{"id":27175,"date":"2010-01-19T00:00:00","date_gmt":"2010-01-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahesh-ratilal-shah-vs-union-of-india-ors-on-19-january-2010"},"modified":"2016-09-16T10:56:58","modified_gmt":"2016-09-16T05:26:58","slug":"mahesh-ratilal-shah-vs-union-of-india-ors-on-19-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahesh-ratilal-shah-vs-union-of-india-ors-on-19-january-2010","title":{"rendered":"Mahesh Ratilal Shah vs Union Of India & Ors on 19 January, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahesh Ratilal Shah vs Union Of India & Ors on 19 January, 2010<\/div>\n
Author: A Kabir<\/div>\n
Bench: Altamas Kabir, Cyriac Joseph<\/div>\n
                                                                           1\n\n\n\n              IN THE SUPREME COURT OF INDIA\n\n               CIVIL APPELLATE JURISDICTION\n\n\n     SPECIAL LEAVE PETITION (C) NO.21686 OF 2006\n\n\n\nMahesh Ratilal Shah                      .. Petitioner\n\n                             Vs.\n\nUnion of India & Ors.                    .. Respondents\n\n\n\n\n                       J U D G M E N T\n<\/pre>\n
ALTAMAS KABIR, J.\n<\/p>\n<\/p>\n
1.   Claiming to be a Sub-broker with one Yogesh B.<\/p>\n
Mehta,    a   Member    of   the   Bombay    Stock      Exchange<\/p>\n
(hereinafter     referred    to    “BSE”),   the     petitioner<\/p>\n
herein filed a writ petition before the Bombay High<\/p>\n
Court under Article 226 of the Constitution against<\/p>\n
the Union of India, the Securities and Exchange<\/p>\n
Board    of   India    (hereinafter   referred     to    as   the
\n                                                                2<\/span><\/p>\n
“SEBI”) and the BSE, inter alia, for a direction<\/p>\n
upon the Union of India and SEBI to withdraw the<\/p>\n
recognition     granted     to    BSE    for    alleged      non-<\/p>\n
compliance with the provisions of Sections 7 and 9<\/p>\n
of the Securities Contracts (Regulation) Act, 1956<\/p>\n
(hereinafter referred to as “the 1956 Act”).                    A<\/p>\n
further    direction      was     also    sought      for    for<\/p>\n
cancellation of SEBI registration of all relevant<\/p>\n
90 members of the Stock Exchange for fraudulently<\/p>\n
inducing investors to trade in forged scrips of M\/s<\/p>\n
Presto Finance Ltd. and to declare the Rules, Bye-<\/p>\n
laws and Regulations of the BSE as illegal, void<\/p>\n
and    ultra    vires    the     1956    Act   as    also    the<\/p>\n
Constitution    of   India.         Various     ancillary    and<\/p>\n
interim reliefs were also prayed for connected with<\/p>\n
the main reliefs.\n<\/p>\n<\/p>\n
2.    The case of the Petitioner is that he had been<\/p>\n
induced by the BSE and its Members to buy 4,50,800<\/p>\n
shares    of   “Presto    Finance   Ltd.”      and   under   the
\n                                                                             3<\/span><\/p>\n
assurance of the Exchange, he had deposited the<\/p>\n
entire       purchase              amount,               amounting          to<\/p>\n
Rs.71,19,817.30       with        the       Exchange.           It   is    the<\/p>\n
Petitioner’s further case that the Exchange and its<\/p>\n
Members had intentionally and deliberately cheated<\/p>\n
him by giving him delivery of 1,56,100 forged share<\/p>\n
certificates and refused to cancel the said dealing<\/p>\n
when the same was discovered and instead asked the<\/p>\n
Petitioner    to     go     to        the    Liquidator         of   Presto<\/p>\n
Finance Ltd. for claiming damages.\n<\/p>\n<\/p>\n
3.    Appearing      in    support          of     the    Special     Leave<\/p>\n
Petition, Mr. Manohar Lal Sharma, learned Advocate,<\/p>\n
submitted     that        the    SEBI        as    a     statutory        body<\/p>\n
established under Section 3 of the Securities and<\/p>\n
Exchange    Board     of        India       Act,    1992       (hereinafter<\/p>\n
referred to as the “SEBI Act”), was empowered under<\/p>\n
Section 11 of the Act to protect the interests of<\/p>\n
the   investors      in    securities             and    to    promote     the<\/p>\n
development    of     and        to     regulate         the     securities
\n                                                                           4<\/span><\/p>\n
market      by     such   measures       as    it   thought        fit   for<\/p>\n
prohibiting          fraudulent      and    unfair      trade      practice<\/p>\n
relating to the securities market.\n<\/p>\n<\/p>\n
4.     Mr. Sharma further submitted that the BSE is a<\/p>\n
body     of       individuals        which        has    been       granted<\/p>\n
recognition as a “Stock Exchange” under Section 4<\/p>\n
of    the     1956     Act,    subject      to    the   provisions        of<\/p>\n
Section 9 thereof, to function as a Stock Exchange<\/p>\n
in Bombay.         Under Section 12 of the SEBI Act, SEBI<\/p>\n
has granted registration to the Members of the BSE<\/p>\n
to deal in the securities market in the country<\/p>\n
within       the       ambit    of    the        said   Act     and      the<\/p>\n
Regulations made thereunder.                   Mr. Sharma submitted<\/p>\n
that the main object of the BSE is to protect the<\/p>\n
interests both of the brokers and dealers and of<\/p>\n
the public interested in securities. Rules, Bye-<\/p>\n
laws and Regulations had, therefore, been framed by<\/p>\n
the    BSE       for    trading      and      settlement      of    shares<\/p>\n
through the BSE terminal.                     Mr. Sharma submitted
\n                                                               5<\/span><\/p>\n
that the said Rules, Bye-laws and Regulations were<\/p>\n
contrary to the provisions of the 1956 Act, and<\/p>\n
were, therefore, void and ultra-vires the Act and<\/p>\n
the     Constitution.         The   Writ    Petitioner      had,<\/p>\n
therefore, been compelled to move the High Court in<\/p>\n
its writ jurisdiction, inter alia, for the reliefs<\/p>\n
indicated hereinabove.\n<\/p>\n<\/p>\n
5.     Referring   to   the    Prospectus    of     M\/s   Presto<\/p>\n
Finance Ltd., Mr. Sharma pointed out that since it<\/p>\n
had been indicated out therein that the shares of<\/p>\n
Presto Finance Ltd. were to be listed both on the<\/p>\n
Regional Exchange at Ahmedabad and in the BSE, the<\/p>\n
Petitioner and other investors were induced into<\/p>\n
investing in the shares of the company which were<\/p>\n
ultimately de-listed from trading in both the Stock<\/p>\n
Exchanges on account of fraudulent dealings, which<\/p>\n
left    the   Petitioner      holding   a   large    number   of<\/p>\n
forged shares traded by the Company from the BSE.<\/p>\n
Mr. Sharma urged that the BSE had completely failed
\n                                                   6<\/span><\/p>\n
to protect the interests of the investors as it was<\/p>\n
bound to do under Section 4 of the 1956 Act.<\/p>\n
6.   Mr. Sharma contended that the very existence of<\/p>\n
the BSE and its activities must be held to have<\/p>\n
been vitiated from its very inception since it had<\/p>\n
failed to comply with the provisions of Section 4<\/p>\n
of the Act of 1956 relating to grant of recognition<\/p>\n
to Stock Exchanges by the Central Government and,<\/p>\n
in particular, Sub-section (3) thereof, which reads<\/p>\n
as follows :-\n<\/p>\n<\/p>\n
     “4(3). Every grant of recognition to a
\n     Stock Exchange under this section shall be
\n     published in the Gazette of India and also
\n     in the Official Gazette of the State in
\n     which the principal office of the Stock
\n     Exchange is situate, and such recognition
\n     shall have effect as from the date of its
\n     publication in the Gazette of India.”\n<\/p><\/blockquote>\n
7.   Mr. Sharma submitted that since the recognition<\/p>\n
granted to BSE has neither been published in the<\/p>\n
Gazette of India or in the Official Gazette of the<\/p>\n
State, such recognition did not have any effect at
\n                                                   7<\/span><\/p>\n
all and in addition to the above, ever since its<\/p>\n
recognition, the BSE has not also complied with the<\/p>\n
provision of Section 9 of the aforesaid Act and<\/p>\n
framed Byelaws for the regulation and control of<\/p>\n
contracts with the previous approval of SEBI.     It<\/p>\n
was submitted that Sub-section (4) of Section 9<\/p>\n
also provides for publication of the Byelaws and<\/p>\n
reads as follows :-\n<\/p>\n
    \"9(4).     Any Bye-laws made under this\n    section    shall  be    subject   to   such\n    conditions     in  regard     to   previous\n<\/pre>\n
    publication as may be prescribed and when
\n    approved by the Securities and Exchange
\n    Board of India in the Gazette of India and
\n    in which the principal office of the
\n    recognised Stock Exchange is situate, and
\n    shall have effect as from the date of its
\n    publication in the Gazette of India:\n<\/p>\n
        Provided that if the Securities and
\n    Exchange Board of India Government is
\n    satisfied in any case that in the interest
\n    of the trade or in the public interest any
\n    Bye-law should be made immediately, it
\n    may, by order in writing specifying the
\n    reasons   therefor,   dispense   with  the
\n    condition of previous publication.”
\n                                                              8<\/span><\/p>\n
8.   Referring    to   the   decision    of   this   Court   in<\/p>\n
Ritesh Agarwal vs. SEBI [(2008) 8 SCC 205], wherein<\/p>\n
the question as to whether proceedings should also<\/p>\n
be taken against minors in view of Section 11 of<\/p>\n
the Contract Act, 1872, was under consideration,<\/p>\n
this Court held that since the father of the minors<\/p>\n
had committed fraud in their names, it is he who<\/p>\n
should have been proceeded against.                Mr. Sharma<\/p>\n
urged that once it was shown that a promoter had<\/p>\n
committed fraud, as in this case, in listing its<\/p>\n
shares   with     the      Exchange,     thereby      inducing<\/p>\n
investors to invest in such shares, it must be held<\/p>\n
that the Exchange had failed to comply with the<\/p>\n
provisions   of   clause     (a)   of   Sub-section    (1)   of<\/p>\n
Section 4 of the 1956 Act, which makes it mandatory<\/p>\n
that the Rules and Byelaws of a Stock Exchange have<\/p>\n
to be in conformity with such conditions as may be<\/p>\n
prescribed with a view to ensure fair dealing and<\/p>\n
to protect investors. [Emphasis supplied]
\n                                                                            9<\/span><\/p>\n
9.     On   behalf     of    BSE,      Mr.    Shyam      Diwan,      learned<\/p>\n
Senior        Advocate,         submitted           that       all      Stock<\/p>\n
Exchanges, including the BSE, acted on the basis of<\/p>\n
information received from other Stock Exchanges in<\/p>\n
the country.          In the instant case, since the Scrip<\/p>\n
of Presto Finance Ltd. had been listed for trading<\/p>\n
on the Ahmedabad Stock Exchange, the same were also<\/p>\n
listed for trading on the Bombay Stock Exchange,<\/p>\n
but as soon as information of fraud was received<\/p>\n
from    the    former       Stock     Exchange,       BSE      immediately<\/p>\n
stopped       trading    in     the     said       Scrip.        Mr.    Diwan<\/p>\n
submitted that it was required to be noted that the<\/p>\n
Petitioner had approached the Court ten years after<\/p>\n
the    incident,        which     in      itself,        was     sufficient<\/p>\n
ground for dismissal of the Writ Petition.<\/p>\n
10. Mr.       Diwan     submitted         that     the     BSE    had   been<\/p>\n
established in 1875 as “The Native Shares and Stock<\/p>\n
Brokers       Association”          and      was    the     first       Stock<\/p>\n
Exchange in the country which obtained permanent
\n                                                                      10<\/span><\/p>\n
recognition in 1956 from the Government of India<\/p>\n
under the 1956 Act and had played a pivotal role in<\/p>\n
the development of the Indian Capital Market.                        The<\/p>\n
recognition granted to the BSE was duly published<\/p>\n
by the Ministry of Finance, Government of India, in<\/p>\n
its Stock Exchange Division in the Gazette of India<\/p>\n
dated    31st    August,        1957.      Thereafter,      the    Stock<\/p>\n
Exchange        Rules,      Bye-laws       and     Regulations      were<\/p>\n
framed    in     1957      and    advance    print    of    the    same,<\/p>\n
together with all amendments up to date, was sent<\/p>\n
to the Government of India.                  Receipt and approval<\/p>\n
of the same by the Government of India under the<\/p>\n
1956 Act was also conveyed to the Secretary of the<\/p>\n
Stock    Exchange          by    the    Deputy   Secretary    in     the<\/p>\n
Ministry        of    Finance,          Department     of    Economic<\/p>\n
Affairs, by his letter dated 1st May, 1959.                          Mr.<\/p>\n
Diwan    submitted         that    the    Rules,    Regulations      and<\/p>\n
Bye-laws    of       the    Bombay      Stock    Exchange    had    been<\/p>\n
acted    upon        since       they     were     framed    and     the<\/p>\n
Petitioner also claims to have traded on the Stock
\n                                                              11<\/span><\/p>\n
Exchange as a Sub-broker through Yogesh Mehta, said<\/p>\n
to be a member of the Stock Exchange.                Mr. Diwan<\/p>\n
submitted    that     when    the    Rules,     Bye-laws     and<\/p>\n
Regulations had been continuously acted upon                 for<\/p>\n
more than 50 years, it would be inequitable to hold<\/p>\n
that the same were not valid on account of non-<\/p>\n
publication in the Official Gazette or the Gazette<\/p>\n
of India in terms of Sub-section (4) of Section 9<\/p>\n
of the 1956 Act.\n<\/p>\n<\/p>\n
11. Mr. Diwan then urged that the scheme of Section<\/p>\n
4 of the 1956 Act relating to grant of recognition<\/p>\n
to Stock Exchanges, makes it clear that before such<\/p>\n
grant of recognition, the Central Government has to<\/p>\n
be satisfied that the Rules and Bye-laws of the<\/p>\n
Stock Exchange applying for registration were in<\/p>\n
conformity    with     such      conditions    as    might    be<\/p>\n
prescribed with a view to ensuring fair dealing and<\/p>\n
to protect investors.            Mr. Diwan submitted that<\/p>\n
under   Section   9   of   the    1956   Act   the   recognized
\n                                                                        12<\/span><\/p>\n
Stock Exchange is required to make Bye-laws for the<\/p>\n
regulation and control of contracts and any Bye-<\/p>\n
laws made under the said section would be subject<\/p>\n
to    such      conditions           in    regard     to      previous<\/p>\n
publication       as     may       be     prescribed,      and,       when<\/p>\n
approved by SEBI, is to be published in the Gazette<\/p>\n
of India and also in the official Gazette of the<\/p>\n
State      in   which        the    principal       office    of      the<\/p>\n
recognized      Stock    Exchange         is   situate,    and     shall<\/p>\n
have effect as from the date of its publication in<\/p>\n
the Gazette of India.\n<\/p>\n<\/p>\n
12. Mr. Diwan reiterated that it would be amply<\/p>\n
clear from the above that the Rules and Bye-laws<\/p>\n
framed     by    the    Stock       Exchange      before     grant     of<\/p>\n
recognition under Section 4 were not required to be<\/p>\n
published in the manner indicated in Sub-Section<\/p>\n
(3)   of    Section      4    of    the    1956    Act.    Mr.     Diwan<\/p>\n
submitted       that    only       amendments     effected       to   the<\/p>\n
Rules and Bye-laws after grant of recognition would
\n                                                                 13<\/span><\/p>\n
require publication as provided for in Sub-Section<\/p>\n
(4) of Section 9 of the above Act.                  Mr. Diwan also<\/p>\n
urged that since the BSE had been functioning as<\/p>\n
perhaps the most important Stock Exchange in India,<\/p>\n
since it was granted permanent recognition in 1956,<\/p>\n
its performance over the past 33 years cannot be<\/p>\n
diluted     and      has   to   be   taken   into    consideration<\/p>\n
while considering the case sought to be made out by<\/p>\n
the Petitioner.              Learned counsel submitted that,<\/p>\n
although, the question now sought to be raised had<\/p>\n
not at any point of time been raised in this Court,<\/p>\n
the same question did arise before the Bombay High<\/p>\n
Court     in        Appeal      No.1101\/98     arising    out    of<\/p>\n
Arbitration         Petition      No.130\/98,    Stock    Exchange,<\/p>\n
Mumbai vs. Vijay Bubna & Ors., reported in 1999 (2)<\/p>\n
LJ 289.        In the said decision, where the primary<\/p>\n
issue was whether an Arbitral Tribunal constituted<\/p>\n
under the Bye-laws framed by the BSE under the 1956<\/p>\n
Act   was      in    contravention     of    the    provisions   of<\/p>\n
Section 10 of the Arbitration and Conciliation Act,
\n                                                                      14<\/span><\/p>\n
1996, the question arose as to whether the said<\/p>\n
Bye-laws of the BSE required publication in the<\/p>\n
Official      Gazette.         Upon     construction          of     the<\/p>\n
provisions     of   the      Bye-laws    of    the     BSE    and    the<\/p>\n
decision of this Court in Dr. Indramani Pyarelal<\/p>\n
Gupta & Ors. Vs. W.R. Natu & Ors. [AIR 1964 SC<\/p>\n
274], the High Court held that the Bye-laws of the<\/p>\n
BSE were subordinate legislation and that the same<\/p>\n
were    statutory      in    nature     having       the     force   of<\/p>\n
enactment within the meaning of Sub-Section (4) of<\/p>\n
Section 2 of the Arbitration and Conciliation Act,<\/p>\n
1996.      Mr. Diwan drew our attention to paragraph 42<\/p>\n
of   the    judgment    in    which   reference        was    made   to<\/p>\n
another decision of the Bombay High Court in the<\/p>\n
case of V.V. Ruia vs. S. Dalmia [AIR 1968 Bombay<\/p>\n
347], where the question arose as to whether the<\/p>\n
Bye-laws of the BSE, which were made prior to its<\/p>\n
recognition     under       Section     4,    needed       publication<\/p>\n
under Sub-Section (4) of Section 9 of the 1956 Act.<\/p>\n
It was held that the Bye-laws made by the Bombay
\n                                                                     15<\/span><\/p>\n
Stock Exchange prior to its recognition did not<\/p>\n
require   publication        in     the   Official       Gazette,    on<\/p>\n
account   of     the      fact    that      for    the   purpose     of<\/p>\n
obtaining recognition from the Central Government,<\/p>\n
the Stock Exchange was required to submit a copy of<\/p>\n
the   Bye-laws      and     Rules     and     it   is    only     after<\/p>\n
scrutiny thereof that recognition was granted under<\/p>\n
Section 4.       It was also mentioned that if, after<\/p>\n
recognition, any subsequent Bye-law was made under<\/p>\n
Section   9    of   the    Act,     then,     by   virtue    of    Sub-<\/p>\n
Section (4) of Section 9 such a post-recognition<\/p>\n
Bye-law required publication.\n<\/p>\n<\/p>\n
13. Mr. Diwan then referred to the decision in V.V.<\/p>\n
Ruia’s case (supra,) referred to by the Division<\/p>\n
Bench of the High Court in the aforesaid judgment,<\/p>\n
wherein it had been held that the Bye-laws made by<\/p>\n
the Stock Exchange prior to its recognition in 1956<\/p>\n
did not require publication under Section 9(4) of<\/p>\n
the 1956 Act.\n<\/p>\n
                                                                      16<\/span><\/p>\n
14. Mr.     Diwan’s        next     contention      was    that       a<\/p>\n
procedure,    which    had        been   consistently      followed<\/p>\n
over a long period, should not be interfered with<\/p>\n
except for very compelling reasons as that could<\/p>\n
otherwise lead to chaos and unsettle the position<\/p>\n
which had been settled over such period.<\/p>\n
15. Referring to the Three-Judge Bench decision of<\/p>\n
this Court in Raj Narain Pandey & Ors. Vs. Sant<\/p>\n
Prasad Tewari & Ors. [(1973) 2 SCC 35], Mr. Diwan<\/p>\n
submitted that while interpreting the doctrine of<\/p>\n
stare decisis, this Court had held that a decision<\/p>\n
of long-standing on the basis of which many persons<\/p>\n
would, in the course of time, have arranged their<\/p>\n
affairs,    should    not     lightly      be   disturbed        by   a<\/p>\n
superior court not strictly bound itself by the<\/p>\n
decision.     It     was    further      observed   that    in    the<\/p>\n
matter of the interpretation of a local statute,<\/p>\n
the view taken by the High Court over a number of<\/p>\n
years   should     normally        be    adhered    to     and    not
\n                                                                    17<\/span><\/p>\n
disturbed.       A     different     view        would     not    only<\/p>\n
introduce an element of uncertainty and confusion,<\/p>\n
it    would     also    have   the    effect       of    unsettling<\/p>\n
transactions which might have been entered into on<\/p>\n
the faith of those decisions. It was held that the<\/p>\n
doctrine of stare decisis can be aptly invoked in<\/p>\n
such a situation.\n<\/p>\n<\/p>\n
16. Apart from being guilty of delay and laches,<\/p>\n
Mr. Diwan submitted that the petitioner was himself<\/p>\n
in default, not being a registered sub-broker of<\/p>\n
the BSE, although, he claimed to be a sub-broker of<\/p>\n
Yogesh B. Mehta, a member of the Stock Exchange.<\/p>\n
Mr. Diwan submitted that the Special Leave Petition<\/p>\n
bristled with malice in law and was, therefore,<\/p>\n
liable to be dismissed with costs.\n<\/p>\n<\/p>\n
17. Mr.       Jaideep     Gupta,     learned        Advocate      who<\/p>\n
appeared for SEBI, took us through the letter dated<\/p>\n
1st   August,     1996,    addressed        on    behalf     of   the<\/p>\n
Ahmedabad     Stock     Exchange     to   Shri      L.K.    Singhvi,
\n                                                                           18<\/span><\/p>\n
Executive      Director,       SEBI,      informing        him      of   the<\/p>\n
Report of the Committee in the matter of Presto<\/p>\n
Finance Ltd.        In the said letter it was indicated<\/p>\n
that based on a number of complaints received from<\/p>\n
the investors in the scrip of Presto Finance Ltd.,<\/p>\n
a Special Committee consisting of three members,<\/p>\n
including        SEBI,         and        a      nominated            public<\/p>\n
representative,         had    been       constituted         and     after<\/p>\n
inquiry it had recommended that the trading in the<\/p>\n
scrip     of     Presto     Finance           Ltd.     should    not      be<\/p>\n
recommended       and     might      be   de-listed       permanently.<\/p>\n
Mr. Jaideep Gupta referred to the inquiry report of<\/p>\n
the   Assistant      Police       Inspector,          General       Branch,<\/p>\n
Crime    Branch,     C.I.D.,         Mumbai,         submitted      to   the<\/p>\n
learned Metropolitan Magistrate, 33rd Court, Ballard<\/p>\n
Estate,    Mumbai,      stating       that      the     BSE   had     acted<\/p>\n
promptly and diligently to protect the interest of<\/p>\n
the     market    and     as    such      no     offence        had      been<\/p>\n
committed by BSE and those who were involved in the<\/p>\n
transactions of the shares of Presto Finance Ltd.
\n                                                                       19<\/span><\/p>\n
in 1996.     It was stated that on the contrary, the<\/p>\n
complainant was not a registered sub-broker of the<\/p>\n
Bombay Stock Exchange and had himself violated the<\/p>\n
provisions of Section 23(h) of the 1956 Act, as he<\/p>\n
had also dealt with the above transactions as sub-<\/p>\n
broker, without being registered with the BSE.<\/p>\n
18. Mr.      Gupta     submitted         that    based         on     the<\/p>\n
complaints received from various investors relating<\/p>\n
to    the    issuance      of     fake     and     forged           share<\/p>\n
certificates of M\/s. Presto Finance Ltd., the Stock<\/p>\n
Exchange,     Ahmedabad,        had     constituted       a    Special<\/p>\n
Committee, as indicated hereinabove, and had found<\/p>\n
the Managing Director and other Directors of the<\/p>\n
company      to      be    guilty         of      irregularities.<\/p>\n
Accordingly, in a proceeding under Section 11B of<\/p>\n
the   SEBI    Act,    1992,      SEBI     had    taken        stringent<\/p>\n
measures against the Managing Director and other<\/p>\n
Directors     of     the   company       for     having        received<\/p>\n
payments for issuance of fake and forged shares of
\n                                                                20<\/span><\/p>\n
the company.        Mr. Gupta pointed out that on such<\/p>\n
finding, in the interest of investors in securities<\/p>\n
and the securities market, SEBI had debarred Shri<\/p>\n
Hitendra Vasa and the companies promoted by him and<\/p>\n
the group companies of M\/s. Presto Finance Ltd.,<\/p>\n
from accessing the capital market for a period of<\/p>\n
five years with effect from 22nd April, 1998.<\/p>\n
19. Mr. Gupta submitted that as far as SEBI was<\/p>\n
concerned,     on    receipt    of    information      about   the<\/p>\n
fraudulent     share       scrips    issued    by   M\/s.    Presto<\/p>\n
Finance Ltd., immediate steps had been by SEBI to<\/p>\n
have the share scrips of the said company de-listed<\/p>\n
from the Ahmedabad Stock Exchange as well as from<\/p>\n
the Bombay Stock Exchange.\n<\/p>\n<\/p>\n
20.     Mr. Gupta submitted that no fault could be<\/p>\n
found   with   BSE    in    listing    the    shares   of   Presto<\/p>\n
Finance Ltd., since the same had been listed on the<\/p>\n
Ahmedabad Stock Exchange earlier, but as soon as<\/p>\n
information was received from the Ahmedabad Stock
\n                                                                             21<\/span><\/p>\n
Exchange      that       there       was     an      element       of     fraud<\/p>\n
involved, and the scrips had been delisted in the<\/p>\n
Ahmedabad Stock Exchange, BSE took immediate steps<\/p>\n
to delist the scrips and to close trading of the<\/p>\n
said    shares     in        order    to   protect         the    securities<\/p>\n
market     and     the        investors        who      traded      in     such<\/p>\n
securities.        Mr. Gupta submitted that the entire<\/p>\n
allegations       made        by     the   petitioner            against    the<\/p>\n
Bombay Stock Exchange was devoid of any merit and<\/p>\n
did     not      warrant           any     interference            in     these<\/p>\n
proceedings.\n<\/p>\n<\/p>\n
21. As     would     be       evident      from      the      pleadings     and<\/p>\n
submissions        made        on     behalf       of      the    respective<\/p>\n
parties, the main question which we are called upon<\/p>\n
to     consider         is     whether       in         the      absence     of<\/p>\n
publication of the Rules and Bye-laws of the Bombay<\/p>\n
Stock Exchange, which had been framed prior to its<\/p>\n
recognition        in        1956    under        the      1956    Act,     its<\/p>\n
activities could be said to be without authority.
\n                                                                     22<\/span><\/p>\n
The further question which falls for consideration<\/p>\n
is whether it can be said, as has been urged on<\/p>\n
behalf    of   the     petitioner,       that      in    listing    the<\/p>\n
shares of M\/s. Presto Finance Ltd. on the Stock<\/p>\n
Exchange, the Bombay Stock Exchange had acted in a<\/p>\n
manner which failed to ensure fair dealing and to<\/p>\n
protect the investors.\n<\/p>\n<\/p>\n
22. As we have noticed hereinbefore, the scrip of<\/p>\n
M\/s. Presto Finance Ltd. was listed on the Bombay<\/p>\n
Stock    Exchange      after    it    had   been    listed    in    the<\/p>\n
Stock    Exchange      at   Ahmedabad       and     on    receipt    of<\/p>\n
information       thereof.           However,       as     soon      as<\/p>\n
information was received that the said company was<\/p>\n
involved in fraudulent dealing of its scrip, again<\/p>\n
on intimation from the Ahmedabad Stock Exchange,<\/p>\n
the   said     scrip    was    delisted      and    debarred       from<\/p>\n
trading by the BSE.            In our view, the Bombay Stock<\/p>\n
Exchange had not acted in a manner which tended to
\n                                                                             23<\/span><\/p>\n
promote the share scrip of M\/s. Presto Finance Ltd.<\/p>\n
with any malafide motive.                  Apart from the above,<\/p>\n
the delay of 10 years in approaching the High Court<\/p>\n
over the transactions in the said scrip cannot be<\/p>\n
ignored since, as observed by this Court in Raj<\/p>\n
Narain     Pandey’s        case        (supra)     a     long     standing<\/p>\n
decision       should      not    be    easily     interfered             with,<\/p>\n
having    regard      to    the    fact    that        over    the    years,<\/p>\n
people     have      already       settled       their        business      in<\/p>\n
accordance          therewith.            Except        for     the        bald<\/p>\n
allegations         that    the    Bombay       Stock     Exchange          had<\/p>\n
acted    in     a    manner       which    was     contrary          to     the<\/p>\n
interest of the securities market and investors in<\/p>\n
listing the share scrips of M\/s. Presto Finance<\/p>\n
Ltd.     for    trading,          there    is      nothing       else       to<\/p>\n
establish any ulterior motive on the part of the<\/p>\n
aforesaid Stock Exchange in listing the said scrip<\/p>\n
and, in fact, in terms of remedial measures the<\/p>\n
Stock Exchange also invited all those who had been
\n                                                                        24<\/span><\/p>\n
given   forged      scrips,      to    submit    the   same       to   the<\/p>\n
Stock Exchange for further action.\n<\/p>\n<\/p>\n
23. On the question of non-publication of the Bye-<\/p>\n
laws, we agree with the views of the Bombay High<\/p>\n
Court in V.V. Ruia’s case (supra) that since the<\/p>\n
said Rules and Bye-laws had been in existence from<\/p>\n
long before the enactment of 1956 Act and the grant<\/p>\n
of recognition to the Stock Exchange, the same did<\/p>\n
not require publication in terms of Section 4 of<\/p>\n
the 1956 Act.        In any event, as has been submitted<\/p>\n
by Mr. Diwan on behalf of the BSE, all amendments<\/p>\n
to   the    Rules    and    Bye-laws      made    after    grant        of<\/p>\n
recognition had been duly published in the Gazette.<\/p>\n
24. Upon      considering        the    case    made   out    by       the<\/p>\n
petitioner in the writ petition, the Bombay High<\/p>\n
Court      held    that    the    writ    petition,       which        was<\/p>\n
lacking       in      particulars          relating          to        the<\/p>\n
constitutional challenge, was not the appropriate<\/p>\n
remedy for the petitioner, who, along with a member
\n                                                               25<\/span><\/p>\n
of the Stock Exchange, had traded in the shares of<\/p>\n
the above-mentioned company.               The High Court also<\/p>\n
observed that upon the complaints made to SEBI,<\/p>\n
action had been initiated against the Company as<\/p>\n
far back as in 1998-99 under Section 11B of the<\/p>\n
SEBI Act and SEBI had come to a finding that all<\/p>\n
the    Directors    of   the     Company,       including     one<\/p>\n
Hitendra Vasa, were guilty of dealing in fake and<\/p>\n
bogus shares and cheating the investing public at<\/p>\n
large.      The High Court also observed that the<\/p>\n
market regulator had taken due steps in the matter<\/p>\n
of individual transactions and the remedy of the<\/p>\n
petitioner, who was aggrieved by the acts of the<\/p>\n
promoters of the company in question, as well as<\/p>\n
its    Directors,    would      be     in     approaching     the<\/p>\n
appropriate Court to initiate criminal prosecution<\/p>\n
against the offenders.         Observing that it would not<\/p>\n
be    appropriate   to   issue       any    blanket   writ,   as<\/p>\n
claimed by the Petitioner, when admittedly his case<\/p>\n
was restricted to dealing in shares of one of the
\n                                                              26<\/span><\/p>\n
companies listed at the Stock Exchange, the High<\/p>\n
Court summarily dismissed the writ petition.              While<\/p>\n
doing   so,    the   High   Court    also      noted   that   no<\/p>\n
material had been produced by the petitioner for<\/p>\n
issuing directions for de-recognition of the BSE or<\/p>\n
to declare its Rules, Bye-laws and Regulations to<\/p>\n
be illegal, void and ultra vires.\n<\/p>\n<\/p>\n
25. Agreeing with the views expressed by the High<\/p>\n
Court, we are of the view that the Petitioner has<\/p>\n
not been able to make out any case of malafides or<\/p>\n
irregularity    on   the    part    of   the     Bombay   Stock<\/p>\n
Exchange with regard to the listing and subsequent<\/p>\n
de-listing of the scrip of M\/s Presto Finance Ltd.<\/p>\n
and we are also of the view that the publication of<\/p>\n
the Rules and Bye-laws of the Stock Exchange was<\/p>\n
not     intended     in     the     Securities         Contract<\/p>\n
(Regulation) Act, 1956, as otherwise some provision<\/p>\n
would have been made in the Act with regard to pre-<\/p>\n
recognition Rules and Bye-laws.                 While the Act
\n                                                                27<\/span><\/p>\n
provides for publication of amendments to the Rules<\/p>\n
and Bye-laws after grant of recognition, the Act is<\/p>\n
silent with regard to the publication of the pre-<\/p>\n
recognition Rules or Bye-laws which were already in<\/p>\n
existence and had been acted upon all along.<\/p>\n
26. In that view of the matter, we see no reason to<\/p>\n
interfere with the order of the Bombay High Court<\/p>\n
impugned in the present Special Leave Petition and<\/p>\n
the same is, therefore, dismissed, but without any<\/p>\n
order as to costs.\n<\/p>\n<\/p>\n
27. Before     parting,    we     would,    however,    indicate<\/p>\n
that    even   if   the   1956    Act    did    not   contemplate<\/p>\n
publication of the pre-recognition Rules and Bye-<\/p>\n
laws,   the    position   is     and    would   continue   to   be<\/p>\n
rather ambivalent if the amended Rules and Bye-laws<\/p>\n
were published in the Official Gazette while the<\/p>\n
main Rules and Bye-laws remain unpublished.                     It<\/p>\n
may, therefore, be in the fitness of things to have<\/p>\n
the said Rules and Bye-laws also published in the
\n                                                                              28<\/span><\/p>\n
Official Gazette and the State Gazette to prevent<\/p>\n
questions similar to those raised in this Special<\/p>\n
Leave Petition from being raised in future.<\/p>\n
                                 …………………………………………J.\n<\/p>\n
                                          (ALTAMAS KABIR)<\/p>\n
                                 …………………………………………J.\n<\/p>\n
                                          (CYRIAC JOSEPH)
\nNew Delhi,
\nDated: 19.01.2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahesh Ratilal Shah vs Union Of India & Ors on 19 January, 2010 Author: A Kabir Bench: Altamas Kabir, Cyriac Joseph 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) NO.21686 OF 2006 Mahesh Ratilal Shah .. Petitioner Vs. Union of India & Ors. .. Respondents […]<\/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":[30],"tags":[],"class_list":["post-27175","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahesh Ratilal Shah vs Union Of India & Ors on 19 January, 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\/mahesh-ratilal-shah-vs-union-of-india-ors-on-19-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahesh Ratilal Shah vs Union Of India & Ors on 19 January, 2010 - 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