OBJECTIONS TO DELAY CONDONATION APPLICATION

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

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

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