9911796707
TMI Blog2018 (12) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. It is his case that the same were lost or are untraceable since April, 2016. A report was also filed with the concerned Police Station, i.e., P. S. Shakespeare Sarani, Kolkata. Respondents Nos. 1 and 2 were duly informed and were requested to issue duplicate share certificates. On the respondents' inaction in issuing duplicate certificates, the petitioner has invoked the jurisdiction of this Bench praying that respondent No. 1 be directed to do the needful. 3. It would be pertinent to note the relevant background of the parties. The petitioner and respondent No. 2 are brothers, being sons of Shri Madan Lal Mundra, who in turn is one of the lineal decedents of late Shri Suraj Lal Mundra. In terms of the family settlement between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development P. Ltd. 6. The respondents have filed the copy of the deed of guarantee dated February 8, 2013 offered to Celica Developers P. Ltd. In terms thereof, respondent No. 2 for himself and on behalf of respondent No. 1 had agreed as follows : (a) My liability under this guarantee shall be that of the principal debtor and it will not be necessary for you to proceed against the borrower or any other guarantor as a condition precedent for enforcing your rights against as hereunder. (b) This guarantee shall be a continuing guarantee and shall be irrevocable and shall continue until borrower discharges all its obligations to you under the loan agreement fully and to your entire satisfaction. (c) This guarantee shall not in any manner b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is fully entitled to retain the shares as security for the due repayment of the debt discharged by them on behalf of Apsom Turner P. Ltd. 9. The point involved in the present petition is short. There is no denial by the petitioner that respondent No. 1-company had offered a corporate guarantee for the loan availed by M/s. Apsom Turner P. Ltd., at his instance. Copy of the corporate guarantee and personal undertaking of respondent No. 2 to remain liable to liquidate the debt of Apsom Turner has been placed on record. It is also not repudiated that respondent No. 1company has paid a sum of Rs. 1.2 crores on invocation of the guarantee to M/s. Celica Developers P. Ltd., which they seek to recover from Apsom Turner in a suit filed by them. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered at the instance of the petitioner. The entitlement of the respondent to recover their claim is already a subject matter of adjudication. Should the suit, for recovery be adjudicated in their favour, they would well be within their rights to appropriate the proceeds under the shares in execution proceedings if the pledge is not redeemed. It would be grossly inequitable to direct the respondent to hand over the security to the petitioner without the claim of the respondents being satisfied. On payment of the guaranteed debt in full, the surety is entitled to all securities assigned to him, which can only be adjudicated by a civil court. 12. Given the facts of the case, the prayer of the petitioner is beyond the scope of section 46 or 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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