Application for Court Assistance in taking Evidence

Application for Court Assistance in taking Evidence

In the High Court at Calcutta Ordinary Original Civil Jurisdiction

In the matter of:

The Arbitration and Conciliation Act 1996

And

In the matter of:

An application under section 27 of the said Act

And

In the matter of:

Global Distributors Private Ltd., a company registered under the Companies Act 1956 and carrying on business at 32 India Exchange Place, Calcutta 700 001 within the said jurisdiction

Petitioner

versus

1. Eastern Law House Private Ltd., a company registered under the Companies Act 1956 and carrying on business at
54 G.C. Avenue, Calcutta 700 013  within the said jurisdiction

2. Mr. S.N. Chawla, Advocate of 5 Old Post Office Street, Calcutta 700 001

Respondent

To

The Hon’ble Mr. …………………… Chief Justice and His Companion Justices of the said Hon’ble Court

The humble petition of Global Distri-butors Private Ltd., the petitioner above-named most respectfully

Sheweth:

1. Your petitioner is carrying on business as distributor of and dealer in books, journals and allied publications.

2. The first respondent is the publisher of, inter alia, of a book on Computers.

3. By an agreement dated 15th September 1998, it was agreed by and between the parties that the respondent would deliver to the petitioner 50,000 copies of each edition or reprint of the said book for distribution and sale on a commission of 25% of the published price of the book.

4. The said agreement also contains an arbitration clause. Pursuant to the said arbitration agreement on failure of the parties to appoint an Arbitrator an application was made to this Hon’ble Court under section 11(6) of the Arbitration & Conciliation Act 1996. On such application respondent No. 2 has been appointed as the Sole Arbitrator. Respondent No. 2 has duly entered into reference and has been proceeding with the arbitration matter.

5. During the arbitration proceedings it appeared that the evidence of the printer, the book printing company of 6A, S.N. Banerjee Road, Calcutta 700 013 will be necessary. It further transpired that the evidence of the proof reader who gave the print order is also necessary.

6. The person who gave the print order, namely, Mr. Ajoy Gupta is unable to move freely about in view of injury to his legs. In view of this, a Commission is necessary to examine Mr. Ajoy Gupta at his residence.

7. By reasons of the aforesaid your petitioner states that a Summons be issued on the printer Mr. P. Goenka of 6A, S.N. Banerjee Road, Calcutta 700 013 to appear before the respondent No. 2 and give evidence in the proceedings before him.

8. Your petitioner states that a commission be issued for examining Mr. Ajoy Gupta at his residence as regards the subject-matter of the said arbitration.

9. This application is being made with the consent of respondent No. 2.

10. Your petitioner states that the Orders prayed for herein be made for quicker and expeditious adjudication and disposal of the matter before respondent No. 2.

11. Unless Orders are made as prayed for your petitioner will suffer prejudice.

12. This application is made bona fide and in the interest of justice.

Your petitioner therefore humbly prays Your Lordships for the following orders:

(a)  Summons and processes be issued by this Hon’ble Court commanding Mr. P. Goenka to appear before respondent No. 2 to give evidence with reference to the subject-matter of the arbitration proceedings pending before him;

(b)  Commissioner be appointed to take evidence of Mr. Ajoy Gupta at his residence with liberty to the parties to examine and cross-examine the said Mr. Ajoy Gupta with direction to the Commissioner to submit his report direct to the respondent No. 2;

(c)  Costs of the witness and the commission be paid by the parties in equal proportion;

(d)  Further Orders be made and directions be given as to this Hon’ble Court may deem fit and proper.

And your petitioner as in duty bound shall ever pray.

Signature of the Advocate

for the Petitioner                                                                                                Signature

Verification

I, ………………………………………… son of …………………………… aged about …………………… years, by occupation service working for gain at 32 India Exchange Place, Calcutta 700 001 do hereby solemnly affirm and say as follows:

1. I am the Manager of Global Distributors Private Ltd., and its Principal Officer and Constituted Attorney. I know and I have made myself acquainted with the facts and circumstances of this case and I am able to depose thereto. I am authorised and competent to verify and I do verify this aforesaid petition on behalf of Global Distributors Private Ltd.

2. The statements in paragraphs 1 to 12 hereinabove are true to my knowledge based on information derived from the records maintained by the petitioner Global Distributors Private Ltd. and believed by me to be true.

Solemnly affirmed by the said Mr. …………………………… pursuant to a Board Resolution dated ………………… of Global Distributors Private Ltd. in the Court House at Calcutta on the 5th day of December 1999.

Before me

Commissioner

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