IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT No.3483 of 1997 NEVILLE ARDESHAR MEHTA & ANR ..PLAINTIFFS VS. BAJAJ AUTO LTD & ORS. .. DEFENDANTS Mr. Rustom D. Pardiwala i/b Mulla & Mulla for the Plaintiffs None for the Defendants CORAM: DR. D.Y.CHANDRACHUD, J DATE : 1st SEPTEMBER, 2009 P.C. 1. The suit has been instituted for a declaration that, the Plaintiffs are bonafide purchasers and owners of 200 shares of Defendant No.1; for a direction to Defendant No.1 to transfer the shares to the Plaintiffs and for certain consequential reliefs. 2. The case of the Plaintiffs is that pursuant to an order for the purchase of 200 shares, the Plaintiffs paid an amount of Rs.1,38,168/- to Defendant No.2, who is a broker. The Plaintiffs have produced photocopies of the bills issued by Plaintiff No.2. The original bill was stated to have been produced before the Metropolitan Magistrate, (33rd Court), Ballard Pier, Mumbai, in a Criminal case bearing No.581/P/1997. The original record, is stated to have been destroyed by the Court. According to the Plaintiffs, the share certificate together with the transfer forms duly executed by Defendant No.3 as transferor were handed over to Defendant No.2; for being forwarded to Defendant No.1 to effect transfer. The Plaintiffs received an intimation from Defendant No.2 that, out of the 200 shares, Defendant No.2 had received 50 shares as bad delivery, because the signature of the ransferor differed. A letter dated 27th August 1996, was thereupon addressed to Defendant No.1 not to transfer the said 200 shares in the name of any third party. In Defendant No.1’s reply dated 1st September 1996, it was stated that 50 shares were received by Defendant No.1, for transfer in the name of Defendant No.3 and joint to the name of Montgomery Emerging Markets Fund and another 100 shares were received by Defendant No.1 for transfer to the name of Defendant No.3 and joint to the name of Emerging Markets Growth Fund Inc. It was stated that, as the Transfer Deeds were valid, the said 150 shares were transferred in the books on 25th March 1996 and 17th April 1996. Defendant No.1 stated that, the said shares had been dispatched to the transferee after endorsement. In so far as 50 shares were concerned, it was stated that, the said shares were returned under objection to Advantage Advisers Inc A/C, The Asia Tigers Fund Inc. Defendant No.1 suggested that an FIR will be lodged with the police since the shares were wrongly transferred, and a restraint order be sought from the Competent Court. 3. The case of the Plaintiffs is that the shares which were duly purchased for valuable consideration were stolen in transit and fraudulently lodged by a third party for transfer in its name. The Plaintiffs claim to be bonafide purchaser for value. An FIR was lodged on 12th September 1996, with the M.R.A Marg Police Station and was registered under C.R. No.377 of 1996. 4. After the suit was filed an ad-interim order was passed on 1st October 1997, restraining Defendant No.4 from further transferring 150 shares claimed by the Plaintiffs. Defendant No.3 was ordered to execute a fresh transfer form in respect of Transfer Deeds duly signed and executed. The ad-interim order was confirmed by an order dated 1st October 1997 and the reliefs sought in terms of prayer clauses (a), (b), and (c) to the Notice of Motion, were granted. 5. The Writ of Summons has been served on all the Defendants. The Defendants have failed to enter appearance. No Written Statement has been filed. As a result, the averments contained in the Plaint have not been controverted. Defendant No.1 by a letter dated 27th November, 2007 stated that, apart from the 200 shares, which form the subject matter of the suit, Defendant No.1 issued 100 bonus shares thereon and that all the coroporate benefits on the said 300 shares have been withheld, including the payment of dividend. 6. The case of the Plaintiffs is that the 150 shares, which were wrongfully transferred in the name of Montgomery Emerging Markets Fund and Emerging Market Growth Fund Inc, are required to be returned to the Plaintiffs who are the lawful owners of the shares. Defendant No.4 is the portfolio Manager of the said transferee. 7. The Plaintiffs have relied upon an Affidavit in lieu of the examination-in-chief of Plaintiff No.2 and a compilation of the original documents. The Affidavit contains a recital of the salient aspects of the case, which have been referred to earlier. A compilation of the documents containng the material evidence has been filed. Permission is granted to the Plaintiffs to lead secondary evidence, in the circumstances, more particularly set out in the Affidavit of evidence. The claim has been proved. The suit shall accordingly stand decreed in terms of prayer clauses (a), (b), (d) and (f). The original documents may be returned to the Advocate for the Plaintiffs, subject to verification of the photocopies, which are tendered on record. (Dr. D.Y.Chandrachud, J)