In
the Debts Recovery Tribunal at Guwahati
Original
Application No. 340 of 2017
IDBI
Bank Ltd. ………….Applicant
-
Versus
-
Ghosh
Brothers Electronics Pvt. Ltd.
and
Others
..……………….Defendants
Written statement of
the Defendant nos. 3, 4, 5, 6, and 7.
Written
Statement for and on behalf of the defendant above named.
MOST RESPECTFULLY
SHEWETH :
1.
That the Original Application is not
at all maintainable in law as well as on facts in its present form.
2.
That the Original Application is also
not maintainable on the facts and attending circumstances of the case as the
applicant has not come to this Hon’ble Tribunal with clean hands; because by
suppressing as well as misrepresenting the material facts the applicant Bank
has filed the instant Original Application with malafide intention to harass
the defendants.
3.
That there is no cause of action for
the Original Application against the defendants and it has been filed with
ulterior motive only to harass the defendants.
As such the same being an abuse of process of law is liable to be
dismissed in limine.
4.
That the statements which are not
specifically admitted by the defendants may be deemed to have been denied.
5.
That the statements made in paragraphs
1, 2 and 3 of the Original Application being matters of record, the defendants
do not admit which is contrary thereto and / or inconsistent therewith and / or
not borne out by the records.
6.
That with reared to the statements
made in paragraph 4 of the Original Application the defendant states that the
Original Application is barred by limitation.
7.
That the defendants denied the
applicant Bank had sanctioned the credit facilities the defendant No.1 as well
as defendant No.2 and therefore the present original application is not
maintainable in the terms of the fact and in the law.
8.
That these defendants denying that the
present original application ever been filed while the applicant bank within
the period prescribed in terms at the section 24 of the recovery of debts due to banks and financial institution
Act’1993 and therefore the defendants put to the applicant bank to the strict
proof thereof.
9.
That the defendants denying that there
is any debt has ever been lying with the applicant bank and therefore in
absence of any debt the present original application is not maintainable, and
thus deserve to be dismissed at once with exemplary cost thereof.
10.
That the present original application
is not maintainable as the same has been submitted by the applicant bank on
multiple cause of action and therefore the present original application is
liable to be dismissed with exemplary cost thereof.
11.
That the present original application
is not maintainable as the same has not been instituted against a single
borrower and therefore the original application is liable to be dismissed with
exemplary cost thereof.
12.
That the present original application
is not maintainable as the same has not been instituted by the applicant bank
with misjoinder and nonjoinder of the necessary party and therefore the present
application is liable to be dismissed with exemplary cost thereof.
13.
That the present of original
application has not been placed before the appropriate forum having
jurisdiction to entertain and therefore the present application is liable to be
dismissed with exemplary cost thereof.
14.
That the present of original
application has not been properly valued and the cost, fees have not been
submitted adequately and therefore the present application is liable to be
dismissed with exemplary cost thereof.
15.
That the present of original
application containing the contents, purports on the concise statement having
the vague and frivolous statements and therefore the present original
application is liable to be dismissed with exemplary cost thereof.
16.
That the present of original application
containing the purports of concise statement showing the financial assistance
in terms of (a) existing term loan, (b) cash credit (c) Bank guarantee (d)
working capital (e) funded interest term loan to the defendants which clearly
established the multiple cause of action and therefore the present original
application is liable to be dismissed with exemplary cost thereof.
17.
That the present of original
application in the contents and purports in the original application. The applicant bank is not entitled to demand
any payment including dues, interest, costs etc., under the alleged loan and
security documents, etc. and therefore the present application is liable to be
dismissed with exemplary cost thereof.
18.
That the copy of the original
application has not ever been supplied with the copy of all annexures and
therefore these defendants are not able
to put any comments thereof on those unavailable annexures of the original application by the applicant
bank and these defendants reserve rights
to put their necessary comments on those annexures on being served by the applicant bank on consequent dates before Hon’ble Tribunal.
19.
That these defendants seek to get the
copy of all annexures which has been
filed with the original application
before the Hon’ble Tribunal in the present proceeding to put their
specific comments thereof in the interest of administration of Justice.
20.
That since the applicant Bank has not
been served the copy of all annexures with the original application to these
defendants with the motive to cause several harassment and therefore the
present original application is liable to be dismissed with exemplary cost
thereof.
21.
That unless the Hon’ble Tribunal
direct the applicant bank to serve the copy of all annexures of the original
application to these defendants, the defendants
will highly prejudice and suffer
with irreparable loss and injury.
22.
That the defendants reserve their
rights to submit their additional written statement on being having copy of all
annexures of the original application in the interest of administration of
justice.
23.
That the statements made in paragraph
No.5 of the original application is being made without any proof and without
any necessary documents thereof. The
person who filed the original application
before the Hon’ble Tribunal is without any authenticated and proper
authorization in terms of the law and in terms of the fact the defendants
denies and disputes the contains and purports relates to the authorization of
the person who allegedly filed this original application.
24.
That the defendant states that in the
copy of the Original Application served upon the Defendant even the name of the
officer is not stated and the place of the name is kept blank without stating
the name of the official of the Bank, who is authorized by delegation of the
powers of the applicant bank. The
defendant denies disputes annexure
-1 of the Original Application on the
basis of which the applicant is claiming
delegation of powers; in as much as, Annexure -1 does not reveal that the same
is part and partial of any authenticated document admissible in law. Further the name of the official representing
the applicant and signing the verification in the Original Application is also
not mentioned, in the absence of which the defendant is not in position to take
proper defence and / or raise objection
with regard to the delegated powers and therefore craves leave of this Hon’ble
Tribunal to file additional written statement after coming to know the name of
such official, his designation and the delegated power to him by the applicant
bank authorities.
25.
That
the statement made in paragraph 5 of the original application being
matters of record the defendant does not admit which is contrary thereto and /
or inconsistent therewith and / or not borne out by the records. In this regard the defendant states that
while sanctioning the aggregating Rs.6165 Lakhs comprising of existing term
loan of Rs.98 lakh, cash credit of Rs.200 Lakh, Bank Guarantee of Rs.300 Lakh,
working capital term loan of Rs.3053 lakh and funded interest term loan of 714
Lakh to the defendants to sign various
documents and papers, many of which were blank and the defendant was simply
asked to complete the formalities by signing the same as required for sanctioning
the said case credit limit by the applicant bank. As such the defendant executed and signed the
documents mentioned in paras under reply as per the directions of the officials
of the applicant bank without going through and / or knowing the contents therein
contained.
26.
That these defendants denied the
outstanding liability as allegedly mentioned in the contains and purports of
the original application as the same has not be shown with any necessary
documents thereof.
27.
That the defendants states that the
alleged multiple fines with the separate head of account has not ever been
communicated by the applicant bank in the question of NPA of those alleged
account and therefore the present application is liable to be dismissed with
exemplary cost thereof.
28.
That these defendants state that the
application bank has never been scheduled about any terms of the specific
repayments categorically the head of specific financial assistance accounts and
therefore the present application is liable to be dismissed with exemplary cost
thereof.
29.
That these defendants are not the
willful defaulter as defendants all along made the repayments in terms of their
financial stability as being acknowledged by the defendants to the applicant
bank and therefore the present original application is liable to be dismissed
with exemplary cost thereof.
30.
That these defendants state and submit
that all the financial assistance has not been sanctioned in the single
occasion and therefore the present
original application is liable to be dismissed with exemplary cost thereof.
31.
That these defendants state and submit
that considering the good will, reputation and credit worthiness the applicant
bank was pleased to grant the multiple financing time and again to these
defendants and consequently.
32.
That the applicant bank has adopted
activities in such a purported perverted manners to show these defendants as a
defaulter and therefore the present original application is liable to be
dismissed with exemplary cost thereof.
33.
That these defendants state and submit
that the applicant bank in its original
application did not ever described the debts of the finance repayments, calculation of interest, accrual interest,
overdue amount, Penal interest, bank charges if any, NPA , letter of pre acknowledgement of NPA , letter of overdue, letter of demand,
letter of sanction,, letter of appraisal of application, veteran hypothecation,
accounts, declaration, promissory note agreement etc. and therefore the present
application is liable to be dismissed with exemplary cost thereof.
34.
That these defendants seek to get copy
of the following documents.
a) The copy of the Original First request letter
of the applicants.
b) Subsequent
letters of request for enhancement and other correspondences exchanged between
the bank and the applicants.
c) The
copies of appraisal reports of the bank.
d) It
was one of the conditions that the account will be reviewed every year. But the report of the said reviews carried
out by the bank is not filed.
e) Value
of BPLR from time to time.
f) Mode
of fixation of BPLR.
g) Copies
of all security agreements executed by the applicants.
h) Certified
copy of the alleged undertaking (s) by the applicants given in favour of the
bank.
i) Copies
of alleged balance confirmation and revival letters alleged to be executed by
the applicants.
j) The
alleged amount of default under the principle debt and the interest thereon.
k) Copy
of resolution passed by the Board of Directors of the bank specifying the chief
manager or anybody above him as authorized officer of the bank for the purpose
of the proceeding unde3r section 13 of the Act of 2002.
l) Letter
of appointment of the signatory of the alleged notice under section 13(2) of
the Act5 as authorized officer.
m) Procedure
of the bank to classify the asset as a Non performing Asset as required under
section 13(2) of the Act of 2002.
n) Details
of the alleged securities, primary and secondary created by the bank along with
the certificates of charge creation/charge modification/ charge verification/
charge satisfaction from the registrar of companies.
o) Certified
copies of legal scrutiny report from the approved lawyer and the valuation
certificate from the approved valuer for the alleged movable and immovable
properties taken by the bank on whom the bank has created security interested.
And
the following documents :
|
1 |
Sanction
Letter Dt.25.04.2006 |
|
2 |
Board
Resolution dt.26.04.2006 |
|
3 |
Demand
Promissory Note dt.26.04.2006 |
|
4 |
Facilities
Agreements dt.26.04.2006 |
|
5 |
Agreement of Hypothecation of Goods and Assets dt.26.04.2006 |
|
6 |
Deed of
Guarantee dt.26.04.2006 |
|
7 |
Charge
Registration Certificate |
|
8 |
Sanction
Letter dt.09.04.2007 |
|
9 |
Sanction
Letter dt.15.03.2007 |
|
10 |
Board
Resolution 15.03.2007 |
|
11 |
Supplemental
Facility Agreement dt.15.03.2007 |
|
12 |
Agreement of
Hypothecation of goods and Assets dt.15.03.2007 |
|
13 |
Charge
Registration Certificate |
|
14 |
Sanction
Letter dt.01.06.2007 |
|
16 |
Board
Resolution dt.01.06.2007 |
|
17 |
Supplemental
Facility Agreement dt.04.06.2007 |
|
18 |
Agreement of Hypothecation of Goods and Assets dt.04.06.2007 |
|
19 |
Guarantee
Agreement dt.04.06.2007 |
|
20 |
Letter
Dt.02.06.2007 |
|
21 |
Certified
copy of Sale Deed No.1154/05 |
|
22 |
Original
Registration receipt of the sale Deed No.1154/05 |
|
23 |
Mutation
Certificate dt.18.06.2005 |
|
24 |
True copy of
the Order of Mutation case No.91/2006 |
|
25 |
Photo copy
of Bill of Taxes |
|
26 |
NEC
dt.08.06.2006 |
|
27 |
Affidavit
dt.09.06.2006 |
|
28 |
Sanction
Letter dt.03.07.2006 |
|
29 |
Board
Resolution dt.17.07.2006 |
|
30 |
Demand
Promissory Note dt.17.07.2006 |
|
31 |
Facility
Agreement dt.17.07.2006 |
|
32 |
Agreement of
Hypothecation of Goods and Assets dt.17.07.2006 |
|
33 |
Deed of
Guarantee dt.17.07.2006 |
|
34 |
Change
Registration Certificate |
|
35 |
Sanction
Letter dt.04.01.2007 |
|
36 |
Board
Resolution dt.05.01.2007 |
|
37 |
Loan
Agreement dt.18.01.2007 |
|
38 |
Deed of Hypothecation
dt.18.01.2007 |
|
39 |
Guarantee
Agreement dt.18.01.2007 |
|
40 |
Undertaking
for Over-run dt. 18.01.2007 |
|
41 |
Undertaking
of non-receipt of commission dt.18.01.2007 |
|
42 |
Undertaking
for no-disposal of shareholdings dt.18.01.2007 |
|
43 |
Demand
Promissory Note dt.20.01.2007 |
|
44 |
Letter of
deposit of title deeds/documents dt.10.01.2007 |
|
45 |
Certified
copy of Sale Deed No.412/2006 |
|
46 |
Original
Registration Receipt of the sale deed No.412/2006 |
|
47 |
Certified
Copy of Sale deed no.1746 |
|
48 |
Original
Registration Receipt of the sale Deed no.1746/2006 |
|
49 |
Jamabandi of
Patta no.244 |
|
50 |
Affidavit
dt.09.01.2007 |
|
51 |
NEC
dt.09.01.2007 |
|
52 |
Certified
issued by Mouzadar |
|
53 |
Affidavit
dt.21.02.2007 |
|
54 |
Charge
Registration Certificate |
|
55 |
Letter
deposit of title deeds dt.16.11.2007 |
|
56 |
Extract of
Board Resolution dt.14.11.2007 |
|
57 |
Certified
copy of registered lease deed no.1319/2007 |
|
58 |
Original
receipt in connection Lease deed no.1319/2007 |
|
59 |
Sanction
letter dt.31.072007 |
|
60 |
Board
resolution dt.02.08.2007 |
|
61 |
Demand Promissory
Note dt.03.08.2007 |
|
62 |
Loan/Facility
Agreement dt.03.08.2007 |
|
63 |
Agreement of
Hypothecation of goods and Assets dt.03.08.2007 |
|
64 |
Personal
Guarantee Agreement dt.03.08.2007 |
|
65 |
Sanction
Letter dt.26.11.2007 |
|
66 |
Board
Resolution dt.29.11.2007 |
|
67 |
Demand
Promissory Note dt.03.12.2007 |
|
68 |
Loan/Facility
Agreement dt.03.12.2007 |
|
69 |
Deed of
Hypothecation dt.03.012.2007 |
|
70 |
Guarantee
Agreement dt.03.12.2007 |
|
71 |
Undertaking
for Over-run dt.03.12.2007 |
|
72 |
Undertaking
of no-receipt of commission dt.03.12.2007 |
|
73 |
Undertaking
for non-disposal of share holdings dt.03.12.2007 |
|
74 |
Letter
deposit of title deeds dt.21.01.2008 |
|
75 |
Sale deed
no.1551/07 dt.05.10.2007 |
|
76 |
Revenue
Receipt No.5648785 dt.29.11.2007 |
|
77 |
NEC
dt.29.11.2007 |
|
78 |
Certified
copy of Jamabandi dt.29.11.2007 |
|
79 |
No Objection
Certificate. |
|
80 |
Affidavit
regarding non Encumbrance dt.03.12.2007 |
|
81 |
Board
Resolution dt.14.092007 |
|
82 |
MOE copy
dt.21.01.2008 |
|
83 |
Charge
Registration CERTIFICATE |
|
84 |
Sanction
Letter dt.12.08.2008 |
|
85 |
Loan-cum-Hypothecation
Agreement dt.14.08.2008 |
|
86 |
Guarantee
agreement dt.14.08.2008 |
|
87 |
Demand
Promissory Note dt.14.08.2008 |
|
88 |
Sanction
Letter dt.12.10.2009 |
|
89 |
Board
Resolution dt.21.10.2009 |
|
90 |
Loan-cum
Hypothecation Agreement dt.22.10.2009 |
|
91 |
Demand
Promissory Note dt.22.10.2009 |
|
92 |
Sanction
Letter dt.19.08.2010 |
|
93 |
Board
resolution dt.20.08.2010 |
|
94 |
Loan-cum-Hypothecation
Agreement dt.23.08.2010 |
|
95 |
Demand
Promissory Note dt.23.08.2010 |
|
96 |
Delivery
letter to DPN dt.23.08.2010 |
|
97 |
Continuing Security
lette4r dt.23.08.2010 |
|
98 |
Undertaking
for non-disposal of shareholdings dt.23.08.2010 executed by defendant no.1 |
|
99 |
Guarantee
Agreement dt. 23.08.2010 executed by Defendant No.3 |
|
100 |
Undertaking
Furnished by Personal guarantor dt. 23.08.2010 executed by defendant no.3 |
|
101 |
Guarantee
agreement dt.23.08.2010 executed by defendant no.6 |
|
102 |
Undertaking
furnished by personal guarantor dt. 23.08.2010 executed by defendant no.6 |
|
103 |
Guarantee
Agreement dt. 23.08.2010 executed by defendant no.4 |
|
104 |
Undertaking
dt.23.08.2010 executed by defendant no.4 |
|
105 |
Guarantee
agreement dt. 23.08.2010 executed by defendant no.7 |
|
106 |
Board
resolution dt.20.08.2010 |
|
107 |
Undertaking
cum indemnity dt.23.08.2010 |
|
108 |
Undertaking
dt.23.08.2010 executed defendant no.1 |
|
109 |
Letter
dt.23.08.2010 |
|
110 |
Undertaking
to deposit the entire proceeds adt.23.08.2010 executed by defendant no.1 |
|
11 |
Sanction
letter dt.23.03.2012 |
|
112 |
Sanction
letter dt.29.06.2013 |
|
113 |
Letter
dt.25.09.2013 |
|
114 |
Letter
dt.25.10.2013 |
|
115 |
Letter dt.31.10.2013 |
|
116 |
Board
Resolution dt.23.012014 |
|
117 |
Facility
agreement dt. 25.01.2014 |
|
118 |
Deed of
Hypothecation dt. 25.01.2014 |
|
119 |
Demand
Promissory Note dt. 25.01.2014 |
|
120 |
Delivery
letter to DPN dt. 25.01.2014 |
|
121 |
Continuing
Security letter dt. 25.01.2014 |
|
122 |
Continuing
security letter dt. 25.01.2014 |
|
123 |
Omnibus
counter guarantee agreement dt.25.01.2014 |
|
124 |
Guarantee
agreement dt.25.01.2014 executed by defendant no.3,4, & 6 |
|
125 |
Guarantee
agreement dt.25.01.2014 executed by defendant no.7 |
|
126 |
Board
resolution dt.23.01.2014 |
|
127 |
Declaration
and undertaking dt.15.02.2014 executed by defendant no.6 |
|
128 |
Revival
letter dt.23.032013 |
|
129 |
Revival
letter dt.23.03.2013 |
|
130 |
Form No.8 |
|
131 |
Charge
registration certificate |
|
132 |
Recall
Notice dt.08.01.2015 |
|
133 |
Demand
notice u/s 1392) of sarfaesi Act’2002 dt. 19.01.2015 |
|
134 |
Statement of
account |
|
135 |
Statement of
account |
|
136 |
Statement of
account |
|
137 |
Statement of
account |
|
138 |
Balance
confirmation letter dt.22.04.2010 |
|
139 |
Balance
confirmation letter dt.25.04.2011 |
|
140 |
Balance
confirmation letter dt.10.04.2012 |
|
141 |
Balance
confirmation letter dt.01.09.2014 |
35.
That the aforesaid documents, in the
most humble and respectful submission of
these defendants, are very much necessary and relevant for the purpose of
proper and effective adjudication of the instant case and until and unless, the
said documents are produced before this Learned Tribunal with a copy of the
same being provided to these defendants, there cannot be proper and effective
adjudication of the instant case before this Le3arned Tribunal. Moreover the defendants shall not be in a
position to state their complete defense in the instant case until and unless
the copies of the aforesaid documents are supplied to these defendants.
36.
That the aforesaid documents the list
of which has been given herein above are lying in the power and possession of
the applicant bank and the defendants in
order to make out their complete defense
needs to see and go through those
documents and hence it is necessary that the defendants be supplied a copy of
the aforesaid documents by the applicants.
37.
That it is a settled principles of
Natural justice that the parties to a proceeding should be given a reasonable
opportunity to defend his case but these defendants herein will not be in a
position to place and / or prove their case if the aforesaid documents are not
directed to be produced by the defendants with a copy of the same being
furnished to these defendants.
38.
That unless the applicant is directed
to produce the aforesaid documents with a copy of the same being supplied to
these defendants, these defendants shall be seriously prejudiced and will
suffer irreparable loss and injury.
39.
That these defendants state and submit
that this defendants do not have any (a) debt, (b) any breach of contract and
(c) liability to make any payment of the alleged outs funding amount in the said application the
therefore the present application is liable to be dismissed with exemplary cost
thereof.
40.
That this written statement is filed
bonafide and in the interest of Justice.
It
is , therefore , prayed that this Hon’ble Tribunal may graciously be
pleased to consider the above and
dismiss the original application preferred by the applicant bank with cost in
favour of the defendants for the ends of
Justice.
And
for this act of your kindness the defendants as in duty bound, shall every
pray.
A F F I D A V I T
I,
Shri Pranab
Kumar Ghosh, Son of Pradyut Kumar Ghosh, residing at Sony Apartment, 2nd
Building, 4th Floor, Borthakur Mall Road, Ulubari, Guwahati – 781007, do
hereby solemnly affirm and say as follows:-
1.
That I am the Defendant
no.3, in the instant case, I am well-acquainted with the facts and
circumstances of the case and as such I am competent to swear this affidavit.
2.
That I am duly authorised
by the defendant no.4, 5, 6, and 7, herein in the present proceeding.
3.
That the statements made
in Paragraphs _______ to _________are true to my knowledge and the rest are my
humble submissions before This Learned Court.
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Deponent |
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Identified by me |
|
Advocate |
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|
Advocate |
N O T A R Y
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