2023 (7) TMI 445 - HC - Companies Law

Seeking dismissal of the suit for mandatory injunction and damages - Order XII Rule 6 and Order XV Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 - HELD THAT - It is an admitted fact that defendant no. 1, a registered Society which was founded by late Sh. Chowdhry Brahm Prakash and others became the shareholder of the Plaintiff Company on 20.05.1962 and they acquired 500 shares having distinctive numbers from 61 to 560, covered by a Single Share Certificate. There are specific averments made by the plaintiff in its plaint that these 500 shares were transferred by the defendant no. 1 Society from time to time between 1968 and 1986 and different share certificates were accordingly issued. It is on record that pursuant to directions of this Court vide Order dated 20.09.2007, the plaintiff was able to produce the share Transfer Deeds only in respect of 260 shares. It has been explained by the plaintiff that in terms of Schedule II of the Companies Act and the Notification dated 09.04.2003 the plaintiff Company was liable to maintain these documents i.e., share Transfer Deeds for a period of 3 years. The documents which were sought are more than 50 years old and the Plaintiff Company was not under an obligation to preserve the same. However, on making a search, it was able to recover transfer deeds in respect of 260 shares which have been placed on record. The defendants however, are basing their assertions in this application on the ground that non-production of 240 shares amounts to an admission that they are in the name of the defendants. In so far as 260 shares are concerned, it is claimed that after these Transfer Deeds were placed on record, defendant nos. 4 to 6 had sent the same for determining their authentication to Indian Security Press, Nasik which has reported that these transfer deeds are forged and a FIR No. 158/2007 has also been registered. However, mere filing of FIR is not sufficient to conclude that the share Transfer Certificates are fabricated. It can be established only by evidence and there can be no summary conclusion drawn about them being fabricated documents. The facts of the present case do not reflect that the suit is liable to be dismissed simply on account of non-production of share Transfer Deeds by the plaintiff, as has been claimed by the defendants. The proof of transfer of shares is not only the Transfer Deeds. The plaintiff has also relied upon the Annual Returns and the Register of Members submitted regularly with the Registrar of the Companies to prove that there has been the transfer of shares by defendant no. 1. Having made these assertions, it cannot be said that it has been conclusively shown from the plaint and the documents of the plaintiff that these shares have not been transferred by defendant no. 1 - The circumstances in which its name has been deleted can be understood only after the evidence is led by both the parties. In the case of UNION OF INDIA VERSUS IBRAHIM UDDIN ANR 2012 (7) TMI 887 - SUPREME COURT , it was observed that admissions made by a party though not conclusive is a decisive factor in a case unless the other parties successfully withdraws the same or proves it to be erroneous. The admission even if not conclusive, may operate as an estoppel. The law requires that an opportunity be given to the person who has made an admission under cross examination to tender his explanation and clarify the point of admission. In the present case, merely non-production or alleged forged Transfer Deeds is not only the evidence on which the plaintiff has placed reliance. There is other evidence as already mentioned above and also admissions of the defendants about not being the shareholders of the Plaintiff Company which need to be explained and tested on anvil of cross examination. There are averments made by the plaintiff which have been countered by the defendants. It cannot be said that there are any clear and unequivocal admissions on the part of the plaintiff which entails the dismissal of the suit. This application is without any merit and is hereby dismissed.

Summary

Issues Involved:
1. Application for dismissal of the suit under Order XII Rule 6 and Order XV Rule 2 read with Section 151 of the Code of Civil Procedure, 1908.
2. Ownership and transfer of 500 shares of the plaintiff company.
3. Allegations of fraudulent activities and fabrication of documents by defendants.
4. Statutory obligations and preservation of records by the plaintiff company.
5. Admissibility and weight of evidence, including share transfer deeds and annual returns.

Summary:

1. Application for Dismissal of the Suit:
The defendants filed an application under Order XII Rule 6 and Order XV Rule 2 read with Section 151 of the Code of Civil Procedure, 1908, seeking dismissal of the suit for mandatory injunction and damages filed by the plaintiffs. The court noted that the defendants argued for dismissal based on alleged admissions by the plaintiffs regarding the transfer of 390 shares out of 500 shares.

2. Ownership and Transfer of Shares:
The plaintiffs claimed that the defendant no. 1, a registered Society, transferred its 500 shares between 1968 and 1986, ceasing to have any interest in the plaintiff company. The defendants contended that they continued to hold these shares, asserting that the transfers never occurred. The court recognized the disputed fact about the ownership of these shares, noting that the plaintiffs produced transfer deeds for only 260 shares and explained the statutory obligation to preserve such documents for three years.

3. Allegations of Fraudulent Activities:
The plaintiffs alleged that the defendants falsified records and engaged in fraudulent activities, including filing fabricated documents with the Registrar of Companies. The defendants countered by claiming the plaintiff's documents were forged, supported by findings from the Indian Security Press, Nasik. The court emphasized that the authenticity of these documents could only be established through evidence, not by summary conclusions.

4. Statutory Obligations and Preservation of Records:
The plaintiffs argued that under the Companies (Preservation and Disposal of Records) Rules, 1966, they were only required to preserve share transfer deeds for three years. The court acknowledged this explanation, noting that the plaintiffs had produced available transfer deeds and relied on annual returns and the register of members as evidence of share transfers.

5. Admissibility and Weight of Evidence:
The court highlighted that the non-production or alleged forgery of transfer deeds was not the sole evidence. The plaintiffs also relied on annual returns and the register of members, which needed to be tested through cross-examination. The court emphasized that admissions must be clear, unambiguous, and unconditional to warrant dismissal under Order XII Rule 6. The court cited several Supreme Court judgments, including Himani Alloys Ltd. V. Tata Steel Ltd., to support this principle.

Conclusion:
The court concluded that there were no clear and unequivocal admissions by the plaintiffs that would justify dismissing the suit. The application for dismissal was dismissed, and the suit was directed to be listed before the Roster Bench on 25th July, 2023.