Final Order 1

Order Details: Notice of Motion
Pdf Text: `
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2765 OF 2019
IN
S.C. SUIT NO.297 OF 2018
Mr. Rajiv S. Khanna & Ors. ] ...Plaintiffs
Versus
1. Indusland Bank & Ors. ] ...Defendants.
Appearances :
Mr. Murlidharan, Ld. Adv. for plaintiff.
Mr. Mhatre, Ld. Adv. for defendant No.3 & 4.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 28th January, 2020
ORAL ORDER
1. Plaintiff filed this Notice of Motion to restrain defendant
No.1 and 3 from transferring the 1500 shares of the face value of
Rs.10/ each of Indusland Bank having Folio No.00019479, Certificate
Nos.135780 to 135794.
2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of defendant Nos.3 & 4. Heard plaintiff's advocate. I
have also heard advocate for defendant Nos.3 and 4. Learned Advocate
MHCC01-007637-2019
-- 1 of 8 --
2 NM 2765/19 in
SC Suit 297/18
appearing for plaintiff submitted that the say filed by defendant No.2
and documents filed with it be considered while deciding this Notice of
Motion.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether plaintiffs have made out prima
facie case?
In the negative.
2. Whether balance of convenience lies in
favour of plaintiff ?
In the negative.
3. Whether it irreparable loss will be
caused to the plaintiff if injunction is
refused ?
In the negative.
4. What Order ? Notice of motion is
rejected.
REASONS
As to point No.1 to 4.
4. In brief, it is contentions of the plaintiffs that, the suit is
filed for declaration that plaintiffs are owner of the said shares.
Defendant No.1 is a Private Sector Bank in India. Defendant No.2 is
Registrars of defendant No.1.
5. Plaintiff No.1 and his father Shivkumar Khanna purchased
250 shares of face value of Rs.100/ per share of Induslnd Enterprises
& Finance Ltd, through a broker Mr. G.S. Gandhi. The said broker
delivered 250 shares and transfer forms duly executed by the original
-- 2 of 8 --
3 NM 2765/19 in
SC Suit 297/18
transferors to the plaintiff. Out of the said 250 shares, the plaintiff
received 100 shares bearing Certificate No.00024540, which was duly
transferred in the name of plaintiff. The remaining 150 shares
purchased from (1) Shanti V. Makhija and (2) Vashumal R. Makhija
were not transferred in the name of plaintiff.
6. Defendant No.1 is a Private Sector Bank. Defendant No.2
is Registrars of defendant No.1. Defendant No.3 and 4 are legal heirs of
original transferors of the said share certificate. The plaintiff No.2 is the
son of Late Shivkumar Khanna and the plaintiff No.3 is the daughter of
Late Shivkumar Khanna died on 14.7.2003 leaving behind the plaintiffs.
Mother of plaintiff Smt. Neena S. Khanna is died on 09.11.1993.
Plaintiff No.1 made payment of the suit shares. Plaintiff Nos.2 and 3
have no objection for transferring the suit shares in the name of plaintiff
No.1.
7. Plaintiff No.1 continuously contacted the Registrars of
Induslnd Enterprises & Finance Ltd. for the transfer of the said 1500
shares in his name but in vain.
8. Defendant Nos.1 and 2 have not transferred said 1500
shares of the face value of Rs.10/ each of Induslnd Bank having Folio
No.00019479 Certificate No.135780 to 135794 issued in lieu of 150
shares of Induslnd Enterprises & Finance Ltd. Share Certificate
No.18479, Folio 19479 in the name of plaintiff till date. The plaintiff
sates that he has paid the consideration amount of the said Shares to
the original Transferors through the broker in the year 1995.
-- 3 of 8 --
4 NM 2765/19 in
SC Suit 297/18
9. It is mentioned in the Notice of Motion that plaintiffs
adopted whatever stated by the plaintiffs in the plaint and the said
plaint may be treated as part of this Affidavit in support of Notice of
Motion.
10. In brief, it is contention of the defendant No.3 and 4 that
the said shares are already transferred in their names. They have right
to deal with the said shares. This Notice of Motion is misconceived. No
relief is claimed against defendant Nos.3 and 4. If any relief is granted
them it will cause prejudice, and affect rights of defendant Nos.3 and 4.
The suit is barred by law of limitation. The suit is also bad for non
joinder of necessary parties, namely, the alleged brokers through whom
alleged transaction is alleged to have taken place in the year 1995. All
the other adverse contentions are denied. Earlier also plaintiffs had
filed similar Notice of Motion. Said Notice of Motion is disposed of
unconditionally as withdrawn by the plaintiffs.
11. Learned Advocate appearing for defendant No.3 and 4 has
filed relevant dates and events chart on 18.1.2020. The said relevant
dates and events are as under:
Dates Events
261995 Plaintiff allegedly purchased shares from Shanti
V. Makhija and Vashumal R. Makhija, parents
of defendant Nos.3 and 4.
2841995
2861995
781995
Shares Transfer Form issued.
Validity of Shares Transfer Form expired i.e. 2
months from the date of issue.
The Shares' Transfer Form allegedly executed
-- 4 of 8 --
5 NM 2765/19 in
SC Suit 297/18
by the parents of the Defendant Nos.3 and 4.
Please refer Plaint Para4(c) (I)/Page3,
Exhibit B2/Page 30 and ExhibitE/Page 40.
311996 Defendant No.2 Company rejected the transfer
on the ground of invalidity of Transfer Deed by
its objection letter addressed to the plaintiff.
Please refer Plaint Para8/Page8 and Exh
L/Page56.
372001 Shanti V. Makhija expired.
1472003 Shivkumar, father of the plaintiff expired.
212004 Plaintiff addressed letter to the 2nd Defendant
for transfer of the shares after 6 years.
Please refer plaint Ex.H/Page45.
2232004 Vasumal Makhija expired.
2262016 Plaintiff addressed letter to the 2nd Defendant
for transfer of the shares after 20 years.
Please refer Plaint Ex.M/Page72.
2872016 Shares transmitted in the name of Defendant
Nos.3 & 4, as legal heirs.
21102016 Plaintiffs' Advocates' addressed a letter to
Defendant No.2 Company.
Please refer Plaint ExO/Page 78.
28102016 Shares taken into custody by Defendant No.2.
22122016 The Defendant No.2 Company replied to the
plaintiff's Advocate's Notice.
Please refer plint ExhP, Page87.
1512018 The present suit filed after 23 years from the
alleged transaction dated 261995.
12. Perused Notice of Motion No.591 of 2018. Plaintiff had
filed the same for similar relief. It is disposed of as it is not pressed by
the plaintiffs. Defendant No.2 had filed say to the said Notice of Motion
-- 5 of 8 --
6 NM 2765/19 in
SC Suit 297/18
No.591 of 2018. Defendant No.2 inquired with the plaintiffs in the year
2003 and came to know about the status of the suit shares that the said
shares are still in the name of transferors.
13. It is also mentioned by defendant No.2 in the said say filed
to the Notice of Motion No.591 of 2018 that defendant No.3 had
requested for transmission cum issue of duplicate share certificate and
the said request was proceeded after Company's approval and
subsequently defendant No.3 demated the said shares. Plaintiffs had
sent letter dated 21.10.2016 through advocate stating all the events to
the defendant No.2 and requested not to issue duplicate share
certificate, transfer and demat the suit share to any / third person.
Defendant No.2 replied the said letter vide letter dated 17.12.2016 and
reiterated aforesaid case facts and suit shares were debited from his
account and are currently held in custody of defendant No.2 and
marked under “stop transfer”. It is also informed to the plaintiffs that in
order to get share transfer in their name plaintiffs need to provide duly
executed valid transfer deed and fulfill the transfer procedure or to
provide with Court Order. Therefore, it was lastly prayed in the said
say by defendant No.2 filed in the Notice of Motion No.591 of 2018,
that the said say to be considered as written statement of defendant
Nos.1 and 3.
14. Perused plaint. The plaintiffs prayed to declare that
plaintiff No.1 is owner of the said shares, to direct defendant No.1 and
2 to transfer the said shares in the name of plaintiff No.1, to declare
that a duplicate certificate issued for the said shares to the defendant
Nos.3 and 4 is invalid and also prayed to direct defendant Nos.1 and 2
-- 6 of 8 --
7 NM 2765/19 in
SC Suit 297/18
to cancel the said transaction.
15. According to the defendant Nos.3 and 4 the said shares are
already transfers in their names. I am of the opinion that the plaintiffs
have to prove that plaintiff No.1 is owner of the said shares. If at this
stage defendant No.1 and 2 restrained by order of injunction from
transferring the said shares in the name of 3rd party then it may cause
prejudice or affects legal rights of defendant Nos.3 and 4. Therefore, I
am of the opinion that plaintiffs have not made out prima facie case.
Balance of convenience does not lie in favour of plaintiff. In injunction
is granted it will cause irreparable loss to the defendant No.3 and 4.
Therefore, I record my findings to point Nos.1 to 3 in the negative and
point point No.4 Notice of Motion to be rejected as per final order.
Hence following order:
ORDER
1. Notice of Motion 2765/19 is hereby rejected.
2. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 28/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 28/01/2020.
Transcribed on : 01/02/2020.
Checked on : 04/02/2020
Signed on : 04/02/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
-- 7 of 8 --
8 NM 2765/19 in
SC Suit 297/18
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.02.2020 at 02.50 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 28.01.2020
Judgment/order signed by P.O. on 04.02.2020
Judgment/order uploaded on 13.02.2020
-- 8 of 8 --