AMITA B. DEVNANI Vs. HINDUSTAN CONSTRUCTION COMPANY LIMITED

JUDGEMENT

(1.) THE present petition is filed under section 111 of the Companies Act, 1956 (the Act), praying this bench to direct the respondents 1, 2 and 3 to register 1,000 shares in the name of the petitioner. Shri Zubin Patel, learned Advocate, appearing for the petitioner, submitted that the petitioner purchased 1,000 shares of the respondent No. 1 through the respondent No. 4 owned by the respondent No. 5 to 13 for consideration agreed to between the petitioner and the respondent No. 4. Upon payment of the entire consideration amount by the petitioner to the respondent No. 4, the respondent No. 4 alongwith their letter/delivery challan, dated 22 January, 2000, handed over 20 share certificates and 20 transfer deeds in respect of the said shares which were sold and transferred to the petitioner by the respondent No. 5 to 13 through the respondent No. 4. At the relevant time as the petitioner had no PAN card number in her name, the demat account number was not obtained by her and, hence, the said shares could not be transferred in the name of the petitioner. It is submitted that, upon obtaining PAN card, bearing No. AKMPD8832H in the year 2007, the petitioner went to the Mumbai Stock Exchange in order to get the said shares listed in her demat account, but to her utter surprise and dismay she found that the shares from the Folio. No. HKJ -55832, Folio No. HKJ -54880, Folio No. HKD -58717, Folio No. HKS -58755 and Folio No. HKS -59560 (hereinafter for the sake of brevity referred to as the 'said transferred shares') out of the said shares, were sub -divided and had already been transferred to various accounts and further dematerialized by TSR Darashow, share transfer agent of the R1 company. The petitioner immediately brought this above and as to how without her knowledge and signature when she was the actual owner of the said shares more particularly described in Exhibit B -1 to B -20 colly and when she had not instructed the respondent No. 4 as regarding her intention to sell her shares. However, she was not able to get any satisfactory reply though she tried fruitlessly. By transferring the said shares more particularly described in Exhibit B -1 to B -20 colly without the consent and knowledge of the petitioner, an illegal act of criminal breach of trust has been performed by the respondents in connivance with each other and with a common object of dishonestly and fraudulently defrauding and cheating the petitioner and to make wrongful gains by dishonestly misappropriating the money for their own personal use.

(2.) WHILE matter stood thus, the petitioner through her advocate addressed a letter dated 2 November, 2007, and called upon the respondent Nos. 1, 3 to 13 to transfer the said shares in the name of the petitioner within a period of 15 days from the receipt of the letter. The respondent No. 3, vide their letter dated 15.11.2007, stated that pursuant to dematerialization, the transfer of beneficial ownership of the said shares will take place in the records of the respondent No. 2. The petitioner through her advocate's letter dated 27 November, 2007, called upon the respondent No. 2 to transfer the said shares in the name of the petitioner within a period of 15 days from its receipt. Although the respondent No. 2 duly received the said letter, they did not reply to the same. Till date, the respondent No. 1, 2 or 3 have not registered the transfer of the said shares nor did they send notice of refusal to register the same save and except the said letter dated 15 November, 2007, although they were statutorily required to do so. In the circumstances aforesaid, the petitioner is entitled to an order of this bench directing the respondent Nos. 1, 2 and 3 to register the transfer the said 1,000 shares (further sub -divided into 10,000 shares) in the name of the petitioner and pass orders accordingly.

(3.) THE respondents 1 and 2 have filed an additional affidavit dated 14.12.2010 wherein it is stated that certain relevant facts have occurred subsequent to filing of the earlier affidavit dated 16.11.2009, therefore, the present additional affidavit is filed bringing out the subsequent facts. It is stated that the present petition is barred by the law of limitation as the petitioner had for almost a period of 7 years not intimated these respondents regarding the alleged purchase of shares or that of the said shares of Rs. 10 each being in her possession as is alleged in the petition. The petitioner has not annexed to the petition copy of the contract note for the alleged purchase of shares as issued by a SEBI registered broker being in accordance with the stock exchange guidelines in proper form and as proof of payment for purchase of the said shares. The delivery challan as annexed by the petitioner does not establish purchase of the alleged shares as the said delivery challan do not bear the full name, address and SEBI registration number of the broker. The petitioner has falsely claimed that she could not lodge the shares in the year 2000 for registering the same for want of PAN card when in fact there was no requirement for a PAN card to be submitted in the year 2000 for transfer of shares. The requirement of PAN card for transfer of shares had been introduced by SEBI in the year 2009, vide Circular No. MRD/DOP/Cir -05/2009 dated 20.5.2009. The petitioner has not annexed to the petition any circular vide which she was required to submit the copy of the PAN card in the year 2000. However, without admitting the contention of the petitioner, even if she was required to submit a copy of the PAN card in the year 2000, she would have obtained the PAN card within a reasonable time from the income -tax authorities and would not have taken 7 years to obtain a PAN card. I therefore submit that the entire reason given for the delay is false to the knowledge of the petitioner. It is stated that the respondents have issued duplicate certificates to respondent Nos. 5 and 6 for 250 shares of Rs. 10 each and respondent Nos. 9 and 10 for 150 shares of Rs. 10 each in the year 2004 and 2003, respectively, after due verification and compliance of the required procedures and the same were dematerialized in the year 2004. I say that the respondent Nos. 5, 6, 9 and 10 are no longer the registered shareholders in the register of members of the respondent No. 1 company. It is further stated that in February, 2007, the respondent Nos. 7 and 8 have dematerialized 3,500 shares of Re. 1 each issued in lieu of 350 shares of Rs. 10 each against reference Folio HKS 59560, claimed to have been purchased by the petitioner. The respondent No. 13 had transferred 500 shares of Re. 1 each issued in lieu of 50 shares of Rs. 10 each in favour of Mr. Shidlingawa Nagappa Kuri in July, 2007, and the same were dematerralized by Mr. Shidlingawa Nagappa Kuri in September, 2007 and as such the respondent Nos. 7, 8 for reference Folio HKS 59560 and respondent No. 13 are no longer the registered shareholders.