Delhi High Court
Dayal D. Shahdadpuri vs C.N.A. Exports Pvt. Ltd. & Ors. on 3 January, 2013
Author: Manmohan Singh
.* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: January 3, 2013
+ I.A. Nos.4985/11, 8812/11 & 16842/11 in CS (OS) No.118 of 2007
Dayal D. Shahdadpuri ..... Plaintiff
Represented by: Mr. Sujoy Kumar, Adv.
versus
C.N.A. Exports Pvt. Ltd. & Ors. .... Defendants
Represented by: Mr. Sandeep Sethi, Sr. Adv. with
Mr. Suresh Singh & Mr. Rajat Navet,
Advs. for D-1 to D-4.
Ms. Tara V. Ganju, Adv. for D-5.
Mr. Amit Sibal, Adv. with Ms. Ferida
Satarawala, Adv. for D-6.
Mr. Vivek Sharma, Adv. with
Ms. Mamta Gautam, Adv. for D-7.
AND
I.A. No.737/2011, I.A. No.16086/2009 & I.A. No.12310/2010 in
CS(OS) No. 556 of 2008
Smt. Jamna Datwani And Anr. ..... Plaintiffs
Represented by: Ms. Tara V. Ganju, Adv. with
Ms. Aruna Jain, Ms. K. Sinha &
Mr. Amjid Maqbool, Advs.
versus
Sh. Anand Datwani & Ors. ..... Defendants
Represented by: Mr. Sandeep Sethi, Sr. Adv. with
Mr.Rajat Navet, Adv. for D-1.
CS(OS) No.118/2007 & CS(OS) No.556/2008 Page 1 of 48
Mr. Vivek Sharma, Adv. for D-2.
Mr. Amit Sibal, Adv. with Ms. Ferida
Satarawala & Ms. Rachna Saxena,
Advs. for D-3.
Ms. Shikha Bhardwaj, Adv. for D-4.
Mr. Kanwal Chaudhary, Adv. for D-5.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Plaintiff Dayal D.Shahdadpuri has filed the suit, being CS(OS)
No.118/2007, inter alia, mainly in respect of his 2500 shares in defendant
No.1 company. He has claimed the shares to be bought by him from Nitya
Bharaney for consideration of US$6000 pursuant to RBI permission granted
in the month of May, 1999. The relief of declaration and injunction is also
sought to the effect that the plaintiff is the owner of the said shares. The
plaintiff has further prayed that defendants No.1 to 4 may also be restrained
from denying him his ownership rights in respect of the said shares or from
alienating the two immovable properties belonging to the defendant No.1
Company.
2. The defendant No.1 is a private limited company. Defendants No.2, 6
and 7 are real brothers and defendant No.5 is their widowed mother. The
patriarch of the family passed away in 2004. There is also a married
daughter, Mrs.Nitya Bharaney. The plaintiff is the husband of the only
sister of the father of defendants No.2, 6 and 7.
3. The defendants No.1 to 4 are the only contesting defendants who have
filed the written statements. Primarily, in the written statement, the defence
of the defendants No.1 to 4 is essentially predicated on the allegation that the
plaintiff was allegedly never a share holder of the defendant No.1. It is
further alleged by these defendants in their written statement that in March,
1998 the other brothers and sister i.e. Mr.Janak Datwani, Mr.Kishin Datwani
and Mrs.Nitya Bharaney had allegedly transferred their respective shares of
the defendant No.1 to the mother Mrs.Jamna Datwani vide the alleged
transfer deeds and the mother had allegedly earlier in January, 1998 gifted
the shares of these brothers and sisters to Mr.Anand Datwani i.e. defendant
No.2 who also in his written statement has further alleged and claimed that
the share capital of the defendant No.1 was increased and allotted to the
defendant No.2. The plaintiff has not stated as to how he became the owner
of 2500 shares of defendant No.1 Company of which the plaintiff is
claiming himself to be one of the original allottees. The stand of the
defendants No.5 and 6 is that they are supporting the plaintiff in the present
suit and have consciously chosen not to file their written statements.
4. Defendant Nos.2, 6 and 7 are real brothers and defendant No.5 is their
widowed mother. Mrs.Nitya Bharaney is the sister of defendants No.2, 6
and 7 and daughter of widowed mother Mrs.Jamna Datwani. The dispute in
other two suits; one filed by Mrs.Jamna Datwani, being CS(OS)
No.556/2008, and second suit filed by Sh.Janak Datwani, being CS(OS)
No.113/2007, revolves to the shareholding of the company M/s.CNA
Exports Pvt. Ltd. (hereinafter referred to as "CNA" or "the Company"),
which was acquired and owned by late Sh.Jamna Dass Datwani, husband of
Mrs. Jamna Datwani and father of Sh.Anand Datwani, Sh.Kishin Datwani,
Sh.Janak Datwani and Mrs.Nitya Bharaney. In the suit filed by Mrs.Jamna
Datwani they are arrayed as defendants No.1 to 4 and the remaining
defendants i.e. 5 to 11 are other shareholders and associates.
5. The third suit as mentioned was filed by Sh.Janak Datwani on
30th May, 2007, being CS(OS) No.1113/2007, seeking a declaration that he
is 13.33% shareholder of C.N.A. and again sought injunction order(s)
against the immovable properties of C.N.A. The Court did not pass any
injunction order against the properties of C.N.A., except it was observed on
31st May, 2007 that C.N.A. was only entering into a joint venture agreement
for development of Gurgaon property. However, an order was passed that
any agreement between C.N.A. and any third party would be subject to
orders of this Court. He also filed another suit against 13 defendants
including his brother Anand Datwani and company, being CS(OS)
No.1798/2011, seeking a decree of declaration that the Joint Development
Agreement dated 23rd October, 2007 signed by Pacifica Infrastructure
Company Pvt. Ltd. and the company C.N.A. through Anand Datwani and
Rakesh Israni is illegal, invalid, fraudulent, void ab initio and a nullity apart
from other relief claimed in the suit.
6. The common facts which are gathered from the pleadings of the
parties in the three suits are that the CNA was incorporated by Mr.Ramesh
Nanikram Savlani and Mrs.Sushma Ravidass. In 1976 Mr.Jamna Dass
Datwani (hereinafter referred to as father) acquired a company in Paris
known as Nitya S.A.R.L, Paris (hereinafter referred to as Paris Company)
with 100% shareholding.
7. In the year 1978 Mr.Jamna Dass Datwani, father, took over the
Company. Authorized share capital increased to `15,00,000/-. The majority
equity shareholders were family members of Mr.Jamna Dass Datwani
(father); Mrs.Jamna Datwani (wife)-22.7%, Mr.Kishin Datwani (son)-
13.33%, Mr.Janak Datwani (son)-13.33%, Mr. Anand Datwani (son)-
13.33% and Mrs.Nitya Bharaney (daughter)-22.21%. The other shareholders
were Mrs.Sushma Ravidass (13.33%) and Mr.Tikamdass Moolchandani and
J.B. Overseas (1.77%). On 27th October, 1978 the company bought 24200
sq.yds. in Sector 18, Gurgaon.
8. In November, 1981 Mr.Jamna Dass Datwani transferred 90% shares
in Nitya S.A.R.L. France to his son, Mr.Janak Datwani, who had been sent
to France to look after the business there. The father also asked Mr.Janak
Datwani in the year 1985 to pay profit of the Paris Company. As per
defendants No.1 and 2, Janak Datwani entered into written agreement with
father and agreed to pay him US$ 75000 per year with 10% increase every
year.
9. On 25th September, 1986 the father bought residential property No.6,
Friends Colony (West), New Delhi in the name of following persons:
a. Mrs. Jaskirat Datwani (then w/o Janak Datwani) 38%
b. C.N.A. 38%
c. Mr. Ramesh Datwani 24%
10. Till July, 1988, there were only two Directors in C.N.A., namely,
Mrs.Jamna Datwani and Sh.P.K.Ghose. Janak Datwani appointed as one
Director of C.N.A. No business was carried in the said company since 1990.
On 9th October, 1990 Mr.Anand Datwani was appointed as Director.
11. Earlier on 21st October, 1988 Janak Datwani and P.K.Ghose then
appointed Mrs. Maria Elizabeth Singh and her daughter Ms.Bhagwanti
Singh as Addl. Directors of C.N.A. P.K.Ghose resigned on 21 st October,
1988 itself. Mrs. Maria Elizabeth Singh is the first cousin of Mrs.Jaskirath
Datwani, the then wife of Janak Datwani.
12. As disputes arose between the father and Janak Datwani because
Janak Datwani did not honour agreement dated 24th February, 1986 and he
had also taken over the management and control of C.N.A., the father made
Janak Datwani to agree for arbitration to settle their disputes but the disputes
could not be resolved despite of arbitration award and criminal complaints.
However, the father in November, 2010 was able to get back control of
C.N.A. from Janak Datwani and his associates and once again parents took
over control of CNA.
13. Janak Datwani, as Manager of Paris company filed CS (OS) No.4061
of 1991 against CNA for recovery of `53,46,982.18/- before this Court and
was granted ex parte injunction order first against performance quota of
CNA and thereafter against its immovable properties. CNA made a
statement in August, 1992 before this Court in suit No.4061/1991 that it will
not sell its 38% share in Friends Colony property to secure the suit amount.
CNA through the then Managing Director, Mrs.Jamna Datwani filed its
written statement in CS(OS) No.4061/1991.
14. Mrs.Jamna Datwani filed a partition suit in this court being C.S.(OS)
No.111/1993 in respect of property No.6, Friends Colony (West), New
Delhi seeking separation of 38% share of CNA.
15. The case of Anand Datwani is that on the asking of and as per desires
of Mr. & Mrs.Jamna Datwani, their children, Janak, Kishin and Nitya
executed gift deeds for their respective shareholding in CNA in favour of
Mrs.Jamna Datwani. The father signed the gift deeds as a witness. Nobody
has disputed the signatures of the father on the said gift deeds till date and
as per desire of Mr. and Mrs.Jamna Datwani, Ms.Sushma Ravidass and
Tikamdas K. Moolchandani on 12th January, 1988 executed gift deeds with
respect to their shareholding in CNA in favour of Anand Datwani. The
father also signed the said gift deeds as witness. Nobody is disputing
signatures of the father on the gift deeds and on 23rd March, 1998 Janak
Datwani, Kishin Datwani and Mrs. Nitya Bharaney executed transfer forms
transferring their shares in favour of Mrs.Jamna Datwani. Ms.Sushma
Ravidas and Tikamdas K.Moolchandani also executed transfer forms
transferring their shares in favour of Anand Datwani. Mrs.Jamna Datwani
then executed transfer forms transferring her entire shareholding including
those transferred to her by Janak Datwani, Kishin Datwani and Ms.Nitya
Bharaney. The said transfers were duly approved by the Board of CNA in
its meeting of the same date. Mrs.Jamna Datwani was also present in the
said meeting and duly signed the minutes of the said Board meeting. Thus,
he became more than 99% shareholder of CNA.
16. The case of Dayal D.Shahdadpuri, plaintiff in CS(OS) No.118/2007,
is that on 27th May, 1991 RBI gave permission to Nitya Bharaney to sell her
shares i.e. 22.21 in the company to him. It is alleged by him that on 1st June,
2001 Mr. & Mrs.Jamna Datwani, the three sons, Anand, Kishin and Janak
executed gift deeds transferring their respective 1/4th share in 71, Golf Link,
New Delhi to Ms.Nitya Bharaney and her husband Mr.Mahesh Bharaney.
On 14th June, 2001, Tikamdass K.Moolchandani passed away. Mr.Anand
Datwani, defendant No.2 in his suit, on 4th December, 2001 resigned as
Director of defendant No.1. In the Board meeting held on 12th July, 2004,
Nitya Datwani and Kishin resigned from the Board. In the year 2003,
matrimonial disputes arose between Janak Datwani and his wife, which
resulted in a divorce. The ex-wife of Janak Datwani namely Mrs.Jaskirat
Datwani filed a partition suit i.e. CS(OS) No.698/2003 claiming separation
of her 38% share in 6, Friends Colony property.
17. On 11th January, 2004 the said defendant No.2 in the Annual Returns
for the year 2004 as being appointed as Director in the same month, the
father suffered a congestive heart failure and got bedridden. Mrs.Jamna
Datwani on 2nd February, 2004 resigned from directorship of C.N.A.
because of serious illness of Mr.Jamna Dass Datwani. The Board of
Directors of C.N.A. accepted resignation of Mrs.Jamna Datwani and
appointed Mr.Hira Datwani as a Director of C.N.A. Mr.Jamna Dass, the
father passed away on 9th July, 2004. During the period of September, 2004
to 2009 Mrs.Jamna Datwani resided with her son Janak Datwani, defendant
No.6 at 6, Friends Colony West, New Delhi. In the year 2005, a preliminary
decree was passed in CS(OS) No.648/2003 and final decree was passed on
17th April, 2007 dividing the property i.e. 6, Friends Colony (West) by metes
and bounds as per plans Mark X and Y submitted by the Local
Commissioner.
18. On 31st August, 2005 Annual Return for the year 1997-1998 was filed
with the Registrar of Companies by Anand Datwani. As per this Return,
transfer of 5,500 shares were shown transferred from Janak, Nitya and
Kishin to Anand Datwani and another 2555 from Jamna Datwani = 8055
shares, and Annual Returns for 1998 to 2004 (all submitted together).
19. In reply, it is the case of Anand Datwani, defendant No.2 that
defendant No.6 Janak Datwani, illegally and without any authority, forged
and fabricated a resolution dated 19th October, 2005 without any actual
meeting of shareholders and allegedly gave authority to Mrs.Jamna Datwani
to gift/transfer 38% share of C.N.A. in 6, Friends Colony property to
M/s In Exports Pvt. Ltd. On the other hand, it is alleged by the defendant
No.6 that the said EGM was called by shareholders whereby all the
Directors except defendant No.2 who was absent. It is stated by defendant
No.2 that Janak Datwani had also illegally and without any authority
allegedly passed another resolution in an alleged EGM purportedly held on
10th January, 2006, without giving any notice to Anand Datwani wherein
Mrs.Jamna Datwani was allegedly appointed as Managing Director of
C.N.A. and his three employees as directors of C.N.A. Thus, Janak Datwani
adopted the same modus operandi to illegally take control of C.N.A. as was
adopted by him in 1988.
20. The defendant No.6 Janak Datwani moved I.A. No.12478/2006 on
10th November, 2006 in Suit No.4061/91 seeking an injunction order against
the Gurgaon property of C.N.A. and was granted ex parte injunction (status
quo) order against the said property. In December, 2006, C.N.A. moved
I.A.No.13967/2006 under Order XXXIX, Rule 4 CPC in CS(OS)
No.4061/1991 for vacation of injunction order dated 10th November, 2006.
The defendant No.2 duly represented the defendant No.1. Injunction was
modified by order dated 28th May, 2007 on deposit of `50 lac (principal
amount) in Court. The interim order in Gurgaon was vacated. However, the
same was continued towards Friends Colony property.
21. On 19th January, 2007, Mr.Dayal D.Shahdadpuri filed the present suit
against the defendant No.1 Company and others for declaration praying that
he be declared as allottee shareholder of C.N.A. to the extent of 2500 equity
shares of C.N.A. in place of Nitya Bharaney. On the basis of this averment,
ex parte injunction order against both the properties of C.N.A. was passed
on 22nd January, 2007 included no third party rights to be created.
22. Pacifica Infrastructure Ltd. sent Letter of Intent proposing certain
terms for development of Gurgaon property on 29 th March, 2007. The
C.N.A. filed an application for vacation of the interim order dated
22nd January, 2007 being I.A. No.3014/2007 which was vacated by order
dated 14th May, 2007 though an affidavit of Ms.Nitya Datwani on 10th April,
2007 was filed wherein it was disclosed that she had purportedly transferred
her 2500 shares of C.N.A. to Dayal D. Shahdadpuri in 1999 and since then
she had not exercised any rights as a shareholder of C.N.A. and that she had
been left with no right or interest in the said shares.
23. In the written statement filed by Anand Datwani on 28th May, 2007 in
CS(OS) No.118/2007 it was stated for the first time that the shares of the
company have been allegedly transferred to him through purported gift
deeds/share transfers and he has become the majority shareholder (99%).
24. On 23rd October, 2007 a Joint Development Agreement was entered
into between C.N.A. Exports and Pacifica Infrastructure Company Pvt. Ltd.
for development of an IT Park on the Gurgaon property. It is the case of
defendant No.6 that defendant No.2 had received `21 crores. In the
beginning of 2008, structure of Gurgaon property was demolished. In the
meanwhile, it was alleged that Dayal D.Shahdadpuri transferred his
shareholding to Janak Datwani vide a Gift Deed.
25. On 25th March, 2008, a suit, being CS(OS) No.556/2008, for
injunction and declaration was filed by Jamna Datwani and C.N.A. against
eleven defendants. The defendant No.2 Anand Datwani alleged that it was
got filed by defendant No.6 in the name of his mother. Mediation between
the parties failed. Order of dismissal of I.A. No.6945/2007 in CS(OS)
No.118/2007 and I.A. No.3735/2008 in CS(OS) No.556/2008 for interim
protection on the properties of the Company was passed on 5th May, 2008
which was challenged in appeal.
26. The appeal was filed by Mrs.Jamna Datwani being FAO(OS)
No.253/2008 against order dated 5th May, 2008 passed in I.A. No.3735/2008
in Suit No.556/2008 on the ground that injunction application has been
decided even without reply of the defendants in the said application. The
Division Bench had set aside the order dated 5th May, 2008 and
remanded back the injunction application to this Court for fresh decision in
I.A.No.3735/2008 in CS(OS) No.556/2008
27. Defendant No.6 on 10th February, 2009 had also filed FAO(OS)
No.303/2008 against the order dated 5th May, 2008 in I.A. No.6945/2007 in
Suit No.1113/2007. Since the order dated 5th May, 2008 passed in Suit
No.556/2008 had already been set aside and the matter had been remanded
back for fresh consideration, the Division Bench also remanded back for
hearing the above said application afresh.
28. All the three matters thereafter were listed before the learned Single
Judge on various dates i.e. 18th March, 2009, 20th May, 2009, 30th April,
2009 and 20th May, 2009 for further consideration in view of the order
passed by the Division Bench. The following common orders in para 1 were
passed on 20th May, 2009 by the learned Single Judge:
"1. Pursuant to the earlier orders for sending the
documents to CFSL, the counsels have handed over the
three draft letters to be addressed to the CFSL. No
objection to the said draft letters is raised by any of the
counsels. However, it is pointed out that the documents
which have been collected pursuant to the earlier orders,
for sending to the CFSL are required to be marked in
terms of the said letters. The matter be listed before the
Joint Registrar on 27th May, 2009 for the purposes of the
marking of the documents to be sent to the CFSL (CBI).
The Registry to thereafter immediately dispatch the
letters as approved by the counsels along with the
documents to the CFSL (CBI) with a request to submit
the report within 30 days of the receipt of the documents
with the CFSL (CBI) and to seek extension of time
giving reasons if the report cannot be submitted within 30
days.
29. The signatures of Mrs.Jamna Datwani, Kishin Datwani and
Mrs.Nitya Bharaney on gift deeds dated 10th January, 1998, transfer forms
dated 23rd March, 1998, Minutes of Board Meeting dated 23rd March, 1998
and Annual Returns for the years 1998 to 2002 were sent to CFSL for
comparison in the month of August, 2009. The report was received on
17th September, 2009.
30. In the meanwhile, Dayal D. Shahdadpuri, plaintiff in CS(OS)
No.118/2007, after a period of more than three years, filed his replication
taking different stands from his plaint by stating that he was not an original
allottee, but had purchased 2500 shares from Nitya Bharaney purportedly in
1999. He further stated that he was the owner of 2500 shares of C.N.A. On
18th February, 2011, he also filed an application under Order 1, Rule 10 CPC
in CS(OS) No.118/2007 being I.A. No.2822/2011 for impleading Nitya
Bharaney as a defendant in the suit.
31. The defendants No.1 & 2 filed an application under Order 10 CPC
being I.A. No.4985/2011 dated 10th March, 2011 in CS(OS) No.118/2007
seeking directions that the statement of Dayal D.Shahdadpuri be recorded to
ascertain the exact nature of his case as according to defendants No.1 and 2,
there are contradictions in the stand taken by the plaintiff in plaint and in the
replication filed after the expiry of three years.
32. Thereafter, the plaintiff filed an application under Order VI, Rule 17
CPC being I.A. No.8812/2011 seeking to amend his plaint, including an
amendment that he had gifted his 2500 shares to defendant No.6 in
March, 2008 itself.
33. Learned counsel appearing on behalf of the parties made their
submissions in various applications pending in the two suits. However, later
on, they agreed that at the first instance the three applications filed by the
parties in CS(OS) No.118/2007; (a) I.A. No.4985/2011 filed by defendant
Nos.1 to 4 under Order X Rule 2 read with Section 151 CPC, (b) I.A.
No.8812/2011 filed by the plaintiff under Order VI Rule 17 read with
Section 151 CPC, and (c) I.A. No.16842/2011 filed by the defendant No.6
under Section 151 CPC, as well as in the three applications filed by the
parties in CS(OS) No.556/2008, i.e. (i) I.A. No.737/2011 filed by defendant
No.3 under Order XXIII, Rule 1A CPC, (ii) I.A. No.16086/2009 filed by
plaintiffs under Order XXIII, Rule 1 CPC and (iii) I.A. No.12310/2010 filed
by the plaintiffs under Order XXIII, Rule 1 CPC, be decided. The remaining
pending applications in CS(OS) No.556/2008 are kept for consideration on
29th January, 2013.
34. Firstly, I shall take up the three applications filed in CS(OS)
No.118/2007.
I.A No.8812/2011
35. The above mentioned application is filed by the plaintiff seeking to
amend the plaint in order to give detailed particulars as to how and from
whom he acquired the ownership of 2500 shares of the defendant No.1
which are inter alia the subject matter of the present suit. The plaintiff is
seeking to delete existing para 5 of the plaint and substitute it with the new
para 5 followed by additional paras5-A to 5-G to be incorporated in the
amended plaint. The paras sought to be incorporated by way of amendment
reads as under:
"5. The Plaintiff purchased 2500 shares of Defendant
No.1 Company from Mrs. Nitya Bharany, wife of Mr.
Mahesh Bharany, and daughter of Defendant No.5 herein
and also sister of Defendant No.2, 6 and 7 for a total
consideration of US Dollars 6000.
5-A. The Reserve Bank of India in terms of its letter
dated 27th May, 1999 granted approval of transfer of
2500 shares of Defendant No.1 by Mrs. Nitya Bharany to
Plaintiff herein. The Plaintiff paid the consideration of
US Dollars 6000 toward the purchase of the said 2500
shares of Defendant No.1 which is further evidenced by
the Advice issued by UCO Bank, Hongkong dated July 8,
1999.
5-B. In her written statement filed in Suit No.556 of
2008 Mrs. Nitya Bharany has unequivocally admitted
and acknowledged that she had sold her 2500 shares in
the Defendant No.1 to the Plaintiff and that the Reserve
Bank of India had granted approval for the transfer in
terms of the letter dated 27th May, 1998. She has
acknowledged the receipt of US Dollars 6000 from the
Plaintiff and the payment by the Plaintiff to her is the
evidenced by letter dated 8th July, 1999 sent by the
Plaintiff to Mrs. Nitya Bharany as also the Bank Advice
of UCO Bank Hongkong dated 8th July, 1999.
5-C. In the said Suit no.556/2008, the statement of Mrs.
Nitya Bharany was recorded on oath on November 16,
2010, wherein she reiterated her admission that she had
filed the written statement in that Suit as well as in
affidavit and admitted her signatures on both the written
statement and the affidavit which were exhibited as
Exhibit CW1/A and CW1/B respectively. Mrs. Nitya
Bharany categorically on oath admitted the sale of her
2500 shares to the Plaintiff herein, while further stating
that she wanted to protect the interest of the Plaintiff.
5-D. It is thus evident that he Plaintiff legally and
validly acquired ownership of 2500 shares of defendant
No.1 having purchased the same from Mrs. Nitya
Bharany. It is significant to mention that it is an admitted
fact that Mrs. Nitya Bharany did own 2500 shares, that is.
22.21 % of the shareholding, of Defendant No.1.
Consequently, after she sold the said shares to the
Plaintiff, the Plaintiff acquired the right, title, ownership
of the said 3500 shares (22.215) of the defendant No.1.
5-E. It is also a matter of record, that in the same Suit
being CS(OS) No.556/2008, the purported signatures of
Mrs. Nitya Bharany on the purported share transfer
instrument allegedly transferring her shares to her
mother, Defendant No.5 herein, and as submitted by
Anand Datwani, defendant No.2, was found to be
imitated and thus forged by a report given by CFSL dated
17.09.2009. Subsequently Defendant No.5 in collusion
with Defendant No.2 sought to withdraw the suit, being
CS(OS) No.556/2008.
5-F. The plaintiff states and submits that the Defendant
No.1 to 4 have been illegally and wrongfully disputing
and denying the plaintiff‟s shareholding of 2500 shares
of the Defendant No.1 as has been stated in detail
hereinafter. IT may be pertinent to state that the Plaintiff
has since gifted, out of natural love and affection, his
2500 shares (22.21%) of the Defendant No.1, which he
had purchased from Mrs. Nitya Bharany, in favour of the
Defendant No.6 herein i.e. Mr. Janak Datwani, vide Gift
Deed dated March 8, 2008. It may be noted that the said
transfer was subsequent to the institution of the present
suit. The Plaintiff had assured Defendant No.6 that once
the ownership of 2500 shares held by the Plaintiff is
formally recorded in the Records of the Defendant No.1,
the Plaintiff would put on record the said Gift Deed. In
any event, the ownership and rights of the Plaintiff in the
said 2500 shares (22.21%) stand assigned, created and
devolves on the defendants No.6.
5-G. However, recently Defendant No.2 and Defendant
No.5, on being instigated by the Defendant No.2, had
approached the Plaintiff and have been harassing,
pressurizing and intimidating him to withdraw the
present Suit or otherwise act contrary to the interest of
the Defendant No.6 herein. The Defendants Nos. 2 and 5
recently visited Hongkong and personally attempted to
put pressure and intimidate the Plaintiff to withdraw the
present Suit and instead transfer his 2500 shares to either
of them. The Plaintiff accordingly considers it
appropriate to bring on record at this stage the Gift Deed
and all subsequent events since he purchased the shares
from Mrs. Nitya Bharany."
36. The learned counsel for the plaintiff submits that there were some
errors in para 7 of the plaint also while stating the names of the Directors of
the defendant Company, appointed in the EGM held on 10th January, 2006.
Thus the plaintiff seeks to amend para 7 to include the incorrect names of
the Directors. The new para 7 reads as under:
"7. It appears that sometime after the death of Mr.
Jamna Datwani taking advantage of the fact that none of
the other shareholders were living in India Defendant
No.2, who was in actual physical possession of all the
documents, statutory records including the Original Share
certificates of the Plaintiff, started being secretive about
the whole affairs of the Defendant No.1 Company. The
Plaintiff were never sent or shown even the Balance
Sheet and other accounts of the Defendant No.1
Company nor any notice of any Shareholder meeting
including Annual General Meeting or any Extra General
Meeting was ever sent and /or received by the Plaintiff as
a Shareholder of the Defendant No.1 Company. Plaintiff
also reliably learnt that Defendant No.2 is likely to even
sell the valuable Property of the Defendant company
which is worth about Rupees 100 crores and is likely to
misappropriate the proceeds thereof. On the other hand
the Company‟s liabilities including statutory liabilities
were not being discharged. In these circumstances, on
18.10.2005 the plaintiff and other shareholders
requisitioned an Extraordinary General Body Meeting
(for short hereinafter referred to as EGM) meeting in
terms of Section 169 of the Companies Act. It is stated
that subsequently a notice dated 09.12.2005 were issued
to all the shareholders convening the EGM on
10.01.2006. On 10.01.2006, a resolution came to be
passed. It is stated that by the said resolution inter alia
appointing defendant No.5 as the Managing Director and
four other Directors on the Board of Directors of the
Defendant Company to look after the interests of the
Defendant Company. That in the above EGM the
following persons were appointed as the Directors of the
Defendant Company namely:
i. Mrs. Jamna Datwani
ii. Mr. Venu Gopal
iii. Mr. Sudershan Kumar
iv. Mr. I.M. Kachroo
v. Mr. Gopi Chand.
The said resolutions were passed by unanimously by all
the shareholders except the defendant No.2 who was not
present in the said meeting."
37. The plaintiff also wants to amend the existing para 10 of the plaint
consequent upon the gift and assignment of his 2500 shares to defendant
No.6. The substitute para 10 reads as under:
"10. The Plaintiff categorically states that the plaintiff
never sold and/or transferred any of his shares of the
defendant No.1 company to Defendant No.2 or any other
entity, prior to filing of the present suit, except that, after
the filing of the present suit the Plaintiff has gifted his
said 2500 shares to the defendant No.6."
38. The plaintiff is also seeking to add and incorporate and additional
relief after the existing prayer clause "g" which would be clause "h" and the
existing clause "h" will become clause "i". The said clause "h" reads as
under:
"h. pass a decree of mandatory injunction directing the
Defendant No.1 and/or its directors, company secretary
and officers etc. and the defendants No.2 and 5 to register
and record the name of the Plaintiff as owner of 2500
shares of defendant No.1 which were earlier in the name
of Mrs. Nitya Bharany, previously known as Ms. Nitya
Datwani, and to make necessary corrections to this effect
in the Register of shareholders and Register of Members
of Defendant No.1 Company and hand over the original
or duplicate share certificates in respect thereof to the
plaintiff who will hand over the same to the defendant
No.6 and/or in the alternative to register and record the
said 2500 shares purchased by the plaintiff from Mrs.
Nitya Bharany in the name of the defendant No.6, Mr.
Janak Datwani, in the register of shareholders and
register of Members of the defendant No.1 and hand over
the share certificate of these 2500 shares directly to the
defendant No.6 and make all consequential corrections in
the records of the defendant No.1, including cause all
corrections to this effect to be made in the record of the
concerned Registrar of Companies, Delhi."
39. Further, in view of the additional prayer "h" the plaintiff seeks to
amend the existing para 18 of the plaint relating to the valuation of the suit.
The amended para 18 would read as follows"
"18. The suit is value for the purpose of Court Fee and
jurisdiction as under:
Reliefs Valuation for Valuation for Court Fee
Jurisdiction Court Fees
(a) 25,00,000/- 25,00,000/- 26,744/-
Each of
(b to h) 200/- 200/- 140/-
----------------------------------------------------------------------
Total J.V. 25,00,000/- 25,00,000/- 26,844/-
----------------------------------------------------------------------
The requisite court fee has been paid.
It is stated that the valuation of the suit is within the
pecuniary jurisdiction of this Court and hence, this Court
is competent to try and entertain the present suit."
40. It is argued by the plaintiff that the proposed amendments are
necessary for proper adjudication of the suit. The suit is still at an early stage
and the issues have not been framed either in the present suit or in the other
two suits. It is also stated that no prejudice would be caused to the
defendants if the proposed amendments are allowed as the proposed
amendments are only explanatory in nature only for the purpose of giving
better particulars regarding the manner in which the plaintiff acquired the
ownership of the shares in question.
41. The amendment is opposed by defendants No.1 to 4. It is argued by
their counsel by way of the present application and the proposed
amendments herein, the plaintiff is trying to set up a new case and substitute
the action originally pleaded in the suit with another cause of action which is
totally different from the earlier cause of action. It is the plaintiff‟s own case
that he purchased 2500 shares from Mrs. Nitya Bharaney in November,
1998. But, till 2006 the plaintiff did not claim any right, title or interest in
the said shares and only in November, 2006 the plaintiff requested the
defendant No.1 to issue a duplicate share certificate in respect of the said
shares. The defendant No.1 Company vide letter dated 1st December, 2006
informed the plaintiff that he was never its shareholder and his name does
not appear in the Register of Members and thus, declined his request for the
duplicate share certificate. Further, it is stated that the alleged claim of the
plaintiff seeking ownership right in the said shares on the basis of the
alleged transfer in November, 1998 has already become time barred on the
date of filing of this suit in January, 2007.
42. The defendants have also stated that the plaintiff knowing well that he
was never a shareholder of defendant No.1 and that his name does not
appear in the list of shareholders of defendant No.1, dishonestly fabricated a
false list of the shareholders of defendant No.1 Company and made false
averments in the plaint only to get an ex-parte injunction order against
defendant Nos.1 and 2 and even succeeded in getting the same. The said
ex-parte injunction order against defendant Nos.1 and 2 was vacated by this
court vide order dated 14th May, 2007, and , nearly four years later, the
plaintiff is trying to plead a new cause of action by substituting para 5 of the
original plaint with the new paras.
43. According to the defendant Nos. 1 to 4, in January, 1998, Mrs.Nitya
Bharaney had gifted her 2500 shares of defendant No.1 to her mother
Mrs.Jamna Datwani and also executed a transfer in favour of her mother in
March, 1998. Thus, in March, 1998 Mrs.Nitya Bharaney had divested with
her rights in the said 2500 share, therefore she could not have legally sold
the said shares to the plaintiff in November, 1998. As per the law (FERA)
prevailing at the relevant time, Mrs.Nitya Bharaney and the plaintiff, both
were required to take permission from the Reserve Bank of India for transfer
of the said shares, allegedly Mrs.Nitya Bharaney applied to RBI and was
granted the alleged approval on 27th May, 1999 which was an approval in
principal only and she was further required to take the final approval on
submitting certain documents but, she did not take any such steps. The
plaintiff, on the other hand, did not even apply for the said permission.
44. The statement of Ms.Nitya Bharaney was recorded by this Court on
16th November, 2010 which reads as under:
"I have done my post-graduation in International
Relations. I am aware that I am impleaded as defendant
No.4 in the suit bearing No.556/2008 titled Smt. Jamna
Datwani & Anr. Vs. Sh. Anand Datwani & Ors. I have
seen the written statement filed in the suit which is
Ex.CW-1/A and the same bears my signatures at points
„1‟, „2‟ and „3‟. Along with the written statement I have
filed a photocopy of the affidavit sworn by me. I have
seen the original of this affidavit which is filed in the suit
bearing CS(OS) No.118/2007 titled Dayal D.
Shahdadpuri Vs. CNA Pvt. Ltd. The photocopy of the
affidavit is correct. The same is Ex.CW-1/B and bears
my signatures at points „X‟ and „Y‟. I had stated in this
affidavit that I had sold my 2500 shares in the company
CNA Exports Pvt. Ltd. to my uncle named Mr. Dayal D.
Shahdadpuri in the year 1999 for a consideration of US $
6,000. This is correct statement which I had made. The
rest of the contents of the affidavit are also correct and
admitted by me.
I have seen the application filed by me which is Ex.CW-
1/C and the same bears my signatures at points „Y‟ „Z‟.
All the signatures are encircled in Red. I had stated in
the application that I be substituted as plaintiff. This is
on account of the fact that although I had transferred the
shares in favour of my uncle, but I was acting as a
Trustee on his behalf as the shares had still not been
registered in the record of the company in his name. I
had also not executed any gift deed or sale deed in favour
of any of my family members as alleged by my brothers
or mother etc. I do not recollect correctly but as far as my
knowledge goes, there was some court order which
indicated that the company had not changed the name of
the registered shareholder i.e. myself in its record.
At this stage, the witness has stated that she is not feeling
well and she would require some time. Even otherwise it
is already 1.15 P.M. Further examination deferred after
lunch.
Justice Dhingra had passed an order that my uncle will
not be recognized as a share holder, as the records of the
company did not reflect his name. I mentioned in the
application for transposition that I have transferred the
shares to my uncle. I would not like to say anything else.
She once again stated that she has sold her share to her
uncle and no one else.
I do not recall exactly as to when I learnt for the first time
as to the records of the company were not correct. I
cannot recall whether my uncle gave me in writing or
suggested to me orally ever that I should protect his
interest by filing the application for transposition but I
felt that it is my legal duty. I have spoken the truth
today."
45. Learned counsel appearing on behalf of Plaintiff has relied upon the
following events and documents in support of his submissions:-
"a. Mrs. Nitya Bharaney was the original shareholder holding
2500 equity shares.
b. Mrs. Nitya Bharaney sought permission from RBI for
transferring 2500 equity shares in favour of Plaintiff.
c. That Mrs. Nitya Bharaney was granted approval for transferring
2500 equity shares in favour of Plaintiff.
d. That Mrs. Nitya Bharaney was paid USD 6000 by way of
Demand Draft dated 08-07-1999 issued by UCO Bank, Hong Kong."
46. It is submitted by him that the case of the defendants No.1 to 4 of
having got 2500 equity shares from Mrs.Nitya Bharaney is an allegation
without any support of any document. The only document to establish that
defendant No.2 is the owner of 2500 shares by way of gift from Mrs.Nitya
Bharaney as relied upon by the plaintiff is the Annual Return of the
defendant No.1 Company which shows transfer of 2500 shares from
Mrs.Nitya Bharaney to defendant No.2 in the year 1998. The said Annual
Returns was filed by the defendant No.2 with the Registrar of Companies as
late as on 31st August, 2005. He assures that the aforesaid facts and
circumstances were to be countered at the time of trial. Therefore, the
amendment sought by the Plaintiff is liable to be allowed.
47. Mr.Sandeep Sethi, learned Senior counsel appearing in behalf of
Anand Datwani argued that the application filed by the plaintiff is totally
misconceived. It is filed with malafide intention. He further argued that
replication has been filed by the plaintiff after the expiry of three years and a
different stand has been taken by the plaintiff by stating now that he was not
an original allottee but had purchased 2500 shares from Nitya Bharaney
purportedly in 1999. It is also the submission of Mr.Sethi that the plaintiff
was signed by one Mr.Mangat Rai who was not a validly authorized person
and power of attorney of the plaintiff. The present application for
amendment is filed as a counter-blast to the application filed by defendant
No.2 under Order X CPC, being I.A. No.4985/2011, to record the statement
of the plaintiff in order to ascertain the exact nature of his case. The plaintiff
has no interest in the matter but the suit is being proceeded with by
Mr.Mangat Rai at the instance of defendant No.6.
48. It is not in dispute that Mr. Anand Datwani in his written statement
alleged that he became 99% shareholder in the Company; that on 10th
January, 1998 Mrs.Jamna Datwani gifted her alleged 8,055 shares to him
(i.e. her own shares and those of her children), that later, on 23rd March,
1998, Kishin, Janak and Nitya signed transfer deeds in favour of Mrs. Jamna
Datwani, who on the same date signed another transfer deed of all the shares
in favour of Mr. Anand Datwani; that, previously on 12th January, 1998,
Sushma Ravidass and Tikam Dass Moolchandani both transferred their
shareholding to Mr. Anand Datwani. However, subsequently the said
shareholders have denied and refuted such transfers or any alleged family
statement.
49. By an Order passed by Hon‟ble the Chief Justice in FAO(OS)
253/2008 on 29th May, 2008, the disputed documents were directed to be
sent for an opinion of a handwriting expert and the Ld. Single Judge sent the
documents to CFSL. The report of CFSL dated 17th September, 2009 opined
that the signatures of Mrs. Nitya Bharaney on the gift deed dated 10th
January, 1998 and share transfer instruments dated 23rd March, 1998 could
not be connected with the admitted signatures. Regarding the signatures of
Mrs. Jamna Datwani and Nitya Bharaney no conclusive finding has been
made thus due to insufficient admitted signatures. Therefore, I am of the
view that the contention of Mr. Anand Datwani that Mrs. Nitya Bharaney
could not have transferred her shares to the Plaintiff in 1999 as she had
already transferred to him through the mother has to be tested at the time of
trial. Mrs. Nitya Bharaney has on several occasions confirmed the said sale
even in her statement recorded by the Court on 16th November, 2011. It is
also evident from the suit filed by Mrs. Jamna Datwani being CS(OS)
No.556/2008 challenging inter alia any share transfer to Mr. Anand
Datwani. However, subsequent to the CFSL report she signed a compromise
agreement with Mr. Anand Datwani, whereby for a payment of `50,000/-
per month she agreed to withdraw the suit. It is also a matter of fact that all
of her children except Mr. Anand Datwani have filed applications for
transposition including defendant No.6 as she had transferred her shares to
Anand Datwani vide Gift Deed dated 8th March, 2008. The Gift Deed was
admitted by her.
50. It is true that there are inconsistent statements made by the Plaintiff in
his plaint and in the present application whereby amendments are sought and
also in the replication filed by plaintiff after the expiry of 3 years. It
might also be possible that the application which has been filed by the
plaintiff is a counter-blast to the application filed by Mr. Anand Datwani but
the fact of the matter is that the two versions of family groups have to be
determined by the Court who wants that the truth must come out. The
Plaintiff‟s counsel during the course of hearing has shown the unsigned
power of attorney issued by the plaintiff in favour of Mangat Rai.
Therefore, without deciding as to whether Mrs.Nitya Bharaney has signed
the transfer instrument as alleged by Mr.Anand Datwani or she has
transferred her shares to the plaintiff in 1999, the application being I.A.
No.8812/2011 is allowed. I am of the opinion that the amendment sought
by the plaintiff in CS(OS) No.118/2007 is necessary for a complete
adjudication of the issues involved in the suit. The amended plaint is taken
on record. Three weeks time is granted to the contested defendants to file
their amended written-statements.
51. List the matter before the Roster Bench on 29th January, 2013.
52. I.A. No.8812/2011 is accordingly disposed of.
I.A No.4985/2011
53. In this application filed by the defendant Nos.1 to 4 under Order X,
Rule 2 read with Section 151 CPC, it is stated by the defendants that the
allegations made by the plaintiff in paras 5 and 10 of the plaint are false and
on the basis of these false allegations, he was able to obtain the ex-parte
injunction order dated 22nd January, 2007 from this court against the
defendants which was vacated by the order dated 14th May, 2007.
Thereafter, the defendant Nos. 1 to 4 filed their detailed written statement on
24th May, 2007, but after that the plaintiff kept remained silent and did not
even file the replication inspite of specific order dated 5th May, 2008 to
complete the pleadings. Thereafter, the plaintiff filed the replication dated
17th January, 2011 wherein, he has totally shifted his stand from what was in
the plaint and is trying to make out a new case by alleging that he had
purchased the shares in question from Mrs. Nitya Bharaney in the year 1999.
However, the plaintiff has not explained how he lodged the share transfer
executed by Mrs. Nitya Bharaney with defendant No.1. Therefore, the
plaintiff has filed the present application seeking directions for the plaintiff
to be present in person before this court for recording of his statement under
Order X Rule 2 CPC.
54. In view of order passed in I.A. No.8812/2011, no order for recording
the statement of the plaintiff under Order X is necessary at present to be
passed. However, liberty is granted to the defendant Nos.1 to 4 to file the
same if necessary, after the completion of pleadings.
55. The application is disposed of.
I.A No.16842/2011
56. This application has been filed by defendant No.6 Jamna Datwani
under Section 151 CPC for return of original gift deed dated 8th March, 2008
whereby the 2500 shares of the defendant No.1 Company, held by the
plaintiff i.e. Dayal D. Shahdadpuri have been transferred to defendant No.6
to submit the said gift deed for stamping and registration. It is stated in the
application that both plaintiff and defendant No.6 have admitted the gift
deed dated 8th March, 2008. On 6th September, 2011, the present case was
listed before the Joint Registrar of this court for admission/denial of
documents. Therefore, the defendant No.6 who is the resident of France
brought the original gift deed to India on 8th August, 2011 and filed the same
in court on 3rd September, 2011. Admission/denial of the gift deed dated
8th March, 2008 is complete. Thus, the plaintiff is seeking return of the said
gift deed to him to get it stamped and registered with liberty to file it on later
date.
57. The prayer made in the present application is opposed by the
defendant Nos.1 and 2, who in their reply to the said application have stated
that the gift deed dated 8th March, 2008 is a sham document. The plaintiff
had signed the said gift deed subsequently and not at the time of its
execution, whereas Clause 4 of the gift deed dated 8th March, 2008 clearly
states that the Donee i.e. the Applicant/defendant No.6 has signed the gift
deed as token of acceptance of the gift on the day and year written herein
above i.e. 8th March, 2008. This shows that the defendant No.6 did not sign
the alleged gift deed as stipulated therein. Further, it is stated that Section 17
of the Indian Stamp Act, 1899 provides that all instruments chargeable with
duty and executed by any person in India shall be stamped before or at the
time of execution. Since the alleged gift deed itself says that it was executed
in India, thus it was required to be stamped either before or on 8th March,
2008. It is also stated that the period of stamping and registration of the said
gift deed had expired in the year 2008 only, further, defendant No.6 has not
given any explanation as to why the alleged gift deed could not be brought
to India and be stamped prior to 08.08.2011 even though defendant No.6 has
visited India on more than 20 occasions since March, 2008.
58. As far as challenge to the merit of gift deed dated 8 th March, 2008 is
concerned, I am not inclined to make any comment as its validity is yet to be
gone into. But, it is a matter of fact that the same was filed in Court on
3rd September, 2011 i.e. after the expiry of three years and in case any
direction for registration and stamping are issued, no doubt some legal rights
would be created in favour of defendant No.6 and such directions in this
regard would have an impact to the objections raised by contesting parties.
All their objections have to be considered by the appropriate authorities in
accordance with law. But, this Court cannot allow the prayer of allowing
the defendant No.6 to get the same duly stamped and registered.
59. It is for the defendant No.6 to apply for return of original documents
as per law and rules and practice framed under Delhi High Court Rules,
1967. As far as prayer of this application to allow the defendant No.6 for
the purpose of Indian Stamp Act, 1899 and its registration, such directions
cannot be issued, as there is complete procedure prescribed in the Acts. No
other orders are required. The application is disposed of accordingly.
60. Now, I shall take up three applications, being I.A. No.16086/2009
filed by plaintiffs under Order XXIII, Rule 1 CPC, I.A. No.12310/2010 filed
by the plaintiffs under Order XXIII, Rule 1 CPC and I.A. No.737/2011 filed
by defendant No.3 under Order XXIII, Rule 1A CPC.
CS(OS) No.556/2008
61. This suit has been filed by Smt.Jamna Datwani and M/s. CNA
Exports Private Limited against eleven defendants. Defendant Nos.1 to 3
namely Sh.Anand Datwani, Sh.Kishin Datwani and Sh.Janak Datwani
respectively are the sons of Smt.Jamna Datwani. Defendant No.4 Smt.Nitya
Bharaney is the daughter of Smt.Jamna Datwani. The others are relation and
associates. The suit was filed for declaration and permanent injunction. The
plaintiff No.1 is the mother of defendant Nos.1 to 4 and she and defendant
Nos.2 to 6 jointly hold more than 72% of the share-holding of a company
M/s CNA Exports Private Limited plaintiff No.2 herein.
62. In the plaint the allegations are made by Mrs. Jamna Datwani against
her son Mr. Anand Datwani to the act of forgery of the signatures of the
shareholders of CNA Exports Pvt. Ltd. ("the Company") on purported Gift
Deeds/ Share Transfer Forms, and on the basis of said documents, he gained
control of the Company, after the death of her husband in 2004. The acts of
Mr.Anand Datwani come to her knowledge that Mr. Anand Datwani had for
personal gain, encumbered the Gurgaon property of the Company by
surreptitiously entering into an illegal joint venture agreement with Pacifica
Infrastructure Company on the terms with were detrimental to the Company
and shareholders. The Company itself has ceased doing business since 1990
and only held valuable immoveable property. It is not in dispute that the
defendant No.3 had previously filed CS(OS) No.1113/2007 and her
brother-in-law, Dayal Shahdadpuri, had filed CS(OS) No.118/2007 on the
issue of the shareholding of the Company. The plaintiff No.1 chose to file a
representative suit on behalf of all the shareholders for a declaration that the
Plaintiff (22.7%) and defendants 2-6 are shareholders of the Company, that
the share transfer instruments which Mr. Anand Datwani claimed to have
been executed in his favour directly or indirectly are forged, fabricated, etc.
She also sought an injunction restraining Mr. Anand Datwani, defendant
No.1 from representing the Company or encumbering its assets. Mr. Jamna
Dass Datwani in paras 15, 16, 18 and 24 of the plaint has denied - a) any
alleged transfer of the shareholding of the Company from her and / or any
other shareholder to Mr. Anand Datwani; b) the purported family settlement;
c) change of directors of the Company; d) enhancement of share capital and;
e) annual returns from the period 1997-2004 all uploaded in the ROC on the
same day.
63. In his written statement filed by Mr. Kishin Datwani, defendant No.2,
the eldest son, has denied transferring his 13.33% shareholding to
Mrs.Jamna Datwani by the alleged Gift Deed and / or alleged transfer deed
and has, in fact, stated that the signatures therein are forged and fabricated.
In para 20, of the written-statement he has also stated that he was not even in
India on 23rd March, 1998.
64. Mrs. Nitya Bharaney, defendant No.4, the daughter of plaintiff No.1
has on several times affirmed the sale of her 22.21% shareholding to
Mr.Dayal Shahdadpuri i.e. in her written statement in the present suit and in
an affidavit on oath, in an oral statement on oath recorded by the Court and
denied transferring her shareholding to her mother. The CFSL on an
examination of her signatures on the purported transfer instruments as
submitted by Mr. Anand Datwani has found her signatures are not connected
with the signatures obtained.
65. Mrs. Sushma Ravidass, defendant No.5 has filed I.A. No.2347/2011
in the present suit for deletion of her name from the array of parties as she
had transferred her shares to Mr. Janak Datwani vide Share Transfer Forms
executed at New York on 6th December, 2010. She submitted that she had
never transferred her shareholding of 13.33% to Mr. Anand Datwani, and
was not even present in India on 12th January, 1998 when the purported
transfer deed was signed at New Delhi. She has reaffirmed the same in a
deposition by an order of the Superior Court of New Jersey, USA on
3rd October, 2010.
66. Mr. Janak Datwani, defendant No.3 herein, also filed a separate suit,
being CS(OS) No.1113/2007, seeking a mandatory injunction in his favour
against CNA Exports Pvt. Ltd., Anand Datwani, C.S.Batra, Kishore Datwani
to deliver the duplicate share certificates to him in respect of 1500 shares
and also seeking declaration thereby declaring the enhancement of shares by
them as illegal, null and void, for passing a decree of declaration, declaring
all acts and deeds done by them and all meeting and resolutions passed by
them illegally transferring the shares of the plaintiff in favour of Anand
Datwani as illegal, null and void, for restraining them from holding any
Board meeting or shareholders meeting of the company without the
permission of this court and for restraining them from selling, alienating or
in any manner creating encumbrances on the immovable property of the
company.
67. During the pendency of the suit, the plaintiffs through plaintiff No.1
Smt.Jamna Datwani filed an I.A.No.16086/2009 for withdrawal of the suit
on the ground that she has settled all her disputes and differences with the
defendant No.1 Anand Datwani by way of compromise agreement dated
10th December, 2009. The terms and conditions of the settlement are
mentioned in the said application. The defendants No.2 and 4 thereafter
filed applications, being I.A. No.226/2010 and I.A. No.12308/2010, under
Order I Rule 10 CPC for their transposition as plaintiffs in the suit. Later
on, another application was filed by the plaintiffs through Mrs.Jamna
Datwani, being I.A. No.12310/2010, by stating that she no longer wishes to
continue with the suit and the plaintiffs wish to withdraw the suit
unconditionally.
68. Both applications were strongly opposed by the defendants No.2 to 4
i.e. Kishin Datwani, Janak Datwani and Nitya Bharaney.
69. Learned counsel appearing on behalf of Mr.Janak Datwani, defendant
No.3, has referred to the orders dated 8th December, 2008, 12th January,
2009, 9th February, 2009 and 20th May, 2009 wherein, the Court sent the
documents i.e. gift deeds, share transfer certificates alleged to have been
executed by the plaintiff No.1 and defendants No.2 and 4 to the CFSL for
verification. CFSL has vide its report dated 17th September, 2009 inter alia
opined that the signatures of defendant No.4 Nitya Bharaney on the gift deed
dated 10th January, 1998 and the share transfer forms dated 23rd March, 1998
could not be connected with the admitted signatures. It was also pointed out
by the defendant No.3 that the plaintiff No.1 now cannot deny her earlier
averments made by her in the pleadings wherein she has stated that she had
not transferred her or any other shareholding to Anand Datwani. It was also
pointed out by defendant No.3 that in the suit for recovery of money, Nitya
S.A.R.L. Paris France v. CNA Exports, being CS(OS) No.4061/1991, the
plaintiff No.1 Mrs.Jamna Datwani in her amended written statement filed on
24th January, 1998, which is 2 weeks after she has allegedly signed a Gift
Deed transferring all shares to Mr.Anand Datwani, states that the majority
shareholders in the company are the wife and her children. In her letter
dated 20th October, 2005, she communicated to the defendant No.3 that she
has realized that Mr.Anand Datwani is attempting to eat away the entire
company, which their father had built for the whole family. The reference
was also made to the fact that sometime in 2007, the plaintiff No.1 called
Mrs.Sushma Ravidass instructing her to transfer her shares to Mr.Janak
Datwani.
70. The defendant No.3 also filed an application, being I.A.
No.14065/2010, under Order XXVI Rule 10 CPC, to re-send the plaintiff‟s
signatures on the share transfer instruments to the CFSL for determination of
the authenticity of the Plaintiff‟s signatures thereupon as the CFSL has
required more signatures for comparison.
71. The stand of Mrs.Jamuna Datwani after filing the suit, in her reply to
the said application is that her husband asked Anand Datwani to take the
responsibility of the company which he accepted on the condition that other
family members should transfer their shares of the company in his favour to
give him free hand to handle the affairs of the company and he was ready to
take the liabilities of the company because at the relevant time the value of
the assets of the company was much less than the various liabilities.
According to her, as per settlement, the defendants No.2 to 4 Kishin
Datwani, Janak Datwani and Nitya Bharaney transferred their shares of the
company to her and in turn she transferred all those shares including her
shareholding to Anand Datwani. The Gift Deeds and Transfer Deeds (Share
Transfer Forms) were got signed from them by her husband and thereafter
she executed the Gift Deed and Transfer Forms in favour of Anand Datwani
as advised by her husband. She was also present in the Board meeting
which was held on 23rd March, 1998 and signed the minutes of meeting
when the Board approved the said transfer in favour of Anand Datwani.
72. By Share Transfer Form issued on 8th January, 1998 and signed on
23rd March, 1998, the plaintiff No.1 transferred 8055 equity shares of the
value of `100/- each of the company as per the details given below:
S.No. Previous Holder Distinctive Nos. No.of Total No.
Transferred of shares
Shares
1 Mrs.Jamna Datwani 4201 to 5000 800 2555
(Plaintiff No.1) 6501 to 7000 500
10001 to 11255 1255
2 Kishin Datwani 6 to 10 5 1500
(Defendant No.2) 3006 to 4000 995
5001 to 5500 500
3 Janak Datwani 7001 to 8500 1500 1500
(Defendant No.3)
4 Nitya Bharney 1506 to 3005 1500 2500
(Defendant No.4) 5501 to 6500 1000
73. As she had already accepted transfer of shares in favour of Anand
Datwani, therefore, she states that she does not want to continue the
litigation initiated by her, being CS(OS) No.556/2008, wherein she is
plaintiff No.1.
74. In the meanwhile, the defendant No.3 Mr.Janak Datwani also filed an
application under Order XXIII Rule 1A and under Order I Rule 10 read with
Section 151 of Code of Civil Procedure, 1908, being I.A. No.737/2011, for
his transposition as plaintiff inter alia on the reasons that he never
transferred shares of the company to the plaintiff No.1 who allegedly gifted
the same to Anand Datwani, to this respect he filed separate suit, being
CS(OS) No.1113/2007, seeking declaration that he continues to be a
shareholder in the plaintiff No.2 Company. The plaintiff No.1 on behalf of
plaintiffs filed the I.A. No.16086/2009 seeking to withdraw the present suit,
pursuant to an alleged compromise with the defendant No.1, wherein she
alleged that she transferred the shares belonging to herself and defendant
Nos.2 to 4 to defendant No.1, Anand Datwani.
75. As per defendant No.3, the plaintiff No.1 has acted either for
monetary considerations or under threat or coercion. This act of the plaintiff
No.1 would have an irreversible bearing on the rights of the parties
including the applicant/defendant No.3. The plaintiffs are not entitled to
withdraw the present suit to vitiate the rights accrued in his favour which
would entitle them to a decision in his favour. Defendant Nos.2 and 4 have
also denied the alleged share transactions dated 10 th January, 1998 and
23rd March, 1998. It is stated that after showing the alleged transfer of shares
in his favour, the defendant No.1 is mismanaging and mishandling the
affairs of the Company and is dissipating the assets and siphoning off the
funds of the Company. Therefore, defendant No.3 has filed the present
application.
76. The said application is opposed by the plaintiffs as well as defendant
No.1. They argued that the application has been filed by the defendant No.3
in order to delay the litigation as the defendant No.3 himself has already
filed another suit, being CS(OS) No.1113/2007, seeking almost similar relief
against defendant No.1and the company. The defendant No.3 did not file
any written statement to the present suit in order to inform the Court that
what his stand is. Therefore, the averments made in the application cannot
be allowed.
77. It is submitted by defendant No.1 that the present application is liable
to be dismissed as the counsel for the plaintiff No.1 has made a statement
before this Court that she is no longer interested in withdrawing the present
suit, therefore, the present application is liable to be dismissed. The plaintiff
No.1 has also filed a Crl.M.A.No.6923/2012 for initiating perjury
proceedings against defendant No.4 on the ground that plaintiff No.1 has
already admitted her signatures on the documents of transfer of shares in
favour of defendant No.1 and the CFSL report has also confirmed the same,
thus, the defendant Nos. 2 to 4 cannot be allowed to use the pleadings of
plaintiff No.1 in the present suit, which were made under pressure, coercion
and fraudulent representation. Further, it is stated that defendant No.3
cannot claim to be transposed in the present suit as he has already preferred
two independent suits respect to the same subject matter i.e. his shareholding
in plaintiff No.2 Company.
78. The other submissions made by defendant No.1 are that no vested
right has been created in favour of any party so far. The suit is at the initial
stage. Nothing on merit has been decided. Further, Janak Datwani in
various other proceedings has denied the averment of the plaint. His claim
is not identical to that of plaintiff No.1 who has filed the suit as per her own
free will. Actually, the defendant No.3 was instrumental in filing the present
suit in the name of the mother by taking her signatures on the pleadings
under threat, coercion and undue influence. Moreover, the interests of the
defendants are different inter-se amongst each other as well as different from
that of plaintiff No.1 and in case the defendant No.3 is transposed as one of
the plaintiffs in the present suit, there would be conflicting interests against
each other amongst the plaintiffs. The claims of defendant No.2 to 4 who
are seeking transposition are totally different as they are independent
shareholders and there is no commonality of interest. The said defendants
kept sleeping for almost 9 years. The alleged claim of defendants No.2, 3
and 4, on the date of filing of the transposition applications had become
barred by time.
79. It is also alleged that a perusal of the plaint in the present suit would
show that declaration is sought not only by the plaintiff No.1 but also for
defendants No.2 to 6 that they continue to be the shareholders of plaintiff
No.2 Company. The suit is not a representative suit as the conditions stated
in Order I, Rule 8 CPC are not met as neither is there a prayer nor has any
application being filed by plaintiff No.1 seeking permission to sue in a
representative capacity. Reliance is placed on the judgment of this Court in
the case reported as 164 (2009) DLT 10, Anang Pal v. Union of India &
Ors., wherein it has been held that unless permission is granted to sue in a
representative capacity and thereafter notice is given to all, the mandatory
requirements of Order I, Rule 8(2) CPC have not been complied with and
the suit cannot be treated as a representative suit. In the rejoinder, the
applicant (Janak Datwani) has admitted that the suit was not a representative
suit; it was in the nature of a representative suit.
80. As the plaintiff No.1 has now admitted the transfer of her shares of
plaintiff No.2 in favour of defendant No.1, the defendants No.2 to 4 now
cannot be allowed to use the earlier averments made in the pliant by
plaintiffs which in any case, were made under coercion, undue pressure and
by fraudulent representation by defendant No.3. The stand of plaintiff No.1
and defendants No.2 to 4 are now no longer identical or similar. Even
otherwise, the averments made in the suit by Mrs.Jamna Datwani earlier are
personal to her inasmuch as she was the Managing Director of plaintiff No.2
and whatever she has averred in her suit, the same was authorized by
plaintiff No.2 company to file the present suit. Therefore, Janak Datwani
(defendant No.3) cannot ask for transposition in the present suit.
81. The argument of the defendant No.3 in I.A. No.737/2011 is that the
transposition will not alter the character of the suit as the present suit is in
the nature of representative suit filed on behalf of mother Mrs.Jamna
Datwani and the main dispute now is between Mr.Anand Datwani and
defendants No.2 to 4. The same has to be adjudicated and it is in the interest
of all parties to get determined their rights in view of their rival submissions.
The other defendants and plaintiff No.2 are just formal parties. As the
plaintiff No.1 has totally changed her stand in view of compromise arrived
between the defendant No.1 Anand Datwani and plaintiff No.1 Mrs.Jamna
Datwani, the filing of abovementioned application has become necessary in
order to determine the rights of the remaining contesting defendants.
82. It is also argued by the defendant No.3 that even though she may not
be withdrawing the suit in view of the statement made by her in the Court on
23rd February, 2012 (if accepted by the Court) but her conduct by admitting
the transfer of shares and the averments made in her two applications and in
other pleadings i.e. reply dated 27th September, 2009 in I.A. No.1230/2010
and reply dated 21st July, 2011 in I.A.No.14065/2011 and I.A.
No.12309/2010 amounts to abandonment of the suit. Therefore, the
defendant No.3 is entitled to be transposed as plaintiff. It is argued that
there is a collusion between plaintiff No.1 and defendant No.1 Anand
Datwani as she has totally taken the contrary stand in respect inter alia of
shareholding of plaintiff No.2 after the report of CFSL dated 17th September,
2009 declaring the signatures of Nitya Bharaney on the share transfer
instruments submitted by Anand Datwani i.e. could not be connected with
the admitted signatures. Therefore, no prejudice would be caused if the
defendant No.3 be transposed as plaintiff. The other two applications
seeking the same relief filed by defendants No.2 and 4 for the similar reliefs
were not argued by the counsel probably because the rejoinders in those
applications were not filed by them.
83. Under Order I, Rule 10 CPC, a Court is empowered to order
transposition of parties. Order XXIII, Rule 1A CPC has been inserted to
expressly provide for a situation where a defendant requests to be transposed
as a plaintiff when a suit is withdrawn or abandoned by the plaintiff so that
the defendant transposed as the plaintiff can pursue whatever claims he may
have against co-defendant.
84. It is appropriate to extract Order XXIII, Rule 1A CPC which reads as
under:
"1-A When transposition of defendants as plaintiffs may
be permitted: Where a suit is withdrawn or abandoned
by a plaintiff under Rule 1, and a defendant applies to be
transposed as a plaintiff under Rule 10 of Order 1, the
Court shall, in considering such application, have due
regard to the question whether the applicant has a
substantial question to be decided as against any of the
other defendants."
85. On perusal of Order XXIII Rule 1 CPC, it is evident that under Rule 1
the plaintiff has right to abandon his claim or withdraw the suit. The
plaintiffs have filed two applications through plaintiff No.1 Mrs.Jamna
Datwani for withdrawal of the suit unconditionally. The same are not
allowed yet. However, the learned counsel for the plaintiffs during the
course of arguments on 23rd February, 2012 made a statement that the
plaintiffs wish to withdraw the said applications and plaintiff No.1 is now
sincerely conducting her case as per proceeding available on record and has
no intentions to abandon or to withdraw any claims.
86. Rule 1A of Order XXIII CPC provides for transposition of the
defendant as the plaintiff where the suit is withdrawn or abandoned by the
plaintiff under Rule 1 of Order XXIII CPC. It is permissible under the said
provision that the defendant may apply for his transposition as plaintiff. In
those circumstances the court has to consider such application and if there is
any substantial question to be decided as against any of the other defendants
then, in that case transposition can be allowed to continue with the suit.
Rule 1A of Order XXIII CPC envisages transposition of defendant to
proceed with the suit against one or the other defendant(s) if there is any
substantial question to be decided between the defendants and not against
the original plaintiff.
87. In the case reported as AIR 2008 Rajasthan 1481, Devendra Singh v.
Additional District Judge and Ors., it was held as under:
"The transposition of a defendant as plaintiff is permitted
to be made only in two eventualities. First, when where a
suit is withdrawn by the plaintiff and secondly, when the
plaintiff has abandoned the suit. In doing that also, the
Court has to examine whether the applicant has a
substantial question to be decided as against other
defendants or not."
88. In another case reported as 2009 (VI) SCC 194, at page 207, in para
23 in the similar proposition, it was held that if Order XXIII, Rule 1 of CPC
was applicable in terms of Rule 1A of the said order, the appellant as the
defendant in the suit could have applied for being transposed as plaintiff in
terms of Order I, Rule 10 CPC and the Court was bound to pass an order
having due regard to the question as to whether she had a substantial
question to be decided as against any of the other defendants.
89. It is evident from the pleadings that on the date of filing of the suit by
the plaintiffs (through plaintiff No.1) interest of defendant No.3 and plaintiff
No.1 was identical. No relief was sought against him. The objection raised
by the defendant No.1 that written statement was not filed is without any
merit. It is permissible in law that the proforma defendant can be impleaded
as plaintiff without any written statement. Identity of interest must be seen
when the plaint was originally filed. (See AIR 1983 Gujarat 194, Jethiben v.
Maniben and Anr.)
90. There is also no force in the submission of the defendant No.1 that the
interest of plaintiff No.1 and defendant No.3 is not the same in view of the
statement made in para 10 of the plaint as the defendant No.3 never refuted
her occupation of 38% of the property i.e. 6, Friends Colony (West), New
Delhi. The argument of the defendant No.1 has no force that in case it is not
a representative suit, the relief of transposition sought by defendant No.3
cannot be granted. It is true that it is not a representative suit under Order I,
Rule 10 CPC but it is in the nature of one as it is the only comprehensive
suit which contains all the averments as well as the issues pertaining to the
shareholding of the company as well as the allegation and counter allegation
of forgery raised by the parties. Handwriting expert report has also been
obtained in the present case. The relief sought by the defendant No.3 in his
suits no doubt is somehow similar but not the identical. The law does not
require that only when a representative suit is filed, an order of transposition
is passed. Law also does not restrict the operation of the doctrine of the
transposition only in partition suits as argued by the defendant No.1. In the
present case, the factum of change of stand by the plaintiff No.1 is apparent
on the face of it. CFSL report shows that the signatures of defendant No.4
could not be connected with the admitted signatures. There is also no force
in the submission of the learned counsel for the defendant No.1 that there is
a possibility of conflict between the plaintiffs and proposed plaintiff and no
defendant can be transposed as plaintiff, in such a situation.
91. In the present case, the application for transposition was filed
subsequent to the applications for withdrawal of the suit filed by the
plaintiffs. In case, the said applications are allowed, the disputes inter se
between the defendants would not be determined as plaintiff No.1 herself
alleged in the applications that she is no longer interested to continue with
the suit after the settlement with defendant No.1. Thus, it is necessary that
the substantial questions have to be decided against the remaining
defendants. Even otherwise, it is not permissible in law for co-plaintiffs to
have conflicting interests. (See AIR 1958 SC 394, Saila Bala Dassi v. Smt.
Nirmala Sundari Dass Anr., para 10) The continuing with the suit would
not be against the interest of the plaintiff No.1 but against the defendant
No.1. The defendant No.3/applicant seeks no relief against plaintiff No.1
but merely seeks to pursue with the same reliefs mentioned in the original
plaint.
92. As far as substantial questions to be decided are concerned, in the
present case there are several substantial questions i.e. whether the
defendants No.2, 3 and 4 transferred their shares to plaintiff No.1?, Whether
plaintiff No.1 transferred her shares to defendant No.1 Anand Datwani, and
if so, whether this transfer included shares transferred to her by the other
defendants? Whether defendant No.5 transferred her shareholding to
defendant No.1 or as she herself affirms that she in fact transferred the
shares to the defendant No.3/applicant?; and, Whether the defendants should
be restrained from alienating, selling, transferring or creating any third party
rights of the company?
93. It is also settled law that where a suit as originally filed in property
framed with proper parties, the mere change of a party will not bring the
case within Section 21(1) of the Limitation Act, 1963. (See (1999) 9 SCC
380, Mukesh Kumar and Ors. v. Col. Harbans Waraich & Ors., para 9) The
bar of limitation hence does not apply in case of transposition if the
application otherwise maintainable. It is also settled law that the
transposition can be entertained before the suit is allowed to be withdrawn.
94. With regard to plaintiff No.1‟s applications, being I.A.
No.16086/2009 and I.A. No.12310/2010 for withdrawal of the suit. There is
a strong opposition on behalf of defendants No.2 to 4. Learned counsel for
the plaintiffs has made a statement during the course of hearing on
23rd February, 2012 that plaintiffs now do not wish to withdraw the suit and
therefore, permission be granted by the Court to withdraw the said
applications in order to continue with the proceedings. The learned counsel
for the plaintiffs states that the plaintiff No.1 has changed her mind to
proceed with the matter on merit. She is now not interested to abandon or to
withdraw the suit as it is evident from the record that she has been appearing
before Court as well as before Joint Registrar for the purpose of
admission/denial of documents. The said decision is taken by her as the
defendant No.3 is insisting for transposition. Therefore, the application filed
by the defendant No.3 is not maintainable as the same was filed after filing
the applications for withdrawal of suit.
95. In support of her submissions, Ms.Tara V.Ganju has relied upon the
following judgments:
1. Rajendra Prasad Gupta Vs. Prakash Chandra &
Ors. reported as AIR 2011 SC 1137 (para 5, 8, 10)
2. Jaideep Gupta and Others Vs. Inder Chand Jain
and Ors. reported as 55 (1994) DLT 593 (para 6,
7, 12, 13, 14)
3. Balwant Singh and Others Vs. Indraprastha
Builders Pvt. Ltd. and Anr. reported as 60 (1995)
DLT 136 (para 6, 7)
4. Thomas George Vs. Skariah Joseph and Another
reported as AIR 1973 Kerala 140 (V 60 C 48)
(para 3, 4)
5. Prem Chanda Barik Vs. Prafulla Kumar Mohanty
reported as AIR 1988 Orissa 33 (para 8, 11)
6. Rameswar Sarkar Vs. State of West Bengal and
Others reported as AIR 1986 Calcutta 19 (para 14,
16)
96. Ms.Ganju has also made her submission that in case the prayers of
suit filed by Janak Datwani, being CS(OS) No.1113/2007 and CS(OS)
No.1798/2011, are not the same, there is no bar on him in moving the
application for amendment of his plaint under the provision of Order VI,
Rule 17 CPC as the trial in the suits has not yet commenced. The entire
argument of the defendant No.3 was based upon the position that the
plaintiff No.1 wishes to withdraw her suit and as the plaintiff No.1 does not
want to pursue her suit so the defendant No.3 must be transposed in place of
plaintiff No.1. As now she does not seek to withdraw the suit nor has
abandoned her suit, therefore, the question of transposition of defendant
No.3 as plaintiff does not arise.
97. In view of settled law referred to by Ms.Ganju, as far as these two
applications, being I.A. No.16086/2009 and I.A. No.12310/2010, filed by
plaintiffs are concerned, the same are allowed to be withdrawn in view of
statement made by the counsel before the Court on 23rd February, 2012 after
taking instructions as orders of withdrawal of suit were passed.
98. As regard the I.A. No.737/2011 filed by the defendant No.3 is
concerned, the matter has been examined by the Court from various angles.
The decisions referred to by the learned counsel appearing on behalf of both
parties have also been considered. It is not in dispute that the plaintiff No.1
has changed her stand after the report of CFSL is received. She has
compromised the matter with defendant No.1.
99. From the pleadings of the parties, it appears that the plaintiff No.1 has
changed her stand from time to time when the suit, being CS(OS)
No.556/2008, was filed. The averment was made by her against the
defendant No.1 that he committed act of forgery of signatures of the
shareholders of the company on the gift deeds/shares transfer forms. When
the CFSL report is received, the stand taken by her is that the gift deeds and
transfer deeds were got signed from Kishin Datwani, Janak Datwani and
Nitya Bharaney and thereafter she executed gift deeds in favour of Anand
Datwani. When the two applications for withdrawal of the suit were filed, it
was stated that since the disputes between her and Anand Datwani were
settled, she was no longer interested to further proceed with the matter and
on 20th January, 2012 in cross-examination in CC No.604/2003 before
Ms.Pooja Talwar, Metropolitan Magistrate, Mrs.Jamna Datwani on oath
gave evidence that she transferred her shares in CNA Exports Pvt. Ltd. to
Anand Datwani in December, 2009, directly contrary to earlier statements
on oath. The above facts and circumstances clearly indicate that there are
many versions of plaintiff No.1 in different litigations. Not only the
statement made in the present applications to withdraw the suit but also in
other pleadings she has made a statement that she is no longer interested to
pursue with the suit filed by her after transferring her shares as well as of
defendants No.2 to 4 in favour of Anand Datwani as well as in view of the
compromise arrived between them by virtue of compromise agreement dated
10th December, 2009.
100. But the fact of the matter is that the substantial questions have to be
decided with regard to dispute of other defendants.
101. I am observing as above because plaintiff No.1 is trying to bring out
the averments now which are contrary to those claimed by her in the original
plaint. At least, if this application of defendant No.3 is allowed by
transposing him as plaintiff No.1 in her place, he would be able to
effectively get adjudication of his right who had same interest at the time of
filing the suit by plaintiff No.1.
102. Thus, it is necessary to allow his application by permitting him as
plaintiff so that substantial question is decided against the other defendants
in view of the reasons that the plaintiffs through plaintiff No.1 wanted to
withdraw the suit on account of settlement agreement. It is settled law when
a plaintiff even attempts to withdraw the suit on the rights of other co-
plaintiffs or proforma defendants who have an identical interest to that of the
plaintiff, necessary orders can be passed by the Court against the said
plaintiff as this Court has got apprehension that the plaintiff No.1 may now
again abandon the suit in collusion with the defendant No.1 as alleged by
defendant No.3 and may cause injustice to the other defendants.
103. Under these circumstances, the application of the defendant No.3 is
allowed and is transposed as plaintiff No.1. The plaintiff No.1 is transposed
as defendant No.3 in the present suit. The application is disposed of.
CS (OS) No.118 of 2007 & CS (OS) No.556 of 2008
List before the roster bench for further proceedings on 29 th January,
2013 after obtaining orders of Hon‟ble Judge Incharge (Original Side).
(MANMOHAN SINGH)
JUDGE
JANUARY 3, 2013
