JITENDRA J BHABHERA Vs. FORBES GOKAK LTD

JUDGEMENT

(1.) MR. Jitendra J. Bhabhera, the appellant/petitioner filed an appeal under Section 111A of the Companies Act, 1956 ('the Act') praying, inter alia, to direct Forbes Gokak Ltd. ('the respondent company') to rectify the register of members and to pay dividend to the petitioner in respect of the suit shares from the accounting year 1994-95 and onwards.

(2.) The facts of the case briefly are that during the course of business along with shares of some other companies, the petitioner had purchased 50 equity shares of the respondent-company at Rajkot, Gujarat State. The petitioner stated that the aforesaid shares certificates in respect of 50 equity shares along with the transfer form duly signed by the original holder of shares were sent to the petitioner at Mumbai from Rajkot on 2-7-1994 through Poonam Courier & Transport (P.) Ltd., Rajkot. It is stated that the packet containing the aforesaid shares certificates along with the shares certificates of other companies were sent to Mumbai through Poonam Courier & Transport (P.) Ltd., Rajkot. The petitioner further submitted that the aforesaid shares together with the duly signed share transfer deeds/applications were lost/misplaced/stolen during transit from Rajkot to Mumbai and it did not reach to the consignee, i.e., the petitioner. The petitioner further submitted that the stolen or misplaced shares together with the transfer deeds duly signed by the original holder had fallen into the hands of unauthorised person who has illegally, unauthorisedly and without locus standi dealt within the secondary market and presented the same to the respondent-company for transfer. The petitioner submits that he had paid the consideration value to the original holder of the shares and the petitioner is the only rightful owner of the aforesaid shares. The petitioner further submitted that thereafter he had filed a suit for directions and permanent injunction bearing Suit No. 279 of 1995 in the Court of Civil Judge (Senior Division) at Rajkot on 18-2-1995 to prohibit all the nine concerned companies including the respondent No. 1 from transferring all the shares including the suit shares to and in the name of anybody without the consent/instructions of the petitioner. The petitioner further submitted in the said suit the respondent-company have been party defendant No. 5 and the learned Civil Judge was pleased to issue summons to the defendant-company to appear in the Court. The petitioner further stated that thereafter the said suit was finally heard and disposed of and decreed by judgment and order dated 6-9-1996 in favour of the petitioner and against the respondent-company and other defendant companies concerned. By the said judgment and order and decree, the respondent-company had been permanently restrained from transferring the suit shares to any one without a written consent of the petitioner. The petitioner had served the said judgment and order dated 6-9-1996 passed by the Civil Judge, Rajkot Gujarat State upon the respondent-company by his letter dated 1-10-1996 and the respondent-company by their letter dated 4-10-1996 had asked the petitioner to submit a copy of the Court order duly certified by the Notary Public. The petitioner further stated that the respondent-company by their letter dated 20-12-1996 disclosed the facts of the transfer of the suit shares in the name of the respondent No. 2. The petitioner further stated that the respondent-company instead of transferring and sending the suit shares to the petitioner, advised him to make the application before the CLB for rectification of the register of members. The petitioner also stated that the respondent-company has failed to comply with the directions of the Hon'ble Court and expressed their helplessness to rectify the register of members without the directions of the CLB.

(3.) THE petitioner did not file any rejoinder to the reply of the respondent No. 1. THE Bench by an order dated 14-12-2000 directed the petitioner to implead Shri Mukul Lalshankar Yagnik, the transferee, a part in the petition and to amend the petition accordingly. THE petitioner has impleaded the respondent No. 2 Mr. Mukul Lalshankar Yagnik, the transferee as a party and filed an amended petition under Section 111A on 24-1-2001.