K.M.S. Reddy, Commissioner of Income-tax, Kera/a v. The West Co1at

Judgment

-There is nothing in s . . 76( I) of the Com· panies Act, 1956, to' sug~est that it intended in any way to change the pre-:existing law under which a cnmpany was free to pay any commission it liked out of its profits to an.y person subscribing for sharrs in it, and the proper way to construe that sub-section would he to confine its terms to pa vments of commission out of capital. ' Hilder v .. Dexler, (1902) A. C. 474, held apolicahle. Oorequm Gold Min'rl,inq Co. of India Ltd. v. Geor(fl', Roper, (1892) A.C. 125, referred to. The words "it shall be lawful" used ins. !05( I) of the Indian Companies Act, 1913, anrl the word 'mav' usPd ins. 76 (I) of the Companie1 Act, l 9!i6, mean the ;ame thing and both these sections were enabling provisions that intended to legalise something which was previously illegal. · !if ad,mfal Fakirrhand J)udlred1)'a .. Shrft (.1.01 g1t'J Su 1-ar A·tilli /Jt(J. a,;,.,d,.gm/k ·" J. !liG SUPREME COVRT REPORTS [196'2] SCPP. C1nL APPELLATE .JuRI~lll.CTJOX: Civil Appeal No. 6~ of l!hi!J. • Appeal hy spPcial leave from the judgm.,nt. and decree dated .July 24, I!):)i, of the Bombay High Court in Appeal No. 2:! of l!liii. · A. V. Vi811:a11alha 8a.slri, .Jasu•rmtlal }rfolh11hlv1·i and I. N. Sl•.ro.ff, for the appellant . . C. n. Agrirwala, .!. /?, D11rl11d1anji. O. C. :lfoth11r 1tnd Rflrindo· Nara.in, for responclent. Xo. I. l!l62. March 20. The Gajendragadkar :ind Wanchoo, ,J.J., was d<'livererl hy GajPndragaclkar, ,J., Sark>tr, J., r],.Jiverwl a se parate ,Judgment. ,Judgment GA,TEJ\flRAOADKAR, .J.-Thc principal quest.ion which ariRes in t.hiR nppeal relat<i~ to the construc tion of s. 7o(I) anrl (~) of the Comprv1io• Act, I !J:'il) (I of l!liifl) (h•m'inaft.er called tlw Act) bnfore tho amendmrnt, ·of 8ub-s.(2) in I 000. That que>tion this way. Tlw appellant, arises !lforlanl:ll Fnkirchand Dudherliya, and respondent£ Nos. 2 and :land th" father of reopondents :\os. i to IO the promoters of the 1st respondent Co., Shree Changdeo Su[!ar :\Tills Ltd. The said Co. was incorporatPd in I !l~O as a Private Limited Company. Tt. was. however, ~'onverted into a in 1!)44. At th<' time of the ori Public Ltd. Co. 11. Promoter's A(!rerment. was arrivC'd at whcrel1y the Co. agrned dming its existPnce to pay a. sum equal to 3-1,'8~~ every year out. 0f its net profits to each of thP. four promoters. As a re•ult nf this agreement, the aggrpgate con•ideration payable "very year to t.he promot.,rs r~'\me to 12-112°;, of t.hfl n<>t profits of the Co. Article a of the Artic!Ps of Assodation of tho Co. just.ifierl th,. making of this ngreement. In l\H I the Co. ca.me into financial difficulties and incorporation of the Co., 1962 .. Madanlal Fakirchan4 Dud/iediya Shree Changde() Sugar Mil,/s Ltd. G 11jendragad/oar J. 3 S C.R. SDPREl\IE CODRT REPORTS 977

in consequence, on the 22nd April, 19il, a tripar· tite Agreement was arriv_ed at between the Com· pany, Mis. Ardeshir Hormusji Bhiwandiwalla & Co., and the Promoters. Under this agreement, it was agreed inter alia, to appoint the said firm of Bhiwandiwalla & Co. or its nominee as the Managing Agents · of the Co. for 10 . years with a,n option to the Co. to extend the said period upon certain terms. At this time, the earlier agreement as to the payment of the promoters' commission was modified an:l the sa,id commission payable to the promoters was reduced to 6-1/4% and Art. 3 of the Articles of Association was accordingly amended. Three years later, dispute arose between the parties and they led to three snits filed on the original side of the Bombay High Court. All the said suits were compromised and decrees hy consent were passed in them. One of the terms of the compromise was that the promoters' commission payable to the four promoters which was· Ks. 1-9-0 to each of them and which came 6:1/4% in the aggregate payable to them under the agreement entered into between them and the Managing Agents shall remain in force as in the Agreement and the promoters' right of commi· ssion shall continue accordingly. Thus, as a result the compromise, the promoters' comm1ss10n which was payable to them under the earlier Agreement was saved. After the Act came into force on the 1st of April, 1956, the appellant received a letter from respondent No. 1 informing him that respondent No. 1 had been 'advised that as from the date of the commencement of the Act, the agreement bet ween the parties as to the payment of the promo ters' romrnission had become illegal and void and t,hat the 1st respondent would not. therefore, pay any more commissions after April, 1956. In October, 1956 the appellant received a notiee from the 1st respondent that an extraordinary general 1962 Jleddnlal F&ikirch.nd DudhttiiJa v. Sllrtt CluJngdto Sugar Mills Ltd. O•jtndragadkar .T. 978 SUPREME COURT REPORTS [19621 SUPP. meeting of the sharoholders of the !st respondent Co. was going to be held,_ inter aUa, for the pur. pose of amending certain Articles of Association of the Co. One of tht' amendments proposed to be. put before the said meeting was to delete Article 3 from the Articles of Association of the Co. On receipt of this notice, the appellant filed the present suit on the 13th December 19ii6. By his plaint, he claimed a declaration that the agree· ment between tho partieH was \'alid and legal and he asked for an injunction r('straining respondent :N'o. I from passing any resolution deleting Article 3 of the Articles of Association of tho respondent Co. or from taking any action on the basis tho said agreement had become illegal and void. Respondent ~ o. l resisted this suit. It was urged on its beh1tlf that as a result of the prnvisions of section 76(1) and (2) of t.he Act, the agreement in question had become void and could not be en· forced. Respondents '.Ii os. ·2 to l 0 are the other beneficiaries under the said agrl'cment and they supported the appellant. The le1trned .Tudgo who tried the suit held that the defence raised by res pondent No. I was wcll-foundod and that the agree ment in question having become void and unen forceable under the relevant prnviBions of the Act, no declaration could be granted or no injunction could be issued in favour of the appel11tnt as claimed by him. In the result, the appellant's suit was dismissed with costs. The appellant then prefPrrod an appeal challenging the <'Orrect ncss of the decision of the Trial Court. The Court of Apppeal, howl"ver, agreed with ,the view taken by the learm•d Trial Judge and dismissed t.he appeal preferred by the appellant. The appellant. then applied for ancl obt1tincd a certificate from the High Court and it is with the said certific1ttc that he h1ts come to this Court by his present appeal. That is how the principal point which has been raised for our decision in the present appeal is about the construction of secticn 76( I) and ( 2). 1 a s.c.R. SUPREME COURT REPORTS 9i9 Mr. Sastri contenrls that in coming to the 1962 • f th Dudhediya v. Shroe Changdea Sugar Mill,Dd. conclusion that the appellant's claim to enforce Madanlal Faki"hcnd f"t the agreement in question in respect o e pro 1 s made by respoudent No. 1 is affected by s. 76, the Courts below have misconstrued the provisions of the said section. It is conceded by Mr. Sastri that the promoters have so far received .an aggre- gate amount of over Rs. 5,80,000 which is far in ex- cess of the maximum amount now permissable under s. 76( I ).But his argument is that the statutory provi- sion imposing the limit in regard to the payment of commission on which respondent No. I relies is inapplicable t6 a caRe where the said commission is claimed not out of capital but out of the profits of the Company. Gai,nd•agadlar J. Before dealing with this point, however, it would be convenient to dispose of another objec tion raised by Mr. Sastri. He contends that the agreement in question is really outside the pur view of s. 76. Section 76 refers, inter alia, to the commissions payable to any person for his subscribing or agreeing to subscribe, whether abso lutely or conditionally, for any shares of a Co. That being so, since . the present agreement has into for consideration other than been entered those specified in s. 76, its enforcement oannot . be resisted on the ground that it 'is hit hy s. 76. The d1Jcision of the question naturally depends upon agreements. The first agreement of 1939 provides that for the help rendered and pains taken by the prompters and because each of them had agreed to • purch~se and had purchased shares worth Rs. 1-1/2 lakhs out of the C.o.'s capital, the Co. was entering the payment of the commission. The agreement provid<>d that the said commission would be payable as long as the Co. was in existence. It is thus clear that though the help rendered by the promoters ar.d pains taken by them are incidentally 1eferred to, the a.greement an agreement with them for the construction of 1962 JI. "411lal l"dli.irclumd D:uUttdiJa v. Shrtt Char1gd!J Sugar Mills l.td. Gajtntiragaika rJ. 980 SUPREME COURT REPORTS [1962] SUPP. is substantially, if not entirely, based upon the fact that the promoters hail agreed to purchase and had purchased shares worth Its. 1-1/2 lakhs and so there can be no doubt tha,t this agreement clearly falls within tbe mischi~f of s. 7(). It is, however, urged that the completion of the first agreement changed completely when the second agreement was entered In this latter agreement which was into in 19·11. entered into betwc·<m the promoters anti the new Managing Agents, the former agreed to receive 6-1 /4% an promoters' commission instead of 12-1/2% "as provided in our respective agreements with Company .. " That is the su bstanee of the agreement. However, :\Ir. Sastri reiies on the othm· recitals in the document in support of his argument that the latter agreement was not in consideration for the purchase of shares by the promoters. These recitals refer to the fact that the promoters had resigned their office and surrendered and renounced their rights to act as the i\fanaging Director or :'.lfana.ging Directors of respon dent Xo. 1 and it was in consideration of this fact that the agreement was made. We a.re not impres sed by this argument. It iH true that before .this agreement was ma.de, the new lll•naging Agents were appointed and that was no doubt the occasion for the making of the agreement. But the essential pa.rt of the new ai;rre.,ment waH the reduction made in the commission payable to the promoters; for the rest, the earlier agreement continued and so, in det-0rmining the scope and nature of this latter agreement, we have inevitably to go hack to the first agreement. As we have. just pointed out, the operative clause in the agreement, in terms, refers to the earlier agreements between the respective parties a.nd avers that instead of 12-1/2% as provi ded by the saicl agreement().)/-!% would hereafter be pa.id. Therefore, we are sati~fied that the pay ment claimed by the appellant is payment by way of commission to which s. i6 would apply. 1962 M adanlal Fakirchanp Dudhediya v. Sh"e Changdro Sugar Mills Ltd. Gajendragadkar J, • 3 S.C.R. SUPREME COURT REPORTS 981 Then it is argued that th~ugh the purchase of shares by the promoters may partly be the considera tion for the a,greement, the service rendered by them and the pains taken by them in promoting the Co. were also set out in the first agreement as forming part of the consideration and even if the agreement as to the payment of commission may fall within s. 76 part of the agreement which is based on other considerations would be outside s. 76 and the two parts being severable, it is necessary to determine how much the appellant would be entitled to claim under the part which is valid. In our opinion, this argument is not open to the appellant at this stage. It appears th:tt in the· trial Court, an attempt was made on behalf of the appellant to. lead oral evidence for the purpose of saying that the two considerations could be severed and so, the amount payable to the appellant in respect of that part of the agreement which was valid, should be determined. The learn ed Trial Judge did not allow oral evidence to be led as suggested by the appellant because he found that the case sought to be made by adducing the said oral evidence was not made out by any averments in the plaint nor was any attempt made to raise any issue in that behalf at the time when the issues Indeed, it appears from the judg- were framed. . ment of the learned Trial Judge that the attempt made by the appellant in that. behalf was feeble and half· hearted. Thus, in the Trial Court, the appel lant was not allowed to make out this case and when he went before the court of Appeal, he appa -rently made no grievance about the decision of the Trial Court; otherwise the Appeal Court would have dealt with this point. Therefore, we do not think that the appellant can be permitted to raise this point before us in this appeal.. 'l'hat takes us to the principal point of controversy between the parties in n gard to the construction of section 76(1) and (2) of the Act. Mr. Sastri con relevant statutory tends that in construing the 1962 M oJanlal Fakirchand Dwlhtdi.JiO v. Sf.ru ChanJdto Sugar JI illt LJd. Gajtnd1agaJkar J, 982 ~UPREllIE COURT REPORTS [_1962) SUPP. proviRions, it would be ne<-essar.v to bear in mind tha.t the provisions of the Indian Company Law are substantially based on th" provisions of the English Company Law and so it would bo necessary to enquire what the corresponding provision of tho English Law has been construed to mean. Tho pattern of the Indian Company Law is set by the Englieh Company Law and the princip!t·s enuncia ted by English decisions in dealing with the corres ponding provisions of the English Company Law should be followed when we are interpreting the provisions of the Indian Company Law. This argument proceeds on the assumption corresponding provision of the English Company Law permits the payment of commission for sub scribing for shares out of the profits of the Co. with out any limitation. It is, therefore, necessary to examine briefly this argument. The provision in the Company L1tw in regard to the payment of commission for subscribing for any shares was introduced in the English Compan ies Act in the form of an enablin~ provision in 1900 and it became necessary to make the saitl enabling provision because ·of an earlier decision of the House of Lords in 'J'he Ooreguin Gold Mininy Co. of India, Ltd. And Georye Hopet and Charles Henry In that case, the House of Lords had Wallroth ('). held that a company limited by shares, form~d and the Act of 1862, had no power to registered under issue shares as fully paid up for a money considera tion less than their nominal value. It appears that tho memorandum of association of a company registered under the Act of 1862 stated that the capital of the company was £ 125,000 divided into 125,1100 shares of £1 each, and that the shares of which the original or increased capital might consist might be divided into difforcnt classes and issued with•such preference, privilege, or guarantee as the company might direct. The company being in want of money (I) (18'l2J A.r..125, 134. 133. \ 1962 Madanlal flllld1cli11nd Dudhediya '· Shree Changdeo ' Sug'lr Mills Lld. Gajendrogadkar, J. ·• 3 S.C.R. SUPREME COURT REPORTS 983 and the original shares being at a great discount, the directors in accordance with resolutions duly passed issued preference shares of £1 each with 15s. credited as paid, leaving a liability of only 5s. per share. A contract to this effect was registered under 'the Companies Act of 1867 s.25. The transac tion was bona fide and for the benefit of the com pany. In an action by an ordinary shareholder to test the validity of the issue, it was held that read ing the Companies Acts of 1862 and 1867 together, the issue was beyond the powers of the company, and that the preference shares so far as the same were held by original a!lottees were held subject to the liability of the holder to pay to the company in cash the full amount unpaid on the shares. In his speech, Lord Halshury observed that "Twci things were manifest in s. 25 of the Act of .1867. The shares to be held subject to the payment, and the payment is to be in cash. The amount is to be paid and the whole amount to be paid in cash, and to me it appears, looking at the latter part of the section whereby a contract made and filed may qualify and cut down the form of payment, and that it may be in goods or in value received in some form, instead of in cash, it must· nevertheless be payment." He also added that "the capital is fixed and certain, and every creditor of the company is entitled to look to that capital as his security." Thus, as a result of this decision, it become obvious that no commission could be paid to any person for his sub scribing to the shares of the Company out of the capital of the Co. · It was as a result of this decision that section 8 was enacted in th@ Act which was passed to amend the Companies Act, in 1900. 'Section 8(1) !Jrovided that: "Upon. any offer of sh1.res to the public it shall be lawful for a for subscription, company to pay a commission to any person 19'2 Madan/al Fakirchnnd Dudlµdi;'(J. , .. Sh1e1 Chon:d~11 Sug"' .\11/ts Ltd Gojend1ago.dkar J, 984 SUPREME COURT REPORTS.(1962] SUPP. in consideration of this subscribing or :1grceing to subscribe, whether absolutely or condition for any share;; in the eump1wy, or ally, pror.uring or agreeing to procure subscriptions whether absolute or condition;i,l, for any shams in the company, if the payment of the commission and the amouut or rate per cimt. of the commission paid or agreed to be paid are respectively authorised by the articles of association and disclosed in the prospectus, and the commission paid or agreed to be paiJ Joeti exceed tho amount or rate so authorised." Sub-sec. (2) provided that: agreeing "Save as aforesaid, 110 company "hall apply for any of its shares or capital money iudirectly in payment either directly or of any commission, discount, or 1illowance consideration of his to any person subscribing subscribe, absolutely or conditionally, for whether any shares of the comp;i,ny, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for &nv shares in the company, whether tho shares ~r mo1wy be so applied by being added to the purchase money of •LDY property acquired by the company or to tho contract price of any work lo b1, execu ted for the company, or the money be paid out of the nominal purchase money or con tmct price, or otherwise." Sub-sec.(3) added that.= "But nothing in this section shall affect the power of uhy company to pay such broke rage as it has heretofore been lawful for a company to pay." It would thus be seen that the difficulty cn•1tted by the decision of the Hmrnc of Lords in the case of The Oorcgum Gold lllining Co. of India Lt<l. waB 1962 Madanlal Fakircham DudhediJ1a v. Shree Changdeo Sugar JW £lls Ltd. • GaJ'endragadkar J, • 3 S.C.R . SUPREME COURT REPORT.S 985 overcome by this statutory provision and in conse quence, it became lawful for the company to pay commission subject to the conditions specified in the section. It was because the legal difficulty created by the· decision of the House of Lords was intended to be cured that the Legislature enacted the section by providing that it shall be lawful for the company to pay commission on the terms speci fied. 1'hat is the genesis of the expression "it shall be lawful for a company to pay" with which the section begins. Then followed the Consolidating Act of 1908. S. 89 of this Act dea.lt with the power of the com pany to pay commission and discounts. This section is more elaborate than s.t! of the Act of 1900, but, in substance, the pattern remained the same. Sec. 43 of the Act of 1929 introduced an im portant change by making an additioual.provisiou by which the commission paid or agreed to be paid was not to exceed 10% of the price at which the shares are issued or the amount or rate authorised by the arti-Oles, whichever is the less. In other words, in Hl29, a ceiling waa placed on the payment of commission at 10% of the price. After this Act was passed, commission paid could not exceed Hl% of the price at which the shares were issued. The Companies Act, 1948 by s.53 has maintain ed the same provisions as those contained in s.43 of the earlier Act. That, in brief, is the position of the corresponding provisions in the English Com panies Acts. Mr. Sastri contends that the relevant provi sions of the English Companies Act ·have been construed to mean that the ceiling on the payment of commission to which they refer is payment of commission out of capital and not out of profits. In othe1· words, the argument is that the payment of commission out of profits is outside the misohief of 19G2 .. 1a,ianl'4l Fakircha11d f)!Jd~(diya • Sh1u Cha111dco S'flgar ,\/ iil:J Ltd. 986 SOPHEME COUB.T HEPOHTS [1962) SUPP. the relevant English provisions. In support of this argument reliauce has been placed on the decision of the House of Lords in Hilder And Dexkr ( 1 ). fo that case, to rniso working capital a company offered shares at par to tho appellant and some other persons with an option tu take further shares at par within a certain time. The appellant sub scribed for shares, and the market price having risen to a premium, desired to take up the further shures. It was held : "that this was not an applica tion of shares of capital monoy directly or indirec tly in payment of commission, discount, or allowa nce within the meaning of the Companies Act, 1900, s.8. Sub-s. ~ and (the transaetiun being otherwise unobjectionable) thnt the appellant was entitled to exercise the option." It would be nu ti cell that what the House of Lords was callctl upon to consi tler was whether 1'11 application 1nade by the ap1•el lant for further shares offcndod against the provi sions of s. 8(2) of the English Act and the Hoi.se of Lords helu that it did not. It is true that tho shareholder would have been able to sell his shares at a premium and thereby obtain <t benefit, but tho said benefit cannot ba said to have been obtained by him at the expcnso of the company's ca.pita..: Thus, the application made by the appellant was outside the prohibition contained in s. 8(2). In other words, this decision is directly a decision on the It has, however, been urged constrnction of s.8(:!). by i\Ir. Sastri that in dealing with the construction of s. 8(2), Lortl Davey in his speech had oonsiuered s. 8( 1) and observed that : "this sub-section permitH a limited application of the company's capital in payment of a commission." The whole of the appellant'H argument is based on this sentence. It is suggesteu that this sentence amounts to a decision that the provisions of s. 8(1) have reference to the payment of commission out of capita.I and, therefore, have no refern11ee tu the payment of commission (I) (1901) A.C. 474, 479. ...~ adanlal Fakirohan~ Dudhediya v. Shree Ch11ngdeo Sugar ],fills Ltd. Gojendrogadkar I. .... ' ' ... ~S.C.R. SUPREME UOURT REPORTS \)87 out of profits. We a.re not inclined to accept this It is clear that in the case of Hilder, contention. the House of Lords had np occasion to consider whether or not commission could be paid out of profits. That point simply did not arise in tha.t. litigation. The question which arose was whether that was a case of payment ant of capital which was prohibited by s. 8(2) and it is in that context and while dealing with the narrow controversy bet ween the parties that an observation has no doubt been made that section 8(1) permits an application of the company's capital in payment of a commis sion in a limited way. This statement cannot be taken to be an exhaustive interpretation of s. 8(1) so tha.t it should be possible to hold that by neces sary implication it was intended to lay down thHt payment of commission out of profit was not within the purview of this section. Therefore, we are not prepared to accept the assumption made by the appellant that this decision is a direct authority on the point that payment of commissfon out of profits is not covered by s. 8( 1) or by the relevant provisions in the subsequent English Companies Acts. It is then argued that authoritative text-books on Company Law support the view that payment of commission out of profits is not prohibited by the English Companies Law. In the "Hiindbook on Joint Stock Companies" by Gore-Browne, it is ob served : ·'that there is no prohibition against paying . commission unconditionally 'out of profits', and this would seem to be lawful unless contrary to any (p. 191). Buckley •On stipualtion in the Articles." t~e ~ompa~ies Acts.' o?serves that : '·the prohibi t10n 1s agamst apphcat10n of "shares or capital money," and payment of commission out of a fund of undistributed profit is not, at all events not expressly, forbidden by the section." (p. 132). It is cl"'ar that this statement is somewhat cautious 1962 lfada11lal FaJ.ircliand Vudludi;-a v. Shru Changdeo Su:a' :\1/l{j Ltd. Gaj1nd1ogadkcr J. 988 SUPH.EME COUHT ItEPOl{TS [1962] SUPP. (p. li9). and not as unqualified as the statement in Gore In Palmer's Company Prccc Browne's Handbook. clents it is observed that the provisions of s. 5:1(2) of the Act of HJ48 "leave a company at liberty to apply any of its 'profit' in paying commissions in ·a ccordonne with tht· practice above referred to ab existing before the Act of HJOO." In Palmer's Company Law, however, the position is stated wmewhat differently. lleferring to section 5;~(:1). it is observed that : "if the words used are intended to restrict sub-sec.( l) so as to make it only lawful tu pay commission uut of the newly issued shares or capital money received for them, tho payment of commission out of profits would appear to be prohibited bys. :i4 which prohibits a company to give any financial assistance in connection with, inter alia, the subscription of its own shares. If, un the other hand, sub-seo. (2) docs not intend tu restrict sub-sec.(l) but contains a separate and inde pendent provision, the application of profit of the company within the limits of sub-section (l)(b) of It is thought that the s.53 would be permissible. latter interprut11tion is correct and that thu words in sub·sec.(:!J of s.5:! are intended to make it clear th1it the former practice may be continued under whwh a company could use its profits for the pay ment of commission within the permitted limits." (p. 200). It would tbus appear that tho last obser vation seems to support the view that the prohibi tion couta.ined in s.5:!(1) applies as much to pay ments made uut of capital as to payments made out of profits. It is thus clear tha.t the vicwti expressed by the different writers on Company Law disclose a differenco of approach and do not appear to be based on any judicial decision. In fact, though :\Ir. Sa~tri conceded that there was no direct deci sion on this point, be contended that the.absence of any judicial Llecision shows that the point was neve1· disputed. On the other hand, Mr. Aggarwala 1962 Maianlal Fakircha1 Dudhediya v. Shree Chan~deo Sugar 1.\1. ills Lrrl. Gaj:;ndragadkar J- 3 S.O.R. SUPREME COURT REPORTS 989 contends that the absence · of any judicial decision speaks for the fact that nobody ever thought that payment of commission could be made out of pro fits beyond the limits prescribed by the relevant statutory provision. However that may be, view of the material placed before us, we do not think it wou Id be safe for us to assume that the position under the English Law is established either one way or the other and for obvious reasons, we would be reluctant to embark upon an enquiry on that point by seeking to interpret the relevant Eng lish provisions ourselves. Let ns, however, assume that the true legal position under the relevant provision of the English statute is as the appellant contends. Does it follow therefrom that we should approach the problem of construing s. 76 with the pre-conceived notion that s .. 76 provides exactly for the same position ? In our opinion, the answer to this question has to be against the appellant. Let us first read s. 105 of the Indian Companies Act of 1913 and s. 76 of the Act of 1956 Aide bv side. Section 105 rea<ls thus:- · "Power to pay certain commissions and prohibition of payment of all other commis sions, discounts, etc. ( l) It shall be lawful for a company to pay a commission to any person in considera tio~ of bis subscribing or , agreeing to sub srribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, if the paymer>t of the commission is authorised by the articles and the commis sion paid or agreed to be paid does not exceed the amount or rate so authorised and if the - ., AJadatilal Fakfr:hand JJudl.tdiy4 v. Shrtt Criangd10 Sugor ,\1 ills Ltd, (Jojrndragailka1 .J 9!JO SUPREME COURT REPORTS [1962] SC'PP. amount or rate per cent. of the commission paid or agreed to be paid is- l (a) in the rase of shams offered to t.hc public for subscription, cliscloecd in the pr~spectns ; or (h) in the cases of share not offer ed to the public for snhscription,disclos<'<l in the statement in liPu of prospectuR, or in a statement. in the prescribed form signed in like manner as a stateml'nt. in I ieu of prosnectus and filed with the Re gistrar and, where a circular or notice, not hein!l a prospectus inviting su hecrip tion for the shares ie issued, also disclosed in that circular or notice. (Z) Rave as nforcRaid and save as provid ed ins. I05A, no company shall apply any of its shares nr captial money either directly. or indirectly in payment of any commission, discount. or nllowancP, t-0 any person in con sicleration of hie subscribing or Bl!reP.ing to FU hsrribe, whether nhsolut<:ly ·or conditionallv, for any shares of the company, or procuring or agreeing to procure subcriptions, whether absolute or conditional. for any shares in the compan.v. wh.:re the shares or money be so the purchaee applied by being added money of any property acquired by the com pany or to the Mntract price of any work to he exPrutP<l for the company, or .the money he paid out . of the nominal purchase-mon11.v or contract price, or otherwise." Section i6( I) an<l (:2) reads thus : "fl) A company m~y pity a commission to any person in consideration of (a) his >uhscrihing or agreeing to subscribe, whether ahRolutely tJr condi tionally, for any shares in, or debenture, 3 S.C.R. SUPREME COURT REPORTS 991 , (b) • • • of, the company, or his procuring or agreeing to procur? ~ubs- criptions, whether absolute or cond1t10nal for any shares in, or debentures of, the company, . if the following conditions are fulfilled, ·l1iz.- 1962 Madanlal Fal irclani Dudhedi)·a v. Shree lhangd~o Sugar Mills Ltd. Gajendragadkar J. (i) the payment of the commis sion is authorised by the artinles ; (ii) the commission paid or agreed to be paid does not exceed in the case of shares, five per cent of the price at which the shares are issued or the amount or rate autho rised by the articles, whichever is less, and in the case of debentures, two and a half per cent of the price at which the debentures are issued or the amount of the rate authorised by the articles, whichever is less ; (iii) the amount of rate per cent. of the commission paid or agreed to be paid is-in the case of shares or debentures offered to the public for subscription, disclosed in the pro spectus : and in the case of shares or deben tures not offered to the public for subscription, disclosed in the state ment in lieu of prospectus, or in a statement the prescribed form signed in like manner as a statement in lieu of prospectus and filed before the payment of the commiBsion with the Registrar and, where a circular or notice, not being a prospectus in· viting subscription for the shares or debentures, is issued, also disclosed in that circular or notice ; and (iv) the number of shares or 1962 :lJadanlaJ. F .. kircl1a11d IJ11dlu~: i;·a v. Shrte Cflan£dt·J Su::rar M 1/ls I.Id. Gajn;d•a[TadJ.:.11r .J. 992 SUPREME COURT REPORTS [1962] SUPP. debentures which persoIJB have agre ed for a commission to subscribe absolutely or conditiomtlly is dis cloRed in the manm·r aforesaid. (2) Save as aforesaid and save as pro vidPd in SPction 7fl, no company shall allot any of its sh11,res or debentures or apply any of its capital mr>JH'y~. either directly or in diroctly, in payment of any c0mmission, dis count or allnw:mce, to any pr~rson in consi <lerntion of- (a) his subscribing or a!lreeing to sulscrihf', whether ahsolut.elv or condi tionally, for any shnr<'s in, or .. debentures of, the company or, (h) his prom1rin (( or a!!reeing to procurf' subscriptions, whether absolute or conditional, for an~· shams in, or cl1i hentnres of, the company, wlicthPr the shares, cleh<mtures or monev bo so allotted or appliccl hy being nd<lecl to· the Purchase monev of 1rny property acquired by the company or to the contract price of any work to b.- execntod for the company, or the money be pnid out. of the nominal purchase monPy or cont.met price, or othP-r wise. .. • o o o o o o o o o o o o o o o o o o o o o o o o o o' o o o o o o o o o' o o o Io o o o o o o o o o o o A . comparison of the ~wo AP.ctions will show that s. 76 has m:ulc thrl)e cll'p~rtures from s. 105 ; firnt it. hf'gins bv saving th:1t "a. company mav pay a commi•sion" ancl thiA expr.-ssion has s11bstituted the en.rliPr expression "it shall he lawful for n com_ It is true that this pa.ny to pay commis•ion". change is not very significant; hut it cannot be treated as of no eignificnnce at all and it may be 1962 M 1danlal Fafcirchand! Dudludiya v. Shree C.~anddto Sugar Mills Ltd. Gajendragarlkar J. 3 S.C.R. SUPREME COURT REPORTS 993 that by adopting the present expression, the Legi lature wanted to indicate that s. 76 unlike its pre decessor s. 105, was not intended to be merely an enabling provision. Then it would be noticed that the substantial part of s. 105( 1) has now been put more oategorioally and definitely in the form of conditions in s. 76 and that may suggest that what s. 76( 1) purports to do is to authorise the payment of commissi'm but subject only to the limitations In other words, it is a ·section prescribed by it. which enables payment to be made and prohibits payment being made beyond the limit prescribed. The third change which is very material is that debenture are included within its purview. It is common ground that so far as commission payable on debentures is concerned, there never was any prohibition in the English Law or in the Indian Law ; and so, ifs. 76( 1) was intended merely to be an enabling provision, it was hardly necessary to include debentures within its scope. The inclusion of debenture marks an important departure from the position under s. 105 of the earlier Act as well as from the position under the corresponding pro visions of the English statute. Therefore, hav ing regard to the scheme of the present s. 7fi( 1 ), it would, we think, not be legitimate to attempt the task of construing the said provision with a pre-conceived notion as suggested by the appel-· !ant; for it may well be that the object intended to be achieved by this sub·section is different from the object intended to be achiev!'d by the corresponding provision in the English Law. Besides, it would be relevant to recall that one of the objects of the Act clearly was to impose strin gent restrictions. upon payments out of profits of the company to the Managing Agents, Directors, Managing Directors, and others concerned with the management of the affairs of the company. This · obje0t has been expressly achieved by several pro visions in the Act, such as sections 348, 352 and -, 1962 tM adaolol Fakirchand Dudlitdi)·a v. Sh1tt ChanJ!dtn Sut•r i'\f ills LCti. Ga,imdragadkar J. 9D4 SUPREh-IE COUR.T REPORTS [1962] SUPP. 38i. The anxiety of tho Legislature to save the profits made by the company and to prevent extra vagant, payment.R being made out of thi>m which is a distinguishing feature of tho Act, also shows that it would no~t be· safe to aBBume that s.i6(1) must havo intended to :tchieve exactly what t.he corresponding provision in the En!!'lish statut-0 intended to achievfl. Therefore, we do not think it would be right to assume at th11 vory out~ct that the payment of commisshn out of profits is outside the provisions of s. i6 becua;ic it is not included in the corresponcling provision in the English law. After all, the question which has been raised h<'fore us in the present appeal must be determine by us on a, fair and reasonable construction of s.76(1) and (2) antl it is to that problem that we must now turn. In construing section 76(1) and (2), it would be necessary to hear in mind the relevant rules of construction. The first rule of construction which ia elementary, .is that the words used in the section must be given their plain grammatica 1 meaning. Since we are dealing with two sub-sections of s. i6, it is necessary that the said two sub.sections must be construed as a whole "each portion throwing light, if need he, on the rest.'' The two sub sections must be read as parts of an intPgral whole and as being inter-dependent; an attempt should bo made in construing them to reconcile them if it is reason ably possible to <lo so, and to avoid repu~:incy. If r1,pugnancy cannot possihl.v be avoided, then :i queHtion may arise as to which of the two should prevail. But t.hat question can arise only if repug nancy cannot he avoided. The important part in s. 76( I) with which we are rlircctly concerned is the one that provides that the commission paid or agreed to he paid does not exceed the limit therein prescribed. One of the conditions whirh has tote fatiHfi~cl in the matter

1962. M adanlul Fakirch.~nd DudhediJ•a v. Shrte Cluingdto Sugar Mills Ltd. Gt>jendragadkar J. 3· S.C.R. SUPRE'1E COURT REPORTS 995 of payment of commission to a pNson subscribing for any shares is that the said commission shall not exceed 5% of the price at which the share@ are issued or the amount. or rate authorised by the articles, whichever is less. It is significant that this . provision seeks to place an absolute ceiling on the payment of commission and in doing so, it refers to the commission generally as such and does not refer to the commission paid either out of capital or out of profits, so that s. 76( l) read by itself unambi guouslv and clearly prescribes a ceiling on the pay· ment of commission what ever may be the source from which the said commission may be paid. We have already seen that s. 76( I) cannot be treated merely as an enaHing section. This position has been conceded by the appellant before us, and so ·there ·can be no doubt that the ceiling placed on the payment of commission is intended to act as a prohibition against the payment of any commission beyond the said ceiling. Therefore, s. 76(1 )(i)(ii) leaves no doubt that it covers commissi.on paid either out of capital or out of profits. Section 76(1 )(b )(i) prescribBs another condition that the payment of commission is authorised bv the articales. Since the payment of commission which is re· ferred to in this clause is commission payable either for the shares or for the debentures, it may be relevant to consider whether the commission here rPferred to can be commission only out of capital. Ordinarily, com mission paid for debentures would be commission out of debenture monev or profits though, of course it is conceivable that the commission on debenture may also be paid out of capital. But if commission on debentures can be paid out of profits. then it would not be unreasonable to assume that the Raid provision refers to commission payable not only out of capital but out of profits as well. The inclusion of rlebentmes withfo the scopP of s. 76 suggests that the commission mentioned by 76( I) ( c )(i) would not 1962 M tuf~lal Fal.:irchand Dw!htdiya v. Shrt1 Ch1ngdeo Sugn Mil/. Ltd. Gaj111drt1g• dkar J, 996 SUPREME COURT REPORTS [1962] SUPP . on a rP-aaonahle comt.mction be confined to a. com. mission payable out of capital alone. Clause ('iii)° of s. 76 (l)(bl seems to suggest the eamc conclusion. Under this clause, the condition impo. s~d is that the amount or rate per cent of the commission paid or agrPcd to be paid iH in the case of shares or debentures not offered to the public for subscription, disclosed in the statement in lieu of prospectus, or in a statemont in the prescribed form ~igned in like mannl'r as a statement in lieu of pros- · pectus and filed before the payment of the commi sion with the Registrar. In construing this clausl,, it may ho useful to refer to section III of the Act of 1913. l'nder that section, particulars in case of eommis.iion on debentures hnd to be filed and it can not be disputed that the said particulars wou Id also refer to particulars of commission paid out of profits. Now th:i.t debentures have been brought under s. 76, woulil it be unreasonable to assume that under the particulars required to be filed under condition (iii), particulars in regard to commission pn.yable out of profits are also required to he filed? In other words, the word "commission" used in el. (i) and (iii) seems to refer to commission paid not only out of capital but also out of profits in r·elation to dobcnturcs. That incidentally supportR the construction that the word "commission" used in clause (ii) cannot he confincil only to the commission payable out of capital. Indeed, if s. 76(1) is read by itself, there can be no doubt or difficulty in coming to the conclusion that commission tlwre contemplated is commission pa)· able both out of capital us well as profits. is accept-0cl, The argument, however, is that if this construc there would be repugnancy betwMn the two sub-clauses of s. 76. It is therefore, necessary to examine s. 76(2) because as we have already seen, before determining the true scope and effect of s: 76(1) and (2) we must read them together as parts of an integral whole. Now what does 1962 Madanlal Fakirchand Budhedi.)ia v • Shree ChantdtfJ Sugar Mills Ltd, Gajendragadkar J. 3 S . .C.R. SUPREME COURT REPORTS 997 s. 76(2) provide? It provides that no co~pany shall allot. any of its shares or debentures or apply any of its capital moneys, either directly or indirectly, in payment of any commission,_ discount or allowance, to any person in consideration of the objects there in specified, savll as aforesaid and as provided in s. 79. In other words, what is prohibited by sub-s. 2 is save as aforesaid in s. 76( l) just as it is save as provided in s. 79. That means that prohibition enacted bys. 76(2) has to be worked out in the light of s. 76(1) and s. 79. The prohibition imposed by s. 76(1) is in general terms and it includes payments from any source or fund. The Legislature knew that payment of commission may be made by adopt ing several devices. and what sub-s. (2) intends to achieve is to prohibit the adoption ~f such devices by m;i.king it clear that whatever be tlie nature of the device adopted, if the object of the device is to pay commission, then it must conform to the limit pre scribed bys. 76(1 ). It is well.known that sometimes shares or debentures are allotted or capital money is applied in payment of commission. 8imilarly, ostensibly be lawful payments, for instance, in respect of pur chase money of any property acquired by the company or the contract price of any work to be executed for the company, commission may be paid; the purchase price of any property or the contract price of any work may be fixed so as to include something more than its real ya]ue, the difference being intended to. be paid as commission. It was in view of these devices which the Legislature knew were being adopted for the payment of commission that s. 76(2) has been inserted in the form which it has taken. As has been observed by Craies 'On Statute Law', provisos are often inserted "to allay fears" or to remove misa.pprehensions. Just ·as s .. 76(2) has to be read in the light of s. 79 and subject to its provision, so it has to be read in the light of s. 76(1) and subject to its provision. In the garb of what may • - J/ adarz[,[ Fakirc/1411d DuJhldiyo v. Shrte Cha11gd10 Sugar Mills Ltd. 998 SUPREME OOURT REPORTS [1962] SUPP. other words, in order to clarify the position in regard to the devices which may l>o adoptnd to defeat the limit imposed by s. i6 (I), the L~gis· lature has provided by s. 76 (2) devices are also subject to s. i6( l) and paymnnts ea.n b~ made under those garbs or devices, provided they do not exceed the limit prescribed by s. 7ti( Ii: In our opinion, therefore, far from there boing any conflict or repugnancy between s. 7!i( I) and s. 7li(2), they constitnt-0 one integrated provision, 0110 of the objects of which is to impose a limit on the pay ment of commission either in respect of shares or in respect of debentures. The anxiety to save the profits of the company is as much in evidence in s. 76(1) as it is in other sections to which we have already referred. ' s. 76(1) must !\Ir. Sastri however, contends that the proper way to roads. 76(1) and (2) would be totreM s.7!il2) as the main provisi1m and s. 7!i( I) as a proviso to it. ilis argument was thats. 76(2) puts a blanket ban on the allotment of any shares or debentures or the application of any capital moneys and s.76( I )relaxes the ban by allowing the payment to be made within tho limits prescribed and subject to the c011ditio11s imposed by s. iG(2) therein specified. The ban is in respect of capital and not in respect of profits the ban prescribed and so the relaxation from capital and cannot be extended to profits. In our opinion, this is &n argument of desperation. What we are asktd to do by :lfr. Sastri iii in sub stance, to re-write the two sub-section of s. 76 and that we cannot legitimately do, particularly when on the alternati vc construction it is found that there i~ no repu"nance between the two sub-sections. On the ap;llant's view, we have to ignore the opening words ins. 76(2) and substitute the said words in s. 7ti( l ). That clearly is the function of the Legieb ture which enacts laws and not of the Court which interprets them. Therefore, in our opinion, the learned Judges of the High Court were right when likewise be confined 1902 Madanlal Fakirch• Dudhdiya v. Shree Chanzdeo Sugar 1llills Ltd. G-ijendrng1,dkor J '• :; .C.R. SUPRl£1\'1E COURT REPOH.TS 999 they held that a claim for commission out of the profits of the company which the appellant seeks to make in the present suit is hit bys. 76(1) and can not be entertained. In this connection, there are two other points which have .been urged before us by Mr. Aggarwala. He contents that ifs. 76(1) and (2) are read as con fined to the payment of commission from otit of the capital, there would be uo provision for payment of commission out of profits at all and so, the plain tiff's claim would have to be dismissed on that ground. The argument is that the Act is a Consoli dating Act and as such, it would be legitimate to assume that the relevant provisions of s. 76 deal exhaustively with the topic of the payment of com missi.on in respect of shares and debentures. If that be so, whatever is not provided for by s. 76 could not be claimed after the passing of the Consolida• ting Act. Similarly, it is urged that if commission payable out of profits in respect of dividends was intended to be saved, a provision would have been made in s. 76 corresponding to the provision made by s. 76(3) in regard to brokerage. s. 76(3) provi des that nothing in this section shall affect the power of any company to pay such brokerage as it . has heretofore been lawful for a company to pay. There is no such provision in respect of payment of commission out of profits iu relaticin to debentures. There may be some force in these contentions. Before we part with this subject, it would be relevant to state that in 1960, s. 76(2) has been amended by s. 22 of the Amending Act (No. 65 of 1960) and as a result of this amendment, the word 'capital' has' been deleted. It is common ground that after this amendment was effected,· s. 76(1) and (2) both refer to payment of commission out of pro fits as well as out of capital. As we have a.lready seen, the whole of the argument urged by the appel lant on the constrqction of s. 76(2) was substan tjally based on the use of the expretision "any of its • .. ad1Jnlol Fakircl1011d Dudhedi_ya v. ~·hree Ghttn'}dto ugor M1lh Ltd. ajttufr1godlcar J • 1000 SUPREME COURT REPORTS [1962) SUPP. capital moneys". The word "capital'' having been deletetl, the provision of s. 76( 2) is wide enough to include profits. Therefore, there ean be no <foubt that after 1000, tbo limit imposetl 011 tbe payment. of commission in respect of shares and deb<'nlures applies as much to commissions out of capital as to those which are pa.id out of profits. It may be pH missible to assume that by the amentlment made i11 l9ti0, the Legislature has attempted to remove doubt that may have arisen owing to the nse of the word "capital" in s. 76(:.!) and has now made its in tentions clear beyond any doubt. This amcndm1•nt 1dong with several others which wore made in HHiO was presumably the result of the rec:ommencfotion of the Committee appointed in that behalf. In its report, the Committee observed that "in order to remove any doubt, we would reeomme.ntl the dele tion of the word "capital" from s. 76(2)", Thuf, it is clear that the point raised in th1' present appeal cannot arise under tho amended provisions of s. io. That leaves one minor point still to be consi It was urged in the Courts below that the dered, provisions of s. /() cannot be invoked against the appellant because tho agreement on which appellant rests his claim was ma<le prior to the 1st April, 1956 when the Act came into force. The contention appears to have been that in invoking the provisions ofs. ill, respondent No. l was seeking to make tho said provision retrospective which it is In our opinion, there is no substaw'e in this not. argument. Sect.ion 9 of the Act is a. clear answer to this contention. Under s. 9(a) any agreement executed by the company cannot prevail if it is in consistent with the provisions of the Act and under s. 9(b) the articles shall likewise not prevail if they am inconsistent with the provisions of tho Aot. Section 645 leads to the same conclusion. The result is, the appeal fails and is dismissed with costs. 1 1962 Madanlal Fo.kirchand Dudhediya v. Shree Changdeo Suiar Mills lLtd. Sarkir J. 3 S.C.R. SUPREME COUR'f REPORTS 10[)1 SARKAR, J.-The respondent Shri Changdeo Sugar Mills Ltd. was incorporated as a private company on September l, l9J9. The appellant, the respondents Nos. z and 3 and one Kaoitnrchand Srikrishan, since deceased, h~d promoted its forma tion. On December 18, 19:19, the respondent com pany entered in to separate agreements with the promoters providing that "In consideration of the help given .and tronole taken by you promoters and in considera~ion of each of you having agreed to take shares of the value of one and half Jae of rupees in the capital of the company and having talrnn the sdid shares, the company enters into an agreement with yon as well as with other three pro- moters as follows: ( l) The company ............... will ............ pay a sum equal to 3- 1/8 per cent out of the n~t profits of the company to each of yon pro· moters or his heirs and representatives, e:x;ecntors, administrators or assigns". The promoters duly took the shares mentioned in the agreements and became entitled to receive, taken all tegether, 12-1/:l per cent of the profits of the respondent compmny. Article 3 of the Articles of Association of the res pondent company provided that it would enter into the aforesaid agreements with the promoters. In 1941, the respondent company was involved in financial difficulties and on April 22, 1941, a tri partite agreement was made between it and a firm ualled Ardeshir Harmusji Bhiwa.ndiwalla and Co. and the promoters under which it was provided that the firm or its nominee would become the managing agent of the respondent company and the promoters all together would receive "6-1/4 per cent as promo ters' commission instead of 12-1/2 per oent as provi· <led in our respective agreements with the company" that is to say, the agreements of December 18, 1939. In terms of this agreement article 3 of the Articles of Association of the company was duly ·amended. An agreement was also specifically entered into by • ' • •• l!JG2 .. fl[ udanJaJ Fa~irchan11 f)udhrdi;·a Shitc Clia1i_~,/tQ Su~ar ,I/ i /IJ Ltd. '-"arkar J. 1002 SUPREME COURT REPORTS (1962] SUPP. the respondent company with each of the promo ters. In HH4, the respondent company waa cunver tt:d into a public limited company. On .June JO, 10!4, 1C.t8turchand Srikrishan clied and hi8 interest under the agreements is now represe1ited by respon dents ~os. 7 tu 10. Presumably respondent Xo. 3 had taken the shares and entered into the agree ments as representing a joint family, for it is nut i.J1 diopute that un a partition bctwuen respondent No. 3 and hid co·sharern, respondents Xos. 4 to 6 be cam" entitled to participate in the interest uf rm; pundent No. :; untler the agreements and in the bharc8. In September 19H, three suits were pending in the High Court at Bombay between the respon dent company, thn beneficiaries under the agree ments and the ;;aid · Bhiwandiwall& & Co. to the d"tails of which it is unnecessary to refer for the said suits were however eompromised. The terms of settlement providecl th1<t (a) all the suits would be iiutually withdrawn; and (b) "The promoters commission payable tu us four which is l~s. 1-9-0 to euch of us and which comes to 6-1/4 percent in the aggn•gate p<:tya.ble to us four under the agreement shall remain in foree as in the agreement <:tnd our ri~ht of commission shall continue aoconlingly". The word 'us' in the terms of settlement means the beneficiaries under the agreements. The respondent company paid the commisRion at the said rat~ of 6-1/4 percent to tho beneficiaries under the agreements upto September 30, 195;). On October 1, 1956, the respondent company informed the a ppcllant and the other beneficiaries that as from April l, Hliiti, when the Companies Act, 1956, hatl come into force, the agreements had become It was said that s. 'ifi of the Com- ille.,al and void. panics Act, 1966, prohibited all payment of commis- sion for subscribing for Bha.rcs in excess of 5 per " . 1003 SUPREME COURT REPORTS a s.c.u. cent of the price at which the shares were issued. It is not in dispute that what the appellant and the other beneficiaries had been paid as commission exceeded five per cent of the price at which the shares had been issued. The respondent company therefore contended that the appellant and other beneficiaries were not entitled to any further commission. 1962 Matfanlal Fakirch( Dudhediya v. Shrec Chan;.deo Sugar M illB Lta Sarkar J. a declaration The appellant disputed the contention of the respondent company and filed a suit in the High Court at Bombay against it in which th~ other beneficiarieo were also made defendants agreements of 11139, as modified on April, December 19, <:2, 1941, were valid and for an injunction restraining the respondent ·company from passing a resolution deleting article 3 of its Articles of Association as it proposed to do and from acting on the footing as if the said agreements were illegal. The appellt1.i1t contended that s. 76 of the Companies Act of 1956 prohibited payment of commission for subscribing for shares beyond the limit specified out of capital only and as the agreements provided for payment of the commission out of profits, they were not affected by that section at all. The suit was contested by the respondent company but the other defendant supported the appellant's case. The respondent company con tended that the section applied to payment of com mission both out of capital as well as out of profits. The suit was heard in the first instance by S. T. Desai, J, . anr.l was dismissed. An appeal to an appellate Bench of the High Court was also dismiss ed. The present appeal is against the judgment of the Appellate Bench by speoial leave granted by this Court. I shall have presently to refor to the pro vi~ions of s. 76 but before doing so 1 think it neces· In sary to refer to the previous state of the law. -' ' da11loi Fa~ irchand Dudf.e,/iya v. ·hr~c Ch1m~de:­ gor ,\/ il/J ·ua. Sarkc;r J, 1004 SUPREME COURT REPORTS'[l962] SUPP. England, prior to the Companies Act of 1000, there was no statutory provision concerning payment of commission for subscribing for shares ar:d such a provision was first unacted by s. 8 of that Com panies Act. Even before the Act of 1900, howen·r, the law was that anybody subscribing for shares in a company had to pay the amount of the shares in full. That was considered to bo one of the funda lllento.I principles of Company law. Ooregum Uold Jtinniny Co. of India Ltd, \', Ueorge Roper (1) was a cast: which turned on the law as it stood before 1 \JOO. There a company had issued shares of£ 1 each with l5s credited as paid up leaving a liability of only 5s per share. A shareholder brought an action tu test tho validity of the issue. It was held that the issuu was invalid. Lord Halsbury observed (p.) J;;:;, "ft seems to me that the system thus created by which the sharoholder's liability is to ho limited by the amount unpaid upon his sharos, rondcrs it impossiblu for the com p~ny to depart from that requirement, and by any expedient to arrange with their shareholders that they shall not be liable for the amount unpaid on the shares, although the amount of those shares has been, in accordance with the Act of PH.rliament, fixed at a certain sum It is manifest that if the company could of morniy. do so the provision in question would operate nothing". The pr:ivision referrod to by Lord Hals bury was the section which required the memoran dum of H.Ssociation to state the amount of the com· panies eapilal as divided into shares of a certain J:ixed amount. Such a provision of course occurs in our Companies Act too. This det:isiun made it impossible for a com· pany to pay out of its capital any commission to any person for sub~cribing for its shares. It was felt that this cn•;1tecl some inconvenionce to:~ com pany in the mu.uagement of its affairs and therefore s. 8 was incurpora tod in the Com panics A ct, 1900 (1) (1892) A.C. 125, 133. , - 1962 Madan{ al Falcirc1- Dudhediya v. Shree Chongdeo Sugar ~fills Lt1 Sarkar J. 3 S.C.R. SUPREME COURT REPORTS 10:"J5 with the intention of granting some relief against that inconvenience. Sub-section ( 1) of this section provided that it would be lawful for a company to pay commission to a person in consideration of his subscribing for any shares in the company if the amonnt or rate of it were respectively anthorised by the Articles of Association and disclosed in the prospectus .and the commission paid, did not exceed the amount or rate so authorised. Sub-section (2\ provided that save as aforesaid no company could apply any of its capital money, either directly or indirectly, in payment of any commission to any person in consideration of his subscribing for any shares in the company. This provision came up for consideration before the House of Lords in Hilder v. Dexter (1). There a company had in consideration of person taking up some of its shares entered into an agreement with him that he would have an option to take further shares at par within a certain time. A little later the price of the shares went up and the person then exercised his option. An action was thereupon brought by a shareholder to test the validity of this agreement, and it was held by the House of Lords that the agreement was valid. Lord Davey observerl, "In this case the question is as to the powers of the company itself, and not as to the due exercise of the directors' powers. I have come to the conclusion from a consideration of the.language of s. 8, sub-s. 2, that the prohibition therein contained extends only to the application, direct or indirect, of the ·company's capital in payment of a commission by the company, and the transaction impeached in this case is not within it. It is satisfactory to find that the conclu sion to which I have come will not have the effect of extending the prohibition to transaction which were legitim>tte before the Act, and not, so far as I am aware, open to objection on any other !!round." He also said referring to sub-s. 1 of s. 8, "This sub-section, therefore, permits a limited application (1) (1902), A.C. 474,481,479. 1~62 Jdanlal !•di itrht nd /)odhe,liya ' . -;h,rt Chun.1;dt.J :1go1 Mi/ls I.rd. sa~k~r ·'· 1006 SUPREME C01JRT REPORTS [1962] Sl'PP. of the company's capital in payment of a com misRion". Xow there is no doubt to the Act of 1900 there was nothing to prevent the payment of commisRinn for subscrihing for Rhares out of a company's profits. The decision in the Oor€11111n Gold Jlfinir1f/ Company Ca-•r: (1) only laid down that thP amount c,f the shares must be paid in foll. It would not be so.paicl if the capital was utilised for payment of commission [t was, therefore, the for subscribing for shares. legitimacy of transactions providing for paymP1:t of the commission out of profits that Lord DaYey wnB happy to frel tb~t his decision wonlrl not affor.t. Tt. is hence, plain t.hat the HrmsP. 'lf Lorrls "·as of the oninion in Hildr.r v. Dexl.et (') thats. 8, 8Uh-s. 2 of the Act uf 1900 was not conc,erned with pa~·m<'nt of commission out of profits. That is how that case in England: seP P11lmer's has been understood Company Precedent~, 11th ed; vol. I i!l, Palmcr"s Cornµany Law, 20th ed. p. ~on. See also Sarkar & Sen's fnrlian Companies Act, 1913, p. 302. It seems to me that no other view is possible. ThPre is nothing in any Compani0s Act, except wlH'ro it expressly does so, t.o reAtrict in any way the power of a cornpan.v to deal with its profits. A compan~· is, therefore, free to enter int.n any agree ment <'ntitling any person to a part of it.A profit.A in consideration of his subHcribing for sha1·cs in it.. That waR the law nR it exist1icl bcforP. t.he Act of .1900. Tlw view taken in flilder v. !Je,rter (') waa that t.here wa' nothing in s. 8 of that Act which P-ffected a. chitn!:(e in the pre-existing law. In spite therefore of that Act, a company retained fully itR powers to pa~· out of its profits commission for subscribing for 8hurt>s in it. I think it right to remind here that we are clt>aling with the powers of a company anri not c1f its directors I p, Section 8 of the Act I flOO wa• rPp]accd by a. 8fl oft.he Engli~h Companit'H Act of I!Hl8 and this (I) (1892) A.C. 125, Jl3. (2J ·(1902) A.C. 474, 481, 479. ' - r .... · ,. 1962 Mudanl1d Fakirchand Dudhediya •• Shree Changdev Sugar Mi!ls Ltd. Sark'l.r .1, 3 S.C.R. SUPREME COURT REPORTS 1007 in its turn was substituted by s. 43 of the English Companies Act of 1929 and the corresponding provi sion is now contained ins. 53 of the English Com· panies Act of 19±8. Substantially the provision in this regard has remained the same in England through out from 1900 except the.t in 1929 a further restric tion was put on the right to pay commission for subscribing for shares by providing that commission paid shall not exceed 10 per cent of the price for which the shares were issued or the amount or re.te authorised by the articles whichever was less. That restriction could not have effected e. change in the law as it previously existed in England in regard to payment of commission out of profits. therefore, on Now in our countrys. 105 ofthe Companies Act of 1913 for the first time introduced the provision corresponding to that contained in s. 8 of the English Act of 1900. Both, the general principles underlying Company law, under which a company, except in cases where an express provision to the contrary is made, is free to deal with its profits in such manner as it likes and on authority of Bilder v. Dexter (') which in my view would be fully applicable to our Companies Act of 1913, a company in our country could enter into ·a valid agreement to pay any commission it liked out of its profits to any person for subscribing for I may here add that s. 10.5 of the share~ in it. Companies Act, 1913 was in terms substantially the same as s. 8 of the English Companies Act of 1900. It contained no provision restrieting the amount of the commission to be paid. I now turn to s. 76 of our Companies Act 1956. 'It provides by sub-s. (I) that "a company may pay a commission to any person in consideration of his subscribing ......... for any shares in or debentures of the company ... ; ..... if the following conditions are fultilled." These. conditions are, (I) (IO 02) A.C. 475, 481, 479. - " -·· 198t .,! adaftlal Fal:irchtlnd Du.flit ii'..r11 •• Shr11 '()1antdt·1 Sut:ar .~fill1. Ltd. S11kar .T. L .• r 1008 SUPF.EME COURT REPORTS [1962] SUPP. (il the payment of the commission is authori sed by t.he articles; (ii) the commi~sion paid does not exceed in the case of sharea, ii per r,ent of the price at which thA shares are i•sued or the amount or r>tte aut.hori s<'d bv the articlrs, whichever is less, and in the case of debl'ntures, 2-1/2 per crnt 0ftho price at which tlw dehent.urM are issued or the amount or rate auth0- rised hy the articles, whichever is less; (iii) the amount. or rate of the commission pairl ...... is, in the case of shares or debentures offered to the public for suh•crint.ion, di•closcd in the prospec· tus. in th" ca.sP nf shares or c!ehrntures not offered to the public for suhscription. disclosed in the state· ment in lieu of prosoP-dns. or in a statement in tho prescrihorl form and dulv "igned and filed bcfor11 the payment of the commission with t.he Registrar anc!, \vhcre a circula.r or not.ice, not hcinl! :i prosp<•ctuA inviting subscription for the shares or debentures is issu0.d, also diRcloserl in that drcular or notice. Now, the q1111stion that ariRes is whether t.his sub-section haR made n.ny alteration in th<> law which previously PXiRted 11.nrl which, for the rea,;ons earlier stated, I think permitterl commission to bo In other wnrds, does paid freely out of prrifits. this sub-section, as it. st.ands. nrevent a 1•ompan~· from paying any commission it likrs out of its pro fits to anv p~rson for s11 hscribinl? for sh>ires in' it? I find nothing in it to indieat~ thnt a ehange in !ho law was intended. It is said that the pcrmis,ion granted bv suh-s. (I) is not expressly confined to paymP.nt, ofr:nmmissinn out of capital only. NPi· ther, however, cloes it say th:it thA enabling provi sion containP<l in it is to he 11.pplierl to payment of c0mmission out. of profits also. How then is this sub-section to be construed? ~ow one of the est:ibli shed rules of construction of statutes is that it is to be presumed •ithat the le1?islature does not intend to make any substantial alteration in the law beyond • , ' .. 3 S.C.R. SUPREME COURT REPORTS 1009 · . . · l d f th . d' t t t t e s a u e. 1962 - - Dudhdiya v. Skree ChangdeD Sugar Mills ud, what it explicitly declares, either in express terms or by clear implications, or, in other words, beyond I Madan/al Fakirchan4 . d b' h n t e 1mme 1a e scope an o iect o all general matters outside those limits the law re- I • · h b d d • t IS m t e ast egree 1mpro- mams un 1stur e · . bable that the legislature would overthrow funda mental principles, infringe rights, of depart from the general system of law, without expressing its inten- tion with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest; their usual, or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however with and compre· hensive they may be in their literal sense, must, usually, be construed as being limited to the actual objects of the Act." (Maxwell on Interpretation of Statutes, 10th ed., p. 81-82). Sarko1.I. I have earlier stated that undor tho Act of 1913 a company was free to pay any commission out of its profits it liked to persons . subscribing for I find nothing in sub-s. ( l) of s. 76 to shares in it. indicate that that rule of law which is based on the fundamental principles of Company law, was inten ded to be affected by it. The only substantial de parture made in s. 76 (I) of the Act of 1956 from the provisions in s. 105 of the Act of J 913, except another to which I will later refer, is the imposition of a restriction on the amount of commission that can be paid. That cannot., to my mind, furnish any reason for holding that the pre-existing law giving full liberty to a company to pay commi%ion out of profits was intended to be changed. That restriction will have full scope if applied to payment out of capital and does not itself indicate any source out of which the restricted commission is to be paid. · Therefore, it seems to me that the proper way of reading sub-a. ( 1) of s. 76 is to restrict its general words so as not to affect the pre existing law. So 196% JI u•nl•I F<kirch,.i Dut/Judiya '. •• Shm Ch.,,r.o · Sut<' JI ills Ltd. S.,kar J, 1010 SUPREME COURT REPORTS (1962] SUPP. read the terms contained in it has to be confined to payment of commission out of the capit'd moneys of the companies . Again, ins. 105(1) of our Companies Act of 1013 it was said, "It ~hall bo lawful for a company to pay a commi;sion to any person in consideration of hiH suhscrihing" for shares in it. The words "it shall be lawful" are enabling words. They arc used in a statute when it is intended to permit something to be done which previously could not legally be In Craie;; on Statute Law, 5th ed. at p. 263, done. it has been said, '·Statutes paRscd for the purpese of enabling something to be done are usually expres sed in pe1·missive language, that is to say, it is enac ted that "it shall ho hwful", etc., or that 'such and such a thing may be done". In Jwi11.s v. Bi-shop of Oxford (1) it was said, "The word8 'it shall be law ful' ar<' not equivocal. They are plain and unam biguous. They are words merely making that h·gal and possihle which there would othcrwiHe be no right or authority to <lo. They confer a faculty or power, and they do not of themselves do more than cvnfer a faculty or power." It would follow from tho use of the words it "shall he lawful" in s. 105(1) of the Act of mm that the legislature inten ded to make that payment of commission for subs cribing for shares legal, which was not so bcfor<•. The legislature, therefore, intended to permit and make legal the payment of commission out of capi tal to a person on his subscribing for shares in a company which payment was previously illegal. Payment of Huch commission out of profits had · always heon legal and there was no necessity for any statutory provision to make such payment legal or pass an enabling enactment in regard to it. It would follow thats. I 05 was not concerned with putting any restriction on a company's power to pay commission out of profits. (I) (1880) S A.C. 214, 222. 1962 Madanlal Fakirchand Dudhediya v. "Shrte Chongdeo Suztir Mills Ltd. Sarkar J. - , _ _. - ... 3 s.c.R. SUPREME COURT REPORTS 1011 Now sub-s (1) of s. 76 of our Companies Act of 1956 uses instead of the words "it shall be law ful" the ·word "may". That however makes no difference. As has been stated in the passage in Craies which I have earlier read, both mean the same thing. They are both used in a statute to indicate that something may be done which prior to it could not be done. It would follow thats. 76(1) of the Act of 1956 was intended to have the ·same effect ass. 105(1) of the Act of 1913, namely, the legalising of a payment of commission out of uapital which before the Act of 1913 was illegal ::>nd which became illegal on the repeal of that Act by the Act of 1956. That would be another reason for saying that s. 76 (I) of the Act of 1956 was not concerned with any payment of commission out of profits. I pass on now to sub-s. (2) of s. 76 of the Act of 1956. That sub-section says: -- "Save as aforesaid and save as provided in section 79, no comp.my shall allot any of its shares or debentures or apply any of its capital moneys, either directly or indirectly, in payment of any commission, discount or allowance, to any person in consideration of.- (a) his subscribing or agreeing to suhb cribe, whether absolutely or conditionally, for any shares in or debentures of, the company, ( b) his procuring of agreeing to procure Rubsoriptions, ~hether absolute or conditional, for any shares m or, debentures of the com pany, whether the shares, debentures or money be so allotted or applied by being added t"O the purchase money of any property acquired by the company, or to the contract price of any work to be executed for the company, or 1962 •• M :Jdanlal Fokirclza11d Dudhediy~ Shree Chont<ko Sugar ,\1 ill1 Ltd. Sarkar J. IOI::! SlJ.PHEME COUKl' REPORTS (1962] SUPl'. the money be paid out ')f the nominal pur chase money or contract price, or otherwise." This sub-section strongly suggeBts th.at sub- s. (l} is to be read as confined 011ly to payment of collllllission out of capital, for it says that save to the extent provided by sub s. \I) no commission shall be paid out of Liw capital moneys of the com pany. If sub-s. ( l) were exhaustive of the powern of a company to pay commission both out of its capital and its profit;; so that nothmg could be paid' as commission either out of capita.I, or out of profits or out of any other money~ of the company except as therein provided, as the respondent company is contention is then sub-s. (:!)would be wholly redun dant; the prohibition cont,liued in it would in that case be totaliy unnecessary. It was said that sub-s. (2) is used only to make sure that the limits prescri bed by sub-s. \ l l would not be Jeparted from by indirect method. But surely it was not noceBllary to make any provision for thttt purpose only. What could not bu done directly cuuld also not be done indirectly. Furthermore; if it was necessary to provide, as sub-s. t2} is said to do, that tho capital moneys of tho company Bhould not be used indirectly for payment of commission, why was it not provi ded that the profits should not also be used for the same purpose indirectly. Thlli clearly, fur the same reason, should havu been done if sub-s. (1) dealt with payment of commitlllion out of profit£ also. The reason suggested on behalf of respondent company fur the enactment of &ub-s. \2) does not therefore seem to mo to be woll founded. Furthermore, tho two sub-sectim1s must bo read together. Sub-section (2) contains a general prohibition of payment of commission out of capital and an exception to it is provided in sub·s. (1). That seems to be the inevitable result of tl:\e words "save as aforesaid", that is, save as provided in aub-s. (1), with which sub-s. (2) opens. It necessarily :i s.c.R. SUPREME COURT REPOB.TS 1013 follows that sub-s. (1) contains an exception to the general prohibition of payment of commission out M ad•n1.,1 /1a(·1•chand of the capital. with payment of commission out of profits. It, therefore, has nothing to do Dudhediya 111e2 -'Mu vChanydeo Suoar J.fills ltd. · 0 Sa•k.,.1. The other substantial feature in which s. 76 of the Act of 1956 has departed from tho provisions of s. 105 of the Act of 1913, is by inclusion in the former of a Provision for the payment of commi- ssion for subscribing for debentures. While s. 105 dealt only with payment of commission for subs- cribing for shares, s. 76 deals with payment of commission both for subscribing for shares as well as debentures. An argument was based on this innovation made in s. 76. It was pointed out that in regard to debentures & company was before the Act of 1956 free to pay any commission it liked for subscribing for them, either out of its capital or out of its profits and only certain particulars had to be filed as required bys. 111 of the Act. of 1913. It has, therefore, been contended that the inclusion of debentures in s. 76 of the Act of 1956 would show that the power to pay commission whether out of capital or profits for subscribing for shares as well as debentures was exhaustively contained in sub· I am unable to accept this s. (1) of that section. argument. If I am right in my view that sub-s. 11) of s.76 of the Act of 1956 is only an exception to the general prohibition contained in sub-s. (2), it would follow that the restriction imposed by sub-s. (1) is confined to payment of commission for debentures out of capital only. It is true that so road there would after the Act of 1956 be no power in a company to pay out of its capital any oommi ssion for subsoribhig for its debentures, except as provided in s. 76 (1) of that Act. The law would no doubt thereby have been changed but it would have been so changed because the Act of 1956 made that change in express words by the prohibition contain· ed in sub-s. (2) of s. 76. But suppose sub-s. (1) is subscribing • , ' I _ _, ·~· • -• J9Gt ~! '.1do11la/ F11k1·fha11d /Judhtd1)0 v. ,<.,'J,rct Cho1;;;dr..() S14gar ,\111/s ltd .• Sarkar J.

1. 1014 SUPREME COURT REPORT5 [1962] SUPP. exhaustive as regards a company's power to pay commission for subscribing for debentures whether out of capital or profits, then also the sub.section would clearly Lo altering tho prc·existing law; it would then be putting a restriction on the power to pay commission for subscribing for debentures out of profits which power was previously free of all restrictions. ff it were not so, then suh·s. (I) in so far as it relates to payment of commission for subscribing for debentures out of profits would become infructuous. Therefore, it would have in that case to be read as altering thP pre-existing law It is of some interest Ly a necessary implication. to point out here that s.111 of the Act of l!ll3 provided that an omission tc, file the particulars as required by it would not affect the validity of the debentures issued &nd, validity of the a;;rccment to pay commission on them. therefore, perhaps, Cumiug Lack now to the point under comi deration I find it impossible to say that a necessary implication!of sub-s. (I) of s. iG of the Act of 195<i is to alter the previous law which permitted payment of commission for subscribing for shares freely out of profits. In regard to payment of commission out of capital for subscribing for shares, it was only an enabling· section and not a restrictive one, though in regard to payment of eommission for subscribing for debentures whether out of capital or out of profits, on the assumption that we have made, it would be a restrictive and exhaustive provision with no power to pay such commission except in accor- to payment of dence with its terms. commission out of capital for subscribing for sharlll!, the Hection being only an enabling provision, it cannot affect the pre-existing power to pay out of profits a commission for subscribing for shares. The fact that in regard to payment of commission for subscribing for debentures the section may have to is, as containing be read as restrictive, In regard ' .• l ~ ~ 1962 Matlanlal FaA.irc~and Dudhetfiya v. Shre1 Gh'lngdea Sugar Milts Ltd. Sarkar J. Reprint 3 S.C.R. SUPREME GOUR T REPORTS 1015 exhaustively the power in regard thereto, is no reason for saying that it has the same effect in regard to payment of commission for subscribing for shares. The considerations applicable to the two cases are entirely different and the effect therefore, of the section on them has to be different. ' For these reasons, in my opinion, s. 76 of the Act of 1956 does not affect a company's right to pay out of its profits any commission it likes for sub I therefore think that the scribing for shares in it. agreements for payment of commission for subscribing for shares in the respondent company out of its pro fits with which this appeal is concerned were not affected by s. 76 (1) of the Act of 1956. They re mained perfectly valid after the coming into force of the Act of 1956. I would, therefore, allow the appel. BY CouRT : In accordance with the opinion of the majority, the appeal fails and is dismissed with costs. ~-.