Banker Lien And Right Of Set-Off*[1]
Introduction
When a bank has a claim against a debtor and the debtor has a claim against the bank, the law generally permits the claims to be offset against one another. As a result, the party owing the larger sum makes a payment to the other party of the net amount due. Although this benefits both parties by simplifying matters, it especially can benefit a bank where its debtor is failing or in bankruptcy and may not have the funds to make any payment whatsoever. In this situation, at worst, the bank will only be out the net amount it might have to pay the debtor rather than the full amount it owes while it attempts to recover the amount it is owed.
In this project first chapter I deal lien and rights where I inscribe the meaning of lien and banker lien. For the lien significance I have give various sharpness of form the different text book. After that episode I reveal as the ‘lien compared with other surety’. Basically, I put in plain words the lien is match up with other surety. The third part of the project is defined the set-off. The various part of set-off is explained.
Chapter –I
Lien and Rights
A lien is the right of a creditor in possession of goods, securities or any other assets belonging to the debtor to retain them until the debt is repaid, provided that there is no contract express or implied, to the contrary. It is a right to retain possession of specific goods or securities or other movables of which the ownership vests in some other person and the possession can be retained till the owner discharges the debt or obligation to the possessor. It is a legal claim by one person on the property of another as security for payment of a debt. In Chalmers on Bills of Exchange, the meaning of the Banker’s Lien is stated: "A bankers’ lien on negotiable securities has been judicially defined as ‘an implied pledge’. A banker has, in the absence of agreement to the contrary, a lien on all bills received from a customer in the ordinary course of banking business in respect of any balance that may be due from such customer." It should be noted that the lien extends only to negotiable instruments which are remitted to the banker from the customer for the purpose of collection .When collection has been made the process may be used by the banker in reduction of the customer’s debit balance unless otherwise earmarked. “The Banker’s lien the learned author has stated that apart from any specific security, the banker can look to his general lien as a protection against loss on loan or overdraft or other credit facility. The general lien of bankers is part of law merchant and judicially recognized as such.” [2] "The lien is applicable to negotiable instruments which are remitted to the banker from the customer for collection. When the collection has been made, the proceeds may be used by the banker in reduction of the customer’s debit balance, unless otherwise earmarked." In Chitty on Contracts define as “A lien in its primary sense is a right for one person who is lawfully in possession of property belonging to someone else to keep possession of that property until the person in possession has been paid amounts due to him. Such a lien arises by operation of law and not by contract.”[3] This type of lien is described as a legal lien.
Chapter –II
Liens compared with other security
Legal lien and mortgage
A mortgage is a right founded on contract and is assignable. It will not depend on possession. In its correct sense a legal lien arises by operation of law and not by contract. It is a personal right depending entirely on possession of the goods and cannot be assigned. It will terminate once the holder of the lien loses possession. In the case of land, a deposit of title deeds with a lender will give the lender two sets of rights: (1) a legal lien over the deeds and (2) an equitable mortgage over the property. The equitable mortgage in practice gives more extensive rights than a lien and so the lien has not been relied on. There is still some doubt, however, as to whether the lien will survive if the equitable mortgage fails for lack of registration under the Companies Ordinance.
Liens and pledges
Liens and pledges are similar in that they are both based on possession of the property which is the subject of the security. However, a pledge arises from contract and is an assignable interest unlike a lien.
Liens and equitable charges
A charge is normally founded on contract whereas a lien will arise by operation of law or equity. Both an equitable lien and an equitable charge are equitable interests. An equitable charge is void if not registered. An equitable lien arising by operation of equity is not "created' by the owner of the property subject to the lien for the purposes of section 80 of the Companies Ordinance and so is not registerable.[4]
General lien as banker lien
This entitles a person in possession of chattels to retain possession until all claims of the person in possession against the owner have been met. General liens have been recognized in favour of solicitors, bankers, factors, stockbrokers, insurance brokers and tailors, among others. Only the banker's lien will be considered here. The banker's lien has been an established right for nearly 200 years.[5] It is part of the law merchant and does not need to be pleaded or proved in court. There is also authority[6] for the proposition that a banker's lien is an implied pledge. As shown, a pledge consists of a right to retain possession of property as security coupled with a power of sale. In describing a banker's general lien as an implied pledge, the court was extending the powers conferred by a lien from a mere right of retention to include a power of sale.
The banker's lien will cover all chattels and securities coming into the possession of a bank in the ordinary course of its business as a banker, unless there is an agreement express or implied to the contrary. Thus if securities are deposited with a bank to be held in safe custody only, no lien can arise[7] But if they are deposited with instructions, for example, to collect interest, it would seem that a lien will arise. In Davis v Bowsher,[8] the securities were deposited with the bank as custodians only, so no lien arose. In the securities were deposited with instructions for the bank to act as bankers with respect to the securities and it was held that the bank had a lien over them. Similarly where securities have been deposited as security for specific indebtedness which is then repaid and the securities are left with the bank, they will only be subject to a lien in respect of other indebtedness owed by the same customer if there is no express agreement to the contrary in the original security document or by some other arrangement. The lien will cover all securities and is not limited to negotiable securities. Share certificates, deposit receipts and insurance policies have all been held to be covered by liens. A lien will not cover money in a bank account.[9] It is a misuse of language for a bank to claim a lien over its own indebtedness to its customer. The bank has a right to consolidate accounts or set-off the customer's indebtedness against the bank's indebtedness. In the Halesowen case[10], it was held that a cheque cleared by the bank ceased to be in the bank's possession. Any lien therefore terminated. The money collected from clearing the cheque physically became the bank's money although owed to the customer. It was not possible for the bank to have a lien on its own property.
As indicated, the banker's lien will cover the general balance actually owed by a customer, that is, all sums currently due and payable, whether on loan, overdraft or other credit facility.[11] It will not extend to contingent or future liabilities.[12]
Other aspects of legal liens
“A legal lien is a right of defence rather than a right of action. Even if the debt itself is barred under the Limitation Ordinance a lien may still be claimed. Only in special circumstances (see banker's liens, among others) will a lien confer a power of sale. It is first and foremost a right of retention. Unless there is authority from the owner, a lien will not pass with the transfer of possession.Possession is essential for a lien to be created and it must be rightfully obtained. Thus property which has been acquired by misrepresentation, mistake, fraud or by the wrongful act of a third person will not found a lien. As seen in the discussion of banker's liens, if possession is only obtained for a particular purpose a general lien may be excluded. There must also be continuous possession over the chattel the subject of the lien, so if the owner has free access to it at all times while in the possession of the person claiming the lien, there will be no lien.”
Effect occur in general lien
A general lien arises out of a series of transactions in the general course of business rather than a single specific transaction such as the repair of a piece of jeweleary or a computer. Attorneys, bankers, and Factors usually have general liens to ensure that his client will pay him for services already performed; an attorney may retain possession of the papers and personal property of his client that fall into his hands in his professional capacity. He also has a charging lien on any judgment he has obtained for his client for the value of his services. A banker may retain stocks, bonds, or other papers that come into his hands from his customer for any general balance owed by the customer. A factor or commission merchant may hold onto all goods entrusted to him for sale by the owner of the goods for any balance due. The merchant may sell the goods to satisfy his lien, but he must account to the owner for any excess realized from the sale. General liens occur less frequently than specific liens.
Chapter-III
Set-off
Right of Set –off
The right of set off is also known as the right of combination of accounts .A bank has a right to set off a debt owing to a customer against a debt due from him. "A legal set-off is “where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator one debt may be set against the other "[13] A set off must be in the form of a cross- claim for a liquidated amount and can be pleaded only in respect of a liquidated claim. Both the claim and the set -off must be mutual debts, due form and to the same parties, under the same right. A claim by a person in a representative capacity cannot be set –off against a personal claim. Thus, if A claims Rs.500 as the balance due to him form his banker, while as trustee of B, A owes to the banker Rs.300, no set-off against a debt, which was due to the customer form his banker, during the former’s life-time, whether the accounts are with one or more offices of the banker, it does not materially affect the position in any way. In the case Firm Jaikishen Dass Jinda Ram v. Central Bank of India Ltd.[14] “two partnership firms with the same set off partners had two separate accounts with the Bank. The Court held that the bank was entitled to appropriate the monies belonging to a firm for payment of an overdraft of another firm. Because although two separate firms are involved they are not two separate legal entities and cannot be ‘distinguished from the members who compose them. Mutual demands existed between the bank on the one hand and the persons constituting firm on the other. Nor it could be said that these demands did not exist between the parties in the same right.” Further in the matter A.S.R. St. Veerapa Chettiar v. J.V. Pirie (Official Liquidators- Traancore National and Quilon Bank Ltd.)[15] the claim of setting off an amount due by the bank to the plaintiff and his mother, payable to either or survivor, in respect of a fixed deposit against an amount due to the bank by the plaintiff on overdraft account was allowed, on the ground that the fixed deposit amount absolutely belonged to the plaintiffs.
2. When set off right not available
In case of joint account, the bank cannot set-off a debt due form A alone against join debt nor can A set- off such a debt against a separate debt due form his to the bank[16], and also held that the bankers have not a right to combine one or more accounts of the same customer. But a banker cannot combine a customer’s personal account with a joint account of the customer and another person.[17] In the matter of Official Liquidator, Hanuman Bank Ltd. V. Chota Nagpur Banking Association Ltd.[18]a banker’s right of set-off cannot be exercised after the money in his hands been validly assigned or in any case after he shas been notified of the fact of an assignment. Rule of set -off in bankruptcy does not rest on the same principle as the right to set-off between solvent parties.[19] It is open to the parties to contract out of their rights of set-off. If the company has surrendered this right, it would not then be entitled to raise a defence on that basis.[20]
Banker’s Right of Set Off
Where the same partners were running two partnerships firms and maintaining two accounts in a bank in two different names, and remitting branch where the two accounts were partnership firms was refused and the same was returned to the remitting branch where the two accounts were maintained, the bank receipt of the remitting credited the proceeds to the account of the other firm. It was held in Firm Jaikishen Dass Jinda Ram v. Central Bank of India Ltd.[21] that the bank is competent to adjust the balance of the accounts of the two firms where the constituents of partnership firms are the same. The court argued that the partnership is not distinct legal entities.
4. Relationship between Lien and Set-Off
In the matter of Radha Raman Choudhary v. Chota Nagpur Banking Association Ltd.[22] the banker’s right of lien can attach to the money so long as it is earmarked. Where it has ceased to be such a separate earmarked sum, the bank has not the right of set off. There is a distinction between a banker’s lien and the bank’s right to set-off. A lien is confined to securities and property in bank’s custody. Set-off is in relation to money and may arise from a contract or from mercantile usage or by operation of law. “Of more universal interest is the treatment of the general banker-customer relationship, and it is here that the work begins to disappoint. The description of the banker's lien is particularly confusing. The lien is defined as a charge on property, whereas it is a mere right of detention. The "lien' on money is put into the same category as a lien on documents, when it is clear that a lien in the true sense is not exercisable in relation to intangibles and that the so-called lien on money is a right to withhold payment, typically as the result of exercise of a right to combine accounts, a point picked up a few pages later. The treatment of set-off is inadequate. No distinction is drawn between contractual set-off, set-off in equity and set-off in bankruptcy, and there is no discussion whether cross-border or cross-currency set-off will be recognized by the courts. Remarkably, while two chapters occupying 40 pages are devoted to the insolvency of the bank (which one assumes is happily infrequent), the relatively common case of the customer's insolvency do not, apparently, rate a mention except in the context of a fraudulent preference. In the discussion on the bank's duty of confidence it would have been helpful to know whether the editor considers that the common banking practice of furnishing status reports about a customer to other banks without the customer's prior knowledge or consent is not an infringement of that duty.”[23] “Bankers cherish their rights of setoff. Applying a customer's deposit balance is often the most efficient and least expensive step in collecting a loan that is in default. A banker's first reaction, upon hearing that a borrower is headed for bankruptcy, is usually to check the borrower's deposit balance. If the loan is in default or can be accelerated, the banker may be inclined to offset the deposit without further deliberation, because to delay is to run the risk that the balance may be depleted or that a bankruptcy petition will be filed before the setoff can be accomplished. While those risks are real, the banker should nevertheless pause to consider the matter. The risk of depletion is susceptible to some control. The bank can monitor the deposit account and delay the setoff until it must decide whether to pay or dishonor checks.[24] Even when a decision to pay or dishonor must be made, the bank can weigh the amount of presented checks against the total deposit balance and consider whether, in view of the bankruptcy issues discussed in this article, the bank should pay the checks in order to preserve a more valuable opportunity.”[25]
Conclusions
A banker cannot rely on his banker’s lien over property which was his customer’s property when it first come into the banker’s hands, but which the banker knows to have been subsequently assigned by the customer to a third party to the full extent of the customer’s beneficial internets therein, if the purpose of relying on the lien of reimburse the banker in the respect of advances made by him to the customer after notice of the assignment .Banks often rely on setoff to limit their risk to failing debtors.
Biography
Books
Gupta, S.N., Banking Law in Practice and Theory, 4th edn., Universal Law Publishing Co., Delhi
Gupta, S.N., Supreme Court on Banking Law, 4th edn., Universal Law Publishing CO., Delhi.
Hapgood Mark, Paget’s Law of Banking, Indian Reprint, Lexisnexis Butterworths, Delhi, 2004.
Holden J. Millnes, The law and practices of Banking, Vol. 1, Universal law Publishing Co., Delhi, 1998.
Article
Simon Deane “Principal types of security including pelages and liens”, J.I.B.L.1994
Jack B. Justice “Setoff Against A Depositor Facing Bankruptcy: A Question Of Timing” 110 Banking L.J. 310.
Websites
www.westlaw.com
www.manupatra.com
[1] *Edvin Gardia final year student of Hidayatullah National Law University Raipur Chhattisgarh.
[2] Peget’s Laws of Banking ,8th Edn. at page 498.
[3] Simon Deane “Principal types of security including pelages and liens”, J.I.B.L.1994, 9(2), 52-57.
[4] Capital Finance Co. Ltd v Stokes [1986] 1 All ER 573.
[5] Davis v Bowsher (1794) 5 Term Rep. 488.
[6] Brandao v Barnett (1846) C1. & Fin. 787 at 806.
[7] Ibid.
[8] Supra5.
[9] National Westminster Bank v Halesowen [1972] AC 785 at 802 and 810.
[10] Ibid.
[11] Re European Bank (1872) 8 Ch. App. 41.
[12] Bower v Foreign and Colonial Gas Co. Ltd (1874) 22 WR 740.
[13] S.13 Insolvent Debtors Relied Act 1728.
[14] AIR 1960 Punj. 1.
[15] AIR 1946 Mad. 436.
[16] Nath Bank Ltd.( In liquidation) v. Sisir Kumar Sarkar, (1954) 24 Comp. Case 306 (Cal).
[17] Radha Raman Choudhray v. Chota Nagpur Banking Association Ltd.,(1945) 15 Comp. Case 4.
[18] 26 Comp. Casse 81.
[19] I.S.& C. Maxhado v. Official Liquidator, Travancore National and Quilon Bank Ltd.,( 1994) 11 Com. Case 221.
[20] Hong Kong and Shanghai Bkg. Corpn. v. Kloecker & Co. 1989 BCLC 776 QBD.
[21] AIR 1960 Punj. 1.
[22] (1945) 15 Comp.Cas.4(Pat).
[23] J.I.B.L.1987, 2(3), 198-199.
[24] Pittsburgh Nat'l Bank v. United States, 657 F.2d 36 (3d Cir. 1981), United States v. Citizens and S. Nat'l Bank, 538 F.2d 1101 (5th Cir. 1976).
[25] Jack B. Justice “Setoff Against A Depositor Facing Bankruptcy: A Question Of Timing” 110 Banking L.J. 310.
Monday, February 11, 2008
DEED FOR PUBLIC CHARITABLE TRUST
This Indenture is made this 6th day of March 2007, between Mr. Earnest Gardia, son of Late Mr. Benjamin Gardia , by faith Christian, by occupation Teacher, residing at Village Memra Via Sankara (Jonk) Distt Mahasamund Chhattisgarh 492112 hereinafter called the Settlor (which expression shall unless excluded by or repugnant to the subject or context be deemed to include his heirs, executors, administrators, assigns, and representatives) of the one part and (1) Mr. Uttam Yadaw (2) Mr. Phagulal Patel , and (3) Mr. Satya Prakash Sav all also of Indian Inhabitants, hereinafter jointly called the Trustees (which expression shall unless excluded by or repugnant to the subject and context be deemed to include the trustees for the time being of these presents and/or Survivor or Survivors of any of them and their Successor or Successors in Office) of the other part:
Whereas,
1. The Settlor is desirous of creating an endowment by setting apart and establishing a Fund for the Public Religious and Charitable objects and purposes in India hereinafter expressed.
2. The Trustees have at the request of Settlor agreed to act as Trustees of these presents upon the terms and provisions hereinafter contained.
Now This Indenture Witnesseth as follows:
1. In order to effectuate the said object of creating and establishing a Public Charitable Trust, the Settlor has delivered to and made over to the Trustees a sum of Rs. 100 crores (Rupees hundred crores) only, with intent to part with all his right, title and interest claim therein and vest the same in the Trustees to have and to hold the same and the investment or investments for the time being representing the same and all other properties that may for the time being represent the trust estate together with all additions and accretions thereto and all accumulated income thereof and all other property or properties that may be acquired out of the same or otherwise may hereafter be subject to the trust (hereinafter referred to as the Trust Fund) for the charitable objects and purposes and uses hereinafter expressed with the powers and on the terms and conditions herein contained of and concerning the same.
2. The name of the Trust shall be Sterling Charitable Trust and the office of the trust shall be situated at No. 138/6, Dalal Street, Bangalore which may be shifted from time to time to such other place or places as the trustees may deem fit and proper at their discretion.
3. The objects of the Trust shall be:
· To establish, promote, set-up, run, maintain, assist, finance support and/or aid to or help in the setting up and/or maintaining and/or running schools and other institutions, orphanages, widow homes, lunatic asylums, poor houses or other establishments for relief and/or help to the poor, old and infirm people and/or destitute.
· To give, provide and/or render help and assistance to and/or implement any scheme for providing livelihood and upliftment of the poor.
· To give, provide and/or render help and assistance in cash or kind to poor and/or destitute people windows, etc.
· To give, provide and/or render food, medicine and other help and/or assistance in any shape or form to the poor, deserving and needy persons.
· To give, provide and/or render monetary and/or other help and assistance for the relief of persons and animals affected by natural calamities.
· To establish, maintain or grant aid for the establishment or maintenance of wells, tube-wells, tanks, water-reservoirs and trees and constructions of and repairs to paths, roads, bridges, etc. for the use of the public.
· To open, find, establish, promote, set-up, run, maintain, assist, finance, support and/or aid or help in the setting up and/or maintaining and/or running schools, colleges, lecture halls and other establishments or institutions for advancement of education and of knowledge.
· To meet traveling, boarding and lodging expenses for students going abroad for higher commercial and technical education.
· To open, find, establish, promote, set up, run, maintain, assist, finance, support and/or aid or help in the setting up and/or maintaining and/or running hospitals, charitable dispensaries, maternity homes, child welfare centres, convalescent homes, sanatoriums, hostels and other similar institutions or centres for rendering or providing medical relief and/or aid to the suffering humanities.
4. If any one or more of the objects specified in clause (3) of these presents are held not to be objects of a public charitable nature, the Trustees shall not carry out such object or objects without hindering the validity of trust as a public charitable trust.
5. The financial year of the trust shall end on 31st March, every year provided that the board of trustees shall be at liberty to change the same from time to time if they so deem it fit and proper. The first financial year of the trust shall close on 31st March, 2007.
6. The Trustees shall from time to time after meeting the expenses of and incidental to the management of the Trust Properties and of the trust decide the particular object or objects for which the income or corpus of the trust fund or properties for the time being available shall be applied.
7. The Trustees may accept any donation or contribution in cash or in kind from any person, firm, company, corporation, associations, institution or trust (including the Settlor or the trustees or any of them) for the furtherance of the objects of the trust or for any one or more of them upon such terms and conditions as they may in their absolute discretion think fit and which are not inconsistent with the objects of the trust. The trustees may also take over the management of any other charitable or public institutions on such terms as they think fit and may manage such institutions.
8. Without affecting the generality of powers and functions of the Trustees to manage and administer the trust, the board of trustees shall have the following functions:
To borrow if needed against the security of the assets of the trust by way of bank overdrafts, loan or otherwise, as may be necessary, for the benefit of the trust and for effectively carrying out the objects of the trust provided however, the trustees unanimously agree on such borrowing and limited to the terms of their decision or agreement and to authorize two or more of the trustees to execute such documents, deeds, papers, etc. as may be necessary in connection therewith.
To arrange for and/or authorize the signing or execution of any agreement, contract, instrument, document or any other paper or writing required to be signed or executed on behalf of the trustees to be nominated in this behalf by the board of trustees and to make the same effective and binding as if the said agreement, contract, instrument or document or paper or writing were signed by all the trustees.
To appoint or make provisions for the appointment of a sub committee of trustees to attend or to supervise or conduct specified jobs or functions or trust matters in such manner and subject to such rules and regulations as the board of trustees may from time to time think fit and proper.
To spend any portion of the corpus or the income of the trust fund for purchasing any land and or constructing any building or buildings for and in the name of the trust for the purpose of carrying out, promoting and/or executing any or all of the objects of the trust.
9. The Trustees shall cause true and accurate accounts to be kept of all moneys received and spent as well as of the assets, credits and effects of the trust properties.
10. The Trustees may invest the trust estate either in the purchase of immovable properties or of mortgage immovable properties, or in such manner as allowed by law as may in force from time to time and to convert, alter, vary and to dispose of or transfer such investments form time to time provided that such investments shall not be made which are directly or indirectly for the benefit of any person referred to in sub-section (3) of the Section 13 of the Income Tax Act , 1961, or any subsequent amendments as may be made from time to time.
11. The unexpended income subject t the applicable provisions of the Income Tax Act, 1961, shall be carried over to the next year or years for the advancement of any of the objects of the trust.
12. The Trustees shall be at liberty to sell such portion or portions of the movable or immovable properties forming part of the trust estate as they may in their absolute discretion think fit and to rescind or vary any contract for the sale thereof and to resell the same without being answerable for any loss occasioned thereby and to execute all conveyances or other assurances and to pass valid or effectual receipts and discharges for all moneys received by them.
13. The Trustees shall keep an account or accounts with any bank or banks, to operate, to give all appropriate instructions and to authorize by appropriate resolution two or more of the trustees jointly with an agent appointed by the Board of Trustees in this behalf to operate such account or accounts.
14. The Trustees may pay all charges and outgoings payable in respect of any immovable property for the time being forming part of the Trust Fund and may carry out repairs and keep the same insured and may incur all charges incidental to the administration and management of the trust estate and the properties for the time being belonging to the trust as they may in their absolute discretion think fit.
15. The Trustees may manage or supervise the management of any lands, hereditaments, and premises for the time being comprised in the Trust Estate or any part thereof with power to erect, pull down, re-build, add to, alter and repair houses and other buildings and to build drains and make roads and fences and otherwise to improve and develop and to cultivate or cause to be cultivated all or any of the said lands, hereditaments and premises and to insure houses and buildings against loss or damage by fire and/or other risks or to let, lease, make allowances to and arrangements with tenants, agriculturists and generally to deal with the said lands, hereditaments and premises as they may deem fit in their absolute discretion.
16. The Trustees may appoint Secretaries, Managers, Lawyers, Solicitors, Auditors, Architects, Engineers, Surveyors, Gomastas or other employees for the purpose of management and supervision of the Trust Estate, for collection of rents, effects and profits, for keeping the accounts and records and for other purpose of the trust.
17. The Trustees may establish their office at such place or places and may change such places from time to time as they may think fit.
18. The Trustees may demise the immovable property or properties for the time being and from time to time belonging to the trust from year to year or for any fixed term or for any term of years or on monthly tenancies at such rent and subject to such covenants and conditions as they may think proper and also accept surrenders of lease and tenancies and generally manage the same in such manner as they think proper.
19. The Trustees shall have full power to compromise or compound all actions, suits, and other proceedings and settle differences and disputes touching the Trust Estate and / or the Trust Properties and to refer any such differences or disputes to arbitration and to adjust and settle all accounts relating to the Trust Estate and/or the Trust Properties and to do all other acts and things fully and effectually without being liable or answerable for any bonafide loss occasioned thereby.
20. The Trustees may join, co-operate and amalgamate the trusts created by these presents or any portion thereof with any trust or institution having allied and or similar objects upon such terms as they may in their absolute discretion think fit.
21. The Trustees may from time to time frame schemes and rules and regulations to carry out the objects of the trust and for managing the affairs of the trust and otherwise for giving effect to the objects and purposes of the trust and to vary the same from time to time as the trustees may in their discretion deem fit and proper.
22. The receipts granted by the Trustees or any one or more of them for any moneys, stocks, funds, shares, securities or investments paid, delivered or transferred to them in exercise of the trust or powers hereof shall effectually release and discharge the person or persons paying, delivering or transferring the same therefrom and from seeing or from being bound to see the application thereof or being answerable for the loss or misapplication thereof.
23. The Trustees shall be entitled at their discretion from time to time to start, discontinue, abolish and restart any charity or charitable institution, to impose any condition or conditions to any subscription or donation made by them and to earmark any portion of the Trust Property or income for any particular object or objects.
24. The Trustees may reimburse themselves and pay and discharge out of the Trust Fund all expenses incurred by them in or about the execution of the trust or any of their duties under these presents including traveling expenses, but will not be entitled to any remuneration.
25. All the Trustees unless they voluntarily resign or otherwise decide, shall continue to be the trustees during the term of their natural lives.
26. The number of trustees shall be not less than two and not more than nine.
27. Any trustee may retire at any time without assigning any reason and without being responsible for any costs occasioned by such retirement.
28. The surviving or continuing Trustees may notwithstanding any vacancy in their board act as trustees Provided However that if the number of Trustees shall fall below two the minimum fixed by these presents, the trustees shall not, except for the purpose of filling any vacancy, act so long as the number is below the said minimum.
29. Two Trustees at a meeting shall form a quorum for any meeting of the Trustees.
30. The Trustees for the time being shall elect from amongst them one Chairman and he shall hold office for two years, unless he resigns or refuses to act as Chairman or otherwise ceases to be trustee.
31. All proceedings and questions and matters arising at the meeting of the Trustees shall be decided by a majority of votes and in case of equality of votes the Chairman shall have a second or casting vote Provided However that notwithstanding anything herein stated no question dealing with the disposal of the corpus of any of the trust properties and/or investment out of the trust corpus shall be decided except with the consent of the Chairman of the trust.
32. In case of difference of opinion between the Trustees the opinion of the majority shall prevail and if the Trustees are equally divided in any matter, the Chairman shall have a casting vote.
33. A resolution in writing circulated amongst all the Trustees and signed by a majority of the Trustees present in India shall be as valid and effectual as if it had been passed at a meeting of the Trustees duly convened and held.
34. Notice of the meeting of the Trustees and all communications may be sent to the Trustees s at their addresses registered for the time being in the records of the trust.
35. All meetings of the trust shall be held at such place and at such time as the Chairman of the trust shall decide from time to time.
36. A trustee who is unable to be present at a meeting of the Trustees may send his views on the agenda in writing and such expression of opinion shall be taken to be his vote on the matter concerned.
37. The minutes of the proceedings of every meeting of the Trustees shall be entered in a book to be kept for that purposes and signed by the Chairman of such meeting or of the following meeting when they are read over and shall when so entered and signed be conclusive evidence of the business and other matters transacted at such meeting.
38. No person being:-
a. An undischarged insolvent; or
b. Convicted of an offence involving moral turpitude; or
c. Of unsound mind; or
d. A minor;
Shall be eligible to be a trustee.
39. The power to appoint new or additional Trustees, but so as not to exceed the maximum number and to fill vacancies in the office of the trustees, shall vest in the continuing trustee or trustees.
40. A person shall cease to be a trustee in any of the following events:
a. If he dies; or
b. If he becomes bankrupt; or
c. If he becomes insane or otherwise become incapable to act; or
d. If he resigns his office.
41. On a new or additional trustee being appointed and on his signifying his acceptance in writing to the effect of his accepting the appointment, the Trust Property shall automatically vest in him along with the other Trustees for the time being and he will be entitled to carry out all the duties and functions of a trustee without any other deed or writing.
42. The Board of Trustees shall be entitled to sue in the name of the trust and may similarly be sued in the name of the trust.
43. The Board of the Trustees may, by a unanimous vote of all the Trustees for the time being except the trustee proposed to be removed, remove any trustee, permanent or otherwise, from office after finding the trustee proposed to be removed guilty of serious misconduct in relation to or concerning the trust estate or trust affairs and after arriving at a definite conclusion that for the reasons to be recorded in writing the continuance of the trustee proposed to be removed as trustee or these presents was desirable keeping to the objects of the trust in view and other related or connected matters provided however that no conclusion of such guilt shall be arrived at without giving to the trustee proposed to be removed a full and fair opportunity of explaining his conduct and/or the charges leveled against him for his removal. And the decision of the Board of Trustees in this behalf shall be final and binding and shall not be called in question anywhere.
In Witness Whereof the Settlor and the Trustees have executed these presents on the day, month and year above mentioned.
(Earnest Gardia)
Signed and delivered by the Settlor
At Raipur in the presence of:
Mr. Upendra Bagh
Mr. Padamlochan Patel
Mr. Savroop Matari
(Earnest Gardia)
(Uttam Yadaw )
(Phagulal Patel)
(Satya Prakash Sav )
Signed and delivered by the Trustees
At Raipur in the presence of:
Mr. Upendra Bagh
Mr. Padamlochan Patel
Mr. Savroop Matari
Whereas,
1. The Settlor is desirous of creating an endowment by setting apart and establishing a Fund for the Public Religious and Charitable objects and purposes in India hereinafter expressed.
2. The Trustees have at the request of Settlor agreed to act as Trustees of these presents upon the terms and provisions hereinafter contained.
Now This Indenture Witnesseth as follows:
1. In order to effectuate the said object of creating and establishing a Public Charitable Trust, the Settlor has delivered to and made over to the Trustees a sum of Rs. 100 crores (Rupees hundred crores) only, with intent to part with all his right, title and interest claim therein and vest the same in the Trustees to have and to hold the same and the investment or investments for the time being representing the same and all other properties that may for the time being represent the trust estate together with all additions and accretions thereto and all accumulated income thereof and all other property or properties that may be acquired out of the same or otherwise may hereafter be subject to the trust (hereinafter referred to as the Trust Fund) for the charitable objects and purposes and uses hereinafter expressed with the powers and on the terms and conditions herein contained of and concerning the same.
2. The name of the Trust shall be Sterling Charitable Trust and the office of the trust shall be situated at No. 138/6, Dalal Street, Bangalore which may be shifted from time to time to such other place or places as the trustees may deem fit and proper at their discretion.
3. The objects of the Trust shall be:
· To establish, promote, set-up, run, maintain, assist, finance support and/or aid to or help in the setting up and/or maintaining and/or running schools and other institutions, orphanages, widow homes, lunatic asylums, poor houses or other establishments for relief and/or help to the poor, old and infirm people and/or destitute.
· To give, provide and/or render help and assistance to and/or implement any scheme for providing livelihood and upliftment of the poor.
· To give, provide and/or render help and assistance in cash or kind to poor and/or destitute people windows, etc.
· To give, provide and/or render food, medicine and other help and/or assistance in any shape or form to the poor, deserving and needy persons.
· To give, provide and/or render monetary and/or other help and assistance for the relief of persons and animals affected by natural calamities.
· To establish, maintain or grant aid for the establishment or maintenance of wells, tube-wells, tanks, water-reservoirs and trees and constructions of and repairs to paths, roads, bridges, etc. for the use of the public.
· To open, find, establish, promote, set-up, run, maintain, assist, finance, support and/or aid or help in the setting up and/or maintaining and/or running schools, colleges, lecture halls and other establishments or institutions for advancement of education and of knowledge.
· To meet traveling, boarding and lodging expenses for students going abroad for higher commercial and technical education.
· To open, find, establish, promote, set up, run, maintain, assist, finance, support and/or aid or help in the setting up and/or maintaining and/or running hospitals, charitable dispensaries, maternity homes, child welfare centres, convalescent homes, sanatoriums, hostels and other similar institutions or centres for rendering or providing medical relief and/or aid to the suffering humanities.
4. If any one or more of the objects specified in clause (3) of these presents are held not to be objects of a public charitable nature, the Trustees shall not carry out such object or objects without hindering the validity of trust as a public charitable trust.
5. The financial year of the trust shall end on 31st March, every year provided that the board of trustees shall be at liberty to change the same from time to time if they so deem it fit and proper. The first financial year of the trust shall close on 31st March, 2007.
6. The Trustees shall from time to time after meeting the expenses of and incidental to the management of the Trust Properties and of the trust decide the particular object or objects for which the income or corpus of the trust fund or properties for the time being available shall be applied.
7. The Trustees may accept any donation or contribution in cash or in kind from any person, firm, company, corporation, associations, institution or trust (including the Settlor or the trustees or any of them) for the furtherance of the objects of the trust or for any one or more of them upon such terms and conditions as they may in their absolute discretion think fit and which are not inconsistent with the objects of the trust. The trustees may also take over the management of any other charitable or public institutions on such terms as they think fit and may manage such institutions.
8. Without affecting the generality of powers and functions of the Trustees to manage and administer the trust, the board of trustees shall have the following functions:
To borrow if needed against the security of the assets of the trust by way of bank overdrafts, loan or otherwise, as may be necessary, for the benefit of the trust and for effectively carrying out the objects of the trust provided however, the trustees unanimously agree on such borrowing and limited to the terms of their decision or agreement and to authorize two or more of the trustees to execute such documents, deeds, papers, etc. as may be necessary in connection therewith.
To arrange for and/or authorize the signing or execution of any agreement, contract, instrument, document or any other paper or writing required to be signed or executed on behalf of the trustees to be nominated in this behalf by the board of trustees and to make the same effective and binding as if the said agreement, contract, instrument or document or paper or writing were signed by all the trustees.
To appoint or make provisions for the appointment of a sub committee of trustees to attend or to supervise or conduct specified jobs or functions or trust matters in such manner and subject to such rules and regulations as the board of trustees may from time to time think fit and proper.
To spend any portion of the corpus or the income of the trust fund for purchasing any land and or constructing any building or buildings for and in the name of the trust for the purpose of carrying out, promoting and/or executing any or all of the objects of the trust.
9. The Trustees shall cause true and accurate accounts to be kept of all moneys received and spent as well as of the assets, credits and effects of the trust properties.
10. The Trustees may invest the trust estate either in the purchase of immovable properties or of mortgage immovable properties, or in such manner as allowed by law as may in force from time to time and to convert, alter, vary and to dispose of or transfer such investments form time to time provided that such investments shall not be made which are directly or indirectly for the benefit of any person referred to in sub-section (3) of the Section 13 of the Income Tax Act , 1961, or any subsequent amendments as may be made from time to time.
11. The unexpended income subject t the applicable provisions of the Income Tax Act, 1961, shall be carried over to the next year or years for the advancement of any of the objects of the trust.
12. The Trustees shall be at liberty to sell such portion or portions of the movable or immovable properties forming part of the trust estate as they may in their absolute discretion think fit and to rescind or vary any contract for the sale thereof and to resell the same without being answerable for any loss occasioned thereby and to execute all conveyances or other assurances and to pass valid or effectual receipts and discharges for all moneys received by them.
13. The Trustees shall keep an account or accounts with any bank or banks, to operate, to give all appropriate instructions and to authorize by appropriate resolution two or more of the trustees jointly with an agent appointed by the Board of Trustees in this behalf to operate such account or accounts.
14. The Trustees may pay all charges and outgoings payable in respect of any immovable property for the time being forming part of the Trust Fund and may carry out repairs and keep the same insured and may incur all charges incidental to the administration and management of the trust estate and the properties for the time being belonging to the trust as they may in their absolute discretion think fit.
15. The Trustees may manage or supervise the management of any lands, hereditaments, and premises for the time being comprised in the Trust Estate or any part thereof with power to erect, pull down, re-build, add to, alter and repair houses and other buildings and to build drains and make roads and fences and otherwise to improve and develop and to cultivate or cause to be cultivated all or any of the said lands, hereditaments and premises and to insure houses and buildings against loss or damage by fire and/or other risks or to let, lease, make allowances to and arrangements with tenants, agriculturists and generally to deal with the said lands, hereditaments and premises as they may deem fit in their absolute discretion.
16. The Trustees may appoint Secretaries, Managers, Lawyers, Solicitors, Auditors, Architects, Engineers, Surveyors, Gomastas or other employees for the purpose of management and supervision of the Trust Estate, for collection of rents, effects and profits, for keeping the accounts and records and for other purpose of the trust.
17. The Trustees may establish their office at such place or places and may change such places from time to time as they may think fit.
18. The Trustees may demise the immovable property or properties for the time being and from time to time belonging to the trust from year to year or for any fixed term or for any term of years or on monthly tenancies at such rent and subject to such covenants and conditions as they may think proper and also accept surrenders of lease and tenancies and generally manage the same in such manner as they think proper.
19. The Trustees shall have full power to compromise or compound all actions, suits, and other proceedings and settle differences and disputes touching the Trust Estate and / or the Trust Properties and to refer any such differences or disputes to arbitration and to adjust and settle all accounts relating to the Trust Estate and/or the Trust Properties and to do all other acts and things fully and effectually without being liable or answerable for any bonafide loss occasioned thereby.
20. The Trustees may join, co-operate and amalgamate the trusts created by these presents or any portion thereof with any trust or institution having allied and or similar objects upon such terms as they may in their absolute discretion think fit.
21. The Trustees may from time to time frame schemes and rules and regulations to carry out the objects of the trust and for managing the affairs of the trust and otherwise for giving effect to the objects and purposes of the trust and to vary the same from time to time as the trustees may in their discretion deem fit and proper.
22. The receipts granted by the Trustees or any one or more of them for any moneys, stocks, funds, shares, securities or investments paid, delivered or transferred to them in exercise of the trust or powers hereof shall effectually release and discharge the person or persons paying, delivering or transferring the same therefrom and from seeing or from being bound to see the application thereof or being answerable for the loss or misapplication thereof.
23. The Trustees shall be entitled at their discretion from time to time to start, discontinue, abolish and restart any charity or charitable institution, to impose any condition or conditions to any subscription or donation made by them and to earmark any portion of the Trust Property or income for any particular object or objects.
24. The Trustees may reimburse themselves and pay and discharge out of the Trust Fund all expenses incurred by them in or about the execution of the trust or any of their duties under these presents including traveling expenses, but will not be entitled to any remuneration.
25. All the Trustees unless they voluntarily resign or otherwise decide, shall continue to be the trustees during the term of their natural lives.
26. The number of trustees shall be not less than two and not more than nine.
27. Any trustee may retire at any time without assigning any reason and without being responsible for any costs occasioned by such retirement.
28. The surviving or continuing Trustees may notwithstanding any vacancy in their board act as trustees Provided However that if the number of Trustees shall fall below two the minimum fixed by these presents, the trustees shall not, except for the purpose of filling any vacancy, act so long as the number is below the said minimum.
29. Two Trustees at a meeting shall form a quorum for any meeting of the Trustees.
30. The Trustees for the time being shall elect from amongst them one Chairman and he shall hold office for two years, unless he resigns or refuses to act as Chairman or otherwise ceases to be trustee.
31. All proceedings and questions and matters arising at the meeting of the Trustees shall be decided by a majority of votes and in case of equality of votes the Chairman shall have a second or casting vote Provided However that notwithstanding anything herein stated no question dealing with the disposal of the corpus of any of the trust properties and/or investment out of the trust corpus shall be decided except with the consent of the Chairman of the trust.
32. In case of difference of opinion between the Trustees the opinion of the majority shall prevail and if the Trustees are equally divided in any matter, the Chairman shall have a casting vote.
33. A resolution in writing circulated amongst all the Trustees and signed by a majority of the Trustees present in India shall be as valid and effectual as if it had been passed at a meeting of the Trustees duly convened and held.
34. Notice of the meeting of the Trustees and all communications may be sent to the Trustees s at their addresses registered for the time being in the records of the trust.
35. All meetings of the trust shall be held at such place and at such time as the Chairman of the trust shall decide from time to time.
36. A trustee who is unable to be present at a meeting of the Trustees may send his views on the agenda in writing and such expression of opinion shall be taken to be his vote on the matter concerned.
37. The minutes of the proceedings of every meeting of the Trustees shall be entered in a book to be kept for that purposes and signed by the Chairman of such meeting or of the following meeting when they are read over and shall when so entered and signed be conclusive evidence of the business and other matters transacted at such meeting.
38. No person being:-
a. An undischarged insolvent; or
b. Convicted of an offence involving moral turpitude; or
c. Of unsound mind; or
d. A minor;
Shall be eligible to be a trustee.
39. The power to appoint new or additional Trustees, but so as not to exceed the maximum number and to fill vacancies in the office of the trustees, shall vest in the continuing trustee or trustees.
40. A person shall cease to be a trustee in any of the following events:
a. If he dies; or
b. If he becomes bankrupt; or
c. If he becomes insane or otherwise become incapable to act; or
d. If he resigns his office.
41. On a new or additional trustee being appointed and on his signifying his acceptance in writing to the effect of his accepting the appointment, the Trust Property shall automatically vest in him along with the other Trustees for the time being and he will be entitled to carry out all the duties and functions of a trustee without any other deed or writing.
42. The Board of Trustees shall be entitled to sue in the name of the trust and may similarly be sued in the name of the trust.
43. The Board of the Trustees may, by a unanimous vote of all the Trustees for the time being except the trustee proposed to be removed, remove any trustee, permanent or otherwise, from office after finding the trustee proposed to be removed guilty of serious misconduct in relation to or concerning the trust estate or trust affairs and after arriving at a definite conclusion that for the reasons to be recorded in writing the continuance of the trustee proposed to be removed as trustee or these presents was desirable keeping to the objects of the trust in view and other related or connected matters provided however that no conclusion of such guilt shall be arrived at without giving to the trustee proposed to be removed a full and fair opportunity of explaining his conduct and/or the charges leveled against him for his removal. And the decision of the Board of Trustees in this behalf shall be final and binding and shall not be called in question anywhere.
In Witness Whereof the Settlor and the Trustees have executed these presents on the day, month and year above mentioned.
(Earnest Gardia)
Signed and delivered by the Settlor
At Raipur in the presence of:
Mr. Upendra Bagh
Mr. Padamlochan Patel
Mr. Savroop Matari
(Earnest Gardia)
(Uttam Yadaw )
(Phagulal Patel)
(Satya Prakash Sav )
Signed and delivered by the Trustees
At Raipur in the presence of:
Mr. Upendra Bagh
Mr. Padamlochan Patel
Mr. Savroop Matari
DEED OF SALE OF HOUSE PROPERTY
THIS DEED OF SALE is made at Raipur, Chhattisgarh the 6th day of March 2007, between Mr. Jai Guru s/o Mr. Malik Guru, aged about 40 years and residing at G-10, Shankar Nagar, Raipur, Chhattisgarh, hereinafter called ‘the VENDOR’ (which term shall unless the context otherwise requires include his heirs, successors, administrators and assigns) of the One Part and Mr. Snehal Singh s/o Mr. Sameer Singh, aged about 48 years and residing at 8/16, Avanti Vihar, Near Shiv Temple, Raipur, Chhattisgarh hereinafter called ‘the PURCHASER’ (which term shall unless the context otherwise requires include his heirs, successors, administrators and assigns) of the Other Part;
Whereas –
1. The Vendor is lawfully seized and possessed of or otherwise well and sufficiently entitled to the land and premises situate at Plot No. 422/180, Nehru Nagar, Raipur, Chhattisgarh and more particularly described in the Schedule hereunder written.
2. The Vendor has agreed to sell the said land and premises to the Purchaser at the price and on the terms and conditions hereinafter mentioned.
NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS :
1. The Vendor shall sell and the Purchaser shall purchase the said land and premises more particularly described in the Schedule hereto for a price of Rs. 5,00,000/- out of which the Purchaser has paid to the Vendor a sum of Rs. 1,00,000/- as earnest money on the execution of this agreement (receipt whereof the Vendor doth hereby admit) and the balance will be paid on the execution of the Deed of Conveyance as hereinafter mentioned.
2. The Vendor shall make out a marketable title to the said property free from encumbrances and reasonable doubts.
3. The Vendor shall deliver the title deeds relating to the said property in his possession or power within eight days from the date thereof for inspection thereof by the Purchaser or his Advocate for investigation of title. The said document may be handed over to the Purchaser’s Advocate against his personal acknowledgement/accountable receipt for the sake of convenience, if so required by the Purchaser’s Advocate.
4. The Purchaser shall deliver the requisitions and objections (if any) in respect of the title and all other matters arising upon the title deeds and general searches made by the Purchaser’s Advocate, or this Agreement to the Vendor’s Advocate within 14 days after the day of the delivery of the title deeds for inspection as aforesaid and the replies to answers shall be given by the Vendor within 7 days after the receipt thereof and in these respects time shall be of the essence of the contract. In default of or subject only to any such requisitions and objections so made the Purchaser shall be deemed to have accepted the title.
5. If the Purchaser shall insist on any requisitions or objection of any kind which the Vendor shall be unable or unwilling to remove or comply with the Vendor may (notwithstanding any intermediate negotiations or litigation in respect thereof) give notice in writing to the Purchaser or his Advocate of the intention of the Vendor to rescind this contract unless such requisition or objection shall be withdrawn and if such notice shall be given and the requisition or objection shall not be withdrawn within 7 days after the day on which the notice was sent, this contract shall without further notice stand rescinded. The Vendor shall thereupon return to the Purchaser the deposit but without any interest, costs or other compensation or payment whatsoever.
6. The outgoings in respect of the said property by way of property taxes, ground rent, land revenue, payable till the completion of the sale will be paid by the Vendor and thereafter they will be paid by the Purchaser and the same if necessary will be apportioned as on the date of completion, of this transaction.
7. The sale will be completed within a period of four months from the date hereof.
8. The sale will be completed by the Vendor executing a Deed of Conveyance in favour of the Purchaser or his nominee against the Purchaser or his nominee paying the said purchase price, less the amount of earnest money paid as aforesaid. The draft of the Deed of Conveyance will be prepared by the Purchaser’s Advocate and approved by the Vendor’s Advocate.
9. On completion of the sale as aforesaid, the Vendor will give possession of the said property to the Purchaser by delivering vacant possession of such portion thereof as is vacant and by attorning tenants of such portion thereof as are occupied by them, to the Purchaser.
10. The Vendor declares that the said property is not subject to any acquisition or requisition an no notice has been received by him for carrying out any heavy or structural repairs. If any notice for acquisition or requisition or structural repairs is issued and received by the Vendor before completion of sale, the Purchaser will have the option to cancel this agreement and in that event the Vendor will return the earnest money paid to him by the Purchaser.
11. If the Vendor fails to make out a marketable title as aforesaid, the Purchaser will have the right to cancel this agreement by giving at least fifteen days prior notice to the Vendor to that effect and on the expiration of the said period, the agreement shall stand terminated and in that event the Vendor will return the earnest money to the Purchaser and each party will bear and pay the costs of and incidental to this agreement.
12. If the Vendor makes default in completing the sale within the stipulated period, the purchaser shall, have the right to make time essence of the contract and to cancel this agreement thereafter by giving at least fifteen days notice to the Vendor to that effect and on the cancellation of the agreement, the Purchaser shall be entitled to claim and recover from the vendor not only the said amount of earnest money but also all costs, charges and expenses incurred by the Purchaser of and incidental to this agreement and the damages suffered by him. This is without prejudice to the right of the Purchaser to seek specific performance of this agreement through Court.
13. If the Purchaser makes default in completing the sale, within the stipulated period, the Vendor shall be entitled to make time essence of the contract and to cancel this agreement, thereafter by giving at least fifteen days notice in writing to the purchaser to that effect and on the cancellation of the agreement, the Purchaser will forfeit his right to the said earnest money which will be appropriated by the Vendor towards his claim for damages including the costs, chares and expenses of and incidental to this agreement.
14. Before execution of the deed of sale, the Vendor will obtain Income Tax Certificate under Section 230A of the Income Tax Act, 1961 as a condition precedent to the completion of sale.
15. The expenses by way of stamp duty payable on this agreement and the Deed of conveyance and any other document if executed pursuant to the agreement and the registration charges in respect thereof will be shared and paid by the parties hereto in equal shares and each party will bear and pay his advocates fees and other expenses incurred by him.
The Schedule of Property
All the piece and parcel of immovable property bearing No. 22/786 Measuring about 2500 Sq. feet, situated at Devipura, Raipur, Near Mazid, Raipur.
Bounded by:-
On the East: House No. 18, owned by Mr. Kishore Kumar
On the West: House No. 20, owned by Mr. Subha Mudgal
On the South: Army Street
On the North: Mana Street (Officer Colony)
Market value of the property leased under this deed is Rs. 4, 00, 000/-(Rupees Four Lakhs only). The Stamp duty is paid as per Section 6 of the Schedule to the Chattisgarh Stamp Act, 2000.
IN WITNESS WHEREOF the Parties have put their respective hands the day and year first above written.
Jai Guru
(Vendor)
Signed, sealed and delivered by Mr. Anshul Sharma
The Vendor in the presence of:
1. Mrs. Gauri Kapoor
2. Mrs. Kim Sharma
3. Mr. Ajay Gupta
Mr. Snehal Singh
(Purchaser)
Signed and delivered by Mr. Govind Mehta
The Purchaser in the presence of:
1. Mr. Chandra Desai
2. Mr. Sagar Shukla
3. Mr. Vinayak Mishra
Memo of Consideration
Received of and from the within-named purchaser the within-mentioned sum of Rs. 5,00,000/- in full payable under these presents by bank draft No. 43789 dated 08/03/2007 for Rs 5,00,000/-drawan in City Bank, Main Branch, Raipur, Chhattisgarh.
Jai Guru
Signature of VENDOR
Whereas –
1. The Vendor is lawfully seized and possessed of or otherwise well and sufficiently entitled to the land and premises situate at Plot No. 422/180, Nehru Nagar, Raipur, Chhattisgarh and more particularly described in the Schedule hereunder written.
2. The Vendor has agreed to sell the said land and premises to the Purchaser at the price and on the terms and conditions hereinafter mentioned.
NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS :
1. The Vendor shall sell and the Purchaser shall purchase the said land and premises more particularly described in the Schedule hereto for a price of Rs. 5,00,000/- out of which the Purchaser has paid to the Vendor a sum of Rs. 1,00,000/- as earnest money on the execution of this agreement (receipt whereof the Vendor doth hereby admit) and the balance will be paid on the execution of the Deed of Conveyance as hereinafter mentioned.
2. The Vendor shall make out a marketable title to the said property free from encumbrances and reasonable doubts.
3. The Vendor shall deliver the title deeds relating to the said property in his possession or power within eight days from the date thereof for inspection thereof by the Purchaser or his Advocate for investigation of title. The said document may be handed over to the Purchaser’s Advocate against his personal acknowledgement/accountable receipt for the sake of convenience, if so required by the Purchaser’s Advocate.
4. The Purchaser shall deliver the requisitions and objections (if any) in respect of the title and all other matters arising upon the title deeds and general searches made by the Purchaser’s Advocate, or this Agreement to the Vendor’s Advocate within 14 days after the day of the delivery of the title deeds for inspection as aforesaid and the replies to answers shall be given by the Vendor within 7 days after the receipt thereof and in these respects time shall be of the essence of the contract. In default of or subject only to any such requisitions and objections so made the Purchaser shall be deemed to have accepted the title.
5. If the Purchaser shall insist on any requisitions or objection of any kind which the Vendor shall be unable or unwilling to remove or comply with the Vendor may (notwithstanding any intermediate negotiations or litigation in respect thereof) give notice in writing to the Purchaser or his Advocate of the intention of the Vendor to rescind this contract unless such requisition or objection shall be withdrawn and if such notice shall be given and the requisition or objection shall not be withdrawn within 7 days after the day on which the notice was sent, this contract shall without further notice stand rescinded. The Vendor shall thereupon return to the Purchaser the deposit but without any interest, costs or other compensation or payment whatsoever.
6. The outgoings in respect of the said property by way of property taxes, ground rent, land revenue, payable till the completion of the sale will be paid by the Vendor and thereafter they will be paid by the Purchaser and the same if necessary will be apportioned as on the date of completion, of this transaction.
7. The sale will be completed within a period of four months from the date hereof.
8. The sale will be completed by the Vendor executing a Deed of Conveyance in favour of the Purchaser or his nominee against the Purchaser or his nominee paying the said purchase price, less the amount of earnest money paid as aforesaid. The draft of the Deed of Conveyance will be prepared by the Purchaser’s Advocate and approved by the Vendor’s Advocate.
9. On completion of the sale as aforesaid, the Vendor will give possession of the said property to the Purchaser by delivering vacant possession of such portion thereof as is vacant and by attorning tenants of such portion thereof as are occupied by them, to the Purchaser.
10. The Vendor declares that the said property is not subject to any acquisition or requisition an no notice has been received by him for carrying out any heavy or structural repairs. If any notice for acquisition or requisition or structural repairs is issued and received by the Vendor before completion of sale, the Purchaser will have the option to cancel this agreement and in that event the Vendor will return the earnest money paid to him by the Purchaser.
11. If the Vendor fails to make out a marketable title as aforesaid, the Purchaser will have the right to cancel this agreement by giving at least fifteen days prior notice to the Vendor to that effect and on the expiration of the said period, the agreement shall stand terminated and in that event the Vendor will return the earnest money to the Purchaser and each party will bear and pay the costs of and incidental to this agreement.
12. If the Vendor makes default in completing the sale within the stipulated period, the purchaser shall, have the right to make time essence of the contract and to cancel this agreement thereafter by giving at least fifteen days notice to the Vendor to that effect and on the cancellation of the agreement, the Purchaser shall be entitled to claim and recover from the vendor not only the said amount of earnest money but also all costs, charges and expenses incurred by the Purchaser of and incidental to this agreement and the damages suffered by him. This is without prejudice to the right of the Purchaser to seek specific performance of this agreement through Court.
13. If the Purchaser makes default in completing the sale, within the stipulated period, the Vendor shall be entitled to make time essence of the contract and to cancel this agreement, thereafter by giving at least fifteen days notice in writing to the purchaser to that effect and on the cancellation of the agreement, the Purchaser will forfeit his right to the said earnest money which will be appropriated by the Vendor towards his claim for damages including the costs, chares and expenses of and incidental to this agreement.
14. Before execution of the deed of sale, the Vendor will obtain Income Tax Certificate under Section 230A of the Income Tax Act, 1961 as a condition precedent to the completion of sale.
15. The expenses by way of stamp duty payable on this agreement and the Deed of conveyance and any other document if executed pursuant to the agreement and the registration charges in respect thereof will be shared and paid by the parties hereto in equal shares and each party will bear and pay his advocates fees and other expenses incurred by him.
The Schedule of Property
All the piece and parcel of immovable property bearing No. 22/786 Measuring about 2500 Sq. feet, situated at Devipura, Raipur, Near Mazid, Raipur.
Bounded by:-
On the East: House No. 18, owned by Mr. Kishore Kumar
On the West: House No. 20, owned by Mr. Subha Mudgal
On the South: Army Street
On the North: Mana Street (Officer Colony)
Market value of the property leased under this deed is Rs. 4, 00, 000/-(Rupees Four Lakhs only). The Stamp duty is paid as per Section 6 of the Schedule to the Chattisgarh Stamp Act, 2000.
IN WITNESS WHEREOF the Parties have put their respective hands the day and year first above written.
Jai Guru
(Vendor)
Signed, sealed and delivered by Mr. Anshul Sharma
The Vendor in the presence of:
1. Mrs. Gauri Kapoor
2. Mrs. Kim Sharma
3. Mr. Ajay Gupta
Mr. Snehal Singh
(Purchaser)
Signed and delivered by Mr. Govind Mehta
The Purchaser in the presence of:
1. Mr. Chandra Desai
2. Mr. Sagar Shukla
3. Mr. Vinayak Mishra
Memo of Consideration
Received of and from the within-named purchaser the within-mentioned sum of Rs. 5,00,000/- in full payable under these presents by bank draft No. 43789 dated 08/03/2007 for Rs 5,00,000/-drawan in City Bank, Main Branch, Raipur, Chhattisgarh.
Jai Guru
Signature of VENDOR
CAVEAT APPLICATION
In the Hon’ble Court of the Sub-Judge
Raipur
C.A. NO. ___ of 2007
in
O.S.NO. 121 of 2006
Pummy Panda , s/o Mr. Anil Panda,
Teli Badha near Guruduara, -- Caveator/Original Plaintiff
Raipur, Chhattisgarh India
492001.
versus
Jai Singh , s/o Mr. Ram Singh,
27/65Bairan Bazar, -- Opponent/Original Defendant
Raipur Chhattisgarh ,India
492001.
Caveat filed under section 148A, Code of Civil Procedure
________________________________________________________________________
The Caveator above named begs to state as follows:
That the Caveator/Original Plaintiff filed a suit in the Court of Hon’ble Sub-Judge at Raipur.
The original suit was numbered as O.S. No.121/2006 for directing the defendant to pay a sum of Rs. 60,000/- together with interest @ 10.78% per annum till the date of repayment.
That, the learned judge, by his judgment dated 21.01.2007 decreed the suit in favour of the caveator/plaintiff and ordered the defendant to pay a sum of Rs. 60,000/- together with interest @ 10.78% per annum till the date of repayment.
That, being aggrieved by the decree passed the trial court; the opponent/defendant is likely to institute a first appeal in this Hon’ble court and also expected to apply for stay of the decree passed against him.
That, as the Caveator has obtained a decree in his favour, he has a right to appear before this Hon’ble Court and to oppose stay of decree passed by the Trial Court.
That, the Caveator, therefore, prays that let nothing be done in the matter and no stay and/or interim relief be granted in favour of the opponent by this Hon’ble court without serving a notice of such appeal or application for any stay upon the Caveator and without hearing it.
The Caveator has sent a notice of this caveat by RPAD to the opponent. A copy of the postal slip is attached herewith in proof of the same.
Dated at Raipur on this 24th day of February, 2007.
Counsel for the Caveator,
Edvin Gardia
Raipur
C.A. NO. ___ of 2007
in
O.S.NO. 121 of 2006
Pummy Panda , s/o Mr. Anil Panda,
Teli Badha near Guruduara, -- Caveator/Original Plaintiff
Raipur, Chhattisgarh India
492001.
versus
Jai Singh , s/o Mr. Ram Singh,
27/65Bairan Bazar, -- Opponent/Original Defendant
Raipur Chhattisgarh ,India
492001.
Caveat filed under section 148A, Code of Civil Procedure
________________________________________________________________________
The Caveator above named begs to state as follows:
That the Caveator/Original Plaintiff filed a suit in the Court of Hon’ble Sub-Judge at Raipur.
The original suit was numbered as O.S. No.121/2006 for directing the defendant to pay a sum of Rs. 60,000/- together with interest @ 10.78% per annum till the date of repayment.
That, the learned judge, by his judgment dated 21.01.2007 decreed the suit in favour of the caveator/plaintiff and ordered the defendant to pay a sum of Rs. 60,000/- together with interest @ 10.78% per annum till the date of repayment.
That, being aggrieved by the decree passed the trial court; the opponent/defendant is likely to institute a first appeal in this Hon’ble court and also expected to apply for stay of the decree passed against him.
That, as the Caveator has obtained a decree in his favour, he has a right to appear before this Hon’ble Court and to oppose stay of decree passed by the Trial Court.
That, the Caveator, therefore, prays that let nothing be done in the matter and no stay and/or interim relief be granted in favour of the opponent by this Hon’ble court without serving a notice of such appeal or application for any stay upon the Caveator and without hearing it.
The Caveator has sent a notice of this caveat by RPAD to the opponent. A copy of the postal slip is attached herewith in proof of the same.
Dated at Raipur on this 24th day of February, 2007.
Counsel for the Caveator,
Edvin Gardia
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