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AFFIDAVIT-IN-REPLY ON BEHALF OF THE PETITIONER

I, Swatantra Kumar Tiwari, son of Sri Hriday Narayan Tiwari aged

about 47 years, by faith Hindu, carrying on business at 42, Ballygungem
Place, P.S.- Gariahat, Kolkata-700019 do hereby solemnly affirm and say
follows:

1. I am the petitioner no. 2 in the instant petition. I am kmmmalso the

managkkkkmkmkkming director of the petitioner no. 1. I am as such and
have made myself well acquainted with the facts and circumstances of the
case. I am duly authorized by the petitioner no. 1 to issue this affidavit on
its behalf and I am competent to do so.

2. I have been served with a copy of an affidavit stated to be affirmed

by one Richa Singh and intended to be used as an opposition to the writ
petition (hereinafter referred to as “the said opposition”). I have read the
same and understood the meaning and purport thereof. I intend to use
this affidavit as a reply to the said opposition.
3. Before dealing with the paragraph wise statements of the said
opposition I beg to state as follows:-

i. At the outset I submit that the said opposition has not been made in
accordance with law and hence this Hon’ble may be pleased not to
place any reliance on the same.

ii. Without prejudice, I say that substantial amount of repayment have

been made after the receipt of the said notices under sections 13(2)
and 13(4) of the said Act of 2002.

iii. The answering respondent has failed to comply with the

requirements and mandate of the said Act of 2002 in proceeding to
take over possession of the said property. The authorization given to
the purported authorized officer for issuance of the said notice
under section 13(4) of the said Act of 2002 is bad and illegal.

iv. The authorization given to the purported authorized officer is

beyond the scope and authority vested in the answering respondent
by the governing statute and the rules made thereunder. The person
issuing such purported possession notice is only a junior legal
counsel and as such is incapable of being appointed as an
authorized officer under the governing statute and the rules made
thereunder.

v. As such, the process of taking over of the possession in exercise of

the powers under section 13 (4) of the said Act of 2002 is de hors
the process of law.

vi. Further, the application filed by the answering respondents

purportedly under section 14 of the said Act of 2002 is also bad and
untenable in the eyes of law. The person who has affirmed the
affidavit before the Learned Magistrate cannot and does not have
 the authority to affirm such affidavit. The person affirming such
affidavit is only a junior legal counsel and as such is incapable of
being appointed as an authorized officer under the governing
statute and the rules made thereunder.

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viii. In any case, the Learned Magistrate has failed to exercise the
jurisdiction vested in him and/or exercised the jurisdiction
improperly in appointing the seal bailiff to execute m
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ix. eal bailiff is beyommnd the scope and ambit ofthe powers vested in
the Learned Magistrate under section 14 of the said mmmm of
2002. The seal bailiff is incapable of estimating and comprehending
the extent of the property over which the possession has to be
taken and hence incapable of executing such order. The inability of
the seal bailiff is further evinced by his actions in taking over the
possession of the property in question along with all the movable
assets lying inside, which are not subject matters of the alleged
mortgage. The appointment of the seal bailiff for such purpose by
the Learned Magistrate is illegal and unauthorized under the law.

x. It is also pertinent to state and submit that the seal bailiff has failed
to make a proper inventory of the assets lying within the said
property while taking such possession. However, it is also pertinent
to mention that vide order dated August 24, 2023, it will clear that
on August 29, 2023, the seal bailiff was supposed to file its report
before the Learned Chief Judicial Magistrate with regard to trace out
page 3 of the petition filed under section 14 of the said act. On
contrary, the seal bailiff with the police assistance hastily went to
said property and took illegal procession on August 29, 2023 when
the office of the petitioner no.1 was closed on the auspicious
 occasion of Hindu festival. Such act and/or action taken by the Seal
bailiff reeks of some kind of malafide and illegal intention without
any authorized under the law.

xi. When it was brought to the knowledge that some people are trying
to break in the lock of the said property and later it was found that
the Seal bailiff with police assistance trying to take physical
procession of the said property without serving the certified copy of
the order passed under section 14 of the said act, then a copy of the
instant writ petition was given to the seal bailiff by the petitioners
representative, who refused to accept the same. As such it becomes
more evident that the act and/or action of the seal bailiff de hors the
process of law.

xii. I state and submit that the Hon’ble appeal Court vide order dated
September 4, 2023 has also directed to maintain status quo of
possession as on August 31, 2023, on which date the petitioners
were in possession of the property in question. The said order of the
Hon’ble Appellate Court is still prevailing and hence, by a literal
interpretation of such order, the answering respondents are liable to
restore the possession of the property to the petitioners. A copy of
such order dated September 4, 2023 is annexed hereto and marked
with letter “A”.

xiii. The answering respondent also failed to abide by the order dated
September 4, 2023 by not allowing to remove all the immovable
and/or movable articles which are not subject matter of such
hypothecation even after there being a specific direction by the
Hon’ble Appellate Court to that effect. The copies of such
communication exchange between the parties are annexed hereto
and collectively marked with letter ”B”.
xiv. Further, I state and submit that the answering respondents have
committed breach and transgressions on the rights of the
petitioners in discharge of their statutory duties. The actions
complained of in the writ petition are all done by the answering
respondents in excess of and in abuse of the powers vested in them
under the statute. The answering respondents are dealing with
public money and there are elements of public duties involved in
their regular activities committed under the mandates of the Act of
2002. As such, the High Prerogative Writ Jurisdiction of this Hon’ble
Court extends upon the answering respondents so far as
commission of irregularities and illegalities of the duties envisaged
under the said Act of 2002 is concerned. I state and submit that the
process adopted by the answering respondents in the purported
exercise of the powers and discharge of duties under the provisions
of the said Act of 2002 is bad and de hors the provisions of law. As
such, the disputes concerned are required to be entertained and
adjudicated by this Hon’ble Court despite the availability of an
alternative remedy. The existence of an alternative remedy is not an
absolute bar on the institution of a writ petition.

xv. On August 30, 2023, we have been illegally dispossessed from our
office without following the due process of law. The numerous
employees of the petitioners have also been rendered without job
overnight. The urgence in the adjudication of the disputes in
question is exceptional and alarming.

4. Without prejudice to the aforesaid, on the contrary fully relying

thereon, I proceed to deal with the allegations made in the said
opposition. I have been advised to deal only with the allegations which are
material and relevant for the adjudication off the disputes in question and
I proceed to do so. All other allegations shall be deemed to be denied and
disputed as if sit out here under and traversed in seriatim.
5. With reference to paragraph 1 of the said opposition, save and
except what are matters of record and what would appear from a true and
proper interpretation thereof, all other allegations shall be deemed to be
denied and disputed. In this context, I repeat and reiterate the statements
made above and in the writ petition and anything contained in the
paragraphs under reference, contrary thereto and/or inconsistent
therewith shall be deemed to be denied and disputed.

6. With reference to paragraphs 1 and 2 of the said opposition, the

allegations made therein deals mostly with matters of record. As such, the
petitioners refrain from dealing with the same however puts the
respondents to strict proof thereof.

7. With reference to paragraphs 3 (a) to 3 (c) of the said opposition,

save and except what are matters of record and what would appear from
a true and proper interpretation thereof, all other allegations shall be
deemed to be denied and disputed. In this context, I repeat and reiterate
the statements made above and in the writ petition and anything
contained in the paragraphs under reference, contrary thereto and/or
inconsistent therewith shall be deemed to be denied and disputed. I deny
and dispute that the petitioners approached the answering respondents
seeking for financial assistance as alleged. The agents and
representatives of the answering respondents convinced the petitioners
by projecting and promising unreal circumstances. As it happens, the
petitioners were assured for disbursement of financial assistance of a
much larger amount than what was finally disbursed. I deny and dispute
that the answering respondents disbursed such amount of Rs. 2, 09, 00,
000 (Two Crores Nine Lakhs) as alleged. I deny and dispute that the
petitioners agreed to create any equitable mortgage as alleged or at all. I
state and submit that during the course of application for the financial
assistance, I was made put my signature on a number of document
without allowing me to read them or explaining their meaning and
purport. I had agreed to put my signature on such documents in good
faith. It has letter come to my understanding that such documents are
utilized to create valuable securities. All such securities were created
without my free will, volition, consent and permission.

8. With reference to paragraphs 3 (d) to 3 (e) of the said opposition,

save and except what are matters of record and what would appear from
a true and proper interpretation thereof, all other allegations shall be
deemed to be denied and disputed. In this context, I repeat and reiterate
the statements made above and in the writ petition and anything
contained in the paragraphs under reference, contrary thereto and/or
inconsistent therewith shall be deemed to be denied and disputed. I deny
and dispute that the petitioners had made a series of defaults in payment
of monthly installments as alleged. I deny and dispute that the petitioners
had made any breach of the agreement as alleged. I do not understand
that declaration of the account of the petitioners as non performing assets
is legal and valid as alleged or at all.

9. With reference to paragraphs 3 (f) to 3 (g) of the said opposition,

save and except what are matters of record and what would appear from
a true and proper interpretation thereof, all other allegations shall be
deemed to be denied and disputed. In this context, I repeat and reiterate
the statements made above and in the writ petition and anything
contained in the paragraphs under reference, contrary thereto and/or
inconsistent therewith shall be deemed to be denied and disputed. I deny
and dispute that the answering respondents have issued a valid notice
under section 13 (2) off the set act of 2002 as alleged. The particulars
provided in the said notice are bad on facts and hence the said notice is
bereft of the character of the statutory notice as contemplated under the
said Act of 2002. I deny and dispute that any security interest was created
in favour of the answering respondents as alleged or at all. As such, the
purported enforcement of security interest under the said Act of 2002 is
untenable and illegal.
10. With reference to paragraphs 3 (h) to 3 (i) of the said opposition,
save and except what are matters of record and what would appear from
a true and proper interpretation thereof, all other allegations shall be
deemed to be denied and disputed. In this context, I repeat and reiterate
the statements made above and in the writ petition and anything
contained in the paragraphs under reference, contrary thereto and/or
inconsistent therewith shall be deemed to be denied and disputed.I deny
and dispute that the reply issued by the petitioners under section 13 (3A)
of the said Act of 2002 is frivolous as alleged or at all. It is an admitted
position that the representation made by the petitioners on May 6, 2022
was disposed by the answering respondents only on May 22, 2023, after
expiry of the statutorily mandated period of 14 days from its receipt. I
deny and dispute that the reply issued by the answering respondents to
the notice of the petitioners under section 13 (3A) of the said Act of 2002
is detailed as alleged or at all. The said reply was received by the
petitioners on May 26, 2023 whereas a possession notice purportedly
under section 13(4) of the said Act of 2002 was issued on May 24, 2023.

11. With reference to paragraphs 3 (i) to 3 (k) of the said opposition,

save and except what are matters of record and what would appear from
a true and proper interpretation thereof, all other allegations shall be
deemed to be denied and disputed. In this context, I repeat and reiterate
the statements made above and in the writ petition and anything
contained in the paragraphs under reference, contrary thereto and/or
inconsistent therewith shall be deemed to be denied and disputed.I deny
that dispute that dirty petitioners failed to discharge their liabilities as
alleged or at all. On the contrary, the petitioners have made substantial
amount of repayment after the receipt of the said notices under sections
13(2) and 13(4) of the said Act of 2002. I deny and dispute that the
possession of the said property has been taken in compliance of section
13 (4) of the saidAct of 2002 as alleged. The answering respondent has
failed to comply with the requirements and mandate of the said Act of
2002 in proceeding to take over possession of the said property. The
authorization given to the purported authorized officer for issuance of the
said notice under section 13(4) of the said Act of 2002 is bad and illegal.
The authorization given to the purported authorized officer is beyond the
scope and authority vested in the answering respondent by the governing
statute and the rules made thereunder. The person issuing such purported
possession notice is only a junior legal counsel and as such is incapable of
being appointed as an authorized officer under the governing statute and
the rules made thereunder. As such, the process of taking over of the
possession in exercise of the powers under section 13 (4) of the said Act
of 2002 is de hors the process of law. The application filed by the
answering respondents purportedly under section 14 of the said Act of
2002 is also bad and untenable in the eyes of law. The person who has
affirmed the affidavit before the Learned Magistrate cannot and does not
have the authority to affirm such affidavit. The person affirming such
affidavit is only a legal counsel and as such is incapable of being
appointed as an authorized officer under the governing statute and the
rules made thereunder. That apart, the statements made in the affidavit
statutorily required to accompany such application under section 14, are
false, concocted and filled with gross misrepresentations. No adjudication
could have been made on such affidavit without calling for any counter
affidavit from the petitioners. In any case, the Learned Magistrate has
failed to exercise the jurisdiction vested in him and/or exercised the
jurisdiction improperly in appointing the seal bailiff to execute the order
for physical possession. Such order for appointment of the seal bailiff is
beyond the scope and ambit of the powers vested in the Learned
Magistrate under section 14 of the said Act of 2002. The seal bailiff is
incapable of estimating and comprehending the extent of the property
over which the possession has to be taken and hence incapable of
executing such order. The inability of the seal bailiff is further evinced by
his actions in taking over the possession of the property in question along
with all the movable assets lying inside, which are not subject matters of
the alleged mortgage. The appointment of the seal bailiff for such purpose
by the Learned Magistrate is illegal and unauthorized under the law.
12. With reference to paragraph 3 (l) to 3 (p) of the said opposition,
save and except what are matters of record and what would appear from
a true and proper interpretation thereof, all other allegations shall be
deemed to be denied and disputed. In this context, I repeat and reiterate
the statements made above and in the writ petition and anything
contained in the paragraphs under reference, contrary thereto and/or
inconsistent therewith shall be deemed to be denied and disputed. I deny
and dispute that the seal bailiff faced resistance in taking possession as
alleged or at all. I state and submit that the seal bailiff has illegally taken
possession of immovable property as well as the movable assets lying
within the said immovable property. I further state and submit that the
seal bailiff has failed to make an inventory of the assets lying within the
said property while taking such possession. I deny and dispute that the
petitioners are willful defaulters as alleged or at all. I deny and dispute
that the grounds raised by the petitioners are frivolous as alleged or at all.
I deny and dispute that the petitioners have filed the writ petition to avoid
the debts as alleged or at all. I deny and dispute that the writ petitioners
have not attempted to service copies upon the answering respondents as
alleged or at all. I state and submit that the Hon’ble appeal Court has also
directed to maintain status quo of possession as on August 31, 2023, on
which date the petitioners were in possession of the property in question.
The said order of the Hon’ble Appellate Court dated September 4, 2023 is
still prevailing and hence, by a literal interpretation of such order, the
answering respondents are liable to restore the possession of the property
to the petitioners.

13. With reference to paragraph 4 of the said opposition, save and

except what are matters of record and what would appear from a true and
proper interpretation thereof, all other allegations shall be deemed to be
denied and disputed. In this context, I repeat and reiterate the statements
made above and in the writ petition and anything contained in the
paragraphs under reference, contrary thereto and/or inconsistent
therewith shall be deemed to be denied and disputed. I deny and dispute
that the answering respondents are not amenable to the writ jurisdiction
as alleged or at all. I state and submit that the answering respondents
have committed breach and transgressions on the rights of the petitioners
in discharge of their statutory duties. The actions complained of in the writ
petition are all done by the answering respondents in excess of and in
abuse of the powers vested in them under the statute. The answering
respondents are dealing with public money and there are elements of
public duties involved in their regular activities committed under the
mandates of the Act of 2002. As such, the High Prerogative Writ
Jurisdiction of this Hon’ble Court extends upon the answering respondents
so far as commission of irregularities and illegalities of the duties
envisaged under the said Act of 2002 is concerned. I state and submit that
the process adopted by the answering respondents in the purported
exercise of the powers and discharge of duties under the provisions of the
said Act of 2002 is bad and de hors the provisions of law. As such, the
disputes concerned are required to be entertained and adjudicated by this
Hon’ble Court despite the availability of an alternative remedy. The
existence of an alternative remedy is not an absolute bar on the
institution of a writ petition. I deny and dispute that there is no urgence in
the matter as alleged or at all. On the contrary, the petitioners have been
illegally dispossessed from their office. The numerous employees of the
petitioners have also been rendered without job overnight. The urgence in
the adjudication of the disputes in question is exceptional and alarming. I
deny and dispute that the case that the deponent of the affidavit in the
section 14 application is not the authorized officer as alleged or at all. I
deny and dispute that the writ petition is not maintainable or the same is
liable to be dismissed as alleged or at all. I deny and dispute that the
petitioners have not approached this Hon’ble Court with clean hands as
alleged or at all. I deny and dispute that the writ petition is false,
motivated, misconceived, frivolous, harassive or devoid of merits as
alleged or at all. I deny and dispute that the writ petition is suffering from
distortion of facts as alleged or at all.
14. With reference to paragraphs 5 to 20 of the said opposition, save
and except what are matters of record and what would appear from a true
and proper interpretation thereof, all other allegations shall be deemed to
be denied and disputed. In this context, I repeat and reiterate the
statements made above and in the writ petition and anything contained in
the paragraphs under reference, contrary thereto and/or inconsistent
therewith shall be deemed to be denied and disputed.

15. With reference to paragraph 21 to 33 of the said opposition, save

and except what are matters of record and what would appear from a true
and proper interpretation thereof, all other allegations shall be deemed to
be denied and disputed. In this context, I repeat and reiterate the
statements made above and in the writ petition and anything contained in
the paragraphs under reference, contrary thereto and/or inconsistent
therewith shall be deemed to be denied and disputed. I deny and dispute
that the petitioners are not entitled to the reliefs as sought for in the writ
petition as alleged or at all. I deny and dispute that the writ petition is
liable to be dismissed as alleged or at all.

16. In the above facts and circumstances, the petitioner humbly

submits that this Hon’ble Court may be pleased to allow the prayers made
in the writ petition.

17. The statements made in paragraph _____ are true to the best of my
knowledge and belief and the rest are my most respectful submissions
made before this Hon’ble Court.