District : South 24
Parganas
In the Court of the Learned Additional District Judge, at
Baruipur, South 24 Parganas.
Misc. Appeal no.
of
2021
In the matter of :
An application for stay of operation of Order No. 2 dated
31.03.2021, passed by the Learned Civil Judge, Senior Division, 2nd Court,
Baruipur, South 24 Parganas in Title Suit No. 194 of 2021;
AND
In the matter of :
Smt. Sriparna Chowdhury, and Others,
________Defendants
/ Appellants
-
Versus –
Sri Ishwar Chandra Biswas,
__________Plaintiff
/ Respondent
The humble petition of the above named Defendants / Appellants,
most respectfully;
Sheweth :
1.
That the Plaintiff /
Respondents has filed a Title Suit being T.S. no. 194 of 2021, before the
Learned Civil Judge Senior Division 2nd Court at Baruipur, South 24
Parganas, under Specific Relief Act’ 1963.
2.
That the Learned Court
below heard the Petition under Order 39 Rule 1 & 2 of C.P.C. on 31-03-2021,
and was pleased to pass an interim order which is the order impugned in the
instant Misc. Appeal.
3.
That the Ld. Court below has missed
to take note that the entire suit property of deceased Hiranmoyee Dasi, wife of
Late Kesab Chandra Chowdhury, has been inherited by 25 persons, all of whom
have not been made parties either in the Agreement dated 20th August,
2017, or in the suit. As such in absence of representations of each of them,
the suit as well as the Agreement dated 20th August, 2017 is
defective and the suit needs to be dismissed.
4.
That the Ld. Court below ought to
have noticed that only two persons namely one Sri Pronay Chowdhury and one Sri
Prosun Chowdhury, being legal heirs of deceased Hiranmoyee Dasi, had signed the
unregistered Agreement dated 20th August, 2017; while others
never signed the said Agreement. As such through mal practice and fraud said
Agreement dated 20th August, 2017 has been prepared and the
same was presented before the Ld. Court in getting the interim order. The
unregistered Agreement has no value in the eye of law.
5.
That the Ld. Court below has missed
to note that the said Agreement dated 20th August, 2017 does
not contain any Memo of Consideration, apart from which there is not even a
single line in the said Agreement in proof of monetary transaction, meaning
thereby no monetary transaction has ever been taken place; as a result of which
before passing the interim order dated 31.03.2021, the Ld. Court had no proof
in terms of payment of Rupees thirty six lakh as alleged to have been given by
the Plaintiff /respondent. Besides the present law prohibits transfer of rupees
thirty six lakh by cash.
6.
That the Ld. Court below has
proceeded and dealt with a fraudulent document which has no existence. The
Plaintiff/Respondent has committed fraud upon the Ld. Court.
7.
That the Defendants/Appellants have
never parted with possession of the property as noted in the impugned order
passed by the Ld. Court below.
8.
That the Ld. Court below failed to
note that only two transferors cannot transfer title of other legal heirs.
9.
That an F.I.R. has been registered
before Baruipur Police Station for forgery and other offences, committed by the
Plaintiff/Respondent, in respect of the said Agreement dated 20th August,
2017 and consequently, Baruipur Police Station case no. 1350/2021 has been
started and the Plaintiff/respondent is in jail custody for more than a month.
10.
That the impugned order is
otherwise bad in law and it should be dismissed in limini.
11.
That the defendants /
appellants seeks stay of operation and or effect of Order No. 2 dated
31.03.2021, passed by the Learned Civil Judge, Senior Division, 2nd Court,
Baruipur, South 24 Parganas in Title Suit No. 194 of 2021, till the disposal of
this instant appeal.
12.
That unless the Learned
Court grant stay of operation and or effect of Order No. 2 dated 31.03.2021,
passed by the Learned Civil Judge, Senior Division, 2nd Court,
Baruipur, South 24 Parganas in Title Suit No. 194 of 2021, the defendants /
appellants will highly prejudice and suffer with irreparable loss and injury
thereof.
13.
That the balance of
convenience and inconveniences are in favour of the defendants / appellants and
the plaintiff / respondent will not prejudice.
14.
That this application is
made bonafide and in the interest of administration of Justice.
It is therefore prayed that
your Honour would graciously be pleased to allow this application and to grant
stay of the operation of the Order stay of operation and or effect of Order No.
2 dated 31.03.2021, passed by the Learned Civil Judge, Senior Division, 2nd Court,
Baruipur, South 24 Parganas in Title Suit No. 194 of 2021, till disposal of
this present appeal before the Learned Court in the interest of administration
of Justice.
And for this act of
kindness, the Defendant / appellants as in duty bound shall ever pray.
VERIFICATION
I, Smt. Sriparna Chowdhury, daughter of Late Sudhangshu
Chowdhury of Village- Jaynagar Uttarpara,
Post Office and Police Station- Jaynagar, District- South 24 Parganas, Pin-
743337 do hereby declare and say that the statement made in
paragraphs 1 to ______ are true to the best of my knowledge and the rest are my
humble submission before this Learned Court. I signed the verification on this
………..day of …………….2021, at the Court Premises.
A F F I D A V I T
I, Smt. Sriparna Chowdhury, daughter of Late Sudhangshu
Chowdhury aged about 47 years, by faith
Hindu, by Occupation- House Wife , by Citizenship Indian, of Village- Jaynagar
Uttarpara, Post Office and Police Station- Jaynagar, District- South 24
Parganas, Pin- 743337, do hereby solemnly affirm and say as follows:-
1.
That I am the defendant/Appellant no. 1 and am fully acquainted
with the facts and circumstances of the case and competent to swear this
affidavit. I am authorized by the Defendants / appellants no. 2 to 6 to swear
this affidavit on their behalf also.
2.
That that the statement made in paragraphs 1, ________ are
true to the best of my knowledge and the rest are my humble submission before
this Learned Court.
That the above
statements are true to my knowledge and belief.
D E P O N E N T
Identified by me
Advocate
Prepared in my Chamber,
Advocate.
Date : _______________2021.
Place :
High Court, Calcutta.
N O T A R Y
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