9911796707
TMI Blog2009 (2) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... , Calcutta along with blank transfer deeds duly executed by the respective transferors. On 31-5-1995, those shares were found missing from the office of the respondent. On 2-6-1995, the respondent informed the appellant about such misplacement and requested them to stop transfer of those shares, if lodged with them. They also lodged a complaint with the local police station on 7-6-1995. The respondent also claimed duplicate certificate from the appellants which the appellant refused to issue. 2. In this backdrop the respondent filed a civil suit, inter alia, claiming for a declaration that they were the lawful owners of the shares in question and the appellant should be perpetually restrained from registering those shares and/or recording any transfer in respect of those shares in favour of any person other than the respondent. The respondent also claimed issuance of duplicate share certificates. 3. The suit was contested by the appellant. At the trial one Jugal Kishore Sadani stated to be a friend of the respondent filed an affidavit of evidence, inter alia, claiming that he was duly authorised by the respondent to depose on their behalf. He claimed that one Radha Kishan Garodia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict that some of the shares had been lodged for transfer by UCO Bank for registration even before 31-5-1995 when the shares were allegedly lost from the custody of the respondent. (vii)The suit was bad for non-joinder of parties as the owners were not made parties. In any event, the suit was not maintainable in view of the provisions of the said Act of 1956 as the civil court did not have jurisdiction to deal with the company. 7. Mr. Mitra in support of his contention relied on the following decisions: (i) D. Weaton v. Peary Mohun Das AIR 1914 Cal. 396; (ii) Sayeruddin Akonda v. Samiruddin Akonda AIR 1923 Cal. 378; (iii) Gopal Krishnaji Ketkar v. Mohamed Haji Latif AIR 1968 SC 1413; (iv) Mining Geological Metallurgical Institute of India v. Shyamalesh Nath Bhaduri [1978] 1 Cal. LJ 563; (v) Shripal Jain v. Torrent Pharmaceuticals Ltd. [1995] (Supp.) 4 SCC 590; (vi) Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers (P.) Ltd. [1998] 94 Comp. Cas. 310 1 (SC); and (vii) Oriental Insurance Co. Ltd. v. Peacock Plywood (P.) Ltd. [2007] 78 SCL 124 (CLB - Chennai). 8. Mr. Shyama Prasanna Roy Chowdhury, learned senior counsel being ably assisted by Mr. Harish Tando ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal. Admittedly, the respondents were not the registered holders of the said shares. Hence, they could not apply to the company under the provisions of section 84 of the said Act of 1956 for duplicate shares. On perusal of the written statement, it appears that the plea of maintainability was duly taken by the appellant. We also find from the judgment and decree impugned that the point was specifically not pressed by the appellant. Once the plea of maintainability, be it on the issue of competence of the civil court or be it on the issue of non-joinder, was taken and then specifically not pressed it would debar the appellant from taking the identical plea before the court of appeal. In this regard we may refer to the decision of this Court in the case of Premchand Manickchand (supra). The Division Bench observed : "A ground of law, particularly one which goes to the validity of the entire proceedings, can be taken for the first time at any stage. But when a party has raised such ground in the trial court and then, deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage". We fully agree with the observation of the Division Bench quoted supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany within the meaning of a company in terms of section 43A) wherein a shareholder has been given the right to approach the Company Law Board against refusal by a company to register the transfer of shares. Under section 111A after repeal of section 155 of the Act, company has hardly any scope to refuse registration and/or mutation and/or rectification of the shareholder register unless they are satisfied that the transfer has not been effected in accordance with law. If the transfer is lawfully made the company has no scope to refuse registration and/or rectification. In the instant case, before the shares along with the transfer deeds could be lodged for rectification and/or mutation those were allegedly lost from the custody of the respondent as alleged in the plaint. If they could prove ownership of the shares the company would have hardly any scope to deny rectification. At the same time, we observe that even if the shareholder proves that he is the lawful owner of the shares if such proof comes after the name of the shareholder is deleted from the said register the company would have no obligation to record such transfer as the rectification could only be done by deleting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 111A of the said Act of 1956. 14. The judgment and decree passed by the Court below dated 23-7-2004, in T.S. No. 1997 of 1995 is set aside. The suit is remanded back to the Court below for a retrial with liberty to the plaintiff to adduce further evidence if they so chose in the light of the observation made by us hereinbefore. 15. The appellant would furnish detailed particulars of the recorded holders to the respondent. The respondent would also be entitled to add the recorded holders as parties to the suit. 16. The Court below would give opportunity to both parties to adduce further evidence. The parties would, however, be entitled to rely upon the evidence already on record. 17. Upon appreciation of the evidence already on record and evidence to be adduced further by the parties the Court below will consider the issues afresh and dispose of the suit in accordance with law. 18. We also make it clear that the Court below would hear the suit on issues Nos. 5 to 7 (wrongly typed as "9"). The appellant would not be entitled to raise issues Nos. 1 to 4 as already abandoned by them before the Court below. 19. As long as the suit is not disposed of the appellant would be restr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
