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?

 

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:

1. The registration of society gives the legal status to the society.
2. It helps in obtaining the approvals for the Income Tax.
3. It helps in lawful vesting properties of the societies.
4. It gives recognition to the society at al forum and before all the authorities.
5. The society registration lays down various bonafide purposes.
6. 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

1. Minimum Members- For the West Bengal Societies Registration, minimum numbers of members required are seven.
2. 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.
3. Memorandum of Association- Includes the name and state of objects carried out.

Documents Required for the Registration

1. Affidavit- states the ownership and Non-objection Certificate for the registered office of the society
2. ID Proof- Aadhaar Card, Driving License, or PAN Card of all members.
3. Address Proof
4. Electricity Bill or Water Bill
5. Landlord Non-Objection Certificate (NOC)
6. TAN Number of society
7. Pan Card Details duly filled in the Form-60
8. Slip containing the market value and charge ability of stamp duty
9. 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:

1. Names clause- Name of the association
2. Address clause- The address of the registered office of the association
3. Object Clause- The object of the association
4. The names of the first members of the governing body
5. It includes -names, address and occupation of the signatories to the Memorandum.
6. 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:

1. Composition- It means the composition of the governing body, and the manner for registration and removal of members.
2. Removal and Resignation of members- How individuals can be removed the society.
3. Safe Custody of the society’s Property- The manner of keeping the property.
4. Procedure for holding meetings-It shall include the quorum of the meeting and other procedures involved in meeting.
5. Audit of Accounts- It includes the audit required.
6. 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

 

1. 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.
2. 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.
3. 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.
4. 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.

 

Interim application in DRT / application for interim relief / DRT

 

IN THE DEBTS RECOVERY TRIBUNAL SILIGURI

PCM Tower, 2^nd Floor, 2 no. Mile, Sevoke Road, Siliguri - 734001.

 

I.A. no. ___________OF 2023

in

SARFAESI APPLICATION NO 26 OF 2022

{ Diary no. 256/2021 }

 

HASNA BEWA

--- ---- APPLICANT

– VERSUS –

 

PUNJAB NATIONAL BANK

----- ---- RESPONDENT

 

The humble petition of the above named applicant, most respectfully;

Sheweth as under :

 

1.   That the above referred application has been placed in sub section (1) of Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, and being challenging the respondent notice for Recovery of the Loan facility bearing Account No. 0700250032294, and Notice Under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, being possession notice under rule 8 (1), dated 05-11-2021.

 

2.   That the Defendant has served notice of intended Sale being no. CO SASTRA MURS/EAUCTION/999/2021, dated 21-01-2022, Up-on the applicant which has been posted on 28-01-2022, vide Consignment no. EW361395319IN, which reached to the applicant on 29-01-2022, and at the same time they have published E-Auction Sale Notice in the News Paper dated 22-01-2022, whereby it has been mentioned that mortgaged property of the applicant will be sold out through E-auction on 22-02-2022. It is surprising that in-spite of having knowledge of Criminal Conspiracy and activities of the Bank Officials in looting money from the applicant, the mortgaged property is going to be put on sale.

 

3.   That the concerned respondent is showing four loan accounts vide account nos. 0700250032294, 0700306740359, 0700306742490, and 0700306734640; but in fact 0700306734640 and 0700250032294, exist and the other two loan accounts have no existence. As such the facts of the case and conduct of the concerned bank are required to be investigated first and the bank should inform the applicant the details of the loan amount disbursed to the applicant. Before doing that they cannot go for E-AUCTION of the mortgaged property.

 

4.   That the applicant through her Learned Advocate by Email communication to the defendant requested to stay off their hand till out-come of the investigation regarding cheating and conspiracy of bank officials, as mentioned in the complaint dated 20-12-2021.

 

5.   That after death of husband of your applicant in 2000, she faced a lot of problems including financial issues. To run her family she decided to start a business in 2011-12; but she had no sufficient money. So, She contacted with the then Branch Manager, namely one Mr. Sunder of United Bank of India, now Punjab National Bank, Nimtatla Chunakhali Branch, Beharampore, Murshidabad, for getting Loan of Rs. 3,00,000/- . The said Mr. Sunder sanctioned to start and run her business. She availed of that Loan and the same was repaid in time.

 

6.   That your applicant further decided to enhance her business for which money was required. So She again approached the Branch Manager, who ultimately sanctioned further Loan of Rs. 5,00,000/-. She again repaid the said Loan in time. Therefore from time to time on three occasions She had taken Loan from Bank for doing her business and She repaid the entire Loan Amount with interest in time. In the mean-time new manager one Mr. Mahindra came to the Branch of the said Bank. Then the manager was again changed. One Mr. Koushik took the charge. She approached him for extending a Loan to the tune of Rs. 7,00,000/- to run smoothly the business of “Rana Raja Bastralay”. It was given. By that time the manager was again changed. One Mr. Prakash Shrivastava took the charge.

 

7.   That your applicant expressed her desire to the Branch Manager to start a new business for which a Loan of Rs. 40,00,000/- was required. But at that time She had existing three Loan accounts. To close down the said accounts, a sum approximately of Rs. 12,00,000/- was necessary. The said manager dissuaded to repay the said sum of Rs. 12,00,000/- from the new Loan of Rs. 40,00,000/- . your applicant agreed. He asked her to issue three cheques amounting to total 12 Lakhs. Your applicant issued the same and the manager assured her of closing the said three loan accounts. The manger further told your applicant that She would receive a cheque within a four days, and to contact him immediately after receiving the same. Accordingly, your applicant received the cheque by post and immediately contacted him. Subsequently the said Mr. Shrivastava joined RM Office. In-spite of receiving your applicant’s three cheques the Loan Amount was not repaid. In the mean-time your applicant contacted with Mr. Arun Babu, the Assistant Manager and told him the fact. After hearing her trouble he asked the concern Manager Mr. Shrivastava to whom your applicant submitted three cheques, to close down the said accounts immediately. Accordingly your applicant’s said three Loan accounts were closed.

 

8.   That in availing the said Loan, Your applicant had to mortgage the Title Deed of one of her Properties. In-spite of repeated request and in-spite of the payment of the Loan Amount the bank authority has not returned the title deed. It is still lying with the Bank. The said Mr. Shrivastava also told your applicant not to disclose the fact that He have not been given the Deed to Mr. Sunder, Arun Babu, and Cashier Khokan Babu.

 

9.   That said Mr. Shrivastav in mean time came to residence of your applicant and asked for Rs. 3,00,000/- immediately to treat his ailing father and further assured her of depositing the same in her Loan Account. This is the incident of 2020. Relying his words and considering his immediate need She gave him Rs. 3 Lakhs by Cash. The said Mr. Shrivastav after a few days again came to residence of your applicant and asked for money to save another Customer of the Bank whose account has been declared as NPA. He immediately opened TOD and transferred Rs. 8 Lakhs in your applicant’s Account and then took that money for saving the said customer. He further promised to deposit the previous Rs. 3 Lakhs and present Rs. 8 Lakhs in your applicant’s Loan Account. But he has not kept his promise. The said Mr. Shrivastav again came to your applicant’s house and asked for Rs. 2 Lakhs in lieu of opening a Loan Account having subsidy facility. She paid him Rs. 50,000/- by cash and Rs. 1,50,000/- by cheque. The said Mr. Shrivastav has not given her certificate against her Gold Bond of 12 gm. Gold for which Rs. 60,000/- was given.

 

10. That said Mr. Shrivastav has neither returned your applicant’s money to the tune of Rs. 15,00,000/- nor has he deposited the same in her loan account. He also has not handed over her Mediclaim Certificate for which She paid him Rs. 16,000/-. Beside key of the hardware shop room of one Mr. Jagadish Mondal has also not been handed over to her. He took the names of surajit, and sekhar of the bank who would solve her problem. The said Arun Babu of the bank in two parts took Rs. 14 Lakhs from your applicant against booking of a flat. Neither any agreement for sale has been prepared nor money, has been returned. Arun babu has also cheated your applicant.

 

11. That surprisingly the Bank authority which has now been merged with Punjab National Bank has published in “Financial Express” as well as Bengali vernacular “Ekdin” on their Edition on 10-11-2021, Possession Notice, in respect of the same property. In one place they have shown total outstanding as Rs. 69,27,691.87/- and in another place the outstanding has been shown as Rs. 18,83,206.87/-;

 

12. That your applicant has been shown a defaulter but in reality She never have been provided with the alleged Loan Amount. It is a conspiracy of the Bank Officials, for which She has been impleaded as a party to the issue.

 

13. That the bank officials have sanctioned & withdrawn Rs. 4 Lakhs which has been given for survival during the pandemic from account no. 0700306740359. Besides your applicant have no idea about the account number 0700306742490, where Rs. 2.81 lakhs have been shown. Who has sanctioned and who has taken money, your applicant cannot tell.

 

14. That your applicant lodge such facts with the concerned Police Authority as well as the Bank Authority seeking thereby investigation into the matter of her complaint and to book the culprit being bank officials. Your applicant is victim who has been defrauded by bank officials.

 

15. Pursuant to grant of loan facility vide sanction letter dated 01/08/2018 by the Respondent to and in favour of your  applicant. The respondent took mortgaged of her one of the property. Full description of the said ownership property of the Applicant particularly described in a Schedule at the foot hereof and marked as Schedule “A”. It is pertinent to states that the Loan Account no. 0700250032294, has been assigned by the Defendant.

 

16. The Borrower being your applicant regularly paid to the Respondent, and whereas the said EMI directly taken by the Respondent Bank, through ECS from the account of the borrower. Borrower did not default in paying her EMI as assigned by the respondent bank.

 

17. That in the month of April’ 2021, the respondent bank through its Letter dated 09-04-2021, sent Recovery notice stating inter alia your borrower as a defaulter and call upon your applicant for payment of Rs. 49,24,927/- ( Rupees Forty Nine Lakhs and Twenty Four Thousand and Nine Hundred Twenty Seven ) only, categorize such Loan account as NPA ( Nonperforming account) on 31-03-2021, and thereby threatened to initiate Legal proceeding against your applicant.

 

18. That the Reserve Bank of India on 27-03-2020, issued Statement of Development and Regulatory Policies where inter alia certain regulatory measures were announced to mitigate the burden of debt servicing brought about by disruptions on account of COVID-19 pandemic and to ensure the continuity of financial assertions, which extended time and again, by the RBI.

 

19. That the Reserve Bank of India has issued such notification for the moratorium period at first for the three months commencing from the month of March’ 2020, April’ 2020, and May’ 2020, and consequently for another three months i.e. June’ 2020, July’ 2020, and August’ 2020. Thus a total period of Six months has been given as moratorium period were announced to mitigate the burden of debt servicing brought about by disruptions on account of COVID-19 pandemic and to ensure the continuity of financial assertions, which extended time and again, by the RBI.

 

20. The Applicant astonished while She received a notice on or about 05/11/2021 at the door of her residence wherein it was purportedly contended that one alleged notice dated 02-07-2021 by the Respondent purportedly under sub-Section 2 of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act; 2002, calling upon the Applicant to discharge in full a total sum of Rs.69,27,691.87/- ( Rupees Sixty Nine Lakhs Twenty Seven Thousand Six Hundred Ninety One and paise eighty seven ) only, was allegedly served upon the Applicant.

 

21. That the applicant states and submit that Loan Amount under Loan account 0700306740359, and 0700306742490, were sanctioned but the Bank Officials have siphoned money from the applicant on different pretext. The applicant has already informed the concerned Bank Authority about taking away her money by some officers, but those allegations have not been investigated. As such the said sale notice is an outcome of a malafide intention and conduct.

 

22. That the applicant states and submit that what amount the applicant received as Loan, She has already repaid the same. As such the applicant does not owe to the bank. Therefore the impugned Sale notice does not stand in the eye of law and it is an attempt of defendant to gain uncalled for money from the applicant.

 

23. That the applicant states and submits that the concern Bank is not certain about the loan amount as they have claimed 69,27,691.87, and odd from the applicant which includes Rs. 18,83,206.87, arising out of loan account no. 0700306734640, it is surprising that the concerned respondent has published Sale notices of the mortgaged property due to non-payment of Loan amount arising out of Loan account nos. 0700306734640 and 0700250032294,  respectively. The said two loan accounts cannot be merged.

 

24. That the applicant states and submits that the defendant has declared the properties being the residential building as non-performing assets. But an asset is always appreciated not depreciated. Therefore definition of NPA is illusory and vague. On this context the Secured Asset always gives Protection to the Bank. Therefore the defendant should not be worried about payment of the Loan Amount specially when the defendant’s officials siphoned Loan Money and taken payment of the Loan Amount in the manner as stated herein above.

 

25. That the applicant states and submits that the applicant does not evade to carry on her burden and responsibility. It is only because of the looting money by Bank’s Officials in Pandemic Situation when the entire world has to come to a stand-still, the applicant has become a defaulter. Up-to pandemic, the applicant never default in paying her monthly installment.

 

26. That the Applicant states that the Defendants are deliberately trying to encroach the properties so that they can earn an added advantage over it as they have suppressed many material facts and even disobeyed the laws as enumerated in the ‘said Act’; such transpires from their performances which are being foreseen herein above with facts and evidence such illegal, concocted steps must categorically be directed for the ends of natural justice, furthermore no such arrogant, biased and disobedient steps be barred from taking into consideration by the Defendants as there is law above everyone.

 

27. That the applicant further submits that the purported steps and measures taken by the defendant against the applicant are full of undue haste and ill motive without applicability of the provisions as enumerated under the SERFESAI Act. The applicant craves to make appropriate submission on facts and law at the time of hearing.

 

28. That the applicant further pray that the illegal steps taken by the defendant under the blanket of the SERRFESAI Act and rules made thereunder are bad in law and thus it must be set aside and or quashed forthwith and status quo be maintained over the mortgaged property till the adjudication of this Lis, as the action of the defendants are ambiguous contrary to the settled provisions of the Law and procedure and or not in accordance with the were settled and established law and rules.

 

29. That the defendant did not follow the process of service as lay down by the provisions. This action of the defendant bank clearly shows the desperation of theirs to recover the money from the borrowers by any means possible. That the applicant submits that this kind of desperate actions by a financial institution like the defendant bank is very shameful as they are in as such higher position of power and plays a very important role in the daily life of the public they serve.

 

30. That the applicant hereby prays that the Hon’ble Tribunal may be pleased to pass an order quashing the paper publication and Notice of Sale dated- 21-01-2022 and Notice u/s 13(4) dated- 05.11.2021, as the whole procedure totally based on negligence of the Bank and only to rectify their own mistakes which clearly shows the malaise intentions of the banking authority behaving more like a money lenders from the past days.

 

31. That in terms of Order dated 21-12-2022, the applicant was directed to file written notes of Argument within four weeks. Since IA no. 45 of 2022, is pending before the Learned Tribunal, so preparing the written notes of argument is difficult to prepare on the following grounds;

 

(1) I.A. no. 45 of 2022, arising out of SA/26/2022, is a very important application for deciding the issues involved in SA no. 26 of 2022. Specific allegations against the concerned Branch Manager have been made who syphoned the entire loan amount of the applicant meaning thereby on paper the applicant is shown a Debtor having availed of the Loan Amount But in reality She never received the same.

 

(2) That the Respondent in-spite of specific allegation against their own officer, have not taken any step. The applicant even has never been asked to place her case before the respondent.

 

(3) The petitioner has also made an application before the concerned Police Station, who in cahoots with the respondent have not proceeded.

 

(4) That the specific allegations unless and until are redressed by the concerned authorities, it will be difficult for the Learned Tribunal to take the matter to a logical conclusion.

 

(5) I.A. no. 45 of 2022, arising out of SA/26/2022, is still pending to decide on its merit. The respondent did not answer anything till date. Order dated 21/02/2022, clearly shows such fact which require to be finalize, in the interest of administration of Justice.

 

Server Copy of Order dated 21-12-2022, and Order dated 21-02-2022, are enclosing herewith and marked as Annexure – “A”.

 

32.  That the applicant hereby seeks that the present application may be disposed off by directing the respondent to submit a report dealing with specific allegations made by the applicant on the mischief of the bank officials who have defrauded the applicant, and which are detailed in IA no. 45 of 2022, as well as in SA no. 26 of 2022, in the interest of administration of Justice.

 

33. That unless the order/orders prayed by the applicant is passed by the Ld. Tribunal the applicant herein will suffer from the wrong doing of the defendant bank herein.

 

34. That this interim application is made bona fide and for the end of justice.

 

It is therefore, most respectfully prayed as follows:-

 

a.   The present application may be disposed of by directing the respondent/ defendant to submit a report dealing with specific allegations made by the applicant on the mischief of the bank officials who have defrauded the applicant, and which are detailed in IA no. 45 of 2022, as well as in SA no. 26 of 2022;

 

b.   Such or other order may kindly also be passed as deemed fit and proper in the fact and circumstances of this case.

 

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

 

 

 

 

 

SCHEDULE “A” ABOVE REFERRED TO

 

Description of immovable property;

 

ALL that piece and parcel of the immovable property being at Mouza : Jan-Mahammadpur, J.L. no. 112, L.R. Khatian No. 2417, L.R. Dag no. 2503, measuring 3.50 decimal alongwith construction of Two storied building standing thereon within the limits of Hatinagar Gram Panchayat, Post Office – Ghorsala, Police Station – Raghunathganj, District – Murshidabad, Pin - 742102, West Bengal, bounded by :

 

On the North                 : Road

On the South                : House of Rasimuddin Mondal,

On the East                   : House of Marjina Bibi,

On the West                  : Bapi Sk.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

 

I, Hasna Bewa, Wife of Late Janaruddin Seikh, aged about 51 years, by faith Muslim, by Occupation Business, residing at premises being Village – Ustia, Post Office – Muktinagar, Police Station – Berahampore, District – Murshidabad, Pin – 742102, West Bengal, do here by solemnly affirm and declare as follows:-

 

1.   That I am the Applicant in the above case and I am well acquainted with the facts of the suit and I am competent to swear this Affidavit for and on behalf of the Applicant.

 

2.   That the statements made above in paragraphs are true to my knowledge as derived from the records.

 

 

That the rest are my humble submissions to the Hon’ble Debt Recovery Tribunal and I sign this Affidavit on the ____ day of March’ 2023.

 

 

 

 

Signature

Identified by me

 

Advocate

 

                                                                  

Prepared in my Chamber,

 

Advocate.

Dated : ____day of March’ 2023.

Place : Kolkata.                                         

 

N O T A R Y