1 S.2385.97Judg..sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2385 OF 1997 1. Vinaychandra Jivanlal Shah } Indian Inhabitant of Bombay, } residing at 2/21 Aditya Housing } Society, Gulmohar Cross Road No.7, } (Santramdas Road), Vile Parle (W), } Bombay – 400 049. } 2. Smt. Vasudha Vinaychandra Shah, } Indian Inhabitant of Bombay, } Residing at 2/21 Aditya Housing } Society, Gulmohar Cross Road No.7, } (Santramdas Road), Vile Parle (W), } Mumbai – 400 049. } ... Plaintiffs. V/s. 1. The Indian Hotels Company Ltd., } a Company incorporated under the } Companies Act, 1956, having its } registered office at Mandlik House, } Mandlik Road, Mumbai – 400 001. } 2. Beena C. Kulkarni, } Indian Inhabitant of Bombay, } S-1 Shitala Darshan, L.J. Road, } Mahim, Mumbai – 400 016. } 3. Chandrashekhar D. Kulkarni, } Indian Inhabitant of Bombay, } S-1, Shitala Darshan, K.J. Road, } Mahim, Mumbai – 400 016. } 2 S.2385.97Judg..sxw 4. S.P. Consultancy, a firm carrying on } business as Sub-brokers at ‘Prashant’ } 62, Janmabhumi Marg, 3rd floor, } Fort, Bombay – 400 001. } 5. Sudesh D. Saboo (S.P.) } a firm carrying on business at } PS-8, Rotinda Building, Stock } Exchange, 2nd floor, Bombay } Samachar Marg, Bombay – 23. } ... Defendants. Mr. V.S. Khemka for the Plaintiffs. None for the Defendants. CORAM : R.Y. GANOO, J. DATED : 14th FEBRUARY 2011. ORAL JUDGMENT :- The Plaintiffs have instituted the Suit concerning 100 equity shares issued by Defendant No.1, described in paragraph 1 of plaint. The Plaintiffs have sought diverse reliefs. Today, at the time of final arguments, learned Counsel Mr. Khemka submitted that the Plaintiffs are pressing for reliefs in terms of prayer clauses (a) and (c) and he is giving up prayer clauses (b), (d) and (e). 2. The Defendants have not filed any written statement and therefore, the Suit was proceeded ex-parte. Plaintiff No.1 is the husband of Plaintiff No.2. At the stage of recording of evidence, Plaintiff No.1 Vinaychandra Jivanlal Shah has given 3 S.2385.97Judg..sxw evidence on behalf of both the Plaintiffs. 3. Few facts relevant for the disposal of this Suit are as under :- The Plaintiffs were holders of 143 equity shares of Defendant No.1 described in paragraph 1 of the plaint. The Plaintiffs claim that they had sent those shares to Defendant No.1 for issuance of new share certificates. As per the scheme laid down by Defendant No.1, the Plaintiffs were to get new share certificates. It has been their stand that they did not receive new share certificates from Defendant No.1. According to Defendant No.1, the same were sent to the Plaintiffs by the Registered Post A.D. 4. The Plaintiffs came to know that Defendant Nos.2 and 3 had lodged share transfer application in or about January 1996 for transfer of 100 shares i.e. Suit shares in favour of Defendant Nos.2 and 3 respectively, being transfer form dated 25th November 1995. The said transfer form was rejected on the ground that the signatures do not tally. Defendant Nos.2 and 3 did send fresh transfer form of March 1996 and those 4 S.2385.97Judg..sxw transfer forms came to be processed by Defendant No.1 and the shares were transferred in favour of Defendant Nos.2 and 3 and sent to Defendant Nos.2 and 3. According to Plaintiffs, when the said shares were lodged for dematerialization by Defendant Nos.2 and 3, Defendant No.1 confiscated those shares and retained the same with them. 5. The Plaintiffs are claiming rights over these 100 shares in regard to which transfer was effected by Defendant No.1 in favour of Defendant Nos.2 and 3. According to the Plaintiffs, forged transfer forms were lodged and on account of negligence of Defendant No.1, the said request for transfer came to be accepted by Defendant No.1 and shares came to be transferred. 6. The Plaintiffs now want these 100 shares transferred in their name by issuance of new certificates. The Plaintiffs want that the transfer in favour of Defendant Nos.2 and 3 should be declared as null and void as prayed for in terms of prayer clause (a). The Plaintiffs want that those 100 shares should be delivered to them alongwith bonus shares as well as right shares. 5 S.2385.97Judg..sxw 7. Learned Counsel Mr. Khemka appearing on behalf of Plaintiffs took me through the evidence affidavit filed by Mr. Vinaychandra J. Shah, PW-1 as also the documents. Learned Counsel Mr. Khemka took me through the relevant exhibits which are as follows :- (i) Exhibit ‘P’ is acknowledgment slip issued by Defendant No.1 for having received 143 shares in the form of old certificates. (ii) Exhibit ‘P-1’ is the reminder issued to Defendant No.1 dated 2nd January 1997 recording the fact that 143 shares are not received as also recording the fact that transfer of certain shares was not authorized. (iii) Exhibit P-2 is the letter dated 9th April 1997 received from Defendant No.1 informing the Plaintiffs that shares have been transferred in favour of Beena C. Kulkarni i.e Defendant No.2. (iv) Exhibits P-3, P-4, P-5, P-6 are the relevant transfer forms and forwarding letters requesting transfer of the shares on the basis of which Defendant No.1 transferred 100 shares in favour of Defendant Nos.2 and 3. 6 S.2385.97Judg..sxw (v) Exhibit P-8 is the letter from Defendant No.1 calling upon the Plaintiffs to obtain orders from the Court. (vi) Exhibit P-9 is the copy of the complaint filed by the Plaintiffs with Juhu Police Station. 8. I have heard learned Counsel Mr. Khemka appearing on behalf of the Plaintiffs. The Plaintiffs have come out with the case that they did not receive the share certificates. The Plaintiffs have also come out with the case that Defendant No. 1 was negligent in attending to the transfer in favour of Defendant Nos.2 and 3. According to the Plaintiffs, Defendant No.1 ought to have been careful about the verification of the signatures and Defendant No.1 has exhibited negligence. According to the Plaintiffs and as stated in paragraph 10 of evidence of Vinay Chandra PW-1 if the Plaintiffs had not received new shares, there was no question of Plaintiffs executing transfer deed in favour of Defendant Nos. 2 and 3. It is to be noted that evidence given by Plaintiff No.1 Vinaychandra Shah has gone unchallenged despite service of writ of summons upon Defendant No.1 – the Company. The beneficiaries of the said transfer viz. Defendant Nos. 2 and 3, have also not contested the Suit. The uncontraverted 7 S.2385.97Judg..sxw evidence on behalf of the Plaintiffs goes to prove that the Plaintiffs are right in saying that they had not received new shares and that they had not executed transfer deeds in favour of Defendant Nos.2 and 3. 9. Entire evidence of PW-1 Vinaychandra J. Shah given on behalf of himself and Plaintiff No.2 has gone unchallenged and therefore, the case of the Plaintiffs is required to be accepted as having been duly proved. 10. In the circumstances mentioned aforesaid, the Plaintiffs are entitled to physical custody of 100 shares in regard to which this Suit has been filed. Consequently, if Defendant No. 1 has issued right shares or bogus shares on the suit 100 shares, the Plaintiffs will be entitled to receive those right shares/bonus shares. 11. Looking to the prayers in the plaint and the fact that the Plaintiffs have been able to make out the case in their favour, I am inclined to pass a decree in terms of prayer clauses (a) and (c). The Suit will have to be dismissed so far as prayer clauses (b), (d) and (e). 8 S.2385.97Judg..sxw 12. For the reasons mentioned aforesaid, I pass the following decree :- (i) The Suit is decreed in terms of prayer clauses (a) and (c). (ii) The Suit is dismissed so far as prayer clauses (b), (d) and (e). (iii) There shall be no order as to costs. (R.Y. GANOO, J.)