MANNALAL KHETAN ETC. ETC. versus KEDAR NATH KHETAN & ORS. ETC.

MANNALAL KHETAN ETC. ETC.

KEDAR NATH KHETAN & ORS. ITTC. November 25, 197 6

(A. N. RAY, C. J., M. H. BEG AND JASWANT SINGH, JJ.J

Co111pauies .A.ct 1956- S. 108-Scope of-!'S/uill not register

transfer of

-lhares"-lf n1a11datory or directory-Tests for deciding.

lnterpretMti~n~Jfandatory or directory-Tests for determining-1Von-com· p/{4nce not cleclared an offence-If provision could be called direcrory.

Section 108 of the Companies Act, 1956 provides that company lhall 1101 register transfer of shares unless proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee_. has been delivered to the company along \\'ith the share certificate.

The appellaRts ;;i.nd the respandents were members of fan1ily. The family heJd ~ares ia company, and in addition, the members were doing partnership business. To reali5e large sums of income tax dues from the firms and indi-vidual partners, the Income-tax Department issued notices to the company to pay to that department any amount due to the firm or its partners. .A. receiver appoiated by the Collector took ·possession of the appellants' shares along lVith duly signed blank transfer deeds. Later_ shares belonging to the family in the company ·were attached under 0. 21, r. 46, C.P.C. I.1 the meantime the appellants in settlement of their accounts \\tith the respondents agreed for trans-fer of certain shares to the respondents as soon as the transfer became permis-sible. At the iHstance of respondents l and 2, however, the company, by resolutio11, transferred the appellants' shares to the respondents. The appeliants gave notice to the re!!pondents that the shares under attachment of the Income-tax Department had been sold by the Collector and that the transfers \\'ere illegal a-itd void. The re5pondents contended that it \\-'as not ca'ie of transfer but oAe of tra11.smi!!5ion. l• petition u1J.der s. 155 of the Companies Act the appello1nts contended {hat the transfer v;·as in contravention of the mandatory provisions of s. 108 and that the sitares had been attached by the Collector under 0. 21, r. 46 C.P.C. si•:le Judge of the .High- Court held the transfer to- be illegal and '°•id. On appeal Division Bench held that the provisions of s. 108 v;ere directory a111d not mandatory and that the provisions of s. 64, C.P.C. and 0. 21, r. 46 prevailed over the prohibitory order contained in Form 18 in Appendix of Schedule I of the C.P.C., but that the attachment and appointment of Receiver. did -?Ot divest party of his right to his property.

Allo¥.-ia~ the appeal,

HELD: The provisions of s .. 108 of the Companies Act afe manJatory nnd the Hi:h Court erred in holding that they \Vere directory. [197BJ

(l)(a) The v.:ord5 .. shaII not register" are mandatory in character.· The mandatory character is strengthened by the negative form of the failguage "·hich is used to emphasise the insistence of compliance \\-'ith the provisions of the Act. Negative words are clearly prohibitory and are ordinarily used as le!;i!ll<1.tive device to make statutory provision imperative. (See State of Bi!iar v. Afalu1rajdhiraia Sir Katneslni-•ar Singh of Darb!ianga &: Ors. [1952] S.C.R. 889 at pp. 988-89; M. Pentiah & ors. v. ~!uddala Veeramallappa & Ors. [19611 2 S.C.R. 295 at p. 308 and Additional District ft.1agistrate, Jaba/91tr_ v. Shivakant Slwkl• [1976) Supp S.C.R. 172 followed. [l95D-EJ

(b) The tests for finding out when provision is ma!1datory or dir~ctory , are : the purpose for which the provision has been made, its nature, the mten-tion of the Je.gislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one V'.ay ·or the other. the relation of the particular provision to other provisions dealmg with the same subject and the language of the proviswn. Prohibition and nega-tive words can rarely be directory. Negative, prohibitory and exclusive words nre indicative of the legislative intent when the statute is mandatory.

[195F-G]

Raja Buland Sugar Co. Ltd. v. Municipal Board, Rampur [1965] 1 S.C.R. 970 and Seth Bik/m1j Jaipuria v. Union of India [1962] 2 S.C.R. 880 at pp. 893-94, followed.

(2) (a) In holding thats. 108 is directory and not mandatory for the reason that non-compliance with the section was not declared an offence, the High Court failed to consider the provisions of s. 629-A of the Act which prescribes penalty where ne> specific penalty is provided in the Act. It is question of construction iit each case whether the legislature intended to prohibit the doing of the act altogether or merely to make the person who did it liable to pay the penalty. [196BJ

(b) contract is void if prohibited by statute under penalty, even without express declaration that the contract is void, because such penalty implies prohibition. If contract is made to do prohibited act, that con-tract will be unenforceable. If contract is expressly or implied by prohibited by statute one has to see not what acts the statute prohibits but what contracts it prohibits. One is not concerned with the intent of the parties. [l 96C-E]

St. John Shipping Corporatio!l v. Joseph Rank [1957] l Q.B. 267, referred to.

(c) The maxim pactis priratomm publico juri non derogat11r means that private agreement cannot alter the general law. What is done in contraven-tion of the provisions of an Act of Legislature cannot be made the subject of action. [196FJ ·

Mellis v. Shirlay L.B. [1885] 16 Q.B.D. 446 referred to.

(cl) ln every case where statute inflicts penalty for doing an act, though the act be not prohibited, yet the thing is unlawful because it is not intended that statute would inflict penalty for lawful act. [196G]

( e) .If penalty is imposed by statute for preventing something being clone on some gropnd of public policy, the thing prohibited, if done, will be treated as void, even though the penalty imposed is not enforceable. [197 A]

In the present case in addition to tbe prohibition issued under 0. 21, r. 46, separate prohibitory order was issued to the company in Form 18 in Appendix ·E of the First Schedule of the C.P.C. Therefore, the company by registering the transfer of shares was obviously permitting the transfer and such action being in violation of the prohibition is contrary to law. [l97D]

(3) When the receiver held the scrips and the transfer forms. It was not open to the owners to exercise rights of ownership or to transfer their owner-ship to anyone else. [197F]

Civil Appedl Nos. 1805 to

C1v1L APPELLATE JURISDICTION : 1808 of 1968.

Aprea! from the Judgment and Decree date<l the 24th May, 1963 of the AllaJ1abad High Court in Special Appeals Nos. 108 to 111 of 1963.

R. S. Gae, (in CA. 1805/68) and I . .lohn. for the Appellants in :all the Appeals.

Ex parte, for Respondents in all the appeals.

19'.l SU?REJ\!E COURT REPORTS [1977] 2 s.c.R.

The Judgment of the Court was delivered by

. RAY, C.J.-These f~~r appeals by certificate raise two questions. Fmt, whether the pr?v1s1ons of sect10n. 108 of the Companies Act, 1956 are ma~datory m regard to transfer of shares. Second, can company havmg been served with notice of attachment of shares register transfer of shares in contravention of the on.Ier of attachment.

The appellant Mannalal Khetan and the respondents Kedar Nath Khetan and Durga Prasad Khetan are members be.longing to two branches of the Khetan Family. The respondent Lakshmi Devi Sugar Mills Private Ltd. is privat0 company. lt was incorporated on 7 April 1934 under the Indian Companies Act, 1913.

The Khetan family held shares in th..: respon;.;ent company and in two other companies Maheshwari Khetan Sugar Mills Private Ltd. and Ishwari Khetan Sugar Mills Private Ltd. The: shaes stood in the names of (1) M/s. Gancshnarayan Onkarnrn[ Khctan, (2) M/s. Sagarmal Hariram Khetan, ( 3) Sri. '.\fannalai Khetan and ( 4) Sri Radhakrishna Khetan.

The members of the Khetan family did partnership business at various places. Civil Suit No. 337 of 1948 was filed in the Bombay High Court for dissolution of the partnership and for taking the accounts. On 3 July 1953 the Official Receiver of the Bombay High Court was appointed Receiver of the properties of the partnership firms.

There were lar~e income tax arrears and other tax liabilities out-standing against the firms and individual partners. f'or the realisation of the income tax dues the Income Tax Department issued in 1950 notice under section 46(5) (a) of the Indian Income Tax Act, 1922 requiring the respondent company to pay any amount due to the firm of Ganesh Narayan Onkarmal or its partners to that department.

On 16 June, 1953 Receiver was appointed by the Collector of Bombay in execution of the tax recovery certificate issued by the Income Tax Officer S. VI Central Bombay. Sub;,equently under orders of the Bombay High Court the Rccchcr appointed by the Collector of Bombay took over papers of the di;;soived firm from the Receiver appointed by the Bombay High Court. The Receiver appointed by the Collector of Bombay also took. pm.session of shares standing in the names of M/s. Sagarmal Hariram Khetan, Sri Manna-lal Khetan and Sri Radhakrishna Khetan along with blank transfer deeds signed by them.

The Additional Collector of Bomba) issued to the Collector of Deoria two certificates under which on 8 March 1954 and 18131 October 1955 cer1h :·)1are3 of the respo' dent company belonging to the Khetans were attached under Order 2 1 Rule 46 of the Code of Civil Procedure. On 31 July, 1957 the members of the Khetan family entered into agreement among them for exchange of blocks of shares held by them in the respondent company and other companies in ~ettlement of Lheir differences and disputes. These agreements provided for

transfer of shares in the re'spondent company and in the Maheshwari Khetan·Sugar Mills Private Ltd. belonging to Sagannal Hariram and Ganesh Narayan Onkarnath groups to which the appellants belonged to the group of Kcdarnath Khetan to which respondents 1 and 2 belonged. These transfers were in lieu of shares in lshwari Khetan Sugar Mills Private Ltd. to be transferred by the group of respondents 1 and 2 to the group of the appellant. It is significant to notice that the agreements recited that the shares in the respondent company were under attachment of the Income Tax authorities, and, therefore, they could not be immediately transferred. The agreement was that as soon as the transfer of the shares became permissible or if the Income Tax authorities so permitted, transfers as agreed and contem-plated would be effective. On 8 April, 1958 and 3 October, 1959 the Board of Directors of the respondent company passed resolution for transfer of the shares belongi!lg to the appellant group to the group of respondents No. 1 and 2. These resolutions were passed on the applications made on behalf of respondents No. 1 and 2 and others of their group. The shares were thereafter entered in the respondent company's register in the names of respondents No. 1 and 2 and others of their group. On 14 January, 1962 the appellant along with Kamla Prasad Khetan and Mataden Khetan gave notice to respondent No. 1 and Durga Prasad Khetan that the shares of the Ishwari Khetan Sugar Mills Private Ltd. which were under attachment of the Income Tax authorities had been sold by the Additional Collector of Bombay on 23 September, 1961. The notice stated that the agreements had become impossible of performance and the consideration of reciprocal promises disappeared. The notice further stated that the powers of attorney executed in favour of th~ respondent company by h: appel-lant in respect of their shares in the Maheshwari Khetan Sugar Mills Private Ltd. and Laxmi Devi Sugar Mills Private Ltd. were revoked and cancelled. The notice concluded by saying that the respondents had no right, authprity, or power to act on behalf of or in the name of the appellants in pursuance of the said power of attorney.

By another notice dated 14 January, 1962 the appellants informed the respondent company that the transfer of shares in the company's register had been made illegally and without authority because no proper instruments of transfer duly stamped and executed by and/ or on behalf of the appellants were delivered to the re'spondent company and that the shares were under attachment by the Collector of Deoria for recovery of income tax arrears on the certificate issued by the Additional Collector of Bombay. The notice to the respondent com-pany also said that certain shares in blank transfer forms were in possession of the Receiver appointed by the Additional Collector of Bombay in the income tax recovery proceedings. The notice concluded by 'stating that the respondent company was informed that the alleged transfer of shares from the names of the appellants as well as the deletion of their names from the registelf was illegal and void.

Respondent No. 1 and Durga Prasad Khetan contended in answer to the notice that the appellant had no right, title or interest in the 14-1458SCI/76

shares mentioned in the notice, that the shares had not been trans-ferred but had been transmitted subject to the orders of the Income Tax authorities under section 46(5) (a) of the Income Tax Act, and that the ?~ares of the lshwari Khetan Sugar Mills !--td. were sold by the Add1t10nal Collector of Bombay in recovery of the income tax arrears in spite of the protests lodged by the respondent and that the power of attorney in respect of the shares could not be cancelled by the appellant. The respondents denied that the transfer:; were illei;al and without authority.In this background the appellant on 17 July, 1962 filed petition in the High Court of Allahabad under section 155 of the Companies Act 1956 referred to as the Act against the respondents. The appel-lant contended first that the transfers of all the shares in the respondent company's register were illegal because the transfers were without any proper instrument of transfer. The appellant also contended that the transfers were in contravention of the mandatory provisions of section 108 of the Act and articles of the respondent company. The second contention of the appellant was that no legal transfer of the shares in question should have been made because at the time of the alleged transfer the shares had been surrendered along with blank transfer forms to the Receiver appointed by the Collector of Bombay in execu-tion proceedings for recovery of the income tax due~.. The appellant also alleged that other shares had been attached by the Collector of Deoria in pursuance of the two certificates issued by the Collector of Bombay under Order 21 Rule 46 of the Code of Civil Procedure. The learned Single Judge directed the respondent company to rectify the register of its members by removing the names of respon-E dents No. 1 and 2 and to restore the names of the original share holders. The learned Single Judge rejected the contention of the res-pondents that it was case of transmission of shares. The learned Judge said that the transmission of shares occurred only by operation of law and this was case of transfer by voluntary act of the parties which could not amount to transmission. The learned Judge also held that although the transferees divested themselves of all powers and control in respect of the shares in question by executing irrevocable powers of attorney in favour of the transferees, mere transfer of control did not amount to transfer of possession. The learned Judge further held that the agreements to which reference has already been made were not instruments of transfer and the transfer of shares which were under attachment in pursuance of the certificate issued by t~e Addi-tional Collector under Order 21 Rule 46 0£ the Code of Civil Proce-G dure was illegal and void. The transfer of the shares which had been surrendered to the Receiver appointed by the Collector of Bombay was also held by the learned Judge to be bad on the same ground.

The respondents preferred an appeal. The Division Bench of the High Court set aside the order passed by the Co!11.P~ny Judge and dismissed the applications of the appellant. The D1v1s1on Ben~h held that the provisions contained in section 108 of the Act were dir~c~ory and not mandatory. The Division Bench also held that the prov1S1ons of section 64 of the Code ofCivil Procedure and Order 21 Rule 46

prevailed over the prohibitory order contained in Form 18 in Appen-dix of Schedule l of the Code. The Division Bench held that the appointment of the Receiver did not divest party of his right to property and the mere fact that shares were handed over to the Receiver with blank instruments of transfer did not make any difference.

The provision contained in section 108 of the Act states that "a company shall not register transfer of shares ...... unless proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee. . . . . . . . has been delivered to the company along with the certificate relating to the shares or debentures ........ or if no such certifical~ is in existence along with the letter of allotment of the shares". There are two provisos to section 108 of_ the Act. We are not concerned with the first proviso in these appeals. The second proviso states that nothing in this ~ec­tion shall prejudice any power of the company to register as share-holder or debenture holder any person to whom the right to any shares in, or debentures of, the company has been transmitted by operation of law. The words "shall not register" are mandatory in character. The mandatory character is strengthened by the negative form of the language. The prohibition against transfer without complying with the provisions of the Act is emphasised by the negative language. Nega-tive language is worded to emphasi·se the insistence of compliance with the provisions of the Act. (See State of Bihar v. Maharajadhiraj Sir Kameshwar Singh of Dcvbhanga & Ors. C), M. Pentiah & Ors. v. Mudriala Veeramallappa & Ors. ([2]) and Additional District Ma<Jistrate, Jabalpur v. Shivakant Shukla([3]). Negative words are clearly prohi-bitory and are ordinarily used as legislative device to make statu-tory provision imperative.

In Raza Buland Sugar Co. Ltd. v. Municipal Board Rampur('l) this Court referred to various tests for finding out wheR provision is mandatory or directory. The purpose for which the provision has been made, its nature, the intention of the legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the rela-tion of the particular provi'sion to other provisions dealing with the same subject and the language of the provision are all to be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is COOlpletely to refrain from doing the forbidden act. Therefore, nega-tive, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. (See Maxwell on Interpreta-tion of Statutes 11th Ed. p. 362 seq.; Crawford Statutory Construction, Interpretation of Laws p. 523 and Seth Bikhmj Jaipuria v. Union of lndia([5]).

(1) [!952] S.C.R. 889, 988-89.

(2) [1961] 2 S.C.R. 295, 308.

(3) [1976] Supp. S.C.R. 172.

(4) [1965] 1 S.C.R. 970.

(5) [1962] 2 S.C.R. 880, 893-94.

The High Court said that the provisions contained in section 108 of the Act are directory because non-compliance with section 108 of the Ac_t is not declared an offence. The reason given by ihe High Court 1s that when the law does not prescribe the consequi;:nces or does not lay down penalty for non-compliance with the provision contained in secti?n 108 of th~ Act the provision is to be considered as directory. The High Court failed to consider the prov'ision contained in section 629(A) of the Act. Section 629(A) of the Act prescribes the penalty where no specifi_c penalty is provided elsewhere in the Act. It is question of construction in eac,h case whether the legislature intended to prohibit the doing of the act altogethor, or namely to make the person who did it liab'.e to pay the penally. Where contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley('). contract i1s void if proh.bikd by srJ,ute under penalty, even without express declaration that the contract is void, because such penalty implies prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract_ or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prrhi-bited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits contract; if contract i's made to do prohibited act, that contract will be unenforceable. In the latter class, one has to consider not What ac! the statute prohibi's, bu what contracts it prohibits. One is not concerned at all with the intent of the parties, if the parties enter into prohibited contract, that contract is unenforceable. (See St. John Shipping Corporarion v. Joseph Rank([2]). See also Halsbury's Laws of England Third Edition Vol. 8, p. 141). It i's well established that contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim pac.~is privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis v. Shirley L.B.) (Supra). ·What is done in contravention of the provisions of an Act of the Legislature cannot be made the subject of an action.

If anythlng is against law though it is not prohibited in the statute but only penalty is annexed the agreement is void. In every case where statute inflicts penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that statute would inflict penalty for lawful act.

Penalties are impo·sed by statute for two distinct purposes ( 1) for the protection of the public against fraJ:Jd, or for some other object of public policy; (2) for the purpose of securing certain sources of

(2) [1957] I Q.B. 267.

(I) L.R. (18~') 16 Q.B.D. 446.

revenue either to the state or to certain public bodies. If it is. clear that penalty is imposed by statute for the purp~se of. preventm~ some-thing from being done on some ground of public po!Icy, the thmg pro-hibited, if done, will be treated as void, even though the penalty imposed is not enforceable.

The provisions contained in section 1 O~· of the Act a~e for ~he reason indicated earlier mandatory. The High Court erred rn holdmg that the provisions are directly.

Some of the shares were attached by the Collector of Deoria pur-suant to two certificates isisued by the• Collector of Bombay. Other share's were surrendered along with blank transfer forms to the Receiver appointed by the Collector of Bombay in execution proceed-ings. Order 21 Rule 46 of the Code of Civil Procedure lays down that in the case of shares in the capital of corporation the attachment shall be made by written order prohibiting in the case of the share, the person in whose name the share may be 'standing from transferring the same. In the present case, in addition to the prohibition issued under Order 21 Rule 46 separate prohibitory order was issued to the company in Form No. 18 in Appendix of the First Schedule of the Code of Civil Procedure. Therefore, the company by registering the transfer of ·shares was obviously permitting the transfer and such action on the part of the company being in violation of the prohibition is contrary to law.

Shares which had not been attached but had been surrendered to the Receiver appointed by the Collector of Bombay came from the possession of the Receiyer in the partnership suit. The Receiver in the partnership suit took possession of the 'shares along with blank transfer forms in the year 1953. When the Receiver held the scrips and the transfer forms it was not open to the persons in whose names the shares originally stood to exercise rights of ownership in respect thereof or to transfer their ownership to anyone else.

For the fore<=!oing rea·sons we set aside the decision of the High Court. The order of the learned Single Judge dated 5 March, 1963 is restored. There will be no order as to cost's.

Appeal allowed.