It is important to mention that prior to my personal involvement in the litigation with Bank, the circumstances were absolutely compelling, but my actions barely looked practical. I had no other choice than to resort to battle believing my illusion; or else be satisfied with a lifetime of failure. It is similar to a mental conflict whether to fight the might, or else become a deserter with fear of failure. I faced only flak and criticism from all corners which only drive a person to the ultimate resolution. At that time my ability to think was pushed to extremes. To me self-sympathy was a bad habit or rather an incurable ailment. My inner consciousness told me that I should at least try and not surrender to circumstance. Fear and defeat in my mind meant nothing but the end. The only fuel that kept ignited was the belief in myself and to proceed forward in pursuit to understand why the Bank was vehement to sell away the properties for a lesser value than what I had offered. Whether law considers such a challenge, is the question. There was no one who could comprehend my quest. One Advocate stated that Securitization Act was a double-edged sword. I didn’t believe it. The famous Senior Advocate Kapil Sibal argued before the Hon’ble Supreme Court in the Mardia chemicals case that it was a draconian law. In fact, it’s not the Law, but the enforcers who are draconian. I had to search for the real answers hence travelled to all corners of the Country for advice.
When my financial resources dried, Santiago Marin, a Spaniard and our export agent for USA, Spain, France, and Portugal, gave me an opportunity to be a partner in a new Agency started by another Spaniard called Adolfo. I did business with Santiago since a very long time and he was a good-hearted person. It was a golden opportunity supporting my legal expenses and also the salary to my security guard Rajendran. Unfortunately, most of the counsels engaged by me either never attended the court on the hearing date, or reluctantly sent their juniors giving little importance. Some of them despised me when I did the follow up or visited them. They used to ask me “yours is not the only case we have Mr.Prem.” It was then I had to choose between continuing in the Spanish agency or else escalate the fight with Bank. I chose to leave the agency even though it proved far more lucrative than my export business. That was another biggest risk I had taken. Even the mode of parting from the Agency with Adolfo was not proper of me. I felt guilty about it for a long time.
Even though I was in advantage in the courts after my personal involvement; I sensed the danger was still lurking in the dark. It looked imminent. Law gave little scope for reliefs to a borrower. Much narrow than the eye of the needle. Now it’s only a battle of wits. No luck ever proved to continue unless it is harnessed; and I just could not evolve a way and was running against time. On the other hand, litigation is a rich man’s game. The Bank is a Mammoth of an institution, and I was just an individual. I needed to think out of the box. The gamut of litigation is to try, fail; try, fail; but keep trying to frustrate. It was clearly my turn to receive a blow from an unexpected corner. Because the Bank does not like to be frustrated. It is sure to recoil fiercely. I cannot bask on all those victories narrated earlier. Mere living up to the challenge will not be sufficient, I need to vanquish my opponent. But it was all good money in bad spending. I had spent more than three fourths of earnings from the Spanish partnership on legal expenditure.
Between 2009-10, there were two first timers that I had ventured to, breaking the routine of litigation. The first was I filed a Counter Claim against the Bank for Rs 206 Crores in the Original Application OA.2/2008 filed by Bank under the DRT Act. It was the first time in the history of DRT Chennai. The Court Fee at DRT was only a maximum of Rs 1.50 lakhs. Had it been in the Civil Court it could have been Rs 2.00 Crores. It included the opportunity loss in my business that could have been avoided; had the Bank considered my offer of settlement. It was also a frontline ground, both for loss of business as well as the loss in value in sale of three properties at conspicuously low prices. I witnessed the entire Bank team in panic. The Counter Claim was numbered and taken on record. Simultaneously, I filed a fresh Securitization Application SA.123/2009 before the DRT against the unlawful measures of the Bank on the properties that were sold by auction at compromising prices. I prayed to set-aside the sale in view of fraud. The new Presiding Officer at DRT was a retired DGM in a Nationalized Bank hence obviously not borrower friendly. The PO dismissed the case within one month on 18.09.2009. I filed a Review Application RA.5/2009 immediately on 08.10.2009 pointing out the numerous errors in the judgement.
I could not find a proper Advocate to represent and argue as I looked forward to. My friend Joseph was making plans to leave the Law Firm where he was the Main Counsel for general litigation and was busy in establishing his own office. I was not confident the counsel I hired could deliver such arguments in the court, hence I conceived the idea to record my ‘Digital Electronic Arguments’ on a CD Diskette, which can be viewed and heard. Moreover, it can be moved forward or backwards just like a movie. It ran to almost 3 hours and was recorded in my own voice, divided into several parts: with the initial technical guidance of Sundeep, my elder Son. It had hyperlinks wherever a reference to any provision of law was made, and also whenever I relied upon a judgement. The hyperlink took the viewer immediately to a different box and returned after the submission is complete. It took me almost one month to prepare after many failed attempts. Finally, I presented the CD Diskette on 14.12.2009. During the subsequent hearing, the PO of the DRT was baffled, he praised the innovative concept openly in the Court. The Audio-Video Digital Video Arguments is the first of its kind in the Country. It gave me extreme happiness for representing my case in my own voice. But unfortunately, the Judge did not pass any Order for ten months. I had to issue a telegram reminding of my pending Review Application.
I became popular at the DRT and DRAT for wrong reasons. Everyone was seeing me as a diehard litigant. I questioned the Bank’s Counsel that if there was no opportunity to exercise one’s rights then why are the laws enacted? If agitating for one’s rights is an abuse, then equity would remain a mirage. In democracy one cannot look down on anyone who is fighting for his rights. One profound gesture I used to receive from the Staff of the DRT, Attenders, the Record Room In charge, the xerox Madam, the Canteen Person, etc., was that they used to greet me every day with a smile and wish me all the luck. It made me feel that my battle was indeed genuine. Quite contrary was the opinion of the Advocates who treated me as a litigant. So did the Presiding Officer of the DRT who earlier praised me for the Digital Arguments. The PO dismissed the Review Petition R.A.No.5/2009 on 30.04.2010 and, in the Order, stated that “the applicant indulged in multifarious litigation in one forum or the other or authority including the Hon’ble Madras High Court as well as the Hon’ble High Court of Andhra Pradesh instead of pursuing the cause in this Tribunal in a proper manner and within limitation prescribed.” Was such pursuit an abuse? I wonder. Moreover, my agitation before the Madras High Court in Writ Petition No.30944/2008 was a known fact as I had submitted about it in the Appeal, but it was shocking as to how the PO became aware of my Representation in W.P.3130/2009 before the Hon’ble High Court of A.P. That gave me an indication of large force I am faced to battle.
Then one calm morning, I received news from the Attender Naresh, that the Bank was brewing something behind my back, but he could not foresee what it could be. Immersed in confused thoughts, I entered the Record Room to pursue a Document for certification which I had requested a week ago. Murugan, the In-charge, greeted me with a smile, and handed over the document I had Applied for, and while I was acknowledging in the register, he whispered, “Sir the Bank has applied for the entire set of documents to be certified in your case. I heard they are filing some Application before the Chief Judicial Magistrate Court having the jurisdiction on your Factory.” I searched for the answers; what could the strategy be? I had earlier befriended an Attender by name Ahmed at the CJM Court also. I immediately called him and inquired of any strange activity by the Bank. He then stated, “Saab ji, Salam”, “the Bank has come with an Sec.14 Application for Physical Possession, and it was rejected in view of the Documents not being Original. So, they are filing afresh tomorrow with certified copies form DRT.” It was shocking that the Bank had its second attempt even after the earlier Order of the Madras High Court against the physical possession of my factory. The danger has now reached my doorstep. I am going to lose my Factory and obviously the fate of the cases in hand also seemed sealed.
Resiliency is to mind like immunity to the physic. A cool head with a heart of fortitude only can think better. It’s a race against time which demands mental dexterity. I am no lily livered to get intimidated in threatening situations. I need to take the essence of all the success and defeats until then. Considering this as the final assault of the Bank, I have to hold it by the horns.
What followed next was a Herculean battle of my life, continued in part-3 ……. next week.
Additional Links:
· Writ Petition Order dated 19.01.2009 in W.P.No.30944/2008 - 2009(3) C.L.T. 216.
· Writ Petition No.3231/2010 Order dated on 31.03.20010
A snippet of - India’s First ‘Digital Electronic Arguments’ in RA.5/2009 filed before DRT-III, Chennai dated 14.12.2009
Well awaited waiting ended for this week. Reading thru only and only reminded that how vigilant and agile one has to be while doing his/her own business. Law however securitized it may be, but, law enforcers ?
Very well appreciate the definition and explanation for the statement 'Self Sympathy'. Very truly explained that sympathy has NO PLACE, in this complex world.
At the same time, it's also appreciated that you have not forgotten less privileged persons like attenders, typists along with the closest human being like your own children and categorizing as your 'Mystic Gods'. It definitely requires a lot of courage and stability.
All the very best, and await for Part 3.