- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.1362 OF 2000 NO.1362 OF 2000 NO.1362 OF 2000. Bijen Chetan Shah & Anr. ..Plaintiffs. vs. Hoechst Marion Roussel Ltd. & Ors. ..Defendants. .... Mr.Sualeh Nagvadaria, for the Plaintiffs. None for the Defendants. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 13TH JANUARY 2009 : 13TH JANUARY 2009 : 13TH JANUARY 2009. P.C.: P.C.: P.C.: . This suit has come up under the caption "For filing of affidavit of documents and evidence (undefended suits)". The defendants though served have not filed their written statements nor have they appeared at any time before this Court. 2. The plaintiff no.1 is the son of plaintiff no.2. The learned counsel appearing for plaintiffs has tendered on record an affidavit of plaintiff no.1. The said affidavit is taken on record and marked ‘X’ for identification. 3. It is stated in the plaint and the evidence that the plaintiff nos. 1 & 2 are the lawful joint owners of 1400 equity shares of the defendant no.1-Company - 2 - particulars of which are set out in paragraph 1 of the plaint/evidence. The defendant no.2 is also a Company which for all material purposes have been acting inter-alia as the agents and/or registrars of defendant no.1 for the purpose of receiving share transfer forms and doing all acts and carrying on functions incidental to the transfer of shares of defendant no.1. The defendant no.3 is the alleged transferee of 100 shares of the defendant no.1 under Certificate Nos.3329 & 20855 belonging to the plaintiffs (suit shares). Defendant no.4 is the alleged purchaser of the suit shares from defendant no.3. 4. It is stated in the plaint that the original 1400 shares of defendant no.1 were purchased in the name of the plaintiff no.2 and his wife jointly. The said shares were registered under the Ledger Folio No.HI-6748. It is stated that upon the plaintiff no.1 becoming major, 1400 shares were sent for transfer in the name of the plaintiffs alongwith duly signed transfer deeds dated 21st December 1998. These shares alongwith the transfer deeds were hand delivered at the registered office of the defendant no.1-Company on 29th December 1998. The said 1400 equity shares alongwith transfer deeds were thereafter sent to the defendant - 3 - no.2 by the defendant no.1-Company for affecting the transfer in the joint names of the plaintiff. The said 1400 shares were transferred in the names of the plaintiffs in the records of the defendant no.1-Company on 4th January 1999 and the plaintiffs thereby became the lawful joint owners of the said 1400 shares. 5. It is stated in the plaint and in the evidence that since the plaintiffs did not receive the said 1400 shares from the defendant no.1 - Company duly transferred in their names, by their fax message dated 24th July 1999 and letter dated 28th July 1999, the plaintiffs drew the attention of the Company in respect of the same. The defendant no.2 by their letter dated 6th August 1999 informed the plaintiffs that 1400 shares were duly transferred in the name of the plaintiffs on 4th January 1999 and the share certificates were despatched to the plaintiffs by speed post on 15th January 1999. By the said letter, the defendant no.2 also informed the plaintiffs that out of the said 1400 shares, 100 shares were received by it for transfer in favour of defendant no.3, and 300 shares in the name of other transferees and the said 400 shares stood transferred from the name of the transferor in the name of the respective transferees. It is also stated that - 4 - the said 100 shares transferred in the name of defendant no.3 have now come for transfer in the name of defendant no.4 and 50 shares have come for transfer in the name of one Chandrashekhar Meshram. 6. The defendant no.2 by their letter dated 6th August 1999 also, called upon the plaintiffs to obtain prohibitory orders restraining defendant nos.1 & 2 from transferring the said shares. It was also stated that for the balance 950 shares, if the plaintiffs wished to obtain duplicate share certificates, they should execute an affidavit and indemnity bond and forward the same to defendant no.2 alongwith a demand draft of Rs.5,000/- towards advertisement charges. 7. It is stated in the plaint and in the evidence that the plaintiffs by their advocate’s letter dated 16th August 1999 claimed that the said 1400 shares had not been effectively dispatched to the plaintiffs by defendant no.2 and the same appears to have been stolen from the office of the defendant no.2, and therefore, it was the liability of the defendant no.2 to replace the said 1400 shares. The defendant no.2 was informed that since obtaining necessary orders from the Court is likely to take some time, in the meantime, they should - 5 - not transfer any of the said 1400 shares if they come for transfer. The plaintiffs by their Advocate’s another letter dated 16th August 1999 inter-alia informed the defendant no.1 that the defendant no.1 will be held responsible for the loss already incurred or the losses that may result to the plaintiffs by reason of the theft of the said 1400 shares. The plaintiffs also lodged a complaint with the Gamdevi Police Station on 17th August 1999, for the lost shares. 8. The plaintiffs have stated in the plaint and in the evidence that the defendant no.1 have already issued 950 duplicate shares to the plaintiffs. Over and above that the plaintiffs have already obtained replacement of 350 shares from the market through brokers, who were responsible for selling the stolen shares without the consent and knowledge of the plaintiffs and wrongly transferring them. 9. The present suit is, therefore, filed only for 100 shares which stands in the name of defendant no.3 and which could not be replaced since they were already transferred in the name of defendant no.3. Since the said 100 shares (suit shares) were purported to be sold to the defendant no.4 by the defendant no.3, the - 6 - defendant no.4 was called upon by the Gamdevi police station to surrender the said 100 shares to them on the ground that the same were stolen. However, the defendant no.4 by his letter dated 4th January 2004 informed the investigating officer that the share certificates are lying with the company and the same are not received by defendant no.4 duly transferred. 10. It is stated that the suit shares were stolen and the signatures were forged on the transfer deeds. Accordingly, the suit shares are illegally transferred in the name of the defendant no.3. The plaintiffs have not signed or executed any share transfer deed in favour of the defendant no.3 or received any compensation or consideration for the same. The plaintiff can continue to be the lawful owners of the suit shares of the defendant no.1-Company and that defendant nos.3 & 4 never had and have no right, title or interest in or over any of the suit shares and the purported claim of defendant nos. 3 & 4 to be the transferees of the said 100 shares is illegal and of no legal consequence whatsoever and the plaintiffs continue to be the rightful owners of the said suit shares. 11. The plaintiffs have upon filing of the suit, - 7 - obtained orders of this Court restraining defendant nos.1 and 2 from transferring the said 100 shares in the name of defendant no.4. The plaintiffs have stated that after the writ of summons are served none of the defendants have appeared before the Court till date. 12. I have perused the averments made in the plaint and the documents annexed to the affidavit of evidence. The document at Exhibit-C proves that all the 1400 shares were already transferred in the name of the plaintiffs, on 4th January 1999, out of which amongst others 100 shares were transferred in favour of defendant no.3 and further transfer of the same is sought in favour of defendant no.4. The documents at Exhibits-D and F shows that the plaintiffs have not received their 1400 shares from defendant nos.1 to 2 and that the said shares were stolen and 450 shares inclusive of the 100 suit shares were transferred wrongfully by forging the signatures of the plaintiffs on the transfer deeds in the name of respective transferees. The petitioners have admitted that duplicate share certificates pertaining to 950 shares were issued to the plaintiffs by defendant nos.1 and 2. The plaintiffs have also retrieved the balance 350 shares from the market through the brokers who were - 8 - responsible for selling the said stolen shares. I have also gone through the complaints lodged with the Gamdevi police station by the plaintiffs at Exhibit-F and the reply dated 17th December 1999 addressed by the defendant no.4 to the investigating officer of the Gamdevi police station at Exhibit-J. By Exhibit-I, the Gamdevi Police have recorded that the said 100 shares were stolen and the defendant no.4 was called upon to surrender share certificate in respect of the said suit shares. By Exhibit-J, defendant no.4 has informed the Gamdevi police station that he has not received the certificates till date from the Company which were sent to the Company, i.e. the defendant no.1 for the purpose of transfer in the name of the defendant no.4 on 30th June 1999. The defendant no.4 has not disputed the contention of the Gamdevi Police Station that the said shares are stolen shares, raised by the Gamdevi police station in their letter. 13. There is no contest by the defendants and what is stated in the affidavit of evidence has gone unchallenged. There is no reason why the case made out by the plaintiffs should not be accepted. By prayer clauses (b) to (f) the plaintiffs have sought - - 9 - (i) a declaration that they are the lawful owners of the 100 shares, more particularly described in prayer (b), of the defendant no.1-Company; (ii) a declaration that the purported transfer of the suit shares in the name of defendant no.3 is illegal, unauthorised and of no legal consequence, bad-in-law, null and void, not binding upon the plaintiffs and consequently the same be set aside; (iii) direction against defendant nos. 1 and/or 2 to rectify the register of defendant no.1-Company by deleting the name of defendant no.3 from the registered members of defendant no.1-Company in respect of suit shares and by registering the names of the plaintiffs in place thereof; (iv) a declaration that the purported transfer deed allegedly submitted by the defendant no.4 to defendant no.1 and 2 for purported transfer of the suit shares from the name of the defendant no.3 to defendant no.4 is illegal, of no legal consequence whatsoever and not binding upon the plaintiffs; (v) a decree against defendant nos.1 and 2 to forthwith issue the duplicate share certificates to the plaintiffs in lieu of the original share certificates bearing No.3329 and 20855 under ledger folio No.103238 unlawfully transferred in the name of defendant no.3. 14. Hence, the suit is decreed in terms of prayer clauses (b) to (f) of the plaint. The suit is accordingly, disposed of. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]