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1992 DIGILAW 146 (MAD)

Coimbatore Texcity Share Brokers Association and Another v. Union of India and Others

1992-03-13

ABDUL HADI, VENKATASWAMY

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Judgment :- ABDUL HADI, J. These two review applications are for reviewing our common order dated January 20, l992, dismissing two writ petitions, W.P. Nos. 14600 and 14601 of 1991. They are filed by the respective writ petitioners therein. Both the said writ petitions sought to quash the notification of the Central Government dated September 18, 1991, granting recognition under section 4 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) (hereinafter, for convenience sake, referred to as "the Securities Act") to the Stock Exchange at Coimbatore started by the Coimbatore Stock Exchange Limited, the fifth respondent in Review Application No. 1 of 1992 and the third respondent in R. A. No. 2 of 1992. The said writ petitioners are the rival applicants, for recognition of their respective exchanges at Coimbatore. Learned senior counsel, Mr. Vasantha Pai, appearing for the applicants submits as follows : Our abovesaid order did not consider the argument that four of the seven signatories to the memorandum of association of the company, the Coimbatore Stock Exchange Limited, were disqualified to be members of any stock exchange under rule 8(1)(f) of the Securities Contracts (Regulation) Rules, 1957 (hereinafter, for convenience sake, referred to as "the Securities Rules"), framed under the abovesaid Act, they being engaged in business other than securities and accredited industrialists. His further contentions are that they are "deemed members" of the Coimbatore Stock Exchange Limited under section 41(1) of the Companies Act, 1956, but that because of their abovesaid disqualification, the abovesaid recognition granted under the Securities Act is bad and that even the registration of the said company itself is bad under the said Companies Act. According to learned counsel, the abovesaid defect goes to the root of the jurisdiction to grant the said recognition and the failure to consider the same is an error apparent on the face of the record. Learned counsel also cited decisions in support of his contention that the review applications are maintainable on the facts of the present case.On the other hand, learned counsel for the Coimbatore Stock Exchange Limited submits as follows : The above argument that the registration of the Coimbatore Stock Exchange Limited under the Companies Act itself was bad, was not made at all while the writ petitions were argued, nor was the said plea raised in any of the supporting affidavits of the respective writ petitions. Hence, there is no error apparent which could be corrected in these review petitions. No doubt, the subscribers to the abovesaid memorandum of association have become automatically members of the Coimbatore Stock Exchange Limited, which has since been recognised. But, such automatic admission to the membership of the said recognised Stock Exchange does not make the said recognition bad, even assuming there was any disqualification as alleged by the applicants, since under the above rule 8(1)(f), the disqualification contemplated therein is a curable one in view of the proviso to the said rule 8(1)(f) which says that the Central Government may permit a recognised stock exchange to suspend the enforcement of the said clause (f) of rule 8(1). Learned counsel also cited decisions to contend that the review applications are not maintainable on the facts of the present case. Learned counsel appearing for the other respondents (Governmental authorities) generally supports the arguments of learned counsel for the Coimbatore Stock Exchange Limited. However, it may also be noted that in the counter-affidavit filed by the said respondents in the writ petitions it is stated that the abovesaid stock exchange has not yet admitted the members and during the appropriate stages, the company would consider the issue regarding the qualification of the members of the stock exchange. We have considered the abovesaid rival submissions. On the question whether the subscribers to the memorandum of association of the Coimbatore Stock Exchange Limited have become automatically members of the recognised stock exchange of the Coimbatore Stock Exchange Limited, learned counsel for the Coimbatore Stock Exchange Limited also represents that they have so become automatically members of the abovesaid recognised stock exchange in view of the relevant clause in the articles of association of the Coimbatore Stock Exchange Limited. (He no doubt contends that the definition of a member under the Companies Act cannot be imported into the Securities Act.) In view of the abovesaid representation by the said counsel that the said subscribers are automatically members of the abovesaid stock exchange, we are not giving any considered opinion on this question and we proceed on the basis of the abovesaid representation of the said counsel of the Coimbatore Stock Exchange Limited, and counsel for the petitioners.Then, the further question is whether such automatic admission of the abovesaid seven subscribers to the members of the said recognised stock exchange makes the said recognition bad, on the footing that four of them were admittedly industrialists and consequently come under the abovesaid rule 8(1)(f) as disqualified persons. Rule 8(1) runs as follows : "8. Qualifications for membership of a recognised stock exchange. Rule 8(1) runs as follows : "8. Qualifications for membership of a recognised stock exchange. The rules relating to admission of members of a stock exchange seeking recognition shall, inter alia, provide that : (1) No person shall be eligible to be elected as a member if (a) he is less than twenty-one years of age ; (b) he is not a citizen of India ; provided that the governing body may in suitable cases relax this condition with the prior approval of the Central Government ; (c) he has been adjudged bankrupt or a receiving order in bankruptcy has been made against him or he has been proved to be insolvent even though he has obtained his final discharge ; (d) he has compounded with his creditors unless he has paid sixteen annas in the rupee ; (e) he has been convicted of an offence involving fraud or dishonesty ; (f) he is engaged as principal or employee in any business other than that of securities except as a broker or agent not involving any personal financial liability unless he undertakes on admission to sever his connection with such business : Provided that the Central Government may, for reasons sufficient in the opinion of the said Government, permit a recognised stock exchange to suspend the enforcement of this clause for a specified period on condition that the applicant is not associated with or is a member of or subscriber to or shareholder or debenture-holder in or connected througha partner or employee with any other organisation, institution, association, company or corporation in India where forward business of any kind whether in goods or commodities or otherwise is carried on or is not engaged as a principal or employee in any such business ; . . . . . (h) he has been at any time expelled or declared a defaulter by any other stock exchange ; (i) he has been previously refused admission to membership unless a period of one year has elapsed since the date of such rejection." Thus, as per the abovesaid rule 8(1)(f), even though a person is disqualified from being admitted as a member of a stock exchange, seeking recognition, if he is engaged in any business other than that of securities, the proviso therein says that "the Central Government may, for reasons sufficient in the opinion of the said Government, permit a recognised stock exchange to suspend the enforcement of this clause for a specified period on condition . . . "The use of the words" recognised stock exchange" in the abovesaid proviso shows that the abovesaid disqualification in rule 8(1)(f) is not an absolute bar for the granting of the abovesaid recognition itself. Otherwise, permitting a "recognised stock exchange" to suspend the enforcement of the said clause (f) will not arise at all. If the recognition itself is bad ab initio, suspension of a disqualification rule in considering the recognition application will not arise at all. So, we have to accept the argument of learned counsel for the Coimbatore Stock Exchange Limited that the said disqualification is a curable one in view of what is contained in the proviso to rule 8(1)(f). Next, it must be stated that, as contended by learned counsel for the Coimbatore Stock Exchange Limited, there were no contentions raised, either in the affidavits of the writ petitioners or by way of argument by counsel who appeared for the writ petitioners, stating that the registration of the Coimbatore Stock Exchange Limited under the Companies Act itself was bad in view of the abovesaid disqualification. So, on that footing, it cannot be held that there is any error apparent on the face of the record for us to review our earlier order. Further, there is neither a prayer to quash the registration of the Coimbatore Stock Exchange Limited as a company, nor has the Registrar of Companies who registered the company been impleaded. So, on that footing, it cannot be held that there is any error apparent on the face of the record for us to review our earlier order. Further, there is neither a prayer to quash the registration of the Coimbatore Stock Exchange Limited as a company, nor has the Registrar of Companies who registered the company been impleaded. That apart, in the view we have taken on the earlier question discussed by us, the Registrar of Companies cannot be said to have wrongly registered the said company under the Companies Act.In the above view we have taken, there is no necessity to go into the question whether on the facts of the present case a review would lie at all and there is also no necessity to consider the different decisions cited by both the rival counsel on that question. In the result, we find that there is no merit in these review applications and hence they are dismissed. However, in the circumstances of the case, there will be no order as to costs.