19 October 1970
Supreme Court


Case number: Appeal (civil) 1772 of 1970






DATE OF JUDGMENT: 19/10/1970


CITATION:  1971 AIR  251            1971 SCR  (2) 661  1970 SCC  (3) 595

ACT: Companies Act, 1956, s. 73-Stock Exchange extending time for consideration of application for enlisting of shares  within four   weeks   of  closing  of   subscription   list-Further intimation   given  to  company  within  seven  weeks   that application  was  under consideration-Approval  given  after seven  weeks-Whether  approval  valid-Approval  by  one   of several exchanges to which applications made, whether  valid and  sufficient  Shareholder whether bound by  allotment  of shares if stock exchange convenient to him does not  approve application- Code  of  Civil  Procedure,  O  41,  r.  33-  High   Court’s discretion under Principles for exercising. Interpretation  of Statutes-S. 73(1) of Companies Act,  1956 is a penal provision and must be strictly construed.

HEADNOTE: The  first respondents limited company-issued  a  prospectus offering  its shares to the public for subscription. it  was mentioned in the prospectus that the company was applying to the  Bombay, Calcutta and Delhi Stock Exchanges (which  were recognised  exchanges within the meaning of s. 2(39) of  the Companies Act, 1956), for enlistment of its shares.  On June 3,  1956  the  Company  submitted  the  applications.    The subscription list was closed on June 21, 1965.  On June  22, 1965 the Bombay Exchange extended the time for consideration of  the application till the expiry of seven weeks from  the date of closing of the subscription list.  On August 6, 1965 the  Exchange informed the company that the application  was receiving further consideration.  On September 13, 1965  the Exchange  informed  the  company that  its  application  for enlisting  its shares had been approved.  The  Calcutta  and Delhi Exchanges rejected the applications made to them.  The company  Challenged  the orders passed by the  Calcutta  and Delhi  Exchanges in appeals to the Central Government  under s.  22 of the Securities Contracts (Regulation)  Act,  1956. The  Central Government dismissed the appeals.  The  company filed  writ petitions in the High Court.  The  Single  Judge held that the grant of permission by the Bombay Exchange was valid  and  that  allotment of shares did  not  become  void



merely  because one out of the three exchanges  alone,  gave the  permission to enlist the company’s shakes.  He  quashed the order of the Central Government and. directed the  issue of  mandamus to the Calcutta and Delhi  Exchanges  requiring them  to  enlist the shares of the company.   The  Union  of India  appealed  to the Division Bench.   The  Calcutta  and Delhi  Exchanges  acquiesced in the  orders  passed  against them.   The  High Court confirmed the order  of  the  Single Judge.   With  certificate, the Union of India  appealed  to this Court.  The questions that fell for consideration  were : (i) whether the permission granted by the Bombay  Exchange after the expiry of seven weeks from the date of closing  of the subscription list violated the provisions of s. 73(1) of the  Companies  Act, 1956 and was on that  account  invalid; (ii)  whether  the grant of permission by one out  of  three Exchanges was sufficient to protect the allotment of  shares from  being  invalid under s. 73(1) of  the  Companies  Act, 1956; (iii) whether a shareholder who buys shares on the 15 L436Sup.(P)/71 662 representation  that  the  shares would be  enlisted  in  an Exchange  convenient to him is bound by the  allotment  even when  the  condition of securing quotation  in  an  Exchange convenient to him has not been carried out; (iv) ’Whether in the  circumstances  of  the case the  High  Court  ought  in exercise of its power under O.41 r. 33 of the Code of  Civil Procedure,  to have vacated the writ of  Mandamus  requiring the  Calcutta  &  Delhi Exchanges to  grant  permission  for quotation of the Company’s shares. HELD  : (i) It was not possible to accept the argument  that permission for enlistment of shares can be given within  the initial  period  of  four weeks, or if  time  be  extended,, within  seven  weeks  from  the  date  of  closing  of   the subscription  list, and if permission be not granted by  the Exchange  within  those seven weeks, the  allotment  becomes void,  even  if  the Stook Exchanges intimates  that  it  is giving further consideration to the application. [669 B] The intendment of sub-ss. (1), (2) and (5) of s., 75 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  more  during the  extended  period, in which case, on the expiry  of  the extended  period  the allotment becomes void.   If  however, within  the-four  weeks, or within the  extended  period  of seven  weeks,  the Exchange intimates that even  though  the application  for permission is not at present  granted,  the application   will  be  given  further   consideration   the application is not deemed to be refused until it is  finally granted. [669 C-D] Being a penal provision 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 inference that the Exchange has 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 of  refusal shall  not  be  made if the Exchange has  intimated  to  the



applicant  that further consideration will be given  to  the application. [668 H] (ii) It  cannot be held that unless all the applications  to different  Exchanges were granted, the allotment  of  shares must,  by  virtue of sub-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  exchange  I approached, one or more, but  not  all, have granted the application for enlistment, the facility of ensuring  quick  conversion is still available. ,  It  after representing in the prospectus that an application bag  been made to a, recognised exchange for ’*enlistment" or will  be made within the prescribed period, the company is unable  to obtain  permission for "enlistment" from any  Exchange,  the allotment  will be invalid.  But sub-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 been made. [670 A-C] (iii)     Section 73 (1) declares the entire allotment  void :   it  does  not  take-into  consideration  the  right   or convenience of individual shareholders. 663 An enquiry whether a shareholder or a class of  shareholders was  or  were  induced  to  subscribe  for  shares  on   the representation that the company was applying for  enlistment to several exchanges one of which was convenient to him,  is irrelevant in determining whether the allotment is  tendered invalid  for failure to secure compliance with  a  statutory condition. [671 B] (iv) An  appellate  court may in appropriate case  pass  any decree  and  make  any  order appropriate  to  the  ends  of justice, even if a party has not appealed against an adverse decision.    The  power  may  be  exercised  by  the   Court notwithstanding that the appeal is as to a part only of  the decree  and may be exercised in favour of all or any of  the parties,  even though they may not have filed an  appeal  or objection. [671 E] [The  Court  did not give a final opinion  on  the  question whether  in  the present case the discretion  was  correctly exercised  by the High Court because the Calcutta and  Delhi Exchanges had applied for certificates in the High Court  of Delhi and the application was pending.] [671 G]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1772  and 1773 of 1970. Appeals from the judgment and order dated July 24, 1970,  of the  Delhi High Court in Letters Patent Appeals Nos. 72  and 73 of 1969. C.   K.  Daphtary, S. P. Nayar, 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 the appeals). B.   N.  Kirpal and Bishamber Lal, for respondent No. 2  (in C.A. No. 1772 of 1970). B.   Sen  and O. P. Khaitan, for respondent No. 2  (in  C.A. No. 1773 of 1970).   N. A. Palkhivala, Bhuvanesh Kumari, Santosh Chatterjee, J.   B. Dadachanji, for intervener No. 1. M.   C.  Setalvad., Santosh Chatterjee, C. M. Oberoi and  J. B. Dadachanji, for intervener No. 2. C.   K. Daphtary and 1. N. Shroff, for intervener No. 3.



A.   N. Sinha and Rathin Das, for intervener No. 4. C.   K. Daphtary and S. K. Dholakia, for intervener No. 5. The Judgment of the Court was delivered by- Shah, J. On May 29, 1965, the Allied International  Products Ltd-hereinafter  called  ’the Company-issued  ’a  prospectus offering  to  the public for  subscription  5,00,000  equity shares 664 of  Rs. 10 each and 10,000 cumulative preference  shares  of Rs.  100 each, and intimating that "applications  are  being made  to  "Bombay, Calcutta and Delhi  Stock  Exchanges  for permission to deal in for official quotations of the  shares of the Company". On  June 3, 1965, the Company submitted applications to  the Stock  Exchanges  at Bombay, Calcutta and  Delhi  which  are recognised Stock Exchanges within the meaning of S. 2(39) of the  Companies Act, 1956), for "enlisting" its shares.   The subscription  list  of the Company was closed  on  June  21, 1965.  On June 22, 1965, the Bombay Stock Exchange  extended the.  time  for consideration of the  application  till  the expiry  of  seven  weeks from the date  of  closing  of  the subscription  list  and  requested the  Company  to  furnish certain  particulars to facilitate compliance with s. 73  of the  Indian  Companies 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,  1965.  the Exchange  informed  the Company that it had  considered  and approved the application for "enlisting" its shares. On June 9, 1965, the Calcutta Stock Exchange called upon the Company  to modify certain Articles of Association,  and  by letter  dated  July  12, 1965, asked  for  particulars  in respect  of  specified  matters.   On  July  27,  1965,  the Calcutta Stock Exchange granted time for compliance till the end of the seventh week from the date of the closing of  the subscription list.  On November 5, 1965, the Calcutta  Stock Exchange  rejected  the  application  of  the  Company   for "enlisting" the shares. The  Delhi Stock Exchange informed the Company on  July  10, 1965, that in order to facilitate compliance with the provi- sions  of  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, the Exchange informed the Company that the   matter   of   "enlistment"   of   shares   was   under consideration,  and  the Company will be  intimated  of  the decision of the Exchange as soon as it is taken.  The  Delhi Stock  Exchange by letter, dated December 4, 1965,  rejected the  application  of  the Company for  "enlistment"  of  its shares. The Company challenged the orders passed by the Calcutta and Delhi   Stock  Exchanges  rejecting  the  applications   for "enlistment",  in  separate  appeals  under  s.  22  of  the Securities  Contracts  (Regulations) Act 42  of  1956.   The Central  Government  dismissed the appeals.  In  the  orders recording dismissal it was recited that the Exchange did not grant the permission for the shares                 665 to  be "enlisted" before the expiry of four weeks  from  the date of closing of the subscription list as required by s. 7 3 (1) of the Companies Act, 1956, and that the Exchange  did not  notify  any  extension of time for  the  grant  of  the permission within four weeks. The Company then moved petitions id the High Court of  Delhi for  the  issue of writs quashing the orders passed  by  the



Central Government in appeals under s. 22 of 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 enlistment" of the shares of  the Company,  and  further  declaring 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, I was of the opinion that grant of permission by the  Bombay Stock Exchange was valid, and that allotment  of shares  did not become void, merely because one out  of  the three  Exchanges alone gave the permission to  "enlist"  the Company’s  shares.  The learned Judge quashed the  order  of the  Central Government and directed that writs of  mandamus do  issue  against the Calcutta and  Delhi  Stock  Exchanges requiring them to "enlist" the shares of the, Company. Against  the decision of Rangarajan, J., the Union of  India appealed  to a Division Bench of the High Court  of  Delhi. The  two Exchanges acquiesced in the orders  passed  against them.  The High Court confirmed the orders of Rangarajan, J. With  certificate  granted by the High Court, the  Union  of India has appealed to this Court. In support of these appeals, two principal contentions  were urged on behalf of the Union :               (1)   The  permission  granted by  the  Bombay               Stock Exchange after the expiry of seven weeks               violated  the  provisions of s. 73(1)  of  the               Companies  Act, 1956 and was on  that  account               invalid; and               (2)   that  grant of permission by one out  of               the  three  Exchanges  did  not  protect   the               allotment  of shares from being invalid  under               s. 73(1) of the Companies Act, 1956. The two Stock Exchanges which had acquiesced in the judgment of  the Rangarajan, J., urged that the order granting  writs of  mandamus  requiring the two Exchanges  to  "enlist"  the shares of the Company was without jurisdiction.  Rangarajan, J., it was L436 Sup.CI/70 6 66 said, could only direct that the applications be  considered by the two Exchanges. The relevant provisions of s. 73 of the Companies Act, 1956, in  force  at the date of the  applications  for  permission for the shares to be dealt in the Exchanges provided:               "(1)   Where  a  prospectus,  whether   issued               generally or not, states that application  has               been  made or will be made for permission  for               the shares or debentures offered thereby to be               dealt  in on a recognised stock exchange,  any               allotment made on an application in  pursuance               of ,he, pros tu shall, whenever made, be void,               if  the  permission has not been  applied  for               before the tenth day after the first issue  of               the prospectus, or, if the permission has  not               been  granted before the expiry of four  weeks               from   the   date  of  the  closing   of   the               subscription  lists or such longer period  not               exceeding seven weeks as may, within the  said               four  weeks be notified to the  applicant  for               permission  by  or  on  behalf  of  the  Stock               Exchange.               (2)   Where   the  permission  has  not   been               applied  for  as aforesaid, or  has  not  been               granted   as  aforesaid,  the  company   shall



             forthwith  repay without interest all,  moneys               received  from applicants in pursuance of  the               prospectus,  and,  if any such  money  is  not               repaid  within  eight days after  the  company               becomes  liable to repay it, the directors  of               the  company  shall be jointly  and  severally               liable  to repay that money with  interest  at               the, rate of five per cent per annum from the               expiry of the eighth day               Provided               (5)   For   the   purpose  of   this   section               permission shall not be deemed to be  refused,               if  it is intimated that the  application  for               permission  though  not at  present  granted,               will be given further consideration.               (7)   No    prospectus   shall   state    that               application  has been made for permission  for               the shares or debentures offered thereby to be               dealt in on any stock exchange, unless it is a               recognised stock exchange."                            667 By the Securities Contracts (Regulation) Act, ’machinery  is set  up for extending recognition to and for  withdrawal  of recognition  to  Stock Exchanges and  for  other  incidental matters  such  as the making of rules and  bye-laws  of  the Exchanges  and  appeals  against the  orders  of  recognised Exchanges.  By s. 22 of the Act it is provided :               "Where  a recognised stock exchange acting  in               pursuance of any power given to it by its bye-               laws,  refuses to list the securities  of  any               public company, the company shall be  entitled               to  be  furnished  with the  reason  for  such               refusal,  and may appeal against the  decision               of  the  recognised  stock  exchange  to   the               Central    Government,   and    the    Central               Government,   may  after  giving   the   stock               exchange  an opportunity of being heard,  vary               or  set aside the decision of  the  recognised               stock  exchange and when it does so the  stock               exchange  shall be bound to act in  conformity               with the orders of the Central Government." Sub-section  (5)  of 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  be  refused".   The expression "permission has not been granted" is ambiguous : it may mean "permission has been refused" : it may also mean that  the application for permission is under  consideration and has not been disposed of.  Sub-sections (1) & (2) of  s. 73  were borrowed from s. 51 of the English  Companies  Act, 1948  with slight modifications.  But the draftsman  of  the Indian Act, for reasons which it is difficult to appreciate, substituted the expression "permission has not been granted" for  the  expression  "permission  has  been  refused".   In enacting sub-s. (5) of s. 73 the words used in sub-s. (5) of s.  51  of the English Act, viz.  "Permission shall  not  be deemed  to be, refused" were adopted.  In our judgment,  the expression "permission has not been granted" in sub-ss.  (1) & (2) was intended in the context in which it occurs and  in the   light  of  the  object  of  the  enactment,  to   mean "permission has been refused". A  Stock Exchange fulfils a vital function in  the  economic



development  of a nation: its main function is  to  "liquify capital by enabling a person who has invested money in say a factory or a railway to convert it into cash by disposing of his  share in the enterprise to some one else".   Investment in  joint  stock  companies is  attractive  to  the  public, because the value, of the shares is announced day after day in the Stock Exchanges, and the shares 66 8 quoted  on  the Exchanges are capable  of  almost  immediate conversion  into  money.  In modern days  a  company  stands little  chance  of inducing the public to subscribe  to  its capital,  unless its shares are quoted in an approved  Stock Exchange.   All  public  companies  are  anxious  to  obtain permission from reputed exchanges for securing quotations of their  shares and the management of a company is anxious  to inform  the investing public that the shares of the  company will   be  quoted  on  the  Stock  exchange.   ’To   prevent malpractices, the Parliament enacted legislation which aimed at  securing  control over the proper  functioning-  of  the Stock  Exchanges, and also placed  stringent  restrictions upon  the representations made by the companies  in  issuing prospectus  inviting subscriptions.  The Parliament  enacted the  Securities Contracts (Regulation) Act 42 of  1956,  and simultaneously made provision in s. 73 of the Companies Act, 1956,   for  ensuring  that  representations  made  in   the prospectus are carried out and fluidity of the investment by the  holder of stock is ensured by procuring permission  for quotation of shares in a recognized stock exchange. Under  sub-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 the  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 intimation is given till  the last date of the prescribed period, no inference of  refusal follows.   It  would then be difficult to hold that  if  the Exchange intimates that it is considering the application or intends  to  give further consideration to  the  application that  such an inference may follow.  The amendment  made  by Act  31  of 1965 in sub-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 not  been  granted" also gives, a clue  to  the  legislative intention that the inference of refusal will not be made  if the-                 669 Exchange  has  intimated  to  the  applicant  that   further consideration will be given to the application. We  are unable to hold that permission for  "enlistment"  of shares can be given within the initial four weeks or if time



be extended within seven weeks from the date of the  closing of  the subscription list, and if permission be not  granted by  the  Exchange within those seven  weeks,  the  allotment becomes  void, even if the Stock Exchange intimates that  it is  giving  further consideration to the  application.   The intendment  of sub-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, in which case, on the expiry  of the  extended  period  the  allotment  becomes  void.    If, however,  within  the  four weeks, or  within  the  extended period  of  seven weeks, the Exchange  intimates  that  even though  the application- for permission is not  at  present granted,  the application will be given  further  considera- tion, the application is not deemed to be re-fused until  it is finally decided. The  application  for  allotment of  shares  and  acceptance thereof  constitute a contract between the Company  and  the applicant.   Section  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 allotment of shares  between  the applicants  for  shares and the Company.  Such  a  provision must  be  strictly construed.  Unless the statute  in  clear terms so provides, when the Exchange intimates its desire to consider  the  application  further an  inference  that  the Exchange has still rejected the application, cannot be made. It  is true that in the prospectus issued by the Company  it was  intimated  that  applications are  being  made  to  the Bombay,  Calcutta and Delhi Stock Exchanges  for  permission for official quotations of the shares of the Company.  It is not  contended, and it cannot reasonably be contended,  that only  one application for permission to secure quotation  of the  shares  in  an ’approved Exchange  may  be  made.   The expression   "a  recognised  stock  exchange"   means   "any recognised  exchange".   More  applications  than  one   for quotation  of  shares may therefore be made In  the  present case,  three  applications were submitted on June  3,  1965. Two of these applications were rejected and one was granted. We 670 are  unable  to hold that unless all the  applications  were granted,  the allotment of shares must, by virtue of  sub-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 an  Exchange  for having their holdings  converted  whenever they  desire.  Even if out of several Exchanges  approached, one  or more, but not all, have granted the application  for "enlistment",. the facility of ensuring quick conversion  is still  avail-able.  If after representing in the  prospectus that  an application has been made to a recognised  exchange for  "enlistment"  or  will be made  within  the  prescribed period,  the  Company  is unable to  obtain  permission  for "enlistment"  from  any  exchange,  the  allotment  will  be invalid.   But  sub-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  beer, made.



Section   73(1)  is  enacted  with  the  object   that   the subscribers   will   be  ensured  the   facility   of   easy convertibility  of their holdings when they have  subscribed to the shares on the re presentation in the prospectus  that an application for quotation of shares has been ’II be made. The  allotment  of shares will, be invalid only or  WI  when permission  for quotation is not obtained.  When  permission from  one or more of the Exchanges is obtained,  it  carries out  the  object  of  the Act.   It  will  be  a  mechanical interpretation  wholly  divorced from the  true  object  and intendment  of  the Act to hold that even if  permission  is secured  for  quotation  of  shares  in  an  Exchange,   the allotment  will be invalid because another exchange has  not granted the permission.  That this is the true meaning of s. 73(1)  is clear from the fact that the penalty of  avoidance of  allotment  of  shares is attracted not  only  where  the permission’  applied for has not been granted, but where  no application has been made within the prescribed period.  ’If applications are made to several exchanges, some within  the period of ten days after the first issue of the  prospectus, and  some beyond, or that one or more applications, but  not all, is or are defective, and the error is not rectified, it would  be  unreasonable  to hold that because  some  of  the applications made beyond the tenth day after the first issue of  the  prospectus,  or are defective,  are  liable  to  be rejected, the applications properly made before some of  the Exchanges  are ’also ineffective and the allotment made  may be invalid. Counsel  for the Calcutta Stock Exchange urged that where  a person  is  induced to subscribe for shares relying  upon  a representation  that an application is made or intended-  to be made for quotation of the shares in an Exchange near  his home-town, and it is found that the application is not made, or  if  made it is rejected by the Exchange, it would  be  a great hardship to the                67 1 shareholder  if  he is bound by the allotment, even  if  the condition  of securing quotation in the Exchange  convenient to him is not carried out.  But s. 73(1) declares the entire allotment  void  : it does not take into  consideration  the right or convenience of individual shareholders.  An enquiry whether  a  shareholder or a class of share-holders  was  or were  induced to subscribe for shares on the  representation is  irrelevant in determining whether the allotment  is  for failure  to  secure compliance with  a  statutory  condition rendered   invalid.   We  need  not  consider  whether   the individual shareholder who finds that an Exchange convenient to him has not listed the shares furnishes a cause of action to him for avoiding the contract. We  are in the view we have taken not called upon to  decide whether the provisions of s. 73 of the Companies Act,  1956, are  ultra vires, nor do we consider it necessary to  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- changes that the High Court ought, in exercise of the  power under  O. 41 r. 33 of the Code of Civil Procedure,  to  have vacated the writ of mandamus issued requiring them to  grant permission  for  quotation  of  the  Company’s  shares.   An Appellate Court may in appropriate case pass any decree  and make ’any order appropriate to the ends of justice, even  if a party has not appealed against an adverse decision.   That power may be exercised by the Court notwithstanding that the appeal  is  as  to  a part only of the  decree  and  may  be exercised  in  favour  of all or any of  the  parties,  even



though they may not have filed any appeal or objection.  But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons.  The order  passed against  the Union and the two Exchanges were  in  substance distinct.  Against the Union the order was made quashing its order  in  appeal against the orders of the  Exchanges;  and against the Exchanges the order was made directing inclusion of  the shares in the list of quoted shares.  ’Me  Exchanges acquiesced in the direction. We  need,  however, not express any final  opinion  in  this question.   We  are informed at the Bar  that  the  Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending.  We need not  pre- judge the result of that application or the appeal, if  any, which may be filed in this Court. The  appeals fail and are dismissed with costs.  There  will be  one  hearing fee in favour of the  Company.   The  other parties will bear their own costs. Appeals dismissed. G.C. 672