Affidavit Affidavits Miscellaneous 437 - Legal Draft

Affidavit

I, ........................... S/o. ....................... aged about ................. years, Resident of ................ District, ..................... now temporarily cam down to ................, do hereby solemnly affirm and state as follows :

1. I am the ....................... petitioner herein and the Managing Partner of the ................. petitioner and as such I am well acquainted with the facts of the case.

2. Aggrieved by the order of the Principal Senior Civil Judge, .............. dated........... in I.A.No................ in I.A.No. .................. in O.S.No. ............... I am preferring the above civil revision petition. The Respondent herein filed the suit O.S.No............. for partition of plaint schedule property and for rendition of accounts against the petitioners herein who are the defendants in the suit. We filed written statement contending inter alia as the cinema theatre is the partnership property and not that of individual property the relief of partition is misconceived.

3. Subsequently the respondent herein filed I.A.No.............. in O.S. No........... for appointment of receiver to take possession of the theatre and auction of lease hold rights of the theatre. The said I.A., was allowed by the lower Court by an order dated ............. and appointed the receiver. Aggrieved by the same the petitioners herein filed A.A.O No................ on the file of this Hon’ble Court. The said A.A.O. No. ............. was allowed by this Hon’ble Court by a judgment and decree dated.............., directing me to deposit an amount of Rs. .............. per month towards the share of the respondent herein in the partnership. This Hon’ble Court permitted me to be in possession of the theatre pending disposal of the suit and permitted the respondent to withdraw Rs. ............... without furnishing security and the remaining with security.

4. This Hon’ble Court has further observed in the said judgment that “there is no dispute between the parties that the suit has to be treated as a suit for accounts of a dissolved firm and that a preliminary decree for accounts may be passed as early as possible. We record the statement of the learned counsel for both sides that their respective clients are agreeable for a preliminary decree for accounting of a dissolved partnership may be passed immediately. The Lower Court will therefore hear the parties on that question and take steps to pass a preliminary decree for accounts of a dissolved partnership. It will be for the Lower Court to decide the date from which the partnership should be deemed to have been dissolved, and also decide the shares of the respective parties and give necessary directions for the purpose of passing a final decree.”

5. In respectfully submit that from the above observation it is clear that both the parties have agreed to treat the suit as a suit for accounts of a dissolved partnership firm and a specific direction was given by this Hon’ble Court to treat the suit as a suit for accounts. This order was passed by the Hon’ble High Court on ................ Accordingly a joint memo was filed by both the parties on .............. in the Lower Court to the effect that a preliminary decree may be passed. Accordingly, the trial Court has passed a preliminary decree as per the prayer in the plaint to the effect that :

(a) that the property described in the plant schedule be portioned in - to tow equal shares and one such share be allotted to the plaintiff and that the plaintiff be put in possession of the same;

(b) that the ................. defendant firm i.e. ....................... Partnership firm shall stand dissolved with effect from .....................

(c) that the parties do file statement of accounts showing credits, property and effects now belonging to the partnership debts and liabilities of the partnership, all dealings and transactions between the parties etc. by ............ ;

(d) that the costs of this suit shall follow the result and be provided for in the final decree to be passed in this suit.

6. I submit that the preliminary decree passed by the Lower Court is against the directions of this Hon’ble Court and the terms which are agreed to by both the parties before the Hon’ble High Court in A.A.O..................... It is respectfully submitted that by inadvertence the joint memo was filed praying for a preliminary decree without specifically restricting the relief to the mutually agreed terms before this Hon’ble Court and preliminary decree was passed as per the prayer in the plaint. This fact was not noticed by the petitioners herein, as the enquiry before the Commissioner for accounts has commenced the petitioners were under the impression that the preliminary decree was passed only for the purpose of accounts.

7. While so, taking advantage of the mistake committed the respondent herein file I.A.No............ in O.S.No............... on the file of the Principle Senior Civil Judge, .............. and Order 26 Rule 13, Order 20 Rule 18 for appointment of an advocate commissioner to divide the suit schedule property into two equal shares and to allot one share to him in pursuance of the preliminary decree. Curiously the respondent herein filed the I.A., for appointment of the advocate commissioner to partition the suit schedule property which is Item No. 1 only in the decree and leaving other reliefs. By inadvertence I could not bring to the notice of the Lower Court about the understanding reached between the parties before this Hon’ble Court and the orders of this Hon’ble Court dated ............. in A.A.O. No............. The said I.A. was allowed on ............., against which C.R.P. No........... was preferred and the same is now pending. The Commissioner appointed by the Lower Court in pursuance of the orders in I.A.No............., has filed his report to the effect that partition cannot be effected since the schedule property is a cinema hall. Subsequently, the respondent herein filed another I.A.No. ........ under Section 2 of the Partnership Act Seeking sale of suit schedule cinema hall by public auction or by Court sale. The said I.A., was allowed by the Principal Senior Civil Judge, .............. on ............ without giving any reasons only on the ground that the Respondent was absent, though a specific representation was made by the counsel that the Respondent went for medical checkup. Aggrieved by the said order the petitioners have preferred the above civil revision petition.

8. I humbly submit that I have been depositing an amount of Rs.................... per month in the Lower Court as per the Orders of this Hon’ble Court in A.A.O. No. ..................., dated .............. It is further submitted that the enquiry for accounts before the advocate commissioner has already come to an end and the petitioner herein have already submitted written arguments also and the report is likely to be filed by the Commissioner in the Court soon. I, further submit that if the accounts are settled the Respondent is likely to be indebted to me huge amount which may exceed even his share in the partnership. If the Lower Court is permitted to proceed with the execution of preliminary decree in so far as it relates to partition of the Partnership property at this stage it will be detrimental to the interest of both the parties. Hence, the balance of convenience lies in granting stay of execution of the preliminary decree in so far as it relates to the relief of partition of the cinema theatre.

Hence, in the circumstances it is prayed that the Hon’ble Court may be pleased to grant stay of all further proceedings pursuant to the order dated............... in I.A.No............... in O.S.No.................. on the file of the Principal Senior Civil Judge, ................. including sale of suit schedule theatre pending disposal of the Civil Revision Petition as otherwise the petitioners will be put to server loss and hardship.

Deponent

Solemnly affirmed the contents and signed
herein at .............. on this the .......of ......
                                                                                         

Before me
Advocate, .............