Criminal Revision

 

 

 

 

District : South 24 Parganas.

IN THE COURT OF THE LEARNED DISTRICT SESSION JUDGE AT ALIPORE, SOUTH 24 PARGANAS

Criminal Revisional Jurisdiction

 

 

                                                          Cr. Motion no. _____________of 2020

 

                                                          In the matter of :

An application under Section 399, and 397 of the Criminal Procedure Code’ 1973;

 

A N D

 

In the matter of :

 

An application against an order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973;

 

AND

 

 

 

 

 

 

 

In the matter of :

 

Md. Shakil @ Md. Aqeel Asrari, Son of Md. Ayub Asrari, of T-170, Mitha Talab, Post Office – Badartala, Police Station – Rajabagan, Kolkata - 700013.

                   _________Revisionist.

 

-          Versus –

 

1.   Saba Afreen, Wife of Md. Shakil @ Md. Aqeel Asrari, daughter of Md. Shabbir, presently residing at Z-5/238/70A, Bagdi Para Road, Post Office – Badartala, Police Station – Nadial, Kolkata - 700044, District – South 24 Parganas.

 

2.   The State of West Bengal

                       _____Opposite Parties

 

The humble petition of Criminal Revision on behalf of the Revisionist / Petitioner, most respectfully;

 

Sheweth as under :

 

1. That an application under Section 125 of Criminal Procedure Code’ 1973, has been filed by the Opposite Party no.1, herein, Vide Case no. ACM Case No. 834 of 2018, wherein she claiming her interim maintenance from her alleged husband Revisionist as of Rs. 30,000/- ( Rupees Thirty Thousand ) only per month for herself before the Learned 3^rd Court of Judicial Magistrate, at Alipore, South 24 Parganas.

 

2. That the said interim application under Section 125 of Cr.P.C. has been heard by the Learned Judicial Magistrate, 3^rd Court, at Alipore, South 24 Parganas, and whereas the Revisionist has filed his Written Objection therein, and thereafter the Learned Judicial Magistrate, 3^rd Court, at Alipore, South 24 Parganas, passed necessary order as on 27^th day of September’ 2019.

 

3. Being aggrieved by and dissatisfied with the Order dated 27^th day of September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973, the Revisionist / Petitioner prefer this Criminal Revision application on the following amongst other :

 

 

GROUND

 

 

I)             FOR THAT  the Order of the Learned Lower Court is improper, erroneous and otherwise bad in law;

 

II)           FOR THAT the order of the Learned Lower Court is against the facts, circumstances and probability of the case and is against the weight of evidence on record;

 

III)          FOR THAT the order of Learned Lower Court is against the provisions of Law being based upon mere conjectures and surmises;

 

IV)         FOR THAT the Learned Lower Court did not consider the spirit of the provisions of Section 125 of the Criminal Procedure Code’ 1973, nor consider the factual aspects of the Revisionist / petitioner seeking for the dismissal of such application;

 

V)           FOR THAT the then the Revisionist was engaged as an Ordinary Labour in Dubai, and thereby earning as of INR 8,000/- ( Rupees Eight Thousand ) per month, and whereas the Revisionist taken leave of one month for his marriage in his services at Dubai, therefore the Revisionist was with the Opposite Party no.1, for the period of one month only in India, at Kolkata and thus the Revisionist departed Country on 11-03-2017, for his Service in Dubai. During such period the Opposite Party no.1, and the Revisionist stayed and live together as husband wife, and due consummation performed by and between them;

 

VI)         FOR THAT while the Revisionist was in Dubai, he used to send money separately to the Opposite Party no.1, via western union money transfer and other available modes as permissible in our country, thereof;

 

VII)        FOR THAT the Revisionist consisting family member having old aged father, mother, one unmarried Sister, and one Divorcee Sister with her one minor male child, and therefore the Revisionist assailed his moral duty to look after his family member, who particularly old aged dependent and unmarried Sister, and thus the Revisionist in his meagre earning accommodated need of each and every family member particularly the basic need of their livelihood;

 

VIII)      FOR THAT the Revisionist back to Kolkata, India only on 2^nd day of July’ 2018, and thus since the period commencing from 11^th day of March’ 2017 to the day of 2^nd July’ 2018, the Revisionist was not in Kolkata and he was in Dubai in his services as Ordinary Labour, and thereby in his meagre earning accommodate need of his family members;

 

IX)         FOR THAT the Opposite Party no.1, using whatsapp and facebook, wherein contain so money photograph in such duration, while the revisionist was in Dubai, more particularly in the month of July’ 2017, then the revisionist while seeing such posts with another guys, asked the opposite party no.1, then the opposite party no.1, got aroused and did not answer on his query, however after few days, the opposite party no.1, went to her parental house on plea to her normal visit to meet with her parents, and thereafter She did not return to her matrimonial home;

 

X)           FOR THAT the Opposite Party no.1, withdrawn herself from the society of the revisionist at her own whims and without any sufficient cause thereof, and consequently insisting for Divorce to the revisionist, herein;

 

XI)         For that this is the Opposite Party no.1, who lead adulterous life with some other guys as apprehended in given circumstances, and for such circumstances she withdrawn herself from the society of the revisionist.

 

XII)       FOR THAT Since the Opposite Party no.1, failed to perform her matrimonial bondage with the revisionist and his family members, she failed to ask for anything which may be permissible to a prudent wife;

 

XIII)      FOR THAT Since 2^nd day of July’ 2018, to till presently, the Revisionist is without any job and unemployed and thus in much hardship to run his family including himself and therefore dependent on his friend, relatives, and other member of his society, who time and again are trying to help him out;

 

XIV)     FOR THAT the Learned Lower Court did not consider and nor even apply judicial mind in granting and fixing the quantum of maintenance;

 

XV)       FOR THAT the Learned Judicial Magistrate, ought to have rejected the prayer for maintenance of the Opposite Party no.1, considering the facts that there has been no just cause or reason for living separately and claiming maintenance for herself;

 

XVI)     FOR THAT the impugned order of the Learned Lower Court, is carrying much hardship to the Revisionist / petitioner herein, as such the quantum of the maintenance is very high and improper and beyond the ability of the Revisionist / petitioner herein, under the factual circumstances;

 

XVII)    FOR THAT it is not permissible for any Magistrate under the Code to act contrary to the provisions of the Code’ 1973;

 

XVIII)  FOR THAT the order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973, was illegal, irregular, and improper, in view of facts and circumstances, and contravene the spirit of the provisions of the legislature.

 

4.     That the Revisionist petitioner seeks that the said order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973, should be set aside, in the interest of administration of justice.

 

5.     That the Revisionist Petitioner states that no other Criminal revision petition has ever been filed either before the Learned Court or in the Hon’ble High Court at Calcutta. This Petition is first time in this Learned Court seeking relief against the order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973.

 

6.     That the Revisionist Petitioner, enclosing herewith the Original Certified Copy of the Order dated order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973, for the kind references of the Learned Court.

 

7.    That the Opposite Party Petitioner Crave leave to argue the law points as well as facts and to produce the relevant documents and papers at the time of hearing of this Revision petition, before the Learned Court.

 

8.    That this application of revision made bonafide in the interest of justice.

 

 

On the ground stated above and more to be argued at the time of hearing, it is, therefore, prayed that Your Honour may graciously be pleased to admit this revision petition, call for record of the Court below and after hearing the parties, be pleased to set aside the order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973, and to stay the operation of the impugned order dated 27^th September’ 2019, passed by Smt. A. Chatterjee, Judicial Magistrate, 3^rd Court, Alipore, South 24 Parganas, in A.C.M. Case no. 834 of 2018, under Section 125 of the Criminal Procedure Code’ 1973, till the disposal of this revision application, and to prevail the interest of Administration of Justice;

 

And / or to pass such other necessary order or further 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, within named Revisionist Petitioner, made this criminal revision petition. I am acquainted and conversant with the material facts, as stated in my revision application, and duly verified on the _____________2020, at Alipore Judges’ Court, Alipore, South 24 Parganas.

 

 

 

 

Md. Shakil @ Md. Aqeel Asrari

 

Identified by me,

 

Advocate.

Prepared in my Chamber,

 

Advocate.

 

Dated : _____________________2020.

Place : Alipore, South 24 Parganas.

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

 

I, Md. Shakil @ Md. Aqeel Asrari, Son of Md. Ayub Asrari, aged about ____years, by faith Muslim, by Occupation unemployed, residing at premises being no. T-170, Mitha Talab, Post Office – Badartala, Police Station – Rajabagan, Kolkata - 700013, District – South 24 Parganas, do hereby solemnly affirm and says as follows :

 

1 : That I am the Revisionist petitioner and as such I am fully conversant with the facts of the Case, and I am competent to swear this affidavit.

 

2 : That the contents of paragraph no. ______to ______, are true to my knowledge and belief, and the rests are my humble submissions before the Learned Court.

 

The above statements are true to my knowledge and belief.

 

 

 

Deponent

 

Identified by me,

 

 

Advocate.

 

 

Prepared in my Chamber,

 

 

Advocate.

 

Dated : _____________________2020.

 

Place : Alipore, South 24 Parganas.

 

 

N O T A R Y

 

 

 

 

 

VAKALATNAMA

 

District : South 24-Parganas.

In the Court of the Learned District Session Judge, at Alipore, South 24-Parganas.

 

Cri. Motion no. _________________of 2020.

 

Md. Shakil @ Md. Aqeel Asrari,                   __________Revisionist

 

-          Versus –

 

Saba Afreen, and others                              _________Opposite Parties.

 

KNOW ALL MEN by these presents that I / We Md. Shakil @ Md. Aqeel Asrari, Son of Md. Ayub Asrari, of T-170, Mitha Talab, Post Office – Badartala, Police Station – Rajabagan, Kolkata - 700013,

 

   do hereby constitute and appoint the under mentioned Advocate, Pleader, Vakils, jointly and each of them severally to be pleader of take such steps and proceedings as may be necessary on my / our behalf and for that purpose to make sign, verify and present all necessary petitions, plaints, written statements and other documents and do nominate and appoint or retain senior counsels, vakil, advocates and other persons, lodge and deposits moneys and documents and other papers in the Ld. Court and the same again withdraw and to take out of Court and to obtain or grant as the case may be effectual receipts and discharge for the same and for all moneys which may be payable to me / us in the premises. To enter into compromise with my / our approval and withdraw, all moneys from the court AND GENERALLY  to act in the premises and proceedings arising there out whether by way of execution, review, appeal, or otherwise or in any manner contested there with as effectually and to all intents and purpose as I / We could act if personally present and such substitution and as pleasure to revoke I / We hereby ratifying and agreeing to confirm whatever may be lawfully done by virtue hereof.

In witness whereof this Vakalatnama has been executed by me / us.

 

This the …………………day of ………………2020.

 

 

Sri Ashok Kumar Singh, Advocate. 

Sri Rabindra Nath Das, Advocate.

Sri Biplab Some, Advocate.

Miss Mou Biswas, Advocate.

 

Section 3 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989

 

Section 3 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

3. Punishments for offences of atrocities.—

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;

(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;

(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;

(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;

(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;

(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ‘begar’ or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;

(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;

(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;

(ix) gives, any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;

(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;

(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;

(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;

(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;

(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;

(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or

(vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.

 

The Insolvency and Bankruptcy Code 2016

 

The Insolvency and Bankruptcy Code, 2016

PART II Insolvency Resolution and Liquidation for Corporate Persons

CHAPTER II Corporate Insolvency Resolution Process(CIRP)

Section 7: Initiation of corporate insolvency resolution process by financial creditor:

7. (1) A financial creditor either by itself or jointly with ¹[other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred.

²[Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiation corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less:

Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less:

Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first or second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019, such application shall be modified to comply with the requirements of the first or second provisos as the case may be within thirty days of the commencement of the said Ordinance, failing which the application shall be deemed to be withdrawn before its admission.]

   Explanation.—For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor.

(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed.

(3) The financial creditor shall, along with the application furnish—

(a) record of the default recorded with the information utility or such other record or evidence of default as may be specified;

(b) the name of the resolution professional proposed to act as an interim resolution professional; and

(c) any other information as may be specified by the Board.

(4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3).

³[Provided that if the Adjudicating Authority has not ascertained the existence of default and passed an order under sub-section (5) within such time, it shall record its reasons in writing for the same.]

(5) Where the Adjudicating Authority is satisfied that—

(a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or

(b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application:

 Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority.

(6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5).

(7) The Adjudicating Authority shall communicate—

(a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor;

(b) the order under clause (b) of sub-section (5) to the financial creditor, 

within seven days of admission or rejection of such application, as the case may be.

 

———————— Amendments:

1. Substituted by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, for the word “other financial creditors” in sub section 1 of section 7 (w.e.f. 06.06.2018).

Notification -S.O. 1091(E) dated 27th February, 2019, the Central Government hereby notifies following persons who may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority, on behalf of the financial creditor: –

(i) a guardian; (ii) an executor or administrator of an estate of a financial creditor; (iii) a trustee (including a debenture trustee); and (iv) a person duly authorised by the Board of Directors of a Company.

2. Ins. by by the Insolvency And Bankruptcy Code (Amendment) Ordinance, 2019 (Ordinance No. 16 of 2019), sec.2 (w.e.f. 28-12-2019).

3. Inserted by Insolvency & Bankruptcy Code(Amendment) Act, 2019 (w.e.f. 16-8-2019).

 

Brief notes of Argument in a Consumer Proceeding - references

 

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza Ghalib Street, Kolkata – 700 087.

 

                                        Complaint Case no. CC/377/2014  

                       

                                                In the matter of :

                                               

Sri Sujay Bakshi, & another

___Petitioners

-      Versus –

 

State Bank of India, & Others

______Respondents

 

BRIEF NOTES OF ARGUMENT

ON BEHALF OF THE PETITIONERS

 

FACTS :

 

1.    That the Petitioner no. 1, is a Driver by occupation and the Petitioner no.2, is house wife. The petitioner no.1, is only earning member of his family. The petitioners are living their life in a mediocre financial condition.

 

2.    That the Petitioners  due to urgent need of money sold their property being 2 ( Two ) Cottahas Land with two storied building thereon, laying and situated at Mouza – Jagannathpur, Pargana Balia, Touzi No. 1523, J.L. no. 27, R.S. no. 76, under R.S. Dag no. 95, in R.S. Khatian No. 62, L.R.(Kri) Khatian no. 12, old L.R. Khatian no. 175 / 3, present L.R. Khatian no. 500 & 501, Plaza Housing Society, being Plot no. 199, having holding no. 3916, Plaza Housing, Jagannathpur, Mahestala, District South 24 Parganas, to one Sri Pappu Kumar Shaw, Son of Sukhdeo Shaw, residing at premises being no. 22, Orphan Gang Road, Police Station Watgange, Kolkata – 700 023, on consineration value of Rs. 30,00,000/- ( Rupees Thirty Lakhs ) only.

 

3.    That the said Purchaser Sri Pappu Kumar Shaw, Son of Sukhdeo Shaw, residing at premises being no. 22, Orphan Gang Road, Police Station Watgange, Kolkata – 700 023, obtain Housing Loan or Finance from M/s. Dewan Housing Finance Limited, having it’s office at premises being no. Narendra Chandra Dutta Sarani, Kolkata – 700 071, and whereas in pursuance thereof the respondent no. 4, issued a cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, in favour of the Petitioners, towards the payment of the consideration money or value of the property.

 

4.   That the Petitioners jointly maintain one Saving Bank Account with the State Bank of India, Shibrampur Branch Janavilla, Village & Post Office – Joteshibrampur, Biren Roy Road West, Kolkata – 700 141, being Saving Bank Account no. 30691667417. The Petitioners deposited the said cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, for enacashment of the cheque value.

 

5.    That on 27^th day of September’ 2014, the banker of the Petitioners being the Respondent no. 2, herein credited Rs. 2,00,000/- ( Rupees Two Lakhs ) only, instead of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, on clearing of the said cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, and therefore your petitioners got astonished to know such clearance of lower amount of money.

 

6.    That the petitioners enquired about such purported clearing of the said cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, with their banker being State Bank of India, Shibrampur Branch Janavilla, Village & Post Office – Joteshibrampur, Biren Roy Road West, Kolkata – 700 141, and whereas the banker of the petitioners stated as due to mistake of officials who sit for clearing has been occurred such wrong entry as of Rs. 2,00,000/- instead of Rs. 20,00,000/- and therefore the banker is trying to resolve such anomaly, as soon as possible, and to credit the balance Rs. 18,00,000/- in the Saving Bank Account of the petitioners.

 

7.    That the petitioners visited the branch of the respondent no.2, herein on several occasions, with a request to credit the balance amount of Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, in their Saving Bank Account, but all in vain.

 

8.    That on 31^st day of October‘ 2014, the respondent no.2, herein served one letter being reference no. BR17/156, dated 31-10-2014, captioned as Fate of Cheque No. 000834, dated 24-09-2014, stating inter alia as by mistake in CTS amount was inserted as Rs. 2,00,000/- against Cheque no. 000834, and the same was credited to the joint account of your petitioners, and given a copy of one another letter being reference no. BR17/151, dated 28-10-2014, addressed to the respondent no.4, herein captioned as Less payment Cheque no. 000834, dated 24-09-2014, by Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, presented on 26-09-2014, stating inter alia stated about mistake and requesting for balance payment thereof, with a xerox copy of said cheque and entry of the bank.

 

9.    That the Petitioners states and submits that the petitioners are in urgent need of money, and for such reasons alone they arranged themselves to sold out the property to the purchaser, and whereas the purchaser made payment of the consideration money of such property through obtaining housing loan from the respondent no. 4, herein, and the respondent no. 4, herein in discharge of it’s obligation and on behalf of the said purchaser issued one cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, in favour of the petitioners. The petitioners presented and deposited such cheque to their banker being the respondent no. 2, herein for clearing and encashment of the value of the said cheque, but less amount has been credited by the banker in the bank account of the petitioners, and such act was admitted by the banker as has been occurred due to mistake but such mistake has not been resolved till date and the petitioners are suffering in several aspects and manners.

CAUSE OF ACTION :

 

That the Cause of action for the present proceeding arose as on 27^th day of September’ 2014, while the respondent Bank credited less amount of the purported Cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, and lastly on 31-10-2014, while the respondent bank served one Letter being reference no. BR17/156, dated 31-10-2014, intimating and admitting such facts, but did not resolve their own mistake, and continuing as such balance amount of Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, has not been still credited by the respondent bank in the saving Bank Account of your Petitioners.

 

DOCUMENTS RELIED ON :

 

1.   a copy of Pass Book Xerox - Annexure – “A”

 

2.   a copy of Letter dated 31-10-2014, and Letter dated 28-10-2014, and copy of Cheque and Bank entry, - Annexure – “B”

 

RELIEF SOUGHT FOR :

 

To direct the respondent / opposite party no.1 to credit the balance value of the Cheque being no. 000834, dated 24-09-2014, drawn on United Bank of India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, as of Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, together with the prevailing Bank rate of interest from the date of 27^th day of September’ 2014, till realization, to your petitioner;

 

To direct the opposite parties / respondents to pay compensation, as for the harassment, troubles, loss of business, physical inconvenience and mental agony, suffered by the petitioner from the purported activities and others by the opposite parties as assessed as Rs. 10,00,000/- ( Rupees Ten Lakhs ) only to your petitioners;

 

To direct the opposite parties to pay Rs. 10,00,000/- ( Rupees Ten Lakhs ) only, towards pecuniary damages, arising out of breach of duty by the respondents / opposite parties, to the Petitioners ;

 

To grant the cost of the proceedings ;

 

To grant any other relief or alternate relief to the applicant / petitioner as found out by your Honour, in the facts and circumstances of the Complaint.

 

DURING TRIAL :

 

1.   Written version of the Opposite Party no. 1 & 2 being State Bank of India – submitted on 13-10-2015 – relevant paragraph numbers 8, 9, 10, and 11, and first paragraph at page number 5, which states as “ Be it mentioned here that the Opposite Party Bank already credited Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, on 09-02-2015, in the joint account being No. 30691667417 of the petitioners”. It is mention that in those relevant paragraph number 8, 9, 10, and 11, the opposite party being State Bank of India admitted the facts as assailed by the petitioners in their petition of complaint.

Documents relied on by the State Bank of India –

a)   Letter dated 31-10-2014,

b)   Letter dated 28-10-2014,

c)   Photocopy of Cheque,

d)   Statement showing credit of Rs. 18,00,000/-

 

2.   Written version of the Opposite Party no. 3, being United Bank of India – submitted on 13-10-2015 – relevant paragraph number 12 & 17, and Annexure being the statement thereof, which has relied on by the opposite party in support of the facts that in terms of clearing Rs. 2,00,000/- ( Rupees Two Lakhs ) has been given through one instrument being the said purported cheque, so far.

 

Paragraph no. 12 – That with regard to the contents of paragraph 23 of the instant complaint the opposite party no. 3, states that the contents of letter dated 28-10-2014 are denied and disputed. It is pertinent to mention here that the opposite party no.3 had cleared the said cheque of the complainants according to the clearing instruction of the Reserve Bank of India and debited Rs. 2,00,000/- from the account of the opposite party no.4. thus the opposite party no. 3 cannot pay any further amount after debiting from the account of the opposite party no.4 in one instrument. The opposite party party no.3 states that the opposite party no.3, did not play any delay tactics or nasty game by saying that earlier claim with SBI which should be settled first then the opposite party no.3 would pay the difference amount as alleged by the State Bank of India in letter dated 28-10-2014. The copy of statement of A/C of the o.p. no. 4 is annexed hereto as ANNEXURE A.”

 

Paragraph no. 17 – “That since the complainants have no account with United Bank of India, there exists no relation of consumer and service provider between the complainants and the opposite party no.3 and as such the complainants have not hired or availed any services for a consideration from united bank of india, Kolkata branch.”

 

3.   Written Version of the Opposite Party no.4 – submitted on 13-10-2015 – relevant paragraph numbers 3(i), 5, and 8.

 

Contents of paragraph number 3(i) – I say that the Opposite Party no.4 is a Housing Finance Company which has been granted certificate of registration under the National Housing Bank Act 1987 and in the course of such business, the respondent no.4 had handed over a cheque for Rs. 20,00,000/- drawn on United Bank of India, Kolkata in favour of the complainants, being the entire loan amount obtained by one Pappu Kumar Shaw who was the purchaser of Complainant’s property. Such facts has been admitted by the complainants at pargraph 4 & 10 of the complaint.

 

Contents of paragraph number 5 – with reference to paragraph number 4 of the complaint, I say that the Opposite Party is a Housing Finance Company which has been granted certificate of registration under the National Housing Bank Act 1987 and inb the course of such business had provided a housing loan to Mr. Pappu Kumar Shaw for an amount of Rs. 20,00,000/- and therefore handed over a cheque of Rs. 20,00,000/- drawn on United Bank of India, Kolkata Branch and in the name of the complainants herein who were selling their property to the said Mr. Pappu Shaw.

 

Contents of paragraph number 8 – with reference to paragraph number 10 of the complaint, I say that the Complaint admits that the opposite party no.4 herein, “in discharge of it’s obligatrion and on behalf of the said purchaser issued one cheque being no. 000834 dated 24-09-2014 for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700001, in favour of the petitioners.”

 

4.    EVIDENCE - Evidence submitted by the Complainants and the Opposite Party number 1,2, and 3, herein. The Opposite Party no. 4, did not submit any Evidence in present consumer proceeding. The evidences submitted by the complainants are replica of the petition of complaint and the evidence submitted by the opposite party nos. 1, 2, and 3, are replica of their written version.

 

5.   Questionnaire and reply has been occurred in between the Complainants and the Opposite Party nos. 1, 2, and 3, and whereas the Opposite Party no. 4, did not participate in such endavour, so far.

 

6.   It is pertinent to submit that the Opposite Party no.3, United Bank of India, placed one petition bearing MA no. 883 of 2015, arising out of the present Consumer proceeding no. CC/377/2014, praying inter alia dismissal of the petition of complaint as against the Opposite Party no.3, herein. And whereas the Complainants filed their objection, and thereafter upon necessary hearing, the Hon’ble State Commission, passed necessary order on 08-04-2016, as “ It has been stated in the petition that the Complainants allegedly due to urgent need of money sold their property to one Sri Pappu Kumar Shaw for a consideration of Rs. 30 lakh. The said purchaser Pappu Kumar Shaw obtained loan from the OP No. 4 Dewan Housing Finance Ltd. And in pursuance thereof the OP No. 4 issued a cheque bearing no. 000834 dated 24/09/2014 of Rs. 20 lakh drawn on UBI, Kolkata Branch in favour of the Complainants towards payment of the consideration money of the property. The Complainants thereafter deposited the said cheque in their joint saving account with SBI, Shibrampur Branch.The OP No. 2, that is SBI, Shibrampur Branch credited only Rs. 2 lakh instead of Rs. 20 lakh in the saving account of the Complainants. Since the Complainants have no account with the UBI there is no consumer – service provider relationship and the case against OP No. 3 is not maintainable.

 

The Learned Counsel for the OP No. 3, has submitted that there was no privity of contract between the complainants and the OP No. 3. It is submitted that so far as the clearance of the cheque is concerned the op no. 3 acted in accordance with the instruction of op no.2 SBI. It is contended that op no. 3 is not a necessary party in this case.

 

The Learned Counsel for the SBI OP No. 2 has submitted that while clearing the cheque the amount war wrongly typed as Rs. 2 lakh instead of Rs. 20 lakhs and it was a sheer mistake. It is contended that UBI OP No. 3 could have detected the mistake and there was scope on the part of OP No.3 to release the remaining amount of Rs. 18 lakh in favour of the Complainants.

 

The Learned Counsel for the Complainants has submitted that the entire facts have been stated in the petition of complaint and the presence of OP No.3 is required in this case.

 

We have heard the submission made by both sides and perused the papers on record. Having regard to the submission made by both sides and on perusal of the papers on record, we are of the considered view that for proper and effective adjudication the presence of OP No.3 is required being a necessary party.”

 

7.   SUBMISSION : in the facts and circumstances, your petitioners are entitled to get relief in terms of their prayer as sought for.

 

 

Through _______________

 

 

Advocate

Date : 03-09-2020

Place : Kolkata.