Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no.3291 of 2021
In Suit no.2860 of 2018
MHCC010106202021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.3291 OF 2021
CNR NO.MHCC010106202021
IN
SUIT NO. 2860 OF 2018
Mrs. Kalpana Dhaval Shah ...Plaintiff
Vs
Securities and Exchange Board of
India & Ors. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO. 01)
DATE : 5th DAY OF AUGUST, 2022
: Appearances:
Adv. Soman for plaintiff
Adv. Rama for defendant no.1
Adv. Manish Khabrani for defendant no.12 .
Adv. Rahul Malhotra for defendant no.13
ORAL ORDER
The defendant no.1 has taken out the present notice of
motion for claiming reliefs interalia to strikeout the name of
defendant no.1 from array of parties under Order 1 Rule 10 (2) of the
Code of Civil Procedure (‘CPC’) and/ or to dismiss the suit /reject the
-- 1 of 6 --
2 Ord. in NM no.3291 of 2021
In Suit no.2860 of 2018
plaint against the defendant no.1 as Under Order 7 Rule 11(a) of the
CPC as no cause of action is disclosed against defendant no.1 and for
other reliefs.
2. In short, it is contention of the defendant no.1 that, no
cause of action is disclosed in the plaint by the plaintiff against
defendant no.1. It is further submitted that the dispute involved in
the present suit is a property dispute and defendant no.1 is in no way
involved in the present suit. No relief is sought against defendant
no.1. The entire dispute pertinent to plaintiff and her brother
defendant no.2 and defendants no. 3 to 22, hence the name of the
defendant no.1 needs to be strikeout/ or the plaint be rejected against
the defendant no.1.
3. The plaintiff strongly opposed notice of motion by filing
reply on affidavit. It is contention of the plaintiff that, defendant no.1
is a statutory body monitoring and regulating the Indian capital and
Securities market. It also protects the interest of investors and traders,
formulating regulations and guidelines. It regulates operations of
depositories, participants and custodians. Defendant no.1 possess
high authority and power as its primary purpose is to control the
market. It is contended that the plaintiff holds shares in the
defendants no.3 to 10, 12, 13, 15, 16, 18 and 20. Her brother/
defendant no.2 name was added as 2nd holder in the said shares. Now
the plaintiff could not found the original share certificate. Meanwhile,
defendant no.1 issued notification dated 08.06.2018 stating that
“except in case of transmission or transposition of securities, requests
for effecting the transfer of securities shall not be processed unless
-- 2 of 6 --
3 Ord. in NM no.3291 of 2021
In Suit no.2860 of 2018
the securities are held in the dematerialized form with a depository”.
Therefore the plaintiff approached to the defendants to know the
procedure for dematerialization. Thus defendants insisted her to
bring original share certificates and also insisted for signature of
defendant no.2 for issuance of duplicate share certificates. When she
had been to defendant no.2 for the same, he has not cooperating to
her. Thus, the shares of the plaintiff are not yet dematerialized.
Thereafter defendant no.1 has issued circular dated 3rd November,
2021 stating that those shares which are held in physical form and
the Pan, KYC details, nomination and specimen signatures are not
updated on or before 1st April, 2023, will be frozen by RTA. Thus, the
notification circular issued by defendant no.1 has a bearing on the
interest of the plaintiff. Therefore the defendant no.1 is necessary
party to the suit being statutory body regulating the capital markets.
Hence the notice of motion taken out by the defendant no.1 is liable
to be rejected.
4. Heard the learned advocate for the defendant no.1 and
the plaintiff at length. Perused the record.
5. Following points arise for my determination, to which I
have record my findings with reasons as follows
Sr.
No.
Points Findings
1. Whether the defendant no.1 is entitled for
the reliefs claimed in the notice of
motion ?
Yes
2. What order ? As per final order.
-- 3 of 6 --
4 Ord. in NM no.3291 of 2021
In Suit no.2860 of 2018
:REASONS:
As to point no.1:
6. In short it is case of the plaintiff that, she had purchase
shares of various companies in her capacity as a first holder and made
her brother / defendant no.2 as the second holder of the said shares.
Thereafter pursuant to the death of her father and notification of the
defendant no.1 dated 8th June, 2018 in Listing Obligation and
Disclosure Requirements, the plaintiff started searching for the
physical share certificates, but could not find them. Therefore, the
plaintiff approached to defendants no. 3 to 22 companies and
requested them for issuing duplicate share certificates. However they
informed her that the signature of both holders will be required on
the application form for issuing duplicate share certificate. However
her brother/ defendant no.2 was not cooperating her. Therefore she
again approached to said companies / defendants no. 3 to 22.
Therefore they have advised her to file the suit.
7. It is further contention of the plaintiff that, as defendant
no.1 has published the circular dated 3rd November, 2021 stating
therein that those shares which are held in physical form and the Pan,
KYC details, nomination and specimen signatures are not updated on
or before 01/04/2023, will be frozen by RTA. Hence it is bearing on
the interest of the plaintiff. The defendant no.1 is a statutory body
regulating the capital markets, thus it is necessary party. Against this
it is contention of defendant no.1 that the main allegations of the
plaintiff are against defendant no.2 her brother and other 18
companies array as defendants no. 3 to 22 in the plaint. No relief
-- 4 of 6 --
5 Ord. in NM no.3291 of 2021
In Suit no.2860 of 2018
sought against defendant no.1 hence, the name of defendant no.1
needs to be strikeout.
8. Upon perusal of plaint it reveals that the plaintiff has not
sought any relief against defendant no.1. The plaintiff sought
declaration to declare herself as the sole owner of shares, she further
seeks relief to directed defendants no.3 to 22 to delete the name of
defendant no.2 from share certificate and to issue share certificate in
her sole name. After going through the averments of the plaint, it
reveals that no relief sought against defendant no.1. Therefore in my
view the defendant no.1 neither necessary nor proper party in the
suit. The grievances of plaintiff can be alleviate by defendants no.2
to 22. Thus no purpose will be served by asking defendant no.1 to
continue with the proceedings. Hence, the defendant no.1 made out
case for strikeout its name from the array of defendants. Hence, my
answer to point no.1 is in partly affirmative.
As to point no.2:
9. In view of my above discussion, I pass the following
order.
ORDER
Notice of motion no.3291/21 is partly allowed and
made absolute in terms of prayer clause (a).
Notice of motion is disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Date:.05.08.2022 Court, Gr.Mumbai (C.R. No.1)
Dictated on : 05.08.2022
Transcribed on ;06..08.2022
Signed on :
-- 5 of 6 --
6 Ord. in NM no.3291 of 2021
In Suit no.2860 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 10.08.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D Kedarl.
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 05.08.2022
JUDGMENT/ORDER signed by P.O. on 10.08.2022
JUDGEMENT/ORDER uploaded on 10.08.2022
-- 6 of 6 --