Delhi District Court
Suit No.: 69/2006 (Ms.Rita Bhasin vs Canbank Fin. Services Ltd. & Ors.) Doj: ... on 24 April, 2009
Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
IN THE COURT OF SHRI VINOD YADAV:
Sr. CIVIL JUDGE-CUM-RENT CONTROLLER (WEST):
TIS HAZARI COURTS: DELHI
SUIT No.: 69/2006
Date of institution of Suit : 29.11.1996
Date of decision : 24.04.2009
IN THE MATTER OF:-
Ms.Rita Bhasin,
6, Tourist Aids Bureau,
Delite Cinema Building,
3rd Floor, Asaf Ali Road,
New Delhi - 110 002.
.....Plaintiff
Versus
1. Canbank Financial Services Ltd.,
A wholly owned subsdiary of Canara Bank,
Having its Office at:
"Uma Mahesh",
M.M Chotani Cross Road,
Mahim (West) Bombay.
2. Shri Pankaj Jain,
R/o 915, Sector-A, Pocket-C,
Vasant Kunj, New Delhi.
3. Shri Deepak Kumar Jain,
R/o 915, Sector-A, Pocket-C,
Vasant Kunj, New Delhi.
4. Shri Triloknath Makhija,
R/o E D/12, Tagore Garden,
New Delhi.
.....Defendants
Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 1 of 25
Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
SUIT FOR DECLARATION, MANDATORY INJUNCTION
AND PERMANENT INJUNCTION
J U D G M E N T:
Plaintiff claims herself to be owner of 1000 "Canstar" units (hereinafter referred to as "said units") of defendant No.1 company which is a wholly owned subsidiary of Canara Bank. It is averred that defendant No.1 deals in sale and purchase of stocks and shares on behalf of its clients as well as for itself and is a public limited company. Its shares are listed with Stock Exchange.
2. Sometimes in the month of September, 1990, defendant No.1 made a public offer of its units namely "Canstar", offering the same to the general public @ Rs.10/- per unit. In response to the aforesaid public offer, vide her application dated 13.09.1990 (Ex.PW1/D2), bearing counter foil Ex.PW1/1, the plaintiff applied for allotment of 1000 units. The plaintiff duly made payment of Rs.10,000/- to defendant No.1 in this regard.
Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 2 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
3. On 17.09.1990, the plaintiff was issued the said 1000 units by defendant No.1 (Ex.PW1/D1) bearing Certificate Nos. from 1664713 to 1664722 and bearing Distinctive Numbers from 210775621 to 210776620. However, as per plaintiff she did not receive the said certificates. Therefore, she lodged a complaint with defendant No.1 in this regard on 19.12.1995 (Ex.PW1/3).
4. However, defendant No.1 company vide its letter dated 11.06.1996 (Ex.PW1/4) informed the plaintiff that the share certificates in respect of said units were received by it with valid transfer deeds and the same were transferred in the names of concerned transferees, i.e defendants No.2, 3 and 4.
5. It is further averred that defendant No.1 vide its letter dated 16.10.1996 (Ex.PW1/5) further informed the plaintiff that they have again received some certificates in respect of some of the units in question from defendant No.3 Shri Deepak Jain and Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 3 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 defendant No.2 Shri Pankaj Jain for re-purchase of the units. It was also informed that in case the plaintiff had any objections in the subject matter, she could approach the defendant No.1 within 30 days from the receipt of the said letter, otherwise defendant No.1 shall proceed to re-purcahse some of the units, as were being offered to it by defendants No.2 and 3.
6. In response to the aforesaid two letters, plaintiff wrote back to defendant No.1 vide her letter dated nil, interalia stating therein that she was the original allottee of the aforesaid units which were never received by her and through the certificates mentioned in the aforesaid letters of defendant No.1 the said certificates were being fraudulently claimed by defendant No.1. Plaintiff even denied her signatures on the transfer deeds. She requested defendant No.1 to withhold re-payment of those certificates and further intimated defendant No.1 that she has already applied for obtaining prohibitory orders in this regard from competent court of law.
Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 4 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
7. Accordingly, plaintiff has filed the present suit, interalia asking for the followings:
(i) To pass a decree of declaration , thereby declaring the plaintiff to be owner of the said 1000 units alongwith all rights, titles and interest therein dividends, bonus and rights, issues in respect of the said units.
(ii) To pass a decree of mandatory injunction, directing defendant No.1 and other defendants to handover the said 1000 units certificates.
(iii) To pass a decree of permanent injunction directing defendant No.1 not to transfer the shares in the name of any other person other than the plaintiff.
(iv) Cost of the suit.
8. Defendant No.1 in his written statement by way of preliminary objection has stated that the plaintiff has not approached the court with clean hands as she is guilty of wilfully concealing the material particulars. It is further stated that said units were duly despatched to the plaintiff. Subsequently, in the year 1994 the said units alongwith duly filled and executed transfer deeds were received by it from defendants No.2 to 4. Since the Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 5 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 signatures of plaintiff on the transfer deeds (Ex.PW1/D3 to Ex.PW1/D6) were same as the signatures of the plaintiff in the records of defendant No.1 as also with the specimen signatures.
Defendant No.1 transferred the said units in the names of defendants No.2 to 4 in accordance with rules. It is further stated that from 17.09.1990 till the transfer of the said units in the name of defendants No.2 and 3, defendant No.1 did not receive any communication from the plaintiff with regard to non-receipt / loss of the said units by the plaintiff.
9. It is further stated that plaintiff for the first time vide her letter dated 19.12.1995 (Ex.PW1/3) which was received by defendant No.1 on 12.04.1996 informed about the alleged non- receipt of the said units. It is further stated that immediately after receipt of the aforesaid letter of the plaintiff, defendant No.1 vide its letter dated 17.04.1996 intimated the plaintiff that the said units have already been transferred in the names of the transferee parties Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 6 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 and also supplied photocopies of the transfer deeds to the plaintiff immediately.
10. It is further stated that despite receipt of the aforesaid letter of defendant No.1, the plaintiff failed and neglected to take any appropriate steps to secure her rights and interest in respect of said units. Plaintiff even failed to reply to the said letter.
11. It is further stated that in the month of October, 1996 when defendants No.2 and 3 made a request to defendant No.1 to re-sale some of the share certificates to defendant No.1 again, a letter was sent by defendant No.1 to plaintiff in this regard to which the plaintiff never replied and has instead filed the present suit.
12. On merits, it is stated that defendant No.1 is only a registration and transfer agent for Canara Bank Mutual Fund Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 7 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 (Trust), managed by Canara Bank Investment Management Services Limited and the said units pertain to the scheme of the said fund. As such, the said trust is a necessary and proper party in this suit. The said trust having not been made a party, suit is bad for non-joinder of necessary parties. It is further stated that defendant no.1 transferred the said units in the name of defendants No.3 and 4 after complying with the provisions of law.
13. Defendants No.2 and 3 in their written statement have stated that the plaintiff is wrongfully denying the transfer of some of the units to them with a view to cause wrongful loss to the said defendants. They have claimed themselves to be lawful purchasers of units which are part of said units from the plaintiff.
14. Defendant No.4 in his written statement has stated that suit of the plaintiff is barred by limitation, as the same has been filed after expiry of six years of the alleged purchase of the said Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 8 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 units by the plaintiff. Defendant No.4 has also taken similar stand as has been taken by defendants No.2 and 3, i.e plaintiff is now denying the transfer deeds made by her in favour of the defendants after receiving the due consideration.
15. With this stand of the parties, this court vide order dated 20.05.2003 framed the following issues:
(i) Whether the suit of the plaintiff is barred by limitation?
OPD.
(ii) Whether the suit of the plaintiff is without any cause of action ? OPD.
(iii) Whether the suit is bad for non-joinder of necessary parties? OPD.
(iv) Whether the suit is not maintainable, as framed ? OPD.
(v) Whether the plaintiff is entitled for decree of declaration, as prayed ? OPP.
(vi) Whether the plaintiff is entitled for decree of of mandatory injunction, as prayed for ? OPP.
(vii) Whether the plaintiff is entitled for decree of permanent injunction ? OPP.
(viii) Relief.
Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 9 of 25
Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
16. In order to prove her case, plaintiff has examined herself as PW-1 and has proved the counter foil of application form for issuance of said units bearing acknowledgement by defendant No.1 as Ex.PW1/1, acknowledgement showing allotment of said units to the plaintiff as Ex.PW1/2, her complaint dated 19.12.2005 with regard to non-receipt of the said unit to defendant No.1 as Ex.PW1/3, letter dated 11.06.1996 sent by defendant No.1 to the plaintiff as Ex.PW1/4, letter dated 16.10.1996 sent by defendant No.1 to plaintiff as Ex.PW1/5. A copy of letter dated nil sent by the plaintiff to defendant No.1, purportedly in response to Ex.PW1/4 and Ex.PW1/5 as Ex.PW1/6.
17. Whereas, defendant No.1 has examined Shri Uday V. Shanbhag, Sr.Vice President as DW-1, who has proved on record power of attorney executed by defendant No.1 in his favour to depose on its behalf as Ex.DW1/1, the original share transfer forms in respect of said units in the name of defendants No.2 to 4 has been proved on record as Ex.PW1/D3 to Ex.PW1/D6. Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 10 of 25
Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
18. I have heard Ms.Ashima, advocate, learned counsel for the plaintiff, but despite opportunities, nobody came forward to advance arguments on behalf of defendants No.1 to 3. Defendant No.4 is already "ex-parte" in the matter. I have carefully gone through the pleadings of the parties, evidence recorded in the matter and the documents proved on record. My issue wise findings in the matter are as under.
19. Issue No.1: Whether the suit of the plaintiff is barred by limitation ? OPD.
The onus to prove this issue is upon defendants. It is submitted by the learned counsel for the plaintiff that the suit is not barred by limitation. The plaintiff has filed suit on 29.11.1996, whereas the said units were transferred to defendants No.2, 3, and 4 by defendant No.1 in the year 1994. The limitation period for filing of the present suit for declaration and injunction is three years as per Article 113 of the Limitation Act. The aforesaid issue was framed by this court on a specific preliminary objection taken Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 11 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 by defendant No.4 in his written statement. During the proceedings, defendant No.4 was proceeded "ex-parte". I have gone through the pleadings in this regard. Defendant No.4 in preliminary objection No.2 of his written statement has stated that the plaintiff purchased the said units in the year 1990, but has filed the present suit only in the year 1996, without even caring for the fate of said units. Therefore, the suit is time barred. As per the case of the plaintiff, she applied for said units to defendant No.1 on 13.09.1990 vide her application Ex.PW1/D2 and as per the case of defendant No.1, the said units were issued to plaintiff on 17.09.1990 vide Ex.PW1/D1. Even plaintiff has placed on record the acknowledgement with regard to issuance of the said units to plaintiff by defendant No.1, as is clear from the perusal of document Ex.PW1/2. The case set up by the plaintiff is that she never received the said units and for the first time she made a complaint in this regard to defendant No.1 on 19.12.1995 vide her complaint Ex.PW1/3 i.e more than five years after receipt of Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 12 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 Ex.PW1/2. A careful analysis of these dates clearly and unerringly disclose that if the story of the plaintiff is believed then she herself has been negligent in prosecuting her remedy. When she has herself admitted that she received acknowledgement of issuance of said units in her name from defendant No.1 vide Ex.PW1/2 and she did not actually receive the share certificates, then she should have immediately approached the defendant No.1 for issuance of certificates to her or in case of misplacement / loss of the said units for issuance of duplicate units. This appears to have not been done by the plaintiff in this case. If we consider the case of defendants No.2 to 4, they have categorically submitted in their written statement that plaintiff had lawfully executed the transfer deeds in respect of their respective units out of the said units and now plaintiff has filed false and frivolous suit against them with a view to extort more money. Defendant No.1 has placed on record the original transfer deeds executed by plaintiff in favour of defendants No.2 to 4 which are Ex.PW1/D3 to Ex.PW1/D6. The Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 13 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 said transfer deeds were duly accepted by defendant No.1 company after comparing the signatures of the plaintiff on these documents with the specimen signatures of the plaintiff available with it on record. Therefore,it is quite apparent in the facts and circumstances of the present case that either the plaintiff was sleeping over her rights of ownership of the said units or she had validly transferred the said units in the name of defendants No.2 to 4 after taking valid consideration. The present suit filed on 29.11.1996 is, therefore, clearly time barred. This issue is accordingly decided in favour of defendants and against the plaintiff.
20. Issue No.2: Whether the suit of the plaintiff is without any cause of action ? OPD.
The onus to prove this issue is again on defendants. The case of the plaintiff is that the defendant No.1 company deals in sale and purchase of stocks and shares. In the month of September, 1990 defendant No.1 had made public offer of units Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 14 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 namely " Canstar" offering the same @ Rs.10/- per unit. The plaintiff in response to the same had applied for allotment of 1000 units (said units). Plaintiff had duly made payment towards the same to defendant No.1, but plaintiff never received the said units and in the year 1994 said units were fraudulently and illegally transferred to defendants No.2, 3 and 4 by the defendant No.1 company. Defendants No.2, 3 and 4 are in illegal possession of the said units which were bonafidely purchased by the plaintiff. The plaintiff has based cause of action in the matter on the basis of communication dated 11.06.1996 (Ex.PW1/4), communication dated 16.10.1996 (Ex.PW1/5), whereby defendant No.1 had communicated to the plaintiff that some of the units out of the said units were sought to be placed before defendant No.1 for re- purchase.
21. To see whether the plaintiff has been able to show any cause of action against the defendants for filing the present suit, we Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 15 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 will have to see whether the plaint discloses a cause of action, but whether it does or does not must be found out from reading of plaint itself. For the said purpose, the averments made in the plaint in its entirety must be held to be correct. The test is to see as to whether averments made in the plaint are taken to be correct in its entirety and a decree would be passed. The cause of action is bundle of facts which are required to be clear and proved for the purpose of obtaining relief claimed in the suit.
22. In case reported as, "2006 VI AS (Delhi) 256", titled as, "Rajiv Kumar V/s M/s Keval Cargo Carriers", Hon'ble Delhi High Court has been pleased to hold that a suit can be dismissed for non-disclosure of cause of action only if the plaint read in its entirety does not give rise to actionable cause in law. For deciding such an objection, the averments made in the plaint should be germane. They have to be considered without reference to the written statement. In fact, such objections are normally to be Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 16 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 considered without even requiring the defendant(s) in a suit to file written statement. "The cause of action has to be culled out on a conjoint reading of the paragraphs of the plaint and in conjunction with the documents filed by the plaintiff".
23. Therefore, if the case set out by the plaintiff is taken on its face value, it discloses the cause of action. Further, cause of action to file a suit is one thing and succeeding to prove the cause of action is another thing.
24. Issue No.3: Whether the suit is bad for non-joinder of necessary parties ? OPD.
The onus to prove this issue is again on the defendants. This issue was framed by this court at the stage when defendants No.2 to 4 were not parties before the court, but subsequently on an appropriate application filed by the plaintiff, defendants No2 to 4 were impleaded as parties. This issue qua non-impleadment of necessary parties, i.e defendants No.2 to 4 stands extinguished. Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 17 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
25. However, defendant No.1 in his written statement as also in his evidence has stated that plaintiff should have made Canara Bank Mutual Fund (Trust), managed by Canara Bank Investment Management Services Limited as necessary parties. I find no substance in this stand of defendant No.1 as it is apparent from the perusal of pleadings that defendant No.1 has been acting on behalf of said "trust" in sale, purchase, transfer etc of the said units. Even the entire communication in the matter is in between plaintiff and defendant No.1.
This issue is accordingly decided in favour of the plaintiff and against the defendants.
26. Issue No.4: Whether the suit is not maintainable, as framed ? OPD.
The onus to prove this issue is again on defendants. Once this court had held on issue No.2 that plaintiff has shown cause of action to file the present suit and as per the cause of action Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 18 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 shown in the plaint, the prayers for declaration and mandatory injunction are in accordance with law and, therefore, there is nothing on record to even remotely suggest that the suit as framed is not maintainable.
This issue is accordingly decided in favour of the plaintiff and against the defendant.
27. Issue No.5: Whether the plaintiff is entitled for decree of declaration, as prayed ? OPP.
The onus to prove this issue is upon the plaintiff. The plaintiff has sought a decree of declaration, thereby declaring her to be the owner of the said units alongwith all rights, titles and interests therein and dividends, bonus rights etc in respect thereof. It is very vehemently argued by the learned counsel for the plaintiff that the plaintiff never executed the transfer deeds in respect of said units in favour of defendants No.2 to 4, therefore, she has Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 19 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 denied her signatures upon the transfer deeds. It is further argued that once the plaintiff has not executed the alleged transfer deeds Ex.PW1/D3 to ex.PW1/D6, the transfer of the said units in the name of defendants No.2 to 4 is, therefore, illegal and the plaintiff is liable to be restituted the said units with all the consequential benefits accrued thereupon. I have perused the said transfer deeds and compared the signatures of plaintiff thereupon as also upon the application form Ex.PW1/D2 and also the signatures of plaintiff on the pleadings in this case. With the naked eye one can make out that the signatures of plaintiff are exactly similar. The plaintiff did not make any endeavour before this court to get her signatures on the transfer deeds examined through expert agency like CFSL. For want of such action on the part of plaintiff, a presumption arises against her that had she got the documents sent to CFSL for examination, then the report would have come against her. The plaintiff nowhere in her complaint or evidence has stated that her signatures on the transfer deeds were taken fraudulently, or Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 20 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 putting any kind of coercion, misrepresentation etc upon her. She has barely denied her signatures on the transfer deeds. A bare denial is not going to help the plaintiff in this case. In this regard reference can be had to the provisions of Section 108 of the Companies Act, 1956:
"108. Transfer not to be registered except on production of instrument of transfer:
A company shall not register a transfer of shares in, or debentures of, the company, unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee and specifying the name, address and occupation, if any, of the transferee, has been delivered to the company alongwith the certificate relating to the shares or debentures, or if no such certificate is in existence, alongwith the letter of allotment of the shares or debentures.
Provided that where, on an application in writing made to the company by the transferee and bearing the stamp required for an instrument of transfer, it is proved to the satisfaction of the Board of Directors that the instrument of transfer signed by or on behalf of the transferor and by or on behalf of the transferee has been lost, the company may register the transfer on such terms as to indemnity as the Board may think fit.Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 21 of 25
Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 Provided further that nothing in this section shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in, or debentures of, the company has been transmitted by operation of law. xxxxx"
(emphasis supplied)
28. In judgment reported as, "Vol. 111 (2002) Company Cases 590", titled as, "Bhuvneshwar Nath Nigam V/s HLL", the Company Law Board, Western Region Bench has been pleased to hold that if documents duly executed are lodged with signatures of transferor, attested by proper authority and the company finds no difference in the signatures then transferring the documents in the names of transferees by the company is neither illegal nor improper.
29. Defendant No.1 in this case has taken a very categorical stand that the transfer of the said units in the name of defendants No.2 to 4 were made by it after duly verifying the signatures of the plaintiff, i.e transferor with the specimen signatures available with Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 22 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 it on record. In her cross-examination, the plaintiff has categorically admitted that she received documents Ex.PW1/D1, i.e Certificate dated 17.09.1990 whereby the said units were allotted to the plaintiff by defendant No.1, but she denied having received any share certificates alongwith the said letter. The conduct of the plaintiff here becomes doubtful as when in Ex.PW1/D1 it has been categorically mentioned that the plaintiff is being despatched share certificates with distinctive numbers. If she had not received the same, then she should have immediately complained to defendant No.1 about the non-receipt of the said units, which as per her own case she ultimately did on 19.12.1995, i.e after more than five years. Therefore, plaintiff kept on sleeping from September, 1990 till December, 1995 about the said units and has, therefore, allowed her right to claim declaration in respect thereof in vain. She has categorically admitted in her cross- examination that she did not inform defendant No.1 about non- receipt of the share certificates in respect of the said units. Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 23 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009 In view of the aforesaid discussion, plaintiff is not entitled to equitable relief of decree of declaration in her favour. The issue is accordingly decided in favour of defendants and against the plaintiff.
30. Issue No.6: Whether the plaintiff is entitled for decree of mandatory injunction, as prayed ?
OPP.
And Issue No.7: Whether the plaintiff is entitled for decree of permanent injunction, as prayed ?
OPP.
These two issues are inter-linked and onus to prove both these issues is again on plaintiff. Once in Issue No.5 it has already been held that plaintiff is not entitled to seek declaration in respect of said units, therefore, no injunction can be issued against rightful owner of the said units, who at present are defendants No.2 to 4.
Therefore, both the aforesaid issues are also decided in favour of the defendants and against the plaintiff. Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 24 of 25 Suit No.: 69/2006 (Ms.Rita Bhasin V/s Canbank Fin. Services Ltd. & Ors.) DOJ: 24.04.2009
31. Relief:
In view of my specific findings on issues No.1 and 5 to 7, the plaintiff has not been able to make out case in her favour. The suit being devoid of merits is accordingly dismissed with no orders as to cost.
Decree Sheet be prepared accordingly. File be consigned to Record Room after compliance of usual formalities.
Announced in the open court (Vinod Yadav)
on 24.04.2009 SCJ-cum-RC (West)
Tis Hazari Courts: Delhi
Suit Dismissed (Discussed "Cause of Action" & "Sec.108 of Companies Act 1956") Page 25 of 25