ASHOK KUMAR SINGH

Saturday, March 25, 2023

application for Injunction / Civil Suit / Suit

District: South 24 parganas

IN THE COURT OF THE LEARNED CIVIL JUDGE JUNIOR DIVISION AT DIAMOND HARBOUR

Title suit no. of 2016

Sri Shankar Das

Son of Sri Subal Chandra Das

Residing at Village-Dakshin Sargoria,

Haridanagar,

P.O. & P.S. Falta,

District- South 24 Parganas,

Pin- 743504

……………. Plaintiff

-Versus-

1. The Branch Manager

Bank of India

Bibirhat more Branch

Vill. & P.o. Bibirhat,

Dist. South 24 Parganas,

Pin- 743368

2. The Chief Manager

Bank of India

Howrah Zonal Office

5, B.T.M. Sarani,

Kolkata- 700001,

Dist. South 24 Parganas,

…………………. Defendants

AN APPLICATION UNDER ORDER 39 RULE 1 AND 2

READ WITH SECTION 151 OF THE C.P.CODE

The humble petition on behalf

of the Plaintiff abovenamed.

Most respectfully sheweth :-

1. That your petitioner/plaintiff has filed the instant case for declaration and injunction against the defendants on the grounds as stated in the plaint.

2. That in nutshell the facts of the case is described below.

3. That the plaintiff is the absolute owner of the vehicle being No. WB 19E 7963(Bus).

Xerox copy of certificate of registration, vehicle permit, insurance policy and road tax are annexed herewith as marked “A1, A2, A3 & A4” respectively.

4. That the plaintiff had took a loan from the Defendant no.1 against the vehicle being No. WB 19E 7963 (Eicher Bus) which had been purchased by the plaintiff for his business purpose and where the loan account No. is 433272310000047.

5. That after taking the aforesaid loan your plaintiff regularly paid his EMI through his saving Bank being account no. , Bank of India, , P.O. , Dist. South 24 Parganas, and Pin- regarding his loan account.

6. That after purchased the said bus your plaintiff had suffer a tremendous trouble because that bus was defective and not fit for run on the road and due to that reason your plaintiff business had been suffer tremendously and your plaintiff business had been running on loss and for that reason your plaintiff failed to pay his EMI for few months but after that he paid his EMI regularly.

7. That on 09.10.2015 defendant no.1 send a letter to your plaintiff where they mentioned that your plaintiff was defaulter of payment of Rs. 08, 69,442/- plus interest but the interest amount has not mentioned on the letter after that when your plaintiff has been taken the statement of account from his bank then he found that the overdue amount which has been paid by your plaintiff does not shown in Bank Statement of his loan account.

Xerox copy of defaulter letter dtd. 09.10.2015 is annex herewith as “B”.

8. That after in several times your plaintiff go to the defendants office and meet the responsible officer to clarify the aforesaid dispute but in every time they refused to clarify and denied any assist regarding the overdue amount which has been paid by your plaintiff does not shown in Bank Statement of his loan account.

Xerox copy of statement of account is annex herewith as “C”.

9. That after your plaintiff send a letter to your defendant no.1 where he stated that he is a disable person and due to the defective condition of the bus his business has been running loss and for that reason his financial condition has worst suffer and due to that he was failed to pay his EMI for three to four months but after that he tried to pay his EMI regularly.

10. That after your plaintiff send a letter to the defendant no.1 and defendant no.2 on 21.12.2015 through his Advocate Mr. Ashok Kumar Singh where he seeks to get itemized statement of his account with total clarification of every debit and credit from the defendants regarding his loan account but unfortunately the defendants has not intend to reply the same.

Xerox copy of Advocate letter is annex herewith as “D”.

11. That at present the defendants are try to grab the vehicle being no. WB 19E 7963 (Bus) from the plaintiff by illegally and also the plaintiff is threatened by the defendants that they will ready to snatched the aforesaid vehicle from the road at any time.

12. That after the plaintiff went to the local police station Falta where he lodged a complaint against the defendants on but the defendant did not bother to stop his wrongful act whereas day by day his wrongful act is going to be increased.

Xerox copy complaint letter is annex herewith as “E”.

13. That the plaintiff movable property i.e. the vehicle being no. WB 19E 7963 (Bus) is being threatened with dispossession by the defendants and as such in order to permanent injunction restraining the defendant from disturbing the plaintiff peaceful possession and dispossession forcibly from the said vehicle being no. WB 19E 7963 (Bus) and further restraining the defendant to stop creating disturbance to the plaintiff for forcibly grab the aforesaid vehicle being no. WB 19E 7963 (Bus) till disposal of the suit.

14. That the aforesaid facts done by the defendant and also starting their illegal act is the reason than that your plaintiff was dispossession on his movable property i.e. one vehicle being no. WB 19E 7963 (Bus). And that also in reason your plaintiff has declared that he is the absolute owner of the vehicle being no. WB 19E 7963 (Bus).

15. That there is urgency to file the suit as well as the petition for injunction.

16. That the balance of convenience and inconvenience are entirely in favour of the plaintiff.

17. That the plaintiff has got prima facie case to file the instant petition for injunction.

18. That if the injunction is not granted in favour of the plaintiff, he will suffer irreparable loss and injury.

It is therefore humbly prayed that your

Honour may be pleased to pass an order

of injunction.

i. Restraining the defendants and their man

agent from disturbing and/or trying to

grab the plaintiffs vehicle being no.WB 19E 7963 (Bus).

ii. Restraining the defendants and their man

agent from disturbing and/or encroach

illegally to the plaintiffs vehicle being no.WB 19E 7963 (Bus) without by due process of law.

iii. Restraining the defendants to stop

the snatch or forcibly grab the plaintiffs vehicle being no.WB 19E 7963 (Bus).

iv. Restraining the defendants from changing the

nature and character of the suit property in

any manner whatsoever.

And an ad-interim order of injunction in terms

of the above effect and to pass such other order or orders as your Honour may deem fit

and proper.

And for this your petitioner, as in duty bound shall ever pray.

SCHEDULE

ALL THAT piece and parcel of one vehicle being no. WB 19F 6274(Eicher Bus) owner of Sri Shankar Das Son of Subal Chandra Das , Residing at Village- Dakshin Sargoria, Haridanagar,P.O. & P.S. Falta, Pin- 743504, District- South 24 Parganas.

AFFIDAVIT

I, Sri Shankar Das Son of Subal Chandra Das, aged about years, by faith- Hindu, by occupation- business, residing at Dakshin Sargoria, Haridanagar, P.O. & P.S. Falta, Pin- 743504, District- South 24 Parganas, do hereby solemnly affirm and declare as follows:-

1. That I am the plaintiff in the instant suit and as such am well conversant with the facts and circumstances of the case.

This is true to my knowledge.

2. That the statements made in the foregoing paragraphs 1 to 19 above are true to the best of my knowledge and belief and the rest thereof are my humble submission before this learned Court.

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DEPONENT

Readover, explained in Bengali

and Identified by me.

Advocate

application under Section 174 of Motor Vehicle Act 1988

District: South 24 parganas

IN THE COURT OF THE LEARNED 4th ADDL. DISTRICT JUDGE AT ALIPORE

MACC Case No. 297 of 2003

Altaf Hossain

……….. Claimant

-Versus-

1. a) Vidya Sagar Singh

b) Harbajhan Singh

c) Prabhunath Upadhyay

d) G. Upadhyay

……… Opposite party no.1

2. National Insurance Co. Ltd.

…………Opposite party no.2

An Application under Section 174 of Motor Vehicles Act, 1988 and for Recovery of a sum of Rs. 3, 31,675/-including interest.

The Humble petition on behalf of the above

named Opposite Party No.2, i.e. National

Insurance Co. Ltd.

Most Respectfully Sheweth:-

1. That the Claimant filed an application on 05.09.2003 for compensation on account of his injury in a road traffic accident on 27.11.2002 at about 20.30 hrs. caused by the Vehicle bearing No. WB S-289(Route 18 Public Bus) U/s. 163 A of Motor Vehicle Act, 1988.

2. That the opposite party no.2 respectfully states that owners of the vehicle namely a)Vidya Sagar Singh, b) Harbajhan Singh, c) Prabhunath Upadhyay, d) G. Upadhyay og G367/B, Ram Nagar, Garden reach, Calcutta-700024 whose vehicle no. WB S-289(Route 18 Public Bus) was comprehensively insured with the National Insurance Co. Ltd. under policy no. 10190031016700002326 valid from 23.12.2001 to 22.12.2002 subject to terms and condition as specified therein.

3. That your petitioner respectfully states that the accident occurred on 27.11.2002 and the Driving License of the driver who was drove the offending vehicle was not valid at the material time of alleged accident.

4. That your petitioner respectfully submit before your Honour’s Court that there was a statutory violence of condition of insurance policy according to U/s. 149(2) to (7) of M.V.Act, 1988 due to driving license was not valid at the material time of alleged accident because the claimant has not filed the driving license before your Honour’s Court at the time of hearing.

5. That your petitioner respectfully states that the Ld. Court passed the Judgement on 06.06.2015 and has given a direction to the opposite party no.2, i.e. The National Insurance Co. Ltd. to pay Rs. 1, 77,800/- to the claimant including @9% P.A. interest from the date of filling of claim petition and also given a liberty to recover the aforesaid amount from the owners of the vehicle due to the ground of driving license which was not filed by the claimant at the time of hearing and which has been proved that the driver of the offending vehicle has not posses any valid driving license at the material time of alleged accident.

6. That your petitioner already filed one A/C payee Cheque for Rs.3, 31,675/-(compensation award of Rs.1,77,800/- plus interest) in the name of Altaf Hossain vide cheque no. 321063 dtd. 22.09.2015 drawn on Axis Bank, Dalhowsie branch, Kolkata- 700001 as per Judgement of the Ld. Court before the schedule period.

7. That your petitioner respectfully submit before your Honour’s Court kindly direction to be given and also issue a summon upon the owners of the vehicle being no. WB S-289(Route 18 Public Bus) namely a)Vidya Sagar Singh, b) Harbajhan Singh, c) Prabhunath Upadhyay, d) G. Upadhyay og G367/B, Ram Nagar, Garden reach, Calcutta-700024 for depositing the aforesaid amount before this Ld. Court and comply the Honorable Court order as per decision of the Hon’ble Supreme Court of India, in the case of “ Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. reported in 2004 ACJ page 721 (SC).

8. That your petitioner respectfully submit before your Honour’s Court that if the payment is not recovered from the aforesaid owners, your Honour kindly pass an order of attachment of the vehicle being no. WB S-289(Route 18 Public Bus) as a part of the security in terms of the decision of the Hon’ble Supreme Court of India, in the case of “ National Insurance Co. Ltd. Vs. Challa Bharathama& Ors. reported in 2005(1) TAC 4 (SC).

9. Unless order as prayed for herein are passed your petitioner will suffer irreparable loss and injury.

10. This application is made bonafide and for the ends of justice.

Your petitioner therefore humbly prays that your Honour may graciously be pleased to:-

a) Pass an order against the owners namely a)Vidya Sagar Singh, b) Harbajhan Singh, c) Prabhunath Upadhyay, d) G. Upadhyay for depositing the entire awarded amount i.e. Rs. 3, 31,675/- being the amount award + interest @ 9% P.A. from the date of filling of claim petition i.e. 05.09.2003 as per the decision of the Hon’ble Supreme Court of India, in the case of “ Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. reported in 2004 ACJ page 721 (SC);

b) Pass an order for issue a summon against the owners namely a)Vidya Sagar Singh, b) Harbajhan Singh, c) Prabhunath Upadhyay, d) G. Upadhyay for appearing before this Ld. Court and/or to file a Bond;

c) Keep the abovenoted cheque in Ld. Court as security till the date of realization of the awarded amount from the owner of the vehicle in view of the decision of the Hon’ble Supreme Court of India, in the case of “ National Insurance Co. Ltd. Vs. Challa Bharathama& Ors. reported in 2005(1) TAC 4 (SC);

d) Pass an order if the owner of the vehicle fails to pay the aforesaid amount then to recover it by attachment of property/ Bus;

e) Such other order or orders as the Ld. Court may deem fit and proper;

And for the act of kindness, your petitioner as in duty bound, shall ever pray.

VERIFICATION

I, , the constituted Attorney of the National Insurance Co. Ltd. , do hereby declare that the statements made in the forgoing paragraphs of the petition are true to my knowledge and the rest are mu humble submission before this Ld. Court and I sign this verification on the day of 2016 at my office premises.

AFFIDAVIT

I, authorized signatory of National Insurance Co. Ltd.of aged about years by faith Hindu, by occupation- Admn.officer, office address is National Insurance Co. Ltd.,Legal Hub,8,India Exchange Place, 7^th Floor, Kolkata- 700001, do hereby solemnly affirm and declare as follows :-

1. That I am the opposite party no.2 of this case and am well conversant with the facts and circumstances of this case.

This is true to my knowledge.

2. That the statements made in the paragraph numbers 1 to 10 of the present petition are true to my knowledge and belief and the rests are my humble submission before your Honour’s Court.

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Draft Prepared in office premises Deponent

Identified by me

Snehasish Sutradhar

Advocate Advocate

Peyarabagan,laskarpur

Kolkata-700153