TAPABRATA CHAKRABORTY J. - (1.) THIS Appeal had been preferred challenging the Judgment and Decree dated 20th April, 2011 passed by the Learned Judge 13th Bench , City Civil Court, Calcutta in Title Suit No.1514 of 1995 .
(2.) THE Plaintiffs being the appellants herein preferred the suit for declaration, permanent and mandatory Injunction being Title Suit No.1514 of 1995 stating inter -alia that they had purchased 190 Nos. of ordinary shares of the defendant No.1 company for consideration of Rs.1,61,500/ - from one Ram Piari Chandna (since deceased) who was the mother of the plaintiff No.1 and the mother -in -law of the plaintiff No.2 and that she had sent the duly filled up Share Transfer Form along with the three original share certificates bearing no. 928007 for 100 shares, 928008 for 72 shares and 928010 for 16 shares by a covering letter to the share department of defendant no.1 Company on 22.08.1994 for effecting the transfer of the said 190 shares in favour of plaintiff No.1 and the plaintiff no.2 . As the said share transfer was kept in abeyance, by the company, the said Ram Piari Chandna sent a further request to the defendant no.1 to confirm as to whether such transfer has been effected in favour of plaintiffs. In reply to the said letter dated 01.10.1994 the Investor Service Centre of the defendant No. 1 Company issued a letter to Ram Piari Chandna contending inter -alia that the share scripts for 190 ordinary shares had already been received by the defendant No.1 company with duly executed transfer form for being transferred in the name defendant No.2 and another. In reply to the said letter of Investor Service Centre of the defendant No.1, Ram Piari Chandna gave intimation to the Investor Service Centre of the defendant No.1, that she had never transferred her said shares in favour of defendant No.2 or any other person. In the plaint it was further averred that the defendant Nos. 1 and 2 had sought to defraud the plaintiffs and to illegally transfer 90 shares of the Company as detailed in Schedule 'B' of the plaint together with 1:1 Bonus Share in respect of the said shares, and as such the Suit had to be instituted. The defendant No.2 entered appearance and filed a written statement controverting the allegations made in the plaint and stating inter -alia that in the year 1994 he purchased 90 Equity Shares of the defendant No.1 Company, having distinctive Nos.067692941 -946 for 16 shares and 034494687 -760 for 74 shares from Pankaj Kumar Agarwal upon payment of consideration and that by letter dated 12.09.1994 he had sent the said share certificates of those 90 shares along with transfer deed duly completed in all respect to the Investor Service Centre of defendant No.1 for effective transfer in his favour and that in the year 1998 his records were seized by Anti Fraud Section, Detective Department, Lalbazar including the papers relating to 90 shares from his custody, though he is the bonafide purchaser of the said 90 shares. Both the parties led oral evidence in support of their respective cases. The appellant No.1 deposed on his behalf and on behalf of the appellant No.2. During his evidence he corroborated the averments made in the plaint and in course of Cross ­ examination he disclosed that he had inherited the share from his mother and that he had not filed any money receipt for purchasing the said shares from his mother and that he had submitted the original certificate for registration of transfer of the shares and that he had not heard about Pankaj Kumar Agarwal and that he did not know whether the defendant purchased share from the said Pankaj Kumar Agarwal.
(3.) THE defendant No.2 examined himself as OPW 1 placing reliance upon a letter dated 12.09.1994 issued by him to the Company, the extract of Bank Pass Book depicting payment of an amount of Rs.73,260/ - towards the 90 shares, a letter dated 15.07.1999 and a seizure list dated 16.12.1998. The said defendant further corroborated the averments made in the written statement emphatically denying that the predecessor ­ in ­ interest of the plaintiffs did not sell her share holding as alleged. It, however needs to be mentioned that the defendant No.1 did not enter appearance and did not file any written statement. Upon considering the materials on record and upon hearing the contesting parties, the Learned Court below disbelieved the contention of the appellants herein as they had miserably failed to establish the allegations of forgery and had also not been able to show any document in support of transfer of an amount of Rs.1,61,500/ - to Ram Piari Chandna towards the alleged purchase of 190 shares . The Learned Court further observed that it was disclosed by the defendant No.2 in the written statement that he had purchased the shares through Pankaj Kumar Agarwal and he had issued a letter dated 10.07.1995 through his Learned Advocate calling upon the said Pankaj Kumar Agarwal to disclose how the shares came in his possession and custody and whether he knew the recorded transferor personally and whether the transfer deed was signed by the transferor in his presence. The appellant had taken no steps to implead the said Pankaj Kumar Agarwal and that as such the suit was bad for non - joinder of Pankaj Kumar Agarwal as necessary party. The Learned Counsel appearing for the appellants submitted inter -alia that it was the duty of the Learned Court below to compare the signature of Ram Piari Chandna in share transfer form submitted by the defendant No.2 with the signature of Ram Piari Chandna appearing in the transfer form submitted by the appellants and that the Learned Court below ought to have appreciated that in view of the relationship of the appellants with Ram Piari Chandna, the rigid formula of submission of documents showing payment of consideration money was uncalled for and that as Pankaj Kumar Agarwal was not an interested party, his impleadment was not necessary and that such non -impleadment did not warrant dismissal of the suit.;