Before
the Hon’ble Debt Recovery Tribunal, Guwahati, at 1st Floor,
Apsara Building, Dr.B.Baruvah Road, Opp.Nehru Stadium, Ulubari, Guwahati, Assam
781007.
O.A. no. 132
of 2015
In the
matter of :
IDBI BANK
LIMITED
________Plaintiff
- Versus –
M/s. Ghosh Brothers
Auto Pvt. Limited and others.
________Defendants.
EVIDENCE ON AFFIDAVIT BY THE
DEFENDANTS
AFFIDAVIT
Affidavit of Shri Pranab Kumar
Ghosh, Son of Shri Pradyut Kumar Ghosh, aged about _____ years, by faith Hindu,
by Occupation Business, residing at Sony Apartment, 2nd Building, 4th
Floor, Barthakur Mill Road, Ulubari, Guwahati - 781007, Assam.
I, the above deponent do hereby
solemnly affirm and declare as under :-
1. That I beg to say that I am
well conversant and acquainted with the material facts of the present
proceeding, and competent to swear this affidavit.
2. That I beg to say that the
Original Application is not maintainable in Law as well as in facts and the
same is liable to be dismissed in limnie, and at once, in the interest of
administration of justice.
3. That I beg to say that there is
no cause of action has ever been accrued for filling of the present Original
Application against the defendants and for want of cause of action this
original application is liable to be dismissed in limnie and at once.
4. That I beg to say that the
application is barred by the principle of waiver, estoppels and acquisance,
thereof.
5. That I beg to say that the
Original application filed by the applicant bank is barred by limitation and
bad in the norms and forms of miss-joinder of different causes of actions in a
single application and therefore not maintainable and liable for dismissed with
an exemploary costs thereof, in the interest of administration of justice.
6. That I beg to say that the O.A
is not at all maintainable on the facts and attending circumstances of the case
as the applicant has not come to thi9s Hon’ble Tribunal with clean hands;
because by suppressing as well as misrepresenting the material facts the applicant
bank has filed the instant O.A with malafied intention to harass the
defendants.
7. That I beg to say that there is
no cause of action for the O.A against the defendants and it has been filed
with ulterior motive only to harass the defendants. As such the same being the
abuse of process os law is liable to be dismissed in limine.
8. That I beg to say that the
statements which are nit specifically admitted by the defendants may be deemed
to have been denied.
9. That I beg to say that the
statements made in paragraph 1,2, and 3 of the O.A being matters of record,
that the the defendants do not admit which is contrary threreto and/or
inconsistent therewith and/or not borne out by the record.
10. That I beg to say that with
regard to the statements made in paragraph 4 of the O.A the defendants state
that the O.A is barred by limitation.
11. That I beg to say that while
denying the statements made in paragraph 5(i) of the O.A being without proof,
the defendants said that in the copy of the O.A server upon the defendants even
the name of the officer is not stated and the place of name is kept black
without stating the name of the officer of the bank, who is authorised by
delegation of the power of the applicant bank. The defendants deny and disputes
annexure-1 of the O.A, on the basis of which the applicant is claiming the
delegation of powers; it as much as, annexure does not reveal that the same is
the part and partial of any authenticated document admissible in law. Further
the name of the official representing the applicant and signing the
verification of June the O.A is also not mentioned, the absence of which the
defendants are not in position to take proper defence and/or raise objection
with regard to the delegated powers and therefore crave live of this Hon’ble Tribunal
to file additional written statement after coming to know the name of such
official, is a designation and the delegated powers to him by the applicant
bank authorities.
12. That I beg to say that the
statement made in paragraph 5(ii) of the O.A being matters of record the
defendants do not admit which is contrary threreto and/or inconsistent
therewith and/or not borne out if the records.
13. That I beg to say that while
denying the statement made in paragraphs 5(iii) to 5(vi) of the O.A being not
fully correct, the defendants states that the applicants bank sanctioned the
term as mention in paragraph under reply not at the request of defendant no 1
but at thje verbal request of the official of regional office at Tata Motors
Ltd. Kolkata, as the vehicle mentioned in para under reply required to be used
by Tata Motors Ltd. for the purpose of
transporting their four wheeler light motor vehicles form their
manufacturing unit to the various place through defendant no 1 and the
defendants were simply asked to complete the formalities by signing the
documents as required for sanctioning the loan by the applicant bank. As such
the defendants executed and signed the documents mentioned in para under reply
as per the direction of the officials of the applicant bank without going
through and/or knowing the contents therein contained.
14. That I beg to say that with
regard to the statements made in paragraphs 5(vii) to 5(x) of the O.A under
reply, the defendants categorically denied the statements to the effect that
the defendants enjoyed the benefit of term loan but were never sincere towards
repayment of loan and that there were no response from the defendants against
the notice dated 19.12.2014 and demand notice under section 13(2) of the
SARFAESI act ,2012 dated 19.01.2015. in this regard the defendant state that
they have made several verbal request s to the officials of the applicants bank
to allow them to sell the vehicle in question in order to repay the amount of
Term Loan sanctioned by the applicants bank in the manner as aforesaid. Further
the said vehicle could not be used for the period of next sis months from the
date of purchasing the same on account of various reasons and circumstances
beyond control of the defendants and thereafter the profit from the use of the
vehicle in question was not upto the mark of expectation of the defendants and
almost after a period of another six months, the use of the said vehicle by
Tata Motors Ltd. was reduce3d and gradually came to faulty., subjecting the
defendants to heavy loss rending the defendants incapable to repay the amount
of Term Loan. Even now the defendants are ready o sell out the vehicle in
question if permitted by the applicant bank in order to repay the dues. The
defendants state that that on perusal on annexure -15 of O.A clearly reveals
that the defendant have deposited substantial amount form time to time but
could not repay the whole amount because of the loss sustained by them to the
knowledge of the applicant bank. Further the defendants state that all out
standing liability shown by the applicant bank is highly exaggerated because the applicant bank has imposed heavy
rate of interest and further charged interest upon the interest amount and also
compound interest as admitted by the applicant bank in paragraph 5(x) of the
O.A without considering the fact that the defendants incurred their heavy loss
due to circumstances beyond their control as mentioned herein below :-
14.1. that the deal of purchase of the vehicle
question on term loan from the applicant bank was initiated by the defendants
on the proposal/offer/letter of intent given by the officials of Tata Motors
Ltd. , regional office, Kolkata.
14.2. the vehicles in question are having to parts,
on containing the engine , chassis and cabin having seats for the use of
driver, handyman etc. In the front and other part being admittedly 22 metres
long tailor. The first of the vehicles is supplied by Tata Motors Ltd. which
does not required much construction work but the other part being Tailor needs
complete body construction which was done at Pune. This process of the
completing the body construction of Tailor took about 4 months.
14.3. that apart from the above, the vehicles in
question also required to be registered with the registering authorities in the
office of the District Transport Officer and also needed the road permit form the competent
authorities for using and/or playing the vehicle in question. Thus the
registration of the vehicle was done in Nagaland as the there of is lesser than
other states.
14.4.
That to complete all this formalities including the body construction the tailors,
it took about 6 (six) to 7(seven ) months time and during this period the
vehicle remind out of use without any income to the knowledge of the applicant
bank, but the applicant carried on
increasing amount of outstanding dues by charging heavy rates of interests and
compound interest upon interest amount as well .
14.5.
that initially Tata Motors Ltd. provided business to the defendants by engaging
the vehicles in question to transport their light motor vehicles but it did not remain for long time
and the end of September, 2011 the said business was totally stopped by Tata
Motors Ltd. subjecting the defendants to substantial loss to the
knowledge of the applicant bank.
14.6. that thereafter several times the
defendants requested verbally to the applicant bank to allow them to sell out
the vehicle in question in order to clear the dues but they did not allow even
now also the defendants are ready for the same.
14.7.
that the defendants have been compled to bear the additional expenditure for
providing huge parking space for vehicles in question for long ever since the
closure of business of using the same by Tata motors Ltd, which is still
continued. Had the applicant bank allowed the defendants to sell out the
vehicles, the defendants would have been released form, there financial burden
of paying the charges for parking space essentially required for parking the
vehicle in question
15. That I beg to say that the
above mentioned facts have been suppressed by the applicant bank deliberately
only with a view to make out of case against the defendants to harass them.
16. That I beg to say that while
denying the statements made in para 5(xi) of O.A being not fully correct, that
the defendants state that they have not committed any gross irregularities in
operating the loan amount as alleged in para under reply and the same is not
attributable to the defendants in view of above unavoidable circumstances
beyond their control. Further the defendants states that dates showing the
acknowledgment and conformation by the defendants of the debts and/or
outstanding dues in question categorically denied because the applicant bank
has takjen the signature of defendant for the said propose at the time of
sanctioning the loan on the basis of propo0sal/ offer/latter of intent given to
the defendants by Tata Motors Ltd. for the purpose, who also requested
applicant bank to sanction loan to the defendants. Hence under the influence of
the officials of Rigionl office of Tata Motors Ltd. the applicant bank
sanctioned the loan to the defendants without any garentee for them for the use
of said vehicles and generating income.
17. That I beg to say that with
regard to the statements made in paragraph 5(xii) of the O.A the defendants
submits though the applicants bank has
the charge or the property mentioned in para under reply yet in view of the
facts and circumstances herein above stated, the applicant bank is not entitled
to enforce the same.
18. That I beg to say that with
regard to the statements made in paragraphs 6 and 7 of the O.A the defendants
submit that there is no cause of action mention3ed in para under reply in view
of facts and circumstances herein above stated.
19. That I beg to say that with
regard to the statements made in paragraphs 6 and 7 of the O.A the defendants
submit that in view of the facts and circumstances herein above stated the
applicant bank is not at all entitled reliefs as sort for in the paras under
reply.
20. That I beg to say that the
applicant bank has filed the instant application just to harass the defendants
and in terms of gross misuse of the due process of law and as such, the
original application is liable to dismissed with an exemplary costs thereof in
the interest of administration of justice.
21. That I beg to say that the
alleged person signing and verifying the said purported original application
has got no power and authority to sign, verify and present the said purported
original application. Further the said purported original application has not
been duly verified in accordance with prescribed provisions of the Law.
22. That I beg to say that the
statement of account annexed thereof with the said purported original
application is not a correct statement of accounts and the application based on
such incorrect statements of accounts is not maintainable in the law as well as
in the factual circumstances and therefore liable to be dismissed with cost to
the applicant bank, in the interest of administration of justice.
23. That I beg to say that the
respondent no.1, has not authorized the respondent no.2, to sign the documents
either as Director or in his personal capacity and as such, the sanction of the
loan to the defendant no.1, itself is not proper and the instant application
filed on the basis of the loan documents signed by the defendant no.2, is not
maintainable in the forms of the prescribed provisions of Law and in the
factual circumstances, and therefore the said purported original application
and therefore the said application is liable to be dismissed with cost to the
plaintiff bank, in the interest of administration of justice.
24. That I beg to say that the
applicant bank had not sanctioned the loan as alleged in paragraph no. 5(i),
5(ii), & 5 (iii), of the said purported original application, filed by the
plaintiff bank, and therefore since there is no creation of debt, all the
alleged norms are not for the defendant and the said purported original
application is liable to dismissed with costs to the plaintiff bank, thereof in
the interest of administration of justice.
25. That I beg to say that the
terms and conditions as prescribed printed in the alleged loan documents of the
plaintiff bank are the cause of their unilaterally activities and the
defendants have no connection and the acceptance thereof in any manners and in
the terms of the Law as prescribed for the time being in force, and in the
factual circumstances thereof, the present original application is liable to be
dismissed with costs to the plaintiff bank, in the interest of administration
of justice.
26. That I beg to say that the
defendant is not bound by any terms as engraved and shown in the loan documents
by the plaintiff bank.
27. That I beg to say that as
alleged in paragraph no. 5 (iv) of the said purported original application,
being the terms imposed unilaterally by the plaintiff bank, hence the same
cannot bind upon the defendants. Hence the filling of the instant original
application for issuing certificate is not maintainable, in the law as well as
in the facts, thereof, liable to be dismissed with costs to the plaintiff bank,
in the interest of administration of justice.
28. That I beg to say that whenever
it was possible to make payments, same was done. However due to slump in
market, the economy was in bad shape and therefore all requests to bear with
the defendant and await good tie were ignored and the instant application has
been filed unjustly, and improperly.
29. That I beg to say that the
applicant bank has filed single one this instant original application for
several loan accounts to avoid filing of separate suits for each loan account
in competent Civil Court, having jurisdiction to entertain said suits thereof.
Therefore the applicant bank is not justified to file the application, which
has been filed to avoid civil suits if any before the proper forum, in terms of
the provisions of the Law for the time being in force, and hence the said
purported original application is liable to be dismissed with costs to the
plaintiff bank, in the interest of administration of justice.
30. That I beg to say that I denied
the statements as made in paragraph nos. 5 ( viii ) to 5 ( ix ) of the original
application, placed by the plaintiff bank in the present proceeding, and states
that the defendants are not the willful defaulter at any terms in the form of
the Law and in the facts, and therefore the said original application is liable
to be dismissed with costs to the plaintiff bank, in the interest of
administration of justice.
31. That I beg to say that as there
is no cause of action to file the present original application, the allegations
of accrual of causes of actions on various dates as mentioned therein in the
said original application are without any logic or substances thereof in the
terms of the Law and in the facts and therefore the said purported alleged
original application is liable to be dismissed with costs to the plaintiff
bank, in the interest of administration of justice.
32. That I beg to say that the
statement of accounts filed by the applicant bank does not show correct entries
and the applicant did not apply the interest properly and applied unnecessary
inspection charges and others, in the said account and as such, the original
application filed on the basis of such an incorrect statement of account is not
maintainable and therefore the said original application is liable to be dismissed with costs to the plaintiff
bank, in the interest of administration of justice.
33. That I beg to say that the
applicant bank is not entitled to get any relief as prayed for or even
otherwise.
34. That I beg to say that the
person who placed the alleged purported original application has no Power of
attorney and or authenticated Power of attorney to place such application
against the defendants, and or even the resolution of the board meeting as has
been placed in his support to show the authority did not bear any signatures of
the Board of the Directors present in the said alleged purported meeting,
thereof, and thus the presentation of the original application has not been
made to be accepted at any terms of the Law, and liable to be dismissed with costs to the plaintiff
bank, in the interest of administration of justice.
35. That I beg to say that THE
PURPORTED ALLEGED Loan application form, has not been filled up by the
defendants and the plaintiff bank failed to say that who filled up such form of
application and thus the said questioned document is not acceptable in the
forms of the law and in the facts, and therefore liable to be dismissed with
costs to the plaintiff bank, in the interest of administration of justice.
36. That I beg to say that the
purported alleged document being the Agreement for Loan and Guarantee, has not
been signed and verified by the plaintiff bank on every pages of such
documents, and the terms containing are printed unilaterally, and the same has
not been registered in terms of the Registration Act, to authenticate thereof
and thus the same has not been acceptable at any terms in the Law and in the
facts, thereof the original application filed by the plaintiff bank is liable
to be dismissed with costs in the interest of administration of justice.
37. That I beg to say that the
purported alleged document being the Agreement for Loan and Guarantee, does not
contain the signature of the plaintiff bank, and the seal of the plaintiff
bank, and the same has also not contain any witnesses therein, on whom before
the signature of the parties of the said purported agreement has signed ever,
and thus the said purported alleged documents is not acceptable, in any form in
the Law and in the facts, thereof the original application is liable to be
dismissed with costs, in the interest of administration of justice.
38. That I beg to say that the purported alleged document being the
Agreement for Loan and Guarantee, has not been ever filled up by the
defendants, and therefore the writing at the blank by whom, has been in
questions, as the defendants do not admit the contents and purport of such
writing therein, and thus the said purported alleged documents is not
acceptable, in any form in the Law and in the facts, thereof the original
application is liable to be dismissed with costs, in the interest of
administration of justice.
39. That I beg to say that the
purported alleged document being the Agreement for Loan and Guarantee, cannot
be said to be a Contract and or agreement between the plaintiff bank and the
defendants in the terms of the Indian Contract Act’ 1872, as the same has not
been prepared in the terms of the Law and in the facts, and thus the said
purported alleged documents is not acceptable, in any form in the Law and in
the facts, thereof the original application is liable to be dismissed with
costs, in the interest of administration of justice.
40. That I beg to say that the
purported alleged Irrevocable Power of Attorney, has not been filled up at the
blank spaces by the defendant, and the same has not ever been executed by the
defendant, the said purported alleged documents has not been duly stamped as
per the terms of the Indian Stamp Act and the said alleged document has not
ever been registered at the concern registry office in the terms of the Indian
Registration Act, so far and therefore it can safely be assured that no such
power of attorney has ever been granted and or executed by the defendants in
favour of the applicant bank, in the terms of the law and in the facts, and
thus the said purported alleged documents is not acceptable, in any form in the
Law and in the facts, thereof the original application is liable to be
dismissed with costs, in the interest of administration of justice.
41. That I beg to say that the
purported alleged DEMAND PROMISSORY NOTE, has not ever been executed and or
given by the defendants to the plaintiff bank, and the said purported alleged
document has not ever been filled and written at the blank spaces as appeared
by the defendants, and the writing is in question, and thus the said purported
alleged documents is not acceptable, in any form in the Law and in the facts,
thereof the original application is liable to be dismissed with costs, in the
interest of administration of justice.
42. That I beg to say that the purported alleged
Loan recall notice, has never been in receipt of the defendant, and therefore
the defendant is not in knowledge of the said alleged purported recall notices,
and contents and purports of such notices, and if in receipt, the defendant
could properly answer to the plaintiff bank, and thus the said purported
alleged recall notices of the plaintiff bank is not acceptable, and more
particularly as appeared from the alleged purported documents, the concern
Learned Advocate, signature has not ever been appeared therein, and thus the
said purported alleged documents is not acceptable, in any form in the Law and
in the facts, thereof the original application is liable to be dismissed with
costs, in the interest of administration of justice.
43. That I beg to say that the
purported alleged statement of accounts, as placed by the plaintiff bank, is
not in accordance with the terms of the prescribed Law, and the same has not
been placed in original form as in courses of day to day business of banking
sectors, thereof, and the name of the concern person has not been disclosed by
the plaintiff bank as to by whom, the said entries has been occurred in the
name of the defendants, and thus the
said purported alleged documents is not acceptable, in any form in the Law and
in the facts, thereof the original application is liable to be dismissed with
costs, in the interest of administration of justice.
44. That I beg to say that there is
no debt has ever been borrowed by the defendants from the plaintiff bank and
thus the present original application does not sustain in it’s entirety and
thus the said purported alleged original application is not acceptable, in any
form in the Law and in the facts, thereof the original application is liable to
be dismissed with costs, in the interest of administration of justice.
45. That I beg to say that the
original application is not maintainable in the terms of the Law and in the
facts, as the same has not been allegedly filed and or placed against the
borrower. The defendants are not the borrower of any debt as alleged by the
plaintiff bank and therefore, and thus the present original application is
liable to be dismissed with costs in the interest of administration of justice.
46. That I beg to say that the
Defendant did not have any resolution of the board of directors to applied such
purported loan as alleged by the plaintiff bank, and therefore the plaintiff
bank could not able to place that there is any resolution of the board of
directors of the defendant for such application of the purported loan, as
alleged by the plaintiff bank, and thus the present original application is
liable to be dismissed with costs, in the interest of administration of
justice.
47. That I beg to say that the
defendant no.1, is not a borrower of the said alleged purported loan, as
alleged by the plaintiff bank and the defendant no.2, is not only the director
of the said defendant and thus for such misjoinder of the defendant, the
present original application filed by the plaintiff bank does not sustain it’s
entirety and failed at the threshold, therefore liable to be dismissed with
costs at once, in the interest of administration of justice.
48. That I beg to say that the
defendants are not the borrower and not even guarantor and or sureties on any
score in the law and in the facts, and therefore, the present original
application is liable to be dismissed with costs, thereof, in the interest of
administration of justice.
49. That I beg to say that
persistently in the facts and in the law, the alleged purported original
application of the plaintiff bank failed in it’s entirety to enrich it’s goal
to procure any relief in terms of the prayer made therein by the plaintiff
bank, and thus liable to be dismissed at once and in limnnie, in the interest
of administration of justice.
50. That the facts contained in my
written statement, the contents of which have not been repeated herein for the
sake of brevity may be read as an integral part of this affidavit and are true
and correct to my knowledge.
DEPONENT
Verification
I, the above named deponent do
hereby solemnly verify that the contents of my above affidavit are true and
correct to my knowledge, and no part of it is false and nothing material has
been concealed therein.
Verified this
………….the day of …………….2017, at the Guwahati, Assam.
DEPONENT
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated :………………2017.
Place : Guwahati, Assam.
N O T A
R Y
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