2000 and Misc. Appln. No. 263 of 2004 in M.A. No. 186 of 2000 respectively.

Abhishek Vikas Singh, Yunus Malik, Ravi Kishore, C Ravindra Tyagi and Himinder Lal for the Appellant.

T.V.S. Raghavendra, Nikhil Nayyar, RohitAggarwal, Jagjit Singh Chhabra and Subramanium Prasad for the Respondents.

The Judgment of the Court was delivered by

LOKESHWAR SINGH PANTA, J. 1. These appeals are directed against the judgment and order dated 10.10.2003 in Misc. Application No.186 of 2000 (impugned order-1 ); order dated 14.07.2004 in Misc. Application No.178 of 2004 in M.A.

No. 186/2000 (impugned order-2) and order dated 18.08.2004 E in Misc. Application No.263 of 2004 in M.A. No.186/2000 (impugned order-3) passed by the Special Court constituted under The Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 [hereinafter referred to as "the Act"] at Bombay.

2. The short facts leading to the present proceedings are as under:-

The appellant herein held 200 shares of Hero Honda Company - fourth respondent-company herein. In and around Sep- G tember 2003, the appellant desired to dispose of the said 200

shares, but he allegedly lost the same. On 21.09.1993, the appellant got a police report registered in the Sihani Gate Police Station, Ghaziabad. On or about 22.09.1993, the appellant approached and requested the fourth respondent-company H for issue of duplicate Certificates in lieu of his lost shares along

r ...

with all supporting documents, indemnity bonds and affidavits, A etc.

3. On 05.01.1994, the fourth respondent-company got an Advertisement/Public Notice published in Newspapers calling

upon to file objections, if any, against issue of duplicate Share Certificates to the appellant and also striking a note of caution B to the public at large not to deal with the shares so specified in the advertisement. Having not received any objection from any one, the fourth respondent-company on 03.02.1994 issued duplicate Share Certificates to the appellant. The appellant transferred his shares in favour of Jayant Davar - the first respon- C dent herein, which were registered in his name by the fourth respondent-company on 18.10.1994. The first respondent had been offered 50 Bonus Shares by the fourth respondent-company, which offer was profitably availed by him. The first respondent sold/transferred 200 shares which he got from the D appellant and 50 Bonus Shares consequently acquired by him, but the fourth respondent-company did not register the said transfer. This was done on the asking of the CBI, who was investigating the Share Transfer Scam, and advised the first respondent and the transferee to approach the Custodian - sec- E ond respondent herein. The fourth respondent-company asked the appellant to enforce indemnity bond, but the appellant did not agree as the fourth respondent-company had not suffered any loss, etc. as a result of the transaction.

4. The case of the first respondent before the Special Court F was that he purchased 800 shares of fourth respondentcompany through its broker M/s. Jamnadas Morarjee & Co. during the months of July-August, 1994 and thereafter the said shares were sent for transfer to the Registrar and Share Transfer Agent of respondent No. 3, i.e. MCS Limited. The shares were finally G transferred in his name on the basis of valid instruments of trans-

~ fer and, accordingly, a ledger folio No. 141982 has been allotted to him. The second respondent filed Miscellaneous Application No. 186/2000 before the Special Court claiming 200 shares which were transferred in his name from the appellant H

"' ..

A and 50 bonus shares in the ratio of 1 :4 as issued by third respondent against those 200 shares. The first respondent stated before the Special Court that he had sold 250 shares in the open market through his share broker M/s. TRC Securities Pvt.

Ltd. in the month of May/June, 1997. Upon lodgment of the

B said 250 shares with MCS Limited, they, vide their letter dated

26.06.1997 refused to transfer/register the shares in the name

""'

....

of the lodger i.e. Morgan Stanley Assets Management Inc., A/c Morgan Stanley Institutional Fund Inc. Emerging Markets Portfolio. Subsequently, the 250 shares were returned to first rec spondent as 'Bad Delivery' under two different covering letters

dated 26.06.1997 and 10.07.1998 respectively. MCS Limited received a letter bearing No. 5696/Cus/Mob/UR-CBl/96 (5338) dated 29.02.1996 from the second respondent-Custodian regarding stop transfer of the shares in favour of any person with-

D out permission of the Custodian. The MCS Limited also en- "' closed copy of transfer deeds, share certificates and ..

Custodian's letter dated 29th February, 1996 along with their letter to the second respondent who on going through the same, came to know that 117335 shares of fourth respondent-com-

E pany belonged to the Notified Persons of the group of Late Harshad S. Mehta which were seized by CBI and remained in their custody. The letter also revealed that Late Harshad S.

Mehta and his group were notified by the Custodian on 8.6.92 under the provisions of the Act and all properties belonging to .4. them stood attached simultaneously with the issue of the notifi-

F cation and the fourth respondent-company was informed not to deal with those shares in any manner including transfer, pledge, issue of duplicate etc. and all corporate benefits admissible on these shares may be held in abeyance till the orders passed by the learned Special Judge.

5. In view of the above stated circumstances, the first respondent requested the fourth respondent-company to transfer ,.. the shares in the name of the buyer who purchased the same in the open market. The fourth respondent-company vide their

H letter dated 8th October, 1997 informed the first respondent that

)' ,. one Mr. Mahendra Pal Tyagi - appellant herein was holding the A said 200 shares under Ledger Folio No. 128027 bearing Share Certificate Nos. 58193, 46706, 179855 which he claimed having been lost and requested the fourth respondent-company to issue duplicate shares in lieu of the aforesaid original lost share certificates. The appellant also submitted the Police Report, B indemnity bond, affidavit along with the request letter to the fourth

- 'r respondent-Company who issued duplicate shares to the appellant under Share Certificate Nos. 191549-191552. The duplicate shares subsequently were lodged by the first respondent for transfer in his name and, accordingly, the fourth responc dent-company transferred the said shares on 18th October, 1994 in the name of the first respondent.

6. The fourth respondent-company thereafter received a letter dated 29th February, 1996 from the office of the second respondent-Custodian whereby the Custodian asked the fourth D respondent-company to "stop transfer" of certain shares includ- Iing the shares which are the subject matter of these proceedings and also held in abeyance all the benefits accruing on those shares as the said shares were seized by the CBI at the time of raid laid on the places of Late Harshad S. Mehta. The letter of E 8th October, 1997 revealed that the list furnished by the second respondent-Custodian includes original shares of the appellant which he allegedly lost. The fourth respondent-company, there-

.> fore marked "stop transfer" against the duplicate shares which '

were transferred in the name of the first respondent and ad- F vised the first respondent to approach the stock exchange through whom the first respondent purchased those shares so that through proper channel, the introducing broker as well as the share holder, i.e. the appellant could be asked to replace the said shares with good shares. The first respondent admit- G ted that he purchased 200 shares from the open market through their share broker and paid the consultation thereof and there- • after the shares were also registered in his name by the fourth respondent-company as per the provisions of the Companies Act, 1956 and he had absolutely no knowledge about the dupli- H

A cate shares being issued in the name of the appellant by the '( .. fourth respondent-company. He claimed that in the facts and circumstances narrated in the application, first respondent is the real and only owner of these shares and, accordingly, all corporate benefits accrued thereon since the date of registra- B tion of the 250 shares in his name, be paid to him in the interest of justice. By reasons of the impugned order dated 10.10.2003,

the learned Special Judge allowed Misc. Application 186 of 2000 .,. ... filed by the first respondent. It was directed:-

"This application relates to 250 shares of respondent no.3 company. It appears that the respondent no.4 who was holding these :; hares had sold the shares on the Stock Exchange which were purchased by the notified party.

Taking advantage of the fact that the notified party because of the notification could not apply for transfer of the shares, the respondent no.4 applied for duplicate shares by making a misrepresentation that he has lost the shares and _, received from the Company the duplicate shares. Those duplicate shares were again sold and they were now purchased by the applicant. The principal prayer in the application is for lifting of attachment on these 250 shares.

It is obvious that these 250 duplicate shares have been issued by the Company because of misrepresentation made by the respondent no.4. By an order dated 15th July, 2003, the respondent no.4 was directed to deposit in this Court an amount of Rs.6,00,000/-. The respondent no.4 t \. has not obeyed this order. In the affidavit filed by the respondent no.4, the explanation that has been given by him is incapable of being accepted. There are no documents produced in support of that explanation.. It is thus clear that there is no question of attachment of 250 shares of the respondent no.3 company being lifted. The relief to which the applicant would be entitled is to recover from the respondent no.4 the value of the shares. It is clear .,. from the report submitted by the Custodian. that these shares were purchased by the Applicant in the month of

June 1994 and payment for it was made by cheque dated A 5th July 1994 and the amount was Rs.2,94,400/-. The applicant therefore would be entitled to a decree against the respondent no.4 in this amount.

The application therefore is disposed off in the following terms.

The respondent no.4 is directed to pay to the applicant an B amount of Rs.2,92,400/- with interest at the rate of 18% p.a. from 5th July 1994 till realization. Application is disposed off."

7. Being aggrieved, the appellant filed Review Applicac tion being Misc. Application No.178 of 2004 under clause (f) of sub-section (5) of Section 9-A of the Act before the learned Special Judge. The said application came to be rejected on 14.07.2004 vide order, which reads as under:-

"Called for hearing and Final Disposal

None for the applicant

Mr. Modi i/b Yoges1 Thakur for Respondent No.1

Mr. J. Chandran i/b M/s P.M. & Mithi & Co. forthe Custodian/ Respondent No.2

Mr. V.M. Singh i/b Arun Mehta for Respondent No.4

Coram D.K. Deshmukh, J.

Judge, Special Court F Dated 141h July, 2004

P.C.

Matter called twice.

None present for the applicant.

Application rejected."

8. Again, the appellant preferred Misc. Application No.253 of 2004 for restoration of the Review Petition, which was dismissed and the following order came to be passed on 18.08.2004:-

"Even assuming that due to mistake of the lawyer, lawyer could not remain present and therefore, the review petition was rejected, after having heard the learned counsel appearing for the Applicant on the review application, I find that there is no reason to review the order dated 1 oth October, 2003. Applicant was Respondent No.4 in Misc.

Application No.186 of 2000. By order dated 15th July, 2003, he was directed to deposit an amount of Rs.6 lakh in the court. He rlid not obey that order. Therefore, the Applicant is not entitled to any indulgence from this court.

C Misc. Application disposed of."

9. Hence, the appellant has assailed the above-said three orders before this Court in these appeals preferred under Section 10 of the Act.

10. During the pendency of the appeals in this Court, the ~

legal representatives of late Harshad Mehta are substituted as respondents Nos. 3(i}, (ii) and (iii).

11. Mr. Abhishei< Vikas Singh, learned counsel appearing E on behalf of the appellant, in assailing the orders of the learned

Special Judge, inter alia, contended that the learned Special Judge did not appreciate the fact that the original shares were not valid and legal and had come to the hands of the notified person (deceased Harshad Mehta) in illegal and wrongful manner and were never transferred and registered in his name in F accordance with law and as such, the appellant could not have been penalized for the acts and deeds of a third person, who had acquired the shares in illegal and clandestine manner. He submitted that the action of the appellant being bona fide and reasonable, he had faced loss at last stage, even when the G duplicate shares were already stood transferred in his name in due course after following all legal procedures and due application of law. The learned counsel then contended that the orders of the learned Special Judge impugned in these appeals have resulted in manifest error and miscarriage of justice to the H appellant, which deserve to be set aside.

12. Mr. RohitAggarwal, learned counsel appearing on be- A , half of the first respondent, on the other hand, would inter alia submit that the learned Special Judge passed an order based upon the material on record which would reveal that the appel- Ian! had committed a fraud of selling 200 shares on the Stock Exchange and thereafter applying to the fourth respondent-com- B pany for duplicate shares on the plea that the said shares had • been stolen. He also submitted that the learned Special Judge

- " .,

had not burdened the appellant with payment for the entire amount of 800 shares as alleged, but in fact has directed payment of Rs.2,92,400/- with interest thereon, which is the value c of 250 shares only:

13. Mr. Subramanium Prasad, learned counsel appearing on behalf of second respondent-Custodian, would contend that the appellant had sold the shares in question to late Harshad Mehta, a notified person under Section 3(2) of the Act and de- D

~ ceased Harshad Mehta could not apply for transfer of those

~ shares, the appellant, on a misrepresentation that he had lost the shares, applied for and got duplicate shares from the fourth respondent-company, which were also sold by the appellant to first respondent. Learned counsel for the respondents, in nut- E shell, supported the orders of the learned Special Judge which, according to them, cannot be found faulty or invalid on any grounds whatsoever as alleged by the appellant.

.,.

14. We have given our thoughtful and anxious consider- > ation to the respective contentions of the learned counsel for F

the parties and perused the material on record. The contentions of the learned counsel for the appellant at the first blush sound attractive, yet we are afraid to accept the same.

15. The undisputed facts are that the first respondent pur- G chased 800 shares including 200 shares (the subject matter of the proceedings) of fourth respondent-company in open mar-

~ ket in the months of July and August, 1994 through its share broker Mis. Jamnadas Morarjee & Co., C-4 Defence Colony, l New Delhi-24. The fourth respondent-company allotted 50 bo- H

"f A nus shares to him against the said 200 shares in the ratio of 1 :4. In all, the dispute before the learned Special Judge was limited to 250 shares. Late Harshad S. Mehta, who was a party

- third respondent herein, is represented through his legal representatives Nos. 3(i), (ii) and (iii) respectively. Indisputably, B deceased Harshad Mehta was a notified person under sub-

Section (2) of Section 3 of the Act and the appellant transacted the said shares with the deceased Harshad S. Mehta entered "!

after the first day of April, 1991 and on or before 1st June, 1992, the stipulated period covered under the Act. Claim submitted c by the first respondent before the learned Special Judge would arise out of the transaction of the said 250 shares between Late Harshad S. Mehta and the appellant during the aforesaid period. The entire properties belonging to the notified party on the day of notification would stand attached in terms of Section

D 3(2) of the Act. The appellant knowing fully well that he has already sold the shares to late Hashad S. Mehta, he made a false 1

representation to the fourth respondent-company that as the

appellant had lost original shares, therefore, duplicate shares were allotted to him which stood in his name since late Harshad

S. Mehta had not applied for change of the name. The whole exercise was done by the appellant on the basis of his misrepresentation. This Court in LS. Synthetics Ltd. v. Fairgrowth Financial Services Limited & Anr. (2004) 11 SCC 456, held that Section 3(3) of the Act should be literally construed and all properties belonging to the notified party on the date of notifi- ..

~ ,, F cation would stand attached.

16. In terms of the provisions of sub-section (3) of Section 3 of the Act, the properties belonging to deceased Harshad S.

Mehta being a notified person stood attached. Such attach-

G ment being automatic, no finding was required to be arrived at that the same had been acquired during the notified period. In

Tejkumar Balakrishna Ruia v. A.K. Menon (1997) 9 SCC 123, this Court held that the terms of sub-section (3) Section 3 are

clear that the property that belongs to a notified person stands

H attached simultaneously with the issue of notification that makes

MAGHENDRA PAL TYAGI v. JAYANT DAVAR 1109

AND ORS. [LOKESHWAR SINGH PANTA, J. ] , him a notified party. It is said that the words 'on or from the date A of notification' indicate the point of time at which the attachment takes effect; this is reiterated by the words 'shall stand attached simultaneously with the issue of the notification'. Further that this also indicates that no special notification or order in regard to the attachment is necessary. In the latest judgment of this B

- r Court in Ashwin S. Mehta & Ors. v. Union of India & Ors. (2006) 2 SCC 385, this Court reiterated that property, be it shares, dividends and bonus and rights shares that belongs to a notified person would also be attached property.

17. In this view of the matter, learned Judge of the Special c

Court has rightly concluded that 200 duplicate shares were obtained by the appellant by misrepresentation. The said 200 shares plus 50 Bonus shares were attached by the CBI in proceedings initiated against deceased Harshad S. Mehta, theret fore, the attached shares of the fourth respondent-company could D

~ not be transferred to any'Party. The record of second respondent-Custodian would reveal that 250 shares were sold by the appellant in the month of June, 1994 and payment of Rs.2,92,400/- was made by cheque dated 61h July, 1994. In these circumstances, the learned Special Judge directed the E appellant to pay to the first respondent an amount of Rs. 2,92,400/- with interest at the rate of 18% per annum from 6~ July, 1994 till the date of realization.

18. In the backdrop of the facts and circumstances and in ~

the light of the provisions of law, in our view, the orders of the F

learned Special Judge impugned in these appeals do not suffer from any infirmity or illegality warranting interference in exercise of appellate power.

19. For the reasons aforementioned, we do not find any G merit in these appeals which are dismissed, accordingly. Parties are left to bear their own costs.

"T'

D.G.

Appeal dismissed.