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TMI Blog2015 (5) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent company. The above unattested agreement is not in dispute. As per the above agreement the shareholder of the respondent company has categorically stated that as per the sanctioned letter the shareholder pledged the above shares in favour of the petitioner for effecting the transfer of said shares to pay the said loans or any other dues of petitioner. The shareholder also signed the share transfer forms in favour of the petitioner. Further as per clause 5 the petitioner can call upon the shareholder of the respondent company to execute the transfers in favour of the petitioner. Thus the shareholder of the respondent company is bound by the said agreement. Failing to repay the loan amounts to the petitioner by the respondent the petitioner requested the respondent to effect the transfer of shares pledged by the shareholder in favour of the petitioner in accordance with the terms and conditions of the unattested agreement entered by the shareholder. From the documents it is crystal clear that the petitioner has taken various steps to recover the loan however the respondent failed to repay the amount borrowed by the respondent. The petitioner has bonafidely exercised its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls 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 shall be recovered in advance. e In case of default, the balance sanction shall stand cancelled and interest at 36% p.a for the delayed period shall be payable by the respondent or as may be decided by the petitioner. f. Post-dated cheques payable to the petitioner shall be given by the respondent for each bill discounted. Cheques payable by the respondent shall be payable at Bombay. g. The sanction shall be valid for a period of one year from the date of sanction. 2. It is stated that the petitioner and respondent entered into an agreement for bill rediscounting dated 09,09.1996 whereby the petitioner agreed to rediscount the bills drawn on and accepted by the respondent as per the terms and conditions specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rney 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 petitioner. In the meanwhile the petitioner by its letter dated 07.12.1999 sent the share certificates concerning the equity shares (morefully described in the Schedule) and transfer forms to the respondent to transfer the same in the name of the petitioner. The petitioner vide its letter dated 15.02.2000 reminded the respondent to transfer the shares in its name. Since the respondent did not respond to any of the letters issued by the petitioner, the petitioner lodged a complaint with the Investors Services Cell, Bombay Stock Exchange letter dated 25.05.2000. The petitioners vide its letter dated 08.09.2000 informed the Registrars of the respondent, Intime Spectrum Registry Pvt Ltd to look into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 delivered to them vide the applicant/petitioner's letter dated 14.09.2007 OR IN THE ALTERNATIVE b. not to deliver the shares pledged to the applicant/petitioner to anyone including the pledger of the shares. Mr Sunder Iyer. The Hon'ble Division Bench on 14.02.2008 passed the following order: By order dated 13.04.2007, as the court has already stayed the order passed by the Learned Single Judge and directed the appellant not to sell the shares without the consent of the respondent, we are not inclined to issue any further direction in regard to the same. If the shares are available with the respondent they shall also not pledge them or transfer them without prior permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 hence this proceedings launched in furtherance of the devious plan constitutes nothing but an abuse of process of law and this court being a court of equity should not entertain the petitioner who has suppressed facts and come before this Hon'ble Bench with unclean hands. It is the specific averment of the petitioner in the petition that proceedings are pending in a civil suit in CS No. 1588 of 1998 and in CP No. 158 of 2002 between the same parties. However curiously, as selective amnesia, the petitioner has sought to conveniently forget the written pleas made by it before the Hon'ble High Court in the proceedings in O.S No. 2 3 of 2006, wherein with a view to oust the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. It is submitted that the object of the above said provision is to avoid conflicting decisions of two competent courts over the same matter and save the time of the court, where the subsequent proceedings are initiated. Even according to the above admission of the petitioner the matter in issue is substantially and directly the same, namely that of shares over which it claims ownership based on documents, both of which under challenge before the civil court at Ahmedabad and hence it is humbly submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 submitted that as against a principal amount claimed to be due in a sum of ₹ 75,00,000/- the respondent company has paid nearly ₹ 1.2 crores and has been ready and willing even as early as 2004 to pay a sum of ₹ 38,16,922/- which has also been sent to the petitioner, who however has refused to receive the said amounts. Hence the claim that there has been a default on the part of the respondent is totally unsustainable and made with a view to confuse this Hon'ble Bench, However, the bona fides of the documents as claimed to be executed in the petition is however a matter pending adjudication before the civil court and hence, in the exercise of summary j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to the respondent sanctioning of bill rediscounting facility of ₹ 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 12 months w.e.f 21.06.1996. As per the agreement one Mr Sundar Iyer shareholder of the R1 Company has pledged 12,00,000 equity shares and the company sanctioned bill rediscounting facility of ₹ 75 lakhs. The petitioner also enclosed a copy of power of attorney given by Shri Sundar Iyer shareholder of the R1 Company in favour of petitioner with respect to the 6,05,000 shares pledged to the R1 Company. The R1 Company vide its letter dated 07.12.1999 addressed to the petitioner requested the respondent company to transfer the shares in the name of the petitioner company. Further the petitioner requested the respondent company to transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms 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 ₹ 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 agreement the pledge of 12,00,000 equity shares and 40,000 equity shares have been mentioned. The petitioner and the respondent had signed the agreement and there is no dispute. Further the promoter of the respondent company i.e. Shri Sundar Iyer entered an unattested agreement dated 09.09.1996 with the respondent company. Clause 4 5 of the said agreement is reproduced hereunder: 4. Pursuant to the terms and conditions of the aforesaid sanction letter, the above shareholders have pledged the following equity shares as per the list held by company to the corporation for affecting the transfer of one/or more of the said shares to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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