Sri Gopal Jalan & Company v. Calcutta Stock Exchange Association Ltd.

S.rur J, The appellant's contention is that the Company from time to time forfeited various shares under these articles and it appeared from its balance sheet that ~eventy of such forfeited shares had been re-issued at a nominal face value of Rs. 1,000/- but no return of such re-issue of the forfeited shares had been filed by the Company. The Company in its affida-vit in answer to the petition admitted these facts. It was also said that these forfeited shares had been issued for much larger sums but nothing turns on that in this case.

Now s. 75, so far as material for our purposes, is as follows :

¶875. (1) Whenever a Company having a share capital makes any allotment of its shares, the company shall, within one month there-after,-

(a) file with the Registrar a return of the allotments, stating the number and nominal amount of the shares com-prised in the allotment, the names, addresses and occupatiom of the allot-tees, and the amount, if any, paid or due and payable on each share;

x x x x x (5) Nothing in this section shall apply to the issue an:l allotment by a company of shares

702 SUPREME COURT RBPORTS[l964)VOi..

196J which under the provisions of its articles we1·e Sri Gopol Jal•• forfeited for non-payment of calls.

Gompa•7

v.

CalcuttrJ Stock The appellant contends that a return should have E#t111ange Associats'on been filed of the re-issued forfeited shares under this v Ltd.

section. The contention of the Company is that the Sa1kar /. re-issue of forfeited shares does not amount to allot-

ment of shares and, therefore, it was not required to file any return in respect of such re-issued shares under the section. This contention was accepted by the learned Judge of the Bigh Court before whom the appellant's petition was first moved and also by the learned Judges of the Division Bench of that Court on appeal from the decision of the learned trial' Judge.

We agree with the learned Judges of the High Court that a re-issue of a forfeited share is not an alloment of share withins. 75(1). The word "allo-ment" has not been defined in the Companies Act either in our country or in England. But we think th:it the meaning of that word is well understood and no decision has been brought to our notice to indi-cate that any doubt has ever been entertained as to it. As Chitty J. put it in In re Florence Land and P.ublic Works Company(') (p.426). "What is termed 'allotment' is generally neither more nor less than the acceptance by the company of the offer to take shares. To take the common case, the offer is to take a certain number of shares, or such a less nu~­ ber of shares as may be allotted. That offer is accep-ted bv the allotment either of the total number men-tioned in the offer or a less number, to be taken by the person who made the offer. This constitutes a binding contract to take that number according to the offer and acceptance. To my mind there is no magic whatever in the term 'allotment' as used in these circumstances. It is said that the allotment is an appropriation of a specific number of shares. It

tlJ (1885) L.R. 29, Cb. D. 421.

is an appropriation, not or specific shares, but of a certain number of shares."

Sri /JI C./Jo/ ComponJ '"''" The process described by Chitty J. is very v. familiar in Company law. Under the Act, a com· C./eulla Sloe& E"e/un&ee AsJoeiatioa pany having share capital is required to state in its .Ltd. memorandum the amount of that capital and the . division thereof into shares of a fixed amount: see Sorkv I. s. 13(4). This is what is called the authorised capi· tal of the company. Then the Company proceeds to issue the shares depending on the condition of the market. That only means inviting appli· cations for these shares. When the applications are received, it accepts them and this is what is gene· rally called allotment. No doubt there may be an allotment of shares without an application but no instance exists where that word is used to describe a transaction whereby .one · becomes a share-holder otherwise than by appropriation to him of a share out of the previously unappropriated share capital.

So Farwell L. J. said in Mosely v. Kof!yfonlain Mines Limited (' ). "As regards the construction or these particular articles it is plain that the words 'creation', 'issue', and 'a1lotment' are used with the three different meanings familiar to business people as well as to lawyers. There are three steps with regard to new capital; first; it is created; till it is created the capital does not exist at all. When it is created it may remain unissued for years, as indeed it was here; the market did not allow of a favourable opportunity of placing it. When it is issued it may . be issued on such terms as appear for the moment expe· dient. Next comes allotment. To take the words of StirlingJ. in Spihel v. Ohinese Oorporation, 80 L.T.

347, 351, he says: 'What is an allotment of shares !

Broadly speaking, it is an appropriation by the direc· tors or the managing body of the company of shares to a particular person'." Lord Greene M.R. observed in lnre V. G •.. M. Holdings, Limited, ('), "it ieems to

(I) (1911) I,l.,'R, Cll. 73, 84. (2) (19*2) I Ch, D, 255.

196J me that the word 'purchase' cannot with propriety GofJlll Joi .. be applied to the legal transaction under which a ~ri person, by the machinery of application and allot·

C•mP•"7 •• Calt11 Slo ! me~t, becomes a shareholder in the company. He

tlo does not purchase anything when he does that. Mr. Att""'11l' Assoi·iG.t1on

Ltd. Wynn Parry endeavoured heroically to establish the

proposition that a !ihare before issue was an existing article of property, that it was an existing bundle of rights which a shareholder could properly be said to be purchasing when he acquired it by subscription in the usual way. I am unable to accept that view. A share is a chose in action. A chose in action imp· lies the existence of some person entitled to the rights in action as distinct from rights in possession, and, until the share is issurd,. no such person exists. Put· ting it in a nutshell, the difference between the issue of a share to a subscriber and the purchase of a share from an existing share holder is the difference between creation and the transfer of a chose in action."

It is beyond doubt from the authorities to which we have earlier referred, and there are many more which could be cited to show the same position, that in Company law 'allotms:nt' means the appropriation out of the previously unappropriated capital of a com-pany, of a certain number of shares to a person. Till such allotment the shares do not exist as auch. It is on allotment in this sense that the shares come into existence. Learned counsel for the appellant has not been able to cite any case where the word 'allot· ment' has been used to describe a transaction with regard to an existing share, that is, a share previ-ously, brought into existence by appropriation to a person out of the authorished capital. In every case the words 'allotment of shares' have been used to indicate the creation of shares by appropriation out of the unappropriated share capital to a particular person. We find no reason why the word 'allotment' ins. 75 should have a different sense. It is ·said that sub"•· (ti) of s. 75 furnishe1·1uch a reason. We will deal with that argument later. Our attention has 196! not been drawn to any other provision in our Com-Sri c • .-h/•61 panies Act which would support the contention ~ that the Act includes within the word 'allotment' a v. Cal<WU. 'Slodl transaction with a share after it has been first crea~ ~ ~u .. Nlion ted by appropriation out of the authorised share capi-Lli. tal to a particular individual. As the learned Judges . '""''· of the Hi~h Court pointed out, s. 75 ocr:urs in Part III of the Act which deals with "Prospectus And Allotment, And Other Matters Relating To Issue Of Shares Or Debentures". Sections 69 to 75 are classed under the sub-heading 'Allotment' and the only kind of allotment that is dealt with in these sections is the appropriation of shares to individuals out of the unappropriated share capital of the com-pany. In these circumstances it would be impossible to give to the word 'allotment' in s. 75(1) a different meaning.

Now it is quite clear that when a share is forfei-ted and re-issued it is not allotment in the sense of appropriation of share out of the authorished and unappropriated capital so as to bring the shares into existence. In the present case both sides proceeded on the basis that the articles of the company dealing with forfeiture of shares which we have earlier set out are valid articles. ln other words, it has not been disputed that the Company may validly forfeit shares in terms of those articles. We accept that basis and proceed on the assumption that it is correct. In the High Court at Calcutta there was a difference of opinion as to the validity of these articles but the later view is that the articles are valid. The reason for the view has thus been put in the latest case in the Calcutta High Court, namely, the Calcutta Stoalc Exchange Association Umited v. 8. N. Nundy med Company ('). Harries C. J. dealing with the very articles with which we are concerned observed at p. 264, "In the presrnt case, the Articles relating to forfeiture do not, in my view, offend against the llllJ provisions of the Companies Act, as they do not 0.,.1 Jal• (II contemplate a reduction of capital or a purchase of

Co•P.Y shares or a trafficking in shares". Now, obviously,

v.

Cal<Ull• St«l if upon forfeiture, the shares had ceased to exist qua ~ Auociotioa shares and become merged in the unissued capital

Lt;.

s.• of the Company, then there would have been a re-

¶1duction of the capital and such a forfeiture would

have been invalid. The reason why it was held that the forfeiture was valid was that on such forfeiture all that happened was that the right of the particular shareholder disappeared but the share considered as a unit of issued capital continued to exist and was kept in suspense until another shareholder was found for it: see Naresh Chandra Sanyal v. Ramani Kanta Ray('). We have to examine the present case on this basis.

If, therefore, the shares which the Company forfeited have to be considered as shares already created and as continuing in existence as such in spite of the forfeiture, obviously they could not be allo-tted in the sense in which that word is understood in the Company law as we have earlier stated. In Morrison v. Trustees e.tc. Insurance Corporation (1), the articles of the Company gave power to forfiet shares for non-payment of calls and further provided that "any share so forfeited shall be deemed to be the property of the Company and the directors may sell, re-allot or otherwise dispose of the same in such manner as they think fit". It was held that the Company could re-issue the forfeited shares giving credit for the money already received in respect of them. The contention that the transaction amounted to the issue of a share at a discount was rejected. Vaughan Williams L. .J. observed, "I do not like the use of the word 'issue' with reference to the transac-tion 'with regard to these shares. If they were being issued, the argument for the appellant might possibly be right ; but they are not being issued. When we look at the articles we see that what takes place on

(ll (114.'1] 2 1,L.R, Cal, 105, (2) [1899]68 L.J. CL 11. a rorfeitare or shares is that the power or transferring Jf~J them passes from the original shareholclers to the Sri GO/Jal 1.i company and the company can then transfer the Com/""" shares qubject to the same rights and liabilities as if c.1,.11~ Sto'.k. they had not been forfeited". To the same effect · Fxchan'!.,l"'''°~'" are the observations of Bacon V. C. in Ramwell's ca8e ('). Q1ite clearly, the view well accepted in S1rkoi Company Courts has been that issue of the forfeited shares was not allotment of them but only a sale.

IC it were not so. the forfeiture itself would be invalid as involving an illl'gal reduction of capital. If the re-issue of a forfeited share is only its sale, then it is not an allotment and that being so, no question of filing any return in respect of such re-issue arises.

It remains now to deal with sub-s. (5) of s. 75.

That does create a difficulty. It provides that no return need be filed in respect of allotment of shares forfeited for non-payment of calls. It gives rise to an argument that th,. Act contemplates an "allotment"

of shares forfeited for non-payment of calls for other-wise it would not be necessary to .. provide that returns in rc:-spect of such allotment need not be filed. It is said that that beiiil\' so, the word "allotment" in s. 75 (1) should be unrlerstood as including the issue of shares forfeited for other reasons, for there is no reason to make any distinction between shares for-feited for non-pavment of calls a;1d those forfeited (or other reasons in the present context. This argu• ment is no doubt legitimate. But having given it ·our best consideration, we have come to the conclusion that it should be rejected. We think that sub-s. (5) owes its origin to a confusion of ideas. Apart from it, all other provisions of the Act clearly contemplate by allotment the creation of shares out of the autho-rised and unappropriated capital of the Company and not re-issue of shares already created by allotment 'in the manner aforesaid but subsequently forfeited. Th~re would be no justification for altering the me.ani.ng or that word in any other part of the Act because of · 196' the solitary provision occurring in sub-s. (5) of s. 75 Sri c;;;J;1 .. e The Companies Act in force before the Act

"""'""' •• . of 1956 was the Act of 1913. Section 104 (1) Colrullo Sl<>tk of that Act corresponded to s. 75 (1) of the present llJteha11 A.iJociJiio11 Act. In 1936 there were large amendments made

-- Ltd. in the 1913 Act. Prior to these amendments

there was no provision in s. l 04 of the Act of 191~ corresponding to sub-s. (5) ofs. 75ofthe present Act. Therefore, upto 1936 there was no reason to contend that the word "allotment" ins. 104 (1) could at all include the re-issue of a forfeited share. The 1936 amendment added sub-s. (4) to s. 104 and t11at sub-section contained provision similar to sub-s. (5) ofs. 75 of the present Act. We do not think that it could be legitimately contended that by the amend-ment of 1936 the meaning of the word "allotment" in s.104 (1) was altered. That being so, the word "al-lotment" in s. 75 (1) must be understood without reference ot sub-s. ( 5) in the same wav as that word in · s. 104 (l) had to be understood without reference tci sub-s.(4) of that section. It is safer to rearl sub-s. (5) of s. 75 as having been enacted ex abundanti cautela, that is to say, to prevent any argument being raised that a return has to be filed of the re-issued shares forfei-ted for non-payment of calls. We also agree with the view expressed in the High Court that the reason why only forfeiture for non-payment of calls was mention· edins.104(4)oftheActofl!H3 ands.75 (5)ofthe present Act is that there has a 1 ways been a great deal of doubt as will appear from the difference of opinion · in the Calcutta High Court to which we have earlier

referred, as to whether there can be any forfeiture of shares except for non-payment of calls which latter case had been expressly provided for hy the statute. The other cases of forfeiture had apparently not been mentioned because if they had been it could have been legitimately argued that the legislature con~ide­ red such forfeiture valid and the legislature did not want to iive support to that argument.

We think for these reasons that the appeal fails 19Q and we dismiss it with costs. c.,.1 i.1 s Sri Comp,., Appeal diamiaeed. y, Calculla Si.el Ex.U.11 /.I,. AuacialiMI s.,,., I.

BOMBAY GAS CO. LTD

v. 1963

GOP AL BHIV A & ORS. M,, 10.

(P. B. GAJENDRAGADKAR, K. N. WANOHOO

and K. C. DAB Gul'TA JJ.) lnduatrial Di1pule-Applicatiom under •· 330 (2) lo claim certain benefits uw.ler an Award-Scope oJ s. 330 (2)- 0ategorie• of workera entitled to beneji'8-Limitation for ·application• under•· 330 (2)-Wkether Payment of Wagea A.cl or art. 181 of Limitation Act applicable-lndualrial Diaputes Act, 1947 (14 of 1947), a. 330 (2j.

Petitions were filed by sixteen respondents under s. 330(2) of the Industrial Disputes Act, 1947, claiming certain benefits under an award made by an Indus•rial Tribunal. The prayer was to compute the benefits in terms of money and direct the appellant to pay the same to them. Many objections were raised by the appollant but these were rejected by the Labour Court which accepted the claim of the respondents and directed the appellant to pay to the respondents the respective amounts specified against their names in the award.

Tbe appelJant came to this Court by special leave.

The contentions raised by the appellant before this Court were that the award, on which the claim was based, was without jurisdiction and hence the Labour Court should have refused to implement it; that in order to get benefit, the workers must show that they actu.dly worked on all Sundays in the year before September, 1948; and that as the claims of the respondents were belated, those should not have been awarded.

Held that the Labour Court would have been justified in refusing to Implement the award if it was satisfied that the

C!VIL APPELLATE JURISDICTION: Civil Appeal No. 512 of 1961.

Appeal by special leave from the judgment and order dated August LS, 1959, of the Calcutta High Court in Appeal from Original Order No. 106 of 1957.

S. K. Kapur, S. Murtki, P. M. Kukhi and K. K. Jain, for the appellant.

H. N. Sanyal, Solicitor-General of India and B. P. MaheBhwari, for the respondent.

1963. May 9. The Judgment of the Court was delivered by

. ~ABKAR J.-!he question in this appeal is, Sar/llJIJ what 11 the meamng to be ascribed to the word ~~allotment" occurring in.s. 75 (1) of the Companies 196J Act, 1956? That section requires a compny to file a

return of the allotment of its shares with the Registrar Sri <'.pal Jala• within a month of the making of the allotment. The

Cimjla1'

v. appellant who has been accepted as a shareholder in Ca/tu/l'J Sto..·• the respondent Company for the purposes of the pre-E1t:Mn11 Associ!Jli011

1.14. sent proceedings, complained that the Company had

not filed the return required by that section. and therefore, moved the High Court at Calcutta under s. 614 of the Act for an order requiring it to do so. The shares with which this case is concerned had been forfeited by the Company under its arti-cles. A reference to some of these articles is necessary before we proceed further. Article 21 of the Articles of Association of the Company authorised its Committee to expel or suspend a member in cer-tain events. The present is not a case involving an exercise of power under this articte. Articles 22, 24 and 27 are in these terms :

Article 22 : "Any member who has been declared a defaulter by reason of his failure to fulfil any engagement between qimself and any other member or members and who fails to fulfil such engagement within six months from the date upon whit.;h he has been so declared defaulter shall at the expiration of such period of six calendar months automati-cally cease to be a member."

Article 24 : "Upon any member ceasing to be a member under the provisions of article 22 hereof and upon any resolution being passed by the Committee expelling any member under the provisions of Article 21 heareof or upon any member being adjudicated insolvent the 1hare held by such member shall ipso facto be forfeited."

A.rticle 27:"Any share so forfeited shall be deemed. to be the property of the Association,

and the Committee shall sell, re-allot and otherwise dispose of the same in such manner to the best advantage for the satisfaction of all g,; C•>'ll Jalu & Com(Jan7 •• debts which may then be due and owing either to the Association or any of its members arising C•ln1'lt1 ~taet Etdlantt tl•socia1iDll out or transactions or dealings in stocks and Lid. shares."