MODEL DEEDS & DRAFTS

AZAAN CALL IN MASJIDS AND DRAFT COMPLAINTS TO POLICE TO STOP SOUND POLLUTION

2020-02-12T18:37:00.002+05:30

COPY CAN BE DOWNLOADED CLICK BELOW LINK

https://docs.google.com/document/d/1E9cHQ95R1lZHoQHo53CwY0rzc4hONID_XrHsIcM0Qvo/edit?usp=sharing

PETITION BEFORE AC TO RECTIFY FRAUD IN ILLEGAL MUTATION TAMPERRING AND CREATION OF RECORDS OVER FOREST LAND

2020-02-07T07:53:00.000+05:30

This fact of tampering is also authenticated by a document obtained from forest department wherein vide Karnataka Government order in RD 106 LGP 88 Bangalore dated 07-06-1993, in Nandihalli Grama, Urdigere Hobli, Tumkur Taluk, an extent of 73.61 hectares in sy.no. 42, and extent of 9.66 hectares in sy.no. 32, and an extent of 124 hectares in sy.no. 18 being transferred to forest department, stating government reserves its rights to get back land for "Government Purpose" or for "Public Purpose". The Government order is attached.

REPRESENTATIONS TO BE MADE BY EDUCATIONAL INSTITUTIONS TO CLAIM TAX EXEMPTIONS UNDER LAW

2020-02-01T16:10:00.000+05:30

Revocable Living Trust Agreement for an Individual - MODEL TRUST DEEDS IN ENGLISH

2020-02-01T10:43:00.000+05:30

MODEL TRUST DEED IN KANNADA - ಟ್ರಸ್ಟ್ ಸ್ಥಾಪನಾ ಪತ್ರ ಮಾದರಿ

2020-02-01T10:14:00.003+05:30

DRAFT REGULAR FIRST APPEAL IN MONEY RECOVERY SUIT

2020-01-28T14:28:00.003+05:30

WRITTEN STATEMENT - OBJECTIONS - INTERIM IA - WRITTEN ARGUMENTS - IN REAL ESTATE TRANSACTIONS

2020-01-28T14:02:00.001+05:30

DARGHA ENCROACHMENT OVER ROAD AND PETITION TO REMOVE IT BEFORE DEPUTY COMMISSIONER

2020-01-28T13:35:00.000+05:30

DRAFT OBJECTIONS TO PROBATE APPLICATION WHEN PETITIONER CLAIMING AS SECOND WIFE OF DECEASED

2020-01-28T12:52:00.000+05:30

AMENDMENT OF PLEADINGS IN CIVIL COURT AND WHAT LAWS AND PRECEDENT GUIDELINES APPLICABLE TO IT IN INDIA

2015-04-10T12:40:00.001+05:30

AMENDMENT CAN BE ALLOWED EVEN AT EXECUTION STAGE 2005 SC
Three-Judge Bench decision of Supreme Court in Sajjan Kumar vs. Ram Kishan [2005 (13) SCC 89]. In this decision the proposed amendment related to correction of the description of the suit premises in the plaint. The amendment was sought on the plea that the description of the property given in the rent note itself was incorrect and the same description was repeated in the plaint and there would be complications at the stage of execution to avoid which the description of the suit premises as given in the plaint needed to be corrected. Prayer for amendment was opposed by the defendant-respondent on the principal ground that although the defendant had taken the plea in the written statement itself that the suit premises were not correctly described, yet the plaintiff- appellant proceeded with the trial of the suit and did not take care to seek the amendment at an early stage. The trial court rejected the prayer for amendment and the High Court dismissed the civil revision against the order of the trial court. Allowing the prayer for amendment Supreme Court in paragraph 5 of the decision observed as follows : “Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit.”

MERIT OF THE AMENDMENT IS HARDLY A RELEVANT CONSIDERATION 2008 SC
Usha Devi v. Rijwan Ahmad and Others AIR 2008 SC 1147 it was held as follows: "As to the submissions made on behalf of the respondents that the amendment will render the suit non- maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the defendants-respondents to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement."

FACTORS TO BE DEALT WITH WHILE DEALING AMENDMENT APPLICATION 2009 SC
The Supreme Court, in Revajeetu Builders and Developers v. Narayanaswamy And Sons And Others, (2009) 10 SCC 84, observed in para 63 as under: "Factors to be taken into consideration while dealing with applications for amendments-
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment-
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and,
(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. (These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.)"

ORDINARILY, THE RIGHTS AND OBLIGATIONS OF THE PARTIES ARE TO BE WORKED OUT WITH REFERENCE TO THE DATE OF INSTITUTION OF THE SUIT 2008 SC
Mohanakumaran Nair vs. Vijayakumaran Nair, reported in AIR 2008 SC 213 “Ordinarily, the rights and obligations of the parties are to be worked out with reference to the date of institution of the suit. See Jindal Vijayanagar Steel (JSW Steel Ltd.) Vs Jindal Praxair Oxygen Company Ltd. [2006(8)SCALE668] Determination in regard to maintainability of the suit, it is trite, must be made with reference to the date of the institution of the suit. If a cause of action arises at a later date, a fresh suit may lie but that would not mean that the suit which was not maintainable on the date of its institution, unless an exceptional case is made out therefor can be held to have been validly instituted. Discretion, as is well known, cannot be exercised, arbitrarily or capriciously. It must be exercised in accordance with law. When there exists a statute, the question of exercise of jurisdiction which would be contrary to the provisions of the statute would not arise.”

AMENDMENT APPLICATION AFTER COMMENCEMENT OF TRIAL -TEST OF DUE DELIGENCE 2008 SC
Chander Kanta Bansal vs. Rajinder Singh Anand, reported in 2008 (5) SCC 117 “It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial.”

REAL TEST FOR ALLOWING AMENDMENT APPLICATION IS WHETHER REAL CONTROVERSY BETWEEN THE PARTIES MAY BE RESOLVED 2009 SC
Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5: “5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.”
AMENDMENT CAN BE ALLOWED AT ANY STAGE – PROVIDED 2008 SC
North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511, at para16: “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings.”
In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil AIR 1957 SC 363, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.”

Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16: “15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.”

The Honourable Supreme Court in the case of Vidyabai and others vs. Padmalatha and another in 2009(2) SCC 409 held as follows:- “it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, Proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the Plaint.”

In the judgment reported in 2008(14) SCC 364, in the matter of Rajkumar (Dead) through Lrs. vs. S.K.Shrwagi and company Private Ltd and other, the Honourable Supreme Court held that “in case of amendments, after the commencement of trial, particularly after the completion of evidence, the question of prejudice to the opposite party may arise and in such an event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order 6 Rule 17 CPC and if the parties are able to satisfy the Court that in spite of the due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after the commencement of trial.”

Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right.

Ragu Thilak D.John vs. S.Rayappan and Others [(2001) 2 SCC 472]. In para 6, Court observed: "If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."

LAW OF LIMITATION AND AMENDMENT

L.J. Leach and Co. Ltd. & Anr. Vs. Messrs. Jardine Skinner and Co. - A.I.R. 1957 S.C. 357 has held :- "It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice." This view of Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. 2004 (3) SCC 392.

Pankaja and Anr. vs. Yellappa (D) by Lrs & Ors., as reported in AIR 2004 SC 4102 “While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said Entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years……. In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John Vs. S. Rayappan & Ors. 2001(2) SCC 472 (supra) has held :- "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." …………. that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entries 64 or 65 of the Limitation Act which question has to be decided in the trial”

WHETHER AMENDMENT ONCE INCORPORATED RELATES BACK TO DATE OF SUIT – NO – COURT CAN FIX ITS DATE OF COMMENCEMENT:-
Sampath Kumar vs Ayyakannu And Anr. AIR 2002 SC 3369, 9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.

AMENDMENT OF WRITTEN STATEMENT

In Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others: AIR 2007 SC 1663, It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case. ……. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties.

In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."

Akshaya Restaurant v. P. Anjanappa [1995 [Supp] (2) SCC 303] this Court held that even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement.

In Shrimoni Gurdwara Committee -vrs.- Jaswant Singh : (1996) 11 SCC 690, it has been held: "It is settled law that the defendant can raise mutually inconsistent pleadings in the written statement but it is for the court to consider whether the case can be properly considered in deciding the issue. But in this case the plea in the written statement is mutually destructive. In the first written statement, they have denied the title of himself. Therefore, they cannot set up a title in him and plead gift made by in favour of the petitioner-Committee. Under these circumstances, the High Court has rightly refused to grant the plaint. Moreover, there is no explanation given as to why they came forward with this plea at the belated stage after the parties had adduced the evidence and the matter was to be argued. Under these circumstances, there is no error of jurisdiction or material irregularity in the exercise of jurisdiction warranting inereference."

In Gautam Sarup -vrs.- Leela Jetly and others: (2008) 7 SCC 85, it has been pointed out that "an admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore". "What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."

Hon'ble Supreme Court in Vimal Chand Ghevarchand Jain & Ors. -vrs.- Ramakant Eknath Jajoo: 2009(3) Supreme 460 the principle has been reiterated. It has been held: "...... Pleadings of the parties, it is trite, are required to be read as a whole. Defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in considering as to whether the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore. [(See Ranganayakamma & Anr. V. K.S. Prakash (D) By Lrs. & Ors. [2008 (9) SCALE 144]"

In Baldev Singh and others vs. Manohar Singh and another: AIR 2006 SC 2832 also it was pointed out that the amendment simply proposed an additional plea without having the effect of withdrawal of admission. At paragraph 13 of the decision it was pointed out: "In view of this decision, it can be said that the plea of limitation can be allowed to be raised as an additional defence by the appellants. Accordingly, we do not find any reason as to why amendment of the written statement introducing an additional plea of limitation could not be allowed. The next question is that if such amendment is allowed, certain admissions made would be allowed to be taken away which are not permissible in law. We have already examined the statements made in the written statement as well as the amendment sought for in the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the appellants which was sought to be withdrawn by way of amending the written statement."

In the decision reported in (2008) 5 SCC 117 ( Chander Kanta Bansal vs. Rajinder Singh Anand), the Apex Court has laid down as under:- “ As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restriction. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. … The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006) the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care, caution,; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Eds.13-A) "due diligence " in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. ….. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.”

(2010) 4 SCC 518 ( State of Maharastra vs. Hindustan Construction Company Limited). Apex Court has laid down that the Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the court. But like any other decision, such discretion has to be exercised consistent with settled legal principles.

Apex Court reported in (1978) 2 SCC 91 (Ganesh Trading Co. v. Moji Ram) “Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.”

In L.J. Leach and Co. Ltd. & Anr. v. Messrs. Jardine Skinner and Co., AIR 1957 SC 357, the Supreme Court held (para.16): "It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice."

In Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary & Ors., 1995 Supp (3) SCC 179, the Supreme Court held (para.3) : "As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. Be that so."

In K. Raheja Constructions Ltd. v. Alliance Ministries & Ors., AIR 1995 SC 1768 their Lordships of the Supreme Court held (para.4) : "It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent."

In Vishwambhar & Ors. v. Laxminarayan & Anr., (2001) 6 SCC 163, the Supreme Court held ( para.10) : "From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstances, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that."

In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors., AIR 2006 SC 1647, their Lordships of the Supreme Court held:
"17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
19.As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. if it is, the amendment will be allowed; if it is not, the amendment will be refused."

In Vidyabai & Ors. v. Padmalatha & Anr., 2009 (1) Supreme 238, their Lordships of the Supreme Court held (para.14): "It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

AWARDING OF COSTS AND AMENDMENT

Revajeetu Builders & Developers Vs Narayanaswamy & Sons & Others CIVIL APPEAL NO.6921 OF 2009. DECIDED ON 09-10-2009 IT IS OBSERVED:

In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs.

The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases.

WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY: 61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.

NO PREJUDICE OR INJUSTICE TO OTHER PARTY: 62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.

The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. (i) At what stage the amendment was sought? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii)The financial benefit derived by one par- ty at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (iv) The imposition of costs should not be symbolic but realistic; (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs. (vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into considera- tion while awarding the costs.

The purpose of imposing costs is to: a) Discourage malafide amendments designed to delay the legal proceedings; b) Compensate the other party for the de- lay and the inconvenience caused; c) Compensate the other party for avoid- able expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and d) To send a clear message that the par- ties have to be careful while drafting the original pleadings.

FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS: 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is im- perative for proper and effective adjudication of the case? (2) Whether the application for amend- ment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multi- ple litigation; (5) Whether the proposed amendment con- stitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

In similar circumstances, in a subsequent case Ganesh Trading Co. v. Moji Ram (1978) 2 SCC 91, this Court reiterated the law laid down in Pursuhottam Umedbhai & Co. v. Manilal & Sons AIR 1961 SC 325. The Court observed: "It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation; to be put on every defective state of pleadings. Defective pleadings are generally curable, if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."

In Jai Jai Ram Manohar Lal v. National Building Material Supply (1969) 1 SCC 869, A sued B in his individual name but afterward soughts leave to amend the plaint to sue as the proprietor of a Hindu Joint Family business. The amendment was granted and the suit was decreed. The High Court, however, reversed the decree observing that the action was brought by a `non-existing person'. Reversing the order of the High Court, Supreme Court (per Shah, J., as he then was) made the following oft- quoted observations: "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

In Haridas Aildas Thadani & Others v. Godraj Rustom Kermani (1984) 1 SCC 668 this Court said that "It is well settled that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.

In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others, (1981) 3 SCC 652 this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment.

RELIEF CLAIMED AND SUBSEQUENT CHANGES NECESSITATES AMENDMENT TO CLAIM OTHER RELIEF

Hon'ble the Apex Court in Rajesh D. Darbar And Others Vs. Narasingrao Krishnaji Kulkarni And Others (2003(7) SCC 219), held that where the nature of relief, as originally sought, had become obsolete or unserviceable or a new form of relief would be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it was but fair that the relief was moulded, varied or reshaped in the light of updated facts. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice.

Hon'ble the Apex Court in Kedar Nath Agrawal (Dead) And Another Vs. Dhanraji Devi(Dead) By LRs. And Another(2004(8) SCC 76), held that events happening after institution of a suit/proceeding, should be considered. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events. ......... the basis rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/ action. This, however, does not mean that events happening after institution of a suit/ proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:
(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or
(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) it is necessary to do so in order to do complete justice between the parties.

Court's judgment in Pasupuleti Venkateswarlu v. Motor & General Traders [(1975) 1 SCC 770 : AIR 1975 SC 1409] It was settled that the procedure was the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of molding it, is brought diligently to the notice of the Court, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. ......... Where a cause of action is deficient but later events have made up the deficiency, the court may, in order to avoid multiplicity of the litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine. ........... It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

Court in Rameshwar v. Jot Ram(AIR 1976 SC 49). The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well-established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well-settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the court. There is a well-recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey [(1987) 4 SCC 398), Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459] and Mohd. Gazi vs. State of M.P.[(2000) 4 SCC 342].

AMENDMENT OF WRITTEN STATEMENT & FILING OF ADDITIONAL WRITTEN STATEMENT

P.A. Jayalakshmi VS H. Saradha & Ors. JUSTICE S.B. Sinha JUSTICE Deepak Verma, New Delhi; July 21, 2009, Code of Civil Procedure, 1908: Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional pleadings - Suit
for partition - Application filed by defendant-appellant seeking leave to file additional written statement - Rejected by Courts below - Justification of - Held: On facts, justified - The application was filed at a much belated stage - Statutory limitations brought about by reason of amendments in CPC to be kept in mind. Respondents filed suit for partition in the year 2004. Appellant filed written statement in 2006 and on 1-3-2007, filed application purportedly in terms of Or.VIII, r.9 CPC seeking leave to file additional written statement with regard to a Will in regard to the suit property, which was not mentioned in the written statement. By that time examination of one witness was over. The Will was purportedly executed in 1993 and it was urged by the appellant that she discovered the existence of Will only on 5-2-2007. The said application was dismissed by the Trial Court. Revision petition filed by appellant was dismissed by the High Court. It was contended that the Courts below failed to take into consideration that in effect and substance, appellant's application should have been treated to be one for amendment of written statement as envisaged under Order VI, r.17 CPC and not one for leave to file additional pleadings as envisaged under Or.VIII, r.9 thereof; that the appellant having raised a contention that she discovered the existence of Will only on 5-2-2007, even the requirements of the proviso appended to
Or.VI, r.17 CPC must be held to have been satisfied and that by reason of the said application, the appellant did not bring about any change in the principal contention raised in her written statement as the said Will was sought to be brought on record wherefor requisite pleadings were necessary only to support her case that the property in question was not a joint family property. Dismissing the appeal, the Court held, With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order VI Rule 17 CPC. Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 CPC provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.

In the present case, for reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order VI, Rule 17 of CPC. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order VIII, Rule 9 of CPC . At no point of time, a contention was raised that she wanted to amend her pleadings.

Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. Noticeably one of the plaintiffs was examined on 1.3.2007. Despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them.

Sampath Kumar v Ayyakannu and Another, AIR 2002 SC 3369: (2002)7 SCC 559: 2002(4) KCCR 2839; wherein it has been held as follows:- "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date of which the application seeking the amendment was filed".

Siddalingamma and Another v Mamtha Shenoy, AIR 2001 SC 2896: (2001)8 SCC 561: 2002 SCC (Cri.) 14 "On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the Court excludes the applicability of the doctrine in a given case the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition. The High Court though set aside the order of the Trial Court but it is writ larger from the framing of the order of the High Court, especially the portions which we have extracted from the order of the High Court and reproduced in earlier part of this judgment, that the learned Single Judge of the High Court also was not seriously doubting the genuineness of the landlady's requirement on the material available on record but was not feeling happy with the contents of the eviction petition as originally filed an over-zealous attempt on the part of the landlady in projecting her sister's sons and grand-children as her own".

Electronics And Controls Vs. The Karnataka Industrial Area Development Board, Bangalore and Another 2010 (6) KarLJ 294, Thus, where possession is claimed in a suit as a resultant consequence of declaration it would be governed by Article 65 and not Article 58 of the Limitation Act. The judgment of the Hon'ble Apex Court in the case of Abdul Waheed Khan v Bhawani and Others, AIR 1966 SC 1718 would be squarely applicable to the facts of the case.

PRINCIPLES GOVERNING AMENDMENT OF PLEADINGS IN A CIVIL SUIT 2012 SC

Justice P. Sathasivam, and Justice J. Chelameswar of Supreme Court of India in the case of Rameshkumar Agarwal vs Rajmala Exports P.Ltd.& Ors. Decided on 30 March, 2012. The court discussed the prinicples governing the Amendment of pleadings and held that "It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."

QUOTED CASE LAWS
In Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private Limited & Anr. (2008) 14 SCC 364, this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In paragraph 18, this Court held as under:- "...........It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation........."

In Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors. (2009) 10 SCC 84, this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows: "Factors to be taken into consideration while dealing with applications for amendments

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

In Vidyabai and others v. Padmalatha and another, (2009) 2 SCC 409, the Apex Court held that it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code would restrict the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

In B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, the Apex Court held as follows:

3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (died) by L.Rs., (2008) 8 SCC 511, the Apex Court held thus:

In so far as the principles which govern the question of granting or disallowing Amendments under Order 6, Rule 17, C.P.C. (as it stood at the relevant time) are concerned, these are well settled. Order 6, Rule 17, C.P.C., postulates amendment of pleadings at any stage of the proceedings. In Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 AIR 363, 1957 SCR 595 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

MARRIAGE ANNULMENT PETITION FILED IN A SPECIFIC CASE - WHEN WIFE USED INSANE TACTICS TO DESTROY HUSBAND LIFE

2013-07-23T08:23:00.000+05:30

Marriage Annulment Petition When Wife Used Insane Tactics to Destroy Husband Life by Sridhara babu. N - ಶ್ರೀಧರ ಬಾಬು. ಎನ್

OBJECTIONS TO DELAY CONDONATION APPLICATION

2012-02-25T01:01:00.002+05:30

OBJECTIONS OF 2ND TO 4TH RESPONDENTS TO DELAY CONDONATION APPLICATION FILED BY PETITIONER:-

1. The interim application is not maintainable since the affidavit accompanied the application does not speaks truth and its vague and not specific in disclosing accurate reasons for the absence of petitioner/plaintiff in the days wherein court has scheduled to plaintiff evidence.

2. The affidavit consist of mere allegations un-supported by documents, hence liable to be dismissed. The written statement and objections filed by these respondents to the main petition be read as part and parcel of this objections to delay condonation application.

3. The matter of condonation of delay, it is an established position that every day's delay has to be explained and a person who seeks the exercise of the discretion to condone the delay in his favour cannot run away by making a mere general statement or mere allegation unsupported by document or mere passing of his laches upon his advocate.

4. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone.

5. Even if delay is condoned no purpose will be served because, The main case is one for specific performance of contract upon the suit schedule property which is not binding on these respondents as per the decree made against the petitioner and 1st respondent herein on 25-10-2008 on the file of 2nd Addl Civil Judge (Jrdn) at Tumkur in OS 386/2007 regarding the same schedule property. Moreover from the date of the said decree upto three years that is upto 24-10-2011 the plaintiff has not sought the amendment of plaint in respect of the specific enforcement of contract in relation to only the share of 1st respondent in OS 168/2007 in this court. The same decree of another court is neither challenged by the petitioner in any forum. The relief claimed in the plaint cannot be amended after the statutory limitation. The case itself not maintainable under the law and hence the application to condone the delay application is liable to be dismissed.

6. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. – The petitioner herein has not disclosed in his pleadings the exact reasons and does not provided documents in support of his application to enable this respondents to take specific objections to the nature of documents with counter verifications for knowing the reasons for the delay.

Where fore the application to condone the delay is not maintainable and these respondents humbly seeks court intervention by way of dismissal of application in the interest of Justice.

OBJECTIONS FILED TO A MISCELLANEOUS PETITION WHICH SEEKS TO RESTORE PLAINT DISMISSED FOR NON PROSECUTION

2012-02-25T01:00:00.000+05:30

WRITTEN STATEMENT AND OBJECTIONS FILED BY 2ND TO 4TH RESPONDENTS TO THE MAIN PETITION:-
1. The application/petition is not maintainable either on law or on facts. The petition is liable to be dismissed since the facts are not sworn to in the verifying affidavit, a copy of which is not supplied by the petitioner. The petition is liable to be dismissed since no document and list of document is supplied to the respondents, based upon which petitioner is claiming relief. The respondents reserved their rights to further raise objections if further documents were produced.

2. The petitioner has averred falsely that the alleged suit was scheduled on 25-06-2010 for plaintiff evidence, long before that date the case was scheduled to plaintiff evidence, petitioner herein purposefully misleads the court by false set of facts. Petitioner has not approached the court with clean hands.

3. In para number two of the petition petitioner clearly avers that “on that day itself (i.e 25-06-2010) the petitioner/plaintiff unable to attend the Hon’ble court to lead evidence” This is absolute false and misleading averment, petitioner is not specifically saying from which day he is unabled to come to court and for what specific reason. The petitioner is absent throught his case and not shown any due diligence in prosecuting the case from long time. After giving sufficient opportunity only the case was dismissed for default.

4. The petitioner puts entire blame on his previous counsel/agent, petitioner does not produces any reliable documentary evidence to prove his allegation on the previous counsel. No ordinary prudent advocate appearing for a plaintiff in a trial Court would ask, or direct, his client not to come to Court or his office till he receives a letter from him, especially after case is scheduled for evidence, In fact it is the duty of the client to find out the stage of litigation from his advocate. If his advocate fails to write letters, the party plaintiff is expected to contact his advocate, because, it is he, but not his advocate that would be put to jeopardy, if he fails to appear, or fails to know about his case.

5. Seeking to pass the entire blame on to the Advocate and trying to portray that the petitioner was a quasi literate person and hence totally unaware of the nature and significance of the pending proceedings is quite unacceptable, particularly, when the petitioner is a educated and doing Finance business and other business activity. Further, it is also not a case where the petitioner is not residing in tumkur and, therefore, could not remain in touch with his counsel in tumkur.

6. Moreover petitioner gives un-believable and false reasons stretching beyond his filing of suit date to the present day. He has actively filed amendment application in 2008. His absence is not clearly explained from which date he is absent, what reasons prevailed on such dates with clear documentary evidence. That the facts on record establish that the petitioner have been grossly negligent, indifferent towards the court proceedings and its precious time and there was total lack of diligence and, therefore, he do not deserve any indulgence by the Court

7. The petitioner has not made out any case or have shown any sufficient cause with documentary evidence for setting aside the dismissal order. On the contrary, the facts on record establish that the petitioner/plaintiff had been grossly negligent, indifferent towards the court time and there was total lack of diligence in prosecuting the case. The application/petition is barred by limitation. In other words, the delay in filing the application had not been properly explained, no sufficient cause was shown to condone the delay and hence ought to be rejected on that ground only.

8. Notwithstanding the negligence or misdemeanor of the advocate, the petitioner herein is not an innocent litigant and he cannot disown his advocate and seek relief as no such absolute immunity is either permissible under the law nor has been recognized. In the circumstances of this case the rule of precedent is clearly applicable and the petition has to be heard on its maintainability.

9. Except for a vague averment about the non-cooperation of his Advocate, there is not a whisper in the application/petition about the steps taken by the petitioner to pursue the matter with his counsel between 13-06-2007 to 25-06-2010 , i.e. for about 4 years 13 days. The condonation of delay application is filed for only 491 days upto 24-10-2011 from 25-06-2010 only delay is sought by petitioner to be condoned. But petitioner has not averred when the case is posted for evidence, for what reasons he has not appeared before the court and from that day he has not sought condonation of delay with reasons, hence the petition is liable to be dismissed.

10. Petitioner avers vaguely in the petition that he came to know of the dismissal of suit on 24-10-2011, from a third person a neighbourer of suit schedule property which is utter false. There is no proper explanation in the petition who said to whom and whom exactly the petitioner approached in the court office. But in the same para 3 petitioner avers that he filed copy application through his counsel (When he allegates against his counsel by stating he came to know from court office that his counsel made negligence in his case). And again petitioner avers that on 31-10-2011 only he came to know about the dismissal of the said suit. Which is clear contradictory aversions which cannot be believable under any circumstances.

11. The petitioner avers vaguely the illness of his father-in-law, father and his wife from 12-02-2005 to till date, but does not specifically aver that how he was unabled to make free to contact his advocate in the specific dates wherein the case was posted for evidence. Later he alleges that he is in court field defending a criminal case of 2009. Still he has not met his advocate is an unbelievable story. The petitioner gives some cousin accident story for his day today busy in looking after all those ill-health persons, these are fake stories created for misleading the court and this respondents absolutely deny all those reasons.

12. The main case is one for specific performance of contract upon the suit schedule property which is not binding on these respondents as per the decree made against the petitioner and 1st respondent herein on 25-10-2008 on the file of 2nd Addl Civil Judge (Jrdn) at Tumkur in OS 386/2007 regarding the same schedule property. Moreover from the date of the said decree upto three years that is upto 24-10-2011 the plaintiff has not sought the amendment of plaint in respect of the specific enforcement of contract in relation to only the share of 1st respondent in OS 168/2007 in this court. The same decree of another court is neither challenged by the petitioner in any forum. The relief claimed in the plaint cannot be amended after the statutory limitation. The case itself not maintainable under the law and hence the petition to revoke the non-maintainable case itself is liable to be dismissed.

13. Although plaintiff / petitioner is the party to the said suit on the file of 2nd Addl Civil Judge (Jrdn) at Tumkur in OS 386/2007, but no evidence and document was marked on behalf of petitioner and it shows petitioner is running suit framed with fabricated documents. If he is having really original un-tampered documents he should have produced it in the suit for partition and sought for his rights there itself upon the share of 1st respondent herein. Without making such efforts the plaintiff has lost every right to seek further relief after the lapse of three years which co-incides with the ordered date of dismissal of the suit.

14. The relationship between an advocate and a client is a sacred one. It is a relationship of trust and of responsibility. However, merely because the litigant has entrusted his case to an advocate it does not absolve the litigant from the responsibility of following the progress of the case through his advocate. Since it is the interest of the litigant which is involved, it is his duty to defend his interest with due diligence and promptness. He cannot afford to sleep like ‘Rip Van Winkle’ for it is a well known principle of law that the Courts do not come to rescue of those who sleep over their rights.

15. The petition and the relief sought in the main case is barred by limitation. Even amended relief cannot be sought by the lapse of time. The law of limitation is founded on public policy. The legislature does not prescribe limitation which the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury.

Wherefore the Hon’ble court may be pleased to dismiss the petition as not maintainable in the ends of justice.

PARTNERSHIP DEED FOR REFERENCE AND IMPROVEMENT

2012-02-25T00:43:00.002+05:30

PARTNERSHIP DEED

THIS DEED OF PARTNERSHIP is made this day………..day of ………2007 at TUMKUR, BETWEEN.................................................................... S/O .................................. .......... years residing at ……………………………………………
………………………………………………………. Of one part, hereinafter called as MANAGING PARTNER of the FIRM ( The term shall mean and include his successors in interest , legal heirs , administrators and assigns ) AND Mr .............. ......................................................S/O .......................................aged about ......... years, resident of …………………………………………………………………… …………………….of the other part, herein after called as PARTNER of the FIRM ( The term shall mean and include his heirs, assigns, successor in interest, and administrators )

NOW THIS INDENTURE WITNESSETH, that each of them -the said ............................... and ..................................................................................... (so far as the stipulations and provisions hereinafter contained are to be performed and observed by him his executors or administrators), doth hereby for himself his heirs executors and administrators covenant with the others of them their executors and administrators, and as a separate covenant, with each of the others his executors and administrators, that they the said ................................. and ............................... will become and remain partners for the purpose and period, and under and subject to the stipulations and provisions, hereinafter expressed and contained, that is to say:

1. NAME: The parties hereto shall carry on the business in co-partnership with official designation as stated above under the Name and style of ................................................................The business of the partnership shall be the trade or business of various products of computers and electronics and the said business and the works connected therewith shall be carried on at.............. and..............

2. REGISTRATION: May be registered with in ninety days from the commencement of business, the firm shall be registered under the INDIAN PARTNERSHIP ACT and INCOME TAX ACT and SERVICE TAX PROVISIONS and the rules under both statutes shall be applicable to the firm.
3. NATURE: The business shall be for trading with computer peripherals, accessories, spares, innovative products, electronic innovations, electronic spares and products Or such other activities as may be determined by partners from time to time.

4. CONTRIBUTION: The firm shall have such capital as may be contributed equally by each of the partners as and when necessary in this regard. Initially the capital of the partnership shall be the sum of Rs.............. and shall be contributed by the partners in equal proportions, and if any partner shall, with the consent of the others, advance and bring into the partnership any additional money by way of capital, or shall, with the like consent, leave in the business as capital, any part of the profits carried to his credit at any annual general account, the same, whilst retained by the partnership, shall be considered a debt due from the partnership, and shall bear interest at the rate of 18 percent, per annum, but shall be drawn out by him on receiving from the other partners three calendar months' notice in writing, and if not so drawn out, the partner entitled thereto shall receive only the rate of interest allowed thereon in account by the bankers of the partnership.

5. PLACE: The registered office of the firm shall be situated at present be carried on ................. ......................................... or such other place or places and the firm may open any number of branch offices as partners may deem fit. The areas of operation of firm’s activities are throughout Karnataka.

6. CAPITAL & INTEREST: The capital of the firm shall presently consist of sum of rupees …………………………………………………………………… to be contributed equally. Each partner shall be entitled to interest at the rate of 12 % per annum on the capital standing to his/her credit in the books of the firm to be paid at the first instance out of the gross profits except when the firm suffered any loss, such interest being cumulative the deficiency for one year will be made up out of the profits for the succeeding year or years.

7. OUTGOINGS: All out goings and expenses of the firm shall be paid out of the capital and profits of the business and in case of deficiency, by the partners in equal shares.

8. BANKERS: The Bankers of the firm shall be Messrs……………………….etc or such other bankers as the partners shall from time to time mutually agree upon, and all moneys, cheques and other securities belonging to the firm, except those required for current expenses, shall be paid into and deposited with the said Bank. All cheques thereon shall be drawn by the said ........................in the name of the firm.

9. PARTNERSHIP EXPENSES: The rates and taxes of the goods, and the expenses of keeping the buildings and machinery therein in good and substantial repair, and the salaries and wages of clerks apprentices servants and workmen, and all charges incurred by any partner clerk or servant in the business, and all other payments and outgoings incurred by any partner on the partnership account, and the interest upon the capital for the time being of the partners, and the allowances to them, shall be considered partnership expenses, and shall be carried to the debit of profit and loss accordingly; and all profits shall be shared all losses shall be borne by the partners in equal shares.

10. REMUNERATION: Each partner shall be entitled to remuneration as may be decided amongst partners in this regard, by reference to the nature of BOOK PROFIT ( BOOK PROFIT means the net profit in the profit and loss account of the firm computed in the manner laid down in chapter IV D of Income Tax Act-1961 ) as each partner is working partners of the firm actively engaged in the affairs of the firm.
11. DRAWINGS: Each partner shall be entitled to withdraw such sums from the firm account from time to time as may be mutually decided by the partners. The sum so drawn shall be debited to their capital/ current account in the books of the firm.

12. MONEY LENDING PROHIBITED: No partner shall lend any of the partnership monies or effects to any person, or sell or deliver on credit any goods belonging to the partnership to any person whom either of the acting partners for the time being shall have forbidden him by notice in writing to trust, and if any partner shall do so, he shall forthwith pay to the partnership the amount or value of the monies effects or goods so lent sold or delivered as aforesaid.

13. NO SURETY BY PARTNER: No partner shall become bail or security for any person without the consent in writing of all the other partners, and no partner shall do or suffer anything whereby the partnership property may be taken in execution, or in any way prejudiced or injured.

14. STOCK CHECK: On the 31st day of March in each year, or as soon afterwards as may be a valuation shall be made of the lease of the said factory and the fixtures and machinery thereof, and also, separate thereform, of the stock of goods and sold and payment due goods then on hand, and of the debts due to and other effects of the partnership, and of the debts and liabilities thereof, and such valuation shall be entered in the partnership books, and shall be signed by all the partners, and shall be considered the fixed value as between the partners and all persons claiming under them respectively until the next valuation shall be made entered and signed.

15. PROFIT & LOSS: The profit and loss sharing ratio shall be 50;50, the interest and remuneration payment made to partners, payment made to employees of the firm, office expenditures, taxes due and payable on the taxable income of the firm shall be treated as common items of expenditures before the net profit and loss account and balance sheet of the firm shall be prepared and the profit or loss derived there at shall be divided among the partners.

16. BORROWINGS: The MANAGING DIRECTOR: of the Firm may borrow funds from bankers, financial institutions, companies, and other private parties, either as a loan arrangement or as advance for firm activity and service, all documents relating to such transactions shall be executed by himself binding other partner to all those executed contracts and agreements.

17. PROFIT SHARING: The profits of the partnership shall be divided between the partners in equal shares, and shall be carried to the credit of the partners respectively in the partnership books immediately after the annual general rest hereinbefore directed, and may be drawn out at pleasure.

18. DURATION: The terms of the partnership shall be effective from the date of this deed and the partnership shall be ONE AT WILL.

19. DEATH OR RETIREMENT: Death or retirement or insolvency of partner will not effect of dissolving partnership, in case of death surviving partner / other partner may take the legal heir of the deceased partner / or any other person as partner, on such terms and conditions as may be agreed upon among them.

20. ADMISSION OF PARTNER: Any person or persons approved by all the partners may be admitted to the partnership as a partner on such terms and conditions as may be agreed upon among them.

21. APPOINTMENTS TO FIRM: The partners may appoint as number of staff as they deem fit in the course of business with the stipulated conditions and wages as may be decided by managing director.

22. PROFESSIONAL ENGAGEMENTS: The firm may engage/ appoint Chartered Accountants, Auditors, Legal Advisors, etc,. For the proper functioning and development of firm’s activity, by paying as may be agreed remuneration out of partnership firm’s funds.

23. ACTS: None of the partner shall, without the consent of the other partner sell, mortgage, assign his share or part with his share or interest in the partnership business or property or knowingly or willfully act, commit or permit any act whereby the partnership business is dislocated or disturbed to the detriment of the other partner or firm or any agreements made on behalf of the firm or any agreements and undertakings binding the firm as guarantor.

24. AUTHORISED SIGNATORY: Both the parties are agreed and have no objection and authorize at present and herein afterwards , until the proper arrangements were made in this regard by suitable power of attorney, the MANAGING PARTNER will execute all the legal documents on behalf of the FIRM, and also can communicate with any authorities and persons to obtain suitable licenses, permissions, business opportunities, borrowings, advances in Firm’s name.

25. CHANGE IN CONSTITUTION: The firm may change its constitution to any pvt ltd company or proprietorship concern or public ltd company after following suitable legal formalities in this regard as may be decided by the partners in future.

26. AMENDMENTS: All the clauses are in compliance with the co-operation and consent of both the partners and shall change the clauses by amendment at their mutual consent and will.

27. APPLICATION OF INDIAN PARTNERSHIP ACT 1932: Except to the extent mentioned above in this deed, the provisions of Indian partnership act 1932 which are not contrary to this deed are applicable to the firm and the partners.

28. ARBITRATION CLUASE: All disputes and questions arising out of or in connection with this deed or constituted partnership or between partners or between partner and legal heirs of other partner, or between firm and clientele shall be reffered to arbitration under the ARBITRATION AND CONCILIATION ACT 1966 and rules for the time being in force.

IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THESE PRESENTS ON THE DAY AND MONTH AND YEAR FIRST ABOVE WRITTEN
PARTNERS
S/d
(..................)
MANAGING PARTNER
“ ....................”

S/d
................... PARTNER
“ .......................”
WITNESSES:-
NAME………………………………
S/O…………………………………..
ADRESS…………………………….
………………………………………
……………………………………….
………………………………………. S/d
NAME………………………………
S/O…………………………………..
ADRESS…………………………….
………………………………………
……………………………………….
………………………………………. S/d

PUBLIC CHARITABLE TRUST AND A MODEL DRAFT

2012-02-25T00:41:00.002+05:30

PUBLIC CHARITABLE TRUST
THIS INDENTURE made at Bombay this ------- day of ----------- 1990 BETWEEN ____________________ called "the Settlor" (which expression shall unless it be repugnant to the context or meaning thereof be deemed to include his heirs, executors or administrator) of the One Part AND (1) ____________________ AND (2) _______________________ hereinafter called "the Trustees" (which expression shall unless repugnant to the context or meaning thereof be deemed to include the survivor of them and the Trustees or Trustee for the time being of these presents and the heirs, executors and administrators of the last surviving Trustee their, his or her assigns) of the second Part;
WHEREAS the 'Settlor' is desirous of settling for Public Charitable purpose a sum of Rs. _____(Rupees _________________only);
AND WHEREAS the Trustees have agreed to act as the Managing Trustees for life of the said Trust;
NOW THIS INDENTURE WITNESSEH that with a view to perpetuate the said desire and in consideration of the premises and for other diverse good causes and consideration him thereunto moving he the 'Settlor' doth hereby grant, assign transfer and hand over to the Trustees and the Trustees do hereby accept and take possession of the said sum of Rs. -------/- Rupees ---------- only) (hereinafter for brevity's sake called "the Trust Estate" which expression shall include all accretions thereto by way of donations or otherwise and the investments for the time being representing the same) to HOLD the Trust Estate upon the trusts and with and subject to the powers, provisions, agreements and declarations hereinafter contained of and concerning the same i.e.
(a) for relief of the poor
(b) education
(c) Medical relief
(d)the advancement of any other object of general public utility;
(e) to collect and receive funds and donations for the above objects,
(f) to do all acts, deeds and things as are incidental and conducive to the
furtherance of the above objects.
AND IT IS HEREBY DECLARED that the charitable objects hereinabove mentioned shall not be limited or restricted to any particular caste or creed and will not involve any element of profit making.
AND IT IS HEREBY FURTHER DECLARED THAT THE Trustees shall be entitled to utilise and disburse either the net income of the Trust Estate and/or parts of the corpus thereof for maintaining and/or conducting establishments for the charitable purposes and trusts hereinabove set out;
1. The Trustees shall have power and shall be entitled to collect, recover and receive dividends, rents and profits and other income of the Trust Estate (hereinafter referred to as `as the Trust income`) and to pay thereout all taxes, rates, assessments, expenses and outgoings for collection in respect thereof and for the management of the Trust Estate and for administering and carrying out the Trust hereof.
2. The Trustees shall be entitled from time to time to accept from any person or persons desiring to make gifts or donations upon the trusts and subject to the terms, provisions and powers and conditions contained herein, such moneys or properties as the Donors desire from time to time to give on the aforesaid trusts and on the terms and conditions herein contained.
3. The Trust hereby declared shall be designated as ----------------.
4. The Registered Office of the Trust shall be at ----------------------.
5. The Trusts hereby declared shall be irrevocable.
6. It shall be lawful for the Trustees at any time and from time to time to borrow moneys as well as to sell, mortgage, assign, transfer, demise or let on lease for any period however long or otherwise dispose of and deal with the Trust Estate including any immovable properties comprised therein or any part thereof either by publication or by private contract and on such terms and conditions as they the Trustees think fit with liberty to the Trustees to buy in rescind or vary any contracts for sale, mortgage, transfer, assignment, lease or other disposition as aforesaid and to resell the same or enter into a fresh contract for transfer, assignment, lease or other dispositions without being answerable for any loss occasioned thereby and with power also to execute all necessary assignments, conveyances, mortgages, transfers, leases, sub-leases and their counter-parts, and other deeds and assurances for the same and to give receipts and discharges for the consideration moneys and all other moneys. All moneys arising from any such sale, mortgage, transfer or other dispositions shall be deemed to be part of the Trust Estate
and shall be dealt with accordingly.
7. The receipt of the Trustees for the purchase money of any property hereby directed or authorised to be sold, or for any other moneys, stocks, funds, shares, securities or investments paid, delivered or transferred to them or him by virtue of these presents or in the execution of the Trusts or powers hereof shall effectually discharge the person or persons paying, delivering or transferring the same therefrom and/or from being bound to see to the application or being answerable for the loss or mis-application thereof.
8. The Trustees for the time being of these presents shall be respectively chargeable only for such moneys and securities as they shall respectively actually receive, notwithstanding their signing any receipt for the sake of conformity and shall respectively be answerable and responsible only for their own respective acts, receipts, omissions, neglect and defaults and not for those of each other, nor for that of any banker, broker, auctioneer, or other person with whom or into whose hands any trust moneys or securities shall be deposited or come, nor the insufficiency in title or deficiency in value of any investments nor any other loss, unless the same shall happen through their own willful default respectively AND ALSO that the Trustees or Trustee for the time being may reimburse themselves, herself or himself or pay and discharge out of the Trust estate all expenses incurred in or about the execution of the Trusts or powers under these presents.
9. The Trustees for the time being of these presents shall have full power to compromise or compound all actions suits and other proceedings and all differences and demands and to adjust, settle and approve all accounts relating to the Trust Estate and to execute, release and to do all other things relating thereto without being answerable or accountable for any loss occasioned thereby.
10. The Trustees shall be entitled to employ any person or persons and pay them remuneration for the effective management and implementation of the Trust, including expert and technical qualified or experienced personnel.
11. If and so often as any of the Trustees hereunder appointed or any future Trustees or Trustee of these presents shall die or shall leave India for more than one year or shall desire to retire from or refuse or become incapable to act in the Trust of these presents or otherwise, it shall be lawful for the surviving or continuing Trustees for the time being of these presents for this purpose to act in the execution of this power or for the proving executors or administrators of the last surviving Trustees to appoint a new Trustee or Trustees in place of the Trustee or Trustees so dying or leaving India or desiring to retire from the Trust or otherwise to appoint new or additional Trustees or Trustee and upon every or any such appointment the number of Trustees may be augmented or reduced and upon every such appointment the Trust Estate shall be transferred so that the same be vested in the Trustee or Trustees for the time being of these presents AND the Trustee or Trustees so appointed as aforesaid may as well before or after such transfer of the Trust Estate, act or assist in the Execution of the Trusts and powers of these presents as fully and effectually as if he / they had been hereby appointed as Trustee or Trustees PROVIDED THAT the number of Trustees of these presents shall not be less than two nor more than, seven PROVIDED HOWEVER AND IS HEREBY AGREED and declared for the sake of clarification that the present Trustees who have executed these presents shall remain Trustees during their lifetime or until such time as they retire or become disqualified to act as such.
12. Any Trustee may at any time resign by giving a month's notice to his co-trustees and upon expiry of such period, he shall be deemed to have vacated his office.
13. The Trustees shall have the right to make necessary resolutions by circulars instead of by meeting and any resolutions as agreed to by a majority of the Trustees shall be as valid and effectual as a resolution of the Trustees at a meeting duly convened.
14. The Trustees shall determine all questions and matters of doubt in the execution of the Trusts, including the meaning and construction of any of the articles and provisions herein contained and do all acts and execute all the trusts, powers and authorities appertaining to these presents unanimously, and in case of disagreement, by majority, each Trustee shall have one vote only. The Trustees shall be at liberty to make rules or bye-laws which are not inconsistent with what is herein contained.
15. For the purpose mentioned above or any of them, the Trustees shall be at liberty to enter into, sign, execute and deliver all such contracts, deeds, assurances and writings as they may deem necessary or expedient. The Trustees shall also be entitled in incur all legitimate expenses which they consider to be beneficial to and in the interests of the Trust.
16. The Trustees shall be entitled to invest the Trust estate or such other funds of the Trust as are not immediately required, in any of the investments authorised by the Bombay Public Trusts Act, 1950 and/or the statutory amendments, modifications or reenactment thereof for the time being in force or the rules made thereunder and the Trustees shall also be at liberty to invest the Trust Estate or any part thereof on the mortgage of any immovable property situated in any part of the Republic of India (either of freehold or leasehold or any other tenure) and the Trustees shall also be entitled to purchase vacant land of any tenure and to construct buildings and other structures thereon as the Trustees may consider necessary and in the interest of the Trust and they shall also be entitled to pull down and demolish to rebuild any building or erection as they may consider necessary and in the interest of the Trust AND the Trustees shall have power to alter, vary or transfer the investments from time to time in such manner as the Trustees may think fit proper and in the interests of the Trust.
17. The Trustees shall be entitled to obtain tenancy in and/or take on lease any premises and/or properties as they may consider proper, and also give them on leave and licence and receive deposits and/or advance compensation.
18. Complete accounts of the Trust shall be properly kept in Bombay, or at such other place or places as the Trustees may from time to time decide and all the accounts, records, and documents of the trust shall be maintained at the office of the Trust. The accounts of the Trust shall be duly audited.
19. The Trustees shall be entitled to open and maintain bank account or accounts as they may consider necessary or proper and such account or accounts may be operated on the signatures of any of two of the Trustees.
IN WITNESS WHEREOF the Settlor and the Trustees have hereunto set and subscribed their respective hands the day and year first hereinabove written.
SIGNED AND DELIVERED by the within-
named Settlor....................
in the presence of
SIGNED AND DELIVERED by the within-
named Trustees (1)...............
......... and (2)..............
............ in the presence of

POWER OF ATTORNEY DEEDS AND ITS SAMPLES

2012-02-25T00:39:00.000+05:30

Power of Attorney:
KNOW ALL MEN BY THESE PRESENTS, I, _______________________ citizen of _______________residing at________________________ do hereby nominate, constitute and appoint my ______ ________ to be my true and lawful attorneys jointly and severally or singly for me and in my name to do the following acts, matters deeds and things and execute the following powers, that is to say:
1. To open and operate savings or current bank account or accounts or invest in fixed deposits, sign cheques, deposit or withdraw money and transact money dealings and invest in or redeem Government or other securities, Public Provident Fund accounts etc.
2. To carry on any business on my behalf and to represent me in all business matters.
3. To demand, sue for, enforce payment or delivery of and receive from all and every person, and to give good receipts and discharge for all sums of money, debts, goods, and things now or hereafter due, owing or payable to, or receivable in respect of my properties.
4. To pay all taxes, rates, charges, expenses and other outgoings whatsoever payable by me for and on account of my property or any part thereof and to insure any premises or buildings against loss or damage by fire or otherwise and to pay all premia for such insurances.
5. To look after my Income-tax, Wealth-tax, Gift-tax and other tax affairs and for that purpose to receive notices and sign and file appeal memos and other papers and attend before the Income tax,Wealth-tax, Gift-tax or Appellate Authorities or other authorities, to produce my accounts, documents and evidence, to get my assessments completed, to receive notices of demand, to make payments and to do all other acts necessary for this purpose.
6. To buy, take on lease or hire or otherwise howsoever acquire immovable or movable property and to make any investments on my behalf.
7. To sell, transfer or otherwise deal with any shares investments or other movable property.
8. To sell, transfer, give on lease or leave and licence or otherwise deal with any immovable property, to sign agreements, execute conveyances, to carry on any litigation, appear before the Sub-Registrar or any other authority and make applications to any tax authority, society or other person and otherwise to do any other act, deed or thing in respect of any property in which I have interest.
9. To sell, endorse, gift, transfer and assign all or any Government Securities and securities of any description whatever.
10. To demand and receive all interest and dividends now due or which may hereafter accrue or become due on all or any such securities.
11. To demand and receive all debts, sum of money, principal money, interest, dividends and dues of what nature or kind so ever which now or at any time hereafter may be due or payable or belong to me.
12. To sign application forms, contracts, agreements, transfer, acceptances, receipts, a quittances, dividend, mandates or other documents.
13. To endorse and transfer any Government Securities, Shares, Stocks or debentures in any company or corporation.
14. For all or any of the purposes aforesaid to appoint a substitute or substitutes and such substitution at pleasure to revoke.
15. To make any application to the Reserve Bank of India and to any other Departments of Government of India as may be necessary.
16. To appear and represent me in all courts, civil or criminal Income-tax, Wealth-tax, Reserve Bank, Municipal Corporation etc. original or appellate or appellate or in the office of the Registrar or in any other office or offices of the public or the Government for business transactions or litigation, as may be deemed necessary by said attorney and for that purpose to sign or verify and file claims, written statements petitions and affidavits and produce documents as may be legally required to be done and also to present appeals etc. in any Court.
17. To appoint and constitute on my behalf Pleaders, vakils, Advocates, Chartered Accountants, Income-tax Practitioners or other Attorneys whenever my said Attorney think proper so to do.
18. AND GENERALLY to do, execute, perform any other act, deed, matter or thing whatever which in the opinion of my said Attorneys ought to be done, executed and performed in relation to my property or business and other business in general as fully and effectually in all respects as I myself would do the same if I were personally present.
19. All acts, deeds and things lawfully done by my said Attorneys jointly and or severally or singly shall be construed as acts, deeds and things done by me if I were personally present and all or whatever my said Attorneys shall lawfully do in good faith, I ____________________________ do hereby agree to ratify and confirm.
IN WITNESS WHEREOF, I, the said _____________________ have set my hand this ______ day of ________ 2000.
SIGNED & DELIVERED BY THE)
withinnamed _____________)
in the presence of)
IDENTIFIED BY ME
BEFORE ME

SPECIAL POWER OF ATTORNEY
TO ALL TO WHOM THESE PRESENTS SHALL COME, I, __________ ___________SEND GREETINGS:
WHEREAS I have executed a Sale Deed in favour of ____ ______________ therein called " the Purchaser" for sale of all my rights, title, and interest in ______shares numbered ___ to ___ of ______________________________ Co-operative Housing Society Ltd. situated at ________________________, Mumbai- 400 0__ (and hereinafter referred to as "the said society"); together with all my rights, title and interest as such shareholder in unit no._________ of the building known as ___________, situate at _______________- belonging to the said society; and received full consideration payable for the sale.
AND WHEREAS I am desirous of appointing Mr._______________to be my Attorney to do and execute the following acts, deeds and things in order to have to aforesaid shares and Units transferred to his name or to the name of any nominee or assign;
NOW KNOW YE AND THESE PRESENTS WITNESSETH THAT I ___ ____________________ do hereby nominate, constitute and appoint ____________________ as my true and lawful attorney to do and execute the following acts, deeds and things, that is to say:
1. To complete the sale of the aforesaid shares and Unit No.___ of situated __________________, situated at ________Mumbai 400 0__ to the name of the said Purchaser or to the name of any nominee or assign of the said Purchaser.
2. To execute any instruments of transfer or other documents as may be necessary for the transfer or sale of my entire right, title and interest in Unit No.___, ___________ _________________________, including rights of occupation.
3. To enter into any correspondence with the ___________ ____________________ Coop. Housing Society Ltd. to make any applications to any such person or body, to pay any amounts, to receive discharges and to do such act, deed or thing whatsoever to complete the title of __________________ to the aforesaid shares and Unit No.___ of the Society.
4. To attend any meetings of the _______________________ ________ Coop. Housing Society Ltd. and to vote on my behalf.
5. To accept service of any notice or letter or correspondence from the Society.
6. To apply for any permission from the Society, from the Bombay Municipal Corporation Electricity Authorities and any person or authority in respect of the said Unit.
7. To sign any agreement or documents, to appear before the Income-tax and other authorities and before the Sub-Registrar of Assurances and any other authority in connection with the said shares and Unit.
8. To file appeals, applications, petitions, Affidavits and to appear before any Court in any proceedings in which I am concerned in connection with the said shares and Unit.
9. To appoint and engage advocates, solicitors, Notaries and other agents as may be required for doing all or any of the acts, deeds or things which by virtue of these presents, the said Attorney is empowered to do.
10. To submit any transfer form and other documents as may be required in respect of the said Unit.
11. To appoint any other attorney and to sub-delegate all or any of the powers herein contained.
12. I hereby agree that all acts, deeds and things done by the said Attorney in good faith shall be construed as acts, deeds and things done by me, I hereby undertake to ratify and confirm whatever the said attorney shall do by virtue of the powers hereby given, provided however that all the costs and consequences of any act done by the Attorney shall be to the account of the Attorney, and I shall not be responsible for the same, and the Attorney shall be liable also for stamp duty and other costs in relation t this Power of Attorney and provided the Attorney indemnifies me in respect of all such costs and consequences.
I hereby declare that the powers hereby given are irrevocable being for a consideration.
IN WITNESS WHEREOF, I, ______________________ for ______________ have hereunto set and subscribed my hands this ____ day of ________, 200_.
SIGNED AND DELIVERED by the withinnamed)
________________________________ )
in the presence of )
Before me
Identified by me

BY THIS POWER OF ATTORNEY dated_________________ I _________________S/o____________________ residing at ________________________ Plaintiff/Petitioner/Appellant in civil suit No./Writ Petition/Appeal _______ of ____________hereinafter referred to as the said suit, pending in the _________________court at __________ hereby nominate, constitute and appoint Mr. ___________________ S/o Mr. ________________resident of _____________ as my attorney for me, in my name and on my behalf to do or execute all or any of the following acts or things in connection with the said suit:
1. To represent me before the said court or in any other, where the said suit is transferred in connection with the said suit.
2. To engage or appoint any Solicitor, Counsel, Advocate or lawyer to conduct the said suit/petition/appeal.
3. To prosecute the said suit and proceedings, to sign and verify all plaints, pleadings, applications, petitions or documents before the court and to deposit, withdraw and receive document and any money or moneys from the court or from the defendant either in execution of the decree or otherwise and sign and deliver proper receipts for me and discharges for the same.
4. To apply for inspection and inspect documents and records, to obtain copies of documents and papers.
5. To compromise the suit in such manner as the said attorney shall think fit.
6. To do generally all other acts and things for the conduct of the said suit as I could have done the same if I were personally present.
And I hereby for myself, my heirs, executors, administrators and legal representatives, ratify and confirm and agree to ratify and confirm whatsoever our said attorney shall do or purport to do by virtue of these presents.
IN WITNESS WHEREOF, I the said.............. has hereunto set and subscribed my hand this................ day of................... 200-.
Signed and delivered by the within named
WITNESSES;
1.
2.
Identified by me
Advocate

Irrevocable Power Of Attorney

KNOW ALL MEN BY THESE PRESENTS THAT WE/ M/s________a public/private ltd. Company incorporated under the Companies Act, (1 of 1956) with its registered office at___________ through Mr. ________________ authorised by the Board of Directors of the Company vide Resolution dated or Constituted as a Sole/Proprietor ship Concern /Firm under the Indian Partnership Act, 1932 with its principal place of business at____________ through its partners/namely Mr.____________ having executed in favour of the Maharashtra Financial Corporation a Statutory body incorporated under the State Financial Corporation an agreement a deed of hypothecation for Rupees __________only and secured the repayment thereof by deposit of the Corporation empowering the corporation to execute a deed of mortgage in the form of an English Mortgage and have the same registered at the cost of the Company /Firm Concern if and wherever the Corporation find it advisable to do so during the pendency of the liability of the company firm concern to the corporation. Do hereby appoint the Corporation to be its attorney for its and in its name and on its behalf for otherwise for the Company/Firm/Concern for the purpose hereinafter mentioned.
To execute a mortgage in the form know as English Mortgage of the whole of the assets of the company/firm sole proprietor including and building machinery a electric fittings both present and future in favour of the corporation on terms and condition contained in the agreement and deed of hypothecation.
To sign the said deed of mortgage for and behalf of the Company/Firm concern and to have it registered with proper registering authority by admitting its execution and passing of consideration on behalf of the company/firm/concern and for the company/firm/concern.
And also execute and to do all such other acts and things as our said attorney shall deem fit for the purpose of securing the said repayment of the loan by the company /firm concern aforesaid.
To perform and obtain the Income-tax clearance certificate under Section 230-A (I) of Income-tax Act, for and on behalf of the borrower
To apply and obtain the necessary permission/exemption under Urban Land Ceiling and Regulation Act, 1976 for and on behalf of the borrower, if necessary to perform the above functions either through him for through lawfully constituted authority.
And the company/firm/concern hereby does agree to ratify and confirm whatever its said attorney shall do here under.
IN WITNESS WHEREOF, I/We ____________have hereunto set my/our hand(s) this __________day of ________in the year ____________
______________________
______________________
Signature

Deed Of Revocation Of Power OF Attorney

THIS DEED OF REVOCATION OF POWER OF ATTORNEY is executed on this the .........day of ............2000 by Mr / Mrs................ s/o / w/o.................aged about.......vears, residing at ...................
WHEREAS I have executed a general power of attorney dated..................in favour of ................s/o w/o / D/o .........................aged about..........years, residing at .......................... .
A copy of the said Power of Attorney is hereto annexed and is hereinafter referred to as "the said Power of Attorney"
WHEREAS the aforesaid Sri..............has been acting adverse to my interest and I have already revoked the said power of attorney dated.............by my registered letter dated............sent to the aforesaid person Sri...........
NOW THIS DEED OF REVOCATION WITNESSETH AS FOLLOWS:
1. I do hereby confirm that I have cancelled and revoked the said Power of Attorney granted to Sri ______________ dated........... with effect from.......... and I have also absolutely and completely revoked all powers or authority given under the aforesaid power of attorney to the aforesaid person with effect from the aforesaid date.
IN WITNESS WHEREOF. I have signed this deed on the day, the month and the year first mentioned above.
WITNESSES:
1. EXECUTANT
2. (_____________________)

MODEL TRUST DEED FOR A PRIVATE SPECIFIC TRUST

2012-02-25T00:35:00.000+05:30

DEED OF TRUST
OF
______________ TRUST

THIS DEED OF TRUST made at _______ this day of _______ 2000 BETWEEN _________________ residing at ____________ __________ hereinafter called "the Settlor" (which expression shall unless it is repugnant to the context or meaning thereof be deemed to include his heirs, executors and/or administrators) of the One Part AND (1) -------------------- residing at _____________ AND (2) ------------------ residing at ________________, hereinafter called "the Trustees" (which expression shall unless it be repugnant to the context or meaning thereof be deemed to include the survivors of survior of them and the heirs, executors and administrators of the last survivor and the trustees or trustee for the time being of these presents, their, his or her assigns) of the Other Part;
(i) WHEREAS the Settlor is seized and absolutely possessed, inter alia, of an amount of Rs._________/- (Rupees ___________________ only) in cash;

(ii) WHEREAS out of natural love and affection which the Settlor bears towards the beneficiaries (i) ___________________ and (ii) _________________ who are the (relationship) of the Settlor, the Settlor is desirous of settling a sum of Rs._____/- (Rupees _____________ only) upon and subject to the trusts, powers, provisions, agreements and declarations hereinafter declared and contained of and concerning the same and the Settlor has requested the Trustees to act as the Trustees thereof, which the Trustees have consented to do (as is testified by their being parties to and executing this Deed);

AND WHEREAS in pursuance of the said desire the Settlor has, prior to the execution hereof, handed over cash of Rs.5,000/- (Rupees five thousand) and a cheque for Rs. _________/- (Rupees ________________ only) to the Trustees and the Trustees have accepted and taken possession of the same and they shall hold the said amount upon the Trusts and with and subject to the powers and provisions hereinafter declared and contained;

NOW THIS DEED OF TRUST WITNESSETH as follows:-

1. The Settlor _________________________has conveyed, transferred and assigned to the Trustees the said amount of Rs. 5,000/- (Rupees five thousand only) in cash and Rs. _________/- (Rupees ______________________ only) by cheque.

2. The Trust shall be known as "..................." but it may hold assets or carry on business in any suitable name.
3. The Trustees hereby declare that they the Trustees shall hold and stand possessed of the said property which is referred to as "the Trust property" which expression shall also include cash and any other property and investments of any kind whatsoever into which the same or any part thereof might be converted, invested or varied from time to time or such as may be acquired by the Trustees or come to their hands by virtue of these presents or by operation of law or otherwise howsoever in relation to these presents, upon the Trusts and with and subject to the powers, provisions, agreements and declarations hereinafter declared and contained concerning the same.

4. The Trustees shall hold and stand possessed of the Trust property upon the following trusts that is to say:-

(a) to manage the trust premises or Trust Fund and collect and receive the interest, dividend and other income thereof;
(b) to pay and discharge out of the income of the Trust Fund all costs, charges and expenses for collecting and receiving the income of the Trust Fund and all other assets, charges, expenses and outgoings of and incidental to the Trusts created by these presents and administration thereof;
(c) to close the accounts of the Trust on the 31st day of March of every year and pay to or accumulate or spend the net income of the Trust among the beneficiaries in the following properties:-
i) %
ii) %
5. If either of the beneficiaries dies before the determination of this Trust his or her share and interest in the Trust shall devolve upon the survivor and in the event of the death of the survivor before the determination of the Trust it shall devolve upon his legal heirs.
(a) The income of the Trust shall be credited to the respective accounts of the beneficiaries.
(b) Any amount withdrawn by the beneficiaries or on their behalf shall be debited to the respective accounts of the beneficiaries.
(c) The Trustees shall also be entitled to spend any part of the corpus or of the amounts credited to the accounts of the beneficiaries for their maintenance, education and medical relief or for any other benefit of the beneficiary concerned and such amounts shall be debited to the respective accounts of the beneficiaries.

(d) The Trust shall be determined when the younger of the beneficiaries attains the age of ...... years or on such earlier date as the Trustees may in their absolute power decide. On the determination of the Trust the corpus of the Trust property shall be divided among the beneficiaries existing at the time according to their shares and if there is no existing beneficiary then to the legal heirs of the beneficiary who dies last.
6. It is hereby agreed and declared that the Trustees herein appointed or to be appointed in future as hereinafter provided shall manage the trust property and for this purpose they shall have full power at all times to sell, convert, transfer or alienate any one or more of the Trust properties and to convert the proceeds thereof in other properties, securities or investments as they may deem fit.

7. The Trustees may receive and accept any donations, gifts or bequests from the Settlor or any other person or persons for the purpose of the Trust. The Trustees may also accept deposits or take loans from any person including the Settlor on such terms and conditions as they may deem fit.

8. Without affecting the generality of the powers, provisions and authorities vested in the Trustees under these presents the Trustees' shall have in addition thereto and not in substitution thereof, the following powers and authorities and they shall be entitled to execute all acts, documents and things necessary, ancilliary or incidental thereto, that is to say :-
(a) To open banking accounts of the Trust in any bank or banks of repute in the name of the Trust or in the name of any Trustee or Trustees and such bank account may be operated by any one of the Trustees individually.

(b) To borrow monies or raise loans and funds required for any purpose, power or provision either directly or indirectly concerned with the objects of this Trust or incidental to these presents from any bank or other person or concern.
(c) To draw, make, accept, endorse, discount, execute or issue promissory notes, bills of exchange and other negotiable instruments.
(d) To purchase, take on lease or sub-lease, leave and licence basis, co-operative schemes or any other arrangements or in exchange or hire movable or immovable property including residential flats or commercial units and any rights, benefits or privileges which the trustees may think necessary or convenient.
(e) To construct, develop, maintain, erect, fabricate and alter any building, structures, industrial estates, factories and storage tanks or works of any nature whatsoever necessary or convenient or as the Trustees may think fit.
(f) To sell, improve, manage, develop, exchange, lease, mortgage, pledge, hypothecate, dispose of or turn to account and deal with all or any part of the Trust Fund and premises hereby settled or any part or parts thereof.
(g) To organise agencies or officers or to make any other arrangements necessary for conducting and managing the Trust and to appoint such agents and representatives on their behalf as the Trustees may think fit.
(h) To purchase on ownership or take on rent or compensation residential flats, business premises, industrial sheds or factory premises, godowns or open plots of land and let out the same on leave and licence or compensation or warehousing charges or storage charges.
(i) To carry on any business or businesses including that of import or export of any commodities, import and export and banking or enter into partnership or joint ventures or other arrangements with any other person, firm, body corporate, society, federation, association of individuals or otherwise howsoever for carrying on any business or businesses, industries or commercial activities for and on behalf of the Trust and to appoint any one or more Trustees to be partners, representatives or nominees or nominee for and on behalf of the Trust to carry out or implement any such arrangements.
(j) The Trustes shall be entitled to determine whether any money or property shall for the purpose of this Trust be considered as capital or income and whether expenses, outgoings or loans ought to be paid or borne out of the corpus or income and any such determination of the Trustees shall be conclusive.
(k) The Trustees may deposit any documents of title or any other papers or documents or certificates held by them relating to any movable or immovable property or relating to the Trust under these presents with any bank or bankers or any other person, firm, or company whatsoever for safe custody and may pay any such charges payable in respect of such deposits.
(l) The Trustees instead of acting personally, may employ and pay any agents, person or representative including any bank or insurance company to transact any business or to do any act whatsoever in relation to the Trusts of these presents including the receipt and payment of moneys without being liable for loss and shall be entitled to be allowed and be paid all charges and expenses incurred hereby.
(m) The Trustees may from time to time appoint on such terms with or without remuneration as they may determine any immovable or movable property subject to the provisions of this Trust and the Trustees shall have powers to pay them salary, wages, emoluments, fees and remuneration.
(n) In the event of the Trustees doing any business or starting an industry or undertaking either themselves or in partnership with others or as joint venture and their incurring any losses thereby, they will be entitled to be reimbursed out of the Trust all losses incurred as well as all costs, charges and expenses incurred by them in starting or defending any proceedings.
(o) The Trustees shall have the power to make investments in movable or immovable property, to give loans on interest or otherwise to purchase shares, debentures and other securities, Government bonds etc and to make any other investments as the Trustees in their sole discretion may deem suitable.

8. In the event of the Trustees purchasing an immovable property or properties out of moneys belonging to the Trust it shall be lawful for the Trustees to repair, pull down, or rebuild them or construct any other buildings or structures out of the corpus of the Trust Fund and to give such properties on lease or tenancy or leave and licence or in any other manner on such terms at such rent or rents and upon such conditions as the Trustees may think fit and to make allowance with tenants and others and the Trustees shall also have the power to condone breaches of covenants and to accept surrender of lease or tenancy etc. and generally shall have all powers of management of such immovable property or properties as absolute owners without being responsible for loss or damage that may happen thereby and it shall be lawful for the Trustees at any time to sell such immovable properties or property or part or parts thereof or easements rights or privileges exercised or enjoyed in, over, for upon or under such immovable property or properties and upon any such exchange to give or receive moneys for equality or exchange.
9. The Trustees may make any such sale as aforesaid either by public auction or private contract and may make or agree to any stipulations or provisions as to evidence to title or commencement of title or otherwise to any conditions of sale or contract for sale or exchange and may buy in at any sale by auction and rescind or carry any contract and enter into any new contract for any of the purposes aforesaid without being
responsible for any loss. The Trustees may execute assurances and give effectual discharge for any such sale or exchange which they may think proper.
10. In the event of any difference between the Trustees concerning the affairs of the Trust, the decision of the majority of the Trustees shall prevail.
11. The Trust being established hereby shall be irrevocable and no part of the Trust Fund shall in any circumstances whatsoever be paid or lent to or be applied for the benefit of the Settlor. If the Trust fails or is held to be invalid for any reasons, there shall be no resulting trust in favour of the Settlor but the assets of the Trust shall be divided amongst the beneficiaries in the proportion mentioned in clause (4) above.

12. Any Trustee for the time being hereof may at any time retire from the Trust on giving not less than one month's notice in writing of his intention to do so to the other Trustees for the time being hereof and upon expiry of such notice the Trustee giving such notice shall cease to be a Trustee of these presents.
13. Every one of the Trustees for himself doth hereby agree that in the event of his vacation of the office of the Trustee, he shall do all necessary acts, deeds and things for effectively transferring over unto the name/names of the additional Trustees or Trustee the Trust Fund and all costs attending such transfer shall be borne out of the income of the Trust Funds.
14. It shall be always lawful for the Trustees to appoint any additional Trustees or Trustee of these presents and if the Trustees hereby appointed or any of them or any future Trustee or Trustees hereof shall die or remain abroad for more than 2 years continuously or become bankrupt or insolvent or desire to be discharged or refuse or become unfit or incapable to act or if the Trustees shall be desirous of appointing any additional Trustees or Trustee along with them then in and every such case it shall be lawful for the Trustees or the surviving or continuing Trustees or Trustee for the time being and if there be no surviving or continuing Trustee or the refusing or retiring Trustees or Trustee if unwilling to act and failing them then the heirs, executors or administrators of the last surviving or continuing Trustee/Trustees becoming unfit or incapable to act to appoint a new Trustee or Trustees and upon any such appointment the number of Trustees of these presents shall at no time be less than two nor more than seven and upon every such appointment the Trust property and the Trust Fund thereof shall (if and so far as the nature thereof or the other circumstances so require or admit) be transferred so that the same may be vested in the Trustees or Trustee for the time being and every Trustee so appointed may as well before or after such transfer of the Trust property or funds act and/or assist in the execution of the Trusts and powers of these presents as fully and effectively as if he had been hereby originally constituted as a Trustee hereof. Acceptance in writing by the substituted or additional Trustee or Trustees shall be sufficient to vest the Trust Funds in such Trustees or Trustee.
15. The Trustee will from time to time decide questions arising with respect to the administration of the Trust and may keep a record by way of minutes of work done and resolutions arrived at by them at their meetings convened or by circular.
16. In case any Trustee whether present or future, happens to be a professional person he will be entitled to payment of professional fees for work done by him or by a firm in which he is a partner and he shall not be liable to account for any share of profits received by him from the firm.
17. And it is hereby further agreed and declared that the Trustees for the time being of these presents shall be respectively chargeable only for such Trust Funds and the income including moneys, stocks, funds, shares and securities as they shall respectively actually receive notwithstanding their responsibility and shall be answerable and accountable only for their own acts, receipts, neglects and/or defaults and not for those of the other or others of them nor any banker, broker, auctioneer or agents or any other person or persons into whose hands any Trust Funds or Trust income may be deposited or come nor for lending or any security with less than marketable title nor for the insufficiency or deficiency of any stocks, funds, shares, securities nor any other loss unless the same shall happen through their own wilful defaults or dishonesty respectively and also that the Trustees or Trustee for the time being of these presents may reimburse themselves or himself and pay and discharge out of the Trust Funds and property all expenses incurred in or about the execution of the Trust or powers of these presents.
18. The Trustees shall have power from time to time to make rules and bye-laws relating to their meetings and conduct of the business and otherwise as to the management of the Trust Fund and from time to time carry out, alter or add to such rules or bye-laws provided however that such rules or bye-laws are not inconsistent with the terms of these presents.
IN WITNESS WHEREOF the parties hereto have hereunto set and subscribed their respective hands the day and year first hereinabove written.

SIGNED AND DELIVERED by the )
withinnamed SETTLOR )
Mr.___________ )
in the presence of )
SIGNED AND DELIVERED by the )
withinnamed TRUSTEES )
(1)___________________ and )
(2) )
in the presence of )

Model sale agreement of house when there is uncleared loan of bank

2011-09-27T08:20:00.001+05:30

SALE AGREEMENT THIS SALE AGREEMENT made at ___________, this 19th day of July, 2011, Between (1) Mr................., son of Late ..........., Aged ........ Years (2) Mrs ............................ w/o Mr. ..................., Aged ......... Years Both resident of No. .........., ................... cross, .............. Block, ......................, hereinafter called "the Vendors" (which expression shall unless repugnant to the context or meaning thereof mean and include their respective heirs, executors, administrators and assigns) of the FIRST PART;

Mr ..................... s/o Late ....................... aged ...............years, Resident of ................................................., hereinafter called as "the purchaser" (which expression shall unless repugnant to the context or meaning thereof mean and include his heirs, executors, administrators and assigns) of the SECOND PART.

WHEREAS the Vendors are absolute owners having possession of the house property which is more particularly described in the Schedule hereunder written (which property shall hereinafter for brevity's sake be referred to as 'the property'). AND WHEREAS the said property was owned and possessed by the vendors was got through registered sale deed dated ............... with Document number ................ before Sub-registrar .................. stored vide C.D. No. ............... The vendor got the title to the property from previous owner and the same valid flow of title is well recognised by Vendor’s Bankers legal advisors and as the only owners having no co-ownership rights with anyone is professing to sell the property for reasons of clearing Banking Loan and other family necessities of the vendors. The said property was purchased by the vendors out of their self-earned money.

AND WHEREAS the purchasers herein have approached the Vendors through assuring party with an intention to purchase the said property from the Vendors and pursuant to the negotiations by and between the parties hereto and subject to the necessary documentations for registration to be supplied by the vendors and have agreed to complete the sale transaction of the said property more particularly described in the Schedule hereunder written for the consideration and upon the terms and conditions hereinafter appearing:

AND WHEREAS the said property is being mortgaged by the vendors with _________________ Bank by deposit of all title deeds for a loan of Rs ____________________ (Rupees______), the upto date arrears is approximately as follows Rs ________________ as on dt._______________. The loan amount hereby mentioned is the only loan existed upon the vendor’s property both personally and upon mortgage loan. There is no other liability or any other proceedings of recovery or claim over the vendor is the total assurance from the side of vendor.

AND WHEREAS the purchaser on having trusted the assurances came forward upon the following terms and conditions to take over the loan through his banker ________________________________, by way of transfer of loan amount out of sale consideration. The necessary formalities need to be completed within the stipulated period for the sake of completing the sale transaction as early as possible.

NOW THESE PRESENTS WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

(1) The Vendors do hereby agree to sell the said property for a sale consideration of Rs .............................. Out of the sale proceeds Vendors assures to claim and receive only the amount balance after clearance of loan arrears within the stipulated period that will be made through purchaser’s bank.

(2) In consideration of the Vendors having agreed to sell the property for such consideration, the purchaser agree to pay to the Vendors a sum of Rs. .................................... as advance towards the sale consideration, in the following manner: (a) Rs......................... through Cash before the witnesses to this agreement (the payment and receipt whereof is this agreement itself and the Vendors both hereby admit, acknowledge, the receipt of the said amount).

(3) The vendors hereby authorise purchasers with No objection to get transferred the loan arrears to their Bank by way of loan take over and the vendors hereby authorise to purchaser to communicate with their bank for the same purposes.

(4) The vendors here by authorise purchaser’s bankers to get all the original documents transferred to their custody and do indemnify whosoever if the vendor fails to execute sale deed after receipt of full balance sale consideration as said earlier.

(5) The Vendor hereby assures to give vacant possession of the property at the time of registration of sale deed and promises not to induct anyone in the intervening period either as tenant or in any other mode.

(6) The vendor hereby assures that they won’t further create any charge over the property and this agreement is the last and final charge with such conditions as herein mentioned.

(7) The vendors hereby assure to provide any necessary documentation formalities if the Banker of the purchaser seeks to honour this sale transaction, wthout any further liability after sale completion.

(8) It is agreed and undertaken by the Vendors that they shall at their own costs and expenses persuade the matter regarding requirement of NOC’s and other documents necessary for having valid registration as required under the various acts.

(9) The Vendors hereby agree that the said sale agreement shall not be, under any circumstances, revoked by the Vendors as long as these presents subsist and remain binding upon the parties hereto. If the sale agreement is revoked by the Vendors and delay is caused in registering the property hereby agreed the consequences arising thereof shall be at the costs of the Vendors alone.

(10) It is agreed and undertaken by the purchasers that they shall at their own costs and expenses, get the sale deed registered by paying the stamp duty on the prevailing sub-registrar market rates as per procedure, any variation from the actual agreed amount will not be claimed by both the parties.

(11) The Vendors shall render all assistance, co-operation and sign and execute or cause to be signed and executed all applications, plans, authorities and other writings as may be necessary or required to enable the registration of the said property and to obtain nill arrears certificate from BBMP.

(12) The vendors assure that the property is not under any acquisition proceeding and no acquisition notice is received by the vendors. The vendors assure that the property is not the target of any encroachment of public land and there is no notice to such effect.

(13) The Vendors shall make out a clear and marketable title to the said property, agreed to be sold and ultimately to be conveyed free from reasonable doubts and all encumbrances and shall at their own costs and expenses got cleared all outstanding dues and clear all defects in the title and all encumbrances and claims on or to the said property including all claims by way of sale, exchange, mortgage, gifts, trust, hereditaments, possession, easement, lease, lien or otherwise.

(14) It is agreed and understood that the Vendors shall not in any way obstruct the officers of the purchaser bank from visiting and inspecting the said property for their assessment, and shall not do any act, matter or thing whereby the purchasers will be prevented from carrying out the agreed part as envisaged under this Agreement.

(15) The Vendors hereby declare that: (a) The said property is equivalent to freehold and is not held under any agreement, except that of the bank as mentioned earlier; (b) There are no outstanding encumbrances, mortgages, liens (notice for acquisitions, requisitions or set back) easements, rights of tenants or outstanding interest or claim by any parties other than the Vendors nor is the said property subject-matter of any pending suit or attachment either before or after judgement. No notification is issued under any Ordinance, Act, statute/rules or regulations affecting the said property; except that of bank arrers as mentioned earlier; (c) The Vendors further declare that neither the Vendors nor his/their predecessors-in-title nor any body claiming from/or under them or any of them have or have granted any right of way or easement or other rights to any person over the said property;

(16) It is agreed that the Vendors and all other necessary parties shall execute the Deed of Conveyance and/or all other writings in favour of such person/s as the purchasers or their bankers may direct . The purchasers shall also join as a Confirming Party to the said Conveyance.

(17) The Vendors will ensure that under their supervision at the time when the Bankers of the purchasers require shall allow to enter upon the said property described in the Schedule hereunder written, the said house is absolutely vacant and nobody is in occupation of the same.

(18) The Vendors hereby agree and confirm that the purchasers shall be entitled to transfer the benefit and burden of this Agreement subject to the terms and conditions mentioned herein either as a whole or in part to one or more parties and that the Vendors shall have no objection to the same and the terms and conditions of this agreement shall remain binding over such transferees.

(19) The Vendors agree to pay Municipal, betterment charges if any, water charges, electricity charges, fines and penalties arising as a result of use of the said property till date of registration of sale deed.

(20) The Vendors declare that the property hereby agreed to be sold and conveyed are not subject to the easement or rights in the nature of easement.

(21) The Vendors hereby declare that no notice from Government or any other body or authority or under the Municipal Corporation Act or BDA Act, Land Acquisition Act or Town Planning Act, The Defence of India Act or under any other legislative enactments, KIADB Act, Government Ordinances, Order or Notification (including any notice for acquisition or requisition of property or any part thereof) has been received by or served upon them or any other person/s interested therein nor is the said property or any part thereof included in any intended or publishes scheme of improvement of the Municipal, Government body or Public Body or authority.

(22) The Vendors hereby agree to pay and discharge all taxes and outgoings in respect of the said property prior to the sale on which the purchasers are to be put in possession of the said property.

(23) The Purchasers shall from the date they are put in possession of the property be entitled to receive the rents and profits and liable to pay all outgoings (including Municipal taxes, land revenue, charges for consumption).

(24) The Vendors shall pay all outgoings including the municipal and Collector's bills and charges in respect of the said property hereby agreed to be sold and conveyed previous to the date of handing over of the possession to the purchasers. The purchasers agree and undertake to bear all the charges in respect of the said property and all taxes, Municipal, Collector's bills, etc. after the date of taking over of the possession.

(25) The Vendors declare that the property in question is self acquired property. However, there is no minor interested in the property and hence the question of obtaining the sanction from the competent Court relating to minor's interest in the property does not arise.

(26) If the sale be not completed due to any wilful default on the part of the Vendors, the purchasers shall be entitled to specific performance of this Agreement, at the cost of vendors including any deficit in stamp expenses and other over heads.

(27) This agreement shall not be treated as a partnership between the parties.

(28) The purchaser shall keep indemnified the Vendors from and against all actions, claims, demands, proceedings, fines, penalties and all costs, expenses and damages incurred or suffered by the Vendors if there is any willfull default of purchaser in honouring this agreement.

(29) Save and except as hereinbefore otherwise provided, all costs, charges and expenses of the Vendors and of the purchasers and incidental upto this Agreement including stamp duty of agreement is mutually agreed to be borne and also paid by the Vendors alone. The fines and penalties payable to the Collector or transfer of the property not incurred by reason of any delay in lodging the Deed of Conveyance by the Vendors shall be paid by the Vendors alone.

IN WITNESS WHEREOF the parties hereto have hereunto set and subscribed their respective hands and seals the day and year first hereinabove written.

The Schedule above referred to

Agreement to demolish the structure, clear the site and to construct new building

2011-09-27T08:00:00.000+05:30

THIS AGREEMENT made at.............. on this............ day of................. 2011, between .......................... S/o Mr........................ R/o........... (Hereinafter called 'the Employer') of the ONE PART and ................................. Constructions, a partnership firm, carrying on the business of builders and contractors, having its office at................................................ (Hereinafter called 'the builders') of the OTHER PART

WHEREAS the employer is absolutely seized or otherwise well and sufficiently entitled to the old bungalow being (Detailed address)............ with an area of........ Sq. mts which bungalow is more particularly described in " First Schedule hereunder written, and is hereinafter referred to as 'the said bungalow.

AND WHEREAS the said bungalow has become very old and the employer intends to dismantle the said bungalow and construct a new bungalow on the said plot of land.

AND WHEREAS the builders are willing to undertake the said job of dismantling and construction of the new bungalow in accordance with the plan and specifications set out in the Second Schedule hereunder written.

NOW IT IS AGREED BETWEEN THE PARTIES AS UNDER:

1. The builders agree to undertake the work of dismantling the said bungalow and to construct a new bungalow in accordance with the plan, description and specifications set out in the Second Schedule hereunder written (hereinafter referred to as "the said works') in consideration of a sum of Rs.......... to be paid by the employer to the builders in the manner hereinafter provided.

2. The builders will dismantle the said bungalow, clear the site and construct the bungalow with the best available materials and in workmanship in accordance with the directions of the employer's architect (hereinafter referred to as the architect) in accordance with the plan, description, and specifications set out in the Second Schedule hereunder written. However, the employer may require the builders to alter the drawings and the nature of the work by adding or omitting any items of work. Such alterations shall be paid at such rates as may be mutually agreed upon.

3. The builders shall take away the building material of the old bungalow and shall clear and level the plot of land.

4. While demolishing and constructing the bungalow, the builders shall carry out the said Works in accordance with the law, rules and bye laws for the time being in force affecting the said works and shall give the necessary notices to and obtain the requisite sanction of the concerned local authorities in respect of the said works and shall comply with building and other regulations of such authority.

5. The builders shall complete the said works on or before the expiry of...... months from the date of execution of these presents in accordance with the plans duly approved by the municipal corporation of........ and descriptions and specifications and other terms and conditions as are set out in Third Schedule hereunder written: Provided however the architect, with the previous consent of the employer, may extend the time for completion of the said works, it in his opinion the works are delayed (a) by force majored; or (b) by reason of any exceptionally inclement weather; or (c) by reason of civil commotion, local combination of workman or strike or lock-out affecting any of building trades; or (d) in consequence of the builders not having received necessary instructions from the architect in due time; or (e) from other causes which the architect may certify as beyond the control of the builders.

6. The employer shall pay to the builders, weekly during the progress of the work, such sum as may be sufficient to defray the expenses for materials and other out of pocket expenses, as certified by the architect.

7. The builders hereby indemnify and keep the employer saved, defended and harmless against any claims, demands, actions or proceedings that may be suffered by the employer by reason of anything done by the builders as a result of the builders committing breach of any rules and regulations or causing damage to any adjoining property or any individual or otherwise howsoever in dismantling the property or constructing the new bungalow on the said property or any letters, applications and writings addressed by the builders pursuant to such authority as also for the costs, charges and expenses which may be incurred or for which the employer may become liable in that behalf.

8. The builders shall be responsible for injury to persons, animals or things and for all structural damages to the property which may arise from the operation or neglect of the builders or their employees, nominees, sub-contractors or their employees, whether such injury or damage arises from carelessness, accident or any other cause whatsoever in any way connected with the carrying out of construction pursuant to these presents. This clause shall be deemed to include, inter alia, any damage to buildings whether immediately adjacent or otherwise, and any damage to roads, streets, foot-paths, bridges or ways as well as all damages caused to the buildings and works forming the subject of this contract by frost, rain, wind or other inclemency of weather.

9. The builders shall, within one week from the date of commencement of the works, insure the works and keep them insured until the buildings complete in all respects and fit for occupation are handed over to the employer, against loss or damage by fire, earthquake, flood, cyclone, etc. with an insurer, in the joint names of the employer and the builders for the full amount of the contract and for any further sum, if called upon to do so by the employer. The premium of such further sum shall be reimbursed to the builders by the employer. The builders shall deposit the insurance policy and receipts for the premium with the employer within fourteen days from the commencement of the works, unless otherwise instructed by the employer. In case the builders fail to insure as provided above, the employer may so insure the works and may deduct the premium paid from any moneys due or which may become due to the builders without prejudice to the other rights of the employer in respect of such default. In case it becomes necessary to suspend the works due to any of the risks covered under the policy, the builders shall, as soon as the claim under the policy is settled, or the work reinstated should proceed with all due diligence with the completion of the works in the same manner as though the risk had not occurred and in all respects under the same conditions of contract. The builders in case of rebuilding or reinstatement after the risk, shall be entitled to such extension of time for completion of the works, as the architects shall deem fit.

10. If the builders (i) have abandoned the contract; or (ii) have failed to dismantle the old bungalow and remove, clean and level the plot of land; or (iii) have failed to commence the works or have without any lawful excuse under these presents suspended the progress of the works for fourteen days after receiving from the architect notice to proceed; or (iv) have failed to proceed with the works with such due diligence and failed to make such due progress as would enable the works to be completed within the time agreed upon; or (v) have failed to remove materials from the site or pull down and replace work for seven days after receiving from the architect written notice that the said materials or work were condemned and rejected by the architect under these presents; or have neglected or failed persistently to observe and perform all or any of the acts, matters or things by this contract to be observed and performed by the builders for seven days after written notice shall have been given to the builders requiring them to observe or perform the same; then and in any of the said cases the employer may, after giving seven days notice in writing to the builders, terminate the contract, on such termination of the contract the employer by his agents or servants may enter upon and take possession of the works and all plants, tools, scaffoldings, sheds, machinery and other utensils and materials lying upon the premises or the adjoining lands or roads, and use the same as his own property or and employ the same by means of its own servants and workmen in carrying on and completing the works or by employing any other contractor or other person or persons to complete the works, and the builders shall not in any way interrupt or do any act, matter or things to prevent or hinder such other contractor or other person or persons employed for completing and finishing the works or using the materials and plant for the works. When the works shall be completed or as soon thereafter as convenient the architect shall give a notice in writing to the builders to remove their surplus materials and plant, and should the builders fail to do so within a period of fourteen days after receipt thereof by them, the employer may sell the same by public auction, and give credit to the builders for the net amount realized. The architect shall ascertain and certify what s a be due or payable to or by the employer for the value of the said materials, plants are so taken possession of by the employer and the amount which shall be so certified shall thereupon be paid by the employer to the builders or by the builders to the employer, as the case may be and the architect's certificate shall be final and binding on both the parties.

11. If the builders fail to complete the said works within the period or extended period, the builders shall at the option of the employer, but without prejudice to the other rights under law of the employer and the other provisions herein shall pay by way of liquidated damages a sum of Rs.......... per day for the entire period of delay and the employer will be entitled to deduct such damages from the amount becoming due and payable to the builders under this Agreement.

12. The builders shall not assign this contract to any other builder or contractor, without written consent of the employer.

13. The builders hereby agree and undertake to rectify the defects pointed out to them during the period of 12 calendar months from the date of handing over the said buildings to the employer. If the builders fail to rectify the defects pointed out or decline to cure such defects as pointed out by the employer within fifteen days from the date of reporting to the builders, the employer may get such defects cured by such other contractors as it may deem fit at the entire cost and risk of the builders.

14. The builders shall deliver all the plans, detailed drawings and specifications to the employer after the completion of the said works or otherwise terminated under these presents.

15. All disputes arising between the employer and the builders under this Agreement during the continuance of this contract or on its completion or on abandonment thereof shall be referred to arbitration to a single arbitration appointed by both the parties. It both the parties do not agree upon the appointment of single arbitrator, each party shall nominate his own arbitrator who shall before entering on the reference appoint an umpire. The arbitrator or arbitrators as the case may be shall deliver the award within a period of six months from the date of entering on the reference. The award of the arbitrator or arbitrators shall be final and binding on the parties. The parties agree that arbitration under this clause shall be a condition precedent to any right of action under the contract.

IN WITNESS WHEREOF the employer and builders have signed these presents, the day and year first hereinabove written.

KANNADA SALE DEED FOR REFERENCE

2011-01-20T11:02:00.001+05:30

Kannada Sale Deed in a Specific Case for Guidance Only

WRITTEN ARGUMENTS IN PARTITION SUIT

2010-08-22T13:58:00.003+05:30

Written Arguments in Partition Suit

EDUCATION APPELLATE TRIBUNAL OBJECTIONS BY RESPONDENT INSTITUTION

2010-08-22T09:16:00.000+05:30

Eat Objections by educational institution/employer

MODEL PLAINT ON INJUNCTION SUIT

2010-08-22T09:11:00.001+05:30

MODEL PLAINT OVER INJUNCTION SUIT

AGREEMENT TO LEASE SCHOOL BUS ON CONTRACT BASIS

2010-08-22T09:10:00.002+05:30

Agreement to Lease School Buses on Contract Basis

CAVEAT ON LAND DISPUTE

2010-08-22T09:09:00.001+05:30

CAVEAT PETITION