Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2690 OF 2009
RUSODAY SECURITIES LTD. ...APPELLANT
Versus
NATIONAL STOCK EXCHANGE
OF INDIA LTD. & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 9571 OF 2019
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals under Section 22F of the Securities Contracts
1
(Regulation) Act, 1956 take exception to the judgment and order
2
passed by the Securities Appellate Tribunal at Mumbai in Appeal
No. 84 of 2009 dated 13.01.2009 and in Appeal No. 118 of 2015
dated 04.06.2019.
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2020.11.20
13:41:55 IST
Reason:
1 for short, “the 1956 Act”
2 for short, “the Tribunal”
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CIVIL APPEAL NO. 2690 OF 2009
2. In this appeal, the appellant challenges the judgment/order
dated 13.01.2009 of the Tribunal wherein it had upheld the order
of expulsion against the appellant, from the membership of the
3
National Stock Exchange of India Limited Respondent 1. The
said order was passed in the aftermath of the withdrawal of
trading facilities of the appellant on 13.10.1997 and consequent
closing out of all outstanding positions on 14.10.1997 by the
4
National Securities Clearing Corporation Limited Respondent
2.
3. The appellant herein, desirous of functioning as a stock
broker in the stock market, registered itself as a Trading Member
with NSE/Exchange in November, 1994. As a precondition of
such registration, the appellant was obliged to and did submit an
undertaking in favour of the Exchange so as to strictly comply
with the practice and stipulations in the applicable Byelaws,
Rules, Regulations and other instructions of the Exchange issued
from time to time. The said undertaking was given by the
appellant on 19.06.1995.
3 for short, “NSE” or “the Exchange”, as the case may be.
4 for short, “NSCCL” or “Clearing Corporation”, as the case may be
2
4. As per the conditions prescribed in the Bye Laws,
Regulations and Rules of the Exchange, the appellant was obliged
to maintain a set of deposits with the Exchange, namely
Interest Free Security Deposit (IFSD), security deposit (bank
guarantee), margin money in cash and margin money in the form
of bank guarantee. The sum total of these deposits of the
appellant, collectively termed as the Base Capital of the trading
member, amounted to Rs.1.29 crores.
5. In the year 1996, NSE transferred its clearing and
settlement functions to its wholly owned subsidiary company
NSCCL/Clearing Corporation. In furtherance of the original
undertaking given by the appellant in favour of the Exchange, the
Board of Directors of the appellant executed a subsequent
undertaking dated 19.03.1996 in favour of the Clearing
Corporation, whereby the appellant unconditionally resolved to
abide by all Rules, Regulations, circulars etc., of the Corporation.
Consequently, the appellant was admitted as a Clearing Member
of the Clearing Corporation.
6. On 19.05.1997, the Exchange adopted and circulated the
Circular No. NSCC/CM/C&S/030, originally issued by the
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Clearing Corporation, to all the trading/clearing members. The
circular prescribed certain conditions to be complied with by the
members during trading, including those relating to “Gross
Exposure Limits” for daily functioning of the members. The
circular further provided for “Effect of violation of gross exposure
limit” and “Effect of failure to pay margins”, whereby it specified
various actions that the Corporation and Exchange could take
against a member in case of contravention of the circular. Such
actions included the withdrawal of trading facilities, closing out
of all outstanding positions and other actions as per the Byelaws.
The introductory note specifying this position is relevant which
reads thus:
Circular No. NSCC/CM/C&S/030 dated 19.5.1997 issued by
“
National Securities Clearing Corporation Limited (NSCCL) to
the Clearing Members of NSCCL is enclosed. All Trading
Members of the Exchange who are also the Clearing Members
of the Clearing Corporation are required to comply with the
said Circular and any modifications thereto as may be issued
by the Clearing Corporation from time to time. Non
compliance with the said Circular will be treated as breach of
the Rules, Byelaws and Regulations of the exchange. The
Clearing Corporation will monitor the compliance and take
suitable action for noncompliance .”
7. On 13.10.1997, the appellant was found to have exceeded
the gross exposure limits while trading (as prescribed by the
aforesaid circular) by more than 10% and consequently, the
4
trading facility of the appellant was withdrawn forthwith by the
respondents. Consequent thereto, communication ensued
between the appellant and the Clearing Corporation on the same
day whereby the appellant was asked to bring in an additional
deposit of Rs.40.70 lakhs (calculated as per the circular) in order
to enhance the trading limits. Additionally, the appellant was
also asked to deposit a margin of Rs.29.10 lakhs towards
unsettled trades done on 10.10.1997, along with
Rs.41,42,253.25 in lieu of short delivery under Settlement No.
N1997039 and Rs.6,585.50 in lieu of bad delivery under
Settlement No. N1997038. As per the communication, the said
amounts were to be deposited before 10:30 AM on 14.10.1997
failing which all open positions of the appellant in various
securities were to be closed out forthwith. The appellant failed to
deposit the said amounts and consequently, the Clearing
Corporation closed out all the open positions of the appellant.
8. Subsequent to the withdrawal of trading facilities and
closing out of positions, the appellant pursued legal action, both
civil and criminal, against the respondents at various forums,
including the High Court of Calcutta and the Securities &
5
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Exchange Board of India . The details of various legal proceedings
instituted at the behest of the appellant, being unnecessary for
deciding the subject matter brought before us, are not adverted
to. After an unfruitful litigious relationship of 7 years, the
Exchange addressed to the appellant a letter dated 01.11.2004
informing about the periodical appropriation of certain amounts
made by the Exchange from the security deposits of the appellant
in lieu of various membership charges due from time to time. The
Exchange also called upon the appellant to deposit additional
sums to meet the shortfall created in the Interest Free Security
Deposit, in accordance with Rule 32 of Chapter III of Exchange
Rules, to retain the membership of the Exchange.
9. In the communication that followed the aforesaid letter, the
appellant denied any such obligation to pay as its trading
facilities had stood suspended throughout this period. The
appellant was then granted a hearing and upon being dissatisfied
with the response, NSE decided to suspend the membership of
the appellant with effect from 16.02.2005. The reasons behind
this decision were communicated to the appellant vide letter
5 for short, “SEBI”
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dated 30.03.2005 titled “Relevant Extract of Minutes of the
Relevant Authority”. The relevant extract reads thus:
“….. In view of the above, the Committee after careful
consideration of the various contentions of RSL was not
satisfied of the merits of the contentions raised by RSL. The
Committee concluded that RSL failed to substantiate the
failure to meet the capital adequacy requirements for
continued admittance of trading membership of the
Exchange. Therefore, the Committee decided to suspend the
membership of RSL with effect from February 16, 2005.”
10. Post suspension, another showcause notice was served
upon the appellant by NSE on 20.10.2005. This time for the
expulsion of membership. Despite the second show cause, the
appellant refused to fulfil additional requirements relating to the
maintenance of deposits as indicated by the Exchange.
Resultantly, the Committee on Declaration of Defaults, on
05.01.2006, decided to expel the appellant from the membership
of the Exchange primarily citing two reasons – failure to comply
with the requirement of maintaining IFSD and failure to meet
continued admission norms despite suspension. The relevant
extract of the communication dated 05.01.2006 reads thus:
“….. You have neither replenished the shortfall in deposits
nor appeared to show cause before the relevant authority on
January 05, 2006. The relevant authority, at its meeting held
on January 05, 2006, after duly considering the material on
record ... has decided to expel you from the trading
membership of the Exchange with immediate effect. …”
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11. The order of expulsion was unsuccessfully challenged by the
appellant before the Tribunal at Mumbai. The appellant’s primary
challenge rested in reference to respondents’ decision of
withdrawal of trading facility and subsequent action of closing
out of open transactions. While upholding the decision of
closing out of all the outstanding positions of the appellant under
clauses 17 and 18, the Tribunal observed thus:
“5. ….. Byelaw 17 permits closing out of outstanding
transactions only on failure to complete the same by the
trading member by the due date. However, this Byelaw is not
exhaustive and does not preclude closing out the dealings in
securities under other circumstances. …”
Interpreting the combined effect of both the clauses, the
Tribunal, in the same para, further observed thus:
“5. ….. It is a cardinal rule of interpretation that these
provisions have to be read harmoniously and one cannot be
read in isolation without appreciating the import of the other.
Byelaw 18 clearly permits closing out of contracts or dealings
in securities in such manner and within such time frame and
subject to the conditions and procedures as may be
prescribed from time to time by the relevant authority.
Closing out the contracts and the conditions and procedures
subject to which it could be done under Byelaw 18 is in
addition to the closing out under Byelaw 17. As already
observed, Byelaw 17 permits closing out only on the failure
of a trading member to settle the transaction by the “due
date” where as under Byelaw 18, closing out could be
resorted to for any other reason subject to such conditions
and procedures as may be prescribed by the relevant
authority. If Byelaw 17 is read to mean, as was argued by the
learned counsel for the appellant, that its provisions are
exhaustive and that under no other circumstances can NSE
close out the open positions of a trading member, then Bye
law 18 becomes otiose. Where was then the need to provide in
Byelaw 18 that closing out of contracts “shall be in such
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manner within such time frame and subject to such
conditions and procedures” when all these have been
prescribed in Byelaw 17. Obviously, Byelaw 18 contemplates
reasons and circumstances for a close out other than that
mentioned in Byelaw 17. Relevant authority has been defined
in the Byelaws to include NSE. …”
As regards the validity of the circular, the Tribunal confirmed
that the circular holds binding value and observed thus:
“5. ….. The word ‘prescribed’ as used in Byelaw 18 has not
been defined and the conditions and procedures as
contemplated by this Byelaw could be prescribed in any
manner including through a circular. It is not in dispute that
NSE adopted the circular dated May 19, 1997 which was
issued by NSCCL (which is also a relevant authority) and
circulated the same to its trading members for compliance
making it clear that noncompliance would be treated as a
breach of Rules, Byelaws and Regulations of the Exchange.
This circular undoubtedly provides for a closing out of
outstanding positions of the trading members even before the
due date in the event of withdrawal of their trading facilities
and that too, without any further notice to the trading
member. In other words, withdrawal of trading facilities of a
trading member as contemplated by the circular furnishes yet
another ground to the NSE to close out the outstanding
positions or dealings in securities. …”
The Tribunal also recorded certain observations regarding the
necessity of a power of this nature with the Exchange and noted
thus:
“5. ….. We cannot lose sight of the fact that a stock exchange
which is a primary level market regulator has also a duty to
protect the interest of the investors and the integrity of the
securities market. The conclusion that we have arrived at
based on the interpretation of Byelaws 17 and 18 would
advance that object. We are also of the view that it is essential
that a stock exchange should have the power to close out the
open transactions of a trading member when it finds that he
(the trading member) is trading recklessly beyond his gross
exposure limit as such limits, backed as they are by requisite
margins, are prescribed with a laudable objective of investor
9
protection. Such a power is essential to discipline the
recalcitrant trading members. In the absence of such a power,
the market and the investors would be exposed to a serious
threat and the stock exchange would be reduced to the
position of a mute spectator . ”
12. In the present appeal, the appellant has argued at length on
various aspects of the entire transaction. As regards the decision
of expulsion from membership, it is the case of the appellant that
the said decision was founded on an illegality as its trading
facility was wrongly withdrawn. The appellant has contended that
since the trading facility itself was interdicted, it could not have
been expected to keep up with various margins and deposits
prescribed by the respondents as no trading was being permitted.
13. The primary contention of the appellant relates to the vires
of the circular under which the trading facility of the appellant
was withdrawn. It has been submitted that the Tribunal failed to
appreciate that the said circular was in contravention of the
Byelaws, Rules and Regulations. It is urged that the adoption of
the said circular by the Exchange amounted to a violation of
1956 Act and thus being void ab initio, the appellant was not
bound by the said circular. To buttress this submission, it is
argued that NSCCL is merely a clearing house of the Exchange
and any circular issued by it cannot be accorded a legal sanctity
10
at par with the Byelaws, Rules and Regulations of the Exchange.
It is further argued that the disciplinary jurisdiction of the
Exchange must be exercised only in accordance with the Byelaws
and not any circular.
14. As regards the prescription of the said circular by the
Exchange to all trading members vide communication dated
19.05.1997, it has been submitted that by virtue of this
communication, the Exchange effectively indulged in amending
its own Byelaws by adopting the indirect route of issuing a
circular and thus, the communication was violative of Section
9(1) and 9(4) of 1956 Act along with Section 21 of the General
Clauses Act, 1897.
15. The next submission relates to the closing out of the
outstanding positions of the appellant. It is submitted that the
closing out was not done in accordance with clauses 17 and 18 of
the Byelaws as it was done before the due date . The argument
stems from the contention that clause 17 enjoins the Exchange
and Clearing Corporation not to close out any outstanding
position of a trading member until and unless such member has
failed to complete the delivery or payment by the due date. The
11
appellant has further submitted that clause 18 is nothing but a
concomitant provision of clause 17 and comes into play only after
closing out is done in accordance with clause 17 by complying
with the requirement of due date. Impugning the observation of
the Tribunal, it has been urged that clause 18 does not provide
for additional conditions/reasons of closing out and does not
operate independently of clause 17. Instead, both clauses
supplement each other.
16. Furthermore, the appellant has contended that on a proper
interpretation of clauses 17 and 18, it can be concluded that
once the relevant authority has closed out a transaction by
exercising power under clause 17, such closing out would take
place in such manner , within such time frame and subject to such
conditions and procedures as may be prescribed from time to
time. Closing out, as per the appellant’s contention, begins in
clause 17 and culminates in clause 18.
17. To counter the submissions of the appellant, the
respondents have submitted that both for admission and
continuation of membership, the Byelaws of the Exchange
provide for payment of fees, security deposit and other monies as
12
may be specified by the Board or the relevant authority from time
to time. Furthermore, they also provide for maintaining various
margins with the Exchange and Clearing Corporation, and state
that any contravention of the same is proceeded against as per
the Rules. Similar provisions for admission and continued
admission are provided in the Byelaws of the Clearing
Corporation as well.
18. Addressing the challenge to the Tribunal’s interpretation of
clauses 17 and 18, the respondents have submitted that the
Tribunal has rightly concluded that clause 17 is not exhaustive
as far as the action of closing out is concerned, and there could
be other circumstances wherein the action of closing out ought to
be taken in the investors’ interest. Clause 17 does not preclude
invoking other just circumstances. As per the respondents, such
circumstances are covered by clause 18 which operates in
addition to clause 17. It is further submitted that a stock
exchange must have the power to close out transactions of a
trading member when it discovers any reckless conduct in the
market, including exceeding the specified gross exposure limits
subject to which the trading platform is allowed to the trading
members.
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19. In reference to the existence of authority of the Clearing
Corporation to issue such circular, the respondents have
submitted that the appellant had extended an unconditional
undertaking in favour of the Clearing Corporation whereby it
undertook to comply with and be bound by the Rules, Byelaws,
Regulations, circulars etc. issued by the Corporation from time to
time. Thus, the appellant is estopped from going back on its
undertaking. It is further submitted that the circular does not
override or contravene any of the Byelaws, Rules or Regulations
framed by the Exchange.
20. As regards the decision of expulsion, the respondents have
submitted that the appellant was liable to maintain the Interest
Free Security Deposit with the Exchange as he continued being a
member of the Exchange despite the suspension of trading
facility. It has been further submitted that the appellant was
granted multiple opportunities to make good the shortfall in
deposits but failed to comply with its obligations even after the
decision of suspension.
21. Addressing the challenge regarding the requirement of prior
approval for the subject circular from SEBI/Central Government
14
as per 1956 Act, the respondents have submitted that the
Byelaws of the Exchange were brought into operation only after
the approval of the Central Government, as mandated under the
Act, and the said circular was issued in furtherance of the
powers of the Exchange in the Byelaws. Therefore, since the
Byelaws were brought into force after approval of the Central
Government, no further approval was necessary for taking action
under the said Byelaws. To reinforce, it is urged by the
respondents that the designated authority of the Exchange,
under clause 18, is vested with the power to prescribe the “due
date”, “manner”, “time frame” and “conditions and procedures” as
regards the action of closing out and thus, any such action does
not warrant any further approval from SEBI.
22. We have heard learned counsels for both the parties at
length.
23. Having examined the submissions of the parties and
documents on record, we are of the view that the following
questions of law emerge for our consideration in the present
appeal:
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(i) Whether prior approval of SEBI/Central Government
was essential for enforcing the circular dated
19.05.1997 against trading/clearing members?
(ii) Whether the circular is invalid as being in conflict with
the Byelaws of the Exchange, particularly regarding
the manner of closing out prescribed therein?
(iii) Whether the appellant is legally bound by the subject
circular which allows the withdrawal of trading facility
and forthwith closing out of open positions?
(iv) Whether the appellant was obligated to maintain the
prescribed Interest Free Security Deposit and other
deposits, despite the withdrawal of its trading facilities,
for continued membership of the Exchange?
24. The intertwined nature of the provisions involved in the
determination of the aforesaid questions requires us to analyse at
length the scheme and scope of the Byelaws, Rules and
Regulations of the Exchange and the Clearing Corporation visa
vis the 1956 Act and Securities and Exchange Board of India Act,
6
1992 .
25. The 1956 Act was brought into force “to prevent undesirable
transactions in securities” by regulating the securities market. In
furtherance of this objective, the legislature provided for
6 for short, “the 1992 Act”
16
recognition of a stock exchange under Section 4 of the Act on the
following terms:
“4. (1) If the Central Government is satisfied, after making
such inquiry as may be necessary in this behalf and after
obtaining such further information, if any, as it may require,
—
(a) that the Rules and Byelaws of a stock exchange
applying for registration are in conformity with such
conditions as may be prescribed with a view to ensure
fair dealing and to protect investors;
...
...
it may grant recognition to the stock exchange subject to the
conditions imposed upon it as aforesaid and in such form as
may be prescribed.”
After specifying that the Byelaws and Rules of a stock exchange
require prior approval of the Central Government, subsection (5)
of Section 4 imposes the same condition on any amendment of
such Rules in the following terms:
“(5) No Rules of a recognised stock exchange relating to any
of the matters specified in subsection (2) of section 3 shall be
amended except with the approval of the Central
Government.”
On a plain reading of the aforequoted provisions, it is seen that
the central scheme of 1956 Act reveals that the requirement of
prior approval, in relation to matters specified in subsection (2)
of Section 3, of the Central Government, be it at the time of
original framing of Rules of the Exchange or upon amendment
thereof, is essential or prerequisite. This mandate of Central
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Government was later entrusted to SEBI vide S.O. 672 (E), dated
13091994, published in the Gazette of India, Extra., Pt. II,
Section 3 (ii), Dated 13091994 (for prior approval at the time of
framing); and vide S.O. 573 (E), dated 30071992, published in
the Gazette of India, Extra., Pt. II, Section 3 (ii), dated 3007
1992 (for prior approval at the time of amendment) by issuing
orders under Section 29A of the 1956 Act, which at the relevant
point of time read thus:
“29A. Power to delegate.—The Central Government may, by
order published in the Official Gazette, direct that the powers
exercisable by it under any provision of this Act shall, in
relation to such matters and subject to such conditions, if
any, as may be specified in the order, be exercisable also by
the Securities and Exchange Board of India.”
26. Be it noted that the legislature has omitted the usage of the
word “Regulations” or “circulars” in the parent Act; and as far as
the governance of a stock exchange is concerned, the supervision
or control of the Central Government/SEBI at the time of
granting recognition to the stock exchange is limited to being
satisfied that the Rules and Byelaws of the stock exchange
applying for registration are in conformity with such conditions
as may be prescribed for ensuring fair dealing and protecting
investors. The domain of framing Regulations is kept separately
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in a standalone manner in the Byelaws of the Exchange and not
in the Act. The framing of Regulations concerning governance of
stock exchange is reserved for the Exchange.
27. For deciding the first question, we may now advert to NSE
Byelaws, 1994, to understand the true import of the subject
circular. In the chapter on “Definitions”, clause (10) defines
“Regulations” to include business rules, code of conduct and
such other Regulations prescribed by the relevant authority from
time to time for the operations of the Exchange and they are
declared to be subject to the provisions of the 1956 Act, Rules
and 1992 Act. The definition is merely an inclusive definition and
not exhaustive. The relevant authority here is the Board of the
Exchange. Such Regulations can be prescribed on a wide range of
matters as indicated in “Chapter III – Regulations”, including
capital adequacy norms or “any other matter as may be decided
by the Board” . Thus, the scope of “Regulations” that can be
prescribed by the Exchange is expansive so as to cover all issues
relating to governance of the Exchange.
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28. Coming to “Chapter V Trading Members” of the Byelaws,
clause (2) specifies certain “Conditions” for the Trading Members.
Subclause (a) of clause (2) is instructive which reads thus:
“(a) Trading members shall adhere to the Bye Laws, Rules
and Regulations of the Exchange and shall comply with such
operational parameters, rulings, notices, guidelines and
instructions of the relevant authority as may be applicable.”
(emphasis supplied)
The above clause signifies that apart from framing Regulations,
the Byelaws also empower the Exchange to issue instructions
regarding operational parameters, guidance etc. for the trading
members. The term “operational parameters” is crucial.
Chapter IX of the Byelaws, in clauses (5) and (6), titled
“Transactions and Settlements” specifies certain operational
parameters for trading. Clause (5) empowers the relevant
authority of the Exchange to “determine and announce” from
time to time certain operational parameters which may include
“trading limits” and “capital adequacy norms” as per clause (6).
Clauses (5) and (6) read thus:
“Operational Parameters for Trading
(5) The relevant authority may determine and announce
from time to time operational parameters regarding dealing of
securities on the Exchange which trading members shall
adhere to.
(6) The operational parameters may, inter alia, include:
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(a) trading limits allowed which may include
trading limits with reference to net worth and
capital adequacy norms;
…..”
Notably, clause (5) of Chapter IX of the Byelaws uses the phrase
“the relevant authority may determine and announce” the
operational parameters. Both “determination” and
“announcement” of such parameters is therefore, within the
competence of the Exchange. Such announcement can be made
by the Exchange by circulating a communication amongst the
members, as it rightfully did in the present case by way of the
subject circular. A similar clause has been inserted in Chapter VI
of the Byelaws of the Clearing Corporation as well, thereby
empowering the Clearing Corporation to issue operational
parameters relating to trading limits and consequent actions in
case of noncompliance.
29. The subject matter of the circular in question pertains to
trading/exposure limits coupled with sanctions in case of non
compliance. That falls squarely within the ambit of operational
parameters (as seen in clauses produced above), which can be
determined and notified by the Exchange from time to time. In
this case, the Exchange adopted the circular from the Clearing
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Corporation and notified it in the form of operational parameter.
Nothing is brought to our notice from the text of this circular that
it would militate against the norm of fair dealing and protection
of investors. In any case, no requirement of prior approval is
provided for notifying such operational parameters and as the
name suggests, they are meant to tackle “operational” concerns
as and when they emerge before the Exchange or the Clearing
Corporation. The power and mode of prescription of such circular
falls within the residuary powers reserved for the Exchange.
30. At this stage, we consider it apposite to make a brief
reference to Section 9 of the 1956 Act which provides for the
power of a recognised stock exchange to make Byelaws for
regulation and control of contracts. The terms “regulation” and
“control” cannot be narrowed down and must receive a wide
meaning. For, the contours of circumstances that may emerge
between an exchange and a trading member in the process of
regulation and control cannot be comprehended or cabined
beforehand and thus, the Act permits the Byelaws to be
armoured with a diverse set of measures so as to enable the
Exchange to deal with unspecified situations that may emerge
during such regulation and control of contracts. Subsection (2)
22
and (3) further signify that matters relating to clearing house,
settlements, suspension and expulsion from membership etc. are
best left to be dealt under the Byelaws. Relevant extract of sub
section (3) reads thus:
“9. Power of recognised stock exchanges to make byeLaws
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) The Byelaws made under this section may—
(a) xxx xxx xxx
(b) provide that the contravention of any of the
Byelaws shall render the member concerned liable
to one or more of the following punishments,
namely: —
(i) fine;
(ii) expulsion from membership;
(iii) suspension from membership for a
specified period;
(iv) any other penalty of a like nature not
involving the payment of money.”
This provision reinforces that the power to regulate and control
the trading contracts enables the Exchange not only to make
Byelaws and Regulations but to provide for everything therein
which might be necessary (and permissible) for ensuring efficacy
and vigour in the exercise of just power of control and regulation.
It is in this light that the operational parameters or Regulations
framed under the Byelaws are to be understood. For, without
23
such power, the Exchange would be rendered toothless in
controlling and regulating the contracts.
31. A priori, it must follow that the legislature has bestowed
upon the Exchange sufficient freedom of action to effectively
control and regulate the functioning of stock brokers who use the
Exchange as a means to enter into financial relationships with
the investors and common public. This freedom of action is
guaranteed in the preapproved Byelaws which enable the
Exchange to frame Regulations, instructions, operational
parameters, notice etc. and bring them into force without
subjecting them to any added condition of prior approval of the
Central Government/SEBI. The only limitation on this power of
the Exchange is that such Regulations or operational parameters
issued under the Byelaws are subject to 1956 Act, 1992 Act and
Rules framed thereunder. Strictly speaking, this limitation does
not ipso facto mean that such Regulations or operational
parameters are subject to prior approval, as argued. To say that
would result in rewriting of the provisions in question. The same
is forbidden. The import of this subjection clause is merely to
specify that any such Regulation/operational parameter must not
24
run counter to the provisions of 1956 Act or 1992 Act, as the
case may be, including the Rules framed thereunder.
32. Indubitably, the Exchange provides a middle ground to the
stock brokers and investors dealing with public
funds/investments, and considering the nature of activities
undertaken in a stock market, it is the bounden duty of the
Exchange to fortify the public trust. In doing so, the Exchange is
required to prevent and remedy all possible mischief “on a real
time basis”. To that end, it may prescribe a set of parameters for
fulfilling its objective of “ regulating ” and “ controlling ” the stock
market, as stated in the Preamble of the Act. Since the Byelaws
and Rules of the Exchange are duly approved by the Central
Government/SEBI, it can safely be stated that actions taken by
the Exchange under the Byelaws or Regulations by prescribing
such operational parameters in the form of a circular and in
consequence thereof as discussed above – would assume
enforceable character. The appellant having submitted an
undertaking to comply with such instructions, notice etc., cannot
be heard to argue to the contrary. The Court by interpretative
process ought not to limit the efficacy of such a valid document
25
by additional preconditions such as prior approval, not
envisaged by the lawmakers or regulation framing authorities. To
do so would entail in undermining the authority of the Exchange
to regulate and control the stock market, directly or indirectly.
33. The act of adoption of this circular by the Exchange and
circulation of the same amongst the trading members was within
the domain of the Exchange in terms of its Byelaws, and unless a
case for such instructions to be ultra vires the Byelaws or the Act
is made out, there is no reason to undermine its intended effect.
34. The contention of the appellant that the act of adoption of
this circular by the Exchange amounts to an indirect amendment
of the Byelaws is a tenuous argument. For, if every regulation or
instruction concerning any procedural matter for effective
regulation and control of the stock market prescribed by the
Exchange, in furtherance of its powers coupled with duty under
the Byelaws, is to be deemed as an amendment merely because it
provides for something in addition to the Byelaws (but not
repugnant thereto), it would make various other operational
clauses of the Byelaws repugnant. That cannot be countenanced.
26
35. The operational freedom of the Exchange cannot be stifled
on mere assumptions and the burden lies on the claimant to
demonstrate a real conflict between the exercise of power and
source of power. Arguendo, had it been a deviation from the
Byelaws, in the sense that the circular was defeating and not
furthering the scope and objective of the Byelaws, it could have
been examined as a constructive amendment or amendment by
th
implication. Black’s Law Dictionary 11 Edition defines an
“amendment by implication” as:
“ Amendment by Implication (1868). A rule of construction
that allows a repugnant provision in a statute to be
interpreted as an implicit modification or abrogation of a
provision that appears before it.”
Therefore, the principle of constructive amendment signifies that
unless a clear case of repugnancy is made out, the later
provisions could not be treated as modification or abrogation,
more so when such provisions further the intent of the source
provisions. The appellant, in our view, has failed to impress us on
this count.
36. In order to assail the validity of the circular, the appellant
has attempted to demonstrate a conflict between the circular and
the Byelaws regarding the manner of closing out contemplated in
27
the two. It is the case of the appellant that the circular
contravenes clause 17 of the Byelaws and thus, invalid.
37. For the same default, closing out action is contemplated
both under the Byelaws of the Exchange and the subject circular.
Clauses 17 and 18 of the Byelaws of the Exchange provide for
closing out. It is pertinent to note that since action is open under
both, it is necessary to ascertain whether these corresponding
closing out provisions entail any conflict amongst each other, as
alleged.
38. In order to understand the scheme, it is important to
reproduce the relevant provisions. Closing out under clauses 17
and 18 of the Byelaws of the Exchange is provided as under:
“Closing out
(17) Subject to the Regulations prescribed by the relevant
authority from time to time, any dealing in securities made on
the Exchange maybe closed out by buying in or selling out on
the Exchange against a trading member and/or Participant as
follows:
(a) in case of the selling trading member/Participant, on
failure to complete delivery on the due date; and
(b) in case of the buying trading member/Participant, on
failure to pay the amount due on the due date, and
any loss, damage or shortfall sustained or suffered as
a result of such closing out shall be payable by the
trading member or participant who failed to give due
delivery or to pay amount due.
(18) Closing out of contracts or dealings in securities and
settlement of claims arising therefrom shall be in such
28
manner within such time frame and subject to such
conditions and procedures as may be prescribed from time to
time by the relevant authority.”
39. Under clause 17, closing out is permitted under specified
and narrow circumstances i.e. only when a member of the
Exchange has failed on delivery or on payment. The phrase “on
failure to complete delivery” and “on failure to pay the amount
due” signify the clear scope of operation of clause 17. Understood
thus, clause 17 gets activated only when the default is in
payment of amount due in case of buying members or in delivery
of shares in case of selling members and not otherwise.
Succinctly put, clause 17 envisages closing out for failure to
complete the settlement operation. That, however, has no relation
whatsoever to a situation of closing out due to failure to trade
within defined limits, as specified by the Exchange, amounting to
violation of the Byelaws of the Clearing Corporation, as in the
present case. Whereas, clause 18 caters to another situation and
is textually different.
40. Let us now see how the action of closing out is envisaged in
the circular. The circular provides for the effect of violation of the
exposure limits and lays down that any such violation shall be
treated as a violation of the Byelaws of the Clearing Corporation,
29
without prejudice to the power of the Exchange to withdraw the
trading facilities. This withdrawal is contemplated as an
imminent action to protect the market from being exposed to
unsecured financial exposure. Consequent thereto, closing out of
open positions has been contemplated. The relevant extract of the
circular dated 19.5.1997 reads thus:
“….. Effect of violation of IntraDay Turn Over Limit and
Gross Exposure Limit.
Any violation of exposure limits will be treated as violation of
the Bye Laws of the Clearing Corporation and will entail
appropriate action under the Bye Laws and Rules of the
Clearing Corporation. In addition, and without prejudice to
the foregoing, the Clearing Corporation may, within such time
as it may deem fit, advise the Exchange to withdraw any or all
of the membership rights of the TM clearing member
including the withdrawal of trading facilities without any
notice. In the event of withdrawal of trading facilities, the
outstanding positions of the TM clearing member may be
closed out forthwith or any time thereafter by the
Exchange, at the discretion of the Clearing Corporation,
, by putting counter orders in respect
to the extent possible
of the outstanding position of the TM clearing member
without any notice to the TM clearing member. …”
(emphasis supplied)
41. Strictly speaking, the circular, as discussed above, triggers
a closing out action upon fulfilment of two conditions:
(i) exceeding the gross exposure limits while trading;
(ii) failure to deposit additional capital within such time as
may be granted by the Exchange/Clearing Corporation
for continuance of trading.
30
42. It must be carefully noted that the nature of closing out
prescribed in the circular does not envisage any failure in
delivery or in payment to complete the settlement, unlike in
clause 17. The conditions in the circular operate on a more basic
level and are concerned essentially regarding the eligibility of a
trading/clearing member venturing beyond the market exposure
limits defined in the context of the advance security deposit. That
is the condition and procedure prescribed from time to time by
the relevant authority for dealing in securities by the member.
For such noncompliance, the power ascribable in clause 18 may
be attracted.
43. After venturing beyond such limits, it may very well be
possible that such member is still in a position to deliver the
securities or to make the payment (depending on buying or
selling). For, merely venturing beyond the exposure limits does
not ipso facto render a trading member incapable of completing
the settlement. But the circular does not go that far and attacks
the mischief of exceeding the predefined limits in a “reckless
fashion”. That is to preserve the interests of the unwary
investors. The very fact that a member has overexposed itself in
31
the market while trading is enough to give rise to the cause of
action under the circular. The action of forthwith closing out is of
an inchoate nature as it seeks to curb continued reckless
transaction, before it unfolds fully and damages the sanctity of
the market in an irreparable manner. Therefore, what is being
done under the circular is not the same as what is being done
under clause 17.
44. Clause 18, on the other hand, is of a residuary nature and
confers on the relevant authority of the Exchange the power to
close out certain positions on grounds not specified in clause 17.
The relevant authority, under clause 18, is empowered to
determine and prescribe the “manner”, “time frame” and
“conditions and procedures” in accordance with which such
closing out can take place. The key words used here are wide in
scope and are targeted to enable the Exchange to act effectively
and promptly according to the prevalent dynamic state of the
market by prescribing manner, conditions, procedures and time
frame for a closing out action. The mischief creators in a stock
market operate in a myriad set of ways and one cannot preset or
comprehend all possible methods of undermining the health of
the market. Thus, residuary situations of closing out may emerge
32
and clause 18 enables the Exchange to promptly act against such
attempt. The provision is premised on necessity. By reading in
any requirement of due date in clause 18, on the lines of clause
17, the court would be doing violence to the clear intent of the
clauses and the broad scheme of the Byelaws. Clause 18, as the
Tribunal observed, would be rendered nugatory. Even logically,
by importing a fictional requirement of “due date” in clause 18,
the Exchange cannot be expected to gloss over a clear case of
excessive reckless trading and allow the mischief to continue
until the due date has arrived. Thus, there is no occasion to
control the scope of clause 18 by establishing a fictional link with
clause 17.
45. Be it noted that clause 18 does not specify the “mode” of
prescribing the manner, time frame, conditions and procedures
necessitating closing out. In the present case, the appellant
violated the condition and procedure prescribed by the
Exchange/Clearing Corporation vide subject circular. Thus, the
manner of closing out contemplated in the circular is borne out
by clause 18 and we do not find any conflict, as suggested. Apart
from the circular, clause 16 of the Byelaws of the Clearing
33
Corporation also provides for closing out “on failure of a clearing
member to comply with any of the provisions relating to delivery,
payment and settlement of deals
or on any failure to fulfil the
terms and conditions subject to which the deal has been
. Clause 16 reads thus:
made”
“16. CLOSING OUT
(1) A deal admitted for clearing and settlement may be closed
out on failure of a clearing member to comply with any of
the provisions relating to delivery, payment and settlement
of deals or on any failure to fulfil the terms and conditions
subject to which the deal has been made, or such other
circumstances as the relevant authority may specify from
time to time. The deal may be closed out by the Clearing
Corporation in such manner, within such time frame and
subject to such conditions and procedures as the relevant
authority may prescribe from time to time.
…..”
46. The nature of action contemplated under clause 16 is in
furtherance of the basic mandate laid down under Section 9 of
the 1956 Act. For, section 9 of the Act clearly provides that all
contracts/deals on the market are subject to the Byelaws
(including Regulations, operational parameters etc. issued under
the Byelaws) and Rules of the Exchange. One of the
consequences of not acting in accordance with the Byelaws is
provided under clause 16, apart from other provisions.
Understood thus, this clause is yet another selfcontained
34
provision envisaging forthwith closing out, which goes on to show
that forthwith closing out is not a new phenomenon in the overall
scheme of things. We do not delve any deeper into the scope of
clause 16, for that is not the question before us.
47. To summarize, on a comprehensive view of the scheme of
closing out under the Byelaws of the Exchange, Byelaws of the
Clearing Corporation and the circular, we are of the view that an
action of forthwith closing out is permissible under the said
scheme, particularly clause 18, and thus, the circular is not ultra
vires clauses 17 and 18 of the Byelaws. Rather, the circular
furthers the spirit underlying clause 18.
48. Let us now examine the third question i.e., whether the
appellant was bound by the circular dated 19.05.1997.
49. As we move forward, we note that the SEBI (Stock Brokers
& SubBrokers) Regulations, 1992 were framed under Section 30
of the 1992 Act, with an objective to regulate the functioning of
stockbrokers by prescribing certain conditions. Regulation 9
specifies that any registration granted by SEBI shall be subject to
the conditions prescribed therein and reads thus:
“9. Any registration granted by the Board under regulation 6
shall be subject to the following conditions, namely—
35
(a) xxx xxx xxx
(b) he shall abide by the Rules, Regulations and Byelaws of
the stock exchange which are applicable to him;
...”
The same intent is advanced in Rule 9 of the Securities Contracts
(Regulations) Rules, 1957 which reads:
“ Contracts between members of recognised stock
exchange .
9. All contracts between the members of a recognised stock
exchange shall be confirmed in writing and shall be enforced
in accordance with the Rules and Byelaws of the stock
exchange of which they are members.”
50. A stock exchange is primarily engaged in three activities –
buying, selling and dealing in securities. In order to give effect to
these activities, the Exchange performs an array of operations of
which clearing and settlement form an integral part. As per the
Byelaws of the Exchange, the functions of clearing and
settlement were transferred to the Clearing Corporation by the
Exchange. Accordingly, the Clearing Corporation framed its own
Byelaws, similar to the Byelaws of the Exchange, for conducting
its operations. The appellant tendered an unconditional
undertaking in favour of both the entities – NSE and NSCCL –
stating that it shall abide by all the Rules, Regulations, Byelaws,
36
circulars etc. of both the entities. The undertaking dated
19.3.1996 reads thus:
“…..
1. That we shall abide by, comply with and be bound by the
Rules, Byelaws and Regulations of the Corporation as in
existence or as modified/amended by the relevant authority,
from time to time and also with any circular, order, direction,
notice, instruction issued and as modified or amended from
time to time by the relevant authority. ”
51. Notably, the undertaking given by the appellant to the
respondents fell within the broad scheme of the Byelaws/Rules,
and was a quintessential requirement for obtaining registration
as a stock broker as both 1956 Act and Byelaws subjected the
members to such conditions. Thus, the appellant is bound by the
undertaking so given. Even otherwise, assuming the absence of
undertaking, the very fact that a valid circular originated from
the statutory scheme of the Byelaws is sufficient to bind the
appellant with its provisions. Thus, the emergent legal position is
that the appellant had subscribed to both statutory as well as
contractual obligations with the respondents for functioning as a
stock broker. Any deviation from the said circular could invite
action under multiple provisions spreading across the Byelaws of
the Exchange and Byelaws of the Clearing Corporation, in
addition to the sanctions provided in the circular itself.
37
Understood thus, we are of the view that the appellant is
squarely bound by the circular and any breach of the same is to
be viewed accordingly.
52. We have no hesitation in observing that the view taken by
us is reinforced by the “Master Circular for Stock Brokers” issued
by SEBI on 01.06.2018 bearing headnote that “This Master
Circular is a compilation of relevant circulars issued by SEBI,
which are operational as on date of this circular ”. Annexure4 of
the Master Circular titled “Rights and Obligations of Stock
Brokers, SubBrokers and Clients” reiterates the correct legal
position under clause 2 thereof which provides that the stock
brokers are bound by all the Rules, Byelaws and Regulations of
the Exchange and circulars/notices issued in furtherance of
. The clause reads thus:
such Byelaws and Rules
“2. The stock broker, subbroker and the client shall be
bound by all the Rules, Byelaws and Regulations of the
Exchange and circulars/notices issued thereunder and
Rules and Regulations of SEBI and relevant notifications of
Government authorities as may be in force from time to time.”
(emphasis supplied)
53. We now advert to the question of expulsion.
38
54. In light of the above discussion, it is clear that the scheme
of 1956 Act enables the Exchange to resort to suspension and
expulsion of the members, in accordance with its approved
Byelaws and Rules. Section 3(2) of the Act specifies certain
matters that must be appropriately covered in the Byelaws or
Rules. Clause (c) of the said subsection expressly provides that
matters of admission, qualification, exclusion, suspension,
and readmission of members must be covered in the
expulsion
Byelaws/Rules. It reads thus:
“3.
Application for recognition of stock exchanges.
(1) xxx xxx xxx
(2) Every application under subsection (1) shall
contain such particulars as may be prescribed, and shall
be accompanied by a copy of the byelaws of the stock
exchange for the regulation and control of contracts and
also a copy of the rules relating in general to the
constitution of the stock exchange, and in particular, to –
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) the admission into the stock exchange of
various classes of members, the qualifications
for membership, and the exclusion, suspension,
expulsion and readmission of members
therefrom or thereinto;
…”
55. In 1992, SEBI issued letter No. SMDI/11087/92 dated
04.11.1992 titled “Capital Adequacy Norms for Brokers” whereby
the stock exchanges were directed to provide for norms relating
39
to capital adequacy in their Byelaws. Apart from specifying
certain requirements, the letter went on to state that “the stock
exchange shall continue to have the authority to impose suitable
margins as per their judgment in the context of the market
situation.” Therefore, a stock exchange stood empowered not only
to specify capital adequacy requirements for the trading members
but also to take action against the defaulting members.
56. Accordingly, for effectuating the mandate accorded upon the
Exchange as per the Act, NSE Rules, 1994 and the abovesaid
directive, it is obliged to deal with the subject of termination of
membership on that basis. Rule 28 thereof provides that a
trading membership can be terminated, apart from other ways,
by expulsion in accordance with the provisions contained in the
Byelaws, Rules and Regulations. Rules 31 and 32 of Chapter III
are relevant operative provisions for our consideration which lay
down various obligations for continued admittance of
membership and read thus:
“Failure to pay Charges
(31) Save as otherwise provided in the Bye Laws, Rules and
Regulations of the Exchange if a member fails to pay his
annual subscription, fees, charges or other monies which may
be due by him to the Exchange or to the Clearing House
within such time as the relevant authority may prescribe from
time to time after notice in writing has been served upon him
40
by the Exchange, he may be suspended by the relevant
authority until he makes payment and if within a further
period of fifteen days he fails to make such payment, he may
be expelled by the relevant authority.
Continued Admittance
(32) The relevant authority shall from time to time prescribe
conditions and requirements for continued admittance to
trading membership which may, inter alia, include
maintenance of minimum net worth and capital adequacy.
The trading membership of any person who fails to meet these
requirements shall be liable to be terminated.”
57. The same regulatory intent is reflected in the Byelaws as
well. Clause (1)(b) of ChapterV of NSE Byelaws, 1997 (the
operative Byelaws as regards the question of expulsion)
empowers the relevant authority to “specify prerequisites,
conditions, formats and procedures for application for admission,
termination , readmission etc. of trading members”.
Furthermore, clause (1)(c) of the same chapter provides that the
members desirous of admission or of continued admission may
be asked to deposit fees/security deposit in lieu of the same. The
clause reads thus:
“Appointment and Fees
(1) (a) xxx xxx xxx
(b) xxx xxx xxx
(c) Such fees, security deposit and other monies as
are specified by the Board or relevant authority would be
payable on appointment as trading member and for
continued appointment thereof.”
41
Consequence of failure to maintain the necessary deposits is
addressed in Chapter XII of the Byelaws wherein clause (1)
provides that such a member could be declared as a defaulter,
which in itself is a ground for expulsion in the NSE Rules, 1994.
The clause reads thus:
“(1) Declaration of Default
A trading member may be declared a defaulter by
direction/circular/notification of the relevant authority of the
trading segment if:
(a) he is unable to fulfil his obligations; or
...”
58. A holistic view of the scheme exposited above vividly reveals
that the Exchange not only had the authority to specify various
deposit related requirements but also had the power to expel a
member in case of default. In the present case, it is not in dispute
that the Interest Free Security Deposit to be maintained by the
appellant actually fell short of the required margins during the
relevant period. Therefore, we are neither on question of existence
of power to expel nor on the factum of whether or not the
deposits fell short of the prescribed margins. What falls for our
examination, here, is the sole question as to whether the
obligation of the appellant to keep up with the adequacy of
42
deposits continued despite the withdrawal of its trading facility.
An affirmative answer would justify the expulsion.
59. Be it noted that the relationship between a stock exchange
and trading member runs across various levels. Admission to
membership, continuation of membership, denial of trading
facilities, imposition of fines, calling for additional deposits,
suspension of membership and expulsion of membership are
various facets of this relationship. Action against members is to
be taken only upon violation of conditions and procedures
therefor. It is a serious matter and resorted to only upon the
fulfilment of conditions specified in the Byelaws, Rules,
Regulations or even in operational parameters, as seen above.
Notably, the conditions required for withdrawing the trading
facility are distinguishable from the conditions required for
suspension/expulsion of membership. Under the relevant
provisions, withdrawal could take place upon a standalone
violation of certain operational parameters on a given trading day
(like exceeding the exposure limits as in the present case).
Whereas, expulsion would take place upon a sustained violation
of membership obligations (like failure to maintain the base
capital and also for failure to replenish the prescribed amount)
43
within the time frame specified therefor. The two actions vary not
only in their texture, but also in their resultant effect.
Withdrawal, for instance, does not extinguish the membership. It
acts like a halt for indulging in further trading activity.
60. To say that mere withdrawal of trading facility would ipso
absolve a trading member from keeping up with other
facto
obligations towards the Exchange for continuation of
membership would result into an anomalous situation. It would
amount to the diffusion of one stage of the relationship with the
other, and would become a concocted way to extend benefit for
its own wrong to a defaulting member. Such a consequence could
not be intended to result from an action of withdrawal of trading
facility. For, the withdrawal of trading facility is a temporary or
interim action which is taken against an erring member to
prevent him from continuing on a mischievous path during the
trading hours and to take corrective steps forthwith. The nature
of this action is preventive and the provisions governing this
action provide for certain remedial acts, like depositing additional
sums to increase the exposure limits, the performance of which
can help a member in resuming his trading operations. The
44
obligations for continued admission as a member are entirely
different and merely because trading has been halted due to a
member’s own default, it does not result in a hiatus situation or
extricate him from membership obligations. If that were to be the
case, there was no need for the Byelaws to provide these actions
separately.
61. Pertinently, the capital adequacy norms, as discussed
above, are meant both for admission as a member and for
continuation as a member. Even the language of the governing
provision i.e. Rule 32, signifies that requirements relating to
capital adequacy are meant for
“continued admittance to trading
membership” and thus, the mandatory obligations would
continue, as long as membership is formally continued. Despite
the temporary action of withdrawal of trading facility, a member
continues to be a member of the Exchange with all corresponding
rights and obligations intact on both sides. A member can always
resign from the membership of the Exchange and move out of all
fiscal obligations after settling his dues, but as long as he opts to
retain his membership of the Exchange, there is nothing in the
governing provisions to support the view that withdrawal of
45
trading would automatically extricate the defaulting member
from his obligation regarding annual charges and margin
requirements, as the case may be. The timely fulfilment of these
requirements has been envisaged in the Byelaws as a pre
condition for admission or in the
continued admission
Exchange. Despite closer examination of the Byelaws, Rules and
Regulations of the Exchange, we could not find anything to
support a contrary view. The continuation of membership and
fulfilment of capital adequacy norms run coterminously with
each other, and failure to comply with the latter would
automatically put the former in jeopardy.
62. Having observed that the appellant failed to maintain the
requisite membership margins with the Exchange for a long
period and refused to make up for the shortfalls when called
upon to do so by the Exchange, there is nothing to deviate from
the view taken by the Tribunal that the appellant acted in
contravention of the Byelaws and Rules of the Exchange
necessitating unto termination. The actions taken by the
Exchange, thus, were in accordance with the law.
46
63. ScheduleII of the SEBI (Stock Brokers and SubBrokers)
Regulations, 1992 prescribes a “Code of Conduct” for the stock
brokers and clause 5 thereof specifies that compliance with
statutory requirements is a mandatory aspect of code of conduct
of a stock broker. The appellant consistently failed to comply with
the requirements and acted in a manner which was prejudicial to
the sanctity of a MemberExchange relationship.
64. To conclude, we hold that the Tribunal rightly confirmed the
order of expulsion and we uphold the same.
CIVIL APPEAL NO. 9571 OF 2019
65. The seminal question involved in this appeal is about the
mode of dealing with withheld securities of a defaulting member
by NSE/NSCCL, consequent to his expulsion. The cause
espoused in this appeal is in the backdrop of the decision of
withdrawal of trading facilities of the appellant dated 13.10.1997,
followed by withholding of various securities by the Exchange,
purportedly belonging to the appellant. Concededly, there was no
immediate challenge by the appellant against this decision of
withholding of securities. It was only in Appeal No. 84 of 2008
47
filed before the Tribunal on 05.05.2008, the appellant had made
grievance about the nonreturn of stated withheld securities.
66. Thereafter, further communication ensued between the
parties as regards the withholding of securities. On 20.10.2008,
representatives of the appellant were permitted by the respondent
Exchange to inspect the physical records of securities at the
premises of the Exchange and as reflected in the records, such
inspection did take place. However, no legal action was initiated
by the appellant after this event for securing the release of the
stated securities. The appellant, after a gap of almost six years,
called upon the Exchange vide letter dated 21.02.2014 to return
the withheld securities. It was done purportedly to prevent the
flow of corporate benefits on those securities to third parties in
whose name the securities stood registered in the books of the
companies. Similar communications were sent on 04.04.2014
and 03.05.2014 to NSE and SEBI respectively.
67. The appellant then approached the Securities Appellate
Tribunal in Appeal No. 238 of 2014 praying for the release of
withheld securities. On 09.09.2014, the counsel for the Exchange
proposed to hear the appellant as regards the question of
48
withheld securities and accordingly, the Tribunal relegated the
parties before NSE for passing a reasoned order on the said
question. The Defaulter’s Committee of the Exchange heard the
appellant and passed an elaborate order dated 04.12.2014
justifying the withholding of securities. This order was finally
challenged by the appellant before the Tribunal on 17.01.2015 in
Appeal No. 118 of 2015. The challenge was turned down by the
Tribunal vide order dated 04.06.2019 (impugned order).
68. To understand the present challenge, it is apposite to note
that the Tribunal decided the appeal on a narrow question which
finds mention in para 5 of the impugned judgment as:
“5. The basic question raised in this appeal therefore is
whether the respondent NSE is legally entitled to withhold the
securities of the appellant who has been suspended/expelled
with effect from 2005/2006.”
69. The Tribunal, after adverting to the relevant provisions, in
para 8, opined that the stated issue had been and stands
answered in Appeal No. 84 of 2008, wherein the order of
expulsion was upheld. The Tribunal then went on to answer the
question on merits and observed thus:
“9. In any case dehors this ground of multiple litigations, on
merit we find that the question of dues owed by the appellant
to NSE and NSCCL has been communicated to the appellant
multiple times giving calculations etc. The appellant has
49
never questioned the calculations except stating that
sufficient funds were available with the respondent in October
1997 which could have been utilized towards settlement
obligation. However, given the trajectory of the legal recourse
resorted to by the appellant and thereby limiting the powers
of the respondent in utilizing those deposits, this contention
that the respondent could have utilized the money available
does not stand any merit ...”
Subsequent to this observation, the Tribunal determined the total
liability of the appellant towards the respondents (Exchange) and
arrived at a final figure of Rs.2.41 crores. It further stated that
the respondents were well within their rights to withhold the
securities and realise the amount owed to them. The relevant
extract of the impugned order in this regard reads thus:
“12. After carefully perusing the documents and the
submissions made by the parties we have no doubt that the
appellant owe an amount of Rs.2.41 crore to respondent
NSE/NSCCL. Since the appellant is not ready to give this
amount Respondent no. 1, is well within its rights to use the
securities of the appellant withheld by them, to the tune of
Rs.2.41 crore. Such calculations should also include
corporate benefits such as bonus, dividends etc. if any
accrued to NSE over the period as beneficial owner of the
withheld securities. Needless to say that if any excess value is
received or if the amount of Rs.2.41 crore is received by
disposing of part of the securities withheld either the excess
value or the remaining securities or both shall be returned to
the appellant within one month from the date of this order.”
70. While assailing the order of the Tribunal before this Court,
the appellant has primarily contended that the Tribunal misled
itself by answering whether the respondents could have withheld
the securities of a defaulting member, whereas, the real question
50
was whether such securities could have been withheld despite
the respondents being in possession of deposits equivalent to an
amount exceeding the claim of the respondents and also whether
such securities could have been withheld without getting them
registered in the name of the respondents.
71. It is the case of the appellant that on the relevant date, the
alleged amount due from the appellant stood at Rs.1.32 crore
and the amount of deposits retained by the respondents was
around Rs.1.34 crore and since the security deposit already
exceeded the amount due, there was no occasion for the
respondents to withhold the securities in order to realise any
amount over and above the stated liability.
72. The thrust of the appellant’s challenge is that as and when
securities of the defaulting member are withheld by the
Exchange, the Exchange being trustee thereof is under an
obligation to get such securities registered in its name so as to
prevent third parties from unduly deriving the corporate benefits
(bonus, rights issues, dividends etc.) thereon, as and when they
may accrue. It is the case of the appellant that in the present
case, the Exchange merely sat over the withheld securities
51
without further dealing with them in any manner whatsoever and
for its inaction the appellant cannot be made to suffer.
73. Though not addressed by the Tribunal in the impugned
judgment, the appellant had also raised a question as regards the
applicability of Rule 20(f) of Chapter IV of the NSE Rules as the
said rule came into effect from July, 2001 onwards. According to
the appellant, since the original decision of withdrawal of trading
facilities was taken in 1997, the said rule could not be applied to
the appellant. Be it noted that the said rule permits the
application of Chapter XII “Defaults” of NSE Byelaws enabling
realisation of withheld assets of the expelled member.
74. Per contra, the respondents would contend that it was not
open to them to use the deposits worth Rs.1.34 crore to settle the
dues owed by the appellant for the reason that the appellant had
initiated a bunch of legal proceedings at various forums across
the country from 1997 to 2006. Resultantly, the securities had to
be withheld as per the rules in order to secure the liability and
because the appellant had failed to meet its settlement
obligations. It was not because of his expulsion as such. Further,
52
such withholding was in tune with the Regulations of NSE and
NSCCL and with the circular dated 19.05.1997.
75. Responding to the appellant’s contention regarding the
appropriate manner of dealing with the withheld securities, the
respondents have extensively relied upon Regulation 9.12 of NSE
(Capital Market) Regulations whereby they are empowered to deal
with the withheld securities at such times and in such manner as
they may deem fit. Placing reliance upon the bare language of the
Regulation, it has been submitted that “such manner” of dealing
may include appropriating the withheld securities for the
discharge of outstanding obligations, closing out the withheld
securities or registering such securities in the name of the
respondent or any other entity as the case may be. In other
words, the manner of dealing by the respondents cannot be
constricted.
76. The respondents would submit that upon expulsion of a
member, the Exchange is well within its rights to realize the
withheld securities in fulfilment of the obligations of defaulting
member in accordance with Rule 20(f) of Chapter IV of NSE Rules
which specifies the consequences of expulsion. It is further urged
53
that Rule 20(f) became operative on 29.06.2000 whereas the
appellant was expelled on 05.01.2006 and thus, the said rule
was applicable to the case of appellant.
77. An objection has also been raised by the respondents as
regards the maintainability of the original appeal before the
Tribunal. It has been urged that the appeal was barred by the
principles underlying Order II Rule 2 of Code of Civil Procedure,
7
1908 and/or res judicata as the same issue was raised and not
pressed/rejected before the Tribunal in Appeal No. 84 of 2008.
78. Before we proceed, we hasten to note that the real issue is
not about the existence of power and authority of the
respondents to withhold the securities or other assets of a
trading/clearing member in cases of default. That is not disputed
even by the appellant. Thus, our examination revolves essentially
around the mode of dealing with the withheld securities. Having
gone through the impugned judgment, submissions of the parties
and documents on record, we are of the view that the following
questions emerge for our consideration in this appeal:
(i) Whether the respondents are obliged to forthwith
realise the withheld securities and appropriate the sale
7 for short, “the 1908 Code”
54
proceeds towards the dues payable by the appellant in
terms of Rule 20(f) of Chapter IV of NSE Rules read
with Chapter XII on “Defaults”?
(ii) As a consequence of withholding of securities of a
defaulting member, whether the respondents are
under a legal obligation to deal therewith as a prudent
person and more so as a “trustee”, and in discharge of
fiduciary trust/responsibility are obliged to get the
same registered with a view to protect the financial
interests of the defaulting member and persons
claiming through him?
79. Before answering the questions of law on merits, it falls
upon us to briefly examine the maintainability of the original
appeal before the Tribunal for relief relating to withheld
securities. Notably, in previous appeal registered as Appeal No.
84 of 2008, apart from challenging the expulsion of membership,
the appellant had also prayed for the release of withheld
securities. The prayer reads thus:
“(d) that the securities due to the Appellant and its
constituents and now retained by the first and second
Respondents may be paid out/return to the Appellant.”
It seems that the said relief was not pursued by the appellant
before the Tribunal in right earnest or taken to its logical end.
For, what is clear is that the aforequoted relief prayed in the
previous appeal whilst questioning the expulsion, was not
55
answered/granted by the Tribunal. Either way, the legal
consequence is that the second round of proceedings for the
same relief would not be maintainable. If the relief was prayed for
and given up during the course of the appeal without seeking
leave for agitating it at a later stage, the principle underlying
Order II Rule 2 of the 1908 Code may be attracted. Alternatively,
if the prayer was duly pursued before the Tribunal in the
previous appeal but not granted, in law, it would deem to be
refused. In which case, the principle of constructive res judicata
would act as a legal bar in the subsequent proceedings for that
very relief. We do not wish to dilate on this aspect as no such
plea was raised by the respondents in the stated proceedings in
2014. Rather, that appeal was allowed and claim regarding
withheld securities was relegated to the Defaulter’s Committee.
That remand order was acted upon by all concerned and against
which the present appeal arises before us.
80. The appellant would then contend that cause of action
accrued only after the Defaulter’s Committee’s order dated
04.12.2014, justifying the withholding of securities. This plea is
ex facie untenable. The said order of the Defaulter’s Committee
56
did not result in the withholding of securities. It merely supplied
reasons and justification for such withholding. The cause of
action, if at all any, had arisen to the appellant from the moment
their securities were withheld in 1997. Merely because a
subsequent order is passed to justify a prior action, it cannot be
a case of accrual of fresh cause of action to the aggrieved.
81. Be that as it may, we forbear from nonsuiting the appellant
on this technical objection, but as aforesaid, in the peculiar facts
of this case, we deem it appropriate to examine the subject
matter on merits. As per the general scheme of regulation of a
trading/clearing member, it is settled position that a member
whose membership has been terminated or who has been
expelled is not absolved from fulfilling his contractual or other
obligations in any manner. Rule 8(2) of Chapter IV and Rule 18(4)
of Chapter V of NSCCL Rules textualize this position. Rule 8(2),
for instance, reads thus:
“8. TERMINATION OF MEMBERSHIP
(1) xxx xxx xxx
(2) The termination of Clearing Membership shall not
in any way absolve the Clearing Member from any
obligations and liabilities incurred by the Clearing
Member prior to such termination.”
57
82. In the factual scheme of the present case, the foremost
thing to be noted is that there are two sets of assets in control of
the respondents – first , security deposits and second , withheld
securities. The security deposits came to be deposited on account
of membership obligations and the securities were withheld on
account of failure to complete settlements. Though the challenge
is limited to withheld securities, the provisions relating to such
securities address both these categories of assets collectively and
thus, they are being discussed accordingly for a comprehensive
view of their scope and operation.
83. As per clause (11) of Chapter XII of the NSE Byelaws titled
“Default”, the Exchange is vested with the power to realise the
assets of a defaulter member in due course. Clause (23)
complements this action and provides for the order of priority for
satisfying the claims. Clause (11) reads thus:
“Vesting of assets in the Exchange
(11) The Defaulters' Committee shall call in and realise the
security deposits in any form, margin money, other amounts
lying to the credit of and securities deposited by the defaulter
and recover all moneys, securities and other assets due,
payable or deliverable to the defaulter by any other Trading
Member in respect of any transaction or dealing made subject
to the Byelaws, Rules and Regulations of the Exchange and
such assets shall vest ipso facto, on declaration of any
trading member as a defaulter , in the Exchange for the
benefit of and on account of any dues of the Exchange ,
National Securities Clearing Corporation Limited, Securities
58
and Exchange Board of India, other trading members,
Constituents and registered subbrokers of the defaulter,
approved banks and any other persons as may be approved
by the Defaulters' Committee and other recognised stock
exchanges.”
(emphasis supplied)
It is noted that clause (11) provides for realisation of three
categories of assets:
(i) security deposits, margin moneys and other deposits;
(ii) securities which have been deposited by the defaulter
member; and
(iii) moneys, securities and other assets due, payable or
deliverable to the defaulter by any other Trading
Member and recovered by the Exchange.
Pertinently, different kinds of assets are subject to a different
procedure of realisation. After examining what all can be realised
under clause (11), we may now understand the modalities of
realisation.
Realisation of security deposits
84. Out of the three categories covered under clause (11),
security deposits can be called in and realised per se without any
additional condition. There is no requirement of vesting with
respect to such deposits neither in the language of clause (11)
nor in the overall scheme. It is so because the Exchange enjoys a
59
statutory lien over such deposits by way of clause (24) of Chapter
IX “Transactions and Settlements”, NSE Byelaws which
categorically provides that the Exchange has a first and
paramount lien over the monies, bank deposits and other
securities deposited by the trading member for any sum due to
the Exchange. It reads thus:
“Lien on Margins
(24) The monies, Bank Deposit Receipts and other securities
and assets deposited by a trading member by way of margin
under the provisions of these Bye Laws and Regulations shall
be subject to a first and paramount lien for any sum due to
the Exchange. Subject to the above, the margin shall be
available in preference to all other claims of the trading
member for the due fulfilment of its engagements, obligations
and liabilities arising out of or incidental to any bargains,
dealings, transactions and contracts made subject to the Bye
Laws, Rules and Regulations of the Exchange or anything
done in pursuance thereof.”
Be it noted that it covers only those assets which are voluntarily
deposited by the member with the Exchange. Forfeited/withheld
assets are not included herein. It is so because the property in
the deposited assets may vest in the Exchange by operation of
membership obligations, whereas such is not the case with
withheld securities. It is true that mere existence of lien may not
entitle the lienee to sell off the property for satisfaction of debt
without a court order. However, the same principle is not
absolute and the cases in which the statutory/contractual
60
scheme itself provides for such sale/realisation fall outside its
purview. It is settled that when lien itself is a creation of Byelaws,
Rules or Regulations etc., the scope, extent and operation of such
lien would also be governed by the same scheme. In
Unity
8
Company Private Ltd. vs. Diamond Sugar Mills and Ors. , it
was observed thus:
| “74. | The lien in the instant case has been created by the | |
|---|---|---|
| agreement contained in the Articles of Association of the | ||
| defendant company. The nature, extent, scope and effect of | ||
| the lien will, therefore, have to be determined with reference | ||
| to the Articles of the Company. While discussing Issue No. 2, I | ||
| have earlier held that the lien created by the Articles in the | ||
| instant case, cannot be equated to a mere equitable charge | ||
| and the lien is wider in its extent, scope and effect. Express | ||
| and specific power has been conferred on the company by | ||
| Article 36 to sell the shares in enforcement of the lien and by | ||
| Article 37, to apply the sale proceeds in satisfaction of the | ||
| debt. The Articles, to my mind, clearly and unequivocally | ||
| express the intention that the company, by itself, is | ||
| competent to enforce the lien by sale of the shares which are | ||
| subject to such lien and to apply the sale proceeds in | ||
| satisfaction of the debt or loan without recourse to an action | ||
| in a Court of Law for enforcement of the lien. | ...” |
Therefore, if provisions provide for realisation of such lien
property, the same may be given effect to in accordance with the
provisions. No external conditions can be read in such a scheme.
Clause (11) expressly provides for realisation of security deposits
as and when a member becomes subject to the provisions
relating to defaulters. The phrase
“shall call in and realise”
8 AIR 1971 Cal 18
61
signifies that realisation is warranted as an imminent action
upon declaration of defaulter in case the security deposits are
insufficient. The effect of this phrase is that once a trading
member has been declared a defaulter, the Exchange is duty
bound to realise the security deposits retained by it to satisfy its
obligations and return the remaining deposits, if any. If the
Exchange fails to do so, it may become liable to make good the
loss of interest to the defaulter on any amount over and above
the monetary obligation.
85. However, in the present case, no fault can be found in the
conduct of the Exchange as it had actually realised the deposits
at various points of time owing to the inability of the appellant to
keep up with the statutory margin requirements. As reflected in
the records, out of the total deposit of Rs.1.34 crores, amounts
equivalent to Rs.91,72,163.49 and Rs.41,00,000 had already
stood adjusted in favour of NSCCL and NSE respectively from
1997 to 2006. Thus, a total of Rs.1,32,72,163.49 was in fact
realised by the Exchange and it holds no merit to state that the
Exchange failed to perform its duty to realise the security
deposits. The amount of Rs.1.34 crores came to be added to the
total obligation again in 2017 when the Exchange returned the
62
security deposit amount pursuant to an order of this court
passed at the insistence of the appellant herein and thus, in law,
that cannot be held against the Exchange in any manner.
Withheld securities
86. Unlike the money deposits, no legal requirement of
forthwith realisation is envisaged in the case of withheld
securities, as discussed hitherto. To understand the procedure of
vesting and realisation of withheld securities, it is essential to
segregate the two kinds of securities and analyse it appropriately.
The withheld securities can be categorised as – securities in
which the appellant was a receiving member (receiving securities)
and securities in which the appellant was an introducing member
(introductory securities) . A member is termed as a receiving
member when it is supposed to receive the securities for orders
placed by it in a purchase transaction, subject to complete
settlement and payment. NSCCL Byelaws define a receiving
member as:
“13. RECEIVING MEMBER
"Receiving Member" means a clearing member who has
to receive or has received documents in fulfilment of
contracts to which these rules, byelaws and regulations
apply unless the context indicates otherwise.””
63
Whereas, a member is termed as an introducing member when it
introduces some securities to be transferred to the buyers in a
sale transaction, subject to the securities being free from any
objections.
87. During the trading period from 24.09.1997 to 30.09.1997,
the appellant defaulted in Settlement No. N1997039 and
delivered short of payment in lieu of securities for which
purchase orders were placed. An amount of Rs.45,56,513 became
due. Thereafter, during the trading period from 01.10.1997 to
14.10.1997, an amount of Rs.29.10 lakhs became due as
margins for trading on 01.10.1997 in Settlement No. N1997040.
In both these transactions the appellant was a “receiving
member”. On account of failure of appellant to complete the
aforesaid settlements by making complete payment, the
Exchange withheld the payouts of securities at various points of
time.
88. The remaining securities were withheld wherein appellant
was acting as an “introducing member” in the market. The
companies refused to complete the sale transactions initiated by
the appellant and to register the said securities in the names of
64
the purchasers citing some unresolved objections on the said
securities. Resultantly, they were returned back to the Exchange
and it became a case of bad delivery. As per the standard
procedure in force at the relevant point of time, the Exchange
participated in an auction in open market to procure the required
securities free from objections so as to complete the purchase
orders. Therefore, the objected securities were withheld by the
Exchange as a lien on the money paid by it in the auction
purchase. SEBI circular dated 16.07.1996 titled “Uniform Norms
for Good/Bad Deliveries” specifies this procedure. The relevant
extract thereof reads thus:
“iii) All stock exchanges shall adhere to the following time
schedule for dealing with the cases of bad deliveries.
a) In case of deliveries coming under objection
(objection cases), the first introducing broker of the
same stock exchange shall be required to rectify the
defects/replace the shares alongwith accrued
benefits within 21 calendar days from the date of
receipt of the objection and share certificates from the
last buying broker of that exchange. If the former fails
to rectify the defects or replace the shares or transfer
deeds, the exchange shall hold an auction for shares
in the immediately following Auction Session
according to the usual exchange procedure. The
shares obtained from such an auction shall be given by
the Exchange to the concerned buying broker. Further,
the exchange shall debit the price of the shares to the
account of the introducing broker of that Exchange. In
case the shares are not available through auction, the
exchange shall close out the transaction according to the
procedure of the exchange and the close out amount
65
shall be debited to the first introducing broker and
credited to the last buying broker of the exchange.”
(emphasis supplied)
89. As regards the introductory securities, it must be noted at
the very outset that these securities fall outside the purview of
our examination on vesting. For, they simply could not have been
realised by the Exchange at any point of time as they were merely
introduced by the appellant and did not belong to it. These
introductory securities were registered in the names of third
persons who are not parties to this proceeding. Concededly, there
could have been no loss to the appellant relating to corporate
benefits on these securities as it did not have any right therein,
to receive any such benefit. Property in those securities neither
vested in the appellant nor in the Exchange and they were held
by the Exchange only as a lien on the physical copies of shares to
the limited extent of obliging the appellant to fulfil its obligations.
The benefits on those securities remained in third parties, as they
must have, and no one has approached this court to raise the
grievance that they have suffered any wrongful loss as regards
those benefits. Even if any grievance exists between two clearing
members as regards the receipt or nonreceipt of those benefits,
the best course of action would have been to proceed by way of a
66
separate proceeding in that regard. Clause (11) of Chapter VI,
NSCCL Byelaws categorically provides for a privity of contract
between delivering and receiving clearing members. The interests
of those third parties are not a part of the present
lis.
90. Indisputably, the introductory securities have been marked
as objectionable by the companies; and securities with
outstanding objections are of no use to the Exchange for the
purpose of recovery so long as such objections are not removed.
The introductory securities fall outside the purview of the vesting
provision. Further, the responsibility of the Exchange was
limited to providing the appellant an opportunity to remove the
objections and continue withholding the securities in the interim.
Any enquiry regarding the legality or illegality of objections could
have taken place between the introducing member and the
respective companies. The same also cannot form a part of the
subject matter before us.
91. Therefore, actual recovery qua the appellant/defaulting
member could only be made from the “receiving securities” as
those securities were due/deliverable to the appellant and were
withheld as a collateral for the sole reason of nonpayment. No
thirdparty stake is involved therein.
67
92. Be that as it may, unlike money deposits, the “receiving
securities” withheld or recovered by the respondents require legal
vesting before they could be realised for the satisfaction of dues.
Here, it may be useful to advert to clause (11). The question is,
what procedure ought to be followed for realisation of “receiving
securities”. Is it forthwith realisation, or only upon its vesting in
law?
93. The provisions relating to withholding and vesting of
securities are provided in two separate documents. Whereas
vesting is provided under ChapterXII of NSE Byelaws titled
“Default”, withholding is provided under Chapter 9 of NSCCL
Regulations titled “NonDelivery and NonPayment”. It falls upon
us to harmonise the two sets of provisions in order to understand
the procedure in a holistic manner.
94. Regulation 9.5 provides that when a clearing member fails
to pay for securities on payin day, the Clearing Corporation is
entitled to withhold the securities thus:
“
9.5 Securities On Hold Or SellingOut On Failure To Pay
If a CM clearing member fails to pay on payin day for the
securities to be received by him, the Clearing Corporation
shall be, without further notice or intimation to the member,
entitled to withhold the securities due to the member or sell
68
out any/all of such securities in accordance with the Bye
Laws and Regulations relating to closingout.”
The above provision also enables the Corporation to sellout such
withheld securities to recover their dues in accordance with the
following provisions. Thereafter, Regulation 9.6 provides that
failure to make payment empowers the Corporation to declare
such member as defaulter. It reads thus:
“
9.6 Declaration Of Default
A CM clearing member failing to deliver the documents due
from him or pay the amount due by him may be declared a
defaulter as provided in these Bye Laws and Regulations.”
It is crucial to note that declaration of defaulter upon non
payment is not an express prerequisite for the recovery of dues
here. Regulation 9.7 provides that all deliveries of securities
which were due to the defaulter shall be handed over to the
Clearing Corporation so as to enable it to realise their dues from
those deliverable securities. It reads thus:
“ 9.7 Deliveries Due To The Defaulter
All deliveries, deliveries or otherwise, and payment due to the
defaulter shall be handed over to the Clearing Corporation.
The Clearing Corporation shall reserve the right to dispose of
the securities to make good nonpayment of funds or non
delivery of securities by the defaulting member in such
manner it deems necessary.”
Upon receipt of securities as per this Regulation, the action of
withholding is contemplated in Regulation 9.9 (Regulation 9.11 in
69
NSE Regulations). In the present case, it is seen that securities
deliverable to the appellant as a receiving member were withheld
by the respondents to clear their dues.
95. On withholding, the stage of vesting comes in and this stage
is important as vesting is a prerequisite for dealing with the
securities in any manner. There can be no action, be it of sale or
registration, against a property unless the property vests in the
entity. “Nemo dat quod non habet” is the fundamental principle of
transfer of property which, if literally translated, means “ no one
gives what they do not have” . Thus, unlike money deposits,
withheld securities cannot be realised without legal vesting under
clause (11).
96. We may now discuss the time/stage of vesting. Though the
requirement of declaration as defaulter may be a discretionary
one under the NSCCL Regulations, the same is a mandatory
requirement for vesting in clause (11). For, vesting takes place
upon declaration of any trading member as a defaulter. The
expression “and such assets shall vest ipso facto, on declaration
reinforces the view. Even
of any trading member as a defaulter”
otherwise, the main vesting provision is included in the chapter
70
on defaults and therefore, such declaration is necessary unless
otherwise excluded. Therefore, the right of the Corporation to
dispose of or realise these securities is circumscribed by the
requirement of declaring such member as a defaulter. In this
case, no such declaration came to be made. However, despite the
absence of any such declaration, vesting took place by way of
Rule 20(f) in Chapter IV of NSE Rules.
97. Rule 20(f) does away with the requirement of express
declaration of defaulter upon expulsion. It specifies that Chapter
XII on defaults would automatically become applicable upon a
member expelled from the Exchange. As per this Rule,
declaration of defaulter runs synonymous with the expulsion of a
member. It reads thus:
“Consequences of Expulsion
20. The expulsion of a trading member shall have the
following consequence, namely:
(a) – (e) xxx xxx xxx
(f) Consequences of declaration of defaulter to follow:
The provisions of Chapter XII and Chapter XIII of the
Byelaws pertaining to default and Protection Fund
respectively, shall become applicable to the Trading
Member expelled from the Exchange as if such Trading
Member has been declared a defaulter.”
The emergent position of law, therefore, is that vesting does not
take place in favour of the respondent Exchange unless a formal
71
expulsion order is passed. The relevant point of time, therefore, is
the date of expulsion. Without such legal vesting, the Exchange
only sits upon the withheld assets as a custodian. There is no
question of realisation. Such withholding is done to serve two
purposes – first , to persuade the defaulting member to fulfil its
obligations during the continuation of membership if it so wishes
and second , to secure the liability at the earliest available
opportunity as a preventive measure. If liabilities continue to be
unfulfilled, expulsion becomes an inevitable consequence and the
withheld assets vest in the Exchange.
98. It is thus clear that realisation cannot be done unless
vesting is complete and there is no obligation on the
Exchange/Corporation to forthwith realise the securities upon
withholding. Expulsion or declaration of defaulter, as the case
may be, is a precondition for realisation, which, in this case,
took place only in 2006. Even on applying rule of prudence, such
forthwith realisation would not be appropriate as such action
would deprive the defaulting member from an opportunity to
correct its mistake by settling liabilities within due course of time
without giving up membership.
72
99. Before proceeding further, we may note that a question has
been raised by the appellant regarding the applicability of Rule
20(f) in this case. For, the Rule was not in existence when
trading facility of the appellant was withdrawn. This plea, in our
opinion, is misconceived. In that, the Rule clearly signifies that it
applies to expelled members and the moment a member is
expelled from membership, this rule will automatically become
operative. Literally understood, the relevant point of time for
checking the applicability of this rule is the “date of expulsion”.
In the instant case, expulsion of the appellant took place in 2006,
whereas the said rule was inserted beforehand in 2001. Thus, the
rule was very much in force when the appellant was in fact
expelled. Consequently, the respondents were well within their
powers to realise the withheld securities in accordance with
clause (11) soon after expulsion in 2006.
100. We now deal with the issue regarding the manner of dealing
with withheld securities and requirement of registration. Upon
withholding followed by vesting, the manner of dealing is
provided under Regulation 9.10, NSCCL Regulations (Regulation
9.12, NSE Regulations), which reads as:
73
“ 9.10 . Withheld Securities and Funds – How dealt with:
The securities and funds withheld pursuant to regulation 9.9
and regulation 9.9A above shall be dealt with the relevant
authority at such times and in such manner as it may deem
fit, which may include appropriating the withheld funds for
the purpose of fulfilling the obligations of the clearing
member, closing out of the withheld securities or
registering the withheld securities in the name of the
Clearing Corporation or any other entity as decided by the
Clearing Corporation. The funds received out of closing out of
withheld or registered securities may be dealt with by the
Clearing Corporation at such time and in such manner as it
may deem fit.”
(emphasis supplied)
This Regulation predicates that the Clearing Corporation is
armoured with a set of measures as regards the withheld
securities. The first part of the Regulation vests the Corporation
with the power to deal with the securities at “such times” and in
“such manner” as it may deem fit. The Regulation then specifies
certain measures which may include:
a. closing out the withheld securities in the name of
Exchange or any other entity; or
b. registering the withheld securities in the name of
Exchange or any other entity;
Thereafter, in the concluding sentence it is further specified that
the funds received out of closing out of withheld or registered
74
securities may also be dealt with in such manner and at such
times as the Exchange may deem fit.
101. It is therefore clear that the respondents had two courses of
action open for dealing with the securities – and
closing out
registration . Chapter 10 of NSCCL Regulations titled “Closing out
of Contracts” delineates the manner of closing out. Regulation
10.6 provides that once a member is declared defaulter, the
Corporation “shall determine” all outstanding deals by closing
out against the defaulter member. It reads thus:
“
10.6 ClosingOut Contracts With Defaulter CM clearing
member
If a CM clearing member be declared a defaulter, the Clearing
Corporation shall determine all outstanding deals by closing
out against him in accordance with the Bye Laws and
Regulations relating to default.”
102. Thus, the Corporation is duty bound to close out all
outstanding deals against the defaulter and “determine” them for
the purpose of its recovery. Regulation 10.9 specifies the manner
of such determination and reads thus:
“
10.9 ClosingOut How Effected
Closing out shall be effected against the CM clearing member
by the Clearing Corporation in any of the following manners:
(a) by buyingin or sellingout against the CM clearing
member through an auction initiated by the Clearing
Corporation
75
(b) by declaring a closingout at such prices as may be
decided by the relevant authority
(c) by buyingin or sellingout against the CM clearing
member by placing order in the specified exchange
(d) in any other manner as the relevant authority may
decide from time to time.”
The Corporation is empowered with a set of methods to close out
the outstanding deals against the appellant. Upon vesting, it
could have sold out the withheld securities through an auction or
by placing an order of sale in Exchange or in any other
permissible manner.
103. The other action contemplated in Regulation 9.10 is of
registration. The grievance is that the Exchange held on to the
securities without registration. According to the appellant, it was
abuse of discretionary powers and the respondents ought to have
registered the securities in its name forthwith.
104. To determine the requirement of registration, we need to
resort to a true construction of Regulation 9.10. Once an action
of withholding is taken, multiple interests come into play and
both the parties assume different roles as regards the withheld
securities. We proceed to examine these roles separately – role of
Exchange and role of defaulting member . Any further action
76
relating to such securities would depend upon the fulfilment of
these roles, as we shall see.
Role of Exchange
105. It is trite to note that the primary role of the Exchange is
manifested in the phrase
“shall be dealt with by the relevant
authority at such times and in such manner” . That takes within
its ambit a power coupled with a duty. The power of the
Exchange to deal with the withheld securities in the manner of
its choice runs parallel with its duty to mandatorily “deal” with
such securities as a prudent person would after coming in
possession of securities. The usage of the word “shall” before the
word “dealt” is conscious and instructive here, and its vigour
cannot be toned down in a light manner. In other words, the
Regulation requires the Exchange not to sit idle on the withheld
securities and instead, obliges it “to deal” with them in an
appropriate manner. This requirement is a manifestation of the
basic “duty of care” implicit in regulatory relationships where one
member is in a position to control the functionality of the other.
77
The raison d’etre underlying this duty is to protect the interests of
a member and to prevent any undue damage to its interests as a
crucial element of the market. No doubt, such dealing could be in
any of the manners specified in the Regulation or even in any
other unspecified manner, but to say that the respondents could
sit idle on the withheld securities of an amount exceeding the
amount owed by the defaulting member, without protecting them
from being exploited by third parties in any manner, would be
akin to permitting a free abuse of this provision.
106. The role of the Exchange is broadly premised on the
principle analogous to fiduciary relationship. Propriety guides
that when one party holds some property on behalf of the other,
even for the fulfilment of any liability, it must treat the property
in a manner in which a prudent person would. It is so because
the property is not directly in dispute between the parties, rather,
what is in dispute is an outstanding liability for the discharge of
which the property is being held as a mere security. Ordinarily,
the sanctity of such security needs to be preserved. An implied
element of trust is involved in any action of withholding, which is
the basic foundation of a fiduciary relationship. In
Robert L.
78
9
Hodgkinson v. David L. Simms , the Supreme Court of Canada
10
referred to wherein three basic characteristics
Frame v. Smith
of fiduciary relationship were laid down thus:
“In Frame v. Smith [1987] 2 SCR 99 at p. 136, Wilson J.
defined the characteristics of a fiduciary relationship as
follows:
“Relationships in which a fiduciary obligation have been
imposed seem to possess three general characteristics:
(1) The fiduciary has scope for the exercise of some
discretion or power.
(2) The fiduciary can unilaterally exercise that power
or discretion so as to affect the beneficiary's legal or
practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the
mercy of the fiduciary holding the discretion or power.””
In the present case, it is clear that the manner of dealing with the
withheld securities is not circumscribed under strict parameters.
The Exchange is bestowed with a discretion to choose amongst
the available options and the appellant holds no control over
such choice. To this limited extent, the role of the Exchange as
regards the withheld assets is of a fiduciary character, obligating
it to choose the just course of action out of the available options.
We are conscious of the fact that traditionally speaking, the
relationship of MemberExchange may not be regarded as a
fiduciary one. But we are not examining the nature of this
9 [1994] 3 SCR 377
10 [1987] 2 SCR 99
79
relationship as a generalised enquiry. Our concern is limited to
the dynamics of this relationship qua the withheld securities in
light of the regulatory scheme. Notably, Professor Frankel, in
11
"Fiduciary Law: The Judicial Process and the Duty of Care"
highlights the existence of a limited fiduciary relationship thus:
"The law aims at deterring fiduciaries from misappropriating
the powers vested in them solely for the purpose of enabling
them to perform their functions."
Therefore, it is only for the purpose of performance of functions
that a fiduciary character is recognised in this relationship. In
Hospital Products Ltd. v. United States Surgical
12
Corporation Ltd. , it was rightly observed that the scope of
fiduciary duties is “moulded according to the nature of the
13
relationship and facts of the case.” The proposition gets
strengthened by the equitable principle of constructive trust,
which received a reasonably acceptable definition in Paragon
14
thus:
Finance plc v. DB Thackerar & Co.
“….. A constructive trust arises by operation of law whenever
the circumstances are such that it would be unconscionable
for the owner of property (usually but not necessarily the legal
11 The 1993 Isaac Pitblado Lectures, Fiduciary Duties/Conflicts of Interest (1993)
12 (1984) 156 C.L.R. 41
nd
13 Snell’s Equity, 32 Edition
14 [1999] 1 All ER 400
80
estate) to assert his own beneficial interest in the property
and deny the beneficial interest of another. …..”
It is thus clear that constructive trust arises by operation of law
in specific factual scenarios and not by any statute or contract.
However, such trust, and rights and obligations under it would
depend strictly upon the prevailing set of facts and governing
provisions.
107. Though the standalone question of law as regards the
respondents’ duty to act as a prudent person in respect of the
withheld securities stands answered, what remains to be
examined is whether such duty of the respondent is an
unqualified duty so as to make unilateral registration a
mandatory obligation, as claimed. Additionally, could it be said
that the respondent is obliged to deal with the securities in a
particular way despite there being a clear discretion in the
relevant provision?
108. The principles of constructive trust and fiduciary
relationships are equitable principles, and equity never operates
in an absolute manner or in a vacuum. In fact, the very basis of
the law of equity is its flexibility to take care of mutual concerns
of the parties. Equity is about balancing the competing interests
81
– by preventing the erosion of interests of one party while
ensuring a free exercise of legally enshrined discretionary powers
to the other. No doubt, specific fiduciary duties could definitely
be recognised in the specific facts of the case but the manner of
performance of such duties cannot be dictated in regulatory
matters. Legal recognition of the role of a trustee and fixing
actual obligations to be performed under such role are two
separate matters. The latter is dependent on the nature of
discretion and on the diligence of other party, as we shall see. In
15
, , after noting the existence
Equity & Trusts Alastair Hudson
of constructive trust in certain matters, notes “what remains is
the extent to which a constructive trustee would be liable”, which
signifies that the exact liability of a constructive trustee is
determinable in the specific facts of the case.
109. The duties of a trustee can be broadly classified into
mandatory duties and discretionary duties. The court is always
circumspect in enforcement of discretionary duties. A perusal of
Regulation 9.12 succinctly reveals that the measure of
registration is not provided as an exclusive one, rather, it is in
addition to other residuary steps that an Exchange is entitled to
nd
15 Equity & Trusts, Alastair Hudson, 2 Edition
82
take. Therefore, there is no express statutory or contractual
requirement of mandatory registration in the applicable law. A
clear element of discretion is involved in the manner of dealing. It
is true that such discretion cannot be exercised in a legally
perverse manner, but it is equally true that a discretion cannot
be converted into a mandatory obligation, more so when such
discretion is provided expressly by a statutory provision. In
16
Ashburner’s Principles of Equity , the discretionary duties of a
trustee are noted in a succinct manner. It is stated that such
discretion must be exercised “ freely ”, “ intelligently ” and in a
“ bona fide” manner. More importantly, an exercise of such
discretion in commercial relationships is guided by the nature of
things, as they exist or vary from time to time. Illustratively, in
the present case, it was out of this sound exercise of discretion
that the Exchange did actually get some of the securities
registered in its name. Equitable common law principles cannot
be used to create mandatory legal obligations.
Role of defaulting member
nd
16 Ashburner’s Principles of Equity, Denis Brownie, 2 Edition.
83
110. Even if we consider the argument that the Exchange ought
to have registered forthwith upon appellant’s demand, if not suo
motu , such an enquiry cannot be undertaken in isolation. It is
the fundamental principle of an equitable examination that “the
one who seeks equity must do equity” . This brings us to the role
of the defaulting member (appellant) qua the withheld securities.
Registration of securities or any property for that matter is done
in favour of an entity only upon fulfilment of certain allied
conditions, including but not limited to the supply of
consideration. Without such consideration, contract itself
becomes void, let aside entertaining a demand for registration.
Upon withholding, it becomes the duty of the stock broker to
raise a request for the registration of securities and to comply
with the payment shortfall and other requirements. During the
period commencing from 1997 to 2008, the appellant did not
pursue the cause of dealing with the withheld securities in a
proactive manner, seemingly because of two reasons first , the
appellant was pursuing multiple legal actions against the
respondents at various forums and second , such a request would
have to be preceded by fulfilment of conditions relating to
settlement and payment. For, the Exchange could not get the
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securities registered in the name of any entity until and unless
such entity settles the transaction by making complete payment
for the purchased securities. Clause (3) of ChapterVI of NSCCL
Byelaws titled “Clearing and Settlement of Deals” expresses the
same view and notes thus:
“3. CONDITIONS AND REQUIREMENTS OF CLEARING AND
SETTLEMENT
The relevant authority may grant admission of deals dealt in
the Exchange provided all the conditions and requirements
specified in the Bye Laws and Regulations and such other
conditions and requirements as the relevant authority may
prescribe from time to time are complied with.”
Clause (10) further notes that:
“10. CLEARING AND SETTLEMENT
Settlement shall be effected by clearing members giving and
receiving delivery and paying and receiving funds as may be
specified by the relevant authority from time to time in the
Bye Laws and Regulations.”
111. Be it noted that the appellant never offered to make such
payment in lieu of registration. In fact, on one occasion when the
Defaulter’s Committee passed the order justifying the withholding
on 04.12.2014, the respondents offered to release the securities
to the appellant for removal of objections subject to the
submission of a bank deposit to secure the liability. The
directions issued by the Defaulter’s Committee read thus:
“2. Without prejudice to the above, the Committee directs
that the securities which have been withheld as per the list of
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securities given in Annexure2 of this Order may be released
to RSL, on as is where is basis, to (i) enable it to remove the
Objections in respect of securities for which RSL is an
introducing member and (ii) transfer the securities in its
name in respect of securities for which RSL is a receiving
member and return the securities to NSE in demat form,
provided
a. RSL furnishes an undertaking that it has no other
claim against NSE or NSCC and that it will return
the securities within a period of one year from the
date of release after duly removing the objections
and transferring in RSL’s name as the case may be.
b. RSL provides a deposit of or a bank guarantee for
Rs.1,00,70,529.82 (i.e. the outstanding dues of RSL
payable to NSCC of Rs.1,07,72,098.17 less
Rs.7,01,568.35 being the value at closing price on
NSE as on December 4, 2014 of securities already
transferred in the name of NSCC – list enclosed as
Annexure 3) to protect NSE against failure to return
the securities.
c. RSL provides the undertaking and the deposit or
bank guarantee within a period of three months
from the date of receipt of this Order.”
112. Thus, the Committee did propose to hand over physical
possession of the securities to the appellant for getting them
registered in its name. The appellant refused to comply with the
direction of payment and instead, challenged this decision of the
Defaulter’s Committee by filing M.A. No. 295 of 2015 before the
Tribunal wherein a consent order was passed upon an
undertaking given by the Exchange that it has no objection in
performing its duty as “trustee” in respect of the unregistered
withheld securities and taking appropriate steps by registering
86
them in its name. Be it noted that even this order was a
conditional one as it specified that such registration shall not
affect the legal rights and liabilities of parties in any manner. In
pursuance of this order on 23.09.2015, the respondents got the
securities transferred in their name and realised them after the
impugned order in 2019.
113. It is thus clear from the state of affairs discussed above that
the respondents were cognizant of their duty towards the
withheld securities pending determination of final claim.
However, no action of registration could have been taken without
complying with other conditions. The role of the defaulting
member was of an enabler and unless the Exchange was placed
in a position to register, it could not have exercised its discretion
to register. It is important to note that permitting the Exchange
to register forthwith as a matter of obligation would also be
counterproductive to the interests of the defaulting member. For,
such a blanket action would have the effect of converting a
limited right of lien into that of absolute ownership over the
withheld assets without giving the defaulter sufficient time to get
his assets released much less before a declaration of being a
87
defaulter or an order of expulsion. Such can never be the purpose
of withholding.
114. To summarize, registration could only have been done on
fulfilment of the following conditions:
(i) request by the defaulting member;
(ii) request to be preceded by fulfilment of conditions
relating to payment;
(iii) request to be accompanied with undertaking that any
such registration in the name of the Exchange would
be subject to final outcome of the case.
115. The appellant has contended that it has suffered loss of
corporate benefits due to nonregistration by the respondent. The
same is unacceptable. Firstly, the receiving securities legally
vested in the Exchange as on the date of expulsion to the extent
of liability. The appellant could not have claimed any right
therein to further corporate benefits as regards these securities.
Even before the date of expulsion, the respondents cannot be
held liable for any loss on the withheld securities as the appellant
always had the opportunity of making payment and protecting its
interests. The appellant cannot fail to discharge its obligations for
a period of 23 years and then turn around and claim loss of
benefits in this manner. Acceding to such a claim would be akin
88
to rewarding a wrong. Understood thus, the liability for the loss
incurred by the appellant, if at all any, on account of corporate
benefits (dividends, bonus etc.) accrued on withheld shares
would not fall upon the Exchange, in the fact situation of the
present case.
116. Even otherwise, the respondents’ decision of not realising
the securities or taking any adverse action during the pendency
of multiple proceedings cannot be outrightly termed as an abuse
of discretion. For, the decision of expulsion (and thus, of vesting)
itself became subjudice along with various other civil and
criminal proceedings. Admittedly, the appellant had gone to the
extent of initiating proceedings for criminal misappropriation
against the Directors of respondents for using security deposits
in regular course of business. This inevitably resulted in
reluctance of the respondents to sell off the securities amidst
pending proceedings. It is settled law that statutory appeal is a
continuation of the original proceedings and once an appeal was
filed, the question of expulsion remained subjudice unto these
appeals.
89
117. We may revert to the manner in which the issue under
consideration has been dealt with by the Tribunal. The Tribunal
misinformed itself by observing that this issue had already stood
answered in the previous judgment of the Tribunal in Appeal No.
84 of 2008. The Tribunal simply entered into an examination of
the provisions relating to withholding whereas the real question
was regarding the manner of dealing with the withheld securities.
118. Having said thus, what remains for our consideration is the
determination and recovery of liabilities for final culmination of
the controversy. The Tribunal determined the final liability of the
appellant to be Rs.2.41 crore in para 10, where it noted:
“10. ... It is abundantly clear that the appellant owed Rs.1.07
crore after adjusting for the deposits etc. in October 1997 and
since the said deposit amount of Rs.1.34 crore has been
subsequently returned the unadjusted amount of dues stands
at Rs.2.41 crore.”
119. It is pertinent to note that the amount of Rs.1.34 crore was
required to be returned by the respondents in SLP (Crl.) No.
96429643 of 2011, which it had held as an interest free security
deposit. It was meant to be utilised for the purpose of discharging
the monetary obligation of the appellant during the period
between withdrawal and expulsion. The appellants have
advanced an erroneous proposition that the return of this
90
amount by the respondents signified that there was no liability
owed by the appellant towards them. We must reiterate that the
return of the security deposit was driven by a desire of the
officials of the respondents to avoid the continuation of criminal
proceeding against them resorted to by the appellant. It was
neither a confession that they had misappropriated the said
deposit nor an undertaking that they had no claim over the said
amount for adjustment against the penalties. The effect of the
said return was limited to the quashment of criminal proceedings
involved therein. The order of this Court dated 02.11.2017 is self
eloquent, as it categorically notes that:
“…..
This order will not affect any other proceedings which may be
dealt with independently in accordance with law. …”
120. The matters in issue in the present set of appeals are
distinct from those involved in the stated special leave petition
(criminal). Therefore, the loss caused to the Exchange due to
return of interest free security deposit amount ought to be
reckoned in determining the total liability of the appellant and
the same ought to be adjusted by the respondents appropriately.
121. The quantum of amount due from the appellant to the
respondents, being a question of fact, has been decided by the
91
Tribunal and we do not wish to interfere therewith. For, no
serious error has been pointed out in any factual determination
made by the Tribunal. Further, the scope of Section22F is
limited to entertaining an appeal on questions of law, and we
have proceeded accordingly.
122. The Tribunal gave one month’s time for recovery of payment
and return of remaining securities to the appellant. It is on
record that an amount of Rs.1.74 crores has been recovered by
the respondents from the transferred securities, fixed deposits
and corporate benefits so far and an amount equivalent to
Rs.66.81 lakhs (approximately) is remaining.
123. We hereby issue the following directions for full and final
settlement of all claims between the parties:
(i) NSE to evaluate and get the remaining transferrable
securities, if any, transferred in its favour and recover
the remaining amount using the same evaluation
criteria adopted in respect of other withheld securities
of the appellant within 6 weeks.
(ii) After realisation, the surplus amount be returned
forthwith to the appellant along with interest at the
rate of 12% P.A. from the date of determination of
claim/date of vesting until the date of payment.
92
(iii) Respondents to return the unrealised securities
including those with outstanding objections to the
appellant within 6 weeks from today.
(iv) In case recovery is not possible from the remaining
securities, for any reason whatsoever, the respondents
may communicate the same to the appellant forthwith
and the appellant shall then pay the amount so
demanded (including interest, if any), to the
respondents within 6 weeks from the date of receipt of
such communication.
(v) NSE is directed to oversee the evaluation and
realisation of remaining securities, and settlement of
claims.
124. Accordingly, both appeals are disposed of in the aforesaid
terms and directions with no further order as regards costs.
125. Pending applications, if any, also stand disposed of.
………............................J.
(A.M. Khanwilkar)
………............................J.
(Dinesh Maheshwari)
New Delhi;
November 20, 2020.
93