The Learned Debts Recovery Tribunal No.

1, Kolkata
“Jeevan Sudha” Building
42C, Jawaharlal Nehru Road,
9th Floor, Kolkata 700 071

ORIGINAL APPLICATION NO. ____ OF 2002

IN THE MATTER OF:

__________________

…APPLICANT

VERSUS

_____________________

…RESPONDENTS

I, ________, son of …………………………, aged about …………… years,

by faith – _____, by occupation - _____, residing at ……………………
and having office at __________, do hereby solemnly and say as follows:

1. I being Respondent No.9 have been wrongly impleaded in the

captioned Original Application (OA) in abuse of the process of this
Hon’ble Tribunal, in as much as it is misconceived on the part of
Applicant to claim/impleadment as director of the respondent No.1
company, which is a separate legal entity capable of representation
in its own capacity. Employees or directors of a company
incorporated under the prescriptions of Companies Act, 1956 are
not liable to shoulder the liabilities of an incorporated Company.
Moreover, I am not a Director of the Respondent No.1 Company.
 2

2. Without prejudice to the aforesaid, it is pointed out that the

claim of Applicant in the captioned OA against me at the behest of
alleged guarantee is false, fraudulent and mischievous, in as much
the alleged document of guarantee is not valid or enforceable
document and no reliance thereon can be placed by the Applicant,
in as much as no liability can be fastened on the basis of
subsequently filled up blank documents, obtained on any previous
stray occasion while negotiating transaction with respondent No.1,
without securing any ad-idem on the part of respondent No.9 with
respect to alleged transactions involved in the captioned OA. I
categorically states that no guarantee was executed by me of the
nature claimed in the captioned OA, and claims of Applicant in that
regard are false, vexatious and mischievous.

3. Without prejudice to the aforesaid, it is pointed that the claim

of Applicant in the captioned Original Application (hereinafter
referred to as “OA”) is not maintainable in as much as the alleged
amount claimed in the OA does not find substantiation from the
statement of account mandatorily required to be maintained by the
Banks in the ordinary course of its affairs.

4. The Applicant has not approached this Hon'ble Tribunal with

clean hands for having concealed material facts and also for
resorting to misrepresentations while attempting to set out a false
case in the instant OA.

5. Without prejudice to the above, it is submitted that the instant

OA is not amenable to territorial jurisdiction of this Hon'ble Tribunal

as the secured assets of the Respondent No.1 are situated beyond

the territorial jurisdiction of this Hon'ble Tribunal.

 3

6. Without prejudice to aforesaid, it is submitted that the

instant OA is in breach of the prescriptions of Bankers’ Book of

Evidence Act, for failing to substantiate the alleged claim amount by

duly maintained/reconciled statement of account. In the absence of

a duly reconciled statement of account, the frivolous and vexatious

claim of the Applicant for Rs. 6,08,63,825.79p as set out in the

instant OA has no basis at all. The instant OA of the Applicant is

therefore not maintainable for want of duly reconciled statement of

account recognized by statutory prescriptions.

7. Without prejudice to the above, the OA is barred by the

principles of delay, waiver, estoppels, acquiescence and/or

principles analogous thereto. In any event I say that the alleged

reliefs claimed by the Applicant are barred by the law of limitation.

Moreover, the Applicant waived its right to alleged claim of

outstanding with respect to credit facilities sanctioned in the year

1995 and year 1998.

8. Without prejudice to the above, it is submitted that the present

OA is vexatious, harassing, speculative and is clearly an abuse of

process of law. I say that the Applicant has no cause of action

against the Answering Respondent. The entire Application is based

 4

on incorrect and false statements. The Applicant does not have

locus standi to file and maintain the instant Application against the

Answering Respondent. The Application is not maintainable and is

barred by law. The Application has been filed with ulterior purpose

and malafide motive and should be dismissed. I say that the instant

Application ought to be dismissed in limine with exemplary Post.

9. Without prejudice to the above it is submitted that the instant

OA filed by the Applicant is without any proper authority and

thereby, the alleged authorized persons have no locus to file the

instant OA against the Answering Respondent. Therefore, the

instant OA is not maintainable.

10. Without prejudice to the above, it is submitted that the

Application is bad in law for non-joinder of necessary party.

11. Without prejudice to the above, it is submitted that the

present Application is not maintainable due to the following

developments in relation to the subject in issue of the present

Application. The Applicant concealed the following vital and relevant

information from this Hon’ble Tribunal by not promptly informing

this Hon’ble Tribunal of the further development as the Bank was

duty bound to do so:-

 5

(i) That Respondent No.1 in the due course of its business

availed credit facilities from ______. The said Loan was

assigned by _____ in favour of _______. Since the Respondent

No.1 suffered huge losses and its networth was completely

eroded, therefore, Respondent No.1 filed several references

before the Board for Financial Reconstruction (BIFR) for the

year _____. BIFR vide its order dated ______ had declared the

Respondent No.1 as a “Sick Company”. While References of

the Respondent No.1 were pending before BIFR, the

Respondent No.1 in order to settle the disputes with one of

the Lendor i.e. ______ convened a meeting on ____ wherein it

was agreed that principle debt of the Respondent No.1 is to

be frozen as on ____ and a “White Knight” identify by the

Respondent No.1 shall takeover all debt instruments at ____

of the par value of which (debt instruments) outstanding less

payment already made which may be adjusted in 36

quarterly instalments commencing from _____. The said

Minutes dated ______ were circulated by the Respondent

No.1 under the cover of Letter dated _____.

(ii) That on _____, a meeting was convened by Respondent No.1

for full and final settlement of dues of ______ wherein it was

 6

finally agreed that the principle debt of the said Bank has

been frozen as on ___ and the said frozen principle debt will

be taken over and discounted at _____ and from the said

restated discounted amounts, all payments/ adjustments

already made to and/ or received by the said Bank after

_____ shall be deducted. It was also agreed that the

discounting shall be in ____ quarterly instalments spread

over a period of approx. ____ years. Since this meeting dated

_______ was also convened with regard to the other

companies as well, therefore, reference was made to those

other companies as well.

(iii) That similar Agreement was agreed between ________ also

and the outstanding dues of ________ was accordingly paid

by Respondent No.1 by freezing the principle debt as on

_______.

(iv) It is relevant to point out that the Applicant was also being

represented before BIFR and, therefore, the Applicant was

well aware of these agreements and settlement of dues by

Respondent No.1 with regard to the other banks.

 7

(v) That during the pendency of the Reference filed by the

Respondent No.1 before BIFR, an order dated ____ was

passed by BIFR which was challenged by Respondent No.1

before AAIFR in the Appeal _______ and vide order dated

_______, AAIFR directed Respondent No.1 to have settlement

with the Applicant herein, _______ etc. on the similar lines

who shall also adhere to the terms of the settlement already

arrived by Respondent No.1 with ______ and ______ as

aforesaid. It is pertinent to mention that this order of AAIFR

attained finality as it was not challenged by any of the party.

(vi) That pursuant to the direction contained in the order of

AAIFR dated ______ at the behest and instance of Answering

Respondent, a meeting was convened with the representative

of all the bankers including ______, the Applicant herein,

wherein Authorized Representative of the Applicant and

other bankers, in principle, agreed to adhere to the terms of

the settlement as arrived at by Respondent No.1 with

________.

(vii) It is submitted that after Meeting dated ________, the

Representatives of the Applicants, who attended the said

Meeting dated ______ on behalf of the Applicant informed

 8

Respondent No.1 that the Applicant has, in principle, agreed

to adhere to the same terms and conditions as agreed by

Respondent No.1 with ______ and IndusInd Bank and would

accordingly take necessary steps to inform the detail of the

discounted amount, all payments and adjustments already

made or received by the Applicant after _____ as this amount

was to be deducted from the principle debt of Respondent

No.1 frozen as on _____. However, the Applicant neither

rendered the account nor gave the detail of such receipts/

adjustments already made after ______. That period of ____

years was to commence from the date of Applicant providing

and rendering account as well as detail of receipt of the

amount already made after ____ which was to be adjusted.

The Applicant, inspite of repeated requests of Respondent

No.1 did not provide such detail to Respondent No.1. The

Applicant having agreed to adhere to the similar terms and

conditions as agreed by Respondent No.1 with ______ did not

fulfil its obligations. After Applicant & Respondent No.1 have

arrived at mutually agreed settlement agreement, Answering

Respondent was relieved from all and any obligation. It is

pertinent to mention that the Settlement Agreement as

aforesaid was arrived at between the parties during the

pendency of the captioned O.A. However, the Applicant has

 9

not informed the Hon’ble Court about the Settlement

Agreement which was even reiterated during the proceedings

before BIFR.

12. To avoid prolixity and repetition, I reiterate the statement

contained in the Written Statement filed herein and the same be

treated as part of this evidence.

13. Without prejudice to the above, it is submitted that the

present OA is not maintainable for want of locus in favour of the

Applicant Bank. The captioned OA, is based upon a void and non-

est document and-the, which same-suffers from basic infirmity.

14. As the Applicant has deliberately concealed material facts

from this Hon’ble Tribunal, this respondent seeks to bring on the

record the following necessary and important facts:

i. As per the agreed terms, this respondent thus stood

discharged from his obligations attached to the borrowings

advanced to the Respondent No.1 by the Bankers, even if it

is presumed, on arranging the settlement between Applicant

& Respondent No.1.

 10

ii. Acting in furtherance of some mischievous ploy, despite

acceptance of proposal of the Respondent No.1, the

Applicant failed to fulfil its obligation of rendering the

account as on ______ and giving detail of such receipts/

adjustments already made after _______ and in fact allowed

the period of ______ as agreed to expire.

iii. Attempting to evade performance of its obligations in favour

of Respondent No.1 as also to harass the respondents, the

Applicant concealed all these facts from this Hon’ble

Tribunal.

15. Without prejudice to aforesaid, it is pointed out that the

manner, in which the Applicant Bank has sought to capitalize

interest in its claim amount, attracts prescriptions of Hon’ble

Supreme Court laid down in Rabindra’s case and thereby renders

the captioned OA as non-maintainable. This apart, the interest has

been sought to be raised on the basis of alleged amount of principal,

which remains unfound/unsubstantiated in the absence of requisite

statement of account.

16. The OA is wrongful, malafide and misconceived and not

maintainable. The applicant bank has no cause of action against

 11

this respondent as explained hereinabove. The alleged claim of the

applicant bank is barred by the law. The applicant has failed to

make out any ground for grant of any reliefs in the proceeding. I say

that grant of any relief will be prejudicial to the interest of this

respondent herein. The claim is barred under the law of Limitation

Act.

17. In view of the facts and circumstances stated hereinabove, it

is most respectfully prayed that this Hon’ble Tribunal may be

pleased to be dismiss the captioned OA, as against this respondent.

18. The statements made in paragraphs 1 to 15 of the foregoing

affidavit are true to my knowledge and those contained in paragraph

16 and 17 thereof are my respectful submissions before this Learned

Tribunal.

I sign this affidavit this day of _________ at Kolkata.

Prepared in my office DEPONENT

Identified by me
Advocate

Advocate