No.1 as v. Nos.2 to 5 praying for the following decree

(b) dant No.1 & 2 to cause transfer of the certificates in favour of the plaintiff. Declaration that the plaintiff is entitled to a direction that the defen (c) in purchase of the shares with 18 p. Declaration that the plaintiff is entitled to refund of the money spent (c)1. Interest thereon in case above pray are not granted. A permanent injunction restraining the defendant No.1 and 2 to make paym (d) ents of the dividend and instruments of Bonus shares to the defendant No.3 and 4 and mandatory injunction to recall and/or cancel the bonus share if the bonus s hare if issued by them. (cid:29) [3] During pendency of the suit, an application seeking amendment of the prayer in the plaint was filed by the plaintiff on 6th July, 1993, which wa s allowed by the learned Trial Judge vide order dated 19th February, 1994. The payer in the plaint as stood after its amendment reads as follows:- (cid:28)(a) in the schedule ’A’. Declaring that the plaintiff is lawful owner of the shares as mentioned (b) dant No.1 & 2 to cause transfer of the certificates in favour of the plaintiff. Declaration that the plaintiff is entitled to a direction that the defen (c) A decree directing the defendant No.1 to cause transfer of the shares as mentioned in the schedule ’A’ and all bonus share issued against those shares a fter 18-1-1988 in favour of the plaintiff and to pay all the dividend occurred t herein to the plaintiff. (c)1. In the alternative a decree directing the defendant No.6 to pay to the p laintiff the highest market value of the shares mentioned in the schedule ’A’ & dividend issued against it till the date payment. (d) A permanent injunction restraining the defendants No.1 & 2 to make payme nts of the dividend and instruments of bonus share of the defendant No.3 and 4 a nd mandatory injunction to recall and/or cancel the bonus share if issued by the m. (cid:29) The plaintiff, who was minor and represented by his father and n [4] atural guardian, instituted the said suit contending inter-alia that though on 4 th February, 1988 he purchased 100 Equity Shares of Brooke Bond India Limited, t he defendant No.1, (M/s Brooke Bond India Ltd. subsequently amalgamated with Hin dustan Lever Ltd.) under 2(two) share certificates dated 6th December, 1976 and 11th June, 1979 for Rs.8,650/-, of which the defendant Nos.3 and 4, (Mr. Gurudat ta Ramarao Yennemadi and Mrs. Sulochana Gurudatta Yennemadi) were the original h olders and thereafter, sent the said 2(two) share certificates alongwith the sta mp and the signed transfer deeds duly executed by the original share holders, na mely the defendant Nos.3 and 4, to the defendant No.1 on 13th April, 1988 by reg istered post, which was received by the defendant No.2 (M/s Chokesey Bhargava & Co.) on 2nd May, 1988 and acknowledged the receipt thereof, the defendant No.2 o n 23rd May, 1988 has informed the plaintiff about refusal to register the transf er on the ground that the validity of the transferred deeds have expired on 21st October, 1987 and the books of the Company were closed on 5th April, 1988. It has also been pleaded that the plaintiff, thereafter, filed an application befor e the Registrar of the Companies, West Bengal for extension of time for registra tion of transfer and accordingly time was extended and the plaintiff within the extended period of time again sent the share certificates and the original trans fer deeds bearing the stamp and signatures of the defendant Nos.3 and 4 to the d efendant No.1 for transfer of the shares in his favour, which document though we re received by the defendant No.1 on 3rd April, 1989, i.e. within the extended p eriod of time, the defendant No.1 vide communication dated 20th June, 1989 infor med the plaintiff that such transfer cannot be registered as the signatures of t he transferor differs from the specimen signatures recorded with the Company. A ccording to the plaintiff, he, thereafter, on 21st March, 1988 and again on 12th August, 1989 requested the defendant No.1 to stop payment of the dividend and t he bonus share pending finalization of the transfer but despite that the defenda nt No.1 made payment to the defendant Nos.3 and 4. It has also been pleaded in the plaint that the plaintiff reasonably apprehends that the documents, namely, the transfer deeds, have been forged during the sale and purchase. The further pleaded case of the plaintiff is that on receipt of the aforesaid communication dated 20th June, 1989 from the defendant No.1, the plaintiff demanded the defend ant No.6 refund of the value of the shares as per the current market rate and su bmitted the bills dated 1st July, 1989 for Rs.15,051/-, apart from claiming Rs.1 50/- per share and other charges. According to the plaintiff, by the subsequent communication dated 7th August, 1989, he again demanded payment of value of the shares including the bonus and dividend as per the rate for bad delivery and de spite that the defendant No.6 failed and neglected to make payment. The plainti ff, therefore, instituted the suit claiming the relief, which have already been noticed above. The suit was contested by the defendant Nos.1 and 6 by filing th [5] eir respective written statements. The defendant No.6 also filed the additional written statement after amendment of the prayer in the plaint. The other defen dants did not contest the suit of the plaintiff. The defendant No.1 in the writ ten statement filed has pleaded that the plaintiff cannot be the lawful holder o f the shares in question, as the signatures in the transfer deeds do not tally w ith the specimen signatures of the share holders, namely the defendant Nos.3 and 4, and maintained by the defendant No.1. It has also been contended that for t he said reason, the transfer of shares in favour of the plaintiff could not be r ecorded and accordingly, the plaintiff was duly informed. The defendant No.1 pl eaded that the plaintiff is, therefore, not entitled to any relief claimed again st it. [6] The defendant No.6 in the initial written statement filed has al so denied the claim of the plaintiff and contended that the plaintiff has no rig ht to demand from him any refund of the value of the shares as the plaintiff fai led to send the share transfer certificates within the time allowed and there be ing no complain regarding any bad delivery at all lodged, before the Gauhati Sto ck Exchange where the defendant No.6 is a member, before book closing. In the ad ditional written statement filed after amendment of the prayer in the plaint, th e specific plea relating to the suit being barred by limitation has been taken c ontending that no relief as against him having been claimed by the plaintiff wit hin 3(three) years from the date of submission of the bill dated 1st July, 1989 claiming an amount of Rs.15,051/- and Rs.150/- per share and other charges, the suit of the plaintiff as against the defendant No.6 is barred by time. The defe ndant No.6 also reiterated the other pleadings made in the earlier written state ment filed, apart from denying the claim of the plaintiff in paragraph 13 of the plaint. [7] It is worth to mention here that against the order dated 19th Fe bruary, 1994 granting the amendment of the prayer in the plaint, the defendant N o.6 filed Civil Revision Petition No.175/1994, which was disposed of vide order dated 15th November, 1994 allowing the defendant No.6 to raise the plea of limit ation in the suit and directing the Trial Court to decide the said plea, if take n, however, refusing to interfere with the amendment allowed vide order dated 19 th February, 1994. [8] med the following issues for consideration and decision:- The Trial Court on the basis of the pleadings of the parties fra

1. Whether the suit is maintainable?

2. edule-A of the plaint? Whether the plaintiff is lawful owner of the shares mentioned in the Sch

3.(a) Whether the defendant No.1 is liable to transfer the share certificates in favour of the plaintiff, and to pay him the dividend and bonus share from the date of purchase of share?

3.(b) Whether the defendant No.6 is liable to pay to the plaintiff the highest market value of the shares mentioned in Schedule-A of the plaint, and bonus sha re and dividend issued against it?

4. dend and instrument of bonus share to the defendant 3 and 4? Whether the defendant No.1 may be restrained to make payment of the divi

6. .6? To what other relief the plaintiff is entitled? Whether the suit is barred by law of limitation against the defendant No [9] The plaintiff in support of his claim has examined 1(one) witnes s and also proved a number of documents. The defendant Nos.1 and 6 though filed their respective written statements, they did not adduce any evidence, however, cross-examined the witness examined by the plaintiff. [10] The learned Trial Judge has dismissed the suit vide judgment and decree dated 30th June, 1997 by holding that the plaintiff is not entitled to t he decree claimed, as admittedly the shares have not been transferred in the nam e of the plaintiff, in view of the fact that the transfer deeds were not proper and the same are alleged to be forged and by virtue of such documents the plaint iff cannot claim to be the lawful owner of the shares in question. The issue re lating to the limitation has also been decided against the plaintiff and in favo ur of the defendant No.6 by holding that the claim of the plaintiff is barred by law of limitation having not claimed any relief as against the defendant No.6 w ithin 3(three) years from the date when the cause of action against the defendan t No.6 arose, i.e. on 1st July, 1989, which is the date when the plaintiff claim ed an amount of Rs.15,051/- together with Rs.150/- per share and other charges. The issue No.3(b), which relates to the claim of the plaintiff as against the d efendant No.6 for realization of the highest market value of the share as well a s the bonus and the dividend has also been decided against the plaintiff and in favour of the defendant No.6 on the ground that the claim of the plaintiff is ba rred by the law of limitation. [11] Being aggrieved, the plaintiff preferred Title Appeal No.55/1997 , which was allowed as against the defendant No.6 vide judgment and decree dated 21st January, 2000 by decreeing the suit of the plaintiff declaring that the pl aintiff is entitled to get the market price of the shares and bonus and dividend from the defendant No.6, by setting aside the judgment and decree passed by the Trial Court to that extent. The Appellate Court has decided the issue relating to the limitation (issue No.6) in favour of the plaintiff on the ground that th ough the plaintiff initially did not claim any relief against the defendant No.6 and relief against him has been claimed by way of amendment of the prayer in th e plaint on 19th February, 1994, the plaintiff has narrated the claim as against the defendant No.6 in paragraph 13 of the plaint, which has been contested by t he defendant No.6 by filing written statement. The learned Judge while deciding the issue No.3(b) though has held that the liability lies with the defendant No .6 to make the bad delivery into good delivery has, however, held that for the f ailure of that, the plaintiff is not entitled to the claim of higher market valu e of the shares mentioned in Schedule-A of the plaint and bonus shares and divid end issued against it from the defendant No.6. The learned Judge, however, aft er holding so has passed the decree that the plaintiff is entitled to get the ma rket price of the shares, bonus and the dividend from the appellant/defendant No .6, which is evidently contradictory. [12] ber, 2000 on the following substantial questions of law:- This appeal was admitted for hearing vide order dated 10th Novem

1. Whether the lower appellate court committee illegality in decreeing the suit for highest market value of the shares with dividends and bonus shares desp ite finding that the respondent plaintiff is not the owners of the shares?

2. Whether the respondent/plaintiff has got any right to recover any amount from the appellant/defendant under the Securities Contracts (Regulation) Act, 1 956?

3. Whether under Sections 108, 108 B, 110 and 111 of the Companies Act, 195 6 the appellant/defendant not being the transferor of the shares has got any lia bility to refund the price of the shares?

4. f Limitation can be sustained? Whether the decision of the learned lower appellate court on the point o I have heard Mr. R.C. Sencheti, learned counsel for the appellan [13] t/defendant No.6 and Mr. S.P. Roy, learned counsel appearing for the respondents /plaintiff. None appears for the other respondents. Mr. Sencheti, learned counsel for the appellant/defendant No.6 r [14] eferring to paragraph 14 of both the amended and un-amended plaint has submitted that it is evident therefrom that according to the plaintiff himself, the cause of action for filing the suit claiming the relief as against the defendant No.6 arose on 1st July, 1989 and the plaintiff having not prayed for any relief in t he plaint initially filed, the claim of the plaintiff as against the appellant/d efendant No.6, as introduced by the amendment made vide order dated 19th Februar y, 1994, is barred by time, the claim having been made after expiry of 3(three) years from the date when cause of action arose, i.e. 1st July, 1989, and hence t he First Appellate Court ought not to have disturbed the finding recorded by the Trial Court with regard to the issue No.6. According to the learned counsel, t he First Appellate Court did not consider the said aspect of the matter at all. The learned counsel referring to the finding recorded by the First Appellate Co urt against the issue No.3(b) has also submitted that the learned Judge having f ound that for the failure of the defendant No.6 to make the bad delivery into go od delivery, the plaintiff is not entitled to claim the higher market value of t he shares mentioned in Schedule-A of the plaint and also the bonus and dividend from the defendant No.6, ought not to have passed the ultimate decree declaring that the plaintiff is entitled to get the market value of the shares, bonus and dividend from the defendant No.6, the same being contrary to the finding recorde d by the learned Judge against the issue No.3(b). [15] The learned counsel referring to Bylaws 154 of the Byelaws of th e Gauhati Stock Exchange Limited also submits that the appellant/defendant No.6, who is a member of the said Stock Exchange, is not personally liable for any de fective transfer deeds, as those transfer deeds were not lodged with the defenda nt No.1 within the time prescribed by law. It has also been submitted that thou gh the plaintiff in the plaint has pleaded that he apprehends forgery of the tra nsfer deeds, there is no pleading relating to the forgery by the defendant No.6 and no evidence has also been led to that effect, though burden heavily lies on the plaintiff to prove the same. The learned counsel, therefore, submits that t he judgment and decree passed by the First Appellate Court needs to be set aside . [16] Mr. Roy, learned counsel appearing for the respondent No.1/plain tiff, on the other hand, supporting the judgment and decree passed by the First Appellate Court submits that the claim of the plaintiff as against the appellant /defendant No.6 is not barred by law, as the plaintiff in paragraph 13 of the or iginal plaint has narrated his claim as against the defendant No.6. Referring t o Section 6 and Section 21 of the Limitation Act, 1963, Mr. Roy, learned counsel further submits that since on the date of institution of the suit, the plaintif f was a minor, the period of limitation relating to his claim as against the def endant No.6 would commence from the date when he attained the age of majority, a bout which the plaintiff has informed the Trial Court vide application dated 21s t July, 1995. It has further been submitted by Mr. Roy that the suit of the pla intiff, in view of Section 6(1) of the Limitation Act is deemed to be instituted on the date when he attains the age of majority, which is sometimes in the year 1994. Referring to Section 22 of the Limitation Act, the learned counsel furth er submits that since the claim of the plaintiff as against the defendant No.6 i s for a continuing breach of the contract, a fresh period of limitation begins t o run at every moment of the time during which the breach continues and as such, the suit of the plaintiff as against the defendant No.6 is rightly held as not barred by law of limitation. [17] Mr. Roy, with regards to the finding recorded by the First Appel late Court against issue No.3(b) and also the decree passed in the appeal, has s ubmitted that it is evident from the discussions made against the issue No.3(b) that the word (cid:28)not (cid:29) has been inadvertently put thereby giving a different meanin g as the First Appellate Court has held that the defendant No.6 is to make the b ad delivery into good delivery. Referring to the Byelaws of the Gauhati Stock E xchange Limited, more particularly, Bylaw Nos.158, 159 and 162, it has also been submitted by Mr. Roy that the defendant No.6 being the selling member of the Ga uhati Stock Exchange, is responsible for the defective documents and also is res ponsible for refund of the money and as such, the First Appellate Court has righ tly passed the decree, which has been put to challenge in the present appeal. [18] I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by the Courts below. [19] Having regard to the contentions of the learned counsel for the appearing parties and the substantial questions of law formulated, the decision of the First Appellate Court against the issue Nos.3(b) and 6 assumes importance . It may be mentioned at this stage that though the suit of the plaintiff was d ismissed by the Trial Court in its entirety and the First Appellate Court also d id not pass any decree as against the defendant Nos.1 to 5, the plaintiff did no t file any appeal against the judgment and decree passed by the First Appellate Court. [20] As noticed above, the suit was filed by the plaintiff/respondent on 16th August, 1989 initially claiming the relief against the defendant Nos.1 to 4 only. The plaintiff in paragraph 13 of the plaint though has pleaded that he demanded the appellant/ defendant No.6 refund of the value of the shares as p er the current market rate and submitted the bill on 1st July, 1989 for Rs.15,05 1/- and Rs.150/- per share and other charges, which the defendant No.6 failed an d neglected to pay, did not, however, claim any relief against him in the initia l plaint filed. The relief claimed as against the appellant/ defendant No.6 was introduced by way of amendment to the plaint, which was allowed vide order date d 19th February, 1994, praying for a decree, in the alternative, directing the d efendant No.6 to pay to the plaintiff the highest market value of the shares men tioned in Schedule-A and dividends issued against it till the date of payment. The other prayers as well as the averments made in the plaint remain same as t here was no amendment sought for and granted in that respect. [21] In paragraph 14 of the plaint, the respondent No.1/ plaintiff ha s stated about the dates when the cause of action for filing the suit arose. Ac cording to the plaintiff, the cause of action arose on 4th February, 1988, when the plaintiff purchased the shares; on 23rd May, 1988 and 20th June, 1989, the d ates of declaring the transfer documents as defective; on 18th July, 1989 the re corded date for the bonus share; on 1st July, 1989, the date of bill given by th e plaintiff to the defendant No.6 demanding payment for the bad delivery. In th e said paragraph, it has also been pleaded that the cause of action arose also o n subsequent dates, without, however, mentioning any specific date. The relief claimed against the appellant/defendant No.6 relates [22] to the cause of action, which, according to the plaintiff, arose on 1st July, 19 89, i.e. the date of the bill by which according to the plaintiff, he has claime d an amount of Rs.15,051/- from the defendant No.6 and Rs.150/- per share and ot her charges. Hence, according to the plaintiff, the cause of action for claimin g the relief as against the defendant No.6 is based on the bill dated 1st July, 1989 and not on the basis of any contract between the plaintiff and the defendan t No.6. The plaintiff though in paragraph 10 of the plaint has pleaded that bec ause of the circumstances narrated in the foregoing paragraphs of the plaint, th ere is reasonable apprehension of the documents, viz. the transfer deeds being f orged during the process of sale and purchase, nothing specific, however, has be en imputed against the appellant/defendant No.6. There is also no pleading in t he plaint who has forged the transfer deeds. It is a settled position of law th at when the allegation of forgery is made, the burden heavily lies on the person making such allegation to prove such forgery. No amount of evidence has also b een laid to prove any forgery against the appellant/defendant No.6. The claim of the plaintiff/respondent against the appellant/defe [23] ndant No.6 being based on the bill dated 1st July, 1989 claiming an amount of Rs .15,051/- and Rs.150/- per shares apart from other charges, the suit has to be i nstituted claiming the said relief against the defendant No.6 within 3(three) ye ars from the date of the bill. In the instant case, as noticed above, though in paragraph 13 of the plaint, the plaintiff has stated about raising such bill, n o claim initially was made against the appellant/defendant No.6, which claim, ho wever, has been introduced to the plaint on 19th February, 1994, i.e. beyond the period of limitation of 3(three) years. Mere pleading in the plaint by the pla intiff about making such demand without the relief claimed as against the appell ant/defendant No.6 would not save the limitation. The crucial date for determin ing the question of limitation is the date when the plaint was amended by introd ucing the relief claimed as against the appellant/defendant No.6, i.e. 19th Febr uary, 1994. The contention of the learned counsel appearing for the respondent/ plaintiff that the fresh period of limitation would start from the date when the minor plaintiff has attained the age of majority, in view of Section 6(1) read with Section 21 of the Limitation Act, 1963, cannot be accepted for the simple r eason that the plaintiff, who is a minor, has already instituted the suit throug h his father and natural guardian and he also did not attain the age of majority on the date when the amendment of the prayer in the plaint was allowed. Sectio n 22 of the said Act is also not attracted in the case in hand, as the plaintiff ’s claim against the defendant No.6 is not for breach of any contract but for fa ilure to pay the amount as demanded by the bill dated 1st July, 1989. The suit of the plaintiff/respondent, therefore, is barred by time. The First Appellate Court while allowing the appeal preferred by the respondent/plaintiff did not co nsider this aspect of the matter. Having held so, though it is not required to go into the questio [24] n as to whether the appellant/defendant No.6 is liable to pay any amount to the respondent/plaintiff, i.e. the issue No.3(b), it appears that the First Appellat e Court has recorded a clear finding that failure of the defendant No.6 to make the bad delivery into good would not entitled the plaintiff to claim the higher market value of the shares mentioned in Schedule-A of the plaint and the bonus s hares and dividends issued against it from the defendant No.6. Having recorded such finding, the First Appellate Court ought not to have decreed the suit of th e plaintiff as against the defendant No.6. The submission of the learned counse l for the respondent/plaintiff that the word (cid:28)not (cid:29) was inadvertently put to give a negative meaning cannot be accepted. The respondent/plaintiff neither filed a ny application seeking review nor prefer appeal against such finding. It also a ppears from the Exhibit-1, which is the basis for recording the finding by the F irst Appellate Court that as the defendant No.6 was the seller for value and the plaintiff was the purchaser for value, the liability lies with the defendant No .6 to make the bad delivery into good delivery, that by that document an amount of Rs.8,650/- was realized by the defendant No.6 from one Raichand Bhuria, towar ds the cost of 100 shares of Brook Bond. The name of the plaintiff appeared in the said document was, however, subsequently penned through and in his place the name of Raichand Bhuria was mentioned. Admittedly the defendant No.6 is not th e owner of the shares and he was only the broker and hence there was also no rel ationship of seller and the buyer between the defendant No.6 and the plaintiff. The reference made by the learned counsel for the parties to the Byelaws of the Gauhati Stock Exchange Limited, of which the defendant No.6 admittedly is a mem ber, cannot be taken note of as nothing could be placed on record to demonstrate that the said Byelaws was approved either by the Central Government or by the S ecurities and Exchange Board of India and published in the Gazette of India as w ell as in the official Gazette of the State, as required under Section 9 of the Securities Contracts (Regulation) Act, 1956. [25] In view of the aforesaid discussion, I am of the view that the p laintiff’s suit must fail. Hence, the impugned judgment and decree dated 21st J anuary, 2000 passed by the First Appellate Court is set aside by affirming the j udgment and decree passed by the Trial Court, for the reasons recorded above. [26] bear their own costs. The appeal is accordingly allowed. The parties are directed to [27] Registry is directed to send down the records.