Udayjeet Parkash vs S.S. Arora and Others

K.S. Gupta, J.—plaintiff has filed is 10475/97 under Order XII, Rule 6 read with Order XXXIX, Rules 1 & 2 and Section 151, CPC for passing a decree of injunction directing defendants 2 to 6 to cancel the share certificates and issue fresh share certificates in respect of the equity shares mentioned in Annexures A, B, C & D and 2100 equity shares mentioned in Annexure E and to deliver the same to the plaintiff.

Mr. Atul Jain appearing for contesting defendant No. 7 has chosen not to file any reply to the application.

I have heard the learned Counsel for the parties.

Suit was filed inter-alia alleging that the plaintiff purchased equity shares as mentioned in Annexures A, B, C & D annexed to the plaint. On 10.11.1993 defendant No. 1 agreed to disburse loan of Rs. 1.5 lacs to the plaintiff against the security of the shares as detailed in Annexure A & B of the value of about Rs. 2.5 lacs. Accordingly, the plaintiff pledged with defendant No. 2 shares as noted in both the said annexures and defendant No. 2 made payment of Rs. 1.5 lacs to the plaintiff vide cheque No. 107748 dated 10.11.1993 drawn on Grindlays Bank, Greater Kailash-I, New Delhi. Said loan was to carry interest @ 36% per annum. Again on 19.11.1993 defendant No. 1 by way of loan paid a sum of Rs. 1.5 lacs vide cheque No. 143653 dated 19.11,1993 drawn on Grindlays Bank, Greater Kailash-1, New Delhi on the plaintiff''s pleading with him the shares as mentioned in Annexures C & D. It is alleged that in or about the last week of November, 1993, plaintiff took another lot of 9,000 equity shares of defendant No. 2 as mentioned in Annexure E to defendant No. 1 for raising further loan of Rs. 3.5 lacs. Market value at mat time of the said shares was about Rs. 5.85 lacs. Since defendant No. 1 desired to advance maximum amount of Rs. 3,00,000/- against the said shares, the plaintiff opted to raise loan against them. plaintiff while returning from the office of defendant No. 1 went to Sunder Nagar Market and from there he went to his house. On reaching the house the plaintiff discovered that the folio wherein he was carrying the aforesaid 9,000 equity shares, was not with him. He made search for the folio in Sunder Nagar Market and also at the office of defendant No. 1 but to no effect. Thereafter on 7th December, 1993, plaintiff lodged a report with P.S. Nizamuddin, New Delhi regarding loss of the aforesaid shares. Defendant No. 2 was also informed about the loss. It is further alleged that by the letter dated 1.1.1994 defendant No. 2 informed the plaintiff that 6,900 shares out of 9,000 shares were received by it for transfer from Raj Kumar Khanna c/o Ark Pharma, Masjidwala, Dhall, Amina Bagh, Lucknow and the share transfer deeds in respect of those shares bear the stamp of M/s. Anil Sehgal & Co., broker. At a latter stage, it was disclosed by M/s. Anil Sehgal & Co. that 6900 shares were received by them for sale from defendant No. 1. Defendant No. 2 by another letter dated 17.1.1994 further informed the plaintiff that yet another lot of 400 shares out of 9,000 shares was lodged with it for transfer by Vinod Jain, H.K. Madan, Sushila Jain and the share transfer deeds bear the stamp of M/s. Sudhir Joshi & Associates, broker. However M/s. Sudhir Joshi & Associates refused to divulge the source from where they got the above shares. Neither defendant No. 1 nor M/s. Sudhir Joshi & Associates or M/s. Anil Sehgal & Co. had any right, title or interest whatsoever to sell/transfer the said shares. It appears that defendant No. 1 surreptitiously removed the folio containing 9,000 equity shares of defendant No. 2 when the plaintiff visited his office in the last week of 1993. Prayer clause of the plaint which is relevant reads thus,:

It is, Therefore, most respectfully prayed that this Hon''ble court may be most graciously pleased to pass a decree in favor of the plaintiff and against the defendants

(a) for the recovery of money in the sum of Rs. 5,05,000/- against the defendant No. 1;

(b) of permanent injunction against the defendants for selling, transferring, alienating or registering the equity shares mentioned in Annexures--A, B, C, D & E in favor of any person whomsoever;

(c) mandatory injunction against the defendants for delivering, issuing and allotting equity shares or duplicate thereof as the case may be as mentioned in Annexures--A, B, C, D & E to the plaint; and

(d) any other order that this Hon''ble Court may deem just and fit may also be passed".

M/s. Anil Sehgal & Co. was imp leaded as defendant No. 7 by the order dated 23.11.1994. Defendant No. 7 in the written statement has inter-alia pleaded that the plaintiff has lodged a false FIR regarding loss of shares to cheat the people after having sold the shares himself in the open market. Falsity of the plaintiff''s version is evident from the fact that he could not have lost shares on 7.12.1993 as stated by him when the shares in question Along with the signed transfer deeds were in physical possession of defendant No. 7 on 24.11.1993 having been delivered by the plaintiff himself.

Shares mentioned in Annexures A, B, C, D & E are of defendants 3, 4, 5, 6 & 2 respectively.

Section 173 of the Contract Act which is material reads thus :

"The pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise of other than the debtor promise for which they are pledged; but such contract, in the absence of anything to the contrary, shall be presumed in regard to subsequent advances made by the pawnee".

Needless to repeat that in the plaint itself the plaintiff has admitted of his having pledged with defendant No. 1 the shares as mentioned in Annexures A & B on 10.11.1993 in lien of having received a sum of Rs. 1.5 lacs through a cheque. He has further admitted of having pledged the shares as noted in Annexures C & D with defendant No. 1 on 19.11.1993 in consideration of his having received Rs. 1.5 lacs by way of loan through a cheque. Admittedly, said loan amounts together with interest have not been repaid by the plaintiff to defendant No. 1 so far. Thus, under aforesaid Section 173, defendant No. 1 continues to have a lien over the shares noted in Annexures A, B, C & D.

Out of 9,000 equity shares as noted in Annexure E, plaintiff is seeking direction to defendant No.2 to cancel and issue fresh share certificates only in respect of 2,100 shares. These are the shares which were not sold through defendant No. 7. It may be noticed that in paras 12 & 19 of the plaint it is stated that by the letter dated 17.1.1994, defendant No. 2 informed the plaintiff that 400 shares out of said 9,000 shares were lodged with defendant No. 2 for transfer by Vinod Jain, H.K. Madan, Sushila Jain and the share transfer deeds in relation to these shares bear the stamp of M/s. Sudhir Joshi & Associates, broker. For the reasons best known to the plaintiff he has not imp leaded any of the said persons as a party to the suit. Further, in view of the plea referred to above taken by defendant No. 7 in the written statement, version of the plaintiff regarding loss of 9,000 shares of defendant No. 2 for which FIR was lodged by him with the police, is yet to be tested by the Court. In the facts and circumstances of the case, plaintiff cannot be granted the reliefs as claimed in the I A.

Dismissed.