Syed Moazzem Hossain Vs. Mrs. Tahsia Khanam and others, 2 LNJ (2013) 407

Case No: First Appeal No. 196 Of 2006

Judge: Shahidul Islam,

Court: High Court Division,,

Advocate: Mr. Ahsanul Karim,Dr. M. Zahir,,

Citation: 2 LNJ (2013) 407

Case Year: 2013

Appellant: Syed Moazzem Hossain

Respondent: Mrs. Tahsia Khanam and others

Subject: Company Matter,

Delivery Date: 2011-05-08

HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Shahidul Islam, J.
And
Md. Rais Uddin, J.

Judgment
08.5.2011
 
Syed Moazzem Hossain
……Appellant
-Versus-
Mrs. Tahsia Khanam and others
…..Respondents
 
 
Specific Relief Act (I of 1877)
Sections 39 and 42
In the instant case, the exhibit ‘X’ is the instrument of transfer of share certificate executed by the plaintiff and the defendant No. 7. Since it is asserted by the PW. 1 during examining him in Court on oath that the said document was procured taking resort to forgery, the suit ought to have filed under section 39 of the Specific Relief Act but not under Section 42 of the said Act. Moreso, the plaintiff only prayed for `আমরা বাদিনীর শেয়ার ফেরতের মামলা করেছি’ as deposed by PW. 1 and abandoned the rest of the claim made in the plaint. The suit was not maintainable as it is framed.…{(19(c)}
 
Evidence Act (I of 1872)
Section 73
After comparing the signature of the plaintiff as contained in exhibit ‘X’ with the signature as contained in the plaint and vokalatnama, it appears that all the signatures are identical.....19(d)
 
Specific Relief Act (I of 1877)
Section 42
In the instant case the suit is not maintain-able without seeking any remedy as against exhibit ‘X’ to the effect that the said instrument was created taking resort to forgery. Upon a careful reading of the plaint it appears that the plaintiff, although has made out a case as against the defendant No. 7 but ultimately failed to seek any remedy against the defendant No. 7 (appellant). Since the fact of transfer is admitted, although pleaded forgery but since no relief has been sought for praying for setting aside the exhibit ‘X’, the suit is not maintainable in its present form. . . .19 (d)

Companies Act (XVIII of 1994)
Sections 31, 34 and 43
After admitting the fact of transfer shares the plaintiff connot take advantage of section 31 of the Companies Act. The provision of section 34 of the Companies Act has got no manner of application in deciding the matter in issues. Section 43 of the Companies Act provides the provision for ratifying the register by a Court. The matter in dispute is not with regard to rectification of register and as such the points raised by the learned Advocate for the plaintiff are kept out of consideration. …24(a)(b)(c)

Government of Bangladesh Vs Sheikh Hassina and another, 60 DLR (AD) 90; Dudu Mia and others Vs. Ekram Mia Chowdhury and others, 54 DLR (AD) 7; Chittaranjan Chokraborty Vs. Md. Abdur Rab, 49 DLR (AD) 96; Rustom Ali Bhuiyan Vs. Md. Taser ali, 10 MLR (AD) 85; M/S. Malik Huq Vs. Md. Shamsul Islam Chowdhury, 13 DLR (SC) 228; Associated Hotel Vs. Ranjit Singh, AIR 1968 (SC) 933 ref. 

Mr. Ahsanul Karim, Advocate
….. For the appellant
Dr. M. Zahir, Advocate
…. For the respondent No.1
Mr. Ramzan Ali Sikder, Advocate
….. For the respondent Nos. 2-5

FIRST APPEAL No. 196 OF 2006
 
JUDGMENT
Shahidul Islam, J:
 
The added defendant No.7 being aggrieved by the judgment and decree dated 31.03.2005 passed by the learned Joint District Judge, 5th Court, Dhaka in Title Suit No.181 of 1999 has preferred this appeal.
 
The respondent No.1 as plaintiff instituted Title Suit No.181 of 1999 in the court of learned Joint District Judge, 5th Court, Dhaka seeking the following reliefs:-

"এমতাবস্থায় বাদীনি নিম্ন লিখিত মর্মে ডিক্রী প্রার্থনা করেন-
(ক)    তপশীলে বর্নিত বাদীনীর নামীয় ৩০৩৪৭টি শেয়ারের মালিক "বাদীনী" মর্মে ঘোষনামূলক ডিক্রী প্রদান,
(খ)    বিবাদীগন বাদীনীর নামীয় ৩০৩৪৭টি শেয়ার সার্টিফিকেট বাদীনীকে ফেরত প্রদানের জন্য ১-৪নং বিবাদীগন নির্দেশ প্রদান,
(গ)    ব্যয়ভার সহ ন্যায় বিচারের স্বার্থে বাদীনী যে প্রতিকার প্রাপ্তির অধিকারী উহার ডিক্রী প্রদান করিতে মর্জি হয়।
 
The schedule of plaint has been described as under:-

"পূবালী ব্যাংক লিমিটেড কতৃর্ক ১১/১২/৮৫ তারিখে বাদিনীর নাম ট্রান্সফারকৃত শেয়ার সার্টিফিকেট নং ০২৪০১ যাহার ক্রমিক নং ৫১২৯৯২ হইত ৫৪৩৩৩৮ এবং মোট শেয়ার ৩০৩৪৭ যাহা প্রতিটি শেয়ারের মূল্য ১০০/- টাকা বিবাদীগনের নিকট রক্ষিত আছে।"
 
The case, made out in the plaint are as under-
  1. The defendant No.1 being a public limited company sold 30347 shares to Ispahani Limited and the plaintiff being a house wife purchased 30347 share from said Ispahani  Limited and became a share holder. Her name was duly registered in the register book. As per the existing law her share holdership is still existing. The valuation of each share was at the rate of Taka 100.00 only. The share certificate number of plaintiff is 02401 and share numbers being 512992- 543338. Those shares have been deposited with the defendant No.1, namely Pubali Bank Ltd., Head Office, 26 Dilkusha Commercial Area, Motijheel, Dhaka.
  2. The plaintiff made a number of request to the defendant Nos.1-4 to hand over her share to her but with no result. She came to know by the by on 21.5.1990 that, the defendants in collusion with each other were trying to transfer her shares in favour of Muniruddin, Ataur Rahman, Altaf Hossain by forging her signature and further came to know that Md. Sarkune Ali, Director of defendant Bank had deposited the share certificate to the Bank. The plaintiff, thereafter, submitted an application on 21.5.1990 to the defendant No.2 for canceling the prayer for transfer of share.
  3. The plaintiff further prayed on 21.5.1990 for transferring shares in the names of her 5(five) sons and husband but the defendant kept those shares in their custody. The plaintiff without getting any reply of her prayer dated 21.5.1990 again submitted an application on 23.7.1990 to the defendant Nos.1-4 for transferring 21,347 share in favour of her husband and sons and for transferring 6000 share in favour of defendant No.6. She signed the share-transfer form but the defendants had neither taken any steps nor replied to the said prayer.
  4. The plaintiff again on 31.7.1990 submitted another application to the defendant to give effect to the application dated 23.7.1990. By the said letter she requested to the defendants not to transfer any share to anybody else but with no result.
  5. Thereafter the plaintiff requested the defendant No.4 on 04.9.1990 to supply her the copy of extract of the register of Members. Upon receiving the said letter of request the defendant No.4 on 13.9.1990 supplied to the plaintiff the copy of extract of the register of Members, wherefrom the plaintiff came to learn that she was shown as a share holder since 11.12.1985.
  6. Despite of repeated requests the defendant Nos.1-4 did not hand over share certificate to the plaint-iff. On 09.4.1991 the defend-ant No.4 informed the plaintiff that upon receiving number of letters from the plaintiff they reached to a bewildered position and further informed her that the share certificate had been given to the custody of Bank's Director Sarku-me Ali, the defendant No.6. The defendant No.4 requested the plaintiff to make a compromise about the dispute with the defendant No.6. Upon receiving the said letter the plaintiff on 25.4.1991, by submitting a letter of request to the Board of Directors of Pubali Bank Ltd. asserted that it was the duty of the defendant Nos.1-4 to hand over share certificate to the plaintiff. By another letter dated 05.4.1994 she disclosed that, to pay loan of Hotel Zakaria she need to transfer her share and she prayed for getting back her share. She further requested to let her know as to whether those shares were given lien against any loan but no reply was made to those letters.
  7. The plaintiff came to know on 03.7.1994 that the defendant Nos.1-4 in collusion with each other were trying to transfer the shares of plaintiff in favour of Moazzem Hossain. Thereafter on 05.7.1994 she wrote a letter to the defendants not to transfer her share in favour of anybody else. She further informed that she did neither transfer any share nor put any signature for transferring her share and further asserted that if any share was found to be transferred that was done by forging her signature. Despite of repeated request for getting back her shares there held no enquiry against those persons who were involved with the process of forgery. The plaintiff was not given back her shares. As per the letter dated 09.4.1991 the defendant No.4 made several communication with Md. Sircum Ali but did not get back her shares. It was informed to her that the shares were kept with the defendant No.4. Thereafter the plaintiff requested Sircum Ali to take necessary steps for returning back her share and Sircum Ali informed the defendant No.2 on 20.11.1995, by a letter that, the shares of the plaintiff were kept with defendant No.4. He further informed that if the shares were returned back to plaintiff he had no objection. The defendant Nos.1-4 did not take any effective step for returning back the shares of the plaintiff to her. Thereafter the plaintiff issued a legal notice upon the defendants on 31.3.1996 through Mr. Aminul Hoque, a learned advocate for getting back her shares but with no result. Thereafter the plaintiff informed everyth-ing to the proforma defendant No.5, who requested the defendant No.3 to hand over shares to the plaintiff. The defendant No.4 by letter dated 09.4.1991 informed that he got those shares from Sircum Ali and thereafter returned back those shares to said Sarqum Ali but Sirqum Ali by letter dated 20.11.1995 informed that those shares were mortgaged with the defendant No.4. The defendant No.6 on 20.11.1995 wrote a letter to the defendant No.2 and informed him that he would not have any objection if those shares were returned to the plaintiff. On the other hand Moazzem Hossain, applied on 03.7.1994 for transfer-ring those shares in his name. The defendants although gave divident twice to the plaintiff but failed to return back the shares to plaintiff or to her husband or sons.
  8. The defendant No.7 taking resort to forgery had allegedly purchased 30347 shares but upon receiving the letter of the plaintiff dated 05.7.1994 the defendant Nos.1-4 could not transfer those share in favour of defendant No.7. Those 30347 shares have been remaining in the name of the plaintiff in the register of share. The defendant Nos.1-4 might have transferred those shares in favour of defendant No.7 beyond the knowledge of the plaintiff and the defendant No.7 might have procured transfer certificate for getting the share sale certificate issued in the name of plaintiff. The defendant No.7 with a view to get those shares transferred in his name submitted an application on 03.7.1998 along with forged transfer certificate before the defendant No.1 and those certificates were lying with the custody of defendant Bank.
  9. The defendant Bank gave divident to the plaintiff for the financial year 1986-87, 1987-1988 an amount of Taka 1,82,082.00. The plaintiff was given 7585 bonus share on 20.12.2001 bearing certificate No. 18909.
  10. The defendant No.1 on receipt of the plaintiff's letter dated 05.7.1998 refused to issue share certificate in favour of defe-ndant No.7 and those were kept in custody of the defendant Nos.1-4 till date. The defendant No.7 was not entitled to have share certificate in his name.
  11. The plaintiff submitted an application under section 158 of the Company's Act before the High Court Division and that was registered as being Matter No.3 of 1997. The case was withdrawn on 02.6.1999 with a view to submit a suit before appropriate court and accordingly she instituted the suit.
 
The defendant No.1 submitted a written statement contending inter alia, that the suit is not maintainable, barred by the principles of estoppel, acquiescence, waiver, bad for insufficient of Court fees. The real fact of the written statement were as under:-
  1. That the plaintiff, Tahsia Khanam in 1985 bought 30,347 shares of Pubali Bank Ltd. by way of transfer from M/S. M.M. Ispahani Limited. This transfer of shares was duly approved by the Directors of the Bank and a share certi-ficate bearing No.02401 was issued by the Bank and received by the plaintiff on 18.12.1985. The bank sent dividents for the years 1986-1988 to the plaintiff at her address as given and recorded in the Register of Shares.
  2. That the current ownership of the shares, however is uncertain due to the existence of various applications submitted to the Bank for the transfer of the shares, purportedly under the signature of the plaintiff herself.
  3. That on 14.5.1990 Md. Sarqum Ali, Director of the defendant bank submit-tted the original share certificate along with three instruments of transfer, con-taining the signature of the plaintiff, to the bank. After verification of the signature of the plaintiff, the bank cancelled the original share certificate as requested and split the same into three scripts. Before the memo of the transfer could be placed at the Board Meeting for approval, defendant bank received two letters dated 21.5.1990 from the plaintiff. In one of the letters the plaintiff informed the bank that the three instruments of transfer should be cancelled. And in the other letter the plaintiff instructed the bank to transfer 21,347 shares to six different persons namely Md. Zakir Hossain Miah, Md. Zahir Hossain Miah, Md. Jahangir Hossain Miah, Md. Akbar Hossain Miah, Md. Ali Hossain Miah and Md. Altaf Hossain Ashu Miah and to retain the balance of 9000 shares in her own name. The plaintiff also forwarded six instruments of transfer duly signed by her as the transferor with the signature of the respective transferees.
  4. That Md. Sarqum Ali by his letter dated 26.5.1990 informed the bank that there has been a change in the decision to transfer the shares in favour of the spouse of the plaintiff, Altaf Hossain Ashu Miah, Moniruddin and Ataur Rahman as proposed earlier. The defendant bank accordingly returned the share certificate and the three instruments of transfer to Md. Sarqum Ali submitted by him as well as the six instruments of transfer submitted by the plaintiff.
  5. That the plaintiff thereafter by her letter dated 23.7.1990 requested the Bank to transfer the shares to her husband, her five sons and Md. Sarqum Ali canceling her earlier application of 21.5.1990. This request was reiterated by the plaintiff by her letter dated 31.7.1990.
  6. That the plaintiff by her letter dated 04.9.1990 requested the bank to supply her with an extract of the share register relating to the aforesaid shares and accordingly on 13.9.1990 the same was supplied to the plaintiff under cover of a registered letter.
  7. That upon receipt of the extract of the share register as requested, the plaintiff informed the bank for the first time by her letter dated 17.9.1990 that she had never received the share certificate nor had she mortgaged her shares or made any lien against the said shares. The plaintiff further requested the defendant bank to forward the share script or to issue a fresh/ duplicate script.
  8. That in the above circumstances, the defendant bank by its letter dated 09.4.1991 informed the plaintiff that it was unable to register any transfer of shares and requested the plaintiff to take up the matter for settlement with Md. Sarqum Ali.
  9. That on 04.5.1994 the plaintiff reques-ted the bank to settle the outstanding issues. The plaintiff also asked the bank for confirmation whether a lien had been created against the said shares for adjustment of loan liabilities of Altaf Hossain Ashu Miah, husband of the plaintiff, in respect of loan facilities availed by him from Pubali Bank.
  10. That on 03.7.1994 Syed Moazzem Hossain submitted the share certificate along with an instrument of transfer duly signed by the plaintiff as transferor and himself, as transferee. But only after two days of submission of the transfer instrument by the plaintiff, she denied the said transfer and alleged that the signature on the said instrument submitted to the bank had been forged. But so far the defendant bank knew that the plaintiff did not take any step for such forgery.
That in the facts and circumstances of the case, as stated above, Pubali Bank Ltd. fulfilled its obligations and its officers acted bonafide and within authority in accordance with the provisions of Article 34 of the Articles of Association of Pubali Bank Limited in refusing to comply with the inconsistent and confusing instructions made by the plaintiff.

That it is stated that the plaintiff on 05.11.1997 filed an application under section 158 of the Companies Act, 1994 to the Hon'ble High Court Division of the Supreme Court of Bangladesh which was registered as Company matter No.3 of 1997 but afterwards did not press the matter. The plaintiff in order to harass the defendants filed the said application in the wrong forum with no cause of action. From the actions and conduct of the plaintiff it is abundantly clear that she, with a malafide intention filed the present suit to harass the defendants and cause damage to the goodwill of the bank.
 
The defendant No. 7 submitted a written statement contending inter alia, that the suit was not maintainable for want of cause of action; that the suit was barred by limitation; that the suit was barred under section 42 of the Specific Relief Act and barred by waiver, estoppel and acquiescence. The suit was barred by resjudicata. The statements made in the plaint are false, collusive and purposely made. The suit is a test suit and liable to be dismissed. The real facts were as under:-
  1. Defendant No.1 transferred 30347 shares in favour of M.M. Ispahani Ltd. Thereafter Md. Altaf Hossain (Ashu Mia), the husband of the plaintiff purchased those shares in the name of his wife, Tahsia Khanam bearing Share Certificate No.02401. In the Board meeting of defendant No.1 the share index of the plaintiff was registered as 148 and new share certificate was issued in the name of the plaintiff. One of the Directors named Sharkum Ali and the plaintiff's husband were friends.
  2. The plaintiff's husband was in need of money for his business and requested Sirkum Ali to purchase/mortgage/lien of the shares and to provide him necessary fund as loan and accordingly took signature of the plaintiff upon the instrument of transfer of share in presence of witness. The plaintiff's husband and Sarqum Ali jointly placed the said signatures to the concerned officer of the bank to get verified the signature of the plaintiff's with the signature lying with the share department (the signature as contained with the signature taken in form 117) and the concerned officer verified and found the signature of the plaintiff to be identical. Thereafter the officer gave seal and signature upon form 117. At the time of taking signature of the plaintiff upon form 117 for transfer of 30347 shares the name of purchaser was not written as it was not known as to who would be the purchaser. The plaintiff's husband and Sarqum Ali failed to sell or mortgage shares and ultimately requested the defendant No.7 to purchase the shares. The defendant No.7 having had a discussion with the plaintiff and being requested by the plaintiff, the defendant No.7 paid the entire money of those shares. At the time of payment of such money it was agreed upon that the plaintiff and her husband if failed to repay the money back to the defendant No.7, Sarqum Ali would take signature of the plaintiff upon form No.117 (share certificate) and would sale the share elsewhere.
  3. The plaintiff or her husband failed to pay money to defendant No.7 or Sircum Ali on repeated request. Thereafter Sircum Ali took signature of the plaintiff upon form No.117 and transferred 30347 shares in favour of the defendant No.7, Moazzem Ali. Before said purchase, Moazzem Ali personally went to the plaintiff's house and had a discussion with her and her husband. They expressed that they had no objection to sale the shares and accordingly the defendant No.7 purchased those shares for valuable consider-ation. Sircum Ali obtained signature of plaintiff upon form No.117. Thereafter the defendant No.7 on 03.7.1994 submitted form No.117 and share certificate before the bank for transfer-rring the share certificate in his name. The defendant did not forge the signature of the plaintiff upon form 117 of the share certificate. The signature of plaintiff as contained in form 117 were found identical with her admitted signature preserved with the bank. Moreover the plaintiff had not file any case of forgery as against the transfer of shares is concerned and the signature taken in form 117. She did not lodge any G.D. with the police station about forging her signature in form 117.
  4. After receiving application from the defendant No.7 the Bank's Board of Directors scheduled a date for holding meeting upon transfer of those shares and at that stage the plaintiff with a view to be benefited illegally submitted an application on 05.7.1994 before the defendant No.1 raising objection. The Board of Directors decided to take final decision after taking opinion from legal advisor, Dr. Kamal Hossain and Associates. Dr. Kamal Hossain and Associate on 27.9.1994 opined for approval of transfer of shares in the name of the defendant No.7. Mr. Khan Saifur Rahman, learned advocate of bank by his opinion dated 26.9.1994 opined for approval of the transfer of share in favour of the defendant No.7 and requested the bank to do the needful for transferring share certificate in favour of the defendant No.7. The suit having filed after 5 years of said transfer is barred by limitation.
  5. The plaintiff after getting defeated in the High Court Division in a proceeding under section 158 of the Company Act got no locus standi to file the instant suit. The defendant No.7 has purchased 30347 shares from the plaintiff paying due consideration and as such the suit is liable to be dismissed. The plaintiff has not made any prayer for cancellation of share, purchased by the defendant No.7. With these averments the defendant prayed for dismissal of the suit.
The learned Joint District Judge framed the following issues:-
  1. Is the suit maintainable in its present form?
  2. Is the suit barred by limitation?
  3. Is the plaintiff entitled to get a decree as prayed for?
  4. What more relief the plaintiff is entitled to get?
The husband of the plaintiff named Altaf Hossain was examined as the sole witness for the plaintiff and the following documents were admitted into evidence:-
  1. Dividend notice dated 29.6.1989 signed by the Secretary of the defendant No.1 giving 10% divident for the year 1988 was marked as exhibit-1.
  2. Dividend granted at the rate of 6% per each share for the year 1986 was marked as exhibit-2.
  3. Dividend notice granted for the year 1986 and issued on 25.9.1989 was marked as exhibit-2(Ka).
  4. An application dated 04.8.1990 submitted by the plaintiff before the Chairman, Pubali Bank Ltd. Head office requesting him to transfer the share in question in the name of her husband and sons was marked as exhibit-3.
  5. An application dated 20.8.1990 submitted by the plaintiff before the Chairman and Board of Directors Pubali Bank Ltd. Head office requesting them to transfer the share in question in the name of her husband and sons of plaintiff was marked as exhibit-3(Ka).
  6. A letter of request dated 27.8.1990 by the plaintiff to the Secretary, Pubali Bank Ltd. Head office requesting him to issue certificate of share Nos.30347 and index No. T-148- 6363 was marked as exhibit-3(Kha).
  7. A letter of request dated 04.9.1990 made by the plaintiff to the Secretary, Pubali Bank Ltd. Head office requesting him for issue of extract of the Register of Members of Company was marked as exhibit- (nil).
  8. Reply made by the Secretary as against the letter of request dated 04.9.1990 by the plaintiff supplying extract of register of Members of Company was marked as exhibit-3(Ga).
  9. A correspondence by the defendant No.1 to the plaintiff requesting her to settle up her problems through Sarqum Ali has been marked as exhibit-3(Gha).
  10. A legal notice sent by Mr. Anisul Hoque, learned advocate dated 31.3.1996 to the bank was marked as exhibit-3(Uma).
  11. A no objection letter dated 20.11.1995 written by Sarqum Ali to the Chairman, Pubali Bank Ltd, expressing his no objection to return the shares in question to the plaintiff was marked as exhibit-3(Cha).
  12. Copy of the order dated 02.6.1999 passed by a Single Judge of the High Court Division in Matter No.30 of 1997 brought under section 158 of the Companies Act rejecting application as being not pressed was marked as exhibit-4.
  13. An application dated 05.7.1994 filed by the plaintiff before the Secretary, Pubali Bank Ltd. Head office requesting him to abstain from transferring 30347 shares was marked as exhibit-5.
  14. A certificate issued by the Managing Director, Pubali Bank dated 20.12.2001 certifying that the plaintiff holds 7585 shares being number from 1960221- 1967805 was marked as exhibit-6.
 
The defendant No.1 examined one of the Principal Officers of Bank named Parimal Kumar Das as D.W.1. The authorization letter issued by the Managing Director of defendant No.1 authorising Parimal Kumar Das to depose on behalf of the bank was marked as exhibit-Ka.
 
The defendant No.7 examined himself as Dw 2 and admitted into evidence the following documents:-
  1. The instrument of transfer of shares being Transfer No. 143/90executed by the plaintiff in favour of Munir Uddin transferring 10000/- Shars on 20/05/1990 and cancelled on 25.5.1990 was marked as exhibit ‘খ’
  2. Instrument of transfer of share being transfer No. 144/90 by the plaintiff in favour of Ataur Rahaman transferring 347 shares on 20/5/1990 and cancelled on 21/5/1990 was marked as exhibit “খ (১)”
  3. Instrument of transfer of shares being No. 142/90 by the plaintiff in favour of her husband Mr. Altaf Hossain Ashu Miah transferring 20000 shares on 20/5/90 and cancelled on 21/5/90 was marked as exhibit “M (2)”
  4. An application filed by the plaintiff by her own hand writing to the chairman, Pubali Bank Ltd. Head office, Dhaka requesting him to partition her shares in favour of her sons named 1) Jakir Hossain 2) Jahir Hossain Mia 3) Zahangir Hossain Mia 4) Akbar Hossain 5) Ali Hossain Mia and 6) Husband Altaf Hossain was marked as exhibit ‘গ’. The contents of said exhibit ‘খ’ runs thus:-
  5. An application dated 21.5.1990 written by own hand writing of the plaintiff to the chairman Pubali Bank Ltd. Head office , Dhaka requesting him to treat transfer of share certificate already made in favour of 1) Munir Uddin, 2) Ataur Rahaman and Altaf Hossain Ashu Miah to be treated as cancelled was marked as exhibit “গ (১)”
  6. As per the request made by exhibit ‘গ’ the defendant No. 1 transferred shares on 21.5.90 in favour of the plaintiffs Sons and husband on 21.05.1990 and those were subsequently cancelled. Those cancelled instrument of transfer were marked as exhibit “ঘ”, “ঘ (১)”, “ঘ (২)” “ঘ (৩)”, “ঘ (৪)” and “ঘ (৫)”.
  7. An application dated 26.5.1990 submitted by Md. Sarqum Ali to the secretary, Pubali Bank Ltd. 26 Delkusha C.A, Dhaka disclosing that the shares of the plaintiff were mortgaged with him and he requested the secretary to return those shares of the plaintiff to him, and that application was marked on exhibit “ঙ”.
  8. A letter of request made by the plaintiff to the secretary, Pubali Bank Ltd. Dated 23.7.1990 requesting the later to transfer her shares as follows:-
SL No. Name Share No. Instead of
1. Md. Zakir Hossain Miah 4000,000/=
2. Md. Zahir Hossain Miah 4000,000/=
3. Md. Jahangir Hossain Miah 4000,000/=
4. Md. Akbar Hossain Miah 4000,000/=
5. Md. Ali Hossain Miah 4000,000/=
6. Md. Altaf Hossain Ashu Miah 4000,000/=
7. Md. Sargum Ali 5000,000/=
8. Mrs. Tashia Khanom 4000,000/=
Total   30,34700/=
 
That letter of request was marked as exhibit “ছ”.
  1. An application dated 4.9.1990 filed by the plaintiff to the secretary Pubali Bank Ltd. Requesting the later to issue a copy/ extract of the register of Members of company was marked as exhibit “জ”.
  2. An application dated 17.9.1990 submitted by the plaintiff to the secretary Pubali Bank Ltd. Requesting him to send the shares of the plaintiff at an early date was marked as exhibit “ঝ”.
  3. A reply to the said application dated 17/09/1990 sent by secretary Pubali Bank to the plaintiff was marked as exhibit  “ঞ”.
  4. An application dated 4/5/94 submitted by the plaintiff to the Managing Director, Pubali Bank Ltd. Head office was marked as exhibit “ট”.
  5. An application dated 5.7.1994 submitted by the plaintiff to the secretary Pubali Bank Ltd. Board of Directors Board Division , Head office was marked as exhibit “ঠ”.
  6. Instrument of Transfer of shares made by the plaintiff transferring 30347 shares in favour of defendant No. 7 on 30.5.1994 duly executed by both the plaintiff and defendant No. 7 was marked as exhibit “x”.
One Abdul Quiyum was examined as D.W.3 and he was cross examined.
 
The learned Joint District Judge by the judgment and decree dated 31.3.2005 decreed the suit against the defendant Nos.1 and 7 and declared that the defendant Nos.1-4 are bound to return back 30347 shares to the plaintiff and further directed to return those shares to the plaintiff within 90 days.
 
Being aggrieved by the impugned judgment and decree the defendant No.7 has preferred this First Appeal. The defendant No.1 has neither preferred any appeal nor submitted any cross appeal.
 
Mr. Ahsanul Karim with Mr. Kabir Iqbal Hossain, the learned Advocates appeared before this court for the defendant appellant and Dr. M. Zahir with Mr. Mostaque Ahmed Chowdhury, the learned advocates appeared for the plaintiff respondent. Mr. Ramzan Ali Sikder appeared for defendant No.1.
 
Mr. Ahsanul Karim, the learned advocate appearing for the appellant took us through the impugned judgment and decree as well as pleadings of both the parties, evidences on record both oral and documentary and made the following submissions:-
  1. At first he submitted that the suit is not maintainable without any prayer for consequential relief. Taking us through the plaint's statement and prayer portion of the plaint he submitted that the trial court has granted a gratuitous relief to the plaintiff, beyond the pleadings. He submitted that the suit is barred under section 42 of the Specific Relief Act. Referring to the case law reported in 60 DLR (AD) 90 and 54 DLR (AD) 7 he submitted that against alleged creation of forged document of transfer of share, the suit for simple declaration of title without a prayer for declaration that the signature of the plaintiff, taken in share certificate to be forged, the suit is not maintainable.
  2. 2ndly he submitted that the suit is barred by limitation. In elaborating his submission he took us through paragraph No.12 of the plaint and submitted that the shares are not in the hands of the plaintiff. She made her last claim on 20.11.1995 and instituted the suit on 26.8.1999 and as such the suit is barred by limitation. Referring to exhibit 3(Kha) and 3(Gha) he submitted that the plaintiff prayed for issuing certificate of shares to her on 27.8.1990 but that was refused vide exhibit- 3(Gha) dated 13.9.1990 and as such the suit was barred by limitation.
  3. 3rdly he submitted that as per section 38 of the Company's Act the transfer of share occurs in the following manner:-
    1. There must be an instrument of transfer of share.
    2. That instrument be executed by both the transferor and transferee.
    3. Thereafter the transfer must be stamped. Such instrument must be delivered to the company.
    4. Thereafter the registration is completed after entering the name of purchaser in the Share Register Book.
  4. 4thly he submitted that in the instant case the shares have been transferred by the plaintiff in favour of the defendant No.7 by executing an instrument of transfer of share form on 30.5.1994 transferring in total 30347 shares for Taka 3034700/- only and that transfer form was executed by the defendant No.7 duly in presence of witness. He submitted that when the process of entering the name of the defendant No.7 into the register was on process and at that stage the plaintiffs on 05.7.1994 submitted a prayer to the defendant No.1 for abstaining from transferring share although after receiving money against shares she had no authority to raise any objection. He submitted that after receiving consideration money against shares the plaintiff has been ceased to have any right in the subject matter of share. He submitted that for the cause of plaintiff's objection dated 05.7.1994 the name of defendant could not be entered into the register but that will not disentitle the defendant from claiming ownership in the share. He submitted that the trial court without discussing and considering material evidence on record has decreed the suit illegally. He prayed for setting aside of the impugned judgment and decree and dismissal of the suit.
 
Dr. M. Zahir, the learned advocate appearing for the respondent No.1 on the other hand, formulated the following points of arguments in reply to the submissions made by Mr. Ahsanul Karim, the learned advocate for the appellant:-
  1. Initially the suit was filed paying fixed court fees but the plaint was amended and ad valorem Court fees was paid. In view of said amendment of plaint the suit has become maintainable and not barred under section 42 of the Specific Relief Act.
  2. Referring to section 31 of the Company's Act he submitted that the name of the plaintiff is still existing in the certificate of share and the said certificate is the prima facie evidence of the title of the plaintiff.
  3. Referring to section 34 of the Company's Act he submitted that the name of the plaintiff is still in the book of register of Companies Member and as such the plaintiff is entitled to the relief as prayed for.
  4. Thereafter he submitted that as per the plaintiff's prayer the defendant No.1 supplied to the plaintiff, the Index of Members of Company and the name of the plaintiff is very much in the said index and that has not been rectified in the name of defendant No.7 and as such the appeal is liable to be dismissed.
  5. Referring to section 43 of the Company's Act he submitted that the defendant No.7 did not come forward before the court to get his name registered in the Share Register Book and as such he (defendant No.7) has no interest in the subject matter of the suit. It is absurd to believe that a person purchasing share in 1994 would not come before the court for registering his name in the share register book. With these submissions he prayed for dismissal of the appeal. Dr. M. Zahir failed to make any submission upon the question of limitaion.
Upon going through the pleadings of the parties and after considering the submissions made by the learned advocates for the parties we need to frame the following issues for disposal of the appeal:-
  1. After executing “Share Transfer Certificate” by the plaintiff in favour of the defendant No.7, whether a suit for declaration of ownership of those shares as well as order for getting possession of those shares by the plaintiff against the defendant No.1-4 is maintainable in law?
  2. Whether the suit is barred by limitation?
  3. Whether the plaintiff got any right title and interest in the 30347 shares in question?
  4. Whether there created any right title and interest of the defendant- appellant on the strength of exhibit 'X' on the 30347 shares in question?
  5. Whether the suit is barred by the doctrine of waiver as per the evidence of P.W.1?
  6. What are the essentials for valid transfer of shares?
  7. Whether, for want of registration of the transfer in the name of defendant No.7, he lost his claim over the shares?
  8. Whether the impugned judgment and decree are sustainable in law?
 
Let us take up the question of maintainability of the suit.

As per the amended plaint, the plaintiff has prayed for the following relieves:-

"১২ (ক)    তপশীলে বর্নিত বাদীনীর নামীয় ৩০৩৪৭টি শেয়ারের মালিক "বাদীনী" মর্মে ঘোষনামূলক ডিক্রী প্রদান,
(খ)    বিবাদীগন বাদীনীর নামীয় ৩০৩৪৭টি শেয়ার সার্টিফিকেট বাদীনীকে ফেরত প্রদানের জন্য ১-৪নং বিবাদীগন নির্দেশ প্রদান,
(গ)    ব্যয়ভার সহ ন্যায় বিচারের স্বার্থে বাদীনী যে প্রতিকার প্রাপ্তির অধিকারী উহার ডিক্রী প্রদান করিতে মর্জি হয়।
 
Before amendment of plaint the prayer of the plaintiff was as follows:-

"এমতাবসহায় বাদিনী নিম্নলিখিত মর্মে ডিক্রী প্রার্থনা করেন -
(ক)    বিবাদীগন তপশীল বর্নিত বাদিনীর নামীয় ৩০৩৪৭ টি শেয়ার সম্বলিত মূল সার্টিফিকেট বাদীকে ফেরত প্রদান বাধ্য মর্মে ঘোষনামূলক ডিক্রী প্রদান,
(খ)    বিবাদীগন বাদিনীর নামীয় ৩০৩৪৭ টি শেয়ার সার্টিফিকেট বাদিনীকে ফেরত প্রদান বাধ্য মর্মে ঘোষনামূলক ডিক্রী দিতে,
(গ)    ব্যয়ভার সহ ন্যায় বিচারের স্বার্থে বাদীনী যে প্রতিকার প্রাপ্তির অধিকারী উহার ডিক্রী প্রদান করিতে মর্জি হয়।

In the earlier plaint there was no declaration as to the ownership of the plaintiff in the shares in question. By amendment of plaint the only change has been made in the plaint seeking declaration of ownership of the plaintiff in the shares. Earlier the plaint was stamped at Taka 200.00. By amendment of plaint the plaintiff has paid ad valorem court fees upon the suit valuation.
 
Section 2(v) of the Companies Act, 1994 defined share as under- "Share" means a share in the capital of the company, and includes stock except when a distinction between stock and shares is expressed or implide. So, share is a movable property of the company having market value. By the amended prayer of the plaint it has been made for recovery of possession of shares. The shares got its market value. As per the statements made in the plaint the valuation of each share is at Taka 100.00 only. Section 7 of the Court Fees Act provides the provision for paying ad valorem court fees as the "share" is a movable property having market value. Accordingly the court fees paid in the earlier plaint (before amendment) was insufficient and by way of amendment that has been cured by paying advalorem court fees.
 
Mr. Ahsanul Karim, the learned advocate appearing for the defendant No.7- appellant submitted that the suit as stands framed is not maintainable without a prayer for consequential relief. Mr. Karim relied upon the case of Government of Bangladesh vs. Sheikh Hasina and another, reported in 60 DLR (AD) 90 and the case of Dudu Mia and others vs. Ekram Mia Chowdhury and others, reported in 54 DLR (AD) 7. Consequential relief means a substantial and immediate remedy in accorda-nce with the title which the court has been asked for declaration. In the case of Dudu Mia and others vs. Ekram Mia Chowdhury and others, it has been held that in a case where plaintiff is a party to a document or decree that has clouded his title to the property in suit, he has title to the property in suit, he is to seek declaration either way, that is that the document or decree is void or void-ab-initio or that for declaration as well as for cancellation.
 
In the instant case the plaintiff has sought for simple declaration that the plaintiff may be declared as owner to 30347 shares stood in the name of the plaintiff and for an order that the defendant Nos.1-4 be directed to return back 30347 shares to the plaintiff. The only witness of plaintiff (P.W.1) in his examination in chief has substantiated the claim of plaintiff adducing only "আমরা বাদিনীর শেয়ার ফের‡তর জন্য মামলা ক‡রছি". During cross- examination the P.W.1 admitted the fact of transfer of all the shares by adducing the following evidence-

"২১/৫/৯০ আমার স্ত্রী শেয়ার হস্তান্তরের জন্য আবেদন করে।-----সত্য নহে যে, মোয়াজ্জেম হোসেন বরাবর শেয়ার বৈধভাবে হস্তান্তর করা হয়। উক্ত হস্তান্তর জাল জালিয়াতি করে করা হয়। অামরা কোন কিছুই জানি না মোয়াজ্জেমর বরাবর শেয়ার হস্তান্তরের বিষয়।----ইহা সত্য নহে যে, বিবাদী মোয়াজ্জেম হোসেন আমাদের শেয়ারগুলি নিয়েছিল। শেয়ারগুলি পাওয়ার জন্য মামলা করেছি। ----- মামলার পূর্বে সার্টিফিকেট জাল করার কথা জানতে পারি। -------১-৪নং বিবাদী ৩/৭/৯৪ ইং হতে ৭নং বিবাদীর শেয়ার হস্তান্তর করতে না পারে এবং জাল জালিয়াতি হস্তান্তর না করতে পারে তার জন্য দরখাস্ত দিয়েছিলাম।---মোয়াজ্জমের নামে হস্তান্তর করতে পারে সেই জন্যই দরখাস্ত করেছিলাম। ---- ইহা সত্য নহে যে, বাদী নাঃ শেয়ার ৭নং বিবাদীর বরাবরে হস্তান্তর করায় শেয়ারের মালিক ৭নং বিবাদী। ফোরজারী কেস, ৭নং বিবাদীর বিরুদ্ধে করি নাই। ---৯৪ সনে বাদীদের শেয়ারগুলি ফোরজারী করে ৪নং বিবাদীর কাছে হস্তান্তর করেছে তা ডাইরেক্টর হাবিবুর রহমানের মাধ্যমে জানলাম সৈয়দ মোয়াজ্জম হোসেনের বরাবর হস্তান্তর প্রক্রিয়া চলছে। ----৯৪ সনে আমি শেয়ারগুলি অবৈধভাবে হস্তান্তর করেছে তা জানতে পারি।" (underlining by us).

From the above quotted admission of P.W.1 it is clear enough that the shares of the plaintiff has been transferred long before filing of the suit. Whether those were transferred in usual course of business or taking resort to forgery is the moot question and the suit ought have been framed seeking appropriate relief. The P.W.1 admitted that the process of transfer was made taking resort to forgery. At paragraph 10 of the plaint the plaintiff admitted the fact of transfer in favour of defendant No. 7 by making the following statements: “অপর দিকে ঐ শেয়ার সার্টিফিকেট সৈয়দ মোয়াজ্জম হোসেন তাহার নাম হস্তান্তরের জন্য ৩/৭/৯৪ ইং তারিখে জমা দান করিয়াছে মর্মে বিবাদীগন উল্লেখ করিয়াছেন কিন্তু বাদিনী বারবার ফেরত চাওয়া স্বত্তেও যদিও ইত্যবসরে পরস্পর দুইবার তাহাক সংশ্লিষ্ট শেয়ারের ডিভিডেন্ট প্রদান করা হইয়াছে কিন্তু তাহার নামের শেয়ার সার্টিফিকেট তাহাকে অসৎ উদ্দেশ্য বিবাদীগন অদ্যবধি ফেরত প্রদান করেন নাই।” This statement of plaint if read together with the admission of the Pw1 as quoted above it appears to us that the plaintiff being well aware of the fact of transfer of her shares have instituted the suit. If the transfer was made taking resort to forgery the instrument of transfer comes within the amibit of voidable transfer. In that case the plaintiff was required to file a suit for cancellation of the “Transfer of share instrument”. In the case of Chittaranjan Chokraborty V.S Md. Abdur Rab 49 DLR (A.D)-96 it has been held “ If the instrument is voidable then it is incumbent upon the plaintiff to have it cancelled or set-aside under section 39 of the Specific Relief Act. In the case of Rustom Ali Bhuiyan V.S Md. Taser Ali 10 MLR (A.D)- 85 it has been settled “The decree of a suit framed under section 39 of the specific Relif Act must contain indispensably a declaration as to the documents, whether it is void or voidable, and if the court finds it voidable, then only the further consequential relief by way of cancelled of the instrument would find its place in the decree. In the instant case the exhibit ‘x’ is the instrument of transfer of share certificate executed by both the plaintiff and defendant No. 7. The plaintiff did not deny the said exhibit ‘x’ in her plaint or in the deposition of Pw1. Since it is asserted by the Pw1, during examining him in court on oath that, the said document was procured taking resort to forgery, the suit ought to have been filed under section 39 of the specific Relief Act but not under section 42 of the said Act. Moreover the Pw1 in his examination in chief only prayed for “আমরা বাদিনীর শেয়ার ফেরতের মামলা করেছি” and abandoned the rest of the claim made in the plaint. In view of the above the legal positition is that the suit was not maintainable as it stood framed.
 
Exhibit- X is the document of transfer of 30347 shares by the plaintiff in favour of defendant No.7. The exhibit 'X' contains the seal of the defendant Bank and executed by the plaintiff as well as by the defendant No.7. That transfer was made on 30.5.1994 as it appears from the said exhibit 'X'. That exhibit 'X' discloses transfer of 30347 shares being paid up number from 512992 - 543338 at Taka 3034700.00 only. That instrument was written by A. Quayum Khan of 35/A Lake Circus, Kolabagan, Dhaka 1205 and his signature was marked as exhibit- X(1). The signature of the plaintiff appearing in the 1st page of the plaint as well as in the Vokalatnama executed by the plaintiff in the instant appeal appear to be executed by the same person. We have compared the signature of the plaintiff contained in exhibit 'X' with the signature as contained in the plaint and vokalatnama. We found that all the signatures are identical. The P.W.1 although in his cross-examination had admitted the fact that the shares had been transferred in favour of the defendant No.7 taking resort to forgery but no such declaration has been sought for. At paragraph No.10 of the plaint it has been disclosed clearly and specifically that the shares have been transferred in favour of Moazzem Hossain but he was not made a defendant in the suit and no relief has been sought against Moazzem Hossain (defendant No.7). Even after adding the defendant No.7, the plaintiff failed to seek any remedy against said defendant No.7. Admittedly the plaintiff is not in possession of the shares. The case law as cited by Mr. Ahsanul Karim reported in 54 DLR (AD) 7 is squirely applicable in the instant case. In the instant case the suit is not maintainable without seeking any remedy as against exhibit 'X' to the effect that the said instrument was created taking resort to forgery. Upon a careful reading of the plaint it appears that the plaintiff, although has made out a case as against the defendant No.7 but ultimately failed to seek any remedy against the defendant No.7 (appellant). In the case of M/S Malik Huq vs. Md. Shamsul Islam Chowdhury, reported in 13 DLR (SC) 228 it has been held "Right to moneysuit lies for recovery of money. Declaration can not be granted. Along with declaration the plaintiff had to seek for further relief in the form of payment of money or shares. Share means capital, means money. Since the fact of transfer is admitted, although pleaded forgery but since no relief has been sought for praying for setting aside the exhibit 'X', the suit is not maintainable in its present form.
 
Exhibit 'Tha' is a letter dated 05.7.1994 written by the plaintiff to the Secretary, Pubali Bank, contents whereof runs thus:

"The Secretary,
Pubali Bank Limited,
Board of Directors,
Board Division,
Head Office,
Dhaka.

Sub-   Prayer for abstaining from transfer any share from share certificate No. 02401 consisting of 30,347 shares mentioned in index No. T-148 in your Bank.

Dear sir,
It has come to my knowledge that an instrument of transfer of shares has been submitted recently to the Bank containing my signature with proposal for transfer of my shares. This is to inform you that I have not sold my shares to anybody and my signature on the instrument of transfer submitted to you is forged.

I would request you kindly to take necessary action to protect my interest. Thanking you

Yours faithfully-
Sd.
(Tahsia Khanom)
House No. 13/A,
Road No. 18
Bonani Model Town,
Dhaka

C.C. to:      The Chairman, Pubali Bank Ltd., Board of Directors, Dhaka."

The exhibit 'Tha' is not denied by the plaintiff. The transfer of share was made vide exhibit 'X' on 30.5.1994 and the application exhibit 'Tha' was submitted by the plaintiff on 5.7.1994. By exhibit' Tha' it has been claimed that her signature, taken in the exhibit 'X', was forged signature. Thereafter the plaintiff instituted the suit. Unless a prayer is made to the effect that the signature, contained in exhibit 'X' is forged the suit is not maintainable. Considering the facts and circumstances, the evidence on record as well as the statements made in the plaint we are constrained to hold that the suit was not maintainable as it stood framed.

Let us take up issue No.(v) as to whether the suit is barred by the doctrine of waiver, as per the evidence of P.W.1 as well as the statements made in plaint?
 
Waiver is the abandonment of right, and is thus a defence against its subsequent enforcement. It may be express or, where there is knowledge of the right, it may be implied from the conduct which is inconsistent with the continuance of the right (Halsbury"s Laws of England 3rd edition volume 37, page 152).
 
In the case of Associated Hotels vs. Ranjit Singh, reported in AIR  1968 (SC)- 933 it has been held- "waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed that full knowledge of its rights and of facts enabling him to effectual action for the enforcement of such rights.
 
In the instant suit, the plaintiff at paragraph No.10 of the plaint although has made out positive statements that Moazzem Hossain submitted application on 03.7.1997 for getting share certificate transferred in his name but failed to make Moazzem a party in the suit and failed to seek any remedy against him.
 
At paragraph No.20(x) of the written statement submitted by the defendant No.1, the following positive facts have been disclosed- "that on 03.7.1994 Syed Moazzem Hossain submitted the share certificate along with an instrument of transfer duly signed by the plaintiff as transferor and himself as transferee. But only after two days of submission of the transfer instrument by the plaintiff. She denied the said transfer and alleged that the signature on the said instrument submitted to the Bank had been forged. But so far the defendant bank knew that the plaintiff did not take any step for such a forgery." The copy of the said written statement was served upon the plaintiff's advocate on 12.9.2000. (underlining by us)
 
Despite of the said discloser of fact that the plaintiff transferred her share certificate to Moazzem Hossain (defendant No.7), the plaintiff abstained from amending her plaint, seeking proper remedy. The plaintiff proceeded with the disposal of her suit claiming relief only against the defendant No.s.1-4 and making the defendant Nos.5 and 6 as proforma defendant. The suit came up in the peremptory hearing list on 12.11.2001. The P.W.1 was examined on oath on 15.3.2003 and he failed to seek any relief in open court against Moazzem Hossain despite of discloser of definite case of transfer as made out in the written statement of the defendant No.1.
 
24.3.2003 was fixed for further hearing and on that date the defendant No.7 came forward with an application under Order 1 Rule 10 of the Code of Civil Procedure praying for adding him as defendant and that prayer was allowed on 24.3.2003. The defendant No.7 sub-mitted written statement on 17.5.2003. Copy of the written statement was served upon the plaintiff on 17.5.2003. At paragraph No.4(Da) of the written statement the defendant No.7 specifically asserted the facts that he had purchased the shares for valuable consider-ation. Despite of the said discloser the plaintiff did not amend her plaint and willfully abstained from seeking any remedy against the defendant No.7. Moreover the Pw1 in his cross-examination has admitted the following-......From the above admission of Pw1 it is proved beyond doubt that the main clash of contest over the ownership of share has been centered between the plaintiff and the defendant No. 7 but the plaintiff deliberately failed to seek any remedy against the defendant No.7 (appellant). The plaintiff has not come forward to depose in her case. She did not deny the defendant No. 7`s claim over the shares in question. The plaintiff instituted the suit for getting back her share but abstained from seeking any relief against the defendant No.7 despite of admission that the plaintiff transferred the shares in favour of defendant No. 7. The circumstance and the evidence on record clearly made out a case of wairer in claiming share against the defendant No.7.
 
Before filing the instant suit the plaintiff unsuccessfully moved before the High Court Division under section 158 of the Companies Act without impleading the defendant No.7 in the said case. The defendant No.7 was added as a party before the High Court Division in Matter No.3 and disclosed about his purchase of shares. After the said discloser of purchase the plaintiff prayed for withdrawal of her proceeding brought under section 158 of the Companies Act and instituted the instant suit without impleading  the defendant No.7 as a defendant and without seeking any remedy against him. The P.W.1 admitted in his cross- examination about the transfer of shares by plaintiff in favour of the defendant No.7. Considering the facts and circumstances as discussed above and from the admission made by P.W.1 in his cross- examination we are constrained to hold that the suit is barred by the doctrin of waiver in getting any remedy against the defendant No.7. At paragraph 1(Uma) of the written statement of the defendant No.7 it has been pleaded that the suit is barred by waiver, estoppel and acquiescence. In view of the above the suit was liable to be dismissed as being barred by waiver. Accordingly this issue is decided affirmatively against the plaintiff.
 
It is to be noted here that from the statements made at paragraph No. 10 of the plaint it is admitted that the shars in question was transferred to Moazzem in 1994. At first the plaintiff moved before the High Court Division under Section 158 of the Companies Act, without impleading the defendant No. 7 as a party and thereafter instituted the instant suit without impleading the defendant No. 7 as a defendant. In both the matters the plaintiff abstained from seeking any remedy as against the defendant No.7. In both the matters the defendant No. 7 after coming to know of the legal proceeding come forward to protect his interest and contested those legal proceedings. The plaintiff has to come before a Court of law with clean hands for seeking remedy under the Specific Relief Act is the settled law. In the instant case it has been proved that the plaintiff took attempts to get her remedy behind the back of defendant No. 7 despite of the admission made by PW-1 that the plaintiff transferred her share to defendant No. 7. She tried to keep the defendant No. 7 in darkness and behind his back attempted to have declaration as prayed for. The affords taken by the plaintiff were not fair to have declaration as prayed for. Non impleading of defendant No. 7 before the High Court Division as well as before the learned Joint District Judge, 5th Court, Dhaka signifies that the plaintiff tried to have her declaration practicing fraud upon the Court and concealing the fact of transfer of her share. She does not deserve any consideration from a Court of law.
 
Let us take up the issue No.ii whether the suit was barred by limitation?
 
The suit was instituted on 26.8.1999. P.W.1 admitted in his cross-examination that the shares of the plaintiff were sold in 1994-although stated that, "৯৪ সনে বাদীর শেয়ারগুলি ফোরজারী করে ৪নং বিবাদীর কাছে হস্তান্তর করেছে তা ডাইরেক্টর হাবিবুর রহমানের মাধ্যমে জানলাম সৈয়দ মোয়াজ্জম হোসেনের বরাবরে হস্তান্তর প্রক্রিয়া চলছে ----৯৪ সনে আমি শেয়ারগুলি অবৈধভাবে হস্তান্তর করেছে তা জানতে পারি ৯৯ সনে মামলা দায়ের করি।". From the above quoted evidence of P.W.1 it is proved that the suit was instituted after 5(five) years of coming to know about the transfer of shares allegedly taking resort to forgery. Article 91 of the Limitation Act provides 3(three) years limitation for filing suit to cancel or set aside an instrument, become known to him. The plaintiff at first came to know about the said transfer before 05.7.1994 as it appears from exhibit- 'Tha'. Accordingly the plaintiff had to file the suit within May, 1997 for setting aside of the alleged transfer of shares instrument. Accordingly we have no hesitation but to hold that the suit was barred by limitation and was liable to be dismissed on the ground of limitation. The learned Joint District Judge deliberately avoided to decide the question of limitation. Section 3 of the Limitation Act 1908 imposed obligatory duty upon a court to dismiss a suit if instituted beyond the prescribed period of limitation.
 
Let us take up issue No. iii for decision as to whether the plaintiff got any right title and interest in the 30347 shares in question?
 
The defendant was added as a party during examining the Pw1 in open court. Thereafter the defendant submitted written statement and produced before the court, a lot of important documents, applications, signed by the plaintiff and those were marked as exhibit খ-ঠ and ‘x’. The plaintiff received the copy of the written statement filed by the defendant No.7 on 17.05.03. Thereafter the plaintiff failed to amend her plaint. She did not deny the genuineness of exhibit “খ-ঠ and “x”. Exhibit “খ” series disclosed that shares were transferred by the plaintiff in favour of 1) Munir Uddin 2) Ataur Rahaman and 3) Altaf Hossain Ashu Mia on 20/05/1990 and thereafter those instrument of transfer was cancelled on 21/05/1990. Exhibit ‘গ’ disclosed that the (plaintiff) requested the chairman Pubali Bank to transfer her shares in favour of Jakir Hossain and others (5 Persons) and accordingly shares were transferred on 21/5/90 in favour of Zakir Hossain and others vide exhibit “ঘ” to ঘ (৫)” and afterwords those were cancelled. The exhibit ‘ঙ’ is an application signed by the plaintiff to the chairman Pubali Bank dated 23.7.90 requesting the later to transfer shares in the name of 8 persons. By exhibit “ছ” dated 31.7.1990, the plaintiff requested secretary Pubali Bank to confirm her about the transfer if made persnant to her application dated 23.7.1990 (Exbi. ‘P’). Exhibit ‘V’ is an impor-tant application submitted by the plaintiff dated 4/5/94 the contents where of runs thus:-
 
বরাবর,
ব্যবস্থাপনা পরিচালক,
পূবালী ব্যাংক, লিঃ
হেড অফিস,
মতিঝিল, ঢাকা।

বিষয়ঃ-         শেয়ার সার্টিফিকেট প্রদান সম্পর্ক।

জনাব,
বিনীত নিবেদন এই যে, আমি পূবালী ব্যাংক লিঃ এর একজন গর্বিত শেয়ার হোল্ডার আমার শেয়ার সার্টিফিকেট এন্ট্রি তাং ১১/১২/১৯৮৫, এলটমেন্ট লেটার নং ০১, ট্রান্সফার রিসিট নং ১২১/৮৫ ডিস্টিংটিভ নং ৫১২৯৯২ থেকে ৫৪৩৩৩৮ পর্যন্ত, শেয়ার সার্টিফিকেট নং-০২৪০১, শেয়ার সংখ্যা ৩০৩৪৭ টি। ইহার অরিজিন্যাল সার্টিফিকেট আমাকে দেওয়া হয় নাই। তাই অনুগ্রহ পূর্বক অরিজিন্যাল অথবা ডুব্লিকেট সার্টিফিকেট দেয়ার জন্য অনুরোধ জানাচ্ছি| কেননা, আমার স্বামী জনাব আলতাফ হোসন আশু মিঞার নাম হোটেল জাকারিয়ায় এবং অন্যান্য জায়গায় যথেষ্ট ঋণ রহিয়াছে। তাই হয়তো এটা বিক্রয় করিয়া ঋণ পরিশোধ করিতে হইবে। উল্লেখ্য যে, যদি উক্ত শেয়ার আপনার হোটেল জাকারিয়ার ঋণের বদলে কোন লীন করিয়া থাকেন তাও অনুগ্রহ পূর্বক আমাকে জানাইয়া দিবেন। কেননা, এর আগেও বহুবার উক্ত সার্টিফিকেট পাওয়ার জন্য দরখাস্ত করিয়াছিলাম। আমি আশা করি কতৃপক্ষ সার্টিফিকেট প্রদানের ব্যবস্থা করিয়া আমাক বাধিত করিবেন। ধন্যবাদান্তে- (underling by us).

আপনার বিশ্বস্ত
তাসিয়া খানম
তারিখ-৪/৫/৯৪ ইং
 
Exbit “V” is not denied by the plaintiff From exhibit ‘ট’ it appears that the plaintiff and her husband were suffering from accute financial deficiency and had some loan too. She expressed her willingness to transfer her shares. The exhibit ‘x’, the Instrument of transfer of share is not denied by the plaintiff. The exhibit ‘x’ was executed by the plaintiff as well as defendant No. 7 on 30.5.94. If the exhibit ‘ট’ and ‘x’ are read together it proved beyond doubt that to solve financial crisis of the plaintiff’s family debts the shares in question were sold by exhibit ‘x’ on 30.5.1994. Moreover, As per the evidence of P.W.1 the shares have been sold taking resort to forgery. No prayer has been made in the suit seeking declaring that the transfer was made taking resort to forgery. So long such declaration is made the plaintiff is ceased to claim any interest in those transferred shares. The P.W.1 failed to adduce any evidence claiming that transfer of share was taken place by forgery. Since transfer of shares was made in 1994 is admitted, the plaintiff was ceased to retain any interest in those shares in 1999. As a result this issue is decided negatively against the plaintiff. The plaintiff has been ceased to retain any interest in the transferred share.
 
Let us take up issue No. iv, v and vi for decision as to whether there created any right title and interest of the defendant No.7 in the 30347 shares of the plaintiff on the strength of exhibit-X and what are the essentials for transfer of share?
 
The P.W.1 himself in his evidence has admitted the fact of transfer made in 1994. Exhibit-X came from the possession of the defendant No.7- appellant which shows that 30347 shares were transferred at Taka 3034700.00. Section 38 of the Companies Act provides the provision for transfer of shares which runs thus:-
"Transfer of shares:-
  1. An application for the registration of the transfer of shares in a company may be made either by the transferer or the transferee, provided where such application is made by the transferer no registration shall in case of party paid shares be effected unless the company gives notice of the application to the transferee and subject to the provisions of subsection (7) the company shall, unless objection is made by the transferee two weeks from the date of receipt of the notice, enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application for registration was made by the transferee.
  2. For the purpose of sub-section (1) notice to the transferee shall be deemed to have been duly given if dispatched by prepaid post to the transferee at the address given in the instrument of transfer and shall be deemed to have been delivered in the ordinary course of post.
  3. It shall not be lawful for the company to register a transfer of share in or debentures of the company unless the proper instrument of transfer duly stamped and executed by the transferor and the transferee has been delivered to the company along with scrip.
Provided that, where it is proved to the satisfaction of the directors of the company that an instrument of transfer signed by the transferor and transferee has been lost, the company may, if the directors think fit, on an application in writing made by the transferee and bearing the stamp required by an instrument of transferor register the transfer on such terms as to indemnity as the directors may think fit.
  1. If a company refuses to register the transfer of any shares or debentures, the company, shall, within one month from the date on which the instrument of transfer was lodged with the company, send to the transferee and the transferor notice of the refusal.
  2. If default I made in complying with sub-section (4) of this section, the company shall be liable to a fine not exceeding one hundred taka for everyday during which the default continues and every director, manager secretary other officer who is knowing by a party to the default shall, be liable to a like penalty.
  3. Nothing in sub-section (3) shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any share in or debentures of the company has been transmitted by operation of law.
  4. Nothing in this section shall prejudice any power of the company under its articles to refuse to register the transfer of any shares."
Upon a careful reading to the said provision it appears to us that the essentials for transfer of shares are :-
1) the document of transfer has to be executed by both the transferor and transferee, 2) thereafter the transfer of share document must be stamped, 3) Such instrument of transfer must be delivered to the company, and 4) thereafter the duty of the company is to enter the name of the transferee into the share Register Book. In the instant case exhibit-X was executed by both the plaintiff and the defendant No.7. From the said document it shows that Taka 3034700/- has been paid against the price of shares. That document has been delivered to the company. No relief has been sought for as against the exhibit-X. The plaintiff is not in possession of the shares in question. From exhibit- Tha, it shows that the plaintiff raised objection before the Secretary of Bank not to approve the transfer made vide exhibit-X. No relief has been prayed for against the defendant No.7 denying his interest in the share. The process of transfer although has not been completed as yet but from the admission made by P.W.1 it has been proved beyond doubt that the shares in question have been sold to the appellant vide exhibit-X. Registration although has not been completed as yet but the payment of consideration having had made there created interest in favour of defendant No.7 on the shares in question. Accordingly the issues are decided in favour of the defendant No.7 appellant.
 
The suit was although instituted under section 42 of the Specific Relief Act seeking certain declaration upon 30347 shares but Dr. M. Zahir the learned advocate for the petitioner without making any submission upon the question of entitlement of getting declaration of ownership of the plaintiff upon the shares in question kept his argument confined only referring to section 31, 34 and 43 of the Companies Act and submitted that since the name of the defendant No.7 had not been registered in the share Register Book there is no bar in getting declaration as prayed for.
 
Section 31 of the Companies Act runs thus:-

"31.  Certificate of shares or stock-A certificate under the common seal of the company specifying any shares or stocks held by any member shall be prima facie evidence of the title of the member to the shares or stock therein specified."

After perusal of section 31 of the Companies Act it appears to us that the argument made by the learned Counsel for the plaintiff was good in absence of exhibit 'X' and exhibit 'Tha'. After admitting the fact of transfer of shares the plaintiff cannot take advantage of section 31 of the Act. Accordingly that argument does not come to any help to the plaintiff.
 
Section 34 of the Companies Act runs thus:-

"Sec 34. Register of member:-
(i) Every company shall keep in one or more book of register of its members, and enter therein the following particulars:-
(ii) the name and address, and the occupations, if any of the members;
(iii) in the case of a company having a share capital, a statement of the shares held by each members, distinguishing each share by its number and of the amount paid or agreed to be considered as paid on the shares of each member;
(iv) the date at which each person was entered in the register as a member;
(v) the date at which any person ceased to be a member."
Upon perusal of the above provision it appears to us that the section 34 of the Companies Act has got no manner of application in deciding the matter in issues lawfully. Accordingly the points raised by Mr. Dr. M. Zahir is kept out of consideration.
 
The learned Counsel for the plaintiff respondent referred to section 43 of the Companies Act and submitted that the name of the plaintiff is in the Register and as such she is the owner of the shares in question. Section 43 of the Companies Act provides the provision for rectify register by a court. The matter in dispute is not with regard to rectification of register and as such the argument set forth by Mr. Dr. M. Zahir got no relevancy with the subject matter of suit. Accordingly the point raised by the learned Counsel is kept out of consideration.
 
After pronouncement of the operative part of the judgment Mr. Ramjan Ali Sikder, the learned Advocate appearing for the defendant No.1 verbally informed the court that the defendant No.1 has complied with direction made by the trial court. We have perused the entire record as well as order book of the appeal. Mr. Ramjan Ali Sikder, the learned Advocate entered appearance only on 15.3.2011 on behalf of respondent No.2 by filing power. Save and except filing power there is nothing on record that any change has been made with the fate of the shares in question. The respondent No.2 did not inform this court by filing application that they have complied with the lower court's direction. Appeal is the continuation of suit is the settled law. The suit was decreed on 31.3.2005 and the instant appeal was presented on 11.5.2005 which is within limitation. From the judgment it appears that the defendant Nos.1-4 were directed to return the shares to the plaintiff within 90 days from 31.3.2005. The defendant No. 1 (respondent No.2) has contested the suit and supported the defendant No.7's case at paragraph No.20(x) of the written statement. From the order book it appears that by order dated 16.5.2005 the operation of the impugned judgment and decree has been stayed and the notices upon the respondents were served between 16.10.2008 to 19.10.2009. Since the operation of the impugned judgment was stayed, the information supplied to the court by the learned counsel for the respondent No.2 is not acceptable without any written instrument. If the shares were handed over to the plaintiffs by the respondent No.2 that would have been specifically pleaded by the learned Counsel for the plaintiff. The respondent No.2 cannot do anything during pendency of the appeal and as such the information supplied by Mr. Ramjan Ali Sikder does neither help the court for arriving at its decision nor absolve the defendant No.1 from its responsibility. Moreover the said information is contradictory with the stand taken by the said defendant in the trial court by filing written statement. Accordingly we cannot take notice of the said information. Moreover the Bank has neither filed any appeal nor cross appeal. As such the stand taken by the learned Counsel for the Bank goes against the sanctity of the Banking business. The respondent No.2 is bound by the final result of the appeal.
 
Let us take up issue No. viii for decision.

From the facts and circumstances and the evidence on record as well as the decision taken by us, we are of the view that the impugned judgment and decree are not sustainable in law. The learned Joint District Judge without discussing the material evidence on record has decreed the suit although the suit was not maintainable and was barred by waiver and limitation. The impugned judgment and decree are liable to be set aside. Accordingly we find merit in the appeal.
 
In the result, the appeal is allowed however, without any order as to costs. The impugned judgment and decree dated 31.03.2005 passed by the learned Joint District Judge, 5th Court, Dhaka in Title Suit No.181 of 1999 are set aside. The suit is dismissed, however without any order as to costs.
 
Send down the records at once.
 
Ed.