Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 37462019 in Comm. Suit No.962021
MHCC010101742019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION No.3746 OF 2019
IN
COMMERCIAL SUIT No.96 OF 2021
Mrs. Marium Joseph & Ors. …PLAINTIFF
VERSUS
Mrs. Padmaja Chandrashekhar Vaidya & Ors. …DEFENDANT
Shri. Tejas Shah, advocate for plaintiff.
Shri.A. M. Puranik, advocate for defendant Nos.1 and 2.
Shri Vivek Patil, advocate for defendant No.3.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
O R D E R
(Delivered on 05/09/2022)
1. This Notice of Motion filed by plaintiff for restraining
defendants from disposing of and/or selling the shares (Exh.A of the
plaint); till final disposal of the suit. He also prayed for appointing a
Court Receiver to seize and take possession of the said shares till final
disposal of the suit.
2. It is case of plaintiffs that they had purchased 700 shares of
HDFC Bank Limited (defendant No.3) having face value of Rs.10/ from
defendant Nos.1 and 2. The said shares were registered in the name of
defendant nos.1 and 2 under folio No.HB205941. The purchase was
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made through CEAT Securities Mumbai. After purchase of shares the
original shares were physically received by plaintiff with Share Transfer
Forms signed by defendant Nos.1 and 2. However, the said shares could
not registered in the name of plaintiff with defendant No.3 because
shares were inadvertently misplaced by the plaintiff and thereafter
found. Hence, the said shares still stood in the name of defendant Nos.1
and 2. In the year 2016 the plaintiff found the misplaced shares and
thereafter made correspondence with defendant No.3 and thereafter
plaintiff realized that shares are still in the name of defendant Nos.1
and 2 and they were receiving all benefits and dividends thereof.
3. Plaintiffs contended that despite the purchase of 700 shares
defendant Nos.1 and 2 with malafide intention applied and secured 700
duplicate shares of Rs.10/ each by filing FIR in Dindoshi police station
in October 2010. The defendant No.3 had split the said shares of
Rs.10/ face value into shares of Rs.2/ face value and dematerialized
on 14/03/2012 through Dmat account in the name of defendant Nos.1
and 2. Therefore, Datamatics Financial informed the plaintiff to letter
dtd.10/05/2016 that they are not in a position to transfer said shares in
the name of plaintiff.
4. The representative of plaintiff requested defendant Nos.1
and 2 to pay market value of 3500 HDFC share of Rs.2/ face value
alongwith dividend since 1997 till date. Defendant Nos.1 and 2
informed that they sold some shares. Hence, plaintiff filed this notice of
motion for temporary injunction.
5. Advocate of defendants have not filed reply but they
argued at length on this Notice of Motion. Photocopies filed with plaint
indicate that plaintiffs are owner of 700 shares of HDFC Bank
(defendant No.3). According to the plaintiffs at present the market
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value of the shares is Rs.75 Lakh. The shares were purchased by the
plaintiffs in the year 1997 from defendant Nos.1 and 2 with physical
share certificate and share transfer forms. The registration of the
transfer of shares with defendant No.3 remained to be completed.
6. According to the plaintiffs, they have purchased shares in
the year 1997 and were misplaced and found in the year 2016.
However, plaintiffs have not specifically mentioned the year of
misplaced of shares. From the year 1997 till the year 2016 plaintiffs
have not taken any action to search the shares e.g. filing of complaint in
police station or applying for duplicate shares. Therefore the story of
plaintiffs shows that they are hiding some material facts. Plaintiff has
not mentioned the reason as to why the registration of transfer of shares
with defendant No.3 remained to be completed. If defendants have
sold/disposed of the said shares, plaintiffs can be compensated in terms
of money in case they succeed to prove the case on merits. Share
Certificates are in custody of plaintiffs and therefore, it is not possible
that defendant will dispose of/alienate said shares without Share
Certificates. Hence, no irreparable loss will cause to the plaintiffs.
Considering entire facts and circumstances, plaintiff failed to made out
primafacie case and balance of convenience does not lie in their favour.
Thus, question of appointing Court Receiver does not arise. Hence, I
pass the following order.
O R D E R
Notice of Motion No.3746 of 2019 stands rejected.
Date : 05/09/2022. (N.P. Tribhuwan)
Judge, City Civil Court,
C.R.No.32.
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Dictated on : 05/09/2022.
Checked on : 05/09/2022.
Signed on : 05/09/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06/09/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 05/09/2022.
Order signed by P.O. on 05/09/2022.
Order uploaded on 06/09/2022.
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