9911796707
TMI Blog2015 (5) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... e bills drawn on and accepted by the respondent as per the terms and conditions agreed between the petitioner and respondent in various documents executed thereafter. As requested, the petitioner had sanctioned the bill re-discounting facility vide its letter dated 08.07.1996. The facility was given subject to various terms and conditions on payments towards interest and principal on due dates and various other terms and conditions mentioned therein. a. The respondent herein shall enter into necessary agreements with the petitioner in respect of the bill rediscounting facility. b. The directors of the respondent shall pledge 12,40,000 equity shares held by the promoters and their associates with the petitioner. c. Bills discounted by the respondent of reputed suppliers for period not exceeding 90 days shall be considered for rediscounting and the respondent shall endorse the discounted bill in favour of the petitioner and shall produce certificate to the effect that the said bills are held by the respondent on behalf of the petitioner. d. Minimum rate of discounting charges shall be 24% p.a or as may be decided by the petitioner from time to time. The rediscounting charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d preference, if any, held by each of the shareholders and also the share acquired further by way of loans. purchase, gift, any transfer and right issues as well. b. Mr Sunder Iyer executed an Un Attested Agreement dated 27.11.1996 by which he pledged 6,05,000 equity share of respondent company. (Share certificate No. 26759). In respect of the above shares of the respondent company two powers of attorney were executed: a. Power of attorney dated 09.09.1996 executed by Mr Sunder Iyer on behalf of the respondent in favour of the petitioner in respect of 10,00,000 equity shares (share certificate No. 22305) and 2,00,000 (share certificate No. 8462) of the respondent company. b. Power of attorney dated 27.11.1996 executed by Mr Sunder Iyer in respect of 6,05,000 equity shares (share certificate No. 26759). 3. The petitioner submits that the respondent had been consistently defaulting in making payments in respect of the bills discounted. The respondents had time and again been reminded of its liability to pay the petitioner the outstanding amounts. Despite the best efforts of the petitioner is trying to recover the dues, the respondent defaulted in the payment of dues to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner having the custody of the shares shall not sell the shares without the consent of the respondent. It is submitted that when the matter stood thus, the petitioner vide its letter dated 14.09.2007 again made a request to the respondent to transfer the shares in their favour since the order of the Hon'ble High Court dated 13.04.2007 only restricted the petitioner from selling the share and accordingly enclosed board resolution and the original share certificates along with duly stamped transfer forms to the respondent. The respondent vide its letter dated 12.11.2007 refused to transfer the shares in the name of the petitioner stating there is no direction from the Hon'ble High Court that the shares ought to be transferred in the petitioner's name and the further appended a letter purported to have been written by the pledger of the shares Mr. Sunder Iyer, seeking delivery of the shares to him after settling with the applicant/petitioner. It is submitted that in view of the apprehension the petitioner filed an application bearing CMP Nos. 31 and 32 of 2008 in O.S.A No. 3 of 2006 for the following relief against the respondent: a. return the share certificates del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2005 i.e. 6 years from the date of the alleged cause of action had arisen, assuming without admitting that it gives one, and even at the said point of time the petitioner would have been bound to explain the delay of 6 years in approaching this Hon'ble Bench assuming that the petitioner had approached this Hon'ble Bench with the present petition, prior to the date of the order in 2005, Hence the weak plea of the petitioner relating to happenings subsequent to the year 2005 and trying to manufacture reasons for filing the present petition and to make it sustainable by hook or cook, is in itself totally unsustainable. It is further submitted by way of preliminary objection that the petitioner, as is evident from the averments contained in the petition has been only forum shopping in its desperation to somehow or other extract monies out of the respondent which it is not legally entitled to and what is acknowledged to be due, which the respondent have been always ready and willing, however being refused by the petitioner which clearly exposes the shylockean attitude of the petitioner to extract some or other a pound flesh, which it clearly knows it is not entitled, and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and cold, before different forums to suit its convenience and must be consistent in pleadings. Having resisted the jurisdiction of the company court, now for the sake of maintaining the present petition, cannot turn back and say otherwise and hence it is clearly stopped from doing so. The above also clearly brings out the fact of the petitioner engaging in forum shopping, as averred earlier, and disentitles the petitioner from proceeding with the present proceedings before this Hon'ble Bench. Having made a plea before the Hon'ble High Court of Madras that the disputed shares, assuming that the present proceedings are for the very same shares in this proceedings too, in order to oust its jurisdiction, the petition is also barred from being entertained by virtue of section 10 of the Code of Civil Procedure as no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner is yet to be ascertained. And hence, the approach of the petitioner before this Hon'ble Bench is premature and nothing but a coercionary tactics adopted by the petitioner to somehow or other pressurise this respondent in parting with monies. The respondent further submits that the petition also suffers from non-joinder of necessary parties required for the purpose of adjudication of the present petition, in as much as the alleged transferor of the shares has not been included in the array of the parties. This respondent submits that the petitioner in the petition has specifically averred that the transferor of the shares has communicated to the petitioner as well as the respondent company not to effect the transfer of shares. In the above circumstances the non-inclusion/impleadment of the transferor necessarily vitiates the proceedings before this Hon'ble Bench and hence, on this ground also the petition is required to be dismissed for the reason of non-joinder of necessary parties, particularly when fraud is alleged and demonstrated. It is submitted that the respondent had availed certain financial facilities and almost the entire amount due has been repaid It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by hook or cook which it is not entitled. All the above actions including the present one before this Hon'ble Bench are only unsustainable attempts made by the petitioner to carry out the devious ploy and hence is liable to be dismissed. In view of the above, this petition is required to be dismissed with exemplary cost and thus render justice. 5. Heard the learned counsel appeared for the respective parties perused the pleadings and documents filed in their support. The limited issue is whether the petitioner is entitled to the relief as prayed in the petition. The petitioner filed a copy of letter dated 08.07.1996 addressed by the petitioner to the respondent sanctioning of bill rediscounting facility of Rs. 75 lakhs on the terms that the R1 Company shall enter into necessary agreement with the petitioner before any payment is made. Further the directors of the R1 Company shall pledge 12,00,000 equity shares of R1 Company and 40,000 equity shares of IVR Constructions Ltd. Accordingly the R1 Company entered into an agreement for bill rediscounting dated 09.09.1996 with the petitioner. As per the agreement the tenure of bill is 90 days and the pledge of shares was valid for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company to transfer the shares in the name of the petitioner. In response to the above letter the petitioner vide its letter dated 01.02.2001 addressed to the respondent wherein at para 2 it is stated that "you have mentioned that Mr Sundar Iyer has offered 12,00,000 shares as collateral security, you have decided that it would not be in the interest of your company to transfer the shares in the name of GIIC Ltd. In this connection you may please refer the legal documents you have executed with GIIC and shares with transfer deeds duly signed by the respective holders to avail the financial assistance from the corporation. As per the terms of the sanction and legal documents the GIIC has every right to recover its dues from shares if default continues ". It is an admitted fact that the respondent company availed rediscounting facility of Rs. 75 lakhs from the petitioner and at the time of sanctioning the petitioner vide its letter dated 08.07.1996 made it clear that the directors shall pledge 12,00,00 shares of the R1 Company and 40,000 shares of IVR Constructions. Accordingly the respondents entered into an agreement with the petitioner on 09.09.1996 and in the terms of the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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