AFFIDAVIT
We 1) Mr. Shailendra Aglawe,
Age – 35 years, Occ. Advocate,
2) Mrs.Shubhangi Shailendra Aglawe,
Age - 33 years, Occ – household.
Both R/at : Plot No. 13 Ashvamedh Jay Prakash Nagar,
Air Port Road, Lohagaon Pune- 31,
State on solemn affirm that :
Our daughter Chinmayee Shailendra Aglawe, date of Birth – 12/10/2005 (Minor) of whom we are the parents in respect of her we have filed an application for obtaining the passport.
We undertake the entire responsibility for her expenses. We solemnly declared that no passport was issued to her and it has not been lost, surrender or have been deprived of her citizenship of India and that the information given in respect of her application is true it is also affirm that we are holding valid Indian passport and the name of the child mentioned is not included in passport of either parent.
We state that we are holding the passport as per the details given below.
A) Mrs. Shubhangi Shailendra Aglawe passport No.
B.2443617 dt. 26/7/2000 issued by passport officer
Pune.
Mr. Shailendra H. Aglawe Passport No. A 5655977 dt.
15/6/1998 issued by passport officer Mumbai.
Whatever stated above is true and correct to the best of my knowledge information and belief and that we have put our signature on the present affidavit/ declaration to be annexed with the issue of the passport in the name of minor child.
Pune
Date : 16/6/08
1)
father
2)
Mother
Left hand Thum impression of father
Right hand Thum impression of Mother
AGREEMENT
THIS AGREEMENT IS MADE AND EXECUTED AT ----- ON THIS
--DAY OF 200
BETWEEN
The Pune Municipal Corporation
The Municipal Corporation established
Under The Bombay Provincial Municipal
Corporation Act 1949
Through-------------------- Hereinafter referred as The party of the I part.
AND
M/S. MANSI ENGEENIRRING
And Contractors, a Proprietorship
Concern, Through it’s proprietor
Mr. ------------------------- Hereinafter referred as
The Party of the II Part.
WHEREAS the party of the I part is established for the welfare of the public at large thereby use to provide various services and facilities of public nature like electricity, roads, water etc. through various government schemes within the territorial jurisdiction i.e. city of Pune.
AND WHEREAS the party of the II part is the proprietorship, concern in civil engineering, and construction contract having it’s business in and around Pune city.
AND WHEREAS the party of the part desires to provide 24 mtrs. wide road as per it’s sanctioned plan vide R.P./D. P. scheme for village Dhanori through S. No. 4,5,6,10,11,12,76,77,78,and 79 of village Dhanori.
AND WHEREAS the party of the II part has submitted it’s proposal to the party of I part for the construction of the aforesaid road, for 1.9 K.M. of 12 mtrs. wide, out of the total 24 mtrs wide road of R.P./D.P. scheme, without any consideration and at it’s own cost.
AND WHEREAS the party of the I part has accepted the said proposal with some conditions vide it’s conditional acceptance letter dt.--------------
AND WHEREAS as the parties are agreed to the same on the following terms and conditions.
1) The party of the I part has assigned/granted all rights to and in favour of the party of the II part for the construction of 1.9 k.m. road of 12 mtr. Width out of total 24 mtrs wide road of R.P/D.P. scheme of village Dhanori, thought S.No.4,5,6,10,11,12,76,77, 78 and 79 of village Dhanori hereinafter referred as ‘Said road’ without consideration and at the cost of the party of the II part subject to terms and conditions mentioned in it’s letter No.----- dt. ----
2) The party of the I part, by this indenture has given/granted to the party of the II part the right only to built and construct the said road said however the ownership of the land below the road will remain with the party of the I part.
3) The party of the II part should build the said road as per the directions of the concerned department of the party of the I part.
4) The party of the II part should not demand from the party of the I part any consideration concession, F.S.I. (Floor space Index) in lieu of the said work.
5) After contraction, the said road will be treated as ‘Public Road’ and will remain under sole control of the party of the I part.
6) The party of the II part will be at it’s discretion to build the said road either by it self or in partnership, with ‘SAHARA INDIA COMMERCIAL CORPORATION LTD’ or with any other person.
7) The party of the II part have all rights to appoint contractor, sub-contractor, surveyor labour contractor etc, however the party of the II part will remain responsible for any such agreement with any such person/s.
8) The party of the II part should commence the construction of said road within three (3) months from the date of this agreement.
9) After completion of construction of said road, the party of the II part neither claim any personal right on said road not object or obstruct in any way any person/s from using the said road.
IN WITNESS WHEREOF THE PARTIES HAVE JOINED THEIR HANDS.
Witnesses
1) Sign :
Name :
Address : The Party of the I Part
2) Sign :
Name :
Address : The Party of the II Part
AGREEMENT TO SALE
This Agreement to sale is made and executed today on this -------- day of --------- in the year 2008.
BETWEEN
Mr. Zakir Hussain
Age : 54, Occu : Retd
R/at : Flat No. 4, Alishan Corner
Plot No. 160, Lulla Nagar,
Pune – 40
HEREINAFTER Called as the “VENDOR” (Which expression unless repugnant to the context or meaning there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE FIRST PART
AND
1) Sabu Cherian
Age – 40 yrs, Occupation : Service
2) Dr. Sarah Sabu Cherian
Age – 39 yrs, Occupation : Service
Both are residing at 14/267,
Mira Society, Shankar Sheth Road,
Pune -37
HEREINAFTER Called as the “PURCHASERS” (Which expression unless repugnant to the context or meaning ‘there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE SECOND PART
Father Michel Co-Op. Housing Society, Ltd
Registered Society. Reg.No. PNA/PNA (2) HSG (To)
932/200/2002, S.No. 39/1/1, Dhanori Village,
Vishrantwadi, Pune -411 015
Through Chairman Gopinath S. Chalke,
and Secretary Shri. B.S.Rana
HEREIN AFTER CALLED AS “CONSENTING PARTY”
PARTY OF THE THIRT PART
Whereas the property bearing survey No. 39/1/1 Village Dhanori, Tal – Haveli, Dist- Pune totally admeasuring 4 Acre 11 guntha is owned and possessed by the consenting party.
And Whereas present Vendor with other members have contributed towards the fund required for purchasing the said property bearing survey No. 39/1/1 Dhanori.
And Whereas consenting party has laid out the said No. 39/1/1 into small polls and allotted the plot No. 37 admeasuring 177.12 sq.mt. to the Vendor vide allotment letter dated 7/8/2004
And Where Vendor had Constructed a residential house admeasuring 120.99sq. mt. on the said plot No. 37 at his own cost and regularized the construction under gunthewari Act for which the PMC has issued the Regularisation certificate bearing No. 40031 dated 18/8/2004.
And Whereas Vendor has shifted to another place and there decide to sell residential house.
And Whereas the purchasers were in need of residential property got knowledge of intention of Vendor and therefore approached the Vendor and offered to purchase the said property, described in the schedule here in for total consideration of Rs. 24,20,000/- Negotiation took place between the parties and the vendor found the offer given by purchaser as reasonable and as per market rate and therefore has agreed to sell and the purchaser has agreed to purchase the said property for the consideration of Rs. 24,20,000/- on the terms and conditions mentioned hereunder.
NOW THEREFORE THIS INDENTURE WITNESSTHAS UNDER :
1) In consideration of Rs.24,20,000/(Twenty Four lakhs Twenty Thousand Only)paid by the purchaser to Vendor as per the details given in para 2 of this deed, the Vendor do hereby agrees to sell/assign all the rights title ,interest as owner of the residential premises constructed on plot. No. 37 including the shares of the society bearing distinctive No.171 to 175 the rights of membership and the right in the plot No. 37 in favour of purchasers without any reservation whatsoever nature.
2) a) Rs. 25,000/- (Paid by Cheque No. 865112, dated
5/1/2008 drawn on H.D.F.C Bank, Branch Shankar Sheth Road.
b) Rs. 3,95,000/- At the time of Agreement.
c) Rs. 20,00,000/- To be paid by raising loan from
bank of financial institution, within 15 days from the date of this agreement.
-----------------------------------------------------------
Rs. 24,20,000/- Total Rupps Twenty Four lakhs
Twenty Thousand Only
3) If for any reason the purchaser fails to pay the balance purchase price of Rs. 20,00,000/- within 15 days from the date of this agreement but pays the same within 30 days thereafter, then purchaser shall be liable to pay interest at the rate of 18% p.m. for the said period of delay beyond 15 days the date of his agreement.
4) If at the end of this period of 45 days from the date of agreement the purchaser does not make the payment then the vendor may at his option terminate the present agreement by giving 14 days notice in writing to the purchasers and upon such termination the vendor shall return the earnest money, without interest within a period of 15 days from such termination after deducting an amount of Rs. 50,000/- to wards expenses.
5) The Vendors hereby covenant with purchasers as under.
a) That the vendor is the sole and absolute owner of the
said property as well as the shares bearing No. 171 to 175 of the society (Consenting Party) and the Vendor is entitled to enter into Agreement for sale and transfer of the said shares and the said property and the title of the vendor is marketable and free from all encumbrances and no other Person or persons have or have claimed any right, title, interest of any nature whatsoever, in or upon the said property and the said shares of society by way of sale, mortgage, exchange, lease, inheritance, maintenance, possession or otherwise.
b) That the Vendor has also assured unto the Purchaser that the said property is neither a subject matter of any pending litigation nor any requisition or acquisition proceedings.
c) That the Vendor shall bear and pay all out going assessments, maintenance charges, electricity charges and all other expenses whatsoever payable in respect of the said premises up to the date of delivery of possession of the said property and the Vendors shall keep the purchasers indemnified form and against all claims and demands in respect thereof.
d) That Vendor shall put the purchaser in actual possession of the said property at the time of execution Deed of Assignments of Rights, which is to be executed after receipt of balance consideration as per clause 2(c).
e) That on payment of the balance purchase price, the purchaser shall be entitled to hold, possess, use and occupy the said proper and the purchasers shall become entitled to all the rights and benefits attached in respect of the said property without any interruption or interference by or from vendor or from any person or persons lawfully or equitably claiming by, from, under or in trust for the vendor.
f) That the Vendor shall on payment of the balance purchase price and at the tie of delivery of possession of the said property to the purchasers, execute Deed of Assignment in respect of the said property on terms and conditions mentioned herein and such Deed of Assignment shall be stamped with requisite stamp duty by Purchaser at his own cost.
6) The Purchaser hereby covenant with the Vendors as Under:
a) That the purchasers shall from the date of delivery of possession of the said property to the purchasers pay to the said society the proportionate contribution and the municipal and other taxes and out goings, water taxes, electricity charges, maintenance and other charges payble in respect of the said property and shares and keep the vendor indemnified against any liability in respect there of.
b) That the purchasers shall become members of the said society and observe and perform and abide by the Rules and Regulations and Bye laws of the said society.
c) That the Purchasers shall from time to time and at all times indemnify and keep indemnified the Vendor from and against all claims and demands whatsoever arising in respect of the said property and the said the shares relating to the period subsequent to the date of delivery of possession of the said property to the purchaser.
7) It is agreed between the parties hereto that the Purchasers shall bear and pay the amount of transfer fees and all other amounts, if any, payable to the said society for obtaining permission of the said society for sale and transfer of the said society for sale and transfer of the said shares and the said property in favour of the purchasers and the vendor shall not bear any such amounts required to be paid to the said society for the purpose. The purchasers shall bear and pay the stamp duty and registration charges on the Deed of Transfer and documents to be executed in pursuance there of.
8) The consenting party has agreed to enroll the purchasers as its member subject to payment of requisite charges. The consenting party, offer the execution of the Deed of Assignments, shall execute, the lease deed in respect of the plot No. 37 in favour of purchasers, subject to purchasers paying all the amounts payable to the society.
SCHEDULE OF THE PROPERTY :
All that piece and parcel property admeasuring 120.99 sq.mts constructed on the land bearing survey No. 39/1/1 Plot No. 37, in father michel Co. Op Soc. Dhanori Pune, Situated within the limits of Dhanori Village, Tal-Haveli Dist Pune, Within the limits of Sub-Registrar Haveli No.- 8 and bounded as follows.
On or towards East : 36
On or towards South : 38
On or towards West : 40
On or towards North : Bountary of Society.
Along with all the rights, easementary right to use the approach road, right of member in the society and all other rights which were with the Vendor and ownership right in the fittings, fixtures, and water mater.
IN WITNESS WHERE OF THE PARTIES HAVE SIGNED TODAY IN THE PRESENCE OF WITNESSES.
Witnesses ;
1) Sign :
Name : Purchaser
Address : 1)
1) Sign :
Name : 2)
Address :
Vendor
AGREEMENT TO SALE
This Agreement to sale is made and executed today on this -------- day of --------- in the year 2008.
BETWEEN
Mr. Zakir Hussain
Age : 54, Occu : Retd
R/at : Flat No. 4, Alishan Corner
Plot No. 160, Lulla Nagar,
Pune – 40
HERE IN AFTER Called to as the (VENDORS) (Which expression unless repugnant to the context or meaning ‘there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE FIRST PART
AND
1) Sabu Cherin
Age – 40 yrs, Occupation : Service
2) Dr. Saran Sabu Cherin
Age – 39 yrs, Occupation : Service
Both are residing at 14/267, Mira Society, Shankar Sheth Road, Pune -37
HERE IN AFTER Called to as the (Which expression unless repugnant to the context or meaning ‘there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE SECOND PART
Father Michel Co-Op. Housing Society, Ltd
Registered Society. Reg.No. PNA/PNA (2) HSG (To)
932/200/2002, S.No. 39/1/1, Dhanori Village,
Vishrantwadi, Pune -411 015
Through Chairman
HEREIN AFTER CALLED AS
And Whereas the property bearing survey No. 39/1/1 total admeasuring 4 Acre 11 Ares is owned and possessed by the consenting party.
And Where as present Vendor with other members have contributed towards the fund required for purchasing the said property bearing survey No. 39/1/1
And Where as consenting party has been allotted plot No. 37 admeasuring 177.12 sqmt to vendor vide allotment letter dated 7/8/2004
And Where Vendor had Constructed a residential house admeasuring 120.99sq mt on said plot after taking the permission from the local authority at his own cost and regularized the construction under gunthewari Act dated 18/8/2004.
And Where as the purchasersin need of property and approached the vendor for the purchase of the said property described in the schedule herein. Negotiation took place between the parties and the vendor has agreed to sell and the purchaser has decided to purchase the said property on the terms and conditions mentioned hereunder.
NOW THEREFORE THIS INDENTURE WITNESSTHAS UNDER :
1) In consideration of Rs.-------------- to be paid by the purchaser to Vendors as per the details given in para 2 of the deed, the Vendor do hereby agree to sell/assign all the rights title interst as owner of the residential premises constructed on plot. No. 37 including the shares of the society bearing nos.-------------- in favour of purchasers without any reservation whatsoever nature.
2)
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 25/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/10/94 for reasons “referred to drawer” and complainants Bank informed complainant on 10/11/94 and thereafter, the notice of demand was issued on 12/11/94 and stated to be received on 19/11/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on 5/12/94 and the complaint was filed on 4/1/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgment and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 25/95. The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the notice period of 15 days expired on 4/12/1994 and the statutory period of 30 days for filing complaint expired on 3/1/95, and therefore, the complaint filed on 4/1/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges / installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges / installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no.25/ 95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 25/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. No. 25/ 95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 1781/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/10/94 for reasons “referred to drawer” and complainants Bank informed complainant on 10/11/94 and thereafter, the notice of demand was issued on 12/11/94 and stated to be received on 19/11/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on 5/12/94 and the complaint was filed on 3/7/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 1781/95. The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the notice period of 15 days expired on 4/12/1994 and the statutory period of 30 days for filing complaint expired on 3/1/95, and therefore, the complaint filed on 3/7/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 1781/ 95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 1781/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th joint Civil Judge Senior Division and J.M.F.C in S.C.C.No. 1781/95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 491/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/10/94 for reasons “referred to drawer” and complainants Bank informed complainant on 10/11/94 and thereafter, the notice of demand was issued on 12/11/94 and stated to be received on 19/11/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on 5/12/94 and the complaint was filed on 4/1/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 421/95.The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the notice period of 15 days expired on 4/12/1994 and the statutory period of 30 days for filing complaint expired on 3/1/95, and therefore, the complaint filed on 20/2/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 491/ 95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 491/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. No.491/ 95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C.761/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 30/1/95 for reasons “referred to drawer” and complainants Bank informed complainant on 30/1/95 and thereafter, the notice of demand was issued on 3/2/95 and stated to be received on 10/2/95 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on and the complaint was filed on 22/3/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 761/95.The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the complaint filed on 22/3/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 761/95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 761/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. Case No. 761/95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 2808/94 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/8/94 for reasons “referred to drawer” and complainants Bank informed complainant on 3/9/94 and thereafter, the notice of demand was issued on 7/9/94 and stated to be received on 18/9/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on and the complaint was filed on 29/10/94.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 2808/94.The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the complaint filed on 29/10/94 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 2808/94 be called from the 13th joint civil judge Sr. Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 2808/94 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. Case No. 2808/ 94 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal nO. /08
1. Mr. K.N. Rajendran
2. Mr. Uttam Salve …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
2. Central Railway Employees Consumers
Cooperative Society Ltd.
3. State of Maharashtra … Respondents
Application on behalf of the appellants for bail:
1.The appellants has filed the present appeal against the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. /95 on various grounds which are mentioned in the appeal memo. In order to avoid repetitions the contents of the appeal memo be treated as part and parcel of this application.
2. The accused after receiving summons had appeared in the S.C.C. no. /95 and gave bail. Thereafter, the evidence was recorded in the matter and learned 13TH joint Civil Judge Senior Division, & JMFC Pune by Judgment and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Thereafter the Ld. Trial Court have continued the bail of the appellants till the appeal period.
3. The appellants had regularly attended the trail court and had never misused the bail granted by the trial court. The conduct of the appellants had always been good. Both of them are retired Government employees.
4. The appellants have sanguine hopes of succeeding in the present appeal and therefore it is necessary to continue the bail which ahs been granted by the Ld. Trial Court.
5. It is therefore prayed that
a) The bail which was granted by the 13TH Joint Civil Judge Senior Division, & JMFC in S.C.C. no. /95 and which has been extended further after the Judgment and Order dtd 29/1/08 may kindly be continued.
b) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date :25/02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal nO. /08
1. Mr. K.N. Rajendran
2. Mr. Uttam Salve …Appellants
V/S
1. Kirloskar Leasing
and Finance Ltd. & ors … Respondents
Application on behalf of the appellants for suspension of sentence :-
1. The appellants have filed present appeal before this Hon,ble Court against the Judgement and order passed by Learned 13th Joint Civil Judge Senior Division and JMFC, Pune in S.C.C. no. /95 dtd. 29/1/08 on various grounds which are mentioned in the appeal memo. In order to avoid repetitions the contents of the appeal memo be treated as part and parcel of this application.
2. The appellants have sanguine hopes of succeeding in the present appeal and therefore it is necessary to suspend the sentence and the impugned Judgement and order passed by Learned Joint 13th CJJD and JMFC, Pune in S.C.C. /95 dtd. 29/1/08.
3. It is submitted that, if the suspension is not granted to the impugned order, these appellant will suffer grave and irreparable loss.It is submitted that, if present application is granted no loss and harm will caused to respondents as the respondent have already received the money under the cheque.
4. It is therefore prayed that :
a. The the Judgment and order passed by Learned 13th Joint Civil Judge Senior Division and JMFC, Pune in S.C.C. no. /95 dtd. 29/1/08 and the sentence may kindly be suspended till the final hearing and decision of the present appeal.
b. Any other just and appropriate order be passed in the interest of justice and equity
Pune
Date :25/02/08
Appellants
Adv. For Appellants
Assignment Deed
This Deed of Assignment made and executed at Pune on day of June 2008
BETWEEN
Mr/ Amit Dilip Shaha
Age – 31 yrs. Occ : Business
R/at : Flat No. 6, Bldg No. ‘D’ – 16
Second Floor, Liberty Co-Op Hsg. Society,
North Main Road, Koregaon Park,
Pune : 411 001
HEREINAFTER referred as “ASSIGNOR/VENDOR” (Which expression shall unless repugnant on contrary to the context or Hearing thereof be deemed to mean and include his heirs, executors, administrators and assigns etc.)
…. PARTY OF THE FIRST PART
AND
HEREINAFTER referred as “ASSIGNEE/PURCHESOR” (Which expression shall unless repugnant on contrary to the context or Hearing thereof be deemed to mean and include his heirs, executors, administrators and assigns etc.)
…. PARTY OF THE SECOND PART
AND
1) Mr. Vijakumar Doseja
Age. Adult Occ : Business
R/at : Row House No. 16, Konark – Enclave,
22, Bundgarden Road, Camp, Pune – 411001
CONSENTING PARTY NO. 1
2) Mr Ahura Builders,
Having its office at 957, Nana Peth,
Pune – 411 002, through its
Managing Partner,
Mr. P.A. Inamdar
Age – Adult, Occ. – Business
HEREINAFTER called as the “Builder/Consenting Party”
CONSENTING PARTY NO. 2
3) Liberty Co. Op. Hsg. Society
North Main Road, Koregaon Park,
Pune – 411 001
Through it’s Chairman
Mr.
Age : years, Occ. :
R/at
Co-Op HS/Connecting Party No. 3 (Which expression shall unless repugnant to the context or meaning thereof shall be deemed to mean and include his succession administrators etc.)
…. PARTY OF THE THIRD PART
WHERAS Consenting Party No. 2 i.e M/S Ahura Builders has proposed to original owners for development of land final Plot No. 323 TPS, and thereafter completed the construction of the Bldg. i.e. Liberty Co-Op Hsg. Society as per the plans ---nctoned by Pune Municipal Corporation.
ANDWHEREAS liberty Co-Op Hsg. Society came into existence /formed which was duely registered with the registering Authority under provisions of Maharastra Co-Operative Society Act, 1960 vide Registration No. PNA/PNA/HSG(TC) 1347/89-90.
ANDWHEREAS the first Vendor i.e. Mr. Vijay Kumar Doseja was admitted as member of Society and was allotted five fully paid consecutive shares of Rs. 50/- (Rs. Fifty Only) each in the share capital of the said society.
ANDWHEREAS by virtue of the said membership and share holding the First Vendor was sufficiently entitled to said premises and to have, hold, use, occupy, possess and / or enjoy residential premises bearing Flat No. 6 Building No.’D’ -16 on Second Floor admeasuring about 1130 sq. ft. Built up/ carpet area situated at “Liberty (I)” Co-Op HSG. Society. Final Plot No. 323 (Part), T.P.S Sangamwadi, north Main Road. Koregaon Park of village Ghorpadi, Pune 411 001 referred to as “Said Premises” to be added along with parking space No. 1 (Badge “D” liberty I)
ANDWHEREAS pursuant to negotiations the First Vendors and agreed to sell the to the First Purchaser and consenting party No. 1 Mr. Vijay Kumar Doseja who agreed to Purchase from the said flat along with the said parking space more particularly described in to schedule to the property and shares together with all rights, title and interest of the First Vendor in the said premises including the membership benefits and right to use, occupy, possess the said premises and to the amount and deposits standing in the name of first vendor and consenting party No. 2 in respect of said premises with the said society, free from all e------ claims and demands what so ever at or for the consideration of Rs. (9,00,000/- vide Agreement to Sale dt. 19 Feb. 1998premises described more particularly schedule was of effected.
ANDWHEREAS consenting Party No. 1 First Purchaser decided to sell the said premises to some purchaser offering proper value.
ASSIGNMENT DEED
This Deed of Assignment made and executed at Pune on day of August 2008.
BETWEEN
Mr. Prabhakar Supada Palwe
Age – yrs. Occ : Business
R/at : 11, Sai Samarth, Gulmohar Colony,
Opp – Wadia Bungalow, Gulmohar Colony, Nagar Road,
Yearwada, Pune – 411 006
Hereinafter referred to as “VENDOR” (which expression shall, unless repugnant or contrary to the context or meaning thereof, be deemed to mean and include his heirs, executors, administrators, and assignees etc.)
… PARTY OF THE FIRST PART
AND
Rajpal Credit & Realty,
Proprietor, Mr. Amitsingh Ajitsingh Rajpal
Age-32 yrs, occu-business,
Off/at : 479, Rasta Peth, Aden Villa,
Pune – 411 011
Hereinafter referred to as “PURCHASER” (which expression shall, unless repugnant or contrary to the context or meaning thereof, be deemed to mean and include his heirs, executors, administrators, and assignees etc.)
… PARTY OF THE SECOND PART
WHEREAS the property bearing Plot No. 196 admeasuring about 1710.71sq.mtrs. at Sangamwadi Town Planning Scheme Area, Pune which is more particularly described in schedule written hereunder, herein after referred to as ‘THE SAID LAND’ was developed by M/s Siddharath Enterprises proprietor Mrs. Sandhya Shrish Karia hereafter referred to as the developer.
AND WHEREAS the developer has constructed the building upon the said land as per the plan sanctioned by the P.M.C, as per commencement certificate No. 526 dt. 29/10/85 after construction of building P.M.C has issued the completion certificate dt. 513/86.
AND WHEREAS the building constructed upon the land by the developer is known as ‘SIDDHARTH COURT’ out of the said building the shop no.A-1 and A-2 were retained by the developer.
AND WHEREAS the developer got registered a Co-Operative society called ‘SIDDHARTH COURT CO-OPERATIVE SOCIETY’ hereafter referred to as the ‘SAID SOCIETY’. The said society has issued 5 shares as per folio No.-25 bearing No. 121 to 135 and 5 shares bearing No. 116 to 120 as per folio No. 24 in the name of the developer.
AND WHEREAS the developer sold the shop No. A-1 and A-2 admeasuring about 44.34 sq.mtrs. alongwith basement admeasuring about 81.04 sq.mtrs. and open space adm. about 41.24 sq.mtrs in front of Shop No. A-1 and A-2 in the building known as SIDDHART COURT, hwereafyter referred to aws the said property which is more particularly described in the schedule hereunder written, to Mr. Khusroo A. Khobyar and Mrs. Shahanz K. Khobyar by an Agreement for Sale and transfer dt. 23/1/06, registered in the office of Sub-Registrar Haveli No.-8 at serial No. 575/06.Thereafter the share bearing No. 116 to 125 were transferred in the name of Khosroo Khobyar.
AND WHEREAS The Khobyar has transferred all their rights, title and interest in the said property, vested in them in the name of Charudatta Prabhakar Palwe and present vendor by virtue of the Deed Of Assignment dt. 13/4/07 which is registered with the office of Sub-Registrar Haveli No.- 8 at serial No. 2490/07
AND WHEREAS by virtue of the said Deed of Assignment dt. 13/4/07 the present Vendor and Charudatta Prabhakar Palwe have got exclusive right, title and interest in the said property which is described in the schedule hereunder written.
AND WHEREAS Charudatta Prabhakar Palwe has gifted his ½ share in the said property in favour of present Vendor, by Gift Deed dt. 28/2/08 which is registered in the office of Sub-Registrar Haveli No.-8 at serial No. – 1503/2008.
AND WHEREAS Vendor is having exclusive right title and interest in the said Shop No. A-1 and A-2 which is free from encumbrances and is in peaceful, undisturbed and exclusive possession of the said Shop No. A-1 and A-2, which is more particularly described in the schedule hereunder written.
AND WHEREAS Vendor decided to sell the said property to some purchasers offering proper value.
AND WHEREAS the present Purchaser was interested in buying the said property and therefore approached the Vendor and offered to Purchaser the said property for total consideration of Rs.----/-
AND WHEREAS the Vendor found the said offer to be reasonable and therefore agreed to transfer the said Shop No. A-1 and A-2 for the consideration of Rs.-------------------/-
AND WHEREAS the parties to this Deed have decided to put in writing the terms and condition agreebed between them which are as follows:
NOW THEREFORE THIS INDENTURE WITNESSETH AND IS HEREBY AGREED AS UNDER:-
1) In consideration of Rs. /-( Rupees ousand only) being paid by the purchaser to the vendors as per the details given in para 2 of the deed, the vendor do hereby sell, convey, transfer, assign, all the rights, title interest as holder, owner of the Shop no.A-1 and A-2 total admeasuring about 44.34 sq.mtrs and basement admeasuring about 81.04 sq.mtrs. and open space admeasuring about 41.24 sq. mtrs in front of Shop No. A-1 and A-2 in “SIDDHARH COURT” more particularly described in the schedule here under written, along with the shares of Society, in favour of purchaser without any reservation whatsoever nature.
2) The details of payment made by purchaser to the vendor is as under :-
Amount Particular
a) Rs
c) Rs. /- By chq.no. , dt. drawn on
d) Rs. /- By chq.no. , dt. drawn on
__________________________________________________
Rs. /-( Rupees only)
3) The vendor do hereby assign all the rights in the said property described in the schedule along with the right to use the paths, passages, water courses, drains, and other easementary right, profits advantages and appurtenances attached to the said property/said flat belonging or in anyway appertaining to the same or part thereof, unto the purchaser, subject to the payment of rents, taxes assessments, rates, duties chargeable upon the said property or which may hereafter become payable in respect thereof to Government of Maharashtra or Pune Municipal Corporation and that purchaser shall and at all times hereinafter peaceably and quietly enter upon, have occupy, possess and enjoy the said property, along with undivided share in the land, for their use and benefit without any suit, eviction, interruption, claim, and demand whatsoever from the vendor or his successors and assignees or any person claiming from vendor.
4) The municipal taxes, Society maintenance charges and other outgoings payable in respect of the said property have been paid till the date of possession. The property taxes and maintenance charges payable in respect of the said property henceforth shall be paid by the purchaser alone and the vendor shall not be liable for the same.
5) The said property has _____electricity meter/s and the bills in respect of that meter/s have been paid up to date of possession. The purchaser shall be entitled to transfer the said electricity meter/s in his name. The vendor shall give his signatures wherever required for transferring the said meter/s in the name of the purchaser.
6) The vendor has handed over the actual, physical, vacant and peaceful possession of the Shop no.A-1 and A-2 total admeasuring about 44.34 sq.mtrs and basement admeasuring about 81.04 sq.mtrs. and open space admeasuring about 41.24 sq. mtrs in front of Shop No. A-1 and A-2 in “SIDDHARH COURT” more particularly described in the schedule, to the purchaser and purchaser has received the actual, physical, vacant possession of the said property from vendor in the presence of family members and undersigned witnesses and therefore no separate possession receipt is necessary.
7) The Vendor do hereby covenants with the purchasers that the property which has been sold by the Vendor to the Purchaser, is free from all or any of the encumbrances of whatsoever nature and vendor has clear and marketable title over the said property. The said property is not subject matter of any dispute, litigation, attachment, lease, lien partition/ Agreement, assignment, charge, mortgage and tenancy. No person from the family of the vendor has any right or claim in the said property. If any person claiming through vendor makes any claim over the said property on the basis of succession or survivorship then the vendor shall be liable to settle such claims at his own cost. The vendor shall keep indemnified the purchaser against all claims by any person whatsoever claiming through the vendor.
8) The vendor further covenants with the purchaser that they have not received any notice of acquisition, requisition, reservation either from Govt. authorities or any ceiling authority. The vendor further covenants that except for the loan mentioned above he has not raised any other loan against the said property nor has created any charge over the said property by offering it as a security to any individual or institution. The said property has not been mortgaged by the vendor to any person or institution for any loan or other money. Despite the assurance given if it is revealed that there is a clog on the property the same shall be cleared by the vendor without any delay and without causing any loss, harm to the purchaser. The purchaser shall be entitled to enforce the assurances, benefits, and easements against the vendor.
9) The purchaser shall be at liberty to apply to the Revenue Authority for entering their name in record of rights in PMC, society office; as holder and occupier of the said flat. For this purpose vendor shall co-operate with the purchaser. The vendor shall not be entitled to any additional consideration for the same.
10) The expenses for stamp duty, Registration fee, and other incidental expenses for this sale-deed have been borne by the purchaser alone.
11) The property mentioned in schedule has been sold for Rs. (Rupees thousand only) on which the adequate stamp has been paid on present document.
SCHEDULE OF THE PROPERTY
All the piece and parcel of Shop No. A-1 and A-2 totally admeasuring about 44.34 sq.mtrs. and open space admeasuring about 41.24 sq.mtrs in front of Shop No. A-1 and Shop No. A-2 along with 6 parking slots admeasuring about 33.44 sq.mt in the building know as “SIDDHARH COURT” constructed upon final Plot No. 196, Sangamwadi Town Planning Scheme Area, Pune within the limits of Pune Municipal Corporation, along with all the rights, easementary right, right to use the approach road, stair cases and common amenities and facilities and all other rights appurtenant to the said property and the shares of the society bearing no.121-125 and 116-120 and all other rights which were with the vendors.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED TODAY IN THE PRESENCE OF WITNESSES.
Witnesses
Name :-
Add :-
Sign:-
(Vendor)
Name :-
Add :-
Sign:- (Purchaser)
IN THE COURT OF THE HON’BLE SECRETARY,
CO-OPERATIVE DEPARTMENT, GOVERNMENT OF MAHARASHTRA, MANTRALAYA, MUMBAI AT MUMBAI.
Revision Application No. /2008
Mrs. Urmila Hukumchand Bhalani …. Applicant
V/S
Divisional Joint Registrar
and others. …. Opponents
Written argument on behalf of the applicant is as follows :
1) The applicant is not member of the opponent No. 2 and has not taken any loan from opponent No.2.The opponent No. 2 have alleged that, applicant has taken loan towards the purchase of Television and refrigerator from it’s sister concern consumer Co-Operative society Barloni Tal.-Madha, Dist-Solapur. However the applicant has purchased the television set and refrigerator by cash and he is in receipt of cash payment. Therefore it is wrong to say that applicant has taken the loan for the purpose shown by the opponent No.2. Therefore it is clear that the opponent No.2 failed to plead and prove the correct nature of transaction and the purpose of alleged loan. Further more, as per law the opponent No.2 is not entitled to run such consumer society to sell to non-members without Registrar’s permission. This version is given by the apex court in –
Amravati Town Co-Op erective society.
V/S
Rangrao Wakode 1971, CTD 19
Held : Credit Society running fair price shop can not be allowed to sell to non-members without Registrar’s permission, manager of society allowing the same is responsible.
However both of the lower courts have ignored this legal position.
2) The opponent No.3 A.R.C. Madha have not followed the principal of natural justice, the procedure laid down by law and various directions given by the government of Maharasthra time to time. The issuance of notice to the borrower before issuing Recovery certificate U/S. 101 of the M.C.S Act is the mandatory provision and the A.R.C. Madha ought to have issued notice to the applicant. However the A.R.C. Madha have not issued any notice and directly issued the alleged Recovery certificate U/S. 101 of the M.C.S. Act. This position is ignored by the opponent No. 1.
The A.R.C. Madha is the quasi-judicial authority who should have followed the principal of natural justice. This aspect is very clear from the ‘Roznama’ and the other certified copies of the proceeding before the A.R.C. Madha in this regard. Therefore such Ex-parte order ought to have been set-aside by the opponent No. 1, but very un-fortunately the opponent No. 1 neither gone into the merits of matter, nor gone through the record produced but blindly without a single reason came to conclusion and passed the impugned order. It was the honors duty of the opponent No.1 to see that whether the A.R.C. Madha have followed the procedure, principle of Natural justice, and whether he has issued notice before issuance of Recovery certificate U/S 101 of M.C.S. Act. Therefore both the lower courts have not whispered a single word about the issuance of notice before issuance of Recovery certificate in their orders. Therefore such order, such issuance of Recovery certificate U/S 101 of M.C.S. Act is bad in law, illegal, void and liable to set-aside. I have given below various rulings of the High-Courts and Supreme Court in which the Hon’ble Courts have quashed the issuance of Recovery certificate U/S 101 of M.C.S. Act without prior notice.
I) Ramchand
V/S
The Collector, Nagpur
72, Bom LR 666
Held : A certificate issued without any enquiry will be quashed.
II) Eknath Narhar Joshi
V/S
Shirwade Wani Vividh Karyakari
Sewa Sahakari Society Ltd. 1990 CTJ 659.
Held : Certificate obtained by society was not acceptable and not consistent with the provision of law. The dispute is maintainable and society is restrained from recovering any dues on the basis of certificate under Sec. 101 of the Act.
III) Ghosarwad V.K.S. Sahakari Society
V/S
Javanappa Bhujanga Basawade and others
1970 CTD 80
Held : The officer exercising Power under Sec. 101 of the Act must hold an enquiry after issuing notice to the defaulter against whom certificate of recovery is claimed, which postulates application of mind to the facts of case and adjudication of correctness of otherwise of the preferred claim.
IV) Ramkrishna
V/s
District Deputy Registrar 1970 MHLJ Note 25
Held : A certificate issued without notice and without any enquiry is liable to be quashed.
3) Therefore considering the above case-laws it is very clear that the law puts mandate of notice to the borrower before any enquiry and issuance of certificate under the Act. This aspect is very well explained in administrative law in ‘Rule of audi-atteram partem’ that it is the right of the person to have a chance of hearing to give his statement before initiating any action against him, therefore the notice is the preliminary action, which provides basis to the whole legal action and in absence of notice any order passed by any authority including judicial as well as quasi-judicial such order is the Ex-parte order and such Ex-Parte order without a chance of hearing to the borrower vitiate the whole proceeding and defeat the vary object of law and legal action.
4) The S. 137 of the M.C.S Act is also made mandatory on the courts to follow the principal of natural justice.
It states that : Rules of Natural Justice should be observed before a certificate is issued.
5) Further more the circular of the commissioner for Co-Operation Government of Maharashtra also made it obligatory on the part of Registrar to issue notice by Register Post Acknowledgement Due to the borrower prior to issuance of certificate. U/S – 101 of the Act.
Therefore in the present case the A.R.C Madha :-
Have not issued any notice to the applicant before issuance of certificate under Sec-101 of the Act.
Have not made any enquiry before issuance of the alleged certificate.
Have not followed the principal of Natural Justice, the procedure laid down by law, rulings of the apex courts and even circular of the Government of Maharashtra.
6) The opponent No. 1 has passed the impugned order without a single reason. It is well settled law that any order by the judicial or quasi-judicial body must be with reasons, sufficient to provide basis to the order. The principle of ‘Reasonable order’ is not followed in the present case by the opponent No.1 and on this count also the order of the opponent No.1 is liable to be quashed. This thing is crystal clear from the bare perusal of the order of the opponent No.1. In that impugned order the opponent No.1 has not given any single reason that, how he came to the conclusion that proper chance of hearing is given to the applicant by the A.R.C. Madha. Therefore the impugned order of the opponent No.1 lacks sufficient reason and hence liable to be set aside.
7) In the impugned order the opponent No. 1 says only that, “after going through the documents I have came to conclusion” but he has not mentioned which documents he perused? What contents are there in those documents which caused the opponent No.1 to arrive at the particular decision? The opponent No.1 have not given any reason to the conclusion that, sufficient opportunity is being given to the applicant by the A.R.C. Madha, but mere words are there in his impugned order and not a single reason given by the opponent No.1 so as to say that, the order passed by the opponent No.1 is the reasonable order. Therefore the rights of the applicant are jeopardized due to the impugned order of the opponent No.1 and therefore the said impugned order of the opponent No.1 dt. 15/10/2007 is liable to be quashed in the interest of justice.
Mumbai
Date : Advocate for Applicant.
AMENDED PLAINT
IN THE COURT C.J.S.D. PUNE AT PUNE
R.C.S. NO. 394/1989
Gangaram Mahadu Bidkar
Since deceased through
Legal heirs
1) Smt. Gitabai Ganagaram Bidkar
Age : 71 years, Occ.: Household
2) Shri Suhas Gangaram Bidkar
Age : 41 years, Occ : Agriculture
3) Shri Ashok Gangaram Bidkar
Age : 53 years, Occ : Service
4) Shri Mahadeo Gangaram Bidkar
Age : 36 years, Occ- Service
5) Mrs. Shobha Maruti Khatade
Age : 46 years, Occ : Agriculture
All R/at : 235/A, Sanjay Park,
Lohagaon, Pune –32
And also at – Flat No. 402, 878 Bootee street,
Camp, Pune –1
6) Mrs. Shailaja Gopal Aurange
Age : 38 years, Occ : service
R/at : Tungarli, Lonawala,
Dist : Pune ---- Plaintiffs
V/S
1. State of Maharashtra
represented by the collector Pune
2. Special Land Acquisition officer
No. 18,
Having its office at collector’s
Office compound, Pune 411 001 ---- Defendants
The Plaintiff above named most respectfully submits as follows :
1) The Plaintiff is the owner of the land bearing survey No. 235/A, Lohagaon, which is more particularly described in the schedule hereunder written. The Plaintiff is producing the 7/12 extract of the said property at Sr. No. 1 along with the suit. The property which is more particularly described in the schedule appearing at the bottom of the plaint shall be referred to as the ‘Suit Property’ for the sake of brevity.
2. The Plaintiff states that initially, the suit property was requisitioned by the Government in the year 1958 or thereabout under the Defence of India Rules, for Defence purposes. The requisition continued up to the year 1973. Thereafter, by an order dated 26/2/1973, the Collector, Pune, directed that various lands, inter-alia the land bearing Survey No. 235/A, i.e. the suit property were no longer required for the purpose for which they were requisitioned. The said order was bearing No. MIL 573. The Plaintiff is producing the said order at Sr. No. 2, along with the plaint. As a result of this order, the suit land was de-requisitioned.
3) The Plaintiff submits that in furtherance of the order referred to above, Defendant No. 1, informed the Plaintiff vide a letter to take possession of the suit property. The plaintiff has produced the said letter at Sr. No. 3 along with the Plaint.
4) It is contended by the Plaintiff that on 7/9/1976, the Defendant No. 1 put the Plaintiff in actual physical possession.
5) The Plaintiff states since then the Plaintiff is in actual physical possession of the suit property and has been taking the crops like sugar cane, groundnuts, and such other crops in the suit property. The Plaintiff states that in the suit property there is a well and a lake. There is no water in the lake but sufficient water to cultivate the entire suit property as well as for drinking purposes is available in the well. The cultivation of entire suit property is totally dependent on water from this well. Except the water from the well no other facility of irrigation is available to the suit property. The Plaintiff states that the Plaintiff himself and his family members are totally dependent on the agricultural income of the suit property.
6) The defendant No. 1 issued a notice U/S 4(1) of the Land Acquisition Act on 16/1/1986 to the Plaintiff regarding acquisition of the land admeasuring about 10 Ares out of the suit property for the purpose of defence project of India, Air Force. The Plaintiff submits that in the said notice, the portion of the suit property that was proposed to be acquired was not specifically mentioned, nor did the said notice specify the boundaries of the property proposed to be acquired. The Plaintiff is producing the said notice dated 16/8/1986 along with the suit at Sr. No. 4.
7) The Plaintiff therefore by a letter dated 29th September 1986 sent a reply to the Notice referred to above. The Plaintiff had specifically mentioned in the reply that the matter was sub–judice regarding the ownership and the right of the well situated in the suit property. Therefore, the reply was given without prejudice to the rights of the Plaintiff in the said matter. Further the Plaintiff also pointed out that the map of the land proposed to be acquired was not annexed to the notice and therefore it was not possible for the plaintiff to explain/submit his objections for the same. The plaintiff had met the defendant No.2 on 25/9/1986 and had explained the situation personally. The Plaintiff had therefore stated in the said letter that upon receipt of the reply on the points raised in the said letter, the Plaintiff would reply the show cause notice dated 16/9/86 referred above. The Plaintiff is producing the office copies of the letter dated 29/9/86 at Serial No. 5.
8) In spite of the letter of the Plaintiff dated 29/9/1986, neither the Defendant No. 1 nor the Defendant No.2 gave any reply or any explanation to the queries raised by the Plaintiff. The reply dated 29th September 1986. was given within the stipulated period of 30 days from the issuance of the notice under section 4 (1). Therefore it was obligatory on the part of the Defendants to send a reply to the said letter and also to give complete opportunity to the Plaintiff and to refer the matter to Defendant No. 1 along with the objections of the Plaintiff.
9) The Plaintiff respectfully submits that according to the mandatory provision of Sec. 5-A sub-sec.2 Defendant No. 1 was under a legal obligation to give a complete opportunity to the Plaintiff to represent his case either in person or through the Pleader of the Plaintiff.
It was also incumbent on the part of the Defendant No.1 to conduct an enquiry and thereafter to report to the Government. The recommendations along with the recorded proceedings held by him for the decision of the Government. However, the Defendant No.1 failed and neglected to follow the mandatory provisions of Sec. 5-A of the Land Acquisition Act. Thus, it is the specific contention of the Plaintiff that the entire acquisition proceeding has been vitiated.
10) It is the contention of the Plaintiff that without observing the mandatory provision of Sec. 5-A of the Act. The Defendant No. 2 issued a public notice under Sec. 6 of the Act. The Plaintiff came to know about this notice at a much later stage i.e. on or about 9th January 1989. Thereafter, upon perusal of the said notice, it is seen that some report under Sec. 5-A(2) of the Land Acquisition Act has been prepared and sent by the Collector to the Government. However the said report must have been sent without giving any hearing and as such is bad in law. The Plaintiff is producing a copy of the said public notice at serial No. 6 along with the plaint.
11) The Plaintiff thereafter received a notice from Defendant No.2 under Sec. 9 of the Act on or about 1st Jan., 1989. By the said notice the Plaintiff was called upon to be present before the Defendant No. 2 on 9/1/1989 for explaining the nature of the right, title and interest of the Plaintiff and regarding the compensation to be paid to the Plaintiff. The boundaries which are mentioned in the said notice are also incorrect and therefore the said notice is not a legal one. The Plaintiff has produced the notice under Sec. 9 at serial No. 7 along with the plaint.
12) The said matter was adjourned by the Defendant No. 2 at the request of the Plaintiff up to 17/1/1989. on 17th the Plaintiff submitted his written objections and also his written arguments with Defendant No. 2. On perusal of the Public notice referred to above and the Notice under Sec.9, the Plaintiff presumes that the Defendant want to acquire the land wherein the well is situated and this well is being acquired for the purpose of defence project of Indian Air Force. The suit property which is described in the Schedule hereunder written is having the area of 5 Hectors and 46 R. The said land is an agricultural land which is being cultivated by the Plaintiff personally. The Plaintiff has been taking the crops of sugarcane, groundnuts, wheat, rice, and bajari. The said well which is sought to be acquired is the only source of water for cultivating the suit property. Except this well, no other facility of irrigation is available to the Plaintiff for cultivating the land. Therefore, if the well is acquired the entire land of 5 Hectors 46 R would become useless, as the Plaintiff would not be in a position to take any crops in the said land.
13) The Plaintiff respectfully submits that the entire family of the Plaintiff is dependant on the income which the Plaintiff gets by cultivating the land personally. Except this land the Plaintiff does not possess or own any other land elsewhere. The water of the well has been utilised for drinking by the Plaintiff has installed diesel engine on the said well for pumping the water for agricultural activities. Therefore, if the well is acquired, the Plaintiff shall be put to irreparable loss, which cannot compensated in terms of money. The suit property cannot be utilised for any other purpose nor it can be used in any other manner in which it would be possible for the Plaintiff to get regular recurring income to the Plaintiff and his family members. As such the question of the survival of the Plaintiff and his family members would arise. As a result of all these events, the life of the Plaintiff will practically be ruined and the compensation at any high rate will not be an adequate remedy for this loss.
14) It is the specific contention of the Plaintiff that the action on the part of the Defendant to acquire the well in the suit property is not bonafide and genuine. Huge properties situated at Lohagaon are owned and possessed by the Defendants. The Defendant can very well dig a new well in these lands for the purpose of defence project of Indian Air Force. If the new well is dug by the Defendants the same can be unitised for the defence projects of the Indian Air Force.
In these circumstances, the action on the part of the defendants to acquire the well owned by the Plaintiff cannot be treated to be bonafide and genuine. All these factors were incorporated in the written arguments which were submitted by the Plaintiff is producing herewith the Copy of the written objections and arguments at Serial Now. 8 and 9 respectively. The Plaintiff requests this Hon’ble Court to treat the same as part and parcel of the plaint.
14) After 17th of January 1989 the Plaintiff did not receive any communication from the Defendant. For all the reasons stated above, it is specific contention of the Plaintiff that the notice under Sec. 9 issued by the Defendant No. 2 on or about 1st Jan. 1989 is bad in law. The Defendant No. 1 and 2 are about to proceed further on the basis of the above notice. The Plaintiff states that any further action of the Defendants on the basis of the illegal notice under Sec. 9 would be nullity and without any legal consequences. Since the Plaintiff did not receive any communication from the defendant after 17/1/1989 the Plaintiff apprehends some illegal action against him by the Defendants and hence the Plaintiff is constrained to file the present suit, thereby challenging the validity and legality of the notice published in Daily Prabhat on 17/8/1987 as well as notice under Sec. 9 received by the Plaintiff in the first week of January 1989.
15) The cause of action for the present suit first arose on 17/8/1987 when the notice under Sec. 6 was published by the Defendant No. 2 without following the mandatory provision of Sec. 5-A of the Land Acquisition Act. The cause of action further arose in the first week of January 89 when the Plaintiff received the notice under Sec. 9 from the Defendant No. 2 and upon enquiries the Plaintiff got the knowledge of the notice dated 17/8/1987. The cause of action further arose on 17/ /1989, when the Plaintiff submitted his written objections as well as arguments to the Defendant No. 2. The cause of action continues to arise every day thereafter.
16) The suit property situates, within the territorial limits of the Hob’ble Court. The cause of action for the present suit arose at Pune. Therefore this Hon’ble Court has jurisdiction to entertain and try this present suit.
17) The present suit being for declaration and the consequential relief of injunction, it cannot be calculated in terms of money. Therefore, the suit has been valued at Rs. 600/- for both declaration and the appropriate court fee stamp has been paid.
18) SCHEDULE
All that piece and parcel if land, lying and being situated within the limits of Sub-Registration District, Tal : Haveli, Dist : Pune and within the limits of Pune Municipal Corporation, the land bearing S.No. 235/A Lohagaon, admeasuring about 5 Hectors and 46 R and bounded as follows :
On to the East : S.No. 236
On to the South : Puru Society
On to the West : S.No. 240 and Road
On to the North : S.No. 239
19) The Plaintiff therefore prays that :
a) The notice dated 17/8/1987 issued by Defendant No. 2 under Sec. 6 of land Acquisition Act and published in Daily Prabhat as well as if published in any other news paper be declared to be illegal null and void.
b) The notice issued by the Defendant No. 2 under Sec. 9 of the Act pertaining to the acquisition of part of the suit property, may kindly be declared to be illegal, null and void.
c) The Defendants may kindly be restrained by and order of permanent injunction from taking any action against the Plaintiff as a result of which the legal rights of the Plaintiff over the said property are adversely affected.
d) Temporary injunction during the pendency of the suit in terms of prayer in clause (c) above may be granted.
e) Costs of this suit may kindly be awarded to the Plaintiffs from the Defendants.
f) Any other just and equitable orders in the interest of justice may kindly be passed.
Pune
Date : 1.
Advocate for the Plaintiff.
VERIFICATION
I, Ashok Gangaram Bidkar, the Plaintiff above named Plaintiff, do hereby state on solemn affirmation that what is stated above is true and correct to the best of my knowledge and belief and I have signed this today at Pune.
Plaintiff
visar pavati
civil judge senior division pune
law visar pawati
annuj goel goel ganga development
court of civil judge , pune
court of civil judge senior division
in the court of civil judge, senior division, pune at pune.
is visar pavati legal document
judgement of jmfc court pune in september
khushroo khobyar mumbai
sample for visar pavati
savita ingawale,pune
taba pavti
vilas nandgude patil signature
case on savita ingawale,pune
visar pavati validity
We 1) Mr. Shailendra Aglawe,
Age – 35 years, Occ. Advocate,
2) Mrs.Shubhangi Shailendra Aglawe,
Age - 33 years, Occ – household.
Both R/at : Plot No. 13 Ashvamedh Jay Prakash Nagar,
Air Port Road, Lohagaon Pune- 31,
State on solemn affirm that :
Our daughter Chinmayee Shailendra Aglawe, date of Birth – 12/10/2005 (Minor) of whom we are the parents in respect of her we have filed an application for obtaining the passport.
We undertake the entire responsibility for her expenses. We solemnly declared that no passport was issued to her and it has not been lost, surrender or have been deprived of her citizenship of India and that the information given in respect of her application is true it is also affirm that we are holding valid Indian passport and the name of the child mentioned is not included in passport of either parent.
We state that we are holding the passport as per the details given below.
A) Mrs. Shubhangi Shailendra Aglawe passport No.
B.2443617 dt. 26/7/2000 issued by passport officer
Pune.
Mr. Shailendra H. Aglawe Passport No. A 5655977 dt.
15/6/1998 issued by passport officer Mumbai.
Whatever stated above is true and correct to the best of my knowledge information and belief and that we have put our signature on the present affidavit/ declaration to be annexed with the issue of the passport in the name of minor child.
Pune
Date : 16/6/08
1)
father
2)
Mother
Left hand Thum impression of father
Right hand Thum impression of Mother
AGREEMENT
THIS AGREEMENT IS MADE AND EXECUTED AT ----- ON THIS
--DAY OF 200
BETWEEN
The Pune Municipal Corporation
The Municipal Corporation established
Under The Bombay Provincial Municipal
Corporation Act 1949
Through-------------------- Hereinafter referred as The party of the I part.
AND
M/S. MANSI ENGEENIRRING
And Contractors, a Proprietorship
Concern, Through it’s proprietor
Mr. ------------------------- Hereinafter referred as
The Party of the II Part.
WHEREAS the party of the I part is established for the welfare of the public at large thereby use to provide various services and facilities of public nature like electricity, roads, water etc. through various government schemes within the territorial jurisdiction i.e. city of Pune.
AND WHEREAS the party of the II part is the proprietorship, concern in civil engineering, and construction contract having it’s business in and around Pune city.
AND WHEREAS the party of the part desires to provide 24 mtrs. wide road as per it’s sanctioned plan vide R.P./D. P. scheme for village Dhanori through S. No. 4,5,6,10,11,12,76,77,78,and 79 of village Dhanori.
AND WHEREAS the party of the II part has submitted it’s proposal to the party of I part for the construction of the aforesaid road, for 1.9 K.M. of 12 mtrs. wide, out of the total 24 mtrs wide road of R.P./D.P. scheme, without any consideration and at it’s own cost.
AND WHEREAS the party of the I part has accepted the said proposal with some conditions vide it’s conditional acceptance letter dt.--------------
AND WHEREAS as the parties are agreed to the same on the following terms and conditions.
1) The party of the I part has assigned/granted all rights to and in favour of the party of the II part for the construction of 1.9 k.m. road of 12 mtr. Width out of total 24 mtrs wide road of R.P/D.P. scheme of village Dhanori, thought S.No.4,5,6,10,11,12,76,77, 78 and 79 of village Dhanori hereinafter referred as ‘Said road’ without consideration and at the cost of the party of the II part subject to terms and conditions mentioned in it’s letter No.----- dt. ----
2) The party of the I part, by this indenture has given/granted to the party of the II part the right only to built and construct the said road said however the ownership of the land below the road will remain with the party of the I part.
3) The party of the II part should build the said road as per the directions of the concerned department of the party of the I part.
4) The party of the II part should not demand from the party of the I part any consideration concession, F.S.I. (Floor space Index) in lieu of the said work.
5) After contraction, the said road will be treated as ‘Public Road’ and will remain under sole control of the party of the I part.
6) The party of the II part will be at it’s discretion to build the said road either by it self or in partnership, with ‘SAHARA INDIA COMMERCIAL CORPORATION LTD’ or with any other person.
7) The party of the II part have all rights to appoint contractor, sub-contractor, surveyor labour contractor etc, however the party of the II part will remain responsible for any such agreement with any such person/s.
8) The party of the II part should commence the construction of said road within three (3) months from the date of this agreement.
9) After completion of construction of said road, the party of the II part neither claim any personal right on said road not object or obstruct in any way any person/s from using the said road.
IN WITNESS WHEREOF THE PARTIES HAVE JOINED THEIR HANDS.
Witnesses
1) Sign :
Name :
Address : The Party of the I Part
2) Sign :
Name :
Address : The Party of the II Part
AGREEMENT TO SALE
This Agreement to sale is made and executed today on this -------- day of --------- in the year 2008.
BETWEEN
Mr. Zakir Hussain
Age : 54, Occu : Retd
R/at : Flat No. 4, Alishan Corner
Plot No. 160, Lulla Nagar,
Pune – 40
HEREINAFTER Called as the “VENDOR” (Which expression unless repugnant to the context or meaning there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE FIRST PART
AND
1) Sabu Cherian
Age – 40 yrs, Occupation : Service
2) Dr. Sarah Sabu Cherian
Age – 39 yrs, Occupation : Service
Both are residing at 14/267,
Mira Society, Shankar Sheth Road,
Pune -37
HEREINAFTER Called as the “PURCHASERS” (Which expression unless repugnant to the context or meaning ‘there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE SECOND PART
Father Michel Co-Op. Housing Society, Ltd
Registered Society. Reg.No. PNA/PNA (2) HSG (To)
932/200/2002, S.No. 39/1/1, Dhanori Village,
Vishrantwadi, Pune -411 015
Through Chairman Gopinath S. Chalke,
and Secretary Shri. B.S.Rana
HEREIN AFTER CALLED AS “CONSENTING PARTY”
PARTY OF THE THIRT PART
Whereas the property bearing survey No. 39/1/1 Village Dhanori, Tal – Haveli, Dist- Pune totally admeasuring 4 Acre 11 guntha is owned and possessed by the consenting party.
And Whereas present Vendor with other members have contributed towards the fund required for purchasing the said property bearing survey No. 39/1/1 Dhanori.
And Whereas consenting party has laid out the said No. 39/1/1 into small polls and allotted the plot No. 37 admeasuring 177.12 sq.mt. to the Vendor vide allotment letter dated 7/8/2004
And Where Vendor had Constructed a residential house admeasuring 120.99sq. mt. on the said plot No. 37 at his own cost and regularized the construction under gunthewari Act for which the PMC has issued the Regularisation certificate bearing No. 40031 dated 18/8/2004.
And Whereas Vendor has shifted to another place and there decide to sell residential house.
And Whereas the purchasers were in need of residential property got knowledge of intention of Vendor and therefore approached the Vendor and offered to purchase the said property, described in the schedule here in for total consideration of Rs. 24,20,000/- Negotiation took place between the parties and the vendor found the offer given by purchaser as reasonable and as per market rate and therefore has agreed to sell and the purchaser has agreed to purchase the said property for the consideration of Rs. 24,20,000/- on the terms and conditions mentioned hereunder.
NOW THEREFORE THIS INDENTURE WITNESSTHAS UNDER :
1) In consideration of Rs.24,20,000/(Twenty Four lakhs Twenty Thousand Only)paid by the purchaser to Vendor as per the details given in para 2 of this deed, the Vendor do hereby agrees to sell/assign all the rights title ,interest as owner of the residential premises constructed on plot. No. 37 including the shares of the society bearing distinctive No.171 to 175 the rights of membership and the right in the plot No. 37 in favour of purchasers without any reservation whatsoever nature.
2) a) Rs. 25,000/- (Paid by Cheque No. 865112, dated
5/1/2008 drawn on H.D.F.C Bank, Branch Shankar Sheth Road.
b) Rs. 3,95,000/- At the time of Agreement.
c) Rs. 20,00,000/- To be paid by raising loan from
bank of financial institution, within 15 days from the date of this agreement.
-----------------------------------------------------------
Rs. 24,20,000/- Total Rupps Twenty Four lakhs
Twenty Thousand Only
3) If for any reason the purchaser fails to pay the balance purchase price of Rs. 20,00,000/- within 15 days from the date of this agreement but pays the same within 30 days thereafter, then purchaser shall be liable to pay interest at the rate of 18% p.m. for the said period of delay beyond 15 days the date of his agreement.
4) If at the end of this period of 45 days from the date of agreement the purchaser does not make the payment then the vendor may at his option terminate the present agreement by giving 14 days notice in writing to the purchasers and upon such termination the vendor shall return the earnest money, without interest within a period of 15 days from such termination after deducting an amount of Rs. 50,000/- to wards expenses.
5) The Vendors hereby covenant with purchasers as under.
a) That the vendor is the sole and absolute owner of the
said property as well as the shares bearing No. 171 to 175 of the society (Consenting Party) and the Vendor is entitled to enter into Agreement for sale and transfer of the said shares and the said property and the title of the vendor is marketable and free from all encumbrances and no other Person or persons have or have claimed any right, title, interest of any nature whatsoever, in or upon the said property and the said shares of society by way of sale, mortgage, exchange, lease, inheritance, maintenance, possession or otherwise.
b) That the Vendor has also assured unto the Purchaser that the said property is neither a subject matter of any pending litigation nor any requisition or acquisition proceedings.
c) That the Vendor shall bear and pay all out going assessments, maintenance charges, electricity charges and all other expenses whatsoever payable in respect of the said premises up to the date of delivery of possession of the said property and the Vendors shall keep the purchasers indemnified form and against all claims and demands in respect thereof.
d) That Vendor shall put the purchaser in actual possession of the said property at the time of execution Deed of Assignments of Rights, which is to be executed after receipt of balance consideration as per clause 2(c).
e) That on payment of the balance purchase price, the purchaser shall be entitled to hold, possess, use and occupy the said proper and the purchasers shall become entitled to all the rights and benefits attached in respect of the said property without any interruption or interference by or from vendor or from any person or persons lawfully or equitably claiming by, from, under or in trust for the vendor.
f) That the Vendor shall on payment of the balance purchase price and at the tie of delivery of possession of the said property to the purchasers, execute Deed of Assignment in respect of the said property on terms and conditions mentioned herein and such Deed of Assignment shall be stamped with requisite stamp duty by Purchaser at his own cost.
6) The Purchaser hereby covenant with the Vendors as Under:
a) That the purchasers shall from the date of delivery of possession of the said property to the purchasers pay to the said society the proportionate contribution and the municipal and other taxes and out goings, water taxes, electricity charges, maintenance and other charges payble in respect of the said property and shares and keep the vendor indemnified against any liability in respect there of.
b) That the purchasers shall become members of the said society and observe and perform and abide by the Rules and Regulations and Bye laws of the said society.
c) That the Purchasers shall from time to time and at all times indemnify and keep indemnified the Vendor from and against all claims and demands whatsoever arising in respect of the said property and the said the shares relating to the period subsequent to the date of delivery of possession of the said property to the purchaser.
7) It is agreed between the parties hereto that the Purchasers shall bear and pay the amount of transfer fees and all other amounts, if any, payable to the said society for obtaining permission of the said society for sale and transfer of the said society for sale and transfer of the said shares and the said property in favour of the purchasers and the vendor shall not bear any such amounts required to be paid to the said society for the purpose. The purchasers shall bear and pay the stamp duty and registration charges on the Deed of Transfer and documents to be executed in pursuance there of.
8) The consenting party has agreed to enroll the purchasers as its member subject to payment of requisite charges. The consenting party, offer the execution of the Deed of Assignments, shall execute, the lease deed in respect of the plot No. 37 in favour of purchasers, subject to purchasers paying all the amounts payable to the society.
SCHEDULE OF THE PROPERTY :
All that piece and parcel property admeasuring 120.99 sq.mts constructed on the land bearing survey No. 39/1/1 Plot No. 37, in father michel Co. Op Soc. Dhanori Pune, Situated within the limits of Dhanori Village, Tal-Haveli Dist Pune, Within the limits of Sub-Registrar Haveli No.- 8 and bounded as follows.
On or towards East : 36
On or towards South : 38
On or towards West : 40
On or towards North : Bountary of Society.
Along with all the rights, easementary right to use the approach road, right of member in the society and all other rights which were with the Vendor and ownership right in the fittings, fixtures, and water mater.
IN WITNESS WHERE OF THE PARTIES HAVE SIGNED TODAY IN THE PRESENCE OF WITNESSES.
Witnesses ;
1) Sign :
Name : Purchaser
Address : 1)
1) Sign :
Name : 2)
Address :
Vendor
AGREEMENT TO SALE
This Agreement to sale is made and executed today on this -------- day of --------- in the year 2008.
BETWEEN
Mr. Zakir Hussain
Age : 54, Occu : Retd
R/at : Flat No. 4, Alishan Corner
Plot No. 160, Lulla Nagar,
Pune – 40
HERE IN AFTER Called to as the (VENDORS) (Which expression unless repugnant to the context or meaning ‘there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE FIRST PART
AND
1) Sabu Cherin
Age – 40 yrs, Occupation : Service
2) Dr. Saran Sabu Cherin
Age – 39 yrs, Occupation : Service
Both are residing at 14/267, Mira Society, Shankar Sheth Road, Pune -37
HERE IN AFTER Called to as the (Which expression unless repugnant to the context or meaning ‘there of be deemed to mean and include his heirs, executors, administrators and assignees )
PARTY OF THE SECOND PART
Father Michel Co-Op. Housing Society, Ltd
Registered Society. Reg.No. PNA/PNA (2) HSG (To)
932/200/2002, S.No. 39/1/1, Dhanori Village,
Vishrantwadi, Pune -411 015
Through Chairman
HEREIN AFTER CALLED AS
And Whereas the property bearing survey No. 39/1/1 total admeasuring 4 Acre 11 Ares is owned and possessed by the consenting party.
And Where as present Vendor with other members have contributed towards the fund required for purchasing the said property bearing survey No. 39/1/1
And Where as consenting party has been allotted plot No. 37 admeasuring 177.12 sqmt to vendor vide allotment letter dated 7/8/2004
And Where Vendor had Constructed a residential house admeasuring 120.99sq mt on said plot after taking the permission from the local authority at his own cost and regularized the construction under gunthewari Act dated 18/8/2004.
And Where as the purchasersin need of property and approached the vendor for the purchase of the said property described in the schedule herein. Negotiation took place between the parties and the vendor has agreed to sell and the purchaser has decided to purchase the said property on the terms and conditions mentioned hereunder.
NOW THEREFORE THIS INDENTURE WITNESSTHAS UNDER :
1) In consideration of Rs.-------------- to be paid by the purchaser to Vendors as per the details given in para 2 of the deed, the Vendor do hereby agree to sell/assign all the rights title interst as owner of the residential premises constructed on plot. No. 37 including the shares of the society bearing nos.-------------- in favour of purchasers without any reservation whatsoever nature.
2)
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 25/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/10/94 for reasons “referred to drawer” and complainants Bank informed complainant on 10/11/94 and thereafter, the notice of demand was issued on 12/11/94 and stated to be received on 19/11/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on 5/12/94 and the complaint was filed on 4/1/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgment and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 25/95. The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the notice period of 15 days expired on 4/12/1994 and the statutory period of 30 days for filing complaint expired on 3/1/95, and therefore, the complaint filed on 4/1/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges / installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges / installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no.25/ 95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 25/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. No. 25/ 95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 1781/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/10/94 for reasons “referred to drawer” and complainants Bank informed complainant on 10/11/94 and thereafter, the notice of demand was issued on 12/11/94 and stated to be received on 19/11/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on 5/12/94 and the complaint was filed on 3/7/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 1781/95. The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the notice period of 15 days expired on 4/12/1994 and the statutory period of 30 days for filing complaint expired on 3/1/95, and therefore, the complaint filed on 3/7/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 1781/ 95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 1781/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th joint Civil Judge Senior Division and J.M.F.C in S.C.C.No. 1781/95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 491/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/10/94 for reasons “referred to drawer” and complainants Bank informed complainant on 10/11/94 and thereafter, the notice of demand was issued on 12/11/94 and stated to be received on 19/11/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on 5/12/94 and the complaint was filed on 4/1/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 421/95.The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the notice period of 15 days expired on 4/12/1994 and the statutory period of 30 days for filing complaint expired on 3/1/95, and therefore, the complaint filed on 20/2/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 491/ 95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 491/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. No.491/ 95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C.761/95 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 30/1/95 for reasons “referred to drawer” and complainants Bank informed complainant on 30/1/95 and thereafter, the notice of demand was issued on 3/2/95 and stated to be received on 10/2/95 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on and the complaint was filed on 22/3/95.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 761/95.The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the complaint filed on 22/3/95 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 761/95 be called from the 13th Joint Civil Judge Senior Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 761/95 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. Case No. 761/95 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal no. /08
1) Mr. K.N. Rajendran
Age : Adult, Occu. : Business
R/at : Shivalay, Subhash Nagar
Manmad : 423104, Dist. -Nashik
2) Mr. Uttam Salve
Age : Adult, Occu. : Business
R/at :Mahananda Nagar, Camp
Manmad : 423104, Dist. -Nashik …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
Off/at – Shree Nidhi,
1205/216, Shirole Road,
Behind Sambhaji Garden,
Shivaji Nagar,
Pune : 5
(Original Complainant)
2) Central Railway Employees Consumers
Cooperative Society Ltd.
Manmad – 423104
(Original Accused no.1)
3) State of Maharashtra
Notice to be served on the
D.G.P. Pune
… Respondents
Appeal U/S 374 of Code of Criminal Procedure Code
FACTS IN BRIEF
1) The respondent No.1 had filed S.C.C. 2808/94 against the respondent No.2 as accused No.1 and present appellants as accused No. 2 and 3 U/S 138 of Negotiable Instruments Act.
2) It was the contention of complainant that the respondent No. 2 was to make payment to the complainant under a Hire Purchase Agreement towards which a cheque of Rs.65,000/- was issued to the complaint, which on presentation got dishonored on 25/8/94 for reasons “referred to drawer” and complainants Bank informed complainant on 3/9/94 and thereafter, the notice of demand was issued on 7/9/94 and stated to be received on 18/9/94 but not complied within 15 days of receipt.
3) As per the complaint, the cause of action arose on and the complaint was filed on 29/10/94.
4) The accused after receiving summons appeared in the matter and gave bail. Thereafter, the evidence was recorded in the matter and learned J.M.F.C 13TH Joint Civil Judge Senior Division, Pune by Judgement and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Being aggrieved and dissatisfied by the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. 2808/94.The appellant prefers present appeal on following amongst other grounds which are without prejudice to each other.
GROUNDS :
The impugned order is contrary to law and facts on record.
The learned Trial Court has not appreciated the evidence in proper sense and has not applied the legal provisions in proper manner.
The learned Trial Court has passed the judgment and order mechanically and without application of mind.
It ought to have been seen that, the complaint filed on 29/10/94 was beyond limitation.
It ought to have been seen that in the complaint it was alleged that the Hire purchase agreement made between complainant and accused No. 1 to 3 where as in the deposition it was stated that the loan advances / hire purchase finance was provided to the members of the accused No. 1 society.
It ought to have been seen that there are many statements in the deposition of the Complainant which were not existing in complaint. Thus, the complainant had made substantial improvements in his case while giving the depositions.
It ought to have been seen that, the complainant for first time during depositions had submitted that, accused No. 1 through accused No. 2 and 3 agreed to pay monthly Hire purchase charges due under the so-called agreement.
It ought to have been seen that, the so called agreement on which complainant relied had never come before the court.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was first time taken during the deposition of complainant.
It ought to have been seen that the contention regarding collection of hire charges/installment from members by accused No. 1 to 3 and the failure to pay the same to the complainant was not proved by the complainant.
It ought to have been seen that as per the own contention of complainant the amount of Rs. 2,23,064/- was the amount of future installments which were in fact payable by the members of the accused No.1 who had taken the loan from Complainant and not by the accused No. 1 to 3.
It ought to have seen that so called letter of acceptance of liability dtd 5/5/93 has not been duly proved by the complainant.
It ought to have been seen that the complainant for first time during deposition had stated that, the appellants were looking after the day to day matters and conducts of the accused No. 1. No such statement was made in the notice as well as in the complaint.
It ought to have been seen that, the statement of account submitted by complainant is not proper, correct and not duly proved.
It ought to have been seen that, the cheques were issued toward security.
It ought to have been seen that, the role and liability of the accused No. 1 and consequently that of accused no. 2 & 3 in the transaction between complainant and the members of accused No. 1 was limited and conditional.
It ought to have been seen that the complainant has not brought the real transaction before the court.
It ought to have been seen that, the complainant could not prove the liability of the accused No. 1 society and consequently that of accused no. 2 &3.
It ought to have been seen that the learned trial court has wrongly interpreted statement of Accused No. 2 about the records of society as an admission of liability and has heavily relied upon the same.
The learned trial court has over looked the basic principals of criminal justice.
The learned Trial court has used incorrect criteria for evaluating the evidence in criminal trial.
It ought have been seen that, the complainant had failed to prove its case on its evidence beyond reasonable doubt.
The learned trial court has proceeded by considering the presumption of law as final proof despite there being substantial evidence of rebuttal.
The learned trial court has totally disbelieved the accused and has accepted the complainant’s statement as Gospel truth, without there being any corroborative evidence for the same.
The learned trial court had proceeded with the case even when the advocate for accused were absent.
It is submitted that appellants were wrongly advised by their advocate about the their defense, and therefore, the vital facts in relation to substantial ground of defence available U/S 141 Negotiable instruments Act could not be brought on record. Thus, the appellants, due to improper advice of their counsel, have suffered heavy loss as they could not take a valid defence because some important facts could not be brought on record.
It is submitted that the appellants had exercised all due diligence to prevent commission of offence, and therefore, they were not liable to punishment.
It is submitted that the accused No. 2 and 3 were holding the membership consequently the post as chairman and secretary by virtue of they being employees of Indian Railways.
It ought to have been seen that, as per own showing of the Complainant the entire amount for which the cheque were issued has been received by the complainant.
It is submitted that out of 25 cases filed by the complainant for the cheques issued for the same alleged transaction/ liability 17 had been withdrawn, however, the complainant by falsely calculating interest, contrary to the norms of R.B.I., showed exorbitant outstanding amount and did not withdraw the remaining complaints. Thus it is clear that the complainant has abused the court process and court machinery for satisfying its illegal demands.
The impugned judgment and order is otherwise illegal and materially irregular which has resulted which has resulted in miscarriage of justice to these appellants, and hence the present appeal.
The judgment passed on 29/1/08. The appellant received certified copies on 29/1/08. The present appeal filed today is within limitation.
5. It is therefore prayed that :
The record and proceeding of the S.C.C. no. 2808/94 be called from the 13th joint civil judge Sr. Division and J.M.F.C, Pune.
Present appeal may kindly be allowed and judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C, Pune on 29/1/2008 in S.C.C. no. 2808/94 be quashed and set aside and the appellants be acquitted.
Alternatively the present appeal be allowed and matter may kindly be remanded back to the trial court i.e. 13th Joint Civil Judge Senior Division and J.M.F.C., Pune for de Novo trial in order to bring on record the relevant facts vital to the case relating to the defence of the accused.
The appellants be allowed to produce evidence in the present appeal.
The appellant may kindly be permitted to amend, add to the grounds or to agitate grounds not specifically mentioned in the appeal.
Pending hearing and final disposal of present appeal, the judgment and order passed by 13th Joint Civil Judge Senior Division and J.M.F.C in S.C.C. Case No. 2808/ 94 on 29/1/08 may kindly be suspended.
e) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date : /02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal nO. /08
1. Mr. K.N. Rajendran
2. Mr. Uttam Salve …Appellants
(Original Accused
no.2 & 3)
V/S
1. Kirloskar Leasing and Finance Ltd.
2. Central Railway Employees Consumers
Cooperative Society Ltd.
3. State of Maharashtra … Respondents
Application on behalf of the appellants for bail:
1.The appellants has filed the present appeal against the judgment and order dtd. 29/1/08 passed by 13th Joint Civil Judge Senior Division and J.M.F.C Pune in S.C.C no. /95 on various grounds which are mentioned in the appeal memo. In order to avoid repetitions the contents of the appeal memo be treated as part and parcel of this application.
2. The accused after receiving summons had appeared in the S.C.C. no. /95 and gave bail. Thereafter, the evidence was recorded in the matter and learned 13TH joint Civil Judge Senior Division, & JMFC Pune by Judgment and Order dtd 29/1/08 convicted the appellants and gave simple imprisonment of three-months and fine of Rs. 1,30,000/-. Thereafter the Ld. Trial Court have continued the bail of the appellants till the appeal period.
3. The appellants had regularly attended the trail court and had never misused the bail granted by the trial court. The conduct of the appellants had always been good. Both of them are retired Government employees.
4. The appellants have sanguine hopes of succeeding in the present appeal and therefore it is necessary to continue the bail which ahs been granted by the Ld. Trial Court.
5. It is therefore prayed that
a) The bail which was granted by the 13TH Joint Civil Judge Senior Division, & JMFC in S.C.C. no. /95 and which has been extended further after the Judgment and Order dtd 29/1/08 may kindly be continued.
b) Any other just and appropriate order be passed in the interest of justice and equity.
Pune
Date :25/02/08
Appellants
Adv. For Appellants
IN THE COURT OF SESSIONS JUDGE PUNE AT PUNE
Criminal Appeal nO. /08
1. Mr. K.N. Rajendran
2. Mr. Uttam Salve …Appellants
V/S
1. Kirloskar Leasing
and Finance Ltd. & ors … Respondents
Application on behalf of the appellants for suspension of sentence :-
1. The appellants have filed present appeal before this Hon,ble Court against the Judgement and order passed by Learned 13th Joint Civil Judge Senior Division and JMFC, Pune in S.C.C. no. /95 dtd. 29/1/08 on various grounds which are mentioned in the appeal memo. In order to avoid repetitions the contents of the appeal memo be treated as part and parcel of this application.
2. The appellants have sanguine hopes of succeeding in the present appeal and therefore it is necessary to suspend the sentence and the impugned Judgement and order passed by Learned Joint 13th CJJD and JMFC, Pune in S.C.C. /95 dtd. 29/1/08.
3. It is submitted that, if the suspension is not granted to the impugned order, these appellant will suffer grave and irreparable loss.It is submitted that, if present application is granted no loss and harm will caused to respondents as the respondent have already received the money under the cheque.
4. It is therefore prayed that :
a. The the Judgment and order passed by Learned 13th Joint Civil Judge Senior Division and JMFC, Pune in S.C.C. no. /95 dtd. 29/1/08 and the sentence may kindly be suspended till the final hearing and decision of the present appeal.
b. Any other just and appropriate order be passed in the interest of justice and equity
Pune
Date :25/02/08
Appellants
Adv. For Appellants
Assignment Deed
This Deed of Assignment made and executed at Pune on day of June 2008
BETWEEN
Mr/ Amit Dilip Shaha
Age – 31 yrs. Occ : Business
R/at : Flat No. 6, Bldg No. ‘D’ – 16
Second Floor, Liberty Co-Op Hsg. Society,
North Main Road, Koregaon Park,
Pune : 411 001
HEREINAFTER referred as “ASSIGNOR/VENDOR” (Which expression shall unless repugnant on contrary to the context or Hearing thereof be deemed to mean and include his heirs, executors, administrators and assigns etc.)
…. PARTY OF THE FIRST PART
AND
HEREINAFTER referred as “ASSIGNEE/PURCHESOR” (Which expression shall unless repugnant on contrary to the context or Hearing thereof be deemed to mean and include his heirs, executors, administrators and assigns etc.)
…. PARTY OF THE SECOND PART
AND
1) Mr. Vijakumar Doseja
Age. Adult Occ : Business
R/at : Row House No. 16, Konark – Enclave,
22, Bundgarden Road, Camp, Pune – 411001
CONSENTING PARTY NO. 1
2) Mr Ahura Builders,
Having its office at 957, Nana Peth,
Pune – 411 002, through its
Managing Partner,
Mr. P.A. Inamdar
Age – Adult, Occ. – Business
HEREINAFTER called as the “Builder/Consenting Party”
CONSENTING PARTY NO. 2
3) Liberty Co. Op. Hsg. Society
North Main Road, Koregaon Park,
Pune – 411 001
Through it’s Chairman
Mr.
Age : years, Occ. :
R/at
Co-Op HS/Connecting Party No. 3 (Which expression shall unless repugnant to the context or meaning thereof shall be deemed to mean and include his succession administrators etc.)
…. PARTY OF THE THIRD PART
WHERAS Consenting Party No. 2 i.e M/S Ahura Builders has proposed to original owners for development of land final Plot No. 323 TPS, and thereafter completed the construction of the Bldg. i.e. Liberty Co-Op Hsg. Society as per the plans ---nctoned by Pune Municipal Corporation.
ANDWHEREAS liberty Co-Op Hsg. Society came into existence /formed which was duely registered with the registering Authority under provisions of Maharastra Co-Operative Society Act, 1960 vide Registration No. PNA/PNA/HSG(TC) 1347/89-90.
ANDWHEREAS the first Vendor i.e. Mr. Vijay Kumar Doseja was admitted as member of Society and was allotted five fully paid consecutive shares of Rs. 50/- (Rs. Fifty Only) each in the share capital of the said society.
ANDWHEREAS by virtue of the said membership and share holding the First Vendor was sufficiently entitled to said premises and to have, hold, use, occupy, possess and / or enjoy residential premises bearing Flat No. 6 Building No.’D’ -16 on Second Floor admeasuring about 1130 sq. ft. Built up/ carpet area situated at “Liberty (I)” Co-Op HSG. Society. Final Plot No. 323 (Part), T.P.S Sangamwadi, north Main Road. Koregaon Park of village Ghorpadi, Pune 411 001 referred to as “Said Premises” to be added along with parking space No. 1 (Badge “D” liberty I)
ANDWHEREAS pursuant to negotiations the First Vendors and agreed to sell the to the First Purchaser and consenting party No. 1 Mr. Vijay Kumar Doseja who agreed to Purchase from the said flat along with the said parking space more particularly described in to schedule to the property and shares together with all rights, title and interest of the First Vendor in the said premises including the membership benefits and right to use, occupy, possess the said premises and to the amount and deposits standing in the name of first vendor and consenting party No. 2 in respect of said premises with the said society, free from all e------ claims and demands what so ever at or for the consideration of Rs. (9,00,000/- vide Agreement to Sale dt. 19 Feb. 1998premises described more particularly schedule was of effected.
ANDWHEREAS consenting Party No. 1 First Purchaser decided to sell the said premises to some purchaser offering proper value.
ASSIGNMENT DEED
This Deed of Assignment made and executed at Pune on day of August 2008.
BETWEEN
Mr. Prabhakar Supada Palwe
Age – yrs. Occ : Business
R/at : 11, Sai Samarth, Gulmohar Colony,
Opp – Wadia Bungalow, Gulmohar Colony, Nagar Road,
Yearwada, Pune – 411 006
Hereinafter referred to as “VENDOR” (which expression shall, unless repugnant or contrary to the context or meaning thereof, be deemed to mean and include his heirs, executors, administrators, and assignees etc.)
… PARTY OF THE FIRST PART
AND
Rajpal Credit & Realty,
Proprietor, Mr. Amitsingh Ajitsingh Rajpal
Age-32 yrs, occu-business,
Off/at : 479, Rasta Peth, Aden Villa,
Pune – 411 011
Hereinafter referred to as “PURCHASER” (which expression shall, unless repugnant or contrary to the context or meaning thereof, be deemed to mean and include his heirs, executors, administrators, and assignees etc.)
… PARTY OF THE SECOND PART
WHEREAS the property bearing Plot No. 196 admeasuring about 1710.71sq.mtrs. at Sangamwadi Town Planning Scheme Area, Pune which is more particularly described in schedule written hereunder, herein after referred to as ‘THE SAID LAND’ was developed by M/s Siddharath Enterprises proprietor Mrs. Sandhya Shrish Karia hereafter referred to as the developer.
AND WHEREAS the developer has constructed the building upon the said land as per the plan sanctioned by the P.M.C, as per commencement certificate No. 526 dt. 29/10/85 after construction of building P.M.C has issued the completion certificate dt. 513/86.
AND WHEREAS the building constructed upon the land by the developer is known as ‘SIDDHARTH COURT’ out of the said building the shop no.A-1 and A-2 were retained by the developer.
AND WHEREAS the developer got registered a Co-Operative society called ‘SIDDHARTH COURT CO-OPERATIVE SOCIETY’ hereafter referred to as the ‘SAID SOCIETY’. The said society has issued 5 shares as per folio No.-25 bearing No. 121 to 135 and 5 shares bearing No. 116 to 120 as per folio No. 24 in the name of the developer.
AND WHEREAS the developer sold the shop No. A-1 and A-2 admeasuring about 44.34 sq.mtrs. alongwith basement admeasuring about 81.04 sq.mtrs. and open space adm. about 41.24 sq.mtrs in front of Shop No. A-1 and A-2 in the building known as SIDDHART COURT, hwereafyter referred to aws the said property which is more particularly described in the schedule hereunder written, to Mr. Khusroo A. Khobyar and Mrs. Shahanz K. Khobyar by an Agreement for Sale and transfer dt. 23/1/06, registered in the office of Sub-Registrar Haveli No.-8 at serial No. 575/06.Thereafter the share bearing No. 116 to 125 were transferred in the name of Khosroo Khobyar.
AND WHEREAS The Khobyar has transferred all their rights, title and interest in the said property, vested in them in the name of Charudatta Prabhakar Palwe and present vendor by virtue of the Deed Of Assignment dt. 13/4/07 which is registered with the office of Sub-Registrar Haveli No.- 8 at serial No. 2490/07
AND WHEREAS by virtue of the said Deed of Assignment dt. 13/4/07 the present Vendor and Charudatta Prabhakar Palwe have got exclusive right, title and interest in the said property which is described in the schedule hereunder written.
AND WHEREAS Charudatta Prabhakar Palwe has gifted his ½ share in the said property in favour of present Vendor, by Gift Deed dt. 28/2/08 which is registered in the office of Sub-Registrar Haveli No.-8 at serial No. – 1503/2008.
AND WHEREAS Vendor is having exclusive right title and interest in the said Shop No. A-1 and A-2 which is free from encumbrances and is in peaceful, undisturbed and exclusive possession of the said Shop No. A-1 and A-2, which is more particularly described in the schedule hereunder written.
AND WHEREAS Vendor decided to sell the said property to some purchasers offering proper value.
AND WHEREAS the present Purchaser was interested in buying the said property and therefore approached the Vendor and offered to Purchaser the said property for total consideration of Rs.----/-
AND WHEREAS the Vendor found the said offer to be reasonable and therefore agreed to transfer the said Shop No. A-1 and A-2 for the consideration of Rs.-------------------/-
AND WHEREAS the parties to this Deed have decided to put in writing the terms and condition agreebed between them which are as follows:
NOW THEREFORE THIS INDENTURE WITNESSETH AND IS HEREBY AGREED AS UNDER:-
1) In consideration of Rs. /-( Rupees ousand only) being paid by the purchaser to the vendors as per the details given in para 2 of the deed, the vendor do hereby sell, convey, transfer, assign, all the rights, title interest as holder, owner of the Shop no.A-1 and A-2 total admeasuring about 44.34 sq.mtrs and basement admeasuring about 81.04 sq.mtrs. and open space admeasuring about 41.24 sq. mtrs in front of Shop No. A-1 and A-2 in “SIDDHARH COURT” more particularly described in the schedule here under written, along with the shares of Society, in favour of purchaser without any reservation whatsoever nature.
2) The details of payment made by purchaser to the vendor is as under :-
Amount Particular
a) Rs
c) Rs. /- By chq.no. , dt. drawn on
d) Rs. /- By chq.no. , dt. drawn on
__________________________________________________
Rs. /-( Rupees only)
3) The vendor do hereby assign all the rights in the said property described in the schedule along with the right to use the paths, passages, water courses, drains, and other easementary right, profits advantages and appurtenances attached to the said property/said flat belonging or in anyway appertaining to the same or part thereof, unto the purchaser, subject to the payment of rents, taxes assessments, rates, duties chargeable upon the said property or which may hereafter become payable in respect thereof to Government of Maharashtra or Pune Municipal Corporation and that purchaser shall and at all times hereinafter peaceably and quietly enter upon, have occupy, possess and enjoy the said property, along with undivided share in the land, for their use and benefit without any suit, eviction, interruption, claim, and demand whatsoever from the vendor or his successors and assignees or any person claiming from vendor.
4) The municipal taxes, Society maintenance charges and other outgoings payable in respect of the said property have been paid till the date of possession. The property taxes and maintenance charges payable in respect of the said property henceforth shall be paid by the purchaser alone and the vendor shall not be liable for the same.
5) The said property has _____electricity meter/s and the bills in respect of that meter/s have been paid up to date of possession. The purchaser shall be entitled to transfer the said electricity meter/s in his name. The vendor shall give his signatures wherever required for transferring the said meter/s in the name of the purchaser.
6) The vendor has handed over the actual, physical, vacant and peaceful possession of the Shop no.A-1 and A-2 total admeasuring about 44.34 sq.mtrs and basement admeasuring about 81.04 sq.mtrs. and open space admeasuring about 41.24 sq. mtrs in front of Shop No. A-1 and A-2 in “SIDDHARH COURT” more particularly described in the schedule, to the purchaser and purchaser has received the actual, physical, vacant possession of the said property from vendor in the presence of family members and undersigned witnesses and therefore no separate possession receipt is necessary.
7) The Vendor do hereby covenants with the purchasers that the property which has been sold by the Vendor to the Purchaser, is free from all or any of the encumbrances of whatsoever nature and vendor has clear and marketable title over the said property. The said property is not subject matter of any dispute, litigation, attachment, lease, lien partition/ Agreement, assignment, charge, mortgage and tenancy. No person from the family of the vendor has any right or claim in the said property. If any person claiming through vendor makes any claim over the said property on the basis of succession or survivorship then the vendor shall be liable to settle such claims at his own cost. The vendor shall keep indemnified the purchaser against all claims by any person whatsoever claiming through the vendor.
8) The vendor further covenants with the purchaser that they have not received any notice of acquisition, requisition, reservation either from Govt. authorities or any ceiling authority. The vendor further covenants that except for the loan mentioned above he has not raised any other loan against the said property nor has created any charge over the said property by offering it as a security to any individual or institution. The said property has not been mortgaged by the vendor to any person or institution for any loan or other money. Despite the assurance given if it is revealed that there is a clog on the property the same shall be cleared by the vendor without any delay and without causing any loss, harm to the purchaser. The purchaser shall be entitled to enforce the assurances, benefits, and easements against the vendor.
9) The purchaser shall be at liberty to apply to the Revenue Authority for entering their name in record of rights in PMC, society office; as holder and occupier of the said flat. For this purpose vendor shall co-operate with the purchaser. The vendor shall not be entitled to any additional consideration for the same.
10) The expenses for stamp duty, Registration fee, and other incidental expenses for this sale-deed have been borne by the purchaser alone.
11) The property mentioned in schedule has been sold for Rs. (Rupees thousand only) on which the adequate stamp has been paid on present document.
SCHEDULE OF THE PROPERTY
All the piece and parcel of Shop No. A-1 and A-2 totally admeasuring about 44.34 sq.mtrs. and open space admeasuring about 41.24 sq.mtrs in front of Shop No. A-1 and Shop No. A-2 along with 6 parking slots admeasuring about 33.44 sq.mt in the building know as “SIDDHARH COURT” constructed upon final Plot No. 196, Sangamwadi Town Planning Scheme Area, Pune within the limits of Pune Municipal Corporation, along with all the rights, easementary right, right to use the approach road, stair cases and common amenities and facilities and all other rights appurtenant to the said property and the shares of the society bearing no.121-125 and 116-120 and all other rights which were with the vendors.
IN WITNESS WHEREOF THE PARTIES HAVE SIGNED TODAY IN THE PRESENCE OF WITNESSES.
Witnesses
Name :-
Add :-
Sign:-
(Vendor)
Name :-
Add :-
Sign:- (Purchaser)
IN THE COURT OF THE HON’BLE SECRETARY,
CO-OPERATIVE DEPARTMENT, GOVERNMENT OF MAHARASHTRA, MANTRALAYA, MUMBAI AT MUMBAI.
Revision Application No. /2008
Mrs. Urmila Hukumchand Bhalani …. Applicant
V/S
Divisional Joint Registrar
and others. …. Opponents
Written argument on behalf of the applicant is as follows :
1) The applicant is not member of the opponent No. 2 and has not taken any loan from opponent No.2.The opponent No. 2 have alleged that, applicant has taken loan towards the purchase of Television and refrigerator from it’s sister concern consumer Co-Operative society Barloni Tal.-Madha, Dist-Solapur. However the applicant has purchased the television set and refrigerator by cash and he is in receipt of cash payment. Therefore it is wrong to say that applicant has taken the loan for the purpose shown by the opponent No.2. Therefore it is clear that the opponent No.2 failed to plead and prove the correct nature of transaction and the purpose of alleged loan. Further more, as per law the opponent No.2 is not entitled to run such consumer society to sell to non-members without Registrar’s permission. This version is given by the apex court in –
Amravati Town Co-Op erective society.
V/S
Rangrao Wakode 1971, CTD 19
Held : Credit Society running fair price shop can not be allowed to sell to non-members without Registrar’s permission, manager of society allowing the same is responsible.
However both of the lower courts have ignored this legal position.
2) The opponent No.3 A.R.C. Madha have not followed the principal of natural justice, the procedure laid down by law and various directions given by the government of Maharasthra time to time. The issuance of notice to the borrower before issuing Recovery certificate U/S. 101 of the M.C.S Act is the mandatory provision and the A.R.C. Madha ought to have issued notice to the applicant. However the A.R.C. Madha have not issued any notice and directly issued the alleged Recovery certificate U/S. 101 of the M.C.S. Act. This position is ignored by the opponent No. 1.
The A.R.C. Madha is the quasi-judicial authority who should have followed the principal of natural justice. This aspect is very clear from the ‘Roznama’ and the other certified copies of the proceeding before the A.R.C. Madha in this regard. Therefore such Ex-parte order ought to have been set-aside by the opponent No. 1, but very un-fortunately the opponent No. 1 neither gone into the merits of matter, nor gone through the record produced but blindly without a single reason came to conclusion and passed the impugned order. It was the honors duty of the opponent No.1 to see that whether the A.R.C. Madha have followed the procedure, principle of Natural justice, and whether he has issued notice before issuance of Recovery certificate U/S 101 of M.C.S. Act. Therefore both the lower courts have not whispered a single word about the issuance of notice before issuance of Recovery certificate in their orders. Therefore such order, such issuance of Recovery certificate U/S 101 of M.C.S. Act is bad in law, illegal, void and liable to set-aside. I have given below various rulings of the High-Courts and Supreme Court in which the Hon’ble Courts have quashed the issuance of Recovery certificate U/S 101 of M.C.S. Act without prior notice.
I) Ramchand
V/S
The Collector, Nagpur
72, Bom LR 666
Held : A certificate issued without any enquiry will be quashed.
II) Eknath Narhar Joshi
V/S
Shirwade Wani Vividh Karyakari
Sewa Sahakari Society Ltd. 1990 CTJ 659.
Held : Certificate obtained by society was not acceptable and not consistent with the provision of law. The dispute is maintainable and society is restrained from recovering any dues on the basis of certificate under Sec. 101 of the Act.
III) Ghosarwad V.K.S. Sahakari Society
V/S
Javanappa Bhujanga Basawade and others
1970 CTD 80
Held : The officer exercising Power under Sec. 101 of the Act must hold an enquiry after issuing notice to the defaulter against whom certificate of recovery is claimed, which postulates application of mind to the facts of case and adjudication of correctness of otherwise of the preferred claim.
IV) Ramkrishna
V/s
District Deputy Registrar 1970 MHLJ Note 25
Held : A certificate issued without notice and without any enquiry is liable to be quashed.
3) Therefore considering the above case-laws it is very clear that the law puts mandate of notice to the borrower before any enquiry and issuance of certificate under the Act. This aspect is very well explained in administrative law in ‘Rule of audi-atteram partem’ that it is the right of the person to have a chance of hearing to give his statement before initiating any action against him, therefore the notice is the preliminary action, which provides basis to the whole legal action and in absence of notice any order passed by any authority including judicial as well as quasi-judicial such order is the Ex-parte order and such Ex-Parte order without a chance of hearing to the borrower vitiate the whole proceeding and defeat the vary object of law and legal action.
4) The S. 137 of the M.C.S Act is also made mandatory on the courts to follow the principal of natural justice.
It states that : Rules of Natural Justice should be observed before a certificate is issued.
5) Further more the circular of the commissioner for Co-Operation Government of Maharashtra also made it obligatory on the part of Registrar to issue notice by Register Post Acknowledgement Due to the borrower prior to issuance of certificate. U/S – 101 of the Act.
Therefore in the present case the A.R.C Madha :-
Have not issued any notice to the applicant before issuance of certificate under Sec-101 of the Act.
Have not made any enquiry before issuance of the alleged certificate.
Have not followed the principal of Natural Justice, the procedure laid down by law, rulings of the apex courts and even circular of the Government of Maharashtra.
6) The opponent No. 1 has passed the impugned order without a single reason. It is well settled law that any order by the judicial or quasi-judicial body must be with reasons, sufficient to provide basis to the order. The principle of ‘Reasonable order’ is not followed in the present case by the opponent No.1 and on this count also the order of the opponent No.1 is liable to be quashed. This thing is crystal clear from the bare perusal of the order of the opponent No.1. In that impugned order the opponent No.1 has not given any single reason that, how he came to the conclusion that proper chance of hearing is given to the applicant by the A.R.C. Madha. Therefore the impugned order of the opponent No.1 lacks sufficient reason and hence liable to be set aside.
7) In the impugned order the opponent No. 1 says only that, “after going through the documents I have came to conclusion” but he has not mentioned which documents he perused? What contents are there in those documents which caused the opponent No.1 to arrive at the particular decision? The opponent No.1 have not given any reason to the conclusion that, sufficient opportunity is being given to the applicant by the A.R.C. Madha, but mere words are there in his impugned order and not a single reason given by the opponent No.1 so as to say that, the order passed by the opponent No.1 is the reasonable order. Therefore the rights of the applicant are jeopardized due to the impugned order of the opponent No.1 and therefore the said impugned order of the opponent No.1 dt. 15/10/2007 is liable to be quashed in the interest of justice.
Mumbai
Date : Advocate for Applicant.
AMENDED PLAINT
IN THE COURT C.J.S.D. PUNE AT PUNE
R.C.S. NO. 394/1989
Gangaram Mahadu Bidkar
Since deceased through
Legal heirs
1) Smt. Gitabai Ganagaram Bidkar
Age : 71 years, Occ.: Household
2) Shri Suhas Gangaram Bidkar
Age : 41 years, Occ : Agriculture
3) Shri Ashok Gangaram Bidkar
Age : 53 years, Occ : Service
4) Shri Mahadeo Gangaram Bidkar
Age : 36 years, Occ- Service
5) Mrs. Shobha Maruti Khatade
Age : 46 years, Occ : Agriculture
All R/at : 235/A, Sanjay Park,
Lohagaon, Pune –32
And also at – Flat No. 402, 878 Bootee street,
Camp, Pune –1
6) Mrs. Shailaja Gopal Aurange
Age : 38 years, Occ : service
R/at : Tungarli, Lonawala,
Dist : Pune ---- Plaintiffs
V/S
1. State of Maharashtra
represented by the collector Pune
2. Special Land Acquisition officer
No. 18,
Having its office at collector’s
Office compound, Pune 411 001 ---- Defendants
The Plaintiff above named most respectfully submits as follows :
1) The Plaintiff is the owner of the land bearing survey No. 235/A, Lohagaon, which is more particularly described in the schedule hereunder written. The Plaintiff is producing the 7/12 extract of the said property at Sr. No. 1 along with the suit. The property which is more particularly described in the schedule appearing at the bottom of the plaint shall be referred to as the ‘Suit Property’ for the sake of brevity.
2. The Plaintiff states that initially, the suit property was requisitioned by the Government in the year 1958 or thereabout under the Defence of India Rules, for Defence purposes. The requisition continued up to the year 1973. Thereafter, by an order dated 26/2/1973, the Collector, Pune, directed that various lands, inter-alia the land bearing Survey No. 235/A, i.e. the suit property were no longer required for the purpose for which they were requisitioned. The said order was bearing No. MIL 573. The Plaintiff is producing the said order at Sr. No. 2, along with the plaint. As a result of this order, the suit land was de-requisitioned.
3) The Plaintiff submits that in furtherance of the order referred to above, Defendant No. 1, informed the Plaintiff vide a letter to take possession of the suit property. The plaintiff has produced the said letter at Sr. No. 3 along with the Plaint.
4) It is contended by the Plaintiff that on 7/9/1976, the Defendant No. 1 put the Plaintiff in actual physical possession.
5) The Plaintiff states since then the Plaintiff is in actual physical possession of the suit property and has been taking the crops like sugar cane, groundnuts, and such other crops in the suit property. The Plaintiff states that in the suit property there is a well and a lake. There is no water in the lake but sufficient water to cultivate the entire suit property as well as for drinking purposes is available in the well. The cultivation of entire suit property is totally dependent on water from this well. Except the water from the well no other facility of irrigation is available to the suit property. The Plaintiff states that the Plaintiff himself and his family members are totally dependent on the agricultural income of the suit property.
6) The defendant No. 1 issued a notice U/S 4(1) of the Land Acquisition Act on 16/1/1986 to the Plaintiff regarding acquisition of the land admeasuring about 10 Ares out of the suit property for the purpose of defence project of India, Air Force. The Plaintiff submits that in the said notice, the portion of the suit property that was proposed to be acquired was not specifically mentioned, nor did the said notice specify the boundaries of the property proposed to be acquired. The Plaintiff is producing the said notice dated 16/8/1986 along with the suit at Sr. No. 4.
7) The Plaintiff therefore by a letter dated 29th September 1986 sent a reply to the Notice referred to above. The Plaintiff had specifically mentioned in the reply that the matter was sub–judice regarding the ownership and the right of the well situated in the suit property. Therefore, the reply was given without prejudice to the rights of the Plaintiff in the said matter. Further the Plaintiff also pointed out that the map of the land proposed to be acquired was not annexed to the notice and therefore it was not possible for the plaintiff to explain/submit his objections for the same. The plaintiff had met the defendant No.2 on 25/9/1986 and had explained the situation personally. The Plaintiff had therefore stated in the said letter that upon receipt of the reply on the points raised in the said letter, the Plaintiff would reply the show cause notice dated 16/9/86 referred above. The Plaintiff is producing the office copies of the letter dated 29/9/86 at Serial No. 5.
8) In spite of the letter of the Plaintiff dated 29/9/1986, neither the Defendant No. 1 nor the Defendant No.2 gave any reply or any explanation to the queries raised by the Plaintiff. The reply dated 29th September 1986. was given within the stipulated period of 30 days from the issuance of the notice under section 4 (1). Therefore it was obligatory on the part of the Defendants to send a reply to the said letter and also to give complete opportunity to the Plaintiff and to refer the matter to Defendant No. 1 along with the objections of the Plaintiff.
9) The Plaintiff respectfully submits that according to the mandatory provision of Sec. 5-A sub-sec.2 Defendant No. 1 was under a legal obligation to give a complete opportunity to the Plaintiff to represent his case either in person or through the Pleader of the Plaintiff.
It was also incumbent on the part of the Defendant No.1 to conduct an enquiry and thereafter to report to the Government. The recommendations along with the recorded proceedings held by him for the decision of the Government. However, the Defendant No.1 failed and neglected to follow the mandatory provisions of Sec. 5-A of the Land Acquisition Act. Thus, it is the specific contention of the Plaintiff that the entire acquisition proceeding has been vitiated.
10) It is the contention of the Plaintiff that without observing the mandatory provision of Sec. 5-A of the Act. The Defendant No. 2 issued a public notice under Sec. 6 of the Act. The Plaintiff came to know about this notice at a much later stage i.e. on or about 9th January 1989. Thereafter, upon perusal of the said notice, it is seen that some report under Sec. 5-A(2) of the Land Acquisition Act has been prepared and sent by the Collector to the Government. However the said report must have been sent without giving any hearing and as such is bad in law. The Plaintiff is producing a copy of the said public notice at serial No. 6 along with the plaint.
11) The Plaintiff thereafter received a notice from Defendant No.2 under Sec. 9 of the Act on or about 1st Jan., 1989. By the said notice the Plaintiff was called upon to be present before the Defendant No. 2 on 9/1/1989 for explaining the nature of the right, title and interest of the Plaintiff and regarding the compensation to be paid to the Plaintiff. The boundaries which are mentioned in the said notice are also incorrect and therefore the said notice is not a legal one. The Plaintiff has produced the notice under Sec. 9 at serial No. 7 along with the plaint.
12) The said matter was adjourned by the Defendant No. 2 at the request of the Plaintiff up to 17/1/1989. on 17th the Plaintiff submitted his written objections and also his written arguments with Defendant No. 2. On perusal of the Public notice referred to above and the Notice under Sec.9, the Plaintiff presumes that the Defendant want to acquire the land wherein the well is situated and this well is being acquired for the purpose of defence project of Indian Air Force. The suit property which is described in the Schedule hereunder written is having the area of 5 Hectors and 46 R. The said land is an agricultural land which is being cultivated by the Plaintiff personally. The Plaintiff has been taking the crops of sugarcane, groundnuts, wheat, rice, and bajari. The said well which is sought to be acquired is the only source of water for cultivating the suit property. Except this well, no other facility of irrigation is available to the Plaintiff for cultivating the land. Therefore, if the well is acquired the entire land of 5 Hectors 46 R would become useless, as the Plaintiff would not be in a position to take any crops in the said land.
13) The Plaintiff respectfully submits that the entire family of the Plaintiff is dependant on the income which the Plaintiff gets by cultivating the land personally. Except this land the Plaintiff does not possess or own any other land elsewhere. The water of the well has been utilised for drinking by the Plaintiff has installed diesel engine on the said well for pumping the water for agricultural activities. Therefore, if the well is acquired, the Plaintiff shall be put to irreparable loss, which cannot compensated in terms of money. The suit property cannot be utilised for any other purpose nor it can be used in any other manner in which it would be possible for the Plaintiff to get regular recurring income to the Plaintiff and his family members. As such the question of the survival of the Plaintiff and his family members would arise. As a result of all these events, the life of the Plaintiff will practically be ruined and the compensation at any high rate will not be an adequate remedy for this loss.
14) It is the specific contention of the Plaintiff that the action on the part of the Defendant to acquire the well in the suit property is not bonafide and genuine. Huge properties situated at Lohagaon are owned and possessed by the Defendants. The Defendant can very well dig a new well in these lands for the purpose of defence project of Indian Air Force. If the new well is dug by the Defendants the same can be unitised for the defence projects of the Indian Air Force.
In these circumstances, the action on the part of the defendants to acquire the well owned by the Plaintiff cannot be treated to be bonafide and genuine. All these factors were incorporated in the written arguments which were submitted by the Plaintiff is producing herewith the Copy of the written objections and arguments at Serial Now. 8 and 9 respectively. The Plaintiff requests this Hon’ble Court to treat the same as part and parcel of the plaint.
14) After 17th of January 1989 the Plaintiff did not receive any communication from the Defendant. For all the reasons stated above, it is specific contention of the Plaintiff that the notice under Sec. 9 issued by the Defendant No. 2 on or about 1st Jan. 1989 is bad in law. The Defendant No. 1 and 2 are about to proceed further on the basis of the above notice. The Plaintiff states that any further action of the Defendants on the basis of the illegal notice under Sec. 9 would be nullity and without any legal consequences. Since the Plaintiff did not receive any communication from the defendant after 17/1/1989 the Plaintiff apprehends some illegal action against him by the Defendants and hence the Plaintiff is constrained to file the present suit, thereby challenging the validity and legality of the notice published in Daily Prabhat on 17/8/1987 as well as notice under Sec. 9 received by the Plaintiff in the first week of January 1989.
15) The cause of action for the present suit first arose on 17/8/1987 when the notice under Sec. 6 was published by the Defendant No. 2 without following the mandatory provision of Sec. 5-A of the Land Acquisition Act. The cause of action further arose in the first week of January 89 when the Plaintiff received the notice under Sec. 9 from the Defendant No. 2 and upon enquiries the Plaintiff got the knowledge of the notice dated 17/8/1987. The cause of action further arose on 17/ /1989, when the Plaintiff submitted his written objections as well as arguments to the Defendant No. 2. The cause of action continues to arise every day thereafter.
16) The suit property situates, within the territorial limits of the Hob’ble Court. The cause of action for the present suit arose at Pune. Therefore this Hon’ble Court has jurisdiction to entertain and try this present suit.
17) The present suit being for declaration and the consequential relief of injunction, it cannot be calculated in terms of money. Therefore, the suit has been valued at Rs. 600/- for both declaration and the appropriate court fee stamp has been paid.
18) SCHEDULE
All that piece and parcel if land, lying and being situated within the limits of Sub-Registration District, Tal : Haveli, Dist : Pune and within the limits of Pune Municipal Corporation, the land bearing S.No. 235/A Lohagaon, admeasuring about 5 Hectors and 46 R and bounded as follows :
On to the East : S.No. 236
On to the South : Puru Society
On to the West : S.No. 240 and Road
On to the North : S.No. 239
19) The Plaintiff therefore prays that :
a) The notice dated 17/8/1987 issued by Defendant No. 2 under Sec. 6 of land Acquisition Act and published in Daily Prabhat as well as if published in any other news paper be declared to be illegal null and void.
b) The notice issued by the Defendant No. 2 under Sec. 9 of the Act pertaining to the acquisition of part of the suit property, may kindly be declared to be illegal, null and void.
c) The Defendants may kindly be restrained by and order of permanent injunction from taking any action against the Plaintiff as a result of which the legal rights of the Plaintiff over the said property are adversely affected.
d) Temporary injunction during the pendency of the suit in terms of prayer in clause (c) above may be granted.
e) Costs of this suit may kindly be awarded to the Plaintiffs from the Defendants.
f) Any other just and equitable orders in the interest of justice may kindly be passed.
Pune
Date : 1.
Advocate for the Plaintiff.
VERIFICATION
I, Ashok Gangaram Bidkar, the Plaintiff above named Plaintiff, do hereby state on solemn affirmation that what is stated above is true and correct to the best of my knowledge and belief and I have signed this today at Pune.
Plaintiff
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