Securities Regulation – Law School Notes

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These notes cover Securities Regulation in Canada.

The best material to have an in-depth understanding of Capital markets irrespective of what jurisdiction you are based in. Especially helpful if you are an Indian law student due to lack of good material covering the fundamentals.

  • Major Themes in Course
    1. Three Goals of Securities Regulation
    2. Three Methods of Achieving these goals 
      1. Registration requirement
      2. Disclosure Requirement
      3. Remedies for Breach of Registration or Disclosure Requirements
    3. General Policy of the Course 
  • Introductory Concepts
    1. Purpose of Selling Securities
    2. Types of Securities
    3. Securities Trading
      1. Open Market in Capital
      2. Private Trades
    4. Sources, History & Constitutional Division of Powers of Securities Regulation
      1. Division of power 
      2. History of securities regulation 
      3. Sources of Provincial Securities Regulation
  • Going Public
    1. Introduction to Going Public
      1. General Rule– Securities Act, ss 25 and 33
      2. How Companies Go About Raising Capital
      3. Why Go Public?
      4. Why do we regulate public offerings (3 objectives)
    2. The Prospectus Requirement: Does the Securities Act Apply?
      1. What is a security?
      2. What is a trade? –> Statutory Definition
      3. What is a distribution?
    3. Prospectus Preparation
      1. Prospectus General Rule
    4. Prospectus/ Distribution Process (After making decision to go public)
    5. Summary of Steps Creating the Preliminary Prospectus:
      1. What must be included
      2. The Waiting Period, Vetting/ Comment Letter and Amendments
      3. Filing the Final and Obtaining a Receipt and Changes Post-Filing
      4. Closing & Any Post-Final Amendments
      5. Consequences for Failure to Deliver/ File Prospectus (practically, none)
      6. Failure to File (likely not needed)
      7. Liability for Misrepresentation in a Prospectus
      8. Registration Requirement
      9. Underwriting Agreement
      10. Sample Prospectus
  • After Going Public: Continous Disclosure
    1. Policy Behind Continuous Disclosure Regime – Merger Report (3 objectives)
    2. PART I: Regular Disclosure
      1. Application to Reporting Issuers
      2. Obligation to File Financial Statements
    3. PART II: Timely Disclosure (of changes)
      1. Statutory Provision: Ontario Securities Act (OSA), Part XVIII – Continuous Disclosure
      2. Material Change vs Material Fact
      3. What must be filed with a material change (3 Report Options)
    4. PART III: Early Warning
      1. STEPS:
      2. STATUTORY PROVISIONS
    5. PART IV: Insider Reporting
      1. Analysis: When do insider reporting rules apply?
      2. STATUTORY PROVISIONS
    6. PART V: Insider Trading
      1. Policy Discussion about Insider Trading / Tipping Prohibition
      2. Steps
      3. Statutory Provisions (OSA)
      4. Meaning of Generally Disclosed (Defence)
      5. Defences to Insider Trading / Tipping
      6. Actions, Sanctions & Penalties for Insider Trading
  • The Closed System
    1. Private Placement & Exemptions
    2. General Rule
    3. Advantages & Objectives of Private Placement
    4. The Private Placement Exemptions Offering Memorandum (and problems with it)
    5. Registration Requirement for Private Placement Exemptions
    6. Resale Rules General Rule: 2 Components of Resale Rules
    7. Resale Rules for Non-Control Persons Resale Rules for Control Persons (Separate Regime)
  • Control Transactions
    1. Reasons for Takeover Bids Socially
      1. Useful Reasons for Takeover Bids
      2. Non-Socially Useful Reasons for Takeover Bids
      3. Policy Reasons for why we regulate takeover bids and the legislative objectives wrt them
    2. Overview of How Takeover Bids
      1. Work What is a takeover bid?
      2. Deemed Ownership
    3. Mechanics of a Vendor Takeover Bid
      1. Takeover Bid Circular (Information)
      2. Minimum Period of Bid (Time)
      3. Pro Rata (Equality)
      4. Withdrawal and Change of Info or Variation in Terms (time and info)
      5. Conditions (just investor protection)
      6. Payment for Securities (investor protection generally)
      7. No collateral agreements
    4. Post-Bid: Directors’ Circular (Response)
      1. Section 95: Offeree Issuer’s Obligations
      2. Legislative Goal Met
    5. Pre & Post-Bid Integration
      1. Lock-up Agreements/ Tendering Agreements (Allowed)
      2. Pre-Bid Integration
      3. Post-Bid Integration
    6. Exemption from Pre-Bid and Post-Bid Restrictions – EXEMPT Takeover Bids!
      1. Private Agreement Exemption (s 100.1(1) of OSA, most important)
      2. S – 100 Normal Course Exemption – Don’t Exceed 5% in 12Months
      3. Voting & Non-Voting Shares
    7. Director’s Duties and Responsibilities in a Takeover Bid Situation – Defensive Tactics to Buy Time
      1. Fiduciary Duty in the Context of Takeover Bid
      2. Examples of Defensive Tactics
      3. Defensive Tactic Rules – NP 62-202

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CPC Case Brief – Khanna v. Dillon (Section 115)

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FACTS: The appellant and the respondent entered into a partnership to do business as Construction Engineers but in February 1956 they agreed to dissolve it. It was agreed that the respondent was to take over all the assets and liabilities of the partnership and keep the appellant indemnified from all liability. Later on, a suit was filed by the appellant for dissolution of partnership and rendition of accounts. That suit ended in a compromise which provided that all realizations of the old partnership would be converted into cash and placed in joint account in the name of the two partners before being paid towards the liabilities of the partnership. The respondent filed two suits against the appellant for recovery of certain amounts on the allegation that the appellant had taken that amount as loan. The defense of the appellant was that as the money was still in the joint name of the two partners and he had taken the money from the joint account, suits between the two partners were not maintainable.

TRIAL JUDGE: in preliminary issues raised in the suits the trial Judge held that the suits were not maintainable, but instead of dismissing the suits there and then, he set them down for a future date.

REVISION PETITIONS FILED: Against the findings of the trial Judge, revision petitions were filed in the High Court under s. 115 of the Code of Civil Procedure. The High Court set aside the orders passed by the Trial judge and held that the suits could not be held as not maintainable.

APPEAL AGAINST HC JUDGMENT: The appellant appealed by special leave. The appellant challenged the order of the High Court on the ground that the order of the trial Judge did not amount to “a case which has been decided” within the meaning of s. 115 of Code of Civil Procedure, that the decrees which may be passed in the suits being subject to appeal to the High Court, the power of the High Court was by the express terms of s. 115 excluded, and that the orders of the trial Judge did not fall within any of the three clauses (a), (b) and (c) of s. 115.

SUPREME COURT: The High Court was right in setting aside the order passed by the trial Judge and in holding that without investigation as to the respective claims made by the parties by their pleadings on the matters in dispute, the suits could not be held as not maintainable. The decision of the trial Judge affected the rights and obligations of the parties directly. It was the decision on an issue relating to the jurisdiction of the court to entertain the suit filed by the respondent. The decision attracted cl. (c) of s. 115 of the Code of Civil Procedure.

REVISIONAL JURISDICTION OF THE HC: High Court is not bound to interfere merely because the conditions are satisfied. The interlocutory character of the order, existence of another remedy to the aggrieved party by way of appeal from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction.

Revisional jurisdiction of the high Court may be exercised irrespective of the question whether ;an appeal lies thereto from the ultimate decree or order passed in the suit or not. The expression “in which no appeal lies thereto” does not mean that it excludes the exercise of the revisional jurisdiction when an appeal may be competent to the High Court from the final order. If an appeal lies against the adjudication directly to the -High Court or to another court from the decision of which an appeal lies to the High Court, it  has          no power to exercise  its  revisional jurisdiction against the adjudication, but where the decision itself  is not  appealable to the High Court directly  or    indirectly, exercise  of the revisional jurisdiction by the High  Court would not be deemed excluded.

A decision of the subordinate Court is amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies therefrom.

The decision of the trial Judge was erroneous because he denied himself the jurisdiction of holding that the suits were not maintainable. The fact that he did not dismiss the suits and did not draw up decrees for that purpose, was itself an exercise of jurisdiction with material irregularity, if not also illegality. In so far as the parties were concerned, the suits were no longer live suits as the decision had put an end to them. The word “case” in s. 115 does not mean a concluded suit or proceeding but each decision which terminates a part of the controversy involving a matter of jurisdiction.

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CPC Case Brief – Mahant Dhangir v. Madan Mohan

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ACT:    Question regarding maintainability of cross-objection in appeal-order 41, rules 22 and 33 of Civil Procedure Code- Applicability thereof.

There is a Math known as Juna Math in Bikaner.

FACTS- The first appellant is the present Mahant of the Math and the second appellant is the presiding deity of the Math, both referred to collectively as ‘the Math’, herein. Previously, one Lalgiri Maharaj was the Mahant of the Math. He mismanaged the Math and disposed of its properties. He gave on lease for 99 years land measuring 2211 sq. yards in favour of Madan Mohan, the respondent No. 1.he sold to Madan Mohan 446 sq. yards of land out of the land leased to him. Madan Mohan constructed shops on the land purchased and sold them to Jankidas and Mohan Lal, who are respondents Nos. 2 and 3. Then Madan Mohan sold another piece of land purchased from Lalgiri to the respondents Nos. 2 and 3. Later, the first appellant became the Mahant of the Math, and the Math filed a suit, challenging the alienations made by Lalgiri, and for a declaration that the said alienations were without authority and not binding on the Math and for possession of the property from the respondents 1 to 3. The trial Court decreed the suit in part only, as it gave a declaration that the lease deed dated August 19, 1963, was null and void, but the relief regarding possession of the land demised was rejected.

The suit for recovery of possession of the land sold by Lalgiri was also dismissed. Against the judgment of the Trial Court, two appeals one by the Math and the other, by Madan Mohan were filed before the High Court. By a common judgment in the two appeals, a single Judge of the High Court (i) allowed the appeal of the Math in part, giving a simple declaration that the sale of the land was void, but declining to pass a decree for possession of the land sold, and (ii) allowed the appeal of Madan Mohan, giving him complete relief, while holding that the suit as to the lease was barred by time. Against the judgment of the Single Judge, no appeal was filed either by the Math or by Madan Mohan. There was only an appeal filed by respondents 2 and 3, who impleaded the Math as         the first respondent and Madan Mohan, as the third respondent. The Math Preferred cross-objection. Madan Mohan did not do anything. The Division Bench of High Court dismissed the appeal on the merits.  It also dismissed the cross-objection on the ground of maintainability. Aggrieved by the dismissal of the cross-objection, the Math appealed to this Court for relief by special leave.

COURT HELD: The Single Judge invalidated the sale of the property to Madan Mohan, while denying a decree for possession. The appellants before the Division Bench wanted to get            rid of the finding as to the invalidity of the sale. The Math wanted to recover possession of the property from the appellants before the Division Bench, and Madan Mohan. The Math instead of filing an appeal for that relief, could as well file the cross-objection. That is clear from the provisions of R. 22 of 0.41,     C.P.C. The High Court was clearly in error in holding to the contrary. The next question for consideration was whether the cross-objection was maintainable against Madan Mohan, a co-respondent, and if not, whether the Court could call into aid R.       33, 0.41 C.P.C. Generally, the cross-objection could be urged against the appellant. It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent. The type of such exceptional cases are    very much limited-when an appeal cannot be effectively disposed of without opening the matter as between the respondents inter se, or when there is a case where the objections are common as against the appellants and the co-respondent. This view has been accepted as a guide for more than two decades.  No attempt should be made to unsettle the law unless there is a compelling reason. The Court does not find any such compelling reason in the case.  The Math could urge the objection that the appellants before the Division Bench and Madan Mohan had no right to retain the property after the sale deed had been declared null and void. The validity of the lease deed and the possession of the land in pursuance there of, have to be determined only against Madan Mohan. It is not intermixed with the right of the appellants above-said. It has no relevance to the question raised in the appeal.

The High Court was right in holding that the cross-objection as to the lease was not maintainable against Madan Mohan.  But that does not mean that the Math should be left without a remedy     against the judgment of the Single Judge. If the cross-objection filed under R. 22 of 0.41,C.P.C. was not maintainable against the co-respondent, the Court could consider it under R. 33, 0.41, C.P.C. R. 22 and R. 33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under R. 22 against correspondent, R. 33 could take over and help the objector. The appellate Court could exercise that power in favour of all or any of the respondents even though such a respondent may not have filed any appeal or objection. The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and the respondent but also between a respondent and co-respondents.

The appellate Court could also pass such other decree or order as the case may require.  The words “as the case may require “used in R. 33 of 0.41, have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. This Court is not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that could be seen, may be: that the parties before the lower Court should be there before the appellate Court, the question raised must properly arise out of the judgment of the lower Court; it may be urged by any party to the appeal.  It is true that the power of the appellate Court under R. 33 is discretionary, but it is a proper exercise of judicial discretion to determine all the questions urged in order to render complete justice between the parties.  The Court should not refuse to exercise that discretion on mere technicalities. Appeal allowed. The judgment and decree of the Division Bench of the High Court reversed.  The Division Bench to restore the appeal and cross objection of the parties and dispose of the same in accordance with law and in the light of the observations made.

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CPC Case Brief – K.R. Mohan Reddy v. Net Work Inc

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Facts

  • The parties entered into a partnership which was reconstituted at a later date.
  • A (plaintiff-respondent) Firm
  • B (defendant-appellant)Partner
  • B handed over certain work to A for execution.
  • Though B retired, he still requested A to continue work in his name.
  • According to A, B owed some amount to A.
  • B issued a cheque in this regard but was dishonoured.
  • A filed a suit for recovery.
  • B denied the fact contending that the cheque was obtained by fraud.
  • Trial judge dismissed the case.

Issue

  • Whether respondent can produce additional evidence in the Court under Order 41 rule 27?
  • Interpretation of O41 R27 is important.
  • Condition precedent for application of (aa) is different from (b). If the former one is to be applied, it is for the applicant to show that the conditions precedent to that clause was met. If b is to apply, the court is to consider the entire evidence on record and come on independent findings.
  • In State of Gujrat v. Mahendra Kumar, it was held that the appellate court must admit fresh evidence only when it is required to pronounce judgment. The particular order does not allow the court to let in evidence just to pronounce judgment in a particular way.

Holding

  • The respondent may file an additional affidavit in support of its application under O 41 R27.

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CPC Case Brief – Banarasi v. Ram Phal (cross objections and power of appellate court)

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  • The appeals raise a short but interesting question of frequent recurrence as to the power of the appellate court to interfere with and reverse or modify the decree appealed against by the appellants in the absence of any, cross-appeal or cross-objection by the respondent under Order 41 Rule 22 of CPC and the scope of power conferred on the appellate court under Rule 33 of Order 41 CPC.
  • Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be, said to be aggrieved by the decree. A party who has fully succeeded in die suit can and needs to neither prefer an appeal nor take any cross-objection; though certain finding may be against him. Appeal and cross-objection, both are filed against the decree and not against the judgment and certainly not against any finding recorded in a judgment.

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CPC Case Brief – Santosh Hazari v. Purushottam Tiwari (first and second appeal principles)

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Facts:

  • The plaintiff filed a suit for declaration of title and recovery of possession and issuance of a permanent preventive injunction restraining the defendant from interfering with the possession of the plaintiff over the suit property.

Issue

  • What is the substantial question of law in the case and whether High Court can hear the case?
  • Section 100 talks about the second appeal. 100 (3) says that substantial question of law is the sine qua non for the exercise of jurisdiction under section 100.
  • In Rimmalapudi, the court laid down a test. The test for determining whether a question of law is substantial or not is whether it is of general public importance or whether it affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this court or is not free from any difficulty or calls for discussion.

Holding

  • The Court held that the substantial question of law existed in the case and High Court must have heard it. It stated the question as
  • “Whether on the pleadings and the material brought on record, the first appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, more so when such finding was arrived at in rehearsal of the findings of the trial Court?”
  • The second appeal of the plaintiff is allowed and the case is remitted back to the High Court for deciding the second appeal afresh.

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CPC Case Brief – Municipal Committee Hoshiarpur v. Punjab State Electricity Board (Second Appeal)

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Facts:

  • Municipal Committee took an electricity connection from Punjab State Electricity Board.
  • The average bill for the consumption of electricity came to around 5000 p.m. which was paid regularly.
  • A new bill to the tune of Rs 82, 300 was served to the appellant.
  • Considering the amount was high, the plaintiff filed a suit challenging the said bill.
  • The Board contended that there was a connection problem and the meter was showing only 1/3 of the actual consumption of the energy and once the connection was restored the reading of the meter jumped three times.
  • The appellant contended it again.

Issue:

  • Whether any prejudice needs to be shown by the appellant if no substantial question of law was framed by the High Court and no chance of hearing was given to him?
  • Right to appeal is a creation of statute and it cannot be created by acq of parties or by the order of the Court.
  • The existence of substantial question law is the condition precedent for entertaining the second appeal.
  • In Leela Soni v. Rajesh Goyal, it was held that the power of High Court under section 100 is confined to framing of substantial question of law involved in the second appeal and decides the same.
  • The power under section 103 can be exercised by the High Court only if the core issue involved in the case hasn’t been decided by the trial court or the appellate court and the relevant material is available on record to adjudicate upon the said issue.

Holding:

  • No prejudice needs to be shown.
  • The revised bill could not be held to be showing the correct quantity of energy consumed and hence the findings of the trial court and the first appellate court are correct.
  • The High Court could not decide without forming the substantial question of law and this case could not be warranted under section 103. The judgment and decree of the High Court are set aside.

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CPC Case Brief – SBI v. Emmsons International (First appeal)

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This is a case regarding first appeal mainly covered under section 96 of the CPC.

Facts: Most of the facts are not relevant to our course, but it needs to be understood that Emmsons, plaintiff, filed a case against SBI, defendant, in the trial for payment of Letter of Credit. The trial court framed 5 issues that needed to be considered for resolving its dispute. The trial court gave its order and then the decision was appealed by the aggrieved party to the High Court. The High Court reversed the order of the Trial court without passing judgment on the fifth issue in the case. The case has been appealed to the Supreme Court.

If you read from para 19 onwards it is clear that the SC is pissed off at the fact that the HC is not appreciated the case before and has been ignorant of the issues at hand.

SC quotes section 96 and a bunch of other cases and says that the High Court being the court of the first appeal ought to have appreciated the evidence at hand decided the case addressed all issues of fact and law before reversing the order of the trial court. SC said that the HC failed to exercise its jurisdiction under section 96 of the code and hence the judgement of the HC was reversed and a fresh hearing of the case ordered.

Below is the court’s justification verbatim: “The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on the law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title………”. In our view, the High Court failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil Procedure, 1908 that where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact. This flaw vitiates the entire judgment of the High Court. The judgment of the High Court, therefore, cannot be sustained.

For the above reasons, we accept the appeal, set aside the impugned judgment of the High Court and restore First Appeal No. 225 of 2002 for rehearing and fresh decision. All contentions of the parties are kept open to be agitated at the time of the hearing of the first appeal. No order as to costs.

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CPC Case Brief – Chunilal Mehta v. Century Spinning Mills

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  • The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether if directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

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CPC Case Brief – Venkatasubbiah Naidu v. S. Chellappan

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Facts: Plaintiff claimed to be a lessee of a property and alleged that respondents 1 to 5 were trying to dispossess him. The judge of the city civil court of Chennai passed an interim injunction order ex parte against the respondents under Order 39 rule 1 on the 29th June, 1999 and sought notice by the aggrieved to finally dispose off the matter by the 25th August, 1999. Then the 1st respondent on behalf of himself and other respondents filed a revision petition invoking Article 227 of the Constitution. The High Court of Madras disposed the revision and observed that the trial court should not have granted an order of injunction which would operate beyond 30 days as this is impermissible under order 39 rule 3A. The court therefore set aside the order of injunction ”for the clear transgression of the provisions of law”.

Issue:

Whether the High Court should have entertained a petition under 227 when there were two remedies statutorily available to the respondent (First, the respondent could have approached the trial court for vacating the ex parte order and second, an appeal could have been preferred)?

What would be the position if a court which passed the ex parte injunction did not record reasons thereof and did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39?

Whether the trial court could pass an ex parte injunction beyond 30 days?

Holding:

  • The trial court ought not to have granted ex parte injunction beyond 30 days to be in force as specified in Order 39 Rule 3A. The rule does not say that the period of injunction order should be restricted by the court to 30 days at the 1st instance, but the court should pass the final order on it within 30 days from the day on which the injunction was granted. However, the order does not become illegal merely because it was not restricted to a period of 30 days or less.
  • In a case where the mandate of order 39 rule 3A of the code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force. In such appeal, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate courts in complying with the provision of Rule 3A.
  • Failure to decide the application or vacate the ex parte temporary injunction shall for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction on the date of expiry of thirty days mentioned in the rule.
  • Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well-recognized principle which gained judicial recognition that the HC should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy.

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