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TMI Blog2023 (7) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... ares. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or D-2 Mr. Vijay Joshi, Mr. Lalit Sharma, Advocate for D-9 to D-11 JUDGMENT NEENA BANSAL KRISHNA, J I.A. 465/2020 1. The defendants have filed an application under Order XII Rule 6 and Order XV Rule 2 read with Section 151 of the Code of Civil Procedure, 1908 dated 13.01.2020 seeking dismissal of the suit for mandatory injunction and damages, filed by the plaintiffs. 2. The plaintiffs by way of present suit, have sought permanent injunction for restraining the defendants nos. 1 to 8, their agents and employees from representing themselves and/or holding themselves out to be shareholders of the plaintiff s Company or to act as their authorised representatives; for mandatory injunction for directing the defendants to handover the Letter Heads and other documents or instruments, stamps and seals bearing the name of plaintiff Company which have been created by them and for directing the defendant nos. 9 and 10 to remove their names from Form 32, Form 18, Form 2 and Form 5 and to take action against defendants nos. 1 to 8. The mandatory injunction is also sought against the defendant nos. 1 to 8 to disclose all the transactions, entered by them, in the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant no. 7 alleges to be the Secretary. There are, however, dispute inter se the defendants as to who are in fact the office bearers and members of the society. 7. In June, 1997, Defendant no. 1 Society through defendant no. 7, Mr. Siddhartha Chaudhry, as its Secretary filed a petition under Sections 108 and 111 (4) of the Companies Act, 1956 bearing Company petition No. 15/III/97 before the Company Law Board, Northern Region Bench praying that 500 shares with distinctive numbers from 61-560 be restored in its name by the plaintiff (which was impleaded as respondent no. 1 in the Company petition). On 10.12.2004, the Company Law Board passed an Order directing the defendants to file affidavit of proof of existence of Society and its members as on date with addresses etc. Defendant no. 4 (Mr. Ajay Yadav) filed a Letter dated 26.05.2006 on a fabricated Letterhead of the Plaintiff Company and signed by him as Director of the Plaintiff Company showing the address of the Company as A/3, Indian Express Apartment, Mayur Kunj, New Delhi-96. The plaintiff never had its office at this address and the phone numbers given in the Letterhead were also wrong. It is further claimed that Mr. Aja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company was requisitioned or held on 10.03.2006. No notices under Section 284 Companies Act, 1956 were given to plaintiff nos. 2 to 4 relating to the alleged proposal. 12. Similar mischief was discovered as three Forms no. 2, 5 and 18 had also been filed stating that the Board had authorised the filing of the said Forms vide Resolution dated 18.03.2006, to falsify the Plaintiff Company s record with the ROC. It is claimed that no meeting was held on 18.03.2006 nor 80 shares of face value Rs. 100/- having a total consideration of Rs. 8000/- were allotted nor was anybody was authorised to file the Form vide Resolution dated 18.03.2006. Form no. 2 was signed by Ms. Kusum Sehgal; Form no. 5 was digitally signed by Pawan Kumar Sharma and Form 18 was signed by Mr. Nitin Madan, who are total strangers to the Plaintiff Company. The plaintiffs immediately addressed a Letter dated 24.04.2006 to defendant no. 9 and the Plaintiff s representatives personally visited defendant no. 9 on number of occasions and provided the detailed information about the Plaintiff Company s Shareholders and Directorship. The plaintiff then received two letters from the office of defendant no. 10 dated 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been the shareholder in the Plaintiff Company. It is also denied that defendant no. 1, Society has not carried out any activity since last past 20 years or it is defunct. It is claimed that defendant no. 1 is fully functional and has been providing requisite information to the Registrar of Societies as required by law. It is denied that defendant nos. 2 to 8 are the duly appointed members of defendant no. 1, Society and is being represented by defendant no. 7. It is further claimed that defendant no. 2 by misrepresenting himself as office bearer of defendant no. 1 and in an endeavour to hijack defendant no. 1, Society had withdrawn the petition before the Company Law Board in collusion with one, Ajay Yadav but the petition was subsequently restored. It is further stated that defendant nos. 3,4,5 and 6 were never the members of defendant no. 1, Society and defendant no. 2 was the member of the defendant No. 1 Society up till 10.11.2006 and was removed from the Society thereafter for his activities against the defendant no. 1 Society. It is submitted that defendant no. 1 is not part of any illegal activity and the suit of the plaintiff is liable to be dismissed. 16. The defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. S.O. 198 (E) dated 16.03.976 and S.O. 130 (E) dated 28.01.2004, issued by Ministry of Finance, Department of Revenue. Moreover, the plaintiffs have not placed on record any Transfer Deed in lieu of remaining 240 shares and additional 150 shares which were also issued in the name of defendant no. 1, Society. It clearly reflects that no shares of defendant no. 1 have ever been transferred and it continues to be a shareholder of plaintiff no. 1, Company and the suit is liable to be rejected under Order VII Rule 11 CPC. 18. Defendant nos. 9 and 10 have also filed a written statement taking a preliminary objection that they have been discharging their statutory functions and are immune from any action in terms of Section 235 A of the Companies Act, 1956 and there is no cause of action disclosed against them and all the averments made in the petition are denied. 19. Defendant nos. 1, 2, 3, 5 and 6 have filed the Application under Order XII Rule 6 CPC for dismissal of the suit. It is stated in the application that this Court vide Order dated 20.09.2007 observed as under: There are number of other miscellaneous applications which are pending on record and part argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eks time. In case the defendants are able to show that the plaintiffs have withheld any document from the Court despite directions contained in its order dated 20.09.2007, adverse inference could be drawn against the plaintiffs for withholding of such documents from the Court. The defendants are permitted to file their reply in response to the documents filed by the plaintiffs along with the affidavit filed pursuant to the order dated 20.09.2007. 21. It is claimed that the submissions on behalf of the plaintiff as recorded in above Order dated 18.12.2007 that 240 shares are not available with them constitutes an admission in terms of Section 58 of the Indian Evidence Act, 1872. 22. Thereafter on 07.01.2008, plaintiff placed on record the original share Transfer Deed in respect of 260 shares. It is claimed that the only mode for transfer of the shares of a Private Limited Company is through execution of share Transfer Deeds by the transferor in favour of the transferee in terms of Section 108 of the Companies Act, 1956. It is claimed that since plaintiff has not been able to produce the original share Transfer Deeds in respect of 240 shares, no other evidence is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 1, Society is able to get its rights adjudicated in the separate suit bearing no. CS (OS) No. 1451/2012, filed by it, it cannot act as a shareholder and a Director of the Plaintiff Company. 27. In fact in the present suit, various issues have been framed and the affidavit of the witnesses of the plaintiff has also been filed. Moreover, it is still in dispute whether defendant no. 1, Society is lawfully represented by defendant no. 2, Mr. Ajay Chowdhary as he was never appointed as the President or Secretary of defendant no. 1, Society and has no authority to represent defendant no. 1. Moreover, FIR No. 476/2006 has been registered which reflects that the documents on the basis of which defendant no. 2 is claiming to be the President of defendant no. 1, Society and has authority to represent the defendant no. 1 are forged and fabricated, in respect of which a specific issue has already been framed. Furthermore, there is no admission whatsoever in respect of 390 shares as alleged. All the 500 shares of defendant no. 1 stand transferred by defendant no. 1 Society itself from time to time between the year 1968 to 1989 as has been explained in the plaint. There have been content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been wrongly and illegally, at the behest of defendant nos. 2 and 3, have been claiming to have been appointed as Directors of the Plaintiff Company and had sold and executed Transfer Deeds in respect to properties of the Plaintiff Company by misrepresenting the public at large that they are Directors of the Plaintiff Company. 30. Learned counsel on behalf of the defendants has argued in support of the application that pursuant to two Orders of this Court, the Transfer Deeds have been produced only in respect of 260 shares out of the 500 shares on behalf of the plaintiff which have been found to be fraud and fabricated in respect of which FIR No. 158/2007 has already been registered. The plaintiff has not been able to produce any documents to show that defendant no. 1, who was admittedly holding 500 shares, has transferred them between 1968 to 1989. The suit of the plaintiff is therefore liable to be dismissed. 31. Submissions heard. 32. The plaintiff has filed the present suit for permanent/mandatory injunction for restraining defendant nos. 1 to 8, their agents, their representatives to claim themselves as shareholders of the Plaintiff Company and to act on its b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreover, it has been rightly argued on behalf of Plaintiff that these are more than 30 years old documents to which there is a presumption of genuineness attached. Further, as argued on behalf of the plaintiff, an opportunity is required to be given to the plaintiff to prove the disputed facts about transfer of shares and there exist no admissions or clinching evidence requiring no proof to dismiss the suit of the plaintiff at the threshold. Significantly, the defendant no. 1 has also filed a counter suit bearing CS (OS) No. 1451/2012 claiming to be the owner of 500 shares of Plaintiff Company. 37. The defendant can seek rejection of the suit only if there are plain, unequivocal and unambiguous admissions made by the plaintiff. It was held by the Hon ble Supreme Court in Himani Alloys Ltd. V. Tata Steel Ltd. (2011) 7 SCR 60 that Order XII Rule 6 is an enabling provision and the court has to exercise its judicial discretion after examination of facts and circumstances, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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