UNION OF INDIA v. ALLIED INTERNATIONAL PRODUCTS LTD. & ANR.

A B c D E G H 661 UNION OF INDIA _v._ ALLIED INTERNATIONAL PRODUCTS LTD. & ANR. _October_ 19, 1970 rJ. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] _Companies Act,_ 1956, _s._ _13-Stock_ _Exchange extending tim!'_ _fvr_ _con-_ _,\·ideration_ _of_ _application_ _for enlisting_ _of_ _sl1ares_ _within four weeks_ _of_ _closing_ _of_ _subscription_ _list-Further_ _intimation given_ _to_ _company_ _withill_ _seven weeks that application was under consideration-Approval given_ _after seven_ _weeks-Whether_ _approval_ _valid-Approval_ _hy_ _one_ _of_ .~everal _exchrmzes to whlclr_ _appficationr_ _made_ _whether valid and_ _sufficteflt-_ _Shareholder_ _whetiiC'r_ _bound_ _hy_ _allotment_ _of_ _Jlwres_ _if_ _st.ock exchanRe con-_ _venient to him does_ _not_ _approve application._ 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 s. 73 ( 1) of the Companie' Act, 1956 and was on ttat 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 s. 73 ( 1) of the Oml· _Code of Civil Procedure. 0_ 41, _r._ 33- _Hicli_ _Corm's_ _disCI'elion_ _under-_ _Principles_ _for_ _exercising._ _Interpretation_ _of Statutes-S._ 73(1) _of Compf.nies Act,_ 1956 _is a_ _Pt11al_ _provision and_ mu.~t _be strictly construed._ The first respondent-a limited company-issued a prospectus l1flering its shares to the public for subscription. lt was mentioned in the PrQS· pectus that the company was applying to the Bombay, Calcutta und Delhi Stock Exchanges (which were .recognised exchanges within the meaning of s. 2(39) of the Companies Act, 1956), for enlistmt.lnt of its shares. On Juoc 3, _1956_ the Company submitted the applications. The subscrip· tion list was closed on June 21, 1965. On June 22, _1965_ the Bombay Bxchnnge e"tendcd the time for consideration of the application till tbe expiry of seven weeks from the date of closing of the subac:ription 1ist, On August 6, 1965 'the Exchange informed the company that the applica· tion was receiving further consideration. On September 1.3, 1965 the Exchange informed the company that its application for enlisting its shares had been approved. The CalC'Utta und Delhi Exchanges · rejected the applications made to them. The company challenged the o!rders passed by the Calcutta and Delhi Exchanges in appeals to the Central Government under s. 22 of the Securitir-s Contracts (Regulation) Act, 1956. The Central Government dismissed the appeals. The company fileJ writ petitions in tha 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 shares~ He quashed the order of the Central Government and directed the bsue 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 ludge. With certificate, the Union of India appealed ~o this Court. 1be queations panies Act, 1956; (iii) whether a shareholder who buys shares on the 15-L4l6$up.(P)/7l 662 SUPREME COURT REPORTS [1971] 2 S.C.R. representation that the shares would be en1isted in an Exchange conve nient 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 Hi¢1 Court ought in exercise of its power under 0;41 r. 33 of the Code of Civil Procedure, to have vacated the writ of _Mc.ndamus_ requiring the Calcutta & Delhi Exchange_s to grant permission fdr 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 E~change within those seven weeks, the allotment becomes void, even if the Stock Exchanges intimates that it is giving further considelration to the application. (669 B] The intendment of sub-ss. ( 1), ( 2) and ( 5) of s. 7 _5_ of the Companies Act, 1956 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 mor<: during the extended period, in which ca5e, 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 Ex· change intimates that even though the application for permission is not at present granted, the application will be given further consideration the application is not dt:emed to be refused until it is finally granted. [669 C-D] Being a penal provision s .. 73 ( 1) must be strictly construed. Unless the statute in clear terms so provides, when the Exchange intimates· its desire to consider the application further, an infel'c:nce that th~ Exchange ha.-; still rejected· the application cannot be made. [669 F] The amendment made by Act 31 of _1965_ in sub-s. (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 o( refusal shall not be made if the Exchange has intimated to the applicant that further c~nsideration 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 ~?f shares must, by virtue of sub-s; ( 1) of s. 73 be invalid. The object of s. 73 (1) 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 exchanges approached, one or more, but not all, have granted tbe application for enlistment, the facility of ensuring quick conversion is still available. Jt after representing .in the pros~ectus that an application has been made to a recognised exchange fdr 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-s. ( 1) is not intended to mean that it will be invalid even if pennis~ sion is obtained but not from all the. Exchanges to which applications have been made. [670 ~A-CJ . (iii) Section 73(1) declares the entire allotment void: it does not tnke into consideration the right or convenience of individual shareholders. ~ . A 8 c D E F G H A 1J ##### c D E ###### r UNION v. ALLIED PRODUCTS _.(Shah,_ _J.)_ 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 sevetral e"'changes one of which was con· venient to him, is irrelevant in determining whether the allotment is reD· d~reJ invalid for failure to secure compliance with a statutory condition. f.671 BJ (iv) An appellate court may in appropriat~ case pass any decree and make any pder appropriate to the ends of justice, even if a party bas not appealed against an advene 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 an~- of the parties, even though they may not ~ave filed an appeal or objectton. [671 E] [The Court did not give a final opinion on the question whether in the present case the discretion was correctly exerci~d by the High Court because the Calcutta aud Delhi Exchange~ had applied for certificates in the High Court of Delhi and the application was pending.] [671 01 CIVIL APPELLATE JmuSDICTION: Civil Appeals Nos. 1772 and 1773 of 1970. Appeals from tilt; 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,_ _S._ _P._ _No.yar,_ for the appellant (in both the appeals). _N ._ _.A._ _Palkhivala, Santosh Chatterjee,_ _G._ _S._ _Chatterjee_ and _A.M._ _Parikh,_ for respondent No. 1 (in both th·e appeals). _B._ _N._ _Kirpal_ and _Bislulmber_ _Lal,_ for respondent No. 2 (in C.A. No. 1772 of 1970). _B._ _Sen_ and _0. P._ _Khaitan,_ for respondent No. 2 (in C.A. No. 1773 of 1970). . _N._ _A._ _Palkhivala, Bhuvanesh_ _Kumari,_ _Santosh_ _Chatterfee,_ _I. B._ _Dadachanji,_ for intervener No 1. _M._ _C._ _Setalvad,_ _Santosh_ _Chatterjee,_ _C._ _M._ _Oberoi_ and _J._ _B._ _Dad4charrji,_ for intervener No. 2. G C. _K._ _Daphtary_ adld _I. N._ _Shro/!1_ for intervener No. 3. _A. N._ _Sinha_ and _Rtllhin_ _Das,_ for intervener No. 4. _C. K._ _Daphtary_ and _S._ _K._ _Dholakia,_ for intervener No. _S._ H the. Judgment of. the Court. was delivered by . Sllalt, _I._ 0~ · May 29, 1965, the Allied International ProdUcts · Ltd . .....Jlereinafter called 'the Company-issued ·a prospec. tus Offering to the public for subscription 5,00,000 equity shares. ~64 SU~REME COURT REPORTS (1971] 2 S.C.R. of Rs .. 10 each and 10,000 cumulative preference shares of Rs •. l(){) each, and intimating that ''applications are being made to "Bom· hay, Calcutta and Delhi Stock Exchanges for. permission. to· deal in for official quotations of the shares of the Company". Ori June 3, 1965, the. Company submitted applications to the Stock Exchanges at Bombay, Calcutta and Delhi ()Vhich are ##### recognised Stock Exchanges within the meaning ot s. 2(39) of the Companies Act, 1956), for "enlisting'' its shates. The subscription list of the Company was closed on June 21, 1965. On June 22, 1965, the Bombay Stock Ex.change extended the time for consideration ol the application till the expiry of seven weeks fro111 the date of closing of the $Ubscription list and request· ed the Company to furnish certain particulars to facilitate compliance· with s. 73 of the Indian Compam:ies Act, 1956. 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. _J_ 965. - th~. Excb,ange 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 Excllan£e 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 rej~cted the application of the Company for "enlisting" the shares. The Delhi Stock Exchange inf9rmed the. Company on July 10, 1965, that in order to facilitate compliance with the provt· sions of s. 73 of the Companies Act, "the allotment of shares should be finalised as soon as possible in consultation with .the Stock Exchange". By another letter dated August 9,- 1965, thr 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 taker •. 'The Delhi Stock Exchange by .lctte; dated December 4, 1965, ###### rejected the application of the Company for "enlistment" ot its shares. A B ### c I ## ' G The Company .challenged the orders passed by the Calcutta and Delhi Stock Exchanges rejecting the ·ap~ications for "enlistment", in separate appeals under s. 22 of th~ Securities Cont~a~ts H (Regulations) Act 42 ·of 1956. The ~en~al 9<>ve~ent ~s­ missed the appeals. In t!te orders recordi~g ~s~ssaltt was, rec1t~ ·ed that the Exchange dtd not grant the penmss1on _lor_ the shares A B #### _c_ UNION _v._ ALLIBD PRODUCTS _(SJwh,_ J.) 665 to be "enlisted" before the expiry of four weeks from. the date of closing of the subscription list as required by s. 73 ( 1) of the Com· panies Act, 1956, and that the Exchange did not notify any ex· tension of time for th~ grant of the permission within four weeks. The Company then moved petitions in the High Court of Delhi for the issue of writs quashing the orders passed by the Central Government in appeals under s. 22 oti the Securities Contracts (Regulation) Act, 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 ~nlistment" of the shares of the Company, and further deQtariJ1g s. 22 of the Securities Contracts· (Regulation) Act 42 of 1956, and s. 73 of the Companies Act, 1956, _ultra vires_ the Constitution of India. Rangarajan, J., 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 D 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. E F G Against the decisiQn of Rangarajan, J., the Union of India appealed to a Division Bench of the High CotJrt of Delhi. The two Exchanges acquiesced in the orders passed .against them. The High Court confirmed tbe 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 ~e Bombay Stock Ex change after the expiry of seven weeks violated the proviSions of s. 73· ( 1) of the Companies Act, 19 _56_ and was on that account invalid; and (2) that grant of permission by one out of the three Exchan~es did not protect the allotment of shares from bemg invalid under s. 73 ( 1) of the Companies Act, 1956. The two Stock Exchanges which had acquiesced in the judgment H of the Rangatajan, J., urged that the order granting writs of _mandamus_ requiring the two Exchatiges to "enlist" the shares of the Company was without jurisdiction. Rangarajan, J., it was L4~6 Sup.CI/70 666 SUPREME COURT REPORTS [1971j 2 S.C.R. said, could only direct that the applications be considered by the A two Exchanges. The relevant provisions of s. 73 of the Companies Act, 1956, in force at the date of the ~pplications for pennission 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 offer· ed thereby to be dealt in on a recognised stcck: exchange, any :.~l!otment made on an application in pursu".nce _of_ the pr•)Spectus shaU, whenever made, be void, if the penuis~inn has not been applied for before the tenth day after th_; first issue of thl': r·, < ''-;•ectus, or, if the permission ha~ not been granted btforc rhe expiry of-four weeks from the date of the closing of the· subscnpuon 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 shaH forthwith repay without interest all moneys received from applicants in pursuance of the prospectus, and, if any such money is not repaiJ within eight days aft~r the company tecomes liable to repay it, the directors of the company shall be jointly a:ncl 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 permissiQn shall not be deemed to be refused, if it is intimated that the application for permission though not at present grantr.d, 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." B ##### c D E F G H UNION _V._ ALLIED PRODUCTS _(Shah,_ _J.)_ 667 By [the Securities. Contracts (Regulation) Act ] d" ·r d - [ma ] c,wrery [1..:. ] 15 • set up for extkenEmgh recogn.t t~nfto athn f~r ~ithdrawal of recorr. ition to Stoc xc anges an or o er Incidental matter· su oh ~s the making of rules and bye-Ia:ws of the Exchanges a~d a~­ peals against the ?rders of recognised Exchanges. By s. 22 of the Act it is .provtded : ition to Stoc xc anges an or o er Incidental matter· su oh _c_ "Where a recognised stock exchange actino- in pursuance of any I?~wer given to it _by its bye-laws,"" refuses to Jist the secunties 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 t9 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.'' D Sub-section (5) of s. 73 of the Companies Act, 1956, is intended to be explanatory of sub-ss. ( 1) & (2) of s. 73. Before that sub-section was amended by Act 31 of 1965 different phraseology was used in sub-ss. (1) & (2) and in sub-s. (5): the former used the expression "permission has not been granted'', whereas sub-s. ( 5) used the expression "permission shall not be deemed £ to.~~ refused". The expression "permission has not been gra~t~ ~d •s ambiguous: it may mean "pem1ission ~a~ be.en refused •! may also mean that the application for pemllSSIOn IS under conSideration and has not been disposed of. Spb-sections ( 1 ~ & ( [2] ) or s. 73 were borrowed from s. 51 ()f the English Compames ~ct, F ~ [48 ] with slight modifications. But the draftsm~n of the I~d:~ hct, for reasons which it is difficult to appreciate, substJiu ~ I [I. ] Ion [e ][expression "permission ] "pc · · - [has not ] d • [been ] I [granted" ] actina [forbthe ] su -s [e(~p)reosf ] J a. rm•ss1on has been refuse '. n en. "' Eno-ii.;h _Act,_ 73 l'i' .. the '_Vo~ds used in sub-s. ( 5) of s. 51 of t~? wer: adopted. In~· pe.rnuss1on shall not be deemed to .b~ refused been erantG ed"o~r JUdgment, the expression "pcrmtss•on has ~~tt in which it Occ~n sub-ss. ( 1) & (2) was intended in the co~~ent to mean "Pe~ia~d in tll<! light of the object of the cnn ' SSion has been refused". . A. _S_ . . . the ccononuc developrnc lOck Exchange fuii1Js a vital fu~ct•<: [0 ] ~n "liquify capital by enab!i~t of a nation : its main function [15 ] - [0 ] saY a factory or a 11 tailwa g a person who has invested ';laney [10 ] f his sltare in tile tnt~rp~· [10 ] convert it into cash by d•sposut_g ?oint stock comp~­ ### llies • lZe to some one else". Investment In i c of the shares IS anno•J attractive to the public, because the ~~~s, and the sh~res llceu day after day in the Stock Excha " \i· 668 SUPREME COURT REPORTS [1971}2 S.C.~. 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 ~ous to obtain permission from reputed exchanges ### for securing quotations of their shares and the management of a company is anxious to inform the investing publi~ that the share;) of the company will be quoted on the Stock exchange. To prevent malpractices, the Parliament enacted legislation which aimed at securing co~trol 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 Securities Contracts (Regulation) Act 42 of 1956, and simultaneously made provision in s. 73 of the Companies Act, 1956, for ensuring that re presentations made in· the prospectus are carried out and fiuidity of the investment by the holder of stock is ensured by procuring permission for quotation o,f shares in a recognized stock exchange. Under sub-s. (1) of s. 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 s. 73 ( 1) 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 th~ Exchange has intimated within the period prescribed by sub-s. ( 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 intim·ation is given till the last date of the prescribed period, no in'ference 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-s. ( 5) by the substitution of the expression "pennission shall not be deemed to be· refused" by the expression 11it shall not -be deemed that per mission has not 'been granted" also gives a clue to the legislative intention that the inference of refusal will n'ot be made if the ### c E F G H UNION v. ALLIED PRODUCTS _(Shah,_ _].)_ 669 A # • ### c D F G H The application for allotment of shares and accept-ance thereof constitute a contract between the Company and the applicant. Section 73 ( 1) of the Companies Act 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 albtment of shares between the applicants for shares and the Company. Such a provision must be strictly construed. Unless the statute in clear tenns. so. provides, when the Exchange intimates its desire to consider the application further, an inference that the Exchange has still rejected the apJllication, 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 pennission for official quo· tations of the shares of the Company. It is not contended, and it cai)not reasonably be contended, that only one application for pemiission to secure quotation of the shares in an ·approved Exchange may be made. The expression "a recognised stock ex change" 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 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-ss. (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, m 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 refused until it is finally decided. 670 SUPREME COURT REPORTS (1971] 2 S.C.R. are unable to hold that unless all the applications were granted, the allotment of shares must, . by virtue of sub~s. ( 1) of s. 73, ·.be invaJid. The object of s. 73(1) _is_ that the subscribers to the shares must have facility to approach an Exchange for having their holdings convertect whenever the.l · desire. Even if out of several Exchanges approached, one or more, but not all, have granted the applicatioc. for "enlistment", the facility Of ensurmg quick conversion is still available. 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 unabie to obtain permission for "enlist~ ment" from any exchange, the allotment will ~ invalid. But sub-s. ( 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 beeL made. Section 73 ( 1) _1s_ 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 r~presentation in the prospectus that an application for quotation of shares has been or will be .made. The allotment of shares will be invalid only when permission for quotation is not obtained. When permission _from_ one or more of the Exchanges is obtained, it carries out the object o.f 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 s. 73 (1) is clear from, the fact that the penalty of avoidance of allotment of shares is attr~cted not only where the p~rmission applied for has not been granted, but where no appli cation has been made within the prescribed period. I.f 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 an, is or are defective, and the error is not rectified, it would be un1 ~asonable 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 relyin!! upon a representation that an application is made or intended to be m·ade for quofation of the shares in an Exchange near his home-town, and it is found that the application is not m::?de or if made it is rejected by the Exchange, ;t w<Ju1.J :·,e ., ·', .. :.~' 1: :trdsJ•ir t•' the :a #### c E F G H UNION _V._ ALLIED PRODUCTS _(Shah,_ J.) 671 A shareholder if he is bound by the allotment, even if the condi· tion of securing quotation in the Exchange convenient to him is not carried out. But s. 73 ( 1) declares the entire allotment void : it' does not take into consideratinn 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 B shares on the representation is irrelev<mt 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. C We are in the view we have taken not called upon to decide whether the provisions of s. 73 of the Companies Act, 1956, are _ultra_ _vires,_ nor do we consider it nece!.sary tc- decide whether s. 22 of the Securities Contracts (Regulation) Act, 1956, is _ultra_ _vires._ It was urged on behalf of the Delhi and Calcutta Stock Ex D changes that the High Court ought, in exercise of the power under 0. 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 E against ·an adverse decision. That power may be exercised by the Court notwithstandin~ that the appeal is as to a part only of tbe 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 g.Jod JhSOnS. The order passed against the Union and the two Exchanges were in substance disF !inct. Agains.t the Union the order was made quashin~ its· order 10 appeal agatnst the orders of the Exchanges; and against the D G H Exchanges the order was made directing inclusion of the shares i~ th~ list of quoted shares. The Exchanges acquiesced in the dtrechon. 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 applic~tio~ is pending. We need not pre-judge the result of that apphcatton or the tl.ppeal, if any, which may be filed in this Court. The apr~als 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. G.C. _Appeals_ _di.'lmissed._