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TMI Blog2009 (2) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... ght rectification of the share register. We are afraid, nothing came out in the evidence on that score and it would not be wise to grant approval to the rectification as directed by the Court below. At the same time, we feel that the appellant should take an impartial stand in the matter as mandated by law specially under section 111A of the said Act of 1956. 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. - F.A. NO. 19 OF 2006 - - - Dated:- 10-2-2009 - ASHIM KUMAR BANERJEE AND PRASENJIT MANDAL, JJ. Hirak Mitra and Deb Dutta Sen for the Appellant. Shyama Prasanna Roy Chowdhury, Harish Tandon and Saroj Tulosian for the Respondent. JUDGMENT Ashim Kumar Banerjee, J. - ICICI Bank Ltd., the appellant above named, is a public limited company registered under the provisions of the Companies Act, 1956 (hereinafter referred to as "the said Act of 1956"). Its shares are quoted with the recognised stock exchanges of the country and abroad. The respondent is also a company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate shares and held that there was no challenge from the end of the appellant that the respondent did not purchase those shares and as such they were entitled to the relief as claimed. The learned Judge held that the respondent was a bona fide purchaser in respect of the shares mentioned in schedule A to the plaint and granted relief accordingly. 6. Mr. Hirak Mitra, learned senior counsel, being ably assisted by Mr. Deb Dutta Sen, learned counsel appearing for the appellant contended as follows : ( i )The evidence of Sadani was of no consequence since he did not assert that he had witnessed the transaction between the respondent on the one hand and Chamaria on the other hand and he had personal knowledge that on 31-5-1995, the said shares had been lost from the office of the respondent. Unless Sadani had any personal knowledge of the transaction and/or the subject of controversy he would not be able to depose on behalf of the respondent. ( ii )Learned Judge of the Court below erred in relying upon the evidence of Sadani without appreciating that his evidence was of no consequence in the absence of any personal knowledge. ( iii )The ownership was not proved as sale notes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that plea was specifically not pressed as would appear from the judgment and decree impugned in the appeal. Once the appellant consciously did not press the issue of maintainability on the question of non-joinder or otherwise they were not entitled to raise the same plea before the Court of appeal. ( v )Ownership in respect of the shares was proved by documentary evidence which were exhibited by and on behalf of the respondent. Those exhibits were taken on record by dispensing with the formal proof by order No. 57 dated 14-7-2004. Once the ownership was proved the relief was consequential. ( vi )Sadani knew about the facts and circumstances as would appear from paragraph 2 of the affidavit-of-evidence. He was duly authorised, by the respondent to adduce evidence on their behalf. In any event the ownership was proved through the documentary evidence which came on record by consent of the parties by dispensation of formal proof. Hence, the plea as to the competence of Sadani was not tenable. 9. In support of his contention Mr. Roy Chowdhury relied upon the following decisions : ( i ) A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359; ( ii ) Premchand Manickchand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that the original share certificates had been lost along with the blank transfer deeds. The respondent requested the appellant not to transfer the disputed shares to any outsiders. In all fitness of things the appellant should carry out such request for a reasonable period so long as the respondent was not able to obtain any order and/or decree from a competent court restraining transfer of those shares. In this regard we may refer to the letter of the Registrar dated 20-4-2001, appearing at page 16 of the supplementary paper book wherein the Registrar placed it on record that they noted this request of "stop transfer" in respect of 410 shares of Rs. 10 each in lieu of 410 shares of Rs. 100 each. Such letter was written by the Registrar on 20-4-2001. The moment the appellant came to know of the alleged loss of shares they should wait for an adjudication from a competent court on the ownership if there was any rival claim. In the instant case, Mr. Mitra on instruction contended that before receipt of the first request made by the respondent some of the shares were lodged by the UCO Bank for registration and those were registered by the company in the name of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now consider the present case by giving full credence to the evidence which came out during the final trial. The respondent purchased shares from R.K. Chamaria and Company. Nothing came out in evidence to the extent that subject shares belonged to R.K. Chamaria and Company. Once such evidence did not come it would be dangerous to conclude that those transactions were lawful. 13. The matter can be viewed from another angle. Assuming the shares had not been lost and those were lodged for rectification on the strength of a sale note between R.K. Chamaria and Company on the one hand and the respondent on the other hand would it be sufficient for the company to satisfy themselves that such transfer was lawfully made ? We unhesitatingly answer the question in the negative. Share is a movable commodity. It can be sold by the holder to any one and he in turn to another one. However, those intermediaries do not ultimately figure in the transaction and do not have any consequence. Once the transfer is registered with the company it is registered on the basis of the transfer deed duly executed by the registered shareholder featuring in the records of the company in favour of the ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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