{"id":185165,"date":"2010-07-08T00:00:00","date_gmt":"2010-07-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/cochin-stock-exchange-ltd-vs-p-p-zibi-jose-on-8-july-2010"},"modified":"2014-01-14T02:45:22","modified_gmt":"2014-01-13T21:15:22","slug":"cochin-stock-exchange-ltd-vs-p-p-zibi-jose-on-8-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/cochin-stock-exchange-ltd-vs-p-p-zibi-jose-on-8-july-2010","title":{"rendered":"Cochin Stock Exchange Ltd vs P.P.Zibi Jose on 8 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Cochin Stock Exchange Ltd vs P.P.Zibi Jose on 8 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 884 of 1996()\n\n\n\n1. COCHIN STOCK EXCHANGE LTD.\n                      ...  Petitioner\n\n                        Vs\n\n1. P.P.ZIBI JOSE\n                       ...       Respondent\n\n                For Petitioner  :SRI.KOSHY GEORGE\n\n                For Respondent  :SRI.C.T.JOSEPH\n\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :08\/07\/2010\n\n O R D E R\n                      HARUN-UL-RASHID,J.\n              ------------------------------\n                      S.A.NO.884 OF 1996\n              -------------------------------\n              DATED THIS THE 7TH DAY OF JULY, 2010\n\n                            JUDGMENT\n<\/pre>\n
                 Defendant in O.S.No.1555\/88 on the file of the<\/p>\n
Principal Munsiff’s Court, Ernakulam is the appellant.        The<\/p>\n
plaintiff in the suit is a member of the defendant-Cochin Stock<\/p>\n
Exchange. The suit was originally filed for a declaration that<\/p>\n
Clause     312 of     Ext.A1   bye-law and regulations of the<\/p>\n
defendant-stock exchange is illegal, ultra vires and void and for a<\/p>\n
declaration that Ext.A16 notice dated 23\/12\/1987 issued by the<\/p>\n
defendant declaring the plaintiff as a defaulter is illegal, ultra<\/p>\n
vires and void and for a mandatory injunction for restoration of<\/p>\n
plaintiff’s right as a member of the defendant-stock exchange.<\/p>\n
The prayer in the suit was substituted by an amendment of the<\/p>\n
plaint. The amended plaint is for declaration that the notice<\/p>\n
dated 23\/12\/1987 is illegal, ultra vires and for mandatory<\/p>\n
injunction for restoration of the plaintiff’s right as a member of<\/p>\n
                                     -2-<\/span>
\nS.A.884\/1996<\/p>\n
the defendant stock exchange. The trial court held that the<\/p>\n
plaintiff is not entitled to get any relief and dismissed the suit.<\/p>\n
The Lower Appellate Court allowed the appeal and decreed<\/p>\n
the suit as prayed for. The parties are hereinafter referred to as<\/p>\n
the plaintiff and defendant as arrayed in the suit.<\/p>\n
                   2. The defendant in the suit is the Cochin<\/p>\n
Stock Exchange Ltd., represented by its President.            The<\/p>\n
plaintiff, who was a member of the defendant, was engaged in<\/p>\n
the business as a share and stock broker in the name and style<\/p>\n
P.P.Zibi Jose and Company.           For the administration and<\/p>\n
control of the affairs of the defendant-stock exchange, bye-<\/p>\n
laws and regulations are framed by the defendant in 1978.<\/p>\n
Ext.A1 is the copy of the bye-law and Ext.A2 is the copy of<\/p>\n
the memorandum of articles of association.<\/p>\n
                 3. Regulation 312 of Ext.A1 bye-law provides<\/p>\n
for declaring a member of the defendant as defaulter by the<\/p>\n
direction of the Council of Management in any of the<\/p>\n
circumstances mentioned therein.         Any member, who shall<\/p>\n
                                  -3-<\/span>
\nS.A.884\/1996<\/p>\n
cease to be a member, may be re-admitted by the Council of<\/p>\n
Management of the defendant as per Article 52 of Ext.A2<\/p>\n
Articles of Association. In the plaint it is averred that the<\/p>\n
plaintiff is entitled to do the business of share broker on the<\/p>\n
floor of the defendant. According to the plaintiff, in August<\/p>\n
1987 he had sold certain shares to M\/s.Joseph & Thomas. The<\/p>\n
amount due from the said firm to the plaintiff is Rs.25,400\/-,<\/p>\n
that the plaintiff had also purchased certain shares from the<\/p>\n
said firm and that after adjusting the amounts, a sum of<\/p>\n
Rs.19,300\/- is due from the said firm to the plaintiff. It is also<\/p>\n
averred that likewise the plaintiff had entered into certain<\/p>\n
transactions with M\/s.Joy Thomas & Co. and Kolenchery &<\/p>\n
Co. Another sum of Rs.4,600\/- is due to the plaintiff from the<\/p>\n
defendant in settlement No.1 under the new settlement<\/p>\n
programme and therefore the Stock Exchange is bound to<\/p>\n
recover from the aforesaid persons the amounts due to the<\/p>\n
plaintiff and pay the same to him. It is averred that to the<\/p>\n
knowledge of the plaintiff neither the Council of Management<\/p>\n
                                   -4-<\/span>
\nS.A.884\/1996<\/p>\n
nor the President has decided to extent the time for delivery of<\/p>\n
the shares and that it appears that there was an auction<\/p>\n
arranged by the defendant for the disposal of certain shares. It<\/p>\n
is further averred that the defendant informed the plaintiff that<\/p>\n
he has to take delivery of shares worth Rs.27,003\/- and called<\/p>\n
upon him to do the needful on or before 14\/12\/1987 and that in<\/p>\n
case of failure to comply with the said direction, disciplinary<\/p>\n
action will be taken. The plaintiff by letter dated 11\/12\/1987<\/p>\n
requested the defendant to furnish details of shares to be taken<\/p>\n
delivery by him but the defendant did not furnish the details<\/p>\n
as requested by the plaintiff. By notice dated 23\/12\/1987 the<\/p>\n
defendant informed the plaintiff that he had been declared as a<\/p>\n
defaulter with effect from 21\/12\/1987.       The notice      dated<\/p>\n
23\/12\/1987 marked as Ext.A16 does not disclose the reasons<\/p>\n
for invoking Regulation 312 and he was not given an<\/p>\n
opportunity to explain as to why he should not be declared as a<\/p>\n
defaulter. For these reasons it is alleged that the action of the<\/p>\n
defendant is in violation of the principles of natural justice and<\/p>\n
                                  -5-<\/span>
\nS.A.884\/1996<\/p>\n
is influenced by extraneous considerations.        The plaintiff<\/p>\n
prayed for declaratory decree that Ext.A16 notice is illegal,<\/p>\n
ultra-vires and void and also prayed for consequential<\/p>\n
injunction directing the defendant to restore the right of the<\/p>\n
plaintiff as a member of the defendant-stock exchange.<\/p>\n
                4. The defendant filed a detailed written<\/p>\n
statement denying the averments in the plaint and prayed for<\/p>\n
dismissal of the suit. According to the defendant, the plaintiff<\/p>\n
as a member of the Cochin Stock Exchange failed to discharge<\/p>\n
his obligations as enjoined under Ext.A1 bye-law, Ext.A2<\/p>\n
Memorandum of Articles of Association, circulars and<\/p>\n
instructions issued from time to time, that he has violated the<\/p>\n
bye-law and regulations repeatedly during the course of his<\/p>\n
business, that he repeatedly failed to settle the dues on the due<\/p>\n
dates as per the settlement programme and that by circular<\/p>\n
dated 28\/9\/1987     all the members were requested to give<\/p>\n
statement regarding the deliveries pending to be effected for<\/p>\n
settlement No.1 before 2 p.m. on 29\/9\/1987, but the plaintiff<\/p>\n
                                   -6-<\/span>
\nS.A.884\/1996<\/p>\n
failed to give the statement as required. It is also averred in<\/p>\n
the written statement that in the light of the direction issued by<\/p>\n
this Court in O.P.No.7225\/87 all the members are required to<\/p>\n
furnish details of transactions done with P.K. Joy, who is also<\/p>\n
a member of the Stock Exchange.           It is averred that the<\/p>\n
plaintiff did not care to do so as required. The defendant<\/p>\n
contended that the plaintiff deliberately concealed his dealings<\/p>\n
with the said Joy outside the floors of the exchange which are<\/p>\n
specifically prohibited under the Securities Contracts Act. It is<\/p>\n
further stated in the written statement that the plaintiff was<\/p>\n
also conducting business in several names contrary to the<\/p>\n
permission granted to him,          he has concealed several<\/p>\n
transactions from the defendant, he failed to make payment<\/p>\n
due from his settlement No.2 etc. Besides this, it is alleged<\/p>\n
that the plaintiff failed to comply with the directions issued by<\/p>\n
the Cochin Stock Exchange to furnish statements of accounts<\/p>\n
of his business in relation to several other transactions. The<\/p>\n
defendant also narrated several other instances in the written<\/p>\n
                                    -7-<\/span>
\nS.A.884\/1996<\/p>\n
statement which would point out the violation of the<\/p>\n
provisions of the bye-law, memorandum of articles of<\/p>\n
association, circulars and directions issued to the plaintiff. It is<\/p>\n
stated that in the circumstances, the Council of Management,<\/p>\n
after considering all the aspects in detail in its meeting held on<\/p>\n
21\/12\/1987, had declared the plaintiff as a defaulter by<\/p>\n
invoking the powers conferred on it vide Article 149 and bye-<\/p>\n
law 312 and thereupon the plaintiff ceased to be a member of<\/p>\n
the exchange with effect from the said date. Ext.A16 is the<\/p>\n
notice issued to the plaintiff informing him that he has been<\/p>\n
declared as a defaulter with effect from December, 21, 1987<\/p>\n
and hence he ceases to be a member of the exchange from the<\/p>\n
said date. Ext.A16 notice dated 23\/12\/1987 was issued based<\/p>\n
on Ext.A17 proceedings of the Cochin Stock Exchange. In<\/p>\n
Ext.A17 proceedings after declaring the plaintiff as a defaulter<\/p>\n
on his failure to fulfil and discharge the engagements,<\/p>\n
obligations and liabilities to the exchange and its members, the<\/p>\n
Council of Management further informed the plaintiff that he<\/p>\n
                                   -8-<\/span>
\nS.A.884\/1996<\/p>\n
is at liberty to apply for re-admission as a member, as per<\/p>\n
Articles 47 to 54 of Ext.A2 Memorandum of Articles of<\/p>\n
Association.\n<\/p>\n
                5. The reasons stated for declaring the plaintiff<\/p>\n
as a defaulter is explained in detail in Ext.A17 dated<\/p>\n
21\/12\/1987. The sum and substance of the reasons are as<\/p>\n
follows:\n<\/p>\n
            i) Failure to make payment for settlement
\n    Nos.1 and 2, though notice was issued calling upon
\n    the plaintiff to make payment. It is stated that that the
\n    payment was made belatedly.             The defendant
\n    informed the plaintiff that failure to make payments in
\n    time for settlement Nos.1 and 2 is a deliberate and
\n    mala fide acts calculated attempt to disrupt and
\n    defame the functions of the Stock Exchange and its
\n    members and to create inconvenience to public with
\n    the intention of undermining their confidence in the
\n    exchange.\n<\/p><\/blockquote>\n
          ii) Failure to inform the stock exchange regarding
\n    the deliveries pending to be effected for settlement No.1
\n    which the plaintiff is required to be maintained as a
\n    member as per the mandatory requirements under SCR
\n    Act, Rules and By-laws.<\/p><\/blockquote>\n
           iii) The stock exchange by letter dated 8th
\n     October, 1987 informed the plaintiff to furnish<\/p>\n
                                   -9-<\/span>
\nS.A.884\/1996<\/p>\n
     details of the illegal clandestine transactions done
\n     with Sri T.K. Joy. It is stated in paragraph 3 of
\n     Ext.A17 that the plaintiff failed to furnish the details
\n     as required, even though the failure to furnish the
\n     details required in the communication dated 8th
\n     October, 1987 has brought the exchange to a virtual
\n     crisis. It is also stated in the proceedings that the
\n     plaintiff has deliberately concealed the transaction
\n     with T.K.Joy in his daily returns with the exchange.
\n     The plaintiff purposefully failed to co-operate with
\n     the exchange, though he has been asked to reveal the
\n     transaction with T.K. Joy.\n<\/p>\n
           iv) It is further pointed out in Ext.A17 that the
\n     plaintiff was permitted by the exchange to carry out
\n     his securities business only in the name of P.P. Zibi
\n     Jose & Co. But it is found that the plaintiff was
\n     operating his business illegally through various
\n     dummy firms. It is also stated that those transactions
\n     were deliberately concealed from the exchange
\n     authorities.\n<\/p>\n
           v) The plaintiff failed to furnish to the stock
\n     exchange the statements of accounts of his business
\n     with M\/s.Kolenchery & Co, M\/s.Joy Mathew & Co.
\n     and M\/s.Joseph and Thomas.          It is said that the
\n     details are necessary in order to know the
\n     genuineness of the plaintiff’s claim stated in the
\n     letter dated 15th October, 1987. He also failed to
\n     furnish details of transaction of settlement No.1. It
\n     is stated that the failure to furnish the details is not
\n     expected from a disciplined member and the action
\n     of the plaintiff is deliberately intended to harm the
\n     exchange and its members.\n<\/p>\n
                                   -10-<\/span>
\nS.A.884\/1996<\/p>\n
     vi) The plaintiff failed to settle the disputes that had
\n     arisen between him and Mr. and Mrs.C.S.\n<\/p>\n
     Chandran, though requested by the stock exchange
\n     in its letter dated 9\/12\/1987. The letter was issued
\n     based on the complaint received from M\/s.Choksey
\n     Bhargava & Co., Calcutta.\n<\/p>\n
     vii) The plaintiff has made a newspaper statement
\n     against the members of the exchange, the authorities
\n     of the exchange and also against the exchange to
\n     give the impression that its members are in financial
\n     crisis. It is said that the attempt is to discredit the
\n     exchange and its administrators before investing
\n     public is an act unbecoming of a member.\n<\/p>\n
     viii) It is also stated that the plaintiff failed to make
\n     payments to various members of the exchange.
\n     Plaintiff was informed that some of the cheques
\n     issued by him to certain members have been
\n     dishonoured.\n<\/p>\n
     ix) The plaintiff failed to deliver the shares sold by
\n     him and refused to accept shares brought by him in
\n     respect of settlement in 6A and other transactions,
\n     even though statements were given to the plaintiff
\n     from the exchange.\n<\/p>\n
     x) The exchange issued a letter dated 11\/12\/1987
\n     calling upon the plaintiff to remit the exchange a
\n     sum of Rs.27,003\/- being the amount due from him
\n     in respect of settlement No.6A.\n<\/p>\n<\/p>\n
          6. It is stated in Ext.A17 that the defendant was<\/p>\n
                                   -11-<\/span>
\nS.A.884\/1996<\/p>\n
constrained to declare the plaintiff      as a defaulter on his<\/p>\n
failure to fulfil and discharge his engagements, obligations and<\/p>\n
liabilities to the exchange and its members. Ext.A17<\/p>\n
proceedings also would go to show that the Cochin Stock<\/p>\n
Exchange issued notices on various occasions to the plaintiff<\/p>\n
calling upon him to furnish details of transactions of<\/p>\n
settlement Nos.1 and 2 and directing to remit to the exchange<\/p>\n
the amounts due from him in respect of settlement No.6A.<\/p>\n
            7. The plaintiff as a member is governed by the bye-<\/p>\n
law and memorandum of articles of association formulated for<\/p>\n
the administrative purposes. Plaintiff contended that he was<\/p>\n
declared as a defaulter by the stock exchange by violating the<\/p>\n
Rules and Regulations, that the action of the stock exchange is<\/p>\n
not done in good faith and that the procedure adopted by the<\/p>\n
defendant in declaring the plaintiff as a defaulter is violative of<\/p>\n
the principles of natural justice. These questions raised by the<\/p>\n
plaintiff were considered by the trial court in detail.<\/p>\n
            8. Ext.A16 is the decision of the stock exchange<\/p>\n
                                    -12-<\/span>
\nS.A.884\/1996<\/p>\n
based on Ext.A17 proceedings. By Ext.A16 notice the plaintiff<\/p>\n
was informed that he has been declared as a defaulter with<\/p>\n
effect from 21\/12\/1987. The reasons for declaring him as a<\/p>\n
defaulter are elaborately explained in Ext.A17 proceedings. A<\/p>\n
combined reading of Ext.A16 and Ext.A17 would disclose the<\/p>\n
reasons for declaring the plaintiff as a defaulter.<\/p>\n
                   9. The relevant portion of Regulation 312 of<\/p>\n
Ext.A1 bye-law is extracted below:\n<\/p>\n
                 “A member shall be declared a defaulter by<\/p>\n
    direction of the Council of Management or the President<\/p>\n
    or in the absence of the president by direction of any two<\/p>\n
    members of the Council of Management–<\/p>\n<\/blockquote>\n
    (i)   if he is unable to fulfil his engagements.”<\/p>\n<\/blockquote>\n
            10. The reasons for the action taken set out in<\/p>\n
Ext.A17    proceedings     are    extracted   in  the preceding<\/p>\n
paragraphs.    After declaring the plaintiff as a defaulter in<\/p>\n
Ext.A17 proceedings, the defendant informed the plaintiff that<\/p>\n
he is at liberty to apply for re-admission as a member as per<\/p>\n
                                   -13-<\/span>
\nS.A.884\/1996<\/p>\n
Articles 47 to 54 of the exchange. Ext.A17 proceedings and<\/p>\n
Ext.A16 notice were issued in pursuance of a resolution of the<\/p>\n
Council of Management. Ext.B3 is the minutes of the meeting.<\/p>\n<\/blockquote>\n
The trial court, after perusing Ext.B3 minutes, found that the<\/p>\n
Council of Management had a detailed discussion on the<\/p>\n
subject and perused all the relevant correspondence and<\/p>\n
records and satisfied that in the interest of the Exchange the<\/p>\n
plaintiff should be declared as a defaulter.<\/p>\n
            11. In pursuance of the resolution referred above,<\/p>\n
Ext.A17 was drawn and served on the plaintiff. Both parties<\/p>\n
admitted that Regulation 312 deals with the situation regarding<\/p>\n
declaration on the basis of default. It is the case of the plaintiff<\/p>\n
that Regulations 168 to 190 of Ext.A1 are applicable to such a<\/p>\n
situation and it is not proper for the defendant to invoke<\/p>\n
Regulation 312 of Ext.A1. The defendant contended that they<\/p>\n
were constrained to declare the plaintiff as a defaulter not due<\/p>\n
to the single transaction concerning the settlement No.6A, but<\/p>\n
also due to the failure of the plaintiff to fulfil the obligations to<\/p>\n
                                  -14-<\/span>
\nS.A.884\/1996<\/p>\n
the defendant, being a member. Regulation 312 deals with<\/p>\n
exclusively the situation regarding the declaration on the basis<\/p>\n
of default. In the facts and circumstances, it is not correct to<\/p>\n
say that Regulations 168 to 190 of Ext.A1 are applicable.<\/p>\n
Exts.A16 and A17 would help to draw the answer as to what<\/p>\n
permitted the stock exchange to declare the plaintiff as<\/p>\n
defaulter. Several reasons are stated in Ext.A17 for taking<\/p>\n
action against the plaintiff under Regulation 312. It is not<\/p>\n
disputed before this Court that Stock Exchange was the<\/p>\n
authority to invoke Regulation No.312. According to the<\/p>\n
plaintiff, instead of invoking Regulation No.312 the Stock<\/p>\n
Exchange ought to have resorted to Regulations 168 to 190.<\/p>\n
            12. From Ext.A17 and related documents, this Court<\/p>\n
is convinced that there are sufficient reasons for the stock<\/p>\n
exchange to resort Regulation 312 of Ext.A1 and to declare the<\/p>\n
plaintiff as a defaulter. The declaration was made not based on<\/p>\n
a single transaction concerning settlement No.6A; but due to<\/p>\n
failure of the plaintiff to discharge     the obligations to the<\/p>\n
                                    -15-<\/span>
\nS.A.884\/1996<\/p>\n
defendant, being a member under series of transactions. The<\/p>\n
evidence adduced by the parties also would show that the<\/p>\n
declaration was done, as the plaintiff was unable to fulfil his<\/p>\n
engagements or obligations to the defendant and its members.<\/p>\n
Ext.A17, Ext.B3 and other related documents revealed that the<\/p>\n
plaintiff failed to fulfil his engagements. It has also come out<\/p>\n
in evidence that the plaintiff was not prompt in making<\/p>\n
payments to the defendant and the defendant was constrained<\/p>\n
to issue notices on several occasions to get money from him.<\/p>\n
The action of the defendant in issuing notices is an indication<\/p>\n
to the plaintiff’s failure to fulfil his engagements in due time.<\/p>\n
Ext.A17 proceedings referred to some other notices issued<\/p>\n
other than Ext.A14 notice to the plaintiff calling upon him to<\/p>\n
fulfil his obligations and engagements.\n<\/p>\n
            13. The trial court has considered the questions in<\/p>\n
detail and observed that the plaintiff has got obligation to the<\/p>\n
defendant and he has no right to make news publication<\/p>\n
which would affect the reputation of the defendant adversely.<\/p>\n
                                  -16-<\/span>
\nS.A.884\/1996<\/p>\n
The court below made such an observation finding that some<\/p>\n
news affecting the reputation of the Stock Exchange            had<\/p>\n
appeared in the newspaper because of the information passed<\/p>\n
on by the plaintiff to the press. The trial court further held that<\/p>\n
it is clear from the evidence on record that the Stock Exchange<\/p>\n
passed proceedings in good faith and declared the plaintiff as a<\/p>\n
defaulter.\n<\/p>\n
             14. The learned counsel for the Stock Exchange<\/p>\n
submitted that in view of the peculiar nature of business carried<\/p>\n
on in the floor of the Stock Exchange and the nature of its<\/p>\n
functions, it is not practical to issue notices calling upon the<\/p>\n
party to appear for hearing and a full-fledged hearing cannot be<\/p>\n
conducted. According to the learned counsel, decisions were<\/p>\n
taken after deliberations in the Council of Management and<\/p>\n
before taking decisions, and sufficient opportunities were<\/p>\n
given to the plaintiff to comply with the directions of the Stock<\/p>\n
Exchange. He also submitted that due to the peculiar nature of<\/p>\n
the business in the Stock Exchange the payments and<\/p>\n
                                  -17-<\/span>
\nS.A.884\/1996<\/p>\n
obligations of the members have to be complied with as per<\/p>\n
the provisions of the bye-law and the Memorandum of Articles<\/p>\n
of Association. From Ext.A17 it is clear that the plaintiff was<\/p>\n
given sufficient opportunity to comply with the directions<\/p>\n
which the plaintiff was bound to comply. Ext.A17 shows that<\/p>\n
the defendant informed that the plaintiff is at liberty to apply<\/p>\n
for re-admission as a member and that          proceedings were<\/p>\n
initiated by the defendant in good faith for the proper<\/p>\n
administration of the defendant-Stock Exchange. Specific<\/p>\n
instances of granting opportunities to the plaintiff to discharge<\/p>\n
the obligations under Exts.A1 and A2 are set out in Ext.A17.<\/p>\n
In point No.7 of Ext.A17 it is stated that the Stock Exchange<\/p>\n
had requested the plaintiff to settle the disputes that had arisen<\/p>\n
between the plaintiff and Mr. and Mrs. C.S. Chandran. The<\/p>\n
request was made vide letter dated 9\/12\/1987 on a complaint<\/p>\n
received from M\/s.Choksey Bhargava & Co., Calcutta.             In<\/p>\n
point No.3 there is a reference to the letter dated 8th October,<\/p>\n
1987 issued by the Stock Exchange directing the plaintiff to<\/p>\n
                                   -18-<\/span>
\nS.A.884\/1996<\/p>\n
furnish details of the illegal clandestine transactions done with<\/p>\n
Mr. T.K. Joy. In point No.1 there is reference to the notices<\/p>\n
dated September 23, 1987 and October 10, 1987 calling upon<\/p>\n
the plaintiff to make payment stating that he has deliberately<\/p>\n
failed to make payment for settlement No.1. Again in point<\/p>\n
No.6 there is also a reference to the letter dated September 28,<\/p>\n
1987 by which the plaintiff was called upon to furnish details<\/p>\n
of transactions for settlement No.1 and letter dated November<\/p>\n
16, 1987 requesting him to deliver all the pending deliveries on<\/p>\n
November 20, 1987. In point No.11 there is a further reference<\/p>\n
to the letter dated October 17, 1987 calling upon the plaintiff to<\/p>\n
furnish statements of accounts with the following members,<\/p>\n
namely, M\/s.Kolenchery & Co., M\/s.Joy Mathew & Co. and<\/p>\n
M\/s.Joseph & Thomas.\n<\/p>\n
            15. The Lower Appellate Court mainly for two<\/p>\n
reasons reversed the findings of the trial court. The learned<\/p>\n
Judge held that the proceedings are not in accordance with the<\/p>\n
bye-law and articles of association, that it offends the<\/p>\n
                                  -19-<\/span>
\nS.A.884\/1996<\/p>\n
principles of natural justice and that the proceedings were<\/p>\n
taken not in good faith. The learned District Judge observed<\/p>\n
that the only notice which was sent to the plaintiff by the<\/p>\n
defendant-Stock Exchange before the plaintiff was declared as<\/p>\n
a defaulter, is Ext.A14 dated 11\/12\/1987. In paragraph 14 I<\/p>\n
have referred to various notices issued to the plaintiff which<\/p>\n
are mentioned in Ext.A17 proceedings.        The learned Judge<\/p>\n
proceeded on the basis that the Stock Exchange issued only<\/p>\n
one notice i.e. Ext.A14 dated 11\/12\/1987 which relates to only<\/p>\n
one engagement. The learned Judge was wrong in holding so.<\/p>\n
The learned judge failed to take note of the fact that several<\/p>\n
communications were issued calling upon him to discharge the<\/p>\n
obligations and duties which I have referred in paragraph 5. a<\/p>\n
Therefore, the finding of the learned Judge that 10 out of 11<\/p>\n
reasons to support the action taken by the defendant-Stock<\/p>\n
Exchange were communicated to the plaintiff, only after the<\/p>\n
resolution to declare the plaintiff as a defaulter was passed by<\/p>\n
the Council of Management, is factually wrong.      The learned<\/p>\n
                                   -20-<\/span>
\nS.A.884\/1996<\/p>\n
Judge held that in the face of the evidence it cannot be said that<\/p>\n
as per Ext.A14 notice a well-defined ground was conveyed to<\/p>\n
the plaintiff so as to justify the action under Regulation 312(i)<\/p>\n
of Ext.A1 bye-law. The learned Judge also held that even<\/p>\n
assuming that the ground mentioned in Ext.A14 has been<\/p>\n
substantiated on the admission of DW1 himself it involves<\/p>\n
only one act of default and cannot constitute a ground under<\/p>\n
Clause (i) of bye-law 312 which contemplates plurality of<\/p>\n
default. The learned Judge found that Ext.A14 involves only<\/p>\n
one act of default; but the learned Judge failed to consider the<\/p>\n
fact that the action was taken against the plaintiff finding that<\/p>\n
he has committed plurality of default. Ext.A17 contains 11<\/p>\n
grounds for the action taken under Regulation 312 of the bye-<\/p>\n
law. Therefore, the finding of the Lower Appellate Court that<\/p>\n
action was taken for the commission of single default, is<\/p>\n
factually wrong.     The learned Judge failed to examine the<\/p>\n
evidence on record which shows that the plaintiff has<\/p>\n
committed plurality of defaults inviting          action under<\/p>\n
                                   -21-<\/span>
\nS.A.884\/1996<\/p>\n
Regulation 312 of the bye-law. Therefore, the further finding<\/p>\n
of the Lower Appellate Court that the decision taken by the<\/p>\n
Council of Management of the defendant-Stock Exchange on<\/p>\n
21\/12\/1987 declaring the plaintiff as a defaulter had thus<\/p>\n
offended one of the cardinal principles of natural justice, is<\/p>\n
also equally wrong and therefore liable to be interfered with. I<\/p>\n
have set out in detail the plaintiff’s failure on several occasions<\/p>\n
including the default narrated in Ext.A14 notice. The Lower<\/p>\n
Appellate Court did not consider and appreciate the evidence<\/p>\n
adduced by the parties in the right perspective. The Lower<\/p>\n
Appellate Court only elicited some portions of the evidence<\/p>\n
mainly Ext.A14 notice and held that it constitutes only one act<\/p>\n
of default and that action under Clause (i) of Regulation 312<\/p>\n
of the bye-law contemplates plurality of default.<\/p>\n
           16. The learned counsel for the respondent cited the<\/p>\n
decisions reported in Dhulabhai v. State of Madhya Pradesh<\/p>\n
and<\/a> another (AIR 1969 SC 78), United India Insurance Co.<\/p>\n
Ltd. v. Ajay Sinha and<\/a> another ((2008) 7 SCC 454), Sahara<\/p>\n
                                   -22-<\/span>
\nS.A.884\/1996<\/p>\n
India (Firm), Lucknow v. Commissioner of Income Tax,<\/p>\n
Central-1 and<\/a> another (((2008) 14 SCC 151), Charan Lal<\/p>\n
Sahu    v.   Union     of   India    (AIR<\/a>    1990    SC    1480),<\/p>\n
ASST.Commissioner, Anti-evasion Commercial Taxes,<\/p>\n
Bharatpur v. Amtek India Ltd.<\/a> ((2007) II SCC 407),<\/p>\n
Brijendra Singh v. State of U.P. and others (AIR<\/a> 1981 SC<\/p>\n
636) Agricultural Income Tax Officer v. Thankamma<\/p>\n
Parameswaran<\/a> (1986 KLT 416) and contended that the<\/p>\n
principles of natural justice is violated. I do not think that the<\/p>\n
decisions cited above are applicable to the facts of this case.<\/p>\n
           17. I have in detail stated the opportunities afforded<\/p>\n
by the stock exchange to the plaintiff to fulfil the obligations<\/p>\n
under the bye-law and Memorandum of Articles of<\/p>\n
Association. The case was considered by the courts below and<\/p>\n
this Court on merits. The question as to whether the civil court<\/p>\n
has jurisdiction or not does not arise for consideration. This<\/p>\n
Court finds that the action taken by the stock exchange is in<\/p>\n
good faith and therefore, the decision of the Supreme Court in<\/p>\n
                                   -23-<\/span>
\nS.A.884\/1996<\/p>\n
Dhulabhai v. State of Madhya Pradesh and<\/a> another (AIR<\/p>\n
1969 SC 78) was pressed into service. The learned counsel for<\/p>\n
the plaintiff\/respondent cited the said decision wherein the<\/p>\n
principles regarding the exclusion of jurisdiction of the<\/p>\n
civil court are laid down. According to the learned counsel,<\/p>\n
the civil court has got jurisdiction to decide the question. The<\/p>\n
civil court has decided all the issues raised by the plaintiff in<\/p>\n
the case on merits. I do not think that there is any relevance to<\/p>\n
go into the principles laid down by the Apex Court in that<\/p>\n
decision at this stage for the aforesaid reason. Section 29 of the<\/p>\n
Securities Contracts (Regulation) Act, 1956 prohibits suit,<\/p>\n
prosecution or other legal proceeding whatsoever shall lie in<\/p>\n
any Court against the governing body or any member, office-<\/p>\n
bearer or servant of any recognised stock exchange or against<\/p>\n
any person or persons appointed under sub-section (1) of<\/p>\n
Section 11 for anything which is in good faith done or intended<\/p>\n
to be done in pursuance of this Act or of any rules or by-laws<\/p>\n
made thereunder. The trial court as well as this Court on facts<\/p>\n
                                  -24-<\/span>
\nS.A.884\/1996<\/p>\n
held that the proceedings initiated by the Stock Exchange is in<\/p>\n
good faith and therefore, according to the learned counsel for<\/p>\n
the appellant, the suit itself is not maintainable. This Court<\/p>\n
entered the finding regarding good faith in favour of the Stock<\/p>\n
Exchange.    The court below proceeded to consider all the<\/p>\n
issues on merits as well. In fact, this Court as well as the<\/p>\n
Lower Appellate Court decided the matter on merits apart from<\/p>\n
the question of good faith and therefore the bar of jurisdiction<\/p>\n
has no much relevance at this stage.\n<\/p>\n
     `     18. The learned counsel for the appellant cited the<\/p>\n
decisions reported in Rajendra Roy v. Union of India and<\/p>\n
another ((1993) 1 SCC 148) and Vinay bubna v. Stock<\/p>\n
Exchange, Mumbai and others (1996) 6 SCC 215). The<\/p>\n
Apex Court, after considering all the relevant aspects including<\/p>\n
the by-law and Memorandum of Articles of Association of the<\/p>\n
Mumbai Stock Exchange, held that membership of the Stock<\/p>\n
Exchange is a personal permission from the Exchange to<\/p>\n
exercise the rights and privileges attached thereto, subject to<\/p>\n
                                  -25-<\/span>
\nS.A.884\/1996<\/p>\n
the rules bye-laws and regulations of the Exchange. The Apex<\/p>\n
Court further held that a member is declared as a defaulter, if<\/p>\n
he fails to meet his obligation, and the rules further show that<\/p>\n
thereafter his right of membership and nomination ceases and<\/p>\n
vests in the exchange and belongs to the exchange. The learned<\/p>\n
counsel also brought to my notice the decision reported in<\/p>\n
Rajendra Roy v. Union of India and another ((1993) 1 SCC<\/p>\n
148). In the said decision the Apex Court held that inference<\/p>\n
of mala fides must be based on firm foundation of facts<\/p>\n
pleaded and established and not merely on insinuations and<\/p>\n
vague allegations.    According to the learned counsel, the<\/p>\n
allegations in the plaint are vague         and without firm<\/p>\n
foundations. The judgment and decree passed by the Lower<\/p>\n
Appellate Court require interference.\n<\/p>\n
           In the result, the appeal is allowed. The judgment<\/p>\n
and decree passed by the Lower Appellate Court are set aside<\/p>\n
                                -26-<\/span>
\nS.A.884\/1996<\/p>\n
and the judgment and decree passed by the trial court are<\/p>\n
restored. No order as to costs.\n<\/p>\n<\/p>\n
                                      HARUN-UL-RASHID,
\n                                           JUDGE.\n<\/p>\n
kcv.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Cochin Stock Exchange Ltd vs P.P.Zibi Jose on 8 July, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 884 of 1996() 1. COCHIN STOCK EXCHANGE LTD. … Petitioner Vs 1. P.P.ZIBI JOSE … Respondent For Petitioner :SRI.KOSHY GEORGE For Respondent :SRI.C.T.JOSEPH The Hon’ble MR. Justice HARUN-UL-RASHID Dated :08\/07\/2010 O R […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-185165","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nCochin Stock Exchange Ltd vs P.P.Zibi Jose on 8 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/cochin-stock-exchange-ltd-vs-p-p-zibi-jose-on-8-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Cochin Stock Exchange Ltd vs P.P.Zibi Jose on 8 July, 2010 - 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