1. This company petition is filed under section 111A read with sections 84 and 113 of the Companies Act, 1956 (?the Act?) by M/s. Infosys Technologies Limited (?the Company?) and M/s. Karvy Consultants Private Limited (?Share Transfer Agent?), praying (a) to direct the respondent to furnish an indemnity bond and declaratory affidavit in respect of 1600 shares of Rs. 5 each with distinctive Nos. 970943 to 971342 and 266603151 to 266604350; and (b) to rectify the register of members of the Company in respect of the shares covered under folio No. ITL 008977, for the reasons set out therein.


2. The facts, in brief, leading to the present company petition are that the respondent held 400 shares of Rs. 10 each in the Company during the year 1994, out of which 100 shares came to be sold by him. The Company allotted 300 shares of Rs. 10 each by way of bonus shares and despatched on 15-10-1997 the share certificates bearing certificate Nos. 72201-72203 to the respondent, which were neither received by the respondent nor got back by the petitioners. Thereafter, the Company had received on 30-10-1998 from one Sushila Hiralal Kothari the share certificate No. 72201 together with the transfer deed for effecting transfer in her favour, which was refused on account of the difference in signature of the transferor as contained in the transfer deed. In the meantime, the respondent complained about non-receipt of the share certificate Nos. 72201-72203, in response to which the Company advised the former to apply for duplicate share certificates on furnishing necessary indemnity and affidavit affirming that the bonus shares were lost/misplaced by him. In September, 1999, M/s. Allied Financial Services Limited filed a civil suit in O.S. No. 117 of 1999 before the District Judge Court, Delhi alleging, inter alia, that 100 shares covered under the share certificate No. 72201 were sold by the respondent herein to Sushila Hiralal Kothari, who had lodged the relevant share certificate and transfer deed with the Company for transfer and that the Company had returned the same due to the difference in the holder?s signature and sought, inter alia, to pass a decree of perpetual injunction against the Company not to transfer the shares (100 shares covered under share certificate No.72201) in favour of any person other than M/s. Allied Financial Services Limited or its nominees. However, the said civil suit came to be dismissed on 7-8-2004 against the first petitioner and the respondent herein, upon which the Company had insisted for furnishing an indemnity bond and a declaratory affidavit from the respondent prior to issue of duplicate share certificate in respect of 100 shares covered under share certificate No.72201 and for want of this requirement no duplicate share certificate has so far been issued by the Company. In this background, the respondent had applied and obtained in the year 2000 duplicate share certificates in respect of 200 undisputed bonus shares covered by the share certificate Nos. 72202 and 72203, against execution of an indemnity bond and affidavit. The other grievance is that the respondent had sent 100 bonus shares allotted in the year 1999 for dematerialisation in December, 1999 through M/s. Gogia Capital Services Limited, but the same was rejected, without conceding to his genuine request for dematerialisation. The shares in dispute with accretions account for 1600 shares of each Rs. 5, being the subject of the company petition.


3. According to Shri B.C. Thiruvengadam, learned Counsel, the Company had despatched 300 bonus shares as early as on 15-10-1997, as borne out the relevant computer generated statement of the General Post Office, original of which was produced at the time of hearing. However, the respondent had complained only in the June, 1999 about non-receipt of the share certificates. The share certificates were dispatched to the address as given by the respondent in his share application form. The address of the respondent given in his various communications, reply, letter head, indemnity bond etc. is not one and the same. The respondent describes his name in the indemnity bond as ?Virendra Kumar Agarwal?, but in the letter head, his name is given as ?V.K. Agarwal?, thereby, the respondent has different address in different places and the name is stated differently. In the meanwhile, there was a claim from a third party in respect of 100 shares covered under share certificate No. 72201, resulting in a civil suit filed before the District Judge Court, Delhi which came to be dismissed in August, 2004 against the first petitioner. The respondent instead of complying with the statutory requirements of furnishing necessary indemnity and declaratory affidavit before issuance of the duplicate share certificates, resorted to judicial adventurism by filing complaints after complaints with Securities Exchange Board of India (SEBI), National Consumer Disputes Redressal Commission and Magistrate Court in Najibabad, thereby, harassing the Company, its employees and Registrar. The petitioners are ready and willing to issue duplicate share certificates on due compliance with the corporate and statutory requirement for the issue of duplicate share certificates, by the respondent. Shri Thiruvengadam, learned Counsel pointed out that the register of members in folio No. ITL 008977 corresponding to the respondent reveals that the shares are standing in his name without any share certificate number assigned to them for want of appropriate indemnity bond and affidavit and completion of formalities under section 84 of the Act, which mandates to effect changes in the register of members as and when duplicate share certificates are issued. This infirmity regarding number of shares in the register of members needs to be rectified in exercise of the powers under section 111A. The petitioners are bound to make appropriate changes in the register of members upon issue of duplicate share certificates. The respondent is demanding the duplicate share certificates without complying with the requirements of section 84 and there is therefore, no option but to come before the CLB seeking rectification of the register of members so far as it relates to number of shares corresponding to the impugned shares standing in the name the respondent. The petitioners always acted bona fide and in good faith without jeopardising the interest of the respondent. The petitioners never committed any offences as charged by the respondent. The criminal complaint lodged against the petitioners is an abuse of due process of law and the same has been stayed by the High Court of Allahabad and the charges of the respondent are baseless and devoid of any merits.


4. According to the respondent, the present petition comes within the purview of application as envisaged under section 2(b) of the Limitation Act, 1963 and shall be preferred within three years. Thus, the present petition for rectification of the register of members filed after a lapse of the prescribed period of three years is barred by limitation. The petitioners have not shown any sufficient cause for condoning the delay. The petitioners claim that share certificates in respect of 300 bonus shares allotted in the year 1997 were dispatched by a covering letter dated 15-10-1997, but they failed to produce copy of the said letter to prove their claim. The dispatch journal produced by the Company being merely a computer generated document without postage stamps and seal of the concerned post office is not a genuine and authenticated document and is not admissible in evidence. Mere entry in the dispatch register does not establish proof of delivery, more so when the share certificates were despatched to the wrong address. The petitioners have created false evidence in order to make an unlawful gain at the cost of the respondent. The name of the respondent has been misprinted on the letter head and this is irrelevant, when the petitioners have mailed the share certificates to the wrong address, which would never reach the respondent. The respondent has been complaining of non-receipt of the bonus shares since the year 1997, as borne out by his letters and reminders dated 20-12-1997, 6-3-1998, 12-10-1998 and 24-12-1998, which were never replied by the petitioner, compelling the respondent to approach SEBI. In the meantime, M/s. Allied Financial Services Private Limited had filed a suit in O.S. No. 117 of 1999 on the file of District Judge Court, Delhi against, among others, the petitioners and the respondent herein, in respect of 100 shares covered under the certificate No. 72201, for a decree of specific performance of the contract of sale of those shares purportedly entered into by the respondent. The shares in question have never, been sold by the respondent. However, the petitioners colluded with M/s. Allied Financial Services Private Limited and other defendants in the civil suit and forged the signature of the respondent on the transfer deed with a view to cheat him unjustly with ulterior motive, compelling the respondent to lodge a criminal complaint before the Court of Judicial Magistrate, Najibabad District (U.P). The civil suit before the District Judge Court, Delhi came to be dismissed against the respondent and certain other defendants. The respondent is pursuing his grievances on account of the heavy loss sustained by him, before the National Consumer Disputes Redressal Commission. Though the civil suit has been disposed of in favour of the respondent, the petitioners are unlawfully withholding the share certificates in order to build up pressure on the respondent to withdraw the pending criminal case filed against them. Similarly, the respondent had sent 300 bonus shares allotted in the year 1999, for dematerialisation to the petitioners, out of which 100 shares covered under the share certificate Nos. 121774, are being dishonestly withheld by them, causing undue hardship to the respondent. There is no justification on the part of the Company to retain the bonus shares allotted in the year 1999, which are not in any way under dispute. There has been no order of stay in respect of these shares. In spite of dismissal of the civil suit filed by M/s. Allied Financial Services Private Limited, the petitioner has not chosen to deliver the share certificates in respect of the bonus shares issued both in the years 1997 and 1999 with a mala fide intention and the petitioners have no authority to retain the share certificates without any valid reason. The petitioners are duty bound to send the duplicate share certificates, which are not in dispute, as per SEBI guidelines, without insisting any indemnity from the respondent. The petitioners must be punished for having violated the requirements of sections 84(3) and 113(2) of the Act, by deliberately and fraudulently withholding the share certificates and not sending the duplicate share certificates in favour of the respondent.


5. I have considered the matter in entirety. The issue before me is whether the petitioners are entitled to the reliefs as claimed by them, in the facts and circumstances of the present case. While the petitioners claim that the share certificates were dispatched to the respondent at the address furnished by him in the share application form, the latter stoutly denies receipt of the share certificates for his own reasons. The address of the respondent as contained in his share application form reads thus: Dr. V.K. Agarwal, Balak Ram, Najibabad, UP, Bijnore - 246763. The dispatch journal, original of which was produced at the time of hearing, reveals that the share certificates were dispatched to Virendra Kumar Agarwal, Pooja Bazar, Najibabad (Bijnore), UP-246763. It may be observed that the street name namely, ?BALAK RAM? contained in the share application does not find place in the dispatch journal. It contains the name of the respondent with the initials expanded therein. But for this subtle difference, I do not find any dissimilarity between the two addresses, as borne out by the relevant records. The register maintained at the Company (A-3) containing the holder details indicates the address of the respondent as Balak Ram Street, Najibabad District, Bijnore, UP - 246763. While, the allotment advices dated 24-4-1993 and 27-10-1994 were sent to the address at Moh. Balakram, PO Najibabad, U.P., Distt. Bijnore - 246763, the dividend warrants dated 1-6-1998 and 14-6-1998 were forwarded to the respondent at Pooja Bazar, Najibabad (Bijnore), UP-246763. I do see the difference in the address given by the respondent in his communications, letter head, share application money and indemnity bond executed in favour of the Company as rightly pointed by Shri B.C. Thiruvengadam, learned Counsel. Thus, the Company has adopted different addresses while corresponding with the respondent. Further more, the dispatch journal would only establish despatch of any letter or article, but not conclusive service of such letters or article on the address concerned. The fact of the matter ultimately is that the share certificates despatched in October, 1997 to the respondent at Pooja Bazar, Najibabad (Bijnore), UP - 246763, neither reached the respondent nor returned undelivered to the Company. It is, in my view, futile to go into the controversies in regard to dispatch of the share certificates after a lapse of more than eight years and in the light of the reliefs proposed by me. However, no mala fides could be attributed to the Company, in the absence of any material in this behalf, more so when duplicate share certificates were issued in respect of 200 bonus shares allotted in the year 1997 and 200 bonus shares issued during the year 1999 were dematerialised at the request of the respondent. It has neither been made out that the Company unjustly gained at the instance of the respondent. The provision for issue of duplicate share certificates has been prescribed under rule 4(3) of the Companies (Issue of Share Certificates) Rules, 1960, which reads thus:


?No duplicate share certificate shall be issued in lieu of those that are lost or destroyed without the prior consent of the Board or without payment of such fees, if any, not exceeding Rs. 2 and on such reasonable terms, if any, as to evidence and indemnity and the payment of out-of-pocket expenses incurred by the Company in investigating evidence as the Board thinks fit.?


It is far from doubt that no duplicate share certificate shall be issued in lieu of those that are lost or destroyed except on such conditions in regard to, among other things, indemnity as the Board thinks fit. The grievances of the respondent on account of the insistence of an indemnity bond by the Company must be seen in light of the civil suit filed by M/s. Allied Financial Services Limited in O.S. No. 117 of 1999 on the file of the District Court, Delhi seeking a decree of perpetual injunction against the Company not to transfer 100 bonus shares allotted in the year 1997 in favour of any person other than M/s. Allied Financial Services Limited. The Company was facing serious threat at the instance of M/s. Allied Financial Services Limited in respect of 100 bonus shares issued in the year 1997. The remaining 100 bonus shares allotted in the year 1999 are by way of accretions to the bonus shares of the year 1997, latter of which have been the subject-matter of the civil suit which came to be disposed only in August, 2004. In view of this, I find sufficient justification on the part of the Company for retention of these shares pursuant to the civil suit filed by M/s. Allied Financial Services Private Limited. The grave charges that the petitioners colluded with M/s. Allied Financial Services Limited and forged the signature of the respondent contained in the transfer deed in respect of 100 shares of 1997 merely remain to be pleadings without any proof. The judgment dated 7-8-2004 made in O.S. No. 117/1999 before the District Judge Court, Delhi does not indicate any fraud purportedly played by the Company. It is further observed that the civil court categorically concluded that the respondent herein had neither signed the transfer deed in respect of 100 shares covered under share certificate No.72201 nor sold those shares and therefore, refused to grant any reliefs as claimed by M/s. Allied Financial

Services Private Limited against the Company and the respondent herein. The decree and judgment made in O.S. No. 117/1999 on the file of the District Judge Court, Delhi, having become final are binding on the parties to the suit including the petitioners and the respondent herein, thereby title of the respondent herein to 100 shares covered under share certificate No. 72201 has been upheld by the Civil Court. In view of this, the respondent has become absolutely entitled to the other 100 bonus shares also issued in the year 1999. The Company has not complained of any other claimant in respect of these shares. There is, therefore, no need at this point of time, on the part of the Company to insist for the requirement of any indemnity and declaratory affidavit before issue of the duplicate share certificate in respect of the shares in question. By virtue of this order the Company will issue duplicate share certificates to the respondent in respect of 1600 shares of Rs. 5 each bearing distinctive Nos. 970943 to 971342 and 266603151 to 266604350, which are set out in the company petition, before which the original shares must be cancelled by the Company and intimate M/s. Allied Financial Services Private Limited on such cancellation of the original shares concerning them. The Company will incorporate the distinctive numbers and other particulars in the register of members, within 30 days of issuance of the duplicate share certificates relating to folio No. ITL 008977 of the respondent in terms of this order, thereby rectifying the register of members as claimed in the company petition. Any rectification would raise only on issuance of duplicate certificates, in which case, the present company petition cannot be said to be barred by limitation. With these directions the company petition stands disposed of.