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GAUHATI HIGH COURT
Ujjal Bhuyan, J.
Sharmila Vijay Shetty - Appellant
Versus
Hemendra Prasad Barooah & 10 Ors - Respondent
FAO No.33 of 2014
Decided On : 22-01-2016
Code of Civil Procedure, 1908 - Section 104 and Order XXXXIII Rule 1(r) - Suit decree - Bombay Stock Exchange - Respondent have instituted a suit in the Civil Court against the appellant where respondent have also been arrayed as defendants - In fact, appellant and respondent have been arrayed as defendant in the said Title Suit, which has been registered as Title Suit now pending adjudication before the Civil Court - Held, Learned Court below was correct in taking the view that whether gift of shares was fraudulent or genuine was a matter to be decided in the trial and that burden is on the plaintiffs to prove it by adducing evidence - But having said so, learned trial Court did not examine in any manner whether such burden, even if prima facie, was discharged by the plaintiffs - Earlier order of this Court in no way can be construed to justify continuation of the ad-interim order - In fact, matter was left to be decided by the learned trial Court - Merely saying that plaintiffs had made out a prima facie case, that balance of convenience was in their favour and that they would suffer irreparable loss and injury if injunction was not granted is not enough - There is no discussion on any of the above aspects - In fact, such finding recorded by the learned trial Court on the face of the materials on record as noticed above would be wholly untenable and cannot be sustained - Appeal allowed.
This is an appeal under Order XXXXIII Rule 1(r) of the Code of Civil Procedure, 1908, read with Section 104 of the said Code against the order dated 11.08.2014 passed by the learned Civil Judge, Jorhat in Misc. (J) Case No.32/2012 arising out of Title Suit No.47/2012 making the ad-interim injunction granted on 29.08.2012 absolute.
2. Respondent Nos.1 to 5 have instituted a suit in the Civil Court at Jorhat against the appellant where respondent Nos.8, 9, 10 and 11 have also been arrayed as defendants. In fact, appellant and respondent Nos.8 to 11 have been arrayed as defendant Nos.1 to 5 in the said Title Suit, which has been registered as Title Suit No.47/12, now pending adjudication before the Civil Court at Jorhat. The suit has been instituted primarily for declaring transfer of 2,21,230 shares of Rs.10 each, all fully paid up, of Barooah & Associates Ltd. (respondent No.8 herein and defendant No.2 in the suit) in favour of the appellant as illegal and null and void.
3. Case of the plaintiffs as projected in the plaint is that respondent No.8 is the flagship company of plaintiff No.1. Shares of respondent No.8 are listed in the Bombay Stock Exchange (BSE). Plaintiff No.5 is the Managing Director of respondent No.8 (company hereafter). Plaintiff No.1 was the driving force behind respondent No.8 and on his death, he has been substituted by respondent No.5.
4. Son of plaintiff No.1 Amit Barooah, at the time of his death, held 3,50,107 equity shares of Rs.10 each in the company. On his death, his mother, i.e., wife of plaintiff No.1 Usha Barooah inherited 1,16,702 of his equity shares in the company, being one-third of his shares, the remaining two thirds being inherited by his widow and daughter i.e., respondent Nos.3 and 4.
5. At this stage, it may be pointed out that plaintiff No.2 as well as the present appellant are the two daughters of plaintiff No.1.
6. On 08.09.2009, wife of plaintiff No.1 Usha Barooah executed a will appointing the appellant as executrix of her will and testament. Since appellant is a resident of Mumbai, Usha Barooah reposed confidence in plaintiff Nos.5 and 6 that in the event of failure of executrix to act in the manner desired, the said two plaintiffs would be the executor.
7. At the time of execution of the will, Usha Barooah held 2,21,230 equity shares in the company constituting 7.14% of the share capital of the company, out of which 1,16,702 equity shares were inherited by her from her pre-deceased son Amit Barooah.
8. It is stated that Usha Barooah held a Securities Demat Account with the HDFC Bank at Constantia Building, Kolkata. In view of his advanced age, plaintiff No.1 created a trust called Hemen Barooah Trust to look after the affairs of the company and for other ancillary and incidental matters. As per the will, Usha Barooah had bequeathed her entire share holdings in the company to Hemen Barooah Trust of which plaintiff Nos.5, 6 and 7 are the trustees.
9. It is further stated that Usha Barooah had kept the will in her safe custody and plaintiffs were not aware of the contents of the said will. Only after her death, plaintiff No.1 could trace out the original will and noted the contents thereof.
10. One Sujit Guha Thakurta, an executive of the company, used to maintain the personal accounts of plaintiff No.1 and his family members including that of Usha Barooah. In the last week of September, 2011, said Sujit Guha Thakurta placed before plaintiff No.1 the balance sheet of Usha Barooah as on 05.07.2011, i.e., on the date on which Usha Barooah had died. On perusal of the balance sheet, plaintiff No.1 noted that her estate as on the date of her death did not include the said 2,21,230 shares of the company. Thereafter, plaintiff No.1 made enquiries and upon such enquiries, he came to know that 2,21,230 shares of the company were transferred from the Securities Demat Account of Usha Barooah to another Securities Demat Account in the HDFC Bank Ltd, which stood in the name of the app
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