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20. Before dealing with the issue in the suit, I may clear the ground by making certain observations which will shorten the discussion on the different issues. It is apparent that it is nowhere alleged in the plaint that this contract, which is a voidable contract, has bene avoided by the plaintiffs or any other members of the class of shareholders they represent by the due notice. As regards the invalidity of the allotment, no clear submissions appears, except that a reference is made in paragraph 5, that the statements in lieu of prospectus have not been properly filled up, and in paragraph 6, that the company made allotments between September 3, and September 5. It is further contended that the first defendant company after the date of the said applications, materially altered its capital structure, and, therefore the statements in lieu of prospectus are materially incorrect. Thereafter, it is alleged, that the plaintiffs and the class of shareholders are therefore entitled to avoid the allotments and have their names removed, but it is nowhere pleaded that there has been any notice of recession of the contracts, which the plaintiffs are entitled to. In the prayers it is said that the allotment is invalid, or in the alternative, the shareholders are entitled to avoid the same.

26. In these circumstances, Mr. Khambatta on behalf of the plaintiffs was unable to press the question that there was any avoidance of the contract, or that this was a voidable contract avoided by the plaintiffs at any stage, and not having pressed that, he proceeded to base his arguments mainly on the construction of Section 96(2) of the Indian Companies Act. This is the issue round which the main controversy between the two parties had revolved, and I shall come to it directly, but before doing so, I may point out certain facts on which the plaintiffs rely. First of all, they rely on this, that in reading this section one must remember that according to the plaintiffs these forms were issued by the company prior to the filing of the statement in lieu of prospectus and contrary to the provisions of Section 96, for which they rely on this, that the statement if lieu of prospectus is delivered on September 3, and taken on file on September 7. I have already indicated the inaccuracy of this statement in the light of the evidence of the Registrar, but it is, however, contended that the forms of applications were issued on July 15, 1946, and they were issued to the public by the company, and that on one of the statements in lieu of prospectus, instead of there being the signature of Sir Allagappa Chettiar, there is the rubber stamp of Sir Allagappa Chettiar's signature. This latter point would fall under Section 98, and would infringe only Section 98, which would in turn make the contract voidable under Section 102. But as I have indicated above there are no grounds for showing that any of the plaintiffs, or any member of contract within a month after the statutory meeting of the company was held, so that the only point now before me is whether these application forms were issued by the company prior to the filing of the statement in lieu of prospectus, and contrary to the provisions of Section 96 of the Indian Companies Act. It is on this point that a considerable body of oral evidence was led by the plaintiffs. Before referring to the evidence, one must turn to the averments in this connection. To my mind, there is no averment to the effect that these application forms were issued by the company or by any authority vested for that purpose by the company in any officer under any particular resolution. The plaint itself says as follows:- On or about July 15, 1946, the first defendant company issued printed forms of application for shares to certain brokers X Y Z with the intention that the said forms may be used by the members of the public for applying for shares, and that these application forms were issued before the statement in lieu of prospectus was filed. There is no clear allegation that these were issued by the company to the public. For this purpose, several witness were examined, and I shall very shortly deal with their evidence. The first is witness Chimanlal Patni. He said that the company was going to issue only ordinary shares. He says that he did receive certificates from the company in connection with the 250 shares, and adds, "As far as I know the capital structure of the company was not changed thereafter." I may state at once that every share certificate bears on the face of it the change of the capital structure of the company, and nobody had challenged that. This was done by a special resolution of July 20, 1946, long prior to the issue of the certificates which on the face of them show the capital structure of the company. The witness was unable to produce the allotment letter sent to him. This is the evidence of the 11th plaintiff in the suit. Then came the 1st plaintiff in the suit, one Mansukhlal Vora. He said that he asked his broker Lallbhai to get shares, as the defendant company was inviting subscriptions and that Lallbhai told him that the public was subscribing to the shares of this company and he should do so, if he desired. He could not produce the share certificate, because he said he did not get any, and had not applied for any as there was trouble in connection with the company. He says that he has filed a suit to recover his money, and he did not attend the meeting of the shareholders of the company as a shareholder, but as a member of the public, and he is asking for nothing else, except recovery of his moneys. This is important to bear in mind when one goes to the issue as regards the representative nature of the suit and as regards the multiplicity of parties and causes of action.

30. Now, taking issue No. 8(A) first, it has been argued by Mr. Khambatta that inasmuch as Section 96(2) says that it is not lawful to issue any form of application for shares unless it is issued with the prospectus complying with the requirements of Section 93, and any person acts in contravention of the provisions of this sub-section, is liable to a fine. Therefore, the issuing of these forms makes the contract void, inasmuch as Section 96 contemplates a counterpart of what follows, namely, allotment, and that, if the first part, namely, and the sequel to it cannot follow, namely, any allotment or acceptance of the offer, namely the offer being unlawful, it must not be divorced from what follows, namely, a contract by allotment, and, therefore, there is no contract, and, in other words, the contract is void. The answer to that depends on the construction of this section together with a reading of the other relevant sections. Section 96, as it stands, makes the issuing of such a form prior to the issuing of a prospectus, and in compliance with the requirements of Section 93, not lawful. Then it imposes f certain penalty on a person who acts in contravention of the provisions. It must be remembered that this section is headed "Management and Administration", Part IV of the Act, and it is a provision for the regulation of the procedure of issuing shares by a company. It has no bearing on an act of an outsider or a third party, and the only consequence this section contemplates is a penalty on the offending official. In this connection one may look at Sections 98 and 101. Section 98 contemplates obligations of companies where no prospectus is issued at all, and Section 101 refers to restrictions as to allotment. Now, in connection with this section, Section 98 clearly contemplates a position where the company allots shares or debentures without issuing a prospectus, and Section 101 also lays down that there shall be no allotment of any shares capital of the company offered to the public, unless certain conditions are complied with. None the less, under Section 102 of the Indian Companies ACt, it is said, when an allotment is made by the company to an applicant in contravention of this provision, that contract shall be voidable at the instance of the applicant within one month after the statutory meeting of the company is held and not later. A contract is concluded between the applicant and the company by the tender of the application and allotment of the shares. Therefore, it is clear that a contract can be made although the company has not issued a prospectus and in contravention of the express provisions of Section 98. The fact that the Legislature talks of a voidable contract clearly shows there is a contract that can be completed despite the provisions of Sections 98 and 101. The Legislature has not included Section 96 in Section 102, and it is argued by Mr. Khambatta on this basis that it is not included, because the contract is deemed to be void, in other words, no contract between the parties. I cannot accept this reasoning, because Section 96 itself has no application whatever to the formation of a contract. The application forms may be issued before any prospectus is out, or before any statement in lieu of prospectus is filed, and they may not be used at all by any party, and yet the offence would be committed within the provisions of Section 96. On the other hand no application forms may be issued by the company, and yet the offer may be made by a party on a piece of paper or a note paper. I see nothing in the provisions of the Act which would prevent a contract being formed by such an application being made before the issued of a prospectus, or the filing of the statement, and acceptance thereof after the filing of the statement. Therefore, to my mind, Section 96 is only a provision for the due compliance with certain conditions to be observed by the management if floating a public limited company, and had no bearing on the contractual relationship between the intending shareholder and the company. The offer is accompanied by allotment moneys which is the consideration, and under Section 23, every agreement of which the object or consideration in unlawful is void, but there is no question here of the object or consideration per se being unlawful at all, and unless the Legislature in express terms restricts the freedom of contract, a contract which is valid and complied with the provisions of the Indian Contract Act is a completed and a legal contract. In these circumstances, I a, unable to accept the contention of Mrs. Khambatta that Section 96 (2), if infringed, makes the contract between a shareholder and a company unlawful. In fact such a construction would lead to an absurd position, because if this were held to be so, and if the company had issued application forms contrary to Section 96, and subsequently the promoters came to realise that they had issued these forms prior to the filing of the statement in lieu of prospectus, and the contract was void, they would also be entitled to rest their rights on this, and if they found that the coal mine they were dealing with became a gold mine, they could contend that there is no contract in existence and the shareholders had no rights. This is an instance at one extreme. On the other hand, if the company was a successful company and this defect was found, a shareholder who wants to waive any irregularity in a good investment company would not be able to do so, because, if the contract is void, he has no contractual rights whatever against that company. In these circumstances, I am not prepared to accept that on a proper construction of this section by implication, the Legislature intended that contracts entered into through application forms issued before the filing of the prospectus, invalidated any contract with the company, and that there was no acceptance of the offer on the allotment of the shares.

31. This disposes of issue No. 8(A) which is the most important issue in these proceedings and on the same considerations issue No. 9 is also disposed of.

32. The only two other issues which remain for consideration are issues Nos. 1 and 2. In connection with issues No. 1 it is obvious that there is not the same claim made by the parties, because the dates of allotment and the dates of call moneys, apart from the dates of application, would distinguish one shareholder's case from another, namely, whether the application was after the filing of the statement of before. The dates of allotment would also be different, and the payment of call moneys would also be different. In these circumstances, inasmuch as I have held that the contract is a valid contract, and may be a voidable one or not, the question in each case would raise the question of laches and acquiescence, in other words, estoppel in connection with each of the parties, and therefore, the efficacy of each contract would depend upon different facts and different conduct of parties, vis-a-vis the company, and the conduct of the company qua each shareholder. Besides it would arise the question on the nature of the objection taken by the shareholder, and whether that shareholder had waived it or not. In those circumstances, clearly to my mind, a glance at Exhibit H will show that the facts of each case would have to be differently approached and analysed, and, therefore, this is not a suit which can be brought under the provision of Order I, rule 1. The same reasoning applies as regards the second issue, namely, the question of a representative suit under Order I, rule 8. Identical interest cannot possibly be pleaded, and different considerations would apply to each of the plaintiffs, apart from the other shareholders, as appearing from Exhibit H. In fact, in certain cases, there are transferees, (see Exhibits 5 and 6), and, therefore, how can be plaintiffs' relief be applicable or allowed to the transfers? In fact, it is apparent that another suit is pending by certain shareholders, which was on my board immediately after this suit, and for a similar relief.