USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 3521 OF 2005 1. Kanchanben Yashwantlal Gandhi R/at. BOB employees Housing Society, Bhardawadi wing K, 4th Floor, Flat No.116, Andheri (W), Mumbai 058. 2. Yashwantlal Jethalal Gandhi R/at BOB Employees Housing Society, Bhardawadi Wing K, 4th floor, flat no.116. Andheri (W), Mumbai – 58 .. Plaintiffs Verses 1. M/s. MRF Limited, Chennai - 600 006. 2. Mahendra N. Kampani M/s. Jamnadas Morarjee & Co, Stock Exchange Plaza, 2nd Floor, Dalal Street, Mumbai 400 023. 3. Chandresh M. Kampani, M/s. Jamnadas Morarjee & Co, Stock Exchange Plaza, 2nd Floor, Dalal Street, Mumbai 400 023. 4. Nandkumar M. Dahibaonkar 1/1, Surendra Pratap Singh Chawl, Swarkar Nagar, Pune 400 606. 5. Milind S. Nagarkar, Agarwal Estate, R. No.49, 2nd floor, Opp. Bafna Aptt. Mogul Lane, Mahim, Mumbai 400 016. 6. Arvind A. Shewale 2/5, Gangubai Apartment, Tisgaon Road, Kalyan (E), Dist. Thane 421 306. 7. Rimple Rajesh Lapasia 7/8, Keshwar Kunj, Dr. Dalvi Road, Kandivali (W), Mumbai 400 067 8. Rajesh Shantilal Lapasia 7/8, Keshwar Kunj, Dr. Dalvi Road, Kandivali (W), Mumbai 400 067 9. JBM Securities & Finance (P) Ltd. 4380/4B, Ansari Road, Kaushalya Buld., 1st Floor, New Delhi 110 002. 10. Kalpesh Dhankumar Sheth Santacruz Sapphire Premises CHS Ltd. 202, 2nd floor, plot no.194, TPS IV, Main Avenue, Santacruz (W) Mumbai 400 054. 11. Hiren Dhankumar Sheth Santacruz Sapphire Premises CHS Ltd. 202, 2nd floor, plot no.194, TPS IV, Main Avenue, Santacruz (W) Mumbai 400 054. 12. Jayesh Bhagubhai Gandhi 146-A, Jain Society, Sion (W), Mumbai 400 022. 13. Mrs. Krutika Jayesh Gandhi 146-A, Jain Society, Sion (W), Mumbai 400 022. 14. Balkrishan P. Suryavanshi 2/5, Gangubai Apartment, Tisgaon Road, Kalyan (E), Dist. Thane 421 306. .. Defendants ......... Mrs. Anila V. Acharya for the plaintiff ......... CORAM : R.Y.GANOO, J. DATE : 6th DECEMBER, 2010 ORAL JUDGMENT : 1. The plaintiffs have filed this suit to seek a declaration that they are the owners of 100 shares of defendant no.1 company covered by Share Certificate No.134881 and 134882. They have also sought a mandatory order against defendant no.1 praying that Share Certificate Nos.134881 and 134882 be cancelled and duplicate Share Certificates should be issued in the name of the plaintiffs. 2. Few facts necessary for the disposal of this suit are as under. 3. The plaintiffs claim to be the owners of 100 shares of Rs.10/- each of defendant no.1 company under Registered Folio No.G02923 manifested by Share Certificate Nos.134881 and 134882. According to the plaintiffs, in the year 1995, plaintiff no. 2 Yashwantlal, PW-1 was traveling in the local, Western Railway train from Churchgate to Andheri and he lost his bag in which various Share Certificates held by the plaintiffs including the share certificates that of defendant no.1 (hereinafter referred to as suit Shares Certificates) were lost. On account of this, plaintiffs demanded duplicate share certificates from defendant no.1. However, defendant no.1 declined to do so as the said suit share certificates were moving in the market. The plaint narrates as to how these share certificates were lodged with defendant no.1 one after the other for transfer and as to how defendant no.1 rejected the requests for transfer on the ground that signatures of the plaintiffs in the said transfer applications did not tally. Last such transaction was in or about 19th November, 2001 lodged by defendant no.12 in regard to Share Certificate No. 134881. 4. In order to institute the suit and to obtain appropriate reliefs, plaintiffs demanded from defendant no.1 particulars of lodgment of shares for transfer on various dates. Said particulars were supplied by defendant no.1 by letter dated 27th June, 2005 which letter is at Exh.”F” colly., After receipt of these particulars, plaintiffs have filed this suit for reliefs as mentioned aforesaid. The plaintiffs have joined all the persons who had lodged these shares for transfer right from 31st October, 1995 upto 19th November, 2001. Out of so many defendants, defendant no.9 has filed written statement and have denied the allegations that the signatures of the plaintiffs on the transfer form were forged. According to defendant no.9, they had purchased the shares through broker by way of open transaction. The name of the broker is reported to be M/s. Blue Chip Stock Broking Services Pvt. Ltd. Defendant no.9 have claimed that they transacted in good faith and the allegations of forgery are vague. No other defendants filed written statement. 5. Based on these pleadings, following issues came to be framed on 24th November, 2010. a) Do the plaintiffs prove that they are the owners in respect of the share certificate nos. 134881 and 134882 ? Ans : - In the affirmative. b) Do the plaintiffs prove that plaintiffs lost the said share certificates in the year 1995 ? Ans : - In the affirmative. c) Do the plaintiffs prove that the said suit shares were came to be transferred from one person to the other person and defendant no.1 declined to transfer the same in view of the request of the plaintiff ? Ans : - In the affirmative. d) Are the plaintiffs entitled to relief sought in the plaint ? Ans : - In the affirmative. e) What order ? Ans : - As per final order. 6. The plaintiffs were required to lead evidence in support of their case and accordingly plaintiff no.2 Mr. R.J. Gandhi stepped into witness box and gave evidence on behalf of himself as well as PW-1 on the strength of power of attorney issued by defendant no.1 in his favour. The plaintiffs had lodged complaint in the police station as regards loss of the share certificates and the copy of the same is at Exh.”B”. The other correspondence entered into between plaintiffs and defendant no. 1 is at from Exh.”C” onwards and that is how the plaintiffs have placed before the Court the necessary material to show that the suit share certificates were lost and complaint regarding the same was filed. 7. Learned Counsel Mrs. Acharya appearing on behalf of the plaintiffs through the evidence of PW-1 Mr. Gandhi as well as documents submitted that in the absence of proper cross-examination, the word of PW-1 Mr. Gandhi should be accepted. She also submitted that from the fact that the defendant no.1 had refused to transfer the said shares not once but on at least more than 6 occasions on the ground that signatures appearing on the share transfer form that of the plaintiffs were forged clearly indicate that plaintiffs had not traded the said shares in the market. She prayed for decree in terms of prayer clause (a) and (b). 8. Having gone through evidence of PW-1 Mr. Gandhi as well as the other exhibits, it is clear that said share certificates were lost as stated by PW-1 and they came in the hands of persons who were not authorized to have the said shares transfered in their name. From the fact that the transfer of said shares from the plaintiffs name to others was rejected from time to time on the ground that signatures purported to be that of plaintiffs on share transfer forms are forged it can be inferred that plaintiffs have not traded those share. In view of this, I am inclined to accept the case of the plaintiffs as regards loss of suit share certificates as also their case that they are the owners of said shares. Consequently, plaintiffs have a right to have the duplicate share certificates in lieu of suit shares certificates covering 100 shares of defendant no.1. For the reasons mentioned aforesaid, I am inclined to decree the suit by recording following findings on the respective issue. 9. For the reasons mentioned aforesaid, I pass following decree. DECREE (i) Suit is decreed in terms of prayer clauses (a) and (b). There shall be no order as to costs. (R.Y.GANOO, J.)