Affidavit of Service in Commercial Court

 

IN THE LEARNED COMMERCIAL COURT, ALIPORE, SOUTH 24 PARGANAS

AliporE, Kolkata - 700027.

 

IA no. 1 of 2022

in

Misc. Case (Arbitration) No. 24 OF 2022

{ Old Case no. Misc. Case no. 13 of 2022 }

(CNR no. WBSP18-000060-2022)

 

ANIRUDDHA GUHA ROY

--- ---- APPLICANT

– VERSUS –

ADITYA BIRLA FINANCE LIMITED

----- ---- RESPONDENT

Affidavit of Service

AFFIDAVIT

I, Sri Aniruddha Guha Roy, Son of Late BimalRanjanGuha Roy, aged about 59 years, by faith Hindu, by Occupation Business, residing at premises number 11/C, West Row Circus Avenue SO, Kolkata – 700017, Police Station - Karaya, District – South 24 Parganas, West Bengal, do hereby solemnly affirm and say as follows:

 

1.   That I am being the applicant of the above referred application and I am well acquainted with the facts and circumstances of the case. I am competent to swear this affidavit.

 

2.   That the above referred application has been placed to set ad-interim injunction on immovable properties of which the applicant’ with his wife are mortgagor to the Respondent. The said application is in need of protection of properties till adjudication between the parties herein. The said application has been fixed on 16-05-2022.

 

3.   That on 16-05-2022, the Hon’ble High Court Calcutta declared Holiday on account of “Budha Purnima”, therefore the applicant lost the opportunity of hearing fixed on 16-05-2022.

 

4.   That the application has been taken on 17-05-2022 by the Learned Court and thereby pleased to pass necessary direction upon the applicant to serve copy on the respondents and fixed hearing on the said application on 19-05-2022.

 

5.   That my Learned Advocate Ashok Kumar Singh, prepared a communication for the said application along with serve copy of the Order dated 17-05-2022, which as to serve on the Respondent’s Learned Advocate on record by hand, The Original Communication Letter dated 17^th day of May’ 2022, acknowledgement endorsed is enclosing herewith and marked as Annexure – “A”.

 

6.   That it is also submitted that the Learned Advocate served such communication through Email on 17^th day of May’ 2022, upon the Respondent’s Learned Advocate on record as well as to the respondent, with a PDF copy of the said Letter with server copy of the order dated 17-05-2022. Printout of such email services is enclosing herewith and marked as Annexure – “B”.

 

7.   That the above statements are true to my knowledge and belief.

 

DEPONENT

Prepared in my Office	Deponent is known to me
Advocate	Advocate
Solemnly affirmed before me this         _________day of May’ 2022
	N O T A R Y

District :South 24 Parganas

IN THE LEARNED COMMERCIAL COURT, ALIPORE, SOUTH 24 PARGANAS.

 

 

IA no. 1 of 2022

in

Misc. Case (Arbitration) No. 24 OF 2022

{ Old Case no. Misc. Case no. 13 of 2022 }

(CNR no. WBSP18-000060-2022)

 

 

In the matter of :

Aniruddha Guha Roy,                                                              ______Applicant

-      Versus –

 

Aditya Birla Finance Limited

______Respondent

 

 

 

 

 

Affidavit of Service

 

 

 

 

 

 

 

 

Advocate – on – record :

 

Ashok Kumar Singh, Advocate

High Court Bar association Room No. 15, High Court at Calcutta

Mobile Number : 9883070666 / 9836829666

Email :aksinghadvocate@rediffmail.com

 

 

A shared household is a household belonging to a husband’s relative where the wife has lived in a domestic relationship

 

A shared household is a household belonging to a husband’s relative where the wife has lived in a domestic relationship: 

A shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. There is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband and the same was upheld by High Court of Delhi through the learned bench led by Justice Yogesh Khanna in the case of RAVNEET KAUR vs. PRITHPAL SINGH DHINGRA [RFA 832/2018] on 24.02.2022.

The facts of the case are that the respondent claims to be an absolute and sole owner of the property vide a registered sale deed. He filed a suit for eviction against the defendant viz. his daughter-in-law. A decree of possession with damages equivalent to the market rent of the alleged illegal possession was passed against the appellant and also a decree of permanent injunction to restrain her from creating any third party right in such property.

It is the case of the appellant she being a legally wedded wife of respondent’s son has been residing with her two minor daughters in the property. This appeal is filed for setting aside the impugned judgment that the property was a self-acquired property of the respondent.

The appellant’s counsel submitted that the said property was purchased out of joint family funds and from sale proceeds of the ancestral property and after the death of S. Kesar Singh the subject property was purchased by the respondent from such ancestral funds, hence the suit property is a joint family property in which the appellant has also a right to reside.

In view of the facts and circumstances, the Court held that it would be appropriate if an alternative accommodation is provided to the appellant as per Section 19(1)(f) of the Protection of Women from Domestic Violence Act.

The Court observed, “The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. There is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband.”

 

FORM OF DEMAND NOTICE / INVOICE DEMANDING PAYMENT UNDER THE INSOLVENCY AND BANKRUPTCY CODE, 2016

 

                                                                            FORM 3

(See clause (a) of sub-rule (1) of rule 5)

FORM OF DEMAND NOTICE / INVOICE DEMANDING PAYMENT UNDER THE INSOLVENCY AND BANKRUPTCY CODE, 2016

(Under rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016)

 

[Date]

To,

[Name and address of the registered office of the corporate debtor]

From,

[Name and address of the registered office of the operational creditor]

Subject: Demand notice/invoice demanding payment in respect of unpaid operational debt due from [corporate debtor] under the Code.

Madam/Sir,

1.                    This letter is a demand notice/invoice demanding payment of an unpaid operational debt due from [name of corporate debtor].

2.                    Please find particulars of the unpaid operational debt below:

 

PARTICULARS OF OPERATIONAL DEBT
1.	TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE, AND THE DATE FROM WHICH SUCH DEBT FELL DUE
2.	AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH THE WORKINGS FOR COMPUTATION OF DEFAULT IN TABULAR FORM)
3.	PARTICULARS OF SECURITY HELD, IF ANY, THE DATE OF ITS CREATION, ITS ESTIMATED VALUE AS PER THE CREDITOR. ATTACH A COPY OF A CERTIFICATE OF REGISTRATION OF CHARGE ISSUED BY THE REGISTRAR OF COMPANIES (IF THE CORPORATE DEBTOR IS A COMPANY)
4.	DETAILS    OF    RETENTION    OF     TITLE ARRANGEMENTS (IF ANY) IN RESPECT OF GOODS TO WHICH THE OPERATIONAL DEBT REFERS
5.	RECORD   OF   DEFAULT WITH                             THE INFORMATION UTILITY (IF ANY)
6.	PROVISION OF LAW, CONTRACT OR OTHER   DOCUMENT UNDER WHICH DEBT HAS BECOME DUE
7.	LIST OF DOCUMENTS ATTACHED TO THIS APPLICATION IN ORDER TO PROVE THE EXISTENCE OF OPERATIONAL DEBT AND THE AMOUNT IN DEFAULT

 

3.                    If you dispute the existence or amount of unpaid operational debt (in default) please provide the undersigned, within ten days of the receipt of this letter, of the pendency of the suit or arbitration proceedings in relation to such dispute filed before the receipt of this letter/notice.

4.                    If you believe that the debt has been repaid before the receipt of this letter, please demonstrate such repayment by sending to us, within ten days of receipt of this letter, the following:

(a)                  an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or

(b)                 an attested copy of any record that [name of the operational creditor] has received the payment.

 

5.                    The undersigned, hereby, attaches a certificate from an information utility confirming that no record of a dispute raised in relation to the relevant operational debt has been filed by

any person at any information utility. (if applicable)

6.                    The undersigned request you to unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate insolvency resolution process in respect of [name of corporate debtor].

Yours sincerely,

 

Signature of person authorised to act on behalf of the operational creditor

Name in block letters

Position with or in relation to the operational creditor

Address of person signing

 

 

Instructions:

 

1.           Please serve a copy of this form on the corporate debtor, ten days in advance of filing an application under section 9 of the Code.

2.           Please append a copy of such served notice to the application made by the operational creditor to the Adjudicating Authority.

What Are The Essential Conditions Of A Valid Hindu Marriage Under Hindu Marriage Act 1955

 

What Are The Essential Conditions Of A Valid Hindu Marriage Under Hindu Marriage Act 1955

Marriage is considered as a sacrament in Hindus. It is the last of the 10 sacraments in the Hindu religion for regeneration of men and obligatory for every Hindu who does not desire to adopt the life of a sanyasi. The first and foremost condition for a Hindu Marriage is that the both parties should be Hindus. This was held in Gullipilli Sowria Raj vs Bandaru Pavani [AIR 2009 SC 1085]. Hindu Marriage Act, 1955 has laid down few necessary conditions for a valid Hindu Marriage. This is given under section 5 of the Act. In Lila Gupta vs Laxmi Narain & Ors [AIR 1978 SC 1351], the apex court held that all conditions under section 5 of the Act are not mandatory.

The following are the necessary conditions for a valid Hindu Marriage:

1. Monogamy: Section 5(i) of the Act prohibits polygamy and polyandry. It says that neither party should have a living spouse at the time of the marriage. Failure of this condition would make the marriage null and void under section 11 of the Act. Apart from this, the party would be liable for bigamy under sections 494 and 495 of the Indian Penal Code, 1860 and section 17 of the Hindu Marriage Act, 1955. Schedule Tribes are exempted from this but they must have an early and lasting custom for this. In cases like Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors [AIR 2006 SC149] and Yamunabai Anantrao Adhav A vs Ranantrao Shivram Adhav & Anr [AIR 1988 SC 644], the apex court held that during the subsistence of first marriage, the second marriage would be null and void.

Offence of Bigamy would be constituted only when the first marriage is solemnized according to proper ceremonies and rituals. This was held by court in cases like Dr. A.N. Mukerji vs State [AIR 1969 All 489] and Santi Deb Berma vs Smt. Kanchan Prava Devi [AIR 1991 SC 816].

Also Read – Section 13B of The Hindu Marriage Act – Divorce By Mutual Consent

2. Mental Capacity: This clause was inserted in the Act through The Marriage Laws (Amendment) Act, 1976. As per the clause, three conditions must be fulfilled as per section 5(ii) of the Act for a valid Hindu Marriage.

The conditions are: neither party, at the time of marriage (a) is incapable of giving a valid consent due to his/her unsound mind (b) has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children (c) has been subjected to recurrent attacks of insanity. If any of these conditions are not fulfilled then marriage is voidable under section 12(1)(b) of the Act. The clause of epilepsy was removed through The Marriage Laws (Amendment) Act, 2001. In a case in this regard, Allahabad High Court held that the validity of marriage will be nullified only when it is impossible for one party to remain in the marriage due to the unsoundness of the other party. Before the enactment of the Amendment, in the case of Anima Roy vs Probodh Mohan Roy [AIR 1969 Cal 304], the Calcutta High Court held that since the expression “insane” has not been defined under the Act, its meaning and purport would be the same as under Section 3(5) of the Insanity Act which provides that any person suffering from mental derangement of any kind may be regarded as idiot or insane. In Smt. Alka Sharma vs Abhinesh Chandra Sharma [AIR 1991 MP 205], the High Court of Madhya Pradesh held that the court can nullify the marriage if either condition or both conditions are fulfilled due to mental disorder of the party.

3. Age to the parties: At the time of enactment of the Act, the legal age for the marriage of boy and girl was 18 years and 15 years respectively. However, later on, The Marriage Laws (Amendment) Act, 1976, changed the minimum age to 21 years and 18 years respectively. According to the ruling in Pinninti Venkataramana and Anr vs State [AIR 1977 AP 43], breaching of the condition didn’t amount to nullity of the marriage but it is an offence under section 18(a) of the Act i.e. simple imprisonment up to 15 days or a fine of Rs. 1000/- or both. According to section 10 of The Prohibition of Child Marriage Act, 2006, any person performing, conducting, directing or abetting a child marriage shall be punished with rigorous imprisonment up to two years and fine of one lakh rupees.

4. Prohibited Degrees of Relationship: Section 5(iv) of the Act prohibits solemnization of marriage of persons falling within prohibited degree of relationship. If any marriage is solemnized under this then the marriage would be void under section 11 of the act. Apart from this, violation of this clause would amount to simple imprisonment upto 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act. Section 3(g) defined persons falling within prohibited degree of relationship. They are: (a) If one is a lineal ascendant of the other; or(b) If one was the wife or the husband of a lineal ascendant or descendant of the other; or(c) If one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other, (d) If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. It also includes (i) Relationship by half or uterine blood as well as by full blood; (ii) Illegitimate blood relationship as well as legitimate; (iii) Relationship by adoption as well as by blood.

In simple words we can say that a man cannot marry either of the following persons: (i) His lineal ascendant (ii) Wife of his lineal ascendant (iii) Wife of his lineal descendant (iv) Brother’s wife (v) Wife of his father’s brother(vi) Wife of his mother’s brother(vii) Wife of his grandfather’s brother (viii) Wife of his grandmother’s brother (ix) Sister (x) Sister’s daughter (xi) Father’s sister (xii) Mother’s sister (xiii) Father’s sister’s daughter (xiv) Father’s brother’s daughter and (xv) Mother’s brother’s daughter.

Similarly, a woman cannot marry either of the following persons: (i) Her lineal ascendant (ii) Husband of her lineal ascendant (iii) Husband of her lineal descendant (iv) Brother (v) Father’s brother (vi) Mother’s brother (vii) Nephew (viii) Sister’s son (ix) Uncle’s son (x) Father’s sister’s son (xi) Mother’s sister’s son and (xii) Mother’s brother’s son.

In Shakuntala Devi vs Amar Nath [AIR 1982 P H 221], Punjab and Haryana High Court held that two persons can marry within the prohibited relationship but there should be a proof of established custom i.e. very old and beyond human memory.

5. Prohibition of Sapinda Relationship: Section 5(v) of the Act, marriage between the persons having sapinda relationship is prohibited unless there is a custom which allows them to do so. Any marriage solemnized under this would be void under section 11 of the Act and violation of this clause would amount to simple imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act. Section 3(f)(ii) of the Act says that Two persons are said to be “sapindas” of each other if one is a linear ascendant (i.e. is a blood relative in the direct line of descent – the children, grandchildren, great-grandchildren, etc. of a person) of the other within the limits of “sapinda” relationship, or if they have a common lineal ascendant who is within the limits of “sapinda” relationship with reference to each of them. According to section 3(f)(i) sapinda relationship extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth generation (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. If there is any common ancestor of 2 persons then both are sapinda to common ancestor and they would be sapinda of each other.