Written Statement of the Borrower in Arbitration

 

In the Centre for Alternative Dispute Resolution Excellence

having its Office at 2^nd Floor, Shanmugha Arcade, # 39/1, NGEFT Lane, Binnamangala First Stage (Indiranagar 1^st Stage), Banglore - 560038

Before the Learned Arbitrator Magesh Kumar KP

advocatekpmagesh93@gmail.com

 

Ref. No. TCL/4238/2024

(Loan Agreement No. TCFPL0540000012652644)

 

                                                                   In the matter of;

                                                                   Tata Capital Limited,

                                                                                      _____Claimant

-      Versus –

Subhajit Shome,

                   _____Borrower

 

Written Statement of the Borrower;

 

The humble Petition of the above named Borrower, most respectfully;

Sheweth as under;

 

1.   That the Borrower is not in receipt of any copy of Claim ever placed by the Claimant before the Learned Tribunal, therefore the Borrower is not in any clear knowledge or iota about the story or statements has ever placed by the Claimant against the Borrower. The Borrower reserve his rights to put his comments on the purports and contents, while he will receive a copy of the Claim submitted by the Claimant. The Borrower will make his reply on the said claim, by way of additional written statement, in the present arbitration proceeding, in the interest of administration of justice as well as for fair adjudication of the purported claim, if any.

 

2.   That since the borrower is not in receipt of any copy of claim ever submitted by the claimant, the borrower has no occasion to dealt with the contention and purports of the said purported claim, therefore the borrower is obliged to place the true fact, which are necessary to enrich the fair & proper adjudication of the claim, if any;

 

(a)  The Borrower availed the Financial Assistance for a sum of Rs. 1,50,973/- (Rupees One Lakh Fifty Thousand and Nine Hundred Seventy Three) only, on 27^th day of January’ 2024, But the borrower received a sum of Rs. 1,42,040/- (Rupees One Lakh Forty Two Thousand and Forty) only, therefore the money received by the borrower is the actual and true money as a sum of Rs. 1,42,040/- (Rupees One Lakh Forty Two Thousand and Forty) only, availed and enjoyed by him.

 

(b)  The Borrower paid 2 EMIs worth Rs. 5,844/- each, on 5^th March’ 2024, and 5^th April’ 2024. The Borrower availed such loan to start his own business; But became the victim of unemployment and crypto fraud. The Borrower was in suffering of financial distress.

 

(c)  The Claimant offered One Time Settlement (OTS) to the Borrower considering his financial distress, as a sum of Rs. 62,000/- (Rupees Sixty Two Thousand) only. The claimant given the Sanctioned of Settlement Letter being Reference Number FY 24-25/PL/2406858918537 dated 27/06/2024. The Borrower paid the said sum of money as Rs. 62,000/- (Rupees Sixty Two Thousand) only, being Settlement money by and between the Claimant and the Borrower by way of Demand Draft Number 963527156 dated 28/06/2024, drawn on Indian Overseas Bank, in favour of Tata Capital Limited.

 

Photostat copy of the said Settlement Letter dated 27/06/2024, and the Demand Draft for a sum of Rs. 62,000/- (Rupees Sixty Two Thousand) only, are annexed herewith and marked as Annexure – “A”, Collectively.

 

(d)  Presently, the Borrower have Highly financial distress with him on account of his unemployment and the victim of financial fraud, therefore the Borrower is not in any position to pay any money to his Creditors including the Bank, NBFC, etc. Therefore the Borrower has instituted an application under Section 10 of the Provincial Insolvency Act, 1920, as to adjudicate the borrower being the Debtor as an Insolvent, against the Creditors, before the Hon’ble District Judge, South 24 Parganas, at Alipore Judges’ Court, Alipore, Kolkata – 700027. The said application has been registered as Insolvency Case No. 141 of 2024. The said Insolvency case is pending for adjudication.

 

(e)  Since the Claimant even after received the Settlement money asking the borrower for further money and disturbing off and on to the borrower, the borrower made the claimant the party as Respondent / Creditor in the said Insolvency Case no. 141 of 2024. The Claimant is in receipt of the notices of the said Insolvency Case instituted by the Borrower.

 

Photostat copy of the application under Section 10 of the Provincial Insolvency Act, 1920, is annexed herewith and marked as Annexure – “B”.

 

(f)   That the Borrower assessed his total payable sum of money as a sum of Rs. 8,96,576/- (Rupees Eight Lakhs Ninety Six Thousand and Five Hundred Seventy Six) only, to the Creditors, in placing his said Insolvency application and the Borrower has the entire assets which consists the Cash being sum of Rs. 2,000/- (Rupees Two Thousand) only, with the balances in his Bank Accounts & Mutual Fund Investments as a  sum of Rs. 10,226.42 (Rupees Ten Thousand Two Hundred Twenty Six and paise Forty Two) only, and no other property either movable or immovable is found favour the borrower.

 

3.   That in the given facts, while the settlement has been entered by and between the Claimant and the Borrower and the said settled money has already been taken by the claimant by way of Demand Draft from the Borrower; no further claim can be sustained in the eye of Law from the Borrower, and the claim if any bad in law.

 

4.   Pertinently, the Borrower seeks adjudication as an insolvent before the competent Court of Law, and the said proceeding is pending for adjudication which clearly established his inability in earning any money and having any property either movable or immovable, so far, therefore the Claimant has no occasion to put his any purported claim even after taking settlement money from the borrower.

 

5.   The Borrower seeks the refusal of the present arbitration proceeding initiated by the claimant herein against the borrower, in the interest of administration of Justice.

 

6.   Unless the Learned Tribunal refused the present arbitration proceeding initiated by the claimant herein against the borrower. The Borrower will highly prejudice and suffer with irreparable loss and injury thereof.

 

7.   The preponderance of the balance of convenience and inconveniences are lies in favour of the Borrower.

 

8.   This application is made bonafide and in the interest of administration of Justice.

 

It is therefore prayed that the Learned Tribunal would graciously be pleased to accept the Written Statement submitted by the Borrower, and to refused the present arbitration proceeding under Ref. No. TCL/4238/2024, against the borrower, in the interest of administration of Justice, and /or to pass such other necessary order or orders, as the Learned Tribunal may deem, fit, and proper for the end of Justice.

 

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

 

VERIFICATION

 

I, Subhajit Shome, being the Borrower, in the present Arbitration Proceeding, made this Written Statement. I am well conversant and acquainted with the material facts as stated in the fore going paragraphs. I verify and sign this written statement on _____December’ 2024.

Public Notice - Name Change

 

                                                    PUBLIC NOTICE

I, Jayaraman Suresh, S/o Late Subramanian Jayaraman, presently R/o Flat -2C, 2^nd Floor, 55/3, Kalikapur Road, Kolkata – 700099, formerly 29, Beltala Road, 3^rd floor, Kolkata, changed my name from SURESH VISALAKHSHI to JAYARAMAN SURESH and corrected my father’s name from J S JAYARAMAN  to Subramanian Jayaraman for all purpose by affidavit sworn before 1^st Class Judicial Magistrate, South 24 Parganas dated 11^th December 2024.

 

Complaint to Labour Commissioner

 

 

         

                                              Date : 20^th day of December’ 2024

To,

1.  The Labour Commissioner, Office of the Labour Commissionerate, having Office at 11^th Floor, New Secretariat Building, at Premises being No. 1, K.S. Roy Road, Kolkata – 700001, Contact No. : (033)-2248-8150, Email : labourcommissioner.wb@gmail.com

 

2.  The Assistant Labour Commissioner, Office of the assistant Labour Commissioner Alipore, South 24 Parganas, having Office at Premises being No. 620, Diamond Harbour Road, Behala Industrial Estate, Block IV, Northern Block, 2^nd Floor, Kolkata – 700034, Contact No. : (033)-2231-7590, Email : alc.alipore@gmail.com

 

Subject : Demand of Salary and other dues totalling as a sum of money being Rs. 2,56,000/- (Rupees Two Lakhs and Fifty Six Thousand) only from the employer M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri(West), Mumbai – 400058, Phone No.: 02261405300, Email gizaoffice@oliviaindia.com and having its office at Premises being no. 2, Jodhpur Garden, (Old 5/1, Jodhpur Colony), Police Station Lake, Kolkata – 700045;

 

 

 

 

 

Dear Sir/s,

 

Please note that I had joined M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, its’ office at Kolkata H.Q. at Premises being no. 2, Jodhpur Garden, (Old 5/1, Jodhpur Colony), Police Station Lake, Kolkata – 700045, on 8^th day of January’ 2021, by way of the Company’s Offer Letter dated 08/01/2021, favouring Mr. Indronil Roy, residence of Premises being No. 42G, Block, Baghajatin, Kolkata – 700086, Tel. No. : 9831832899. The said Offer Letter dated 08/01/2021, contended as follows;

 

(a)  M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, have given appointment as Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan.

 

(b)  Salary & Allowances:

§  Salary                         Rs.13,00,000/-p.a.(12+1 Bonus);

§  Local DA                     Rs.           500/- Per Day + Fuel

§  Ex Head Quarters       Rs.         1,000/- Per Day

§  Outstation Allowance  Rs.        3,000/- Per Day

§  Mobile + Internet        Rs.         Actual

§  Travelling                    Rs.          Actual

 

(c)  Probation/ Confirmation : Initially be on probation for a period of six months from date of joining the Company, which may be extended or reduced at the sole discretion of the management.

 

(d)  General : The present designation is subject to change depending upon work assignment from time to time.

 

The said Offer Letter dated 08/01/2021, did not describe my assignment or responsibility to carry in pursuing the cited post as Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan. The Work assignment has never been given in writing to me.

 

The said Offer Letter dated 08/01/2021, did not give any particulars of the service rules and regulations including conduct, discipline and administrative orders and such other rules or orders of the company which may come in force from time to time. M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, did never given any purported copy of the service rules and regulations including conduct, discipline and administrative orders and such other rules or orders of the company which may come in force from time to time. During tenure of my service, I did never find any of the service rules and regulations including conduct, discipline and administrative orders and such other rules or orders of the company which may come in force from time to time, whatsoever.

 

My work has assigned purely as a Clerk in the office at Kolkata, as take notes of everything pursuing the delivery of the articles in dispatching and delivering the goods and articles at the depot (C&FA), including MIS Checking, attendance, indent preparation, preparation of sale projection submitted by the concerned officials of the respective state, forwarding the grievances and claims of the distributors and Stockists and maintenance report of the Kolkata Office. I used to forward all information to my reporting authority Mr. Rajesh Vailaya (NSM) at the Registered Office at Mumbai, who used to check & approve all claims, projections, office maintenance bill & everything. I had no authority to take any decision and to approve anything, whatsoever. Therefore my job has never been assigned with any responsibility. I was serving as a Clerk at the behest of the Company.

 

Pertinently states that Super Stockists are working in various towns in eastern zone and has been appointed by the concerned area head of the particular region. They had sent details of concern parties to me, and my job is to forward the same to my reporting authority for his approval. Simultaneously, concerned manager has placed orders of super stockists by email and after checking I have only forwarded the same to the Registered Office of the Company. Accounts department at Mumbai release Proforma Invoice against any order and stock has been dispatched through C & FA depot after payment clearance. No credit policy in our entire system of the company has ever been found. The company has always sale their products in advance. Super Stockist has supply their stocks via sub distribution channels i.e. distributors or wholesalers. Sales team is only appointed for retailing support by the company. Stock’s once sold hasn’t been taken back by the company and that was also the main reason of some market disputes in the state of West Bengal & other areas. Sometime products not being accepted in the market or returned back by the retailers to distributors and they used to return the same to the Super Stockists. Due to cosmetics product related to skin, sometime old stocks or near to expiry products not acceptable & return back. The Company was not accepted to return back those stocks from the market or distributors or super stockists, which became the reasonable reason of disputes and after my joining I have faced so many grievances regarding such issues in the state of West Bengal and other areas. After my several request the company was agreed to return same stock only last year after 2.5 years of my joining but still not settled maximum damages & expiry stocks, which are lying in godown with super stockists in various areas. I was facing extreme mental pressure from various parties to resolve their problems, but no support has ever been given or forwarded by the company ever.

 

The Company played much unethical role in dealing its business in its market field of the Cosmetic Industries. The Company did not redressing or striking of damage or expired stocks, even recently after my resignation some sticking old stock has been found in north eastern market and the concerned party has send his grievances to the Consumer Court. On several occasion I had asked my reporting authority in the company to redressed the issues of old stocks on priority but the company did not heed to that and the company continuing in its old practices to deliver the old / damage / sticking stocks of the cosmetics to the parties, which raised reasonable cause of disputes, while asking of the return of goods, so far, with the company. The Parties and the people has taken me as a responsible person for all these things, as my post has been cited as  Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan, in the Company; But in reality my nature of Job is nothing more than a Clerk, which give a perfect illusions in the mind of the parties and the people at large, which causes much humiliation to me day by day, and everyday till I placed my resignation.

 

I would like to mention one more important thing that the company has offered schemes time to time and that will reimburse through secondary claims submitted by the super stockists. This is very complicated system and concern area heads are submitting their respective super stockist claims to me and my duty is to check and forward the same to the account department of the registered office of the company. In this process sometime, super stockists has not been able to submit their claim timely or due to lack of some supporting documents, such claim was returned back by the company, though in any case, nothing was in my hand but Mr. Rajesh Vailaya has always tried to accused me for such delay and others.

 

From last one year onwards, the Company has intentionally deducted salaries of sales personnel & BA (Women working in various retails counters to sale & promote the products of the Company) without any valid reason. Due to that reason most of the team was disappointed & some of them left their job.

 

From last 6/7 months, the Company has not given salaries timely and sometime after 18^th or 22^nd days of the month salary release with deduction. Reason was delayed of payment against Parties, although the company hasn’t dispatched any stocks without getting any advance payment.

 

Even I was also receiving my salaries after 19 /20 the days of the month.

 

Due to all above mentioned reasons, I was getting frustrated and demoralized in working my clerkship carrying the banner as Business Head East Zone (West Bengal), North East Region, Bihar, Jharkhand, Odissa, Nepal, Bangladesh and Bhutan, with every passing day’s since last 6 /7 months. In April’ 2024, my Boss Vailaya has visited Kolkata and I asked him to relieve me, as I don’t feel comfortable. He said he will try to resolve issues but nothing happens.

 

Therefore under such compelling circumstances I have submitted my resignation on 4^th day of September’ 2024 and handed over my charges to Sale Coordinator & concerning manage for the State of West Bengal on 9^th day of September’ 2024.

 

Before, submitting my resignation, I have sent message to Mr. Vailaya and mentioned my mental states and frustration towards all the unethical happenings by the Company. For Sale de growth, the Company always blaming to concerned sales team and targeting me for the failure of others, the sales team always put several reasons including the concern of their salaries, etc.

 

I have communicated all the concern which affected me directly & indirectly to the Company; But I have not get any positive response against my communication through message and the said Mr. Vailaya did not even respond me.

 

Against my resignation mail dated 4^th day of September’ 2024, I have received the acceptance of my resignation via email on 5^th day of September’ 2024, with lots of unlawful conditions to settle my dues, including asking for NOC from concerned Super Stockists, submitting claims and asking for serving the notices for 21 (twenty one) days notice period concern. I have duly responded with all issues and explain in bellow mentioned words;

 

“Reply of the Company’s mail, first of all the Company have already accepted my resignation and matter is only related to the settlement of my pending dues from the company. In my position where direct money transaction not involved with SS, as per the practices adopted by the company, no NOC required and even it has not mentioned in the Offer Letter dated 8^th day of January’ 2021. Our organization working in advance payment basis and direct money transfer required against Pl to release any dispatch. Billing directly from account department to HO to C&FA for dispatch. So there was no direct money transaction via any of us. As a business head, my duty was related to supervise managers in my jurisdiction state & office work including indent, orders, claims & submissions of attendance & expenses, which has never assigned to me, as the concern managers has placed the SS Orders and I have only forwarded the same to our account department. Even field staff & SS has been appointed as per the request of concern area head and I have only forwarded required documents to the Company for approval.”

 

During 5^th day of September’ 2024 and 16^th day of September’ 2024, Mr. Vailaya has sent me three mails and repeated the same contents to me.

 

During 4^th day of September’ 2024 to 19^th day of October’ 2024, I have sent several request through messages to release my dues but the said Mr. Vailaya always avoided my settlement request motivated.

 

Lastly on 21^st day of October’ 2024, the said Mr. Vailaya has sent me message and almost threatened me to take legal steps and inform my present organization about my incompetency to handle assign duties which was the reason of companies loss, although the company has worked on advance payment basis and there is no question of loss in any circumstances.

 

My Dues are as follows;

 

·         Salary for the month of August’ 2024 – Rs. 1,18,300/- (Rupees One Lakh Eighteen Thousand and Three Hundred) only;

·         Misc. Dues - Rs. 19,400/- (Rupees Nineteen Thousand and Four Hundred) only;

·         One Month Salary – Bonus for the period 2023-24 Financial Year – Rs. 1,18,300/- (Rupees One Lakh Eighteen Thousand and Three Hundred) only;

·         Total Dues approx as a sum of money being Rs. 2,56,000/- (Rupees Two Lakhs and Fifty Six Thousand) only.

 

I have communicated above stated facts by my Letter dated 11^th day of November’ 2024, to the Company, which the Company is in receipt though did not respond anything and did not pay any dues to me, till date.

 

Therefore I resort before your good offices for your kind intervention in pursuing the realization of dues from the employer to me.

 

Find the above, kindly do the needful in realizing my salary and others dues, and oblige.

 

Thanking you,

 

Yours’ faithfully,

 

 

Mr. Indronil Roy,

42G, Block, Baghajatin,

Kolkata – 700086.

Mobile No.: 9831832899.

Email : indronil_roy2004@yahoo.co.uk

 

 

 

 

 

 

 

 

 

 

 

Copy to;

 

1.   M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri(West), Mumbai – 400058, Phone No.: 02261405300, Email gizaoffice@oliviaindia.com

 

2.   M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Kolkata H.Q. at Premises being no. 2, Jodhpur Garden, (Old 5/1, Jodhpur Colony), Police Station Lake, Kolkata – 700045.

 

3.   Irfan Razak Memon, (DIN: 00137934) Director of M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri(West), Mumbai – 400058, Phone No.: 02261405300, Email gizaoffice@oliviaindia.com

 

4.   Asif Razak Memon, (DIN: 02150782) Director of M/s. Giza Marketing Private Limited, having CIN: U51900MH1993PTC070426, and it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri(West), Mumbai – 400058, Phone No.: 02261405300, Email gizaoffice@oliviaindia.com

 

5.   Rajesh Vailaya, National Head, M/s. Giza Marketing Private Limited, having it’s Registered Office at Premises being No. 101/102, G. N. Tower, Off S.V. Road, Near Subway, Andheri(West), Mumbai – 400058, Phone No.: 02261405300, Email giza@oliviaindia.com, rahesh@oliviaindia.com

 

{ for information and necessary action only}