delhi cloth & general mills co

8/6/2019 Delhi Cloth & General Mills Co

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Delhi Cloth & General Mills Co. Ltd.

V.

Union of India

[AIR 1983 SC 937]

Case Presentation

Corporate Finance


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INTRODUCTION

The case raised a mixed question ofConstitutional law and commercial law.

In this case the substantial question

relating to law was raised before theHonble Supreme Court of India.

The Honble Judges presiding over the case

were Honble Mr. Justice D. A. Desai

Honble Mr. Justice R.B. Mishra

Honble Mr. Justice Balakrishna Eradi


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FACTS

In this group of writ petitions under Article32 and appeals by special leave under

Article 136 of the Constitution,

constitutional validity of Rule 3A of theCompanies (Acceptance of Deposit) Rules,

1975 introduced by Companies

(Acceptance of Deposits) Amendment

Rules, 1978 and incidentally of Section58A of the Companies Act, 1956 is

challenged.


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PROVISIONS CHALLENGED IN THIS

CASE

Section 58A of the Companies Act, 1956

Sec 58A confreres power on the Central Govt.

to be exercised in consultation with the

Reserve Bank of India to prescribe the limitsupto which, the manner in which and the

conditions subject to which the deposits may

be invited or accepted by a company either

from public or from its members.


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CASE

In exercise of power conferred by Section 58A Central

Government enacted and promulgated the Companies

(acceptance of Deposits) Rules, 1975.

Rule 3A of the said rules is principally challenged in this

case.

Rule 3 prescribes conditions subject to which the deposits

may be accepted.

Rule 3A which obligates the company inviting deposits to

deposit or invest, as the case may be, before the 30th day ofApril of each year, a sum which shall not be less than ten

percent of the amount of its deposits maturing during the

year ending on the 31st day of March next following

according to any one or more of the methods set out in the

rule.


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CASE

Sub-Rule (2) imposes a fetter on the power

of the company to use the amount so

deposited and invested for any purpose

other than for the repayment of depositsmaturing during the year referred to in

Sub-rule (1).

And this is subject to a further conditionthat deposit shall not any time fall below

10% of the amount of deposits maturing

until the 31st day of March next following.


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THE GROUNDS FOR CHALLENGE

ISSUE 1: Section 58A and rules made thereunder, inparticular rule 3A, is arbitrary and unreasonable in so far

as it deprives the company the use of 10% of its funds even

though the company is obliged to pay interest to the

depositors as contracted between the parties and

ISSUE 2: That when a regulatory measure imposesconditions the same must fairly and reasonably relate to

the objects sought to be achieved. Rule 3A imposes a

statutory condition to deposit 10% of the amount collected

by way of deposits by a non-banking company and

maturing in a given year in the manner prescribed, this

condition bears no relevance to the objects sought to be

achieved, the object being the protection of the depositors.

And if it does not bear relevance to the object it is arbitrary.


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THE GROUNDS FOR CHALLENGE

ISSUE 3: That Rule 3A is ultra vires the provision ofSection 58A of the Companies Act as it is beyond the

scope and ambit of the section.

ISSUE 4: That while giving definition of the expression'deposit in the dictionary clause of the Deposit Rules, the

exclusionary clause is so widely worded that it has

successfully kept a large number of similarly situated

corporations outside the purview of the Act and the

picking and choosing is so arbitrary that one can say

with confidence that only private sector companies aresingled out for this regulatory treatment.


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JUDGMENT

ISSUE 1

It was contended that Rule 3A is arbitrary and unreasonable

in so far as it deprives the company the use of 10% of its

funds even though the company is obliged to pay interest to

the depositors as contracted between the parties and

The Court rejecting the contention held that R. 3A does not

deprive the company the use of 10% of its funds.

The Court observed that the provision for deposit of 10% of

deposits ensnares repayment of deposits maturing in the

year and in order to enable the company to meet itsobligation, a provision is made in Sub-rule (2) of Rule 3A

itself that the amount deposited or invested under Sub-

rule (1), shall not be utilized for any purpose other than for

the repayment of deposits maturing during the year referred

to in Sub-rule (1).


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JUDGMENTISSUE 1

Requiring the company to invest 10% of its deposits maturing in a year in deposit with prescribed institutions or in trust securities

cannot be termed as deprivation of the funds of the company.

It is a measure to ensure that part of the funds of a company are

kept as liquid assets available for use for specified purpose. This is

clearly discernible from the marginal note of Rule 3A. Regulatory

measure ensuring availability of liquid asset cannot be termed as

deprivation of property.

The amount deposited to meet with the obligation of Rule 3A is and

remains the property of the company nor anyone else has any access

to it. One has to see the immediate object in view to achieve which

the provision is made and not its remote consequences. It becomes an earmarked fund and it is well-known that the

economic planning may provide for earmarked funds and if by

voluntary self-discipline financial viability is not maintained, a

Welfare State with planned economy may impose statutory discipline

in larger public interest. Such disciplinary measures cannot betermed deprivatory in character.


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JUDGMENT

ISSUE 2

That when a regulatory measure imposes conditions the

same must fairly and reasonably relate to the objects

sought to be achieved. Rule 3A bears no relevance to the

objects sought to be achieved, the object being the

protection of the depositors. And if it does not bearrelevance to the object it is arbitrary.

The Court rejected this contention and held that when

Rule 3A is viewed in the context of various other

provisions devised to extend protection to depositors andinvestors it does play a small but effective part whereby

liquid finance would be available to the company

accepting deposits for meeting its obligation of repaying

the deposits maturing during the year therefore, there is

no merit in the submission.


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JUDGMENT

ISSUE 3

That R. 3A is ultra vires the provision of S. 58A of the

Companies Act as it is beyond the scope and ambit of the

section. In this connection it was contended that when a

company invites and accepts deposits, there comes into

existence a lender borrower relationship between the depositor

and the company, and therefore the legislation dealing with the

subject squarely falls under Entry 30 of theState List, "money-

lending and money lenders'. Therefore Parliament is not

empowered to make laws on this subject. Hence the Companies

(Acceptance of Deposits) Amendment Rules, 1978 made by the

parliament are liable to be struck down.

The Court rejected this contention and held that power to

make rules for acceptance of deposits fall under Entry 44 of

the Union List. Because acceptance of the deposits by the

companies is not necessarily a money lending function.


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JUDGMENT

ISSUE 3: THE PITH & SUBSTANCE TEST APPLIED

Entry 44 refers to incorporation, regulation, and windingup of the corporation whether trading or not when

business is not confined to one State but not including

universities.

Obviously the power to legislate about the companies isreferable to Entry 44 when the objects of the company

are not confined to one State and irrespective of the fact

whether it is trading or not.

When a law is impugned on the ground that it is ultra

vires the powers of the legislature which enacted it whathas to be ascertained is the true character of the

legislation.


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JUDGMENT

ISSUE 3: THE PITH & SUBSTANCE TEST APPLIED

If in pith and substance, the legislation falls within oneentry or the other but some portion of the subject-matter

of the legislation incidentally trenches upon and might

enter a field under another list, then it must held to be

valid in its entirety, even though it might incidentally

trench on matters which are beyond its competence.

Section 58A which is incorporated in the Companies Act

is referable to Entry 44 in the Union List and the

enactment viewed as a whole cannot be said to be

legislation on money-lenders and money-lending or beingreferable to Entry 30 in the State List. Undoubtedly,

therefore the Parliament had the legislative competence

to enact Section 58A.


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JUDGMENT

ISSUE 4:

That while giving definition of the expression 'deposit inthe dictionary clause of the Deposit Rules, the

exclusionary clause is so widely worded that it has

successfully kept a large number of similarly situated

corporations outside the purview of the Act and the

picking and choosing is so arbitrary that one can say

with confidence that only private sector companies are

singled out for this regulatory treatment.

The submission overlooks' the object and purpose

underlying enacting Section 58A and the Rules madethereunder. As has been repeatedly noted, it is a

regulatory measure to checkmate the abuses, which

private sector corporations are prone to. If this object is

kept in view, the exclusionary clause explains itself.


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JUDGMENT

ISSUE 4

To enumerate briefly, the bodies excluded from the operation of the

rules are Central and State Govt., State Bank of India Nationalised

Banks, Industrial Finance Corporation of India, State Financial

Corporations established under the State Financial Corporations

Act, Industrial Development Bank of India, Electricity Boards

constituted under the Electricity (Supply) Act, Life InsuranceCorporation of India and such other bodies which if viewed properly

disclose a perspective in enacting the exclusionary clause.

The perspective is that the bodies which are accountable to public

and Parliament as also those whose failure to meet with obligation is

inconceivable such as the Central and the State Govt. are excludedfrom the regulatory measure. This perspective, in fact, reinforces the

conclusion that the control was to be exercised over those

corporations which are prone to abuse the economic power enjoyed

by them. We therefore see nothing arbitrary or unreasonable in the

exclusionary clause.


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JUDGMENT

Accordingly the court upheld the constitutional

validity of Companies (Acceptance of Deposit)

Rules, 1978.

The Court held that the impugned rules were not

violative of Article 14 and 19(1)(g) of theConstitution of India

Therefore the petition was dismissed.


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CONCLUSION

Many interesting question of law concerning

Constitutional Law and Company Law arose in this case.

The Court rightly upheld the constitutional validity of the

Companies (Acceptance of Deposit) Rules, 1978.

In doing so the Court referred to the entire history of the

Company Act and also the object sought to be achievedby way of Section 58A.

The Court applied mischief rule of construction of statue

so as to come to the conclusion these conclusion.

This judgment of the Hon;ble Supreme Court isappreciable.

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