The central legal point established in the judgment is the interpretation and application of The Benami Transactions (Prohibition) Act, 1988 and Section 153 of the Companies Act, 1956 in determining the ownership and trust status of shares.

Pradeep Nandrajog, J.

1. Impleading the first respondent as the sole defendant, the appellant filed a suit praying a declaration to be granted in its favour that 1397150 (Thirteen Lacs Ninety Seven Thousand One Hundred Fifty) shares of the company Vishesh Infotechnics Limited presently in the name and custody of the respondent No.1 be declared to be the shares of the appellant. Permanent injunction was prayed to restrain respondent No.1 from dealing with the said shares. Mandatory injunction was prayed that the first respondent be directed to transfer the shares in the name of the appellant and hand over possession of the share certificates.

2. The action was maintained on the plea that the first respondent was an employee of the company Vishesh Infotechnics Ltd. and had a small shareholding therein of around 11000 (Eleven Thousand) shares. The appellant acquired majority shareholding of the company by purchasing the shares from the erstwhile management and at that time the first respondent was a joint Managing Director of the company. That the appellant was also a majority shareholder in another company named MPS Technosoft Ltd. That the first respondent told the appellant that he was facing difficulties in convincing investors and clients that he had a vital interest in the two companies Vishesh Infotechnics Ltd. and MPS Technosoft Ltd. He told the appellant that investors would be assured in the dealings with the companies if he had a substantial holding in MPS Technosoft Ltd. and thus it was agreed that appellant would park shares of MPS Technosoft Ltd. with the first respondent and therefore on April 27, 2004; 3197150 (Thirty One Lacs Ninety Seven Thousand One Hundred Fifty) Shares of MPS Technosoft Ltd. were transferred in the name of the first respondent, to be kept in trust by him. To give effect to the aforesaid understanding 997150 (Nine Lacs Ninety Seven Thousand One Fifty) shares of a holding company controlled by the appellant named Omkam Developers Pvt. Ltd. and 2200000 (Twenty Two Lacs) shares held by another holding company of the appellant named BGR Finvests Private Ltd. were transferred in the name of the first respondent. It was pleaded that since it was actually a case of shares to be held in trust no stamp duty or transfer fee was paid when the shares transfer took place. Pleading further that as per a scheme of merger, since MPS Technosoft Ltd. merged with Vishesh Infotechnics Ltd., the first respondent was issued 2397863 (Twenty Three Lacs Ninety Seven Thousand Eight Hundred Sixty Three) shares of Vishesh Infotechnics Ltd. It was pleaded that the respondent held these shares in trust. Pleading that as per the asking of the appellant the first respondent transferred substantial shares standing in his name to different parties, it was stated that currently 1397150 (Thirteen Lacs Ninety Seven Thousand One Hundred Fifty) shares were in the name of the first respondent in the company Vishesh Infotechnics Ltd.

3. In the written statement filed the respondent pleaded the bar of limitation as a technical defence apart from another technical defence that neither Omkam Developers Pvt. Ltd. nor BGR Finvests Pvt. Ltd. being impleaded as defendants the suit was liable to be dismissed. And on merits, claimed to be the lawful and rightful owner of the shares. He pleaded that 3197150 (Thirty One Lacs Ninety Seven One Hundred Fifty) shares of MPS Technosoft Ltd. were transferred to him by Omkam Developers Pvt. Ltd. and BGR Finvests Pvt. Ltd. in consideration of he transferring 819652 (Eight Lacs Nineteen Thousand Six Hundred Fifty Two) equity shares of a company Infotechnics India Ltd. to the appellant.

4. The first respondent filed IA No.8673/2010 under Order VII Rule 11 of the Code of Civil Procedure pleading that the plaint was liable to be rejected for two reasons. Firstly, Omkam Developers Pvt. Ltd. and BGR Finvests Pvt. Ltd. not being impleaded as defendants required the plaint to be rejected for non-joind