Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. MHCC010066352019
IN THE COURT OF SESSIONS FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO. 2402 OF 2019
IN
COMMERCIAL SUIT NO. 68 OF 2019
Ketan Mathuradas Chatwani ]...Plaintiff
V/s.
1. Mrs. Meena Anil Lehru ]
2. Hero Moto Corporation Limited ]
3. M/s. Karvy Fintech Private Limited ]..Defendants
Appearances:
Ld. Adv. B.B. Parekh for the plaintiff.
Ld. Adv. Deepti Shah for defendant No.1.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32)
DATED : 10th February, 2021.
ORDER
The plaintiff had preferred the notice of motion seeking
injunction restraining defendant No. 2 and 3 in recognizing the
defendant No. 1 as a member of Defendant No. 2 Company.
It is also the prayer of the plaintiff that defendant No. 1 be
restrained by temporary injunction from claiming, dealing, alienating,
transferring the subject 50 shares of M/s. Hero Moto Corporation Ltd.
2. Heard learned Advocate for the plaintiff and learned
Advocate for the defendant.
3. It is the case of the plaintiff that the plaintiff is subbroker
-- 1 of 7 --
Order on NM No.2402-19 .. 2..
and the investor in the capital market. The defendant No. 1 is holder of
the suit shares, holding said in the trust on behalf of the plaintiff. The
defendant No. 2 is an incorporated company and defendant no. 3 is
handling all the shares related work on behalf of the company. The
plaintiff had purchased shares between 08.07.1997 to 06.08.1997 from
open market, the 3850 shares of defendant No. 2 company of the paid
up capital value of Rs. 10/ each through sub broker Shreyas & Co. It is
stated that out of 3850 shares, 265 shares were either mislaid, lost or
stolen. The plaintiff had made report with police about the said fact
and he had also brought the fact to the notice of Registrar and the
Transfer Agent M/s MCE Ltd. of defendant No. 2.
4. It is stated by the plaintiff that there was some issues with
the erstwhile transfer agent of defendant No. 2. The defendant No. 2
was not able to respond to any of the enquiry due to non availability of
relevant record. The plaintiff learnt that defendant No. 3 had appointed
a Registrar and Transfer Agent of defendant No. 2 company. The
plaintiff interacted with the defendant No. 3 about his missing share
and was finally told by letter dated 17.07.2018 that a request is
received from defendant No. 1 to issue duplicate share certificates of 50
shares of defendant No. 2 company standing in her name.
The plaintiff made correspondence with defendant No. 3.
The defendant No. 3 vide letter dtd. 17.07.2018, insisted the defendant
No. 1 to produce the Court order. The plaintiff attempted to make
correspondence with defendant No. 1. The defendant No. 1 demanded
details of lost shares.
It is the case of the plaintiff that defendant No. 3 is pressing
hard for order from competent Court. The plaintiff, therefore, had
instituted the present suit and prayed for reliefs of temporary injunction
-- 2 of 7 --
Order on NM No.2402-19 .. 3..
in the present notice of motion.
5. The defendant No. 1 had filed reply to the notice of motion
and contended that the suit is not maintainable and is bared by
limitation. The defendant No. 1 had denied all the allegations levelled
against her.
It is stated that in the year January 1985, the defendant
had applied for shares of defendant no. 2 and on 19th January 1985, 50
shares for amount of Rs. 500/ were allotted to her by defendant No. 2.
On 25th June 1985, a priority intimation letter was forwarded to her.
On 7th February 1995, the defendant No. 2 forwarded coupon bearing
No. 12976.
On 27th March 1995, the defendant No. 1 forwarded a
letter to Hero Honda for issuance of share certificate in lieu of the said
coupon. On 18th March 1999, the defendant No. 1 informed the
defendant No. 2 that due to the shifting of residence, she has lost
certificate and therefore requested for issuance of duplicate shares.
The husband of defendant No. 1 Mr. Anil C. Lehru expired on
22.05.2015.
The defendant No. 1 time and again approached the
defendant No. 3 for issuance of duplicate shares. To utter her surprise,
the plaintiff forwarded his Advocate’s letter dated 09.02.2019 about the
purchase of 50 shares by the plaintiff from open market. It is contended
that plaintiff had not produced any document to substantiate his case.
It is stated that the documents annexed with the plaint do not show that
shares allotted to defendant No. 1 were purchased by the plaintiff. It is
stated that plaintiff had failed to show that he is the owner of shares.
7. The learned Advocate for the Plaintiff submits that subject
-- 3 of 7 --
Order on NM No.2402-19 .. 4..
share belong to the plaintiff and formally are being held in the name of
first defendant. It is submitted that the plaintiff had purchased it
through open market through recognized stock exchange and
recognized subbroker. It is submitted that full consideration was paid
and delivered to the plaintiff, but unfortunately the shares were lost and
the process of transfer was not completed. It is stated that defendant
has no right in the said shares.
The learned Advocate accordingly had prayed for
temporary injunction restraining defendant No. 2 and 3 in recognizing
the defendant No. 1 as a member of Defendant No. 2 Company and
further had prayed for temporary injunction restraining the defendant
No. 1from claiming, dealing, alienating, transferring the subject 50
shares of M/s. Hero Moto Corporation Ltd.
8. The learned Advocate for the Defendant submitted that
defendant had purchased 50 shares for Rs. 500/ on 19.01.1985. It is
submitted that she also had received coupon bearing No. 12976 and
had requested for share certificate on the basis of the said coupon. It is
stated that in the residence shifting, the shares were lost. She,
therefore, time and again had requested to defendant No. 3 for issuance
of duplicate shares. It is submitted that notice of motion is not
maintainable and deserves to be dismissed.
9. In order to secure the temporary injunction, the plaintiff
has expected to make out the primafacie case and show the balance of
convenience lies in his favour and it is required to show that the
plaintiff would be put to irreparable loss, if the injunction is refused.
10. Admittedly, there is dispute of the subject shares involved
-- 4 of 7 --
Order on NM No.2402-19 .. 5..
in the suit. The plaintiff and the defendant have claimed to be the
owners of the shares. There is exchange of correspondence between the
plaintiff and defendant No. 3 and defendant No. 1 and defendant No. 3
in respect of shares of defendant No. 2 company.
11. The plaintiff also had lodged the complaint to the police. It
would be appropriate to refer to the correspondence made by defendant
no. 3 to the plaintiff. The plaintiff had filed the correspondence at Exh.
‘G’, page No. 32 in the plaint. The defendant No. 3 had informed the
plaintiff that it had received duplicate share certificate request from the
share holder, defendant No. 1 for the folio no. HML0066990. The
correspondence further points out after verifying the records, it had also
received the copy of police complaint and the letter from the Advocate
for the plaintiff. The correspondence further points out that the
plaintiff had approached the Court for orders in his favour.
It was further informed that, “Hence if you have any
claim we are requesting you to approach the Competent Court and
obtain a prohibitory order declaring the title of the shares
purchased by you in your favour and forward us the same with the
stipulated time, else the said shares will release to the rightful
owner.”
12. The defendant No. 3 itself had asked the plaintiff to
approach the competent Court and the defendant No. 3 is the authority
to decide about issues relating to the shares and its transfers. The
defendant No. 3 itself had asked the plaintiff to approach the Court. It
goes to suggest that defendant No. 3 will proceed in the dispute relating
to shares between plaintiff and defendant No.1 after the decision of the
Court. The question of injunction therefore does not arise as the
-- 5 of 7 --
Order on NM No.2402-19 .. 6..
defendant No. 3 will not proceed to decide the issue of ownership of the
shares involved in the suit, prior to the decision in the present suit.
The plaintiff has failed to make out the primafacie case in
his favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
temporary injunction is refused. In the result, following order is passed.
O R D E R
Notice of Motion No. 2402 of 2019 is dismissed.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 10.02.2021 Gr.Bombay at Mumbai.
Dictated on : 10.02.2021
Typed on : 11.02.2021
Signed by H.H.J.on : 16.02.2021
-- 6 of 7 --
Order on NM No.2402-19 .. 7..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18.02.2021 at 11.05 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
10.02.2021
Judgment/order signed by P.O. on 16.02.2021
Judgment/order uploaded on 18.02.2021
-- 7 of 7 --