Thursday, March 30, 2023

Written Statement in Money Suit / Civil Suit / Suit

District : South 24 Parganas.

In the Court of the Learned 4^th Civil Judge ( Senior Division ) at Alipore, South 24 Parganas.

Money Suit no. 29 of 2019.

In the matter of :

Hsieh Sui Ying, & another,

_________Plaintiffs.

- Versus –

M/s. S.K.S. Developer, represented by Proprietor Shri Sujit Saha .

________Defendant.

Written Statement of Defendant

The Defendant above named states as follows :

The Suit is not maintainable either in facts or in its present form.

The Plaintiff has no cause of action for the Suit.

That the plaint is speculative, harassing, motivated and barred by the Principles of law and hence it is liable to be rejected.

The present suit is barred by the principles of estoppel, waiver, and acquiescence.

That save and except those are admitted herein below all other statements made in the plaint are not correct and denied and the plaintiff is put to strict proof thereof.

That save and except what are the matters of record and what are specifically admitted by the defendant, all other statements and / or allegations made in the said Title Suit, shall be deemed to have been denied by the defendant.

That as the plaintiff did not cause of any services of the documents relied upon listed in the contents of the purported plaint, the defendant is not in any position to put his comments thereon, and therefore reserve his right to put comments as of necessary on receipt of those listed documents allegedly relied upon by the plaintiff herein.

That it is pertinent to states that in the present Suit, the defendant has placed several petition and prayer to get those listed documents of the plaintiff allegedly relied upon in the plaint, has not yet been served and or supplied to the defendant.

That the defendant genuinely apprehend about the authentication of the documents relied on by the plaintiff, as the same has not been provided even after petition and prayer before the Learned Court in the present Suit.

That as the plaintiff still failed to provide any copy of the alleged relied on listed documents in the plaint, the same should not be placed during the trial in the present suit before the Learned Court, by the plaintiff, unless the same should be served to the defendant with an opportunity to controvert the same before the Learned Court in the present Suit, in the interest of administration of justice.

11. That the defendant beg to states that the Petition under objection and or reply is speculative, harassing, motivated and barred by the Principles of Law and hence it is liable to be rejected at once.

12. That the defendant beg to states that the petition under objection and or reply, is suffering from misjoinder and non joinder of necessary party in the proceeding, and therefore liable to be dismissed at once with exemplary costs.

13. That the defendant beg to states that the petition under objection or reply, is suffering from suppression of material facts and necessary party, and therefore liable to be dismissed at once with exemplary costs.

14. That the defendant beg to states that the petition under objection is suffering from any legal demand and thereby cause of action, and thus the present petition is motivated and without any jurisdiction.

At the outset the Defendant, herein states the following facts for proper & fair adjudication in the instant suit proceedings :

i) That one Sri Sanjay Ghatak Son of Late Gauranga Chandra Ghatak, residing at premises being no. 2/100, Sree Colony, Kolkata – 700092, Police Station – Netaji Nagar, District – South 24 Parganas claiming to be an Advocate was looking after and/or acting all the legal matters on behalf of the defendant, and the said Sanjay Ghatak drafted all the legal documents for and on behalf of the Defendant and instructed the Defendant to put his signature on the said documents where the said signature were required.

ii) The Defendant put his signature on good faith on the said drafted documents on the instruction of said Sanjay Ghatak as the said Sanjay Ghatak claiming him as an advocate and is a legal expert having knowledge of law and the Defendant had no knowledge of law and having no knowledge of legal implication of the said documents so prepared by the said Sanjay Ghatak. The Defendant only put his signature on the documents on good faith without understanding the meaning as per instruction of Sanjay Ghatak.

iii) The Defendant had always depends upon the said Sanjay Ghatak regarding legal matters and on good faith put his signature as asked for by him, in the documents so prepared by him, and the Defendant had never called any question why he has to put his signature on the said documents.

iv) The Defendant states that the said Sanjay Ghatak also acted on behalf of the Plaintiff, herein, and the Plaintiff had to attend with the said Sanjay Ghatak for his personal matters and by such way a good relation has had been grown up with each other and both of them made a criminal conspiracy in between themselves and the said Sanjay Ghatak prepared an alleged document to defraud and/or to cheat the Defendant.

v) The Defendant states that one alleged document so prepared by the said Sanjay Ghatak on 27^th day of December 2014 and instructed the Defendant to put his signature on the said alleged documents where there were no relation with respect to the recital of the property and no supporting to the documents as mentioned therein in respect of the property morefully described in the given Schedule thereunder which shows that the Defendant as the owner of the said Property jointly with other and jointly enjoying the property with other person.

vi) The Defendant states that while the Defendant is not the owner and has no relation with respect to the property as mentioned in the said alleged Agreement dated 27-12-2014, he cannot enter into any agreement to sell any alleged Flat and Garage to any person and in the said alleged agreement it was shown and written in hand writing that a sum of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, has been received by the Defendant in cash although the Defendant did never received such a big an/or huge amount in cash from the Plaintiff and in the said alleged agreement it is shown a sum of Rs. 3,00,000/- received by the Defendant in Cheque and there were no witnesses in the said alleged Agreement for Sale. It is pertinent to mention here that in the said alleged Agreement there was also hand written contents about a sum of Rs. 23,00,000/- ( Rupees Twenty Three Lakhs ) only, but there was no counter signature of the defendant.

vii) The Defendant states that there was a mistake in between the parties as to the matter of fact essential to the agreement regarding the ownership of the property which was mentioned in the said Alleged Agreement dated 27-12-2014, so the Defendant had already paid a sum of Rs. 4,50,000/- to the plaintiff by a cheque bearing No- 195580 and the said Cheque had already been encashed by the plaintiff on 30-07-2015.

viii) The Defendant states that the property as mentioned in the First Schedule in the said alleged Agreement dated 27-12-2014, have no relation with the Defendant and the Flat and Garage as mentioned in the second Schedule therein is not enforceable in law because there was a mistake in between the parties as to the matter of fact essential to the agreement.

ix) The Defendant states that the schedule property as mentioned in the said alleged agreement dated 27-12-2014, morefully described in the Schedule thereunder has no connection with the Defendant and had no right, title and interest and no Development was entered into with any person who are the legal owners of the Schedule Property had been illegally prepared by the said Sanjay Ghatack to deceive and/or to cheat the Defendant in conspiracy with the plaintiff, so there was mistake in between the parties as to the matter of fact essential part to the agreement and is not enforceable in law as a void agreement.

x) The defendant further states that the defendant is not the owner of the subjected suit property and have no right, title, interest and/or possession of the said subjected suit property.

xi) The Defendant states that by the strength of the said alleged agreement dated 27-12-2014, the Plaintiff and the said Sanjay Ghatak, threatening the Defendant to refund the alleged amount of Rs. 23,00,000/- together with interest and if the Defendant did not refund the same then the Defendant conjointly kidnap the defendant and get refund of the said amount and if the defendant unable to refund then otherwise kill him.

xii) By the aforesaid illegal acts of the Plaintiff and the said Sanjay Ghatack, cloud has been casted that they may prejudice the interest of the Defendant by the strength of the said alleged Agreement dated 27-12-2014, to which said alleged subjected suit property is mentioned so to remove the same, the Defendant resort the Civil proceeding before the Learned Competent Civil Court. The said Civil Proceeding has been registered as Title Suit no. 145 of 2018, ( Sujit Saha – Versus - Hshieh Sui Ying & another ), pending before the Learned 5^th Court of Civil Judge ( Senior Division ) at Alipore, South 24 Parganas.

xiii) Accordingly the defendant claims for Declaration that the alleged Agreement dated 27-12-2014, in respect of the suit property is null and void.

xiv) The defendant further claims for permanent injunction restraining the defendants from creating any disturbance by the strength of the said alleged agreement dated 27-12-2014.

xv) That the Defendant is a businessman and have been running a well known business named M/s. S.K.S. Developer, at premises being no. E-185, Ramgarh, Police Station – Netaji Nagar, Kolkata – 700047, carrying business activities of Real Estate, and development of Land, in the state of West Bengal.

xvi) That one Shri Sanjay Ghatak, Son of Late Gouranga Chandra Ghatak, residing at premises being no. 2/100, Sree Colony, Police Station Netaji Nagar, Kolkata – 700 092, was very known to the Defendant, as per his representation as an Advocate, and having cordial relation with him, the Defendant entrusted him, his all necessary legal works such as preparation of Agreement, Deeds, and others papers in respect of his various project, and whereas on most of the occasions on good faith very often the Defendant used to hand over his original papers and documents regards to his landed property and projects, along with blank stamp papers, blank paper duly signed by the defendant, for preparation of legal documents.

xvii) That sometime in the month of December’ 2013, (1) Hsieh Sui Ying, Son of Hsieh Ying Hsing, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, (2) Wu Moi Li, wife of Hsieh Fong Ying, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, was introduced with the Defendant, by said Sanjay Ghatak, and Hsieh Sui Ying and Wu Moi Li claimed themselves as a Financer, who gave a proposal to the defendant, that if required they may provide a lump sum amount as loan for making new project, to the Defendant, and at the relevant time, the Defendant, was in need of money for his different project, accordingly the Defendant agreed and accepted such proposal, on good faith on said Sanjoy Ghatak.

xviii) That after assurances and undertaking of said Sanjay Ghatak, the defendant agreed to take loan amounting to Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, and at the same time, the defendant requested the said Sanjay Ghatak to prepared all papers in respect of the said Loan transaction, and whereas on 21-12-2013, while the defendant was in a restaurant namely at BIG BOSS, those (1) Hsieh Sui Ying, Son of Hsieh Ying Hsing, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, (2) Wu Moi Li, wife of Hsieh Fong Ying, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, and (3) Shri Sanjay Ghatak, Son of Late Gouranga Chandra Ghatak, residing at premises being no. 2/100, Sree Colony, Police Station Netaji Nagar, Kolkata – 700 092, persons came to the defendant, placed one loan agreement, and the said Sanjay Ghatak, asked the defendant, and to them also for putting our signature thereon, and since the defendant had have good faith and belief on Sanjay Ghatak, he had put his signature on the said loan agreement without reading out and understanding the purports and contents, thereof, those two persons were also given their signature, on asking of the said Sanjay Ghatak, and also taken signature on company letter head, and given two cheques of which each of Rs. 10,00,000/- to the defendant, and whereas the said Sanjay Ghatak taken two blanks cheques signed by the defendant towards refund of the said loan amount, and whereas all of have taken drink and dinner together at the said restaurant.

xix) That subsequently, the said Sanjay Ghatak, while those cheques has been encashed in the defendant’s Bank account, asked the defendant for Rs. 5,00,000/- ( Rupees Five Lakhs ) only, for his personal need with an assurances that he will return back to the defendant within a period of six months or on an early dates, so far, and since then the defendant had have good relationship with him, the defendant had given him such amount in cash, which he has taken from the defendant.

xx) That the said Sanjay Ghatak, did not refund such money, which has taken by him from the defendant, as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, within a period of Six months, and assured the defendant that he will arranged such money by the month of December 2014, and everything will be resolved. The defendant was in belief that the said Sanjay Ghatak definitely refund the money to the defendant in the month of December’ 2014, therefore awaiting for such occasions.

xxi) That in the month of December, 2014, the said Sanjay Ghatak proposed the defendant that still he was not able to refund the said money as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, to the defendant, however he was in arrangement for some more loan from those two persons, and consequently, on 27^th day of December’ 2014, the said Sanjay Ghatak, asked me to visit the restaurant BIG BOSS at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, at about 8 pm, and whereas the defendant visited the place on good faith and on belief on the said Sanjay Ghatak, and found that the said Sanjay Ghatak, and Hsieh Sui Ying, Son of Hsieh Ying Hsing, was there, and whereas the said Sanjay Ghatak, asked the defendant to put signature on some of the papers allegedly on one agreement, and also asked the said Hsieh Sui Ying, for signature, and whereas in belief the defendant had put his signature and the said Hsieh Sui Ying given one Cheque as of Rs. 3,00,000/- ( Rupees Three Lakhs ) only, to the defendant, and thereafter the said Sanjay Ghatak, asked the defendant with his assurance that the another money as of Rs. 2,00,000/- ( Ruppes Two Lakhs ) only, will arranged very soon, and Rs. 5,00,000/- ( Ruppes Five Lakhs ) only, to be paid by him to the said Hsieh Sui Ying, in due course, and the plaintiff have to utilize as of total money of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only for his project, so far.

xxii) That it is pertinent to states that the said Sanjay Ghatak had never given any original or xerox copy of those two loan agreement, to the defendant, and the defendant did not ask for any copy, since the defendant had have much faith and belief on him, and thus the defendant was not in knowledge of the contents and purports of those agreements.

xxiii) That the said Sanjay Ghatak, did not arranged for such amount as of Rs. 2,00,000/- ( Rupees Two Lakhs ) only, to the defendant, and therefore the amount as of taken at first was Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, from those two persons, and consequently Rs. 3,00,000/- ( Rupees Three Lakhs ) only, from Hsieh Sui Ying, total amounting to Rs. 23,00,000/- ( Rupees Twenty Three Lakhs ) only, out of which the said Sanjay Ghatak, has taken as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, and thus as of total Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, was lying with the defendant, for his project.

xxiv) That in the month of June’ 2015, while the Defendant came to know about the dishonor of those two cheques bearing number 796090, and 796091, from his Bank, the defendant got astonished and contacted the said Sanjay Ghatak, acknowledging him such facts, and asked him why such cheques were presented by those persons, without any intimation and discussions, so far in such respect, then said Sanjay Ghatak, assured the defendant that he will take care of everything and there is nothing to worry, as because those persons are his persons.

xxv) That it is pertinent to states that the defendant was not in knowledge of the value of the said those cheques, which has been dishonoures, since those cheques were given blanked with signature only, on asking of the said Sanjay Ghatak to them.

xxvi) That subsequently, in the month of July’ 2015, while the said Hsieh Sui Ying, asked for refund of the money urgently, the defendant arranged somehow, as of Rs. 4,50,000/- ( Rupees Four Lakhs and Fifty Thousand ) only, and paid through Cheque bearing number 195580, drawn of AXIS Bank Limited, Garia Branch, drawn in favour of said Hsieh Sui Ying, which he received and duly encashed on presentation with his Bank, and therefore the total money as of Rs. 13,50,000/- ( Rupees Thirteen Lakhs and Fifty Thousand ) only, which compelled the circumstances sustaining into failure of the defendant’s project.

xxvii) That in the month of February’ 2016, the said Sanjay Ghatak, asked the defendant for Rs. 11,00,000/- ( Rupees Eleven Lakhs ) only, towards the need for business setup for his brother, and therefore the defendant arranged such money in Cash and given to him, in belief and on good faith on him, and whereas the said Sanjay Ghatak assured the defendant that such money will be paid to said Hsieh Sui Ying, and the same will be adjusted out of Rs. 13,50,000/- ( Rupees Thirteen Lakhs and Fifty Thousand ) only, and thus a total Rs. 2,50,000/- ( Rupees Two Lakhs and Fifty Thousand ) only, remain to be paid to the said Hsieh Sui Ying.

xxviii) That thereafter in the year 2016, December month, the said Sanjay Ghatak, shows his inability to take any legal works, and asked the defendant to appoint some other lawyer to look after the legal work, on his personal ground of his engagement at outstation professional work, and therefore the said Sanjay Ghatak in the mid of July’ 2017, leave the defendant’s legal work, though all the papers and documents in original and xerox are lying with him.

xxix) That thereafter in the year 2017, in the month of October, the defendant received one Letter of the said Hsieh Sui Ying, through his advocate, viz., letter dated 25-10-2017, and on reading the purport of the said letter dated 25-10-2017, the defendant got astonished and fall from the sky, and immediately contacted with the said Sanjay Ghatak, shows such letter dated 25-10-2017, and asked him for the original agreement, and then he given the xerox copy of two agreement, wherein the defendant’s signature and the signature of the said Hsieh Sui Ying is appearing, and the contents and purports has not been on the facts, thereof.

xxx) That the said Hsieh Sui Ying, demanding as of Rs. 43,00,000/- ( Rupees Forty Three Lakhs ) only, on the basis of those manufacture agreement, which has been prepared under the conspiracy of the said Sanjay Ghatak and the said Hsieh Sui Ying and Wu Moi Li, thereof, and whereas the facts remain that only Rs. 23,00,000/- has been given by the said Hsieh Sui Ying and Wu Moi Li, and Rs. 4,50,000/- has been refunded by the defendant to them and thus only Rs. 18,50,000/- remain to be paid, and whereas the said Sanjay Ghatak has taken as of Rs. 16,00,000/- from the defendant.

xxxi) That subsequently, in the month of January’ 2018, the said Hsieh Sui Ying, lodge a false complaint against the Defendant, under the connivance of the said Sanjay Ghatak, at Pragati Maidan Police Station, viz. Pragati Maidan Police Station Case no. 24 of 2018, dated 25-01-2018, under Section 420, 467, 468, 471, and 406 of the Indian Penal Code’ 1860, which ended in FRT.

xxxii) That therefore the defendant came to realize that the said Hsieh Sui Ying, Wu Moi Li, in connivance with the said Sanjay Ghatak, have manufactured and prepared a false, forged agreement for loan and an agreement for Sale dated 27-12-2014, with the defendant’s sign papers and documents, which the defendant entrusted with the said Sanjay Ghatak as his Advocate, and thus all of them has committed forgery, used the said documents as genuine one for the purpose of cheating of the defendant’s money, on such transaction as of Rs. 23,00,000/-

xxxiii) That on 15^th day of February’ 2018, the Defendant have refunded a further money as of Rs. 7,00,000/- ( Rupees Seven Lakhs ) only, to the said Hsieh Sui Ying, by a Demand Draft being number “022066” drawn on AXIS Bank Limited, Garia Branch, from his account, and thus as of Rs. 11,50,000/- remain to pay to the said Hsieh Sui Ying.

xxxiv) That it is pertinent to states that the total money taken as of Rs. 23,00,000/- from the said Hsieh Sui Ying, and Wu Moi Li, and the money paid by the Defendant as of Rs. 4,50,000/- and Rs. 7,00,000/- to Hsieh Sui Ying, and Rs. 5,00,000/- and Rs. 11,00,000/- given to Sanjay Ghatak, thus a total sum of money has been paid by the defendant to them is as of Rs. 27,50,000/- and whereas they have cheated the defendant in such manner.

xxxv) That it is further pertinent to states that the said Sanjay Ghatak, is not an Advocate, as he did never obtain any Degree of LLB from any University, and thus he do not have an enrollment with the State Bar Council of West Bengal, even though he represented himself as an Advocate, and on his such representation he used to cheated several persons including the defendant.

xxxvi) That these facts has been lodged with the Pragati Maidan Police Station with a request for appropriate legal action against those persons, in terms of the prescribed provisions of the Law.

xxxvii) That the Defendant beg to sates that there is no privity of contract between the parties, in terms of the facts as well as in terms of the Law, thereof.

16. That the present Plaint do not disclose any cause of action and therefore suffering in such context to have any particular cause of action, thereof, and thus the present plaint is liable to be rejected at once with exemplary cost thereof.

17. That the present plaint does not have any specified prayer for relief, in terms of prescribed provision of the Civil Procedure Code, and therefore the present plaint is liable to be rejected at once with exemplary cost thereof.

18. That the present plaint at any terms barred by Limitation in terms of the prescribed provisions of the Limitation Act’ 1963, and therefore, the present plaint is liable to be rejected at once with exemplary cost thereof.

19. That the present plaint is barred by doctrine of estoppels, therefore, the present plaint is liable to be rejected at once with exemplary cost thereof.

20. That the present plaint is mischievous one and therefore, the present plaint is liable to be rejected at once with exemplary cost thereof.

21. That the present plaint purposively constitute for wrongful gains to be acquire by the plaintiff and therefore, the present plaint is liable to be rejected at once with exemplary cost thereof.

22. That without waiving any of the aforesaid Objections and Facts and fully relying thereupon and without prejudice to the same. The Defendant, now deals with the specific paragraphs of the said Plaint in seriatim as hereunder.

That the Plaint is not maintainable either in facts or in its present form and the plaintiff has no cause of action for bringing this suit against the defendant, as the said plaint is speculative, harassing, motivated, concocted and baseless as is barred by the Principles of Law and hence same is liable to be rejected at once.

Save and except the statements made in the said plaint which are matter of record, the defendant denies each and every allegations contained in the said plaint and calls upon the plaintiff to strict proof of the said allegations.

That with references of the paragraph no 1, 2, 3, 4, 5, 6, 7, 8, and 9, of the plaint under objection are the matter of partly record and facts and therefore the defendants re-iterate the paragraph no 15 of this written statement.

26. That with the reference paragraph 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 of the plaint under objection are specifically line by line in toto are disputed and denied, save and except those are the matter of record, the plaintiff is put to the strict proof for the same before the Learned court, the defendant, states that the present suit have no cause of action to bring it adjudication before the Learned court. The defendant re-iterate the paragraph no. 15 of this written statement. The defendant beg to states that on sometime in the month of December’ 2013, (1) Hsieh Sui Ying, Son of Hsieh Ying Hsing, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, (2) Wu Moi Li, wife of Hsieh Fong Ying, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, was introduced with the Defendant, by said Sanjay Ghatak, and Hsieh Sui Ying and Wu Moi Li claimed themselves as a Financer, who gave a proposal to the defendant, that if required they may provide a lump sum amount as loan for making new project, to the Defendant, and at the relevant time, the Defendant, was in need of money for his different project, accordingly the Defendant agreed and accepted such proposal, on good faith on said Sanjoy Ghatak, and whereas after such assurances and undertaking of said Sanjay Ghatak, the defendant agreed to take loan amounting to Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, and at the same time, the defendant requested the said Sanjay Ghatak to prepared all papers in respect of the said Loan transaction, and whereas on 21-12-2013, while the defendant was in a restaurant namely at BIG BOSS, those (1) Hsieh Sui Ying, Son of Hsieh Ying Hsing, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, (2) Wu Moi Li, wife of Hsieh Fong Ying, residing at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, and (3) Shri Sanjay Ghatak, Son of Late Gouranga Chandra Ghatak, residing at premises being no. 2/100, Sree Colony, Police Station Netaji Nagar, Kolkata – 700 092, persons came to the defendant, placed one loan agreement, and the said Sanjay Ghatak, asked the defendant, and to them also for putting our signature thereon, and since the defendant had have good faith and belief on Sanjay Ghatak, he had put his signature on the said loan agreement without reading out and understanding the purports and contents, thereof, those two persons were also given their signature, on asking of the said Sanjay Ghatak, and also taken signature on company letter head, and given two cheques of which each of Rs. 10,00,000/- to the defendant, and whereas the said Sanjay Ghatak taken two blanks cheques signed by the defendant towards refund of the said loan amount, and whereas all of have taken drink and dinner together at the said restaurant. Subsequently, the said Sanjay Ghatak, while those cheques has been encashed in the defendant’s Bank account, asked the defendant for Rs. 5,00,000/- ( Rupees Five Lakhs ) only, for his personal need with an assurances that he will return back to the defendant within a period of six months or on an early dates, so far, and since then the defendant had have good relationship with him, the defendant had given him such amount in cash, which he has taken from the defendant. The said Sanjay Ghatak, did not refund such money, which has taken by him from the defendant, as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, within a period of Six months, and assured the defendant that he will arranged such money by the month of December 2014, and everything will be resolved. The defendant was in belief that the said Sanjay Ghatak definitely refund the money to the defendant in the month of December’ 2014, therefore awaiting for such occasions. In the month of December, 2014, the said Sanjay Ghatak proposed the defendant that still he was not able to refund the said money as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, to the defendant, however he was in arrangement for some more loan from those two persons, and consequently, on 27^th day of December’ 2014, the said Sanjay Ghatak, asked me to visit the restaurant BIG BOSS at premises being no. 54C, Mathgeswartala Road, Kolkata – 700046, at about 8 pm, and whereas the defendant visited the place on good faith and on belief on the said Sanjay Ghatak, and found that the said Sanjay Ghatak, and Hsieh Sui Ying, Son of Hsieh Ying Hsing, was there, and whereas the said Sanjay Ghatak, asked the defendant to put signature on some of the papers allegedly on one agreement, and also asked the said Hsieh Sui Ying, for signature, and whereas in belief the defendant had put his signature and the said Hsieh Sui Ying given one Cheque as of Rs. 3,00,000/- ( Rupees Three Lakhs ) only, to the defendant, and thereafter the said Sanjay Ghatak, asked the defendant with his assurance that the another money as of Rs. 2,00,000/- ( Ruppes Two Lakhs ) only, will arranged very soon, and Rs. 5,00,000/- ( Ruppes Five Lakhs ) only, to be paid by him to the said Hsieh Sui Ying, in due course, and the plaintiff have to utilize as of total money of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only for his project, so far. It is pertinent to states that the said Sanjay Ghatak had never given any original or xerox copy of those two loan agreement, to the defendant, and the defendant did not ask for any copy, since the defendant had have much faith and belief on him, and thus the defendant was not in knowledge of the contents and purports of those agreements. The said Sanjay Ghatak, did not arranged for such amount as of Rs. 2,00,000/- ( Rupees Two Lakhs ) only, to the defendant, and therefore the amount as of taken at first was Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, from those two persons, and consequently Rs. 3,00,000/- ( Rupees Three Lakhs ) only, from Hsieh Sui Ying, total amounting to Rs. 23,00,000/- ( Rupees Twenty Three Lakhs ) only, out of which the said Sanjay Ghatak, has taken as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, and thus as of total Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, was lying with the defendant, for his project. In the month of June’ 2015, while the Defendant came to know about the dishonor of those two cheques bearing number 796090, and 796091, from his Bank, the defendant got astonished and contacted the said Sanjay Ghatak, acknowledging him such facts, and asked him why such cheques were presented by those persons, without any intimation and discussions, so far in such respect, then said Sanjay Ghatak, assured the defendant that he will take care of everything and there is nothing to worry, as because those persons are his persons. It is pertinent to states that the defendant was not in knowledge of the value of the said those cheques, which has been dishonoures, since those cheques were given blanked with signature only, on asking of the said Sanjay Ghatak to them. Subsequently, in the month of July’ 2015, while the said Hsieh Sui Ying, asked for refund of the money urgently, the defendant arranged somehow, as of Rs. 4,50,000/- ( Rupees Four Lakhs and Fifty Thousand ) only, and paid through Cheque bearing number 195580, drawn of AXIS Bank Limited, Garia Branch, drawn in favour of said Hsieh Sui Ying, which he received and duly encashed on presentation with his Bank, and therefore the total money as of Rs. 13,50,000/- ( Rupees Thirteen Lakhs and Fifty Thousand ) only, which compelled the circumstances sustaining into failure of the defendant’s project. In the month of February’ 2016, the said Sanjay Ghatak, asked the defendant for Rs. 11,00,000/- ( Rupees Eleven Lakhs ) only, towards the need for business setup for his brother, and therefore the defendant arranged such money in Cash and given to him, in belief and on good faith on him, and whereas the said Sanjay Ghatak assured the defendant that such money will be paid to said Hsieh Sui Ying, and the same will be adjusted out of Rs. 13,50,000/- ( Rupees Thirteen Lakhs and Fifty Thousand ) only, and thus a total Rs. 2,50,000/- ( Rupees Two Lakhs and Fifty Thousand ) only, remain to be paid to the said Hsieh Sui Ying. Thereafter in the year 2016, December month, the said Sanjay Ghatak, shows his inability to take any legal works, and asked the defendant to appoint some other lawyer to look after the legal work, on his personal ground of his engagement at outstation professional work, and therefore the said Sanjay Ghatak in the mid of July’ 2017, leave the defendant’s legal work, though all the papers and documents in original and xerox are lying with him. In the year 2017, in the month of October, the defendant received one Letter of the said Hsieh Sui Ying, through his advocate, viz., letter dated 25-10-2017, and on reading the purport of the said letter dated 25-10-2017, the defendant got astonished and fall from the sky, and immediately contacted with the said Sanjay Ghatak, shows such letter dated 25-10-2017, and asked him for the original agreement, and then he given the xerox copy of two agreement, wherein the defendant’s signature and the signature of the said Hsieh Sui Ying is appearing, and the contents and purports has not been on the facts, thereof. The said Hsieh Sui Ying, demanding as of Rs. 43,00,000/- ( Rupees Forty Three Lakhs ) only, on the basis of those manufacture agreement, which has been prepared under the conspiracy of the said Sanjay Ghatak and the said Hsieh Sui Ying and Wu Moi Li, thereof, and whereas the facts remain that only Rs. 23,00,000/- has been given by the said Hsieh Sui Ying and Wu Moi Li, and Rs. 4,50,000/- has been refunded by the defendant to them and thus only Rs. 18,50,000/- remain to be paid, and whereas the said Sanjay Ghatak has taken as of Rs. 16,00,000/- from the defendant. Subsequently, in the month of January’ 2018, the said Hsieh Sui Ying, lodge a false complaint against the Defendant, under the connivance of the said Sanjay Ghatak, at Pragati Maidan Police Station, viz. Pragati Maidan Police Station Case no. 24 of 2018, dated 25-01-2018, under Section 420, 467, 468, 471, and 406 of the Indian Penal Code’ 1860, which ended in FRT. Therefore the defendant came to realize that the said Hsieh Sui Ying, Wu Moi Li, in connivance with the said Sanjay Ghatak, have manufactured and prepared a false, forged agreement for loan and an agreement for Sale dated 27-12-2014, with the defendant’s sign papers and documents, which the defendant entrusted with the said Sanjay Ghatak as his Advocate, and thus all of them has committed forgery, used the said documents as genuine one for the purpose of cheating of the defendant’s money, on such transaction as of Rs. 23,00,000/-, and on 15^th day of February’ 2018, the Defendant have refunded a further money as of Rs. 7,00,000/- ( Rupees Seven Lakhs ) only, to the said Hsieh Sui Ying, by a Demand Draft being number “022066” drawn on AXIS Bank Limited, Garia Branch, from his account, and thus as of Rs. 11,50,000/- remain to pay to the said Hsieh Sui Ying. It is pertinent to states that the total money taken as of Rs. 23,00,000/- from the said Hsieh Sui Ying, and Wu Moi Li, and the money paid by the Defendant as of Rs. 4,50,000/- and Rs. 7,00,000/- to Hsieh Sui Ying, and Rs. 5,00,000/- and Rs. 11,00,000/- given to Sanjay Ghatak, thus a total sum of money has been paid by the defendant to them is as of Rs. 27,50,000/- and whereas they have cheated the defendant in such manner. It is further pertinent to states that the said Sanjay Ghatak, is not an Advocate, as he did never obtain any Degree of LLB from any University, and thus he do not have an enrollment with the State Bar Council of West Bengal, even though he represented himself as an Advocate, and on his such representation he used to cheated several persons including the defendant, and these facts has been lodged with the Pragati Maidan Police Station with a request for appropriate legal action against those persons, in terms of the prescribed provisions of the Law, and thus the Defendant beg to sates that there is no privity of contract between the parties, in terms of the facts as well as in terms of the Law, thereof.

27. That with the reference paragraph 22, 23, 24, 25, and 26 of the plaint under objection are specifically line by line in toto are disputed and denied, save and except those are the matter of record, the plaintiff is put to the strict proof for the same before the Learned court, the defendant, states that the present suit have no cause of action to bring it adjudication before the Learned court. The defendant re-iterate the paragraph no. 15 of this written statement.

28. That the defendant states that the plaintiff is not entitled to the relief as prayed in the suit.

29. That the defendant beg to states that the defendant is not liable to pay to the plaintiff, the alleged claim of the plaintiff, in terms of the facts as well as in terms of the Law, thereof.

The Suit is vexatious, frivolous, harassing, and is liable to be dismissed with cost.

The Suit is barred by the Limitation and not maintainable in it’s present form.

The cause of action for the suit has not arisen in the manner as alleged in the plaint and the plaintiff cannot be said to have any cause of action for the suit. In fact, the suit is bad for multi – feriousness of cause of action.

The suit is not properly valued and the court fees paid therein is insufficient in Law. The verification in support of the plaint is defective.

That the Defendants crave leave to produce the relevant documents as well as the documents relied upon by the defendant, at the time of hearing.

The defendant crave leave to file appropriate application for getting the copies of the documents which the plaintiff intend to rely upon and only after getting the copies thereof the defendant may require to file additional written statement or he may have to amend the written statement as well.

36. That the defendant states that the instant suit is abrasive and without jurisdiction and the same may be dismissed with exemplary cost.

That in the above stated Facts and Circumstances, the Defendant seeks dismissal of the Plaint with exemplary Costs and others.

That this petition being the written statement made bonafide and in the interest of justice of administration of justice.

It is therefore prayed that your Honour would graciously be pleased to accept the Written Statement of the defendant, herein and make part of the present Suit record, and further be pleased to dismiss and or reject the plaint of the plaintiff, at once with exemplary cost thereof, in the interest of administration of justice, and or to pass such other necessary order or orders as your Honour may deem, fit and proper for the end of justice.

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

Verification

I, Shri Sujit Saha, being the defendant, herein in the present Suit, made this Written Statement. I am conversant and acquainted with the material facts therein. I verify and Sign this written statement as on ______day of August’ 2019, at the Alipore Judges’ Court premises.

AFFIDAVIT

Affidavit of Shri Sujit Saha, Son of Late Amar Chandra Saha, aged about _____years, by faith Hindu, by Occupation Business, residing at premises being no. 521, Payarabagan, Post Office – Laskarpur, Police Station – Sonarpur, Kolkata – 700 153, District – South 24 Parganas, being properitor of M/s. S.K.S. Developer, having its’ place of business at premises being no. E185, Ramgarh, Police Station Patuli, Kolkata – 700 047, District – South 24 Parganas.

I, the above deponent do hereby solemnly affirm and says as under :-

1. That I am the defendant, in the above Suit / case, thoroughly conversant with the material facts and circumstances of the present suit and am competent to swear this affidavit.

2. That the statement made in paragraph no. ______to _______, of my written statement, are true to my knowledge and belief, and the rests are my humble submission before the Learned Court.

3. That the facts contained in aforesaid Written Statement, the contents of which have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge and belief.

DEPONENT

Verification

I, the above named deponent do hereby solemnly verify that the contents of my above affidavit are true and correct to my knowledge, and no part of it is false and nothing material has been concealed therein.

Verified this ………….the day of …………….2019, at Alipore Judges’ Court.

DEPONENT

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated :……………………2019.

Place : Alipore Judges’ Court.

N O T A R Y

Sunday, March 26, 2023

order in Section 125 Cr.P.C.

IN THE COURT OF THE JUDGE, FAMILY COURT,

BHUBANESWAR.

Present : Shri B. C. Rout, OSJS(SB),

Judge, Family Court, Bhubaneswar.

Crl. Proceeding No. 231/2011

( Under Section 125 of Cr.P.C.)

Aparimita Ratha, aged about 34 years,

W/o. Paresh Mishra,

D/o. Padmanava Ratha, At/P.O. Golabai,

P.S. Jankia, Dist. Khurda.

... Petitioner

VERSUS...

Paresh Mishra, aged about 35 years,

S/o. Narayan Mishra, At.Bachhara Patna,

P.O./P.S. Jatni, Dist. Khurda.

... Opp. Party

Date of argument : 31.1.2013

Date of judgment : 8.2.2013

J U D G M E N T

The petitioner has filed this application Under Section 125 of Code of Criminal Procedure for maintenance.

2. Facts of the petitioner's case lie in a narrow compass. The petitioner is the divorced wife of Opp.Party. The petitioner had married to the Opp. Party on 12.6.2009 at Bhubaneswar according to Hindu rites and customs. It is alleged by the petitioner that the Opp. Party suspected her character and tortured her for non-fulfillment of further demand of a Maruti Swift Dzire car. The Opp. Party left for USA on 14.9.2009 and thereafter his parents in connivance with the Opp. Party drove out the petitioner from her marital home. The Opp. Party filed a petition for divorce vide C.P. No. 30 of 2011on 20.8.2010 against the petitioner and the same has been allowed on 15.7.2011. Further case of the petitioner is that, the Opp. Party refused to maintain the(petitioner). It is averred by the petitioner that the monthly income of the Opp. Party is Rs.5 Lakhs and as such the Opp. Party has got sufficient means and he has no liabilities. As the petitioner is unable to maintain her, she has filed this petition claiming maintenance at the rate of Rs.1 Lakh per month. In addition to monthly maintenance, she has claimed a sum of Rs.20,000/- towards litigation expenses. Hence, the case.

3. The Opp. Party contested the proceeding filing written show cause. He denied the allegations of the petitioner. He has averred that he never tortured the petitioner for non-compliance of further dowry of a Maruti Swift Dzire car. But he has stated that the petitioner has been divorced by him. According to him, the petitioner is serving as Superintendent (P & I), Procurement and Imput at Puri Milk Union (Pumul) and her gross salary is Rs.29,979/- per month. He has further stated that he was undergoing Doctoral Programmes at Kelly School of Business, Indiana University, USA since August, 2006 and was receiving $6000 per annum towards stipend. According to him, the Doctoral Programmes office provided him stipend for first five years and as such, he has not been receiving any stipend since last one year. At present he depends on the pension of his father and charity of his friends to maintain his livelihood in USA. In other words the Opp. Party is not employed and he has no means of income.

4. On the above contentions of both parties, the following points arose for determination.

(i) Whether the proceeding is maintainable ?

(ii) Whether the petitioner is entitled to maintenance being divorce wife of the Opp. Party ?

(iii) Whether the petitioner has not remarried after divorce ?

(iv) Whether the Opp. Party has got sufficient means to maintain the petitioner and the petitioner has no sufficient means to maintain herself ?

5. The petitioner in order to establish her case has examined four witnesses including herself. The petitioner figures as P.W.1. P.W.2 is brother-in-law of the petitioner. P.W.3 is cousin brother of the petitioner and P.W.4 is brother of petitioner. The Opp. Party has examined himself as sole witness on his behalf as O.P.W.1. In addition to oral evidence, the Opp. Party resorted to documentary evidence.

6. Issue No.II :

Section 125 of Cr.P.C. provides that the definition “Wife” includes divorced wife. According to statute, a divorced wife is entitled to maintenance till she has not remarried. In other words, if a divorce wife remarries, she cannot get maintenance from her previous husband. In view of the statute, the divorced wife is entitled to maintenance. The issue is answered accordingly.

7. Issue No.III :

The petitioner has neither stated in her petition nor in her evidence that she has remarried. The Opp. Party has not stated in his show cause and in his evidence whether the petitioner has remarried after divorce. In absence of the same, legal presumption arises that the petitioner has not remarried after divorce. The issue is answered affirmatively.

8. Issue No. IV:

According to law a divorce wife is entitled to maintenance. Therefore, it is to be seen whether the Opp. Party has got sufficient means to maintain the petitioner who has no sufficient means to maintain herself. The evidence of P.W.1 discloses that the Opp. Party is working as Visiting Professor in Indiana University, USA and his monthly income is more than Rs.5 Lakhs.

The O.P.W.1 has stated that his marriage with the petitioner was solemnized on 12.6.2009 and at the time of marriage he was Ph.D. Student in Indiana University, USA. P.W.3 supports this evidence of O.P.W.1. According to him, at the time of marriage, the Opp. Party was prosecuting his study in USA. Further his evidence unveils that he has been continuing his study till today from 2006. At present the Opp. Party is undergoing practical training. In support of his evidence, he has banked upon Exts.A, B, C and D. Exts. A & B are xerox copies of his Identity cards. Ext.C is the true photo copy of certificate of eligibility/ I-20 issued by USA Department of Justice. Ext.C discloses that said certificate has been issued by concerned authority on 4.3.2012. Ext.D is the certificate granted by Indiana University, USA. Ext.D discloses that said certificate has been issued on 11.4.2012. It further discloses that the Opp. Party was given stipend only for the first five years of Doctoral Programmes and since he is in the 6^th year, he is not receiving stipend of 6000 dollars. The oral evidence of O.P.W.1 coupled with Exts.A,B,C and D establishes that the Opp. Party is a Doctoral Student at present at the Kelley School of Business, Indiana University, USA and he has been prosecuting his study in Doctoral Programmes since August, 2006. Now, he is in the 6^th year and he is undergoing practical training. From oral and documentary evidence of Opp. Party, it is crystal clear that he is not serving in USA. For first five years, he was getting stipend and at present he is not getting any stipend. In the face of cogent, convincing and reliable evidence of the Opp. Party, the evidence of P.W.1 that the Opp. Party is earning Rs.5 Lakhs per month as Visiting Professor in Indiana University, USA cannot be believed for a fraction of moment. The Opp. Party was not a service holder at the time of marriage. Moreover, he is not serving at present. As stated above, he is also not getting any stipend in the 6^th year of his training. Therefore, the Opp. Party has no income at all.

It is settled principles of law that if the husband possesses robust physique, he is bound to maintain his wife. Law prevents vagrancy and destitution of neglected wife.

9. Now it is to be seen whether the petitioner has any income of her own. According to the O.P.W.1, the monthly salary of petitioner was Rs.25,000/- at the time of marriage. In the examination-in-chief, the petitioner has stated that she is working as Superintendent in Puri Milk Union (OMFED) and her gross salary is Rs.29,000/- and her home take salary is Rs.27,000/- per month. An admitted fact need not be proved. From the testimony of P.W.1 and O.P.W.1, it is crystal clear that petitioner has sufficient means and the Opp. Party has no means of income. The petitioner has totally failed to establish that the income of the Opp. Party is Rs.5 Lakhs per month as Visiting Professor in Indiana University, USA. Rather, the petitioner has got sufficient income and the Opp. Party has no income as a student/trainee. Therefore, the petitioner is not entitled to any maintenance from the Opp. Party. The issue is answered accordingly.

10. Issue No. I :

The petitioner has stated in para-2 of her petition that she is residing within the jurisdiction of this court. She has admitted in her cross-examination that at present she is staying in her father's house at Golabai and at the time of filing of the petition, she was staying at Bhubaneswar. Further, she has admitted that she has not given Bhubaneswar address in her petition to show that at the time of filing of the petition, she was staying at Bhubaneswar. The petitioner made an averment in her petition that she is staying at Bhubaneswar, but her petition discloses that at the time of filing of the petition, she was staying at Golabai under Jankia P.S. of Khurda District. From her evidence, it is apparently clear that she has not given Bhubaneswar address in her petition. If at all she was staying at Bhubaneswar at the time of filing of the petition, she would have certainly given Bhubaneswar address. In absence of the same, it can be held that the petitioner was not staying at Bhubaneswar at the time of filing of her petition. Therefore, this court has no territorial jurisdiction to hear the proceeding. The proceeding is not maintainable as this Court has no territorial jurisdiction.

In the result, the petitioner is not entitled to any relief sought for in her petition and the petition of the petitioner is liable to be rejected. Hence, it is ordered:

O R D E R

The petition of the petitioner against the Opp. Party is rejected on contest without cost.

JUDGE, FAMILY COURT,

BHUBANESWAR.

Dictated, corrected by me and is pronounced on this the 8^th day of February, 2013.

JUDGE, FAMILY COURT,

BHUBANESWAR

Witnesses examined for the petitioner :

P.W.1 Aparimita Rath

P.W.2 Bibhu Prasad Mohapatra.

P.W.3 Jayanta Kumar Kar.

P.W.4 Manoj Kumar Rath.

Witnesses examined for the Opp. Party:

O.P.W.1 Paresh Mishra.

List of documents admitted by petitioner:

Nil

List of documents admitted by Opp. Party:

Ext.A&B Xerox copies of Identity Card.

Ext.C True photocopy of Certificate Illegibility I-20 issued by USA, Deptt. of Justice.

Ext.D Certificate granted by Indiana University.

Ext.E True photocopy of the salary certificate of the petitioner(computer generated) copy of petitioner.

JUDGE, FAMILY COURT,

BHUBANESWAR.

If a woman is duped into marriage by a man who is already married, and then deserted, can she claim maintenance for herself and her children?

Savitaben was married in 1994 according to the customs and rituals of her religion. Her husband treated her well for a while, and during this time she had a child by him. Thereafter, Savitaben was subjected to mental and physical torture by her husband. She also found out that he was having an illicit relationship with a woman named Veenaben. As she and her child were being neglected, Savitaben filed for maintenance before a magistrate, under Section 125 of the Criminal Procedure Code (CrPC).

Her husband took the plea that Savitaben was not his legally wedded wife. That he had been married to Veenaben for 22 years and had two children by her. He produced a voters’ list, ration card, and provident fund records showing Veenaben as the wife. The magistrate granted maintenance to Savitaben and the child.

In appeal, the Gujarat High Court held that Savitaben was not her husband’s legally wedded wife and therefore was not entitled to maintenance. However, the high court increased maintenance for the child from Rs 350 to Rs 500 per month. Savitaben appealed and the matter reached the Supreme Court.

It was argued that Section 125 of the CrPC was intended to protect destitute and harassed women and that the term “wife” should not be given a narrow and rigid interpretation. That fairness and equity demanded an interpretation favouring Savitaben rather than her husband. That the husband had concealed his first marriage and was guilty of fraud and misrepresentation. The submission on behalf of the husband was that the definition of “wife” was well settled and there was no scope for extending its meaning to include a woman not legally married.

The Supreme Court noted that Section 125 of the CrPC provides for maintenance of an illegitimate child but does not include a woman not lawfully married. It observed that this is an inadequacy of the law and operates harshly against a woman who gets into a relationship with a man who suppresses the fact of an earlier marriage. But the court said this lacuna could only be cured by the legislature. The judgment declared that the scope of Section 125 of the CrPC could not be enlarged to include a woman not lawfully married under the expression “wife”. Savitaben was thus denied maintenance. Taking into account the 2001 amendment removing the limit of a maximum of Rs 500 under Section 125 of the CrPC maintenance for the child was increased to Rs 850 per month.

The issue of maintenance for the second wife, under Section 125 of the CrPC, was settled by the above apex court judgment reported as Savitaben Somabhai Bhatiya versus State of Gujarat, AIR 2005 SC 1809. However, entitlement to maintenance in similar circumstances under the Hindu Adoption and Maintenance Act 1956 is the subject of a recent Delhi High Court judgment in the case of Narinder Pal Kaur Chawla versus M S Chawla, 148 (2008), Delhi Law Times 522 (DB).

Narinder Pal Kaur and M S Chawla were married according to Sikh rites and ceremonies in 1977, in Jalandhar. They lived as husband and wife for 14 years in their matrimonial home in Defence Colony, New Delhi. Two daughters were born, in 1981 and 1983. In 1991, Narinder Kaur resumed her studies and decided to finish her BA. In April 1991 she went to Phagwara, Punjab, to take her exams. When she returned, on June 13, 1991, her mother-in-law barred her from the house.

Narinder Kaur had been deserted by her husband. At the time of her marriage, Chawla had professed himself a bachelor. In 1991, when she was barred from the matrimonial home, Narinder learnt, for the first time, that Chawla was already married to Amarjeet Kaur when they were married.

Narinder Kaur filed a criminal case of bigamy against her husband and Chawla was convicted. She filed a petition for maintenance for herself and the children under the Hindu Adoption and Maintenance Act. As courts take a long time deciding petitions, Narinder filed for interim maintenance. Illustrative of the extremely low quantum of maintenance granted by the courts, she was granted interim maintenance of Rs 400 per month. In appeal, it was increased to Rs 700 and finally to Rs 1,500 per month by the Supreme Court.

In 2005, the main petition for grant of maintenance was dismissed by the trial court on grounds that Narinder Kaur Chawla was not M S Chawla’s legally wedded “wife” and was therefore not entitled to file under the Hindu Adoption and Maintenance Act. The trial court held that since Chawla was already married to Amarjeet Kaur, his second marriage to Narinder was void and had no legal validity. Narinder Kaur Chawla filed an appeal in the high court.

It was submitted on behalf of Narinder that it was M S Chawla who had suppressed the fact of his first marriage. It was on Chawla’s representation that he was a bachelor that she married him in 1977. They lived as husband and wife for 14 years. It was in 1991 that she was denied entry to the house and found out that she had been deserted by her husband. It was argued that the husband could not take advantage of his suppression of the first marriage and be allowed to deny Narinder maintenance. That she was not a “concubine” and had married her husband.

The submission on behalf of the husband was that Narinder was not Chawla’s legally wedded wife and so was not entitled to maintenance under the Hindu Adoption and Maintenance Act. The submission relied on the Supreme Court’s earlier judgment in Savitaben’s case where she had been denied maintenance.

The Delhi High Court observed that the husband Chawla had not disclosed the fact of his first marriage, had married Narinder and had maintained a relationship of husband and wife for 14 long years. That during this period his first wife was nowhere on the scene. Narinder Kaur Chawla and M S Chawla had lived as a married couple for 14 years and, to the world at large, she was known as his lawfully wedded wife. Narinder had taken the responsibility of running the household as a housewife, taking care of Chawla as her husband, bearing two children whom she nourished and brought up. The high court observed that, under these circumstances, it was not the intention of the legislation that a woman in Narinder Kaur Chawla’s position should be deprived of the right to maintenance under Section 18 of the Hindu Adoption and Maintenance Act.

The court also observed that interpretation of the expression “wife” by the Supreme Court in the Savitaben case was in the context of maintenance under Section 125 of the CrPC. The apex court judgment did not discuss interpretation of the expression “wife” in the context of Section 18 of the Hindu Adoption and Maintenance Act. It also took note of the observation in the apex court judgment that Section 125 of the CrPC operates harshly against a woman who unwittingly gets into a relationship with a married man.

The high court proceeded to examine the language of Section 18 of the Hindu Adoption and Maintenance Act. It noted that under Clause (d) of Section 18(2) of the Act, a Hindu wife is entitled to live separately from her husband and claim maintenance “if he has any other wife living”. It noted that the provision appeared to clearly imply that even a second wife had the right to claim maintenance.

The Hindu Adoption and Maintenance Act came into force in 1956. The Hindu Marriage Act making a marriage void if either party has a spouse living at the time of marriage was enacted in 1955. The judgment observes that if the second wife, whose marriage is void under the Hindu Marriage Act, were to be denied maintenance, then Clause (d) would not have been included in the Act. If the intention had been to deny maintenance to the second wife whose marriage is void, then the legislation would have specified that Clause (d) of the Act was applicable only to second marriages performed before the enactment of the Hindu Marriage Act of 1955.

The judgment then took note of Clause (f) of Section 18(2) of the Act which entitles a Hindu wife to maintenance if the husband keeps a concubine in the same house or habitually resides with one elsewhere. Observing that use of three distinct expressions -- “wife”, “Hindu wife” and “concubine” -- indicates the higher status to be accorded to a Hindu wife through a second marriage vis-à-vis a concubine and supports the entitlement to maintenance under the Act. The fact of lack of definition of a “Hindu wife” excluding a second wife in the enactment is also resorted to in giving a more purposive interpretation.

Referring to the objective sought to be achieved by enactment of legislation like the Domestic Violence Act and the present Hindu Adoption and Maintenance Act, the court took the view that a bolder interpretation that furthers the intention of Parliament is to be preferred over a narrow one. It observed that denial of maintenance to the second wife under such circumstances would amount to putting a premium on, or rewarding the husband for defrauding the woman by concealing his first marriage. The judgment declared that for the purpose of granting maintenance under Section 18 of the Hindu Adoption and Maintenance Act, women placed in the position of second wife, like Narinder Kaur Chawla, can be treated as legally wedded wives and entitled to maintenance.

To summarise the effect of the two judgments: the judgment of the Supreme Court in the case of Savitaben lays down that despite the husband concealing his first marriage, a second wife cannot be called a “wife” and is not entitled to maintenance under Section 125 of the CrPC. The Delhi High Court judgment lays down that a second wife duped by her husband through concealment of his first marriage can be treated as a legally wedded “Hindu wife” and is entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act.

Section 122 in The Indian Evidence Act, 1872

Central Government Act

Section 122 in The Indian Evidence Act, 1872

122. Communications during marriage.—No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

Online Society Registration in West Bengal: Step by Step Process

Online Society Registration in West Bengal: Step by Step Process

Online society registration in West Bengal in a step by step rocess. Societies in West Bengal are registered under the West Bengal Societies Registration Act, 1961 (West Bengal Act 26 of 1961). The rules governing the society registration are West Bengal Societies Registration Rules, 1963.

A society is the group of several of people who have come together with the common objective to deliberate, govern, and act cooperatively for some communal purposes. Societies are registered for charitable purposes such as-education, religion, art and literature, sports and music.

Legislations governing West Bengal Society Registration

As, we know, the procedure for society registration has been laid down under the guidelines of Societies Registration Act, 1860 and every state has their own law. West Bengal has its own Act: the West Bengal Societies Registration Act, 1961 (West Bengal Act 26 of 1961).

How society registration is effective?

The effect of society registration can be illustrated as follows:

The registration of society gives the legal status to the society.
It helps in obtaining the approvals for the Income Tax.
It helps in lawful vesting properties of the societies.
It gives recognition to the society at al forum and before all the authorities.
The society registration lays down various bonafide purposes.
When the society is registered, the society and its members are bound. It is as if, each member had signed the Memorandum.

Effect of non-registration of society

In the case a society is not registered, all the trustees in charge of the funds have no legal status, as the society has no legal status. It cannot sue or be sued in the given circumstances. A non-registered society exists in fact but not in law. The unregistered society cannot claim benefits under Income Tax Act.

Legislative and substantive Requirements of the West Bengal Society Registration

Minimum Members- For the West Bengal Societies Registration, minimum numbers of members required are seven.
Specific Objective/Objective Clause- The objects clause of the society must be mentioned. The objects clause must either be the promotion of the literature, art, science, religion, care for orphans, aged, sick, indigent persons, alleviation of the sufferings of animals, or the diffusion of knowledge, or the dissemination of social, or political or economic education, or the society for the establishment and maintenance of libraries.
Memorandum of Association- Includes the name and state of objects carried out.

Documents Required for the Registration

Affidavit- states the ownership and Non-objection Certificate for the registered office of the society
ID Proof- Aadhaar Card, Driving License, or PAN Card of all members.
Address Proof
Electricity Bill or Water Bill
Landlord Non-Objection Certificate (NOC)
TAN Number of society
Pan Card Details duly filled in the Form-60
Slip containing the market value and charge ability of stamp duty
There must be a competent person in case of transfer of property between ST and Non-ST.

Memorandum of Association contains/ Section 5 of the West Bengal Societies Registration Act, 1961

The Memorandum of Association (MOA) shall contain the following in the West Bengal Society Registration:

Names clause- Name of the association
Address clause- The address of the registered office of the association
Object Clause- The object of the association
The names of the first members of the governing body
It includes -names, address and occupation of the signatories to the Memorandum.
No change in Memorandum, after the registration of society except following society’s provisions.

Section 6 of the West Bengal Societies Registration Act, 1961

The regulations shall be in a memorandum for the West Bengal Registration of Society unless these regulations are not mentioned, the registration will not be allowed.

The following are the regulations which have to be incorporated:

Composition- It means the composition of the governing body, and the manner for registration and removal of members.
Removal and Resignation of members- How individuals can be removed the society.
Safe Custody of the society’s Property- The manner of keeping the property.
Procedure for holding meetings-It shall include the quorum of the meeting and other procedures involved in meeting.
Audit of Accounts- It includes the audit required.
Inspection of Accounts- The examination of accounts, and proceedings of meetings carried out by members of the society.

Online Procedure for the West Bengal Society Registration

Application– The applicant has to submit the Memorandum of association to the Registrar along with the copy of the Regulations, along with the copy of required documents, and application to the concerned Registrar.
Fess Submission– After applying, the requisite amount of Rs.150/- shall be paid along with the application. An acknowledgement receipt shall be provided with it.
After submitting the documents– The Registrar would verify the documents and seal the same. After this the society is registered under the West Bengal Societies Registration Act, 1961.
Certificate of Registration- The Registrar would provide a certificate of registration.

Conclusion

It can be concluded that West Bengal Society Registration is governed under the West Bengal Societies Registration Act, 1961 (West Bengal Act 26 of 1961). The rules governing the society registration are West Bengal Societies Registration Rules, 1963. The effect of society registration in West Bengal requires an additional document to be submitted along with the Memorandum.