OPEN LETTER TO MR. ANAND GOPAL MAHINDRA, EX-DIRECTOR OF KOTAK MAHINDRA BANK LIMITED

Without Prejudice

Dated: 30.12.2019

Mr. Anand Gopal Mahindra,

Ex-Director,

Kotak Mahindra Bank Ltd.,

Sub:    Regarding your role in Kotak Mahindra Bank’s frauds, forgery and illegalities committed against the applicants herein and making their lives as miserable putting the same at stake.

Ref:     Complaint of malicious prosecution and defamation by Bagla Family, against Kotak Mahindra Bank and Others including Uday S. Kotak, MD & CEO and Anand Mahindra, Ex-Director; and Legal Notice dated 13/08/2019, 20/12/2019 and Letter dated 19/12/2019.

Sir,

The applicants –

1)      Dr. Santosh Kumar Bagla S/o. Late Lachhmi Narayan Bagla;

2)      Smt. Pushpa Bagla W/o. Dr. Santosh Kumar Bagla; &

3)      Bhupendra Bagla S/o Dr. Santosh Kumar Bagla

(hereinafter collectively referred as the Applicants);

are law abiding Indian citizens having address at La – Magasin, No. 405, 4^th Floor, 63, S.V. Road, Santacruz (W), Mumbai-400 054. The Applicants are aggrieved because of the illegal acts and deeds of Kotak Mahindra Bank and its Directors/ Officials. The Applicant(s) had issued a Legal Notice dated 13/08/2019 through their Advocate and letter dated 19.12.2019 of the complainants, for malicious prosecution and defamation against the Applicants. However, no reply has yet been received at your.

An FIR No. 0120/2019 dated 19/10/2019 has been registered under section 420/34 of IPC, against Kotak Mahindra Bank Ltd and six other accused including Mr. Uday S. Kotak, MD & CEO, vide court order dated 14.10.2019 of M.M., Patiala House Courts, New Delhi, arising out of a complaint filed by the Applicant Bhupendra Bagla under Section 156(3) read with Section 200 of Cr.PC with charges U/s  420/464/465/467/ 471/120B/34/109 of IPC, before M.M., Patiala House Courts, New Delhi.

In the said order dated 14.10.2019, the Ld. MM Court at New Delhi has directed as under –

               “This court is of the considered view that matter discloses Cognizable Offence and it is relevant to mention here that in FIR No. 149/09 PS B.K. Road lodged by proposed accused no. 7 against the complainant, complainant has been discharged

               ……This Court is of the considered view that matter requires investigation by police, as several documents are to be collected and verified and number of persons are to be examined. In these circumstances, SHO concerned is directed to register FIR in this matter and investigate the same as per law. Copy of this order be sent to SHO concerned for compliance”.

At the time of the above offence committed by Kotak Bank and its official, you were also in Board of Directors of Kotak Mahindra Bank  which was instrumental in passing a resolution in the Board Meeting held on 25.03.2009, to file an O.A. before the Debt Recovery Tribunal, Delhi. The said entire activity of the Bank was in proper knowledge of the board that took the decision to file the said O.A. before the Debt Recovery Tribunal, Delhi and authorised some official to take the action in the matter. Therefore, you including other directors jointly and severely were /are directly responsible/ liable for the affairs and conduct of the Kotak Mahindra Bank.

After registration of the said FIR for committing fraud and forgery by Kotak Mahindra Bank and others, Bagla family has also filed a complaint with the Court of Chief Metropolitan Magistrate, New Delhi for malicious prosecution of the applicants, under Section 200 r/w 190 Cr. P.C. and for taking cognizance of offences Committed U/s 211 (IInd Part), 499/500, 501, 502 r/w 120B/34 IPC, against Kotak Mahindra Bank Ltd & others.

The applicants in the Legal Notice dated 13.08.2019 to Kotak Mahindra Bank Limited and others have sought damages of Rs. 102.5 crores on account of malicious prosecution, defamation and cost of litigations has been claimed and all the facts and evidence have been mentioned about the forgery committed by Kotak Mahindra Bank Ltd. & others. It is submitted that the said legal notice was not sent to all the directors of the Kotak Mahindra Bank Ltd at the relevant time reason being we had no knowledge of involvement of the Directors /person in the said conspiracy.

It is submitted that on the perusal of the order of M.M Patiala House Courts, New Delhi and above-mentioned documents, it is crystal clear that there was conspiracy, cheating and forgery of certain documents which has resulted into registration of the case FIR No. 120/2019 at PS Barakhamba Road, New Delhi.  This FIR has now been transferred to District Investigation Unit (DIU), New Delhi District, Mandir Marg, New Delhi for further investigation.

As you are aware, Kotak Mahindra Bank is established under the provisions and guidelines of Reserve Bank of India having branches all over the country. The affairs of the Bank are being managed and controlled by its Managing Director & CEO Mr. Uday Kotak who is responsible for its day to day affairs. The Managing Director & CEO and Regional Manager (Delhi NCR) are directly controlling the affairs of the branch offices of Kotak Bank from its head office and are the decision-making authorities.   The applicant/complainant herein in our complaint were not aware of the involvement of certain person including the then Directors of Kotak Mahindra Bank, therefore had primarily made them as “unknown” accused. Now, by a search report issued by a chartered Company Secretary, it revealed and verified that Mr. Anand Mahindra along with certain other persons were Directors of Kotak Mahindra Bank at the relevant time. The complainant accordingly made them accused / party to the said complaint of malicious prosecution.  In the complaint apart from one Virendra Kumar Sharma, Kotak Mahindra Bank and its Directors & Company Secretary and other officers namely Mr. Uday Suresh Kotak, Managing Director, The Regional Manager, Kotak Bank (Delhi & NCR), Mr. Anand Mahindra, Mr. Shivaji Dam, Mr. Chengalath Jayram, Dipak Gupta, Ms. Bina Chandarana, Company Secretary, Mr. Chandra Shekhar Prasad (The Then Deputy Manager, Legal),  Mr. Sanjay Kumar, Officer, Kotak Bank and CVIL Infra Limited and Bennett Coleman & Company Ltd., were made accused.

Now, the Applicants would like to ask you, being at the helm of affairs of Kotak Mahindra Bank at the relevant time, Why a conspiracy was committed against the applicants? and as a key person why you have not taken any action against the errant officials of Kotak Mahindra Bank for their frauds, forgery and illegalities against the applicant(s)?

By your illegal acts and untrue version of the Bank, the life of the applicants have been spoiled. By this illegal and untrue version, the applicants had to suffer a lot, not only physically but also socially, mentally as well as financially and has to face the following consequences:

• Bhupendra Bagla was illegally arrested whereas no loan was taken by him and no Power of Attorney and Affidavit was ever signed by him in favour of Kotak Mahindra Bank;
• Applicants have to resign from the various companies due to the illegal acts and untrue version of the Bank before various forums/courts;
• The married life of Bhupendra Bagla got ruined as he was divorced by his wife because of Bank’s false & frivolous complaint and case against him;
• The prestige and reputation of the applicants amongst their relatives and in the society, has been damaged badly.

The applicants would like to ask you Sir, what was the reason to create foraged and fabricated documents i.e. Power of Attorney and Affidavit by which Bank filed a false complaint against Mr. Bhupendra Bagla?

You have spoiled the life of Applicants’ family, the applicants would like to ask you to give the answer of following questions why such illegal action was taken against the Applicants?

• It is on record that the Bank has filed an OA No. 57 of 2009 on 04.06.2009 for recovery of loan amount from Cogent Ventures (India) Limited with an statement that the loan was granted on the mortgage of said Premises and submitted before the Ld. DRT the copy of two documents namely one Affidavit and a Power of Attorney alleged to be signed by Mr. Bhupendra Bagla son of Dr. Santosh Kumar Bagla. Why the Bank had not submitted the originals of these particular documents before Ld. DRT in support of their case?
• All original documents of mortgage are always kept with the lender until the loan account is settled. Then how did your Bank made a false averment before DRT that the disputed documents were returned to the borrower?
• Does power of attorney and affidavit can be treated as title documents as per the Bank’s rule?
• Can a mortgage/charge be created on a property on the basis of power of attorney and affidavit?
• The Bank was claiming that the said loan was secured loan and the said loan was sanctioned on 25.08.2007, then why an RTI on 20.08.2009 was made by Mr. Sanjay Kumar, some officer of the Bank, before Municipal Corporation of Delhi for obtaining the information of ownership of said Premises stating that Bhupendra Bagla approached the Bank for mortgage of the said premises?
• Before making an RTI Application, whether the Bank has taken any information from the borrower regarding title of the property? Also whether the Bank had verified the title documents of the property from borrower before sanctioning the said loan?
• Since the Bank alleges before the DRT that the said loan was a secured loan, then had either the company or Mr. Bhupendra given the Title Documents of the said property to the Bank for creating mortgage?
• Whether the RTI application was filed deliberately despite knowing the true fact about ownership of the said Premises / property and just to prepare fabricating documents with malafide intention to malign and harm the reputation of Mr. Bhupendra Bagla?
• Whether lease documents of the said Premises were not shared by the said company and Cogent EMR Solutions Limited with Kotak Bank at the time of loan sanctioned?
• When the said Premises was/is situated at Okhla, South East Delhi jurisdiction then why the complaint for cheating, criminal breach of trust, dishonest misappropriation of property etc. was lodged on 17.09.2009 at Police Station Barakhamba Road, New Delhi and at whose behest?
• When Bank’s branch was situated at Vasant Vihar, New Delhi jurisdiction then why the complaint for cheating, criminal breach of trust, dishonest misappropriation of property etc. was filed on 17.09.2009 at Police Station Barakhamba Road, New Delhi and at whose behest?
• Why the complaint dated 17.09.2009 was filed against Mr. Bhupendra Bagla and Mrs. Pushpa Bagla whereas there were other guarantors & Directors of the said loan facility? Whether both these were specific target at the Bank?
• Whether the said complaint dated 17.09.2009 was in the knowledge of Mr. Uday Suresh Kotak, Chairman and Managing Director of the Kotak Bank?
• A Board Resolution dated 25.03.2009 was passed in the Bank’s Board Meeting to authorised Mr. Chandrashekhar Prasad, Deputy Manager of Kotak Bank to file complaint and application against Mr. Bhupendra Bagla and Mrs. Pushpa Bagla. Whether Mr. Uday Suresh Kotak, Chairman and Managing Director and Mr. Anand G. Mahindra, Director of the Kotak Bank were present in the said Board Meeting held on 25.03.2009? Who were present in the Board Meeting when the said resolution was passed?
• Whether the said Board Resolution dated 25.03.2009 was taken on record i.e. the same was duly incorporated in Board’s Minute Book? Who all had signed the Minutes?
• What was the agenda for the Board Meeting to pass the said Board Resolution?
• Kotak Mahindra Bank has mentioned in its complaint dated 17.09.2009 that ‘accused no. 1 (i.e. Mr. Bhupendra Bagla) approached the Complainant Bank at UGF 1-11, Amardeep Building, 14 Kasturba Gandi Marg, New Delhi-11001 to avail short term business loan vide agreement no. 167543 dated 25/08/2009. Don’t you think that the same is contradictory version as the sanctioning branch of the said loan facility was D-10, No. 1, 2, Local Shopping Centre Vasant Vihar, D Block, New Delhi-37 and notice to re-call the entire loan amount dated 12.11.2008 was issued from the said address?
• Kotak Mahindra Bank has mentioned in the complaint dated 17.09.2009 that all the accused persons are guilty of commission of offence of cheating by first obtaining the aforesaid mentioned loan amount by way of misrepresentation and wrong warranties particularly by executing a forged power of attorney and false affidavit thereby cheating the first charge of the Bank against the said loan over property Cogent Matrix, E-41/4, Okhla Industrial Area, Phase-II, New Delhi-110020 falsely claiming to be the owner of the said property which he was not. Now question arises, whether any charge was registered with Registrar of Companies or Sub-registrar office, Delhi in respect of the alleged mortgaging of the said Premises/Property in favour of your Bank?
• Whether mortgage of any immovable property, registration of charge is compulsory or not?
• Had Kotak Mahindra Bank asked the company or Mr. Bhupendra Bagla to create charge in ROC? If not, why?
• If charge was not registered, can it be understood that Bank had not complied with all the legal formalities in respect of mortgaging the said property/Premises?
• Whether these two documents i.e. affidavit and power of attorney both dated 24.08.2007, were signed by Mr. Bhupendra Bagla? If yes, in whose presence?
• Whether these two documents i.e. affidavit and power of attorney both dated 24.08.2007, were part of the loan documents or executed separately?
• If it is presumed that Affidavit dated 24.08.2009 was signed and given by Mr. Bhupendra Bagla, whether Kotak Mahindra Bank had read and confirmed the language of that affidavit? It is mentioned in the affidavit- ‘that I have availed financial facilities from Kotak Mahindra Bank Ltd.(KMBL) vide agreement dated Aug 24, 2007 and in pursuance of such an agreement, I have agreed to provide KMBL charge over the said property in such form and manner as KMBL may require. Isn’t this language of the affidavit is contradictory as the loan was taken by the said company and not by Mr. Bhupendra Bagla?
• Had not Kotak Bank clarified to the said Company by way of a letter dated 12/09/2009 that the loan sanctioned was without any collateral security and loan was an unsecured loan?
• By simple reading of the language of the said letter dated 12/09/2009, it seems that the Bank had no knowledge, how the property was mortgaged for a loan?

The said letter stated – “during the meeting, after due deliberations and clarification furnished by you, it is cleared that property bearing no. E-41/4 Ground Floor Okhla Industrial Area, Phase-II, New Delhi-110020 is not mortgage or hypothecated to our Bank. It is clarified that the loan otherwise also is an unsecured loan. It is further clarified that it is because of the reason that the loan is an unsecured loan that we have not proceeded against any property including the one detailed herein above treating it to be a security/mortgage for the said loan under SERFAESI.”

By the said letter dated 12/09/.2009, the identity of the Bank in itself is doubtful –

• Bank said that client has clarified to them that property was not mortgage in favour of Bank. It means when loan was given by Bank, Bank had no knowledge that the loan property was mortgaged or not!!
• Bank was saying that client had clarified to them that loan was unsecured loan. It means when loan was given by Bank, Bank had no knowledge that the loan was secured or unsecured!!!
• Bank was saying that client had clarified to them that loan is unsecured loan and property was not mortgaged in favour of Bank, therefore they did not proceed against the property whereas they had filed an OA before the Debt Recovery Tribunal!!!
• Now, what sort of due diligence was done by the Bank at the time of sanctioning the said loan facility!!!
• The Bank on 11/11/2009, in response to the notice u/s 91 of Cr.PC, on the landlord’s (Mr. Virendra Sharma) complaint had said that loan was secured loan whereas the very next day the Bank in a letter dated 12/11/2019 to the company wrote that the loan was unsecured one. Why such contradiction and what the Bank and its officials have to say on it?

Despite of the above questions which remained unanswered, there are also further question regarding governance in banking systems and involvement of good corporate in White Colour Crimes. The applicants are aware that today, Mr. Anand Mahindra, Chairman of Mahindra Group, is a well-known name in the corporate world, not just in India but in the entire World. Honoured with about one and a half dozen awards such as (outstanding contribution in the business field, Knight of the Order of Merit’ by the President of the French Republic, Leadership Award by American India Foundation, Business Leader Award for the year award, Harvard Business School Alumni Achievement Award, Business Leader of the Year 2011, Global Leadership Award, Sustainable Development Leadership Award etc.), We are also aware that Mr. Mahindra gave one lakh rupees to Mr. Uday Kotak in 1985 to start a business. Uday Kotak also did not disappoint him & after 2003 Kotak Mahindra Bank was placed in some of the leading banks in India.

But with this success, some critical questions also started to arise against Mr. Uday S. Kotak and Mr. Anand Mahindra. Does success mean ruining a weak and small businessman? Can success be achieved only by conspiracy, cheating, forgery etc? Where did those values and ethics went that Uday Kotak discredit Mr. Anand Mahindra, which led to his separation from Kotak Mahindra Bank? Today all these questions are haunting Mr. Uday Kotak, and possibly he has no answer.

Why Mr. Anand Mahindra was ceased to be a promoter of Kotak Mahindra bank in 2013 but continue as a non-executive director? The board of Kotak Mahindra Bank has already approved the exit of Mr. Anand Mahindra as a promoter as per his request. What was the reason for this silent exit?

The Kotak and Mahindras started Kotak Mahindra Bank as a joint venture in 2003 because there are many conditions that a bank have to fulfill for obtaining licenses from RBI and at that time none of them was in the position to fulfill all those conditions solely that’s why they jointly formed Kotak Mahindra group. But in 2009 Mr. Anand Mahindra get separated from Kotak Mahindra due to some managerial issues.

Mr. Uday S. Kotak always talks about Value and ethics in business. But in practice, he does exactly the opposite. Certainly trade means profit making to him. But business doesn’t mean fierce competition, ruining the other, conspiring and trapping the opponent etc which is in vogue these days for Kotak Bank. This creates feeling of insecurity and leads to crime. Kotak Mahindra Bank and its M.D. Mr. Uday S. Kotak did the same thing through a conspiracy against a prominent businessman Dr. Bagla and his family and has ruined them completely. Today, the Bagla family is acquitted / discharged with respect from the said false and frivolous case of Kotak Mahindra Bank after a lengthy legal process (about 10 years). Again after the order of MM, An FIR has also been filed against Kotak Mahindra Bank and its M.D Uday Kotak including others. But who would understand the pain of the loss suffered by Dr. Santosh Kumar Bagla’s family in the last 10 years in every way.

Of course today, with many new enticing promises, they are moving forward by losing value and ethics, ruining many people like Dr. Bagla, but many cases have been registered against them, too. Mr. Uday Kotak owes his success not just to his hard work but also to Mr. Anand Mahindra. But did they share all these things?

It is further submitted that the undersigned is not well since last several years and because of my continuing and deteriorating health conditions and blocking of huge investment in various companies/projects, pressure of creditors and investors have aggravated my health. I am suffering from extreme fragility of health and have developed Hypertension, Ischeamic Heart Disease, Diabetes, Anxiety, Insomnia, Angina Pectoris, Spondolytis, Lower Back Pain in the Lumbar region of Spine and is under treatment of the panel of Doctors.

It is stated that the harassment on the part of Kotak Mahindra Bank, its officials and another and protracted litigation further resulted undersigned’s felling sick and going into acute depression. The undersigned being apprehensive of danger to my life and liberty, therefore, has even sought for providing security to me and my family and in this regard, we have also written to Ministry of Home Affairs/ Delhi Police.

Further, the undersigned have learnt that the officials of Kotak Bank and their associates are now indulging in spreading false and mischievous information that Bagla family is making false claims and there are lot of litigations pending against them. Some persons connected to Kotak Mahindra Bank are even threatening Bagla family for filing complaints and sending notice. All this is being made only to bring disrepute to Bagla family as there is no case pending against the undersigned and his family members as on date. We are in the process of taking appropriate legal action against such bullying and intention to bring disrepute to Bagla family.

Sir, after the registration of FIR against Kotak Mahindra Bank and its officials, including your goodself, the issue has already been highlighted in the media. We are restraining ourselves to approach the media as we have utmost regards for your goodself and the Mahindra Group of companies.  We seek an appropriate concern and redressal of our matter at your end.

In view of the above, the applicants highly regrets that no reply has been given in respect of the Legal Notice of Applicants dated 13/08/2019 by Kotak Mahindra Bank and 19.12.2019 by your goodself and no steps are taken to redress the grievances of the undersigned. Now, the Applicants suggests and request that being at the helm of affairs of Kotak Mahindra Bank at a certain point of time, please reply to all the queries we have raised hereinabove and if you are not involved in the above conspiracy, then please give appropriate directions for an investigation in the matter to  the concerned officials of your Bank and give a suitable time to the applicants to have a meeting with you so that the applicants is able to put before you all the evidences and explanations in this regard.

Thanking you,

Yours sincerely,

(Dr. Santosh Kumar Bagla)

For Self and on behalf of

The complainants.