B.N Srikrishna, J.:— By this notice of motion, the plaintiffs have sought an injunction to restrain the first defendants from in any manner disposing of, alienating, transferring, encumbering or selling, 10.712 shares of the company, known as “Kissan Products Ltd.” and 3,600 equity shares of Merry weather Limited. There is also a prayer that the first defendant-company be directed to carry ??? certain acts as detailed in prayer (c), pending the hearing and final disposal of the suit. The suit is or specific performance of an Agreement dated 31st July, 1991, between the plaintiffs and the first defendants.
2. The first defendants hold 10,712 equity shares of the face value of Rs. 100/- each, comprising 67% of the paid-up and subscribed capital, of Kissan Products Ltd., (hereinafter referred to as ‘KPL’) and 3,600 equity shares of the face value of Rs. 100/- each, comprising 90% of the paid-up equity share capital, of Merry weather Limited (hereinafter called ‘MW’). The balance of 400 equity shares, comprising 10% of the paid-up equity capital, of MW is held by another company Herbertsons Ltd. (hereinafter called ‘HL’). HL is a subsidiary of the first defendants. HL owns and controls a Food Division comprising a plant situate at Bhandup in Bombay, where food products are manufactured. KPL also holds 10% of the share capital of another company, Nepal Beverages and Food Products Ltd. (NBFPL) and is engaged in manufacture and sale of food products. KPL and MW are owners of several trade marks, which have acquired wide reputation and are valuable. By the Agreement dated 31st July, 1991, the first defendants agreed to sell their ‘Food Division’ to the plaintiffs. The sale was to be achieved in the following manner:—
(i) The first defendants undertook to transfer to KPL 100% share-holding of MW held by them and their subsidiary, HL.
(ii) The first defendants also undertook to transfer to KPL the Food Division of HL, including the Bhandup plant of the going concern, free from all liens, charges and encumbrances.
(iii) After the aforesaid had been achieved, the first defendants agreed to sell to the plaintiffs, as incidental to the sale of the “food business” of the first defendants, 10,712 equity shares of KPL of the face value of Rs. 100/- each, fully paid up.
3. The said shares of KPL were agreed to be sold on spot delivery basis for a consideration of Rs. 6,85,00,000/-. The consideration amount was to be adjusted by increase or decrease in the net worth of KPL at the effective date over the net worth as on 31st March, 1989. The effective date was defined as the date on which the transfer of the said shares to the plaintiffs would be effected.
4. The plaintiffs paid a sum of Rs. 3,42,50,000/-, prior to the execution of the agreement, as and by way of earnest money. The agreement acknowledges the receipt of such earnest money and also provides that one nominee of the plaintiffs would be inducted on the Boards of KPL and MW, to facilitate understanding the business for eventual taken over of the management. This has actually been done, and one nominee of the plaintiffs, Pranab Barua, has been appointed as Additional Director of KPL on 19th August, 1991 and subsequently elected as a Director at the Annual General Meeting held on 26th September, 1991.
5. Detailed manner of ascertaining the net worth, as at the effective date, is provided for in the agreement. The agreement also provides for the ??? list of the trade marks owned by KPL, MW and HL. It is specifically agreed by Clause 8 ??? the completion of the final details, the first defendants would ensure that such ??? are kept alive, renewed and protected, and no rights or liens accruse in respect of the trade marks in favour of any third party.
6. Clause 9 of the agreement provides that, in the interregnum between the date of the agreement and the completion of the sale and purchase of the shares, the first defendants shall ensure and procure that KPL, MW and Bhandup plant shall not do any of the several acts or deeds specified in sub-clauses (a) to (g), except with the pervious written consent of the plaintiffs. Sub-clause (f), inter alia, refers to the passing of any resolution by the members in general meeting or malting any alteration in the Memorandum of Articles of Association. The whole purpose of Clause 9 appears to be that, pending the finalization of the transaction and actual sale of the shares contemplated by Clause 1 of the agreement, the first defendants would ensure that the two other companies concerned, KPL and MW, would do nothing which would change the control of the said companies or affect their value or net worth.
7. Clause 10 provides for transfer of management control of KPL only on completion of the transaction as a whole, viz., transfer of the shares after receipt of statutory approvals, wherever required, Simultaneously with the completion of the sale, transfer and delivery of their shares is also agreed. After transfer of the shares, the first defendants undertook to procure the resignation of the Directors of KPL and MW, who represented or were the nominees of the first defendants, as the plaintiffs may require.
8. Clause 11(a) provides for payment of the balance of the total purchase price within the expiry of 30 days after all the approvals required for effecting the sale, transfer and delivery of the shares to the plaintiffs have been completed. The balance of the total purchase price was to be adjusted by the increase or decrease in the net worth of KPL, as detailed in Clause 2.
9. Clause 11(b) provides that the first defendants shall arrange for KPL to transfer the 10% equity shares in NBFPL held by KPL to another company nominated by the first defendants to ensure severance of KPL connection with NBFPL before the effective date or within such extended date as mutually agreed.
10. Clause 11(c) provides that, if the plaintiffs commit a default in complying with the provisions of clause 11(a) or of any of their other obligations under the agreement, the first defendants shall be entitled to forfeit the earnest money paid by the plaintiffs.
11. Clause 11(d) provides that, if the first defendants commit a default (other than due to non-receipt of Government approvals) in complying with the terms and conditions of the agreement, the earnest money paid by the plaintiffs should be refunded with interest at 16% per annum.
12. Clause 11(e) stipulates that, if the required statutory provisions for effecting ultimate transfer of the shares by the first defendants to the plaintiffs are denied, within a period of 9 months from the date of the agreement, the earnest money paid by the plaintiffs shall become due and refundable immediately without any interest accruing thereupon. If, however, the approvals/clearances from Government or other statutory bodies, as the case may be, are denied so as to make the deal incapable of being put through, the earnest money shall become due and refundable immediately with simple interest calculated at 9% per annum from the date of expiry of the period of 9 months from the date of realisation and credit to the account of the first defendants of the said money.
13. As stated hereinbefore, after the signing of the said agreement and receipt of the earnest money, the defendants partly performed their obligations and one Pranab Barua, an employee of the plaintiffs, was inducted on to the Board of KPL, as a Director. The first defendants also represented to the plaintiffs that they were arranging for necessary application in Form 371 of section 269 VC of the Income-tax Act for securing the transfer of the Bhandup factory from HL to KPL. The plaintiffs were also infromed by the first defendants that they had applied for and obtained necessary approval from the Central Government under the MRTP Act for transfer of shares of MW to KPL, which approval was also got renewed. Meetings were held from time ??? between the plaintiffs and the first defendants embodied in the agreement and to ??? all things necessary to implement the agreement.
14. The fact of the impending transfer of the Food Division by the first defendants to the plaintiffs was reported widely in the newspapers and was also the subject of announcements made by the Chairman of the first defendants in press statements.
15. On 13th November, 1991, the first defendants addressed a letter to the plaintiffs, in which the Agreement of 31st July, 1991 was confirmed and information was provided that the incremental net worth of KPL stood altered to Rs. 88,652,082/- as at March 31, 1991, after incorporation of NBFPL shares. The first defendants formally confirmed that the purchase consideration would be Rs. 88,652,082/- (which was subject to a further adjustment for the increase in net worth up to the transaction date) and that it stood apportioned as below:—
For MFPL (sic) Shares
Rs. 1,600,000
Takeover of Bhandup
Rs. 63,000,000
For KPL Shares
Rs. 24,052,082
Rs. 88,652,082
16. The said letter also enclosed a “Repositioned Balance Sheet after KPL'S take over of Bhandup Factory (from HL) and shares of NBFPL” along with certain annexures. The said letter, read with its annexures, makes it clear as to what is the total consideration and the apportionment thereof.
17. Some time in the third week of November, 1991, the plaintiffs learnt that the first defendants were negotiating with another company, Nestle India Ltd., for transfer or sale of the Food Business and transfer of 10,712 shares of KPL to them as incidental thereto. This information appears to have been Confirmed to the plaintiffs by Nestle India Ltd. In order to set their mind at rest, the plaintiffs addressed a letter dated 21st November, 1991 to the Managing Director of Nestle India Ltd., pointing out the circumstances under which an agreement had been entered into between themselves and the first defendants for sale of the Food Division and the transfer of the shares of KPL as incidental thereto. In the said letter, the plaintiffs put the Nestle India Ltd., on notice that any agreement for the proposed sale of shares of KPL by the first defendants would be in breach of contract, and that the plaintiffs intended to enforce their rights, including the right of specific performance of the contract, if necessary, through recourse to the due process of law.
18. The plaintiffs also addressed a letter dated 27th November, 1991 to the first defendants, in which they put the facts on record as to their fulfilling their obligations under the Agreement of 31st July, 1991, and indicated that an amount of Rs. 2,57,50,000/- had already been paid to the first defendants in part performance of the agreement and the balance of Rs. 85,00,000/-, as agreed, was to be held as deposit in terms of the first defendants' letter dated 18th July, 1991, till necessary permissions were obtained from the concerned authorities. The plaintiffs pointed out that, despite the agreement and the confirmation of the first defendants, as contained in their letter dated 13th November, 1991, the plaintiffs had learnt that the first defendants had been carrying on negotiations with Nestle India Ltd., in breach of the Agreement dated 31st July, 1991 entered into with them. The plaintiffs called upon the first defendants to stop any such negotation with any third party and to confirm that the first defendants will carry out their obligations under the Agreement dated 31st Jury, 1991. Unless such confirmation was received within 48 hours of the receipt of the notice, the plaintiffs threatened that they would be adopting appropriate legal proceedings to enforce the agreement at the first defendants' costs and consequences. The only reply elicited to this was the letter dated November 28, 1991, from the Secretary to the Vice President of the first defendants, which merely stated that the said executive was “not available in the office” and was likely to attend the office in the next week. Upon his return to office, a reply was promised.
19. The plaintiffs filed the present suit on 29th November, 1991, and have taken out a draft notice of motion for interim reliefs.
20. When the notice of motion was moved for ad-interim reliefs in terms of the draft on 2nd December, 1991, the first defendants appeared and opposed ad-interim reliefs being granted on several grounds. The first defendants also placed reliance on a letter dated 2nd December, 1991 from the first defendants, addressed to the plaintiffs, alleged to have been despatched by Registered Post Ackowledgment Due, in which the first defendants had taken up the stand that, on the basis of legal advice received, they were of the view that the Agreement dated 31st July, 1991 was illegal and void ab initio, and, therefore, there was no question of any breach of the same on their part. They also stated that, though they were not liable to make any payment of interest for the amount of Rs. 2,57,50,000/- held by them, they deemed it fit, fair and just that the plaintiffs should be compensated by payment of interest at the rate of 16% per annum, which was the highest rate which would possibly be claimed by the plaintiffs, even if there was a breach, which they denied. The said letter purportedly enclosed two cheques dated 2nd December, 1991 for the amount indicated therein. In Court, a copy of the notice from advocate of the first defendants to the advocates of the plaintiffs, dated 2nd December, 1991, enclosing the xerox copy of the first defendants' letter dated 2nd December, 1991, was also banded over to the plaintiffs' advocates.
21. The ad-interim reliefs sought by the plaintiffs are strongly and vehemently opposed by Mr. Cooper, learned Counsel appearing for the first defendants on the following grounds:—
(i) The agreement is illegal and unenforceable, as his contrary to section 293(1)(a) of the Companies Act.
(ii) It is also illegal and unenforceable, as it is in breach of the provisions of section 372 of the Companies Act.
(iii) The contract itself indicated the consequences which would follow the fiat defendants' failure to perform their obligations. These were specifically enumerated in Clause 11 of the agreement which did not includes or reserve the right of specific performance. Hence, the parties contemplated that, in the event of a breach, even if there was one, all that would ansue was the refund of the deposited earnest money with appropriate interest, as indicated in Clause 11, and no specific performance was contemplated.
(iv) That the contract is vague and incapable of being enforced, as the consideration to be paid, the purchase price of shares agreed to be sold, was never finalized.
(v) Any specific performance of the agreement would amount to a direct interference in the management and internal affairs of KPL, HL and MW, which are neither parties to the agreement, nor to the suit.
(vi) There is not even an averment, much less any material, to show that, though not parties to the contract, KPL, HL and MW had consented to or confirmed the transaction embodied in the Agreement dated 31st July, 1991.
(vii) The agreement is illegal, as it is contrary to the provisions of section 13 and 16 of the Securities Contracts (Regulation) Act, 1956.
(viii) The suit for specific performance, at least at this stage, is untenable, as the conditions requisite for complying with section 372 of the Companies Act have not been fulfilled, and, therefore, the contract cannot be specifically enforced at this point of time and hence, no interim relief should be granted.
22. The first contention is that, under section 293(1)(a), the Board of Directors of the first defendants, a public company, is prohibited from selling, leasing or otherwise disposing of the whole, or substantially the whole of the undertaking of the company and, hence, the agreement was ultra vires of the powers of the Board of Directors of the first defendants. It is portended that the plaint makes it clear that what is agreed to be sold to is the “Food Division” of the first defendants, and hence, what is agreed to be sold to the plaintiffs is a substantial part of the first defendants' undertaking. There is no consent obtained to this sale from the first defendant-company in General Meeting. Hence the agreement is clearly prohibited under section 293(1)(a), as what has been agreed to was completely beyond the pale of the powers of the Board of Directors of the first defendants.
23. Mr. Cooper placed reliance on (D.N Banerji v. P.R Mukherjee)1, A.I.R 1953 Supreme Court 58, and (The Secretary, Madras Gymkhana Club Employees' Union v. The Management of the Gymkhana Club)2, A.I.R 1968 Supreme Court 554, in support of his contention that the expression ‘undertaking’ used in section 293(1)(a) is not necessarily limited to some property or asset but would extend to a distinct business activity. Reliance was also placed on judgments of the Mysore High Court in (In re Yallamma Cotton, Woolen and Silk Mills Co. Ltd. Bank of Maharashtra v. Official Liqidator, Mysore High Court)3, 40 Company Cases 466 and (International Cotton Corporation (P) Ltd. v. Bank of Maharashtra)4, 40 Company Cases 1154 in support of this contention.
24. Banerji's case was one arising under the Industrial Disputes Act, and the Supreme Court was concerned therein with the interpretation to be given to the expression ‘industry’ as used in section 2(j) of the said Act. In connection with the interpretation to be put upon the said expression, and, while dealing with the expression ‘undertaking’, which is a part of the said statutory definition, the Supreme Court observed that the words ‘undertaking’ used in the first part of the definition, and “industrial occupation or avocation” used in the second part, obviously mean much more than what is ordinarily understood by trade or business, and that the definition was aparently intended to include within its scope what might not strictly be called a trade or business venture. In Madras Gym. Club (supra), the Supreme Court was, once again, concerned with the connotation of the expression ‘industry’, as used in section 2(j) of the Industrial Disputes Act, and the Supreme Court commented upon the juxtaposition of the words “business, trade, undertaking, manufacture or railing of employer” in the allocation of words in the definition. In my view, neither of these authorities is of help in deciding the question that has been argued. In any event, both the authorities were concerned with the meaning of the expression ‘undertaking’ as used in the definition of ‘industry’ under section 2(j) of the Industrial Disputes Act. It is a trite principle of interpretation of statutes that the interpretation given to a word or expression used in one statute may be of no avail while interpreting the same expression in another stature, unless the two statutes are pari materia. The provisions of section 2(j) of the Industrial Disputes Act are not pari materia with the provision of section 293(1)(a) of the Companies Act, 1956 nor are the objects of the two statutes identical or similar.
25. Although the two Mysore judgments, relied upon by Mr. Cooper, were both cases which arose under the Companies Act and, perhaps, could be said to be nearer home, these judgments are also not of much use in resolving the controversy that has been thrown up. In Yallemma Cotton's case (supra), a learned Single Judge of the Mysore High Court was concerned with a situation where the Official Liquidator of the company in liquidation had impugned the action of the creditor bank in taking possession of certain assets of the company in apparent exercise of its power as a mortagagee and charge-holder of the immoveable and moveable properties of the company. The mortgage had been created by the ex-Directors of the company. It was argued for the Liquidator that the mortgage was beyond the powers of the Board of Directors under section 293(1)(b), and further that taking into possession the mortgaged property amounted to an act which was specifically prohibited by section 293(1)(a) as beyond the scope of the power of the Board of Directors, without ratification by the company in general meeting. In this context, the learned Single Judge referred to the word ‘undertaking’ used in Clause (a) of sub-section (1) of section 293, and, as the said word was not defined in the Act, placing reliance upon the dictionary definition, the learned Single Judge observed:
“… It is not in its real meaning anything which may be described as a tangible piece of property like land, machinery or the equivalent; it is in actual effect an activity of man which in commercial or business parlance means an activity engaged in with a view to earn profit. Property, moveable or immoveable, used in the course of or for the purpose of such business can more accurately be described as the tools of business or undertaking, i.e, things or articles which are necessarily to be used to keep the undertaking going or to assist the carrying on of the activities leading to the earning of profits.”
26. The matter was carried in appeal, and, in the decision reported at page 1154 of same volume, the Appeal Bench upheld the findings of the learned Judge, and, while doing so, it also took note of the fact that the expression ‘undertaking’ as used in section 293(1)(a) of the Companies Act has not been defined. The Appeal Court, therefore, fell back upon the meaning of the said word contained in dictionaries, and observed:—
“…The business or undertaking of the company must be distinguished from me properties belonging to the company. In this case, it is only the properties belonging to the company that have been dealt with by the Board of Directors under the deeds of hypothecation and mortgage in favour of the bank. Hence, the learned company Judge was right in holding that no part of the undertaking was disposed of in favour of the bank.”
27. In my view, neither of these judgments is of much assistance. In the present case, it is the contention of Mr. Mehta, learned Counsel appearing for the plaintiffs, that section 293(1)(a) is not attracted at all, even if one goes by the meaning given to the word ‘undertaking’ in the authorities cited. He contends that, in order to attract section 293(1)(a) to the agreement relied upon by the plaintiffs, it would have to be shown that, by the agreement, the Board of Directors of the first defendant - company had sold, leased or otherwise disposed of the whole or substantially the whole of the undertaking of the first defendant company and that, too, without the consent of the first defendant-company in General Meeting. It is urged by learned Counsel for the plaintiffs that the agreement is merely an agreement for sale of a specified number of shares of the first defendant. The agreement neither contemplates, not requires, the first defendants to sell a substantial part of any of their undertakings. Prima facie, this contention appears to be correct. Notwithstanding the fact that, both in the agreement and in the plaint, there has been use of expression like sale of “food business of the seller to the purchaser and there has been reference to the seller's “Food Business” carried on through KPL and HL, prima facie, I am of the view that the agreement merely contemplates sale of the controlling shares of KPL. The sale of shares, whatever be their number, even if it amounts to a transfer of the controlling interest of a company, cannot be equated to the sale of any part of the ‘undertaking’ so as to come within the mischief of section 293(1)(a). The argument of the first defendants leaves me, prima facie, unimpressed.
28. The next contention of Mr. Cooper is that the contract is incapable of being specifically performed, inasmuch as the consideration for the sale of the shares from the first defendants to the plaintiff and for transfer of KPL of the Food Division of HL (i.e, the Bhandup plant) has been left unspecified. The contract is, therefore, vague and, hence, unenforceable, in the submission of the learned Counsel. In the first place, we are not really concerned with the transfer of the Bhandup plant to KPL as that is an arrangement contemplated between KPL and HL. So far as the sale of KPL's 100% share-holding of MW held by the first defendants and their subsidiary and HL is concerned, taking into consideration the confirmation made by the first defendants' letter dated 13th November, 1991 and the annexure thereto, it is not possible to accept, at this stage at least, that the consideration for the various acts is vague. As a matter of fact, the first defendants themselves have indicated in the said letter the apportionment of the total consideration which is indicated at Rs. 88,652,082/-. In the face of this document, prima facie, the contention cannot be accepted.
29. The next argument urged for the first defendants is that KPL, HL and MW are neither parties to the agreement, not to the present suit, and, therefore, the Court cannot give any interim relief which would amount to compelling them to do any of the various acts contemplated under the instant agreement. In my view this argument is misconceived. The plaintiffs are not seeking any direct on against KPL, HL or MW. All that the plaintiffs contend in the plaint is that the first defendants, with open eyes and with presumbale knowledge as to their controlling power in the said three companies, entered into an agreement with the plaintiffs for sale of the specified number of shares and also for transfer of the Food Division (Bhandup plant) of KPL to HL. This was envisaged, so that it would result in the control of the food manufacturing plant ultimately landing into the hands of the plaintiffs. The plaintiffs are only seeking a direction against the first defendants that they be required to perform what had been undertaken as their obligations under the agreement and that the first defendants be restrained from doing anything that is inconsistent with the terms of the agreement or likely to defeat the rights of the plaintiffs thereunder.
30. It is next contended that a reading of the contract would indicate that the parties have themselves contemplated that, in the event of breach of the contract, the consequence to ensue would only be that of refund of the earnest money with the stipulated interest on the happening of different contingencies. The terms of Clause 11 are highlighted in this regard. It is also urged that there is nowhere a stipulation in the contract that the remedies provided under the contract in the event of a breach by the defendants are to be without prejudice to any other right that the plaintiffs may have in law, Ergo, the agreement was not intended to be specifically performed, is the submission of the plaintiffs. This argument also does not appeal. There is nothing in me contract which expressly precludes or bars the plaintiffs from seeking specific performance of the agreement. Merely because return of earnest money deposited and interest are provided for, it is not possible, at this stage, to come to the conclusion that the parties did not contemplate that the contract should not be specifically performed at the instance of either party. The fact that there is absence of a stipulation that the refund of deposit and interest was without prejudice to other rights, makes no difference whatsoever, in my view, as long as there is no express stipulation that the contract was not intended to be specifically performed.
31. It is then argued that the contract is illegal, being in contravention of section 372 of the Companies Act, and therefore, incapable of being enforced. It is submitted that section 372 as amended by the 1988 Act, was intended to put restrictions upon inter-corporate investment. Sub-section (1) of section 372 prohibits acquisition of shares by way of subscription, purchase or otherwise or for its benefit or on its account the shares of any other body corporate, except to the extent and except in accordane with the restrictions and conditions specified in the section. Sub-section (2) permits the Board of Directors of an investing company to invest in the shares of any other body corporate up to such percentage of its subscribed equity shares or the aggregate of the paid up equity and preference share capital of such other body corporate, whichever is less, as may be prescribed. The percentage prescribed for the purpose of sub-section (2) of section 372 is 25%, as indicated in the notification issued by the Central Government. It is not disputed by the plaintiffs that the purchase of the number of shares, as specified in the agreement, would definitely exceed the percentage prescribed under sub-section (2). What is, however, urged for the plaintiffs is that the prohibition contemplated under sub-section (4) of section 372 does not apply at the stage of an agreement. If at all, it becomes applicable only at the time of investment in the shares of the other body corporate. sub-section (4) of section 372 provides that investing company shall not make any investment in the shares of any other body corporate in excess of the percentage specified in sub-section (2) and the provisos thereto, unless an investment is sanctioned by a resolution of the investing company in General Meeting and unless previously approved by the Central Government. That there is not in existence a resolution of the plaintiffs at the General Meeting to sanction the investment contemplated by the agreement and that such investment has not been approved by the Central Government previous to the signing of the agreement is not disputed. It is, however, urged that the section itself is inapplicable at this stage and that the plaintiffs are perfectly capable of complying with the section when the time for investment comes. The time for investment would arise after all the steps contemplated under the agreement are taken, and the period for getting approval is envisaged as a period of 9 months. The plaintiffs urge that, till such period is over, it is not open to the defendants to assume that the plaintiffs would be incapable of complying with the two conditions requisite under sub-section (4) of section 372. It was, therefore, argued that there has been no contravention of section 372. Prima facise, I am inclined to accept the contention of the plaintiffs. What is prohibited by sub-section (4) is ‘investment’ and not ‘agreement to invest’ Prima facie, the prohibition would arise at the time of investment, if the two conditions stipulated in sub-section (4), viz., resolution of the investing company and previous approval of the Central Government, are not obtained. Their absence at this point of time ??? render the contract illegal, void or incapable of being enforced, as contended for the first defendants.
32. The next contention of the first defendants is that the contract, border to be performed, depends on the volition of third parties like KPL, HL, and MW, and, therefore, it cannot be specifically performed. That this is an argument of desperation is obvious. It is inconceivable that seasoned businessmen would enter into contract for transfer of shares and for transfer of assets of companies in which they hold controlling interest, unless they knew that they were capable of fulfilling the terms of the contract. The argument put forward is only a ruse to back out of the binding terms of the contract, for obvious reasons. In support of this contention, reliance was placed by Mr. Cooper on a judgment of a Division Bench of the Calcutta High Court in (East Indian Produce Ltd. v. Naresh Acharya Bhaduri)5, 64 Company Cases 259. It is true that the prayer that was sought in the said case was somewhat similar and the Court did observe that the relief sought could not be granted, as the performance of the contract depended on the volition of other parties. What is, however, ignored is the radical difference in the facts of the Calcutta case. There, an agreement was entered into by the respondents 1 to 6 for purchase of 8,100 shares in a company, the total subscribed capital of which was 25,000 shares. Though it was represented that 8,100 would be controlling interest in the company, it was not so shown on the record. Out of the agreed shares also, it was stated that some of the were held by the nominees of the seller, some of whom were unknown and untraceable. A number of shares were themselves untraceable. In these circumstances, the Calcutta High Court took the view that granting any relief by way of enforcing a vague contract which would also depend for its performance on the volition of third parties ??? is true that the Court in the said case accepted the argument that, as the company itself was not to be a party to the agreement, any order as prayed for would prejudicially affect the statutory rights of the company, as it involved relief relating to the management, control and regulation of the assets of the affairs of the company, and therefore, the injunction as prayed for ought not to be granted at the interim stage. In my view, the judgment of the Calcutta High Court, with respect, is entirely distinguishable on facts. The facts were some what glaringly distinct. In the present case, the facts do show that the first defendants, without doubt, have controlling interest in the other three companies, viz., KPL, MW and HL. There is nothing on the record, from which a doubt can arise in my mind as to the inability or incapacity of the first defendants to stand by and perform their obligations.
33. The last contention urged for the first defendants was that the contract was illegal, as it is bit by the provisions of the Securities Contracts (Regulation) Act, 1956. It is pointed out that the Central Government is empowered, under section of the said Act, to apply the said section by a notification in the Official Gazette, and, upon such declaration, every contract in the State or area which is entered into after the date of such notification, otherwise than between members of a recognized stock exchange, in such State or area or through or with such member, is rendered illegal. Similar are the provisions of section 16. It is not disputed that such notifications, both under sections 13 and 16, have been issued. Mr. Cooper contended that the only exception to the operation of section 13 would be a spot delivery contract, as defined in clause (i) of section 2, but that the agreement in question was not a spot delivery contract.
34. Section 2(i) defines a “spot delivery contract” as meaning a contract which provides for the actual delivery of securities and the payment of a price therefor either on the same day as the date of the contract, or on the next day. The contract with the plaintiffs, though styled as a spot delivery contract, contemplates a payment of purchase price within a period of 30 days of the completion of the transaction, and, therefore, is not a “spot delivery contract” within the meaning of section 2(i), according to Mr. Cooper. This submission appears to be correct. Mr. Mehta does not seriously dispute, at this stage at least, that the agreement may not amount to a spot delivery contract. He, therefore, does not seek the escape hatch provided by section 18. He contends that the provisions of the Act itself are not applicable to the present agreement, in much as the agreement is for transfer of shares of a public limited company, the shares of which are not listed on the stock exchange.
35. Mr. Mehta emphasised the definition of ‘securities’ contained in Clause (h) of section 2, and urged that the expression “other marketable securities” used in the definition would supply colour to the construction to be put on the word ‘shares’ used therein. In his submission, the Act is intended to govern large transactions in the known market, viz., stock exchange. The detailed provisions of section 13 and 16 shed considerable light on this aspect of the matter, as they invest the Central Government with the power of assessing the situation in the stock exchange and taking remedial action by way of the declarations contemplated therein. In his submission, the Act was not intended to apply to a private transaction between parties in respect of snares which were not ‘marketable’, meaning there by not sold on the stock exchange. He relies upon the judgment of the learned Single Judge of this Court (Mrs. Manohar, J.) in (Norman J. Hamilton v. Umedbhai S. Patel*)6, 49 Company Cases 1 and the judgment of the Appeal Court, confirming the said judgment, (Dahiben Umedbhai Patel v. Norman J. Hamilton)7, reported in 57 Company Cases 700.
36. Mr. Mehta submits that, though the issue which the Court was concerned with in both the said judgments was whether transfer of shares of private limited company by a private treaty fell within the mischief of this Act, both the judgments of the learned Single Judge and the Appellate Court have approached the matter on principle and rejected the argument that the concept of ‘marketability’ and ‘saleability’ must necessarily converge. It is urged that both the judgments have, after an analysis of the historical background in which the statute was enacted, taken the view that the Act was intended to govern transactions in the market, i.e, stock exchange, and not intended to apply to transfer of shares of a private limited company, not listed on the stock exchange, if such transfer was by a private treaty. Though Mr. Cooper, in fairness, himself pointed out the observation in these judgments and attempted to pre-empt the impression that the reading of the general observations might create, I am still left unconvined by the argument of Mr. Cooper, at this prima facie stage at least. In my prima facie view, both judgments point out that the object of the Act was to control operations on stock exchange. Both judgments have looked at the mischief in existence hitherto which was sought to be suppressed, the Gorwalla Committee's recommendations, the objects clause of the Bill, and made observations which, though made in connection with transactions by private treaty of shares of a private limited company, are equally applicable to similar transactions of shares of a public limited company unlisted on the stock exchange, In my view, at least at this prima facie stage, his not possible to accede to the submission of Mr. Cooper that these judgments have no relevance or application to a transaction of transfer of shares of a public limited company, unlisted on the stook exchange, by private treaty. On the contrary, my prima facie view of these two judgments accords with the submission of Mr. Mehta. I am of the prima facie view that a transaction of shares of a public limited company, unlisted on the stock exchange, is not intended to be governed by this Act.
37. Mr. Cooper strongly relied on the judgment of the Division Bench of the Calcutta High Court in East Indian Produce Ltd. (supra) on this issue also. The Calcutta High Court relied on an earner judgment of the same High Court in (B.K Holdings (P) Ltd. v. Prem Chand Jute Mills),8. 53 Company Cases 367. At that stage, the judgment of Mrs. Manohar, J., (supra) was cited before the learned Single Judge of the Calcutta High Court. He seemed to take the view that the decision of Mr. Manohar, J., in 49 Company Cases 1, must be confined to a situation of transfer of shares of a private limited company. So far as the decision of the Division Bench of the Calcutta High Court in East Indian Produce Ltd. is concerned, it seems to follow the earlier judgment in B.K Holdings. With great respect to the learned Judges of the Calcutta High Court, who decided the aforesaid two cases, even if the matter were not res integra. I would be inclined to disagree with their observations made therein. However, in the view I have taken of the judgments of the learned Single Judge and the appeal judgment of our Court, I consider myself bound to take the view that the Securities Contracts (Regulation) Act, 1956, is not intended to regulate private transaction in shares of public limited companies, not listed on the stock exchange. This contention also, therefore, fails.
38. During the course of the arguments, two facts were brought to my notice. First, on 29th November, 1991, a suit, being S.C Suit No. 8927 of 1991, was filed by a share-holder of HL in the Bombay City Civil Court. Interestingly, the advocates representing the first defendant-company were the advocates of HL therein, which does not seem to have apposed the motion for interim relief, except to state that it needed time to file a detailed affidavit-in-replay. Consequently, the learned Judge of the Bombay City Civil Court took the view that it was necessary to maintain status quo as regards completion of sale of the Bhandup plant or handing over the same to KPL or the present plaintiffs. The motion, I am told, has been made returnable on 19th December, 1991.
39. Second, a suit was filed in the Court of the City Civil Judge of Bangalore by two share-holders of the first defendant-company to restrain them from completing the sale and acting in pursuance thereof. A motion was also taken out for interim relief, on which no order has been passed.
40. Referring to these developments, Mr. Mehta strongly contended that these were shareholders how were put up by the first defendants and their subsidiary with a view to wriggle out of the binding agreement. The fact that, on the date the suit was filed by the plaintiffs (i.e 29th November, 1991), an order of injunction was sought from the Bombay City Civil Court by the share-holder of HL, and the Bangalore suit, do prima facie, support, to some extent at least, the contention of Mr. Mehta that these were evasive tactics of the first defendants to wriggle out of a binding bargain, on second thoughts.
41. The suit is not frivolous and raise serious issues which require trial.
42. Looking at the matter from all aspects, I am of the view that the plaintiffs have made out a prima facie case for grant of ad-interim reliefs. The balance of convenience is in favour of granting the ad-interim reliefs.
43. P.C:— Leave granted under Rule 147/148 of the High Court of Judicature at Bombay (Original Side) Rules, 1980, to take out a Notice of Motion in terms of draft handed in. Upon the plaintiffs undertaking, through Counsel, to pay to the first defendants such sum by way of damages as the Court may award as compensation for loss or prejudice sustained, in the event of the plaintiffs failing in the suit;
(a) Ad-interim order in terms of prayer (b) in the draft notice of motion.
(b) Pending the hearing and disposal of the notice of motion, the first defendants, by them selves or through their servants and agents, are restrained from doing anything or taking any step which would be contrary to or inconsistent with the fulfilment of their obligations under the Agreement dated 31st July, 1991, and prejudicial to the rights of the plaintiffs thereunder.
44. Leave to amend the plaint Amendment to be carried out during the coures of the day. Motion made returnable on 13th January, 1992.
45. Certified copy to be expedited.
46. Order accordingly.