CENTRAL BANK OF INDIA vs DSC LTD on 31 December 2024

FINAL ORDER

This original application has been filed by tne applicant ban( on 28.03.2014 through Shri R. Sundara Raman, Assistant General Manager of the applicant ban( under Sectiqlt- 1! of the RDB Act, 1993 €4.

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against the defendant no. 1 to 9 for recovery of a sum of Rs.21,92,95,255.67 together with cost, charges and pendentellite and future interest @ B.R. + 4o/o p.a. from date of filing of this T.A. till the realization in full.

2. The lrrief facts of the case are that defendant no.1 i.e. M/s DSC Limited earlier having its name as DS Constructions Limited is engaged in the business of construction of various road and other projects and the defendants no. 2, 3, 4 and 5 are the Directors/Guarantors of the defendant no. 1 Company, entrusted with the responsibility of managing day to day affairs of defendant no. 1. The defendant no.2, 5,6,7,8 and 9 are the mortgagors/guarantors. At the request of defendant no.1 its authorized representative Vice President-Finance, the Applicant Bank vide it's in-principle sanction bearing Ref. No. cFB- DEU2009-10/613 dated 11.01.2010 conveyed the acceptance of the request of the Company for a BG limit of Rs. 100 crore subject to submission of regular proposal for a Bank Guarantee limit. The defendant no.1, vide letter dated 13.01.2010 requested the Applicant Bank for modification in the terms of letter dated 11.01.2010 by modiffing the request from the Bank Guarantee Limit of Rs.100 crore to Bank Guarantee limit of Rs. 50 crores +LC limit of Rs.50 Crores. The defendants sought subsequent modifications to the said sanction vide their letter DSC/CBI/2010 dated 16.01.2010. Subsequently the revised Non Fund Based hcilities (Bank Guarantee limit of Rs. 75 Crores and Letter of Credit Limit of Rs. 25 Crores) in favour of the defendant no. 1 were sanctioned vide Sanction_,LeUer datd 24.02.2010 e,\

bearing reference no. CFB- DEU2009-10/753, subject to the terms and conditions specified therein that full interchangeability between BG and LC and vice versa. The said Bank Guarantee Limit was sanctioned for the purpose of issuance of performance guarantees, advance payment guarantee, bid security in favour of NHAI, MORTH, RVNL etc. and the Letter of Credit Limit was sanctioned for purchase of steel, bitumen, boulders etc and also performance guarantee on behalf of SPVs and joint ventures and for procurement of raw materials such as cement, steel service for import of raw material and equipment and for payment to sub-contractors. It is submitted that the charge bearing identification number LO2LSO57, to this facility of Rs.100 Crores was also registered with ROC, Ministry of Corporate Affairs on 10.03.2010. It is submitted that vide a resolution of the Board of Directors of the defendant no.l in their meeting held on 26.02.2010 accepted the terms and conditions of the sanction letter dated 24.02.2010 for availing Non Fund Facilities of Rs.100.00 Crores sub divided into interchangeable Bank Guarantee limit of Rs.7S.00 Crores and Letter of Credit Limit of Rs.25.OO Crores and the Respondent No.2, Sh Mohinder Singh Narula, being the Managing Director and Respondent No. 3, Shri. Narinder Singh Narula, Director were authorized to accept the terms and conditions of the sanction and the Directors were severally authorized to execute the loan documents in favour of the Applicant Bank. It is submitted that in consideration of the aforesaid credit facilities, sanctioned to defendant no.1, the defendant no.1 through its Director/Authorized signatory i.e. defendant no.2 executed the loan documents in favour of the Applicant Bank on 10.03.2010 i.e. (i) General 9I

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Counter Guarantee and Indemnity Covering Several Guarantees within the sanctioned Guarantee Limit for Rs. 100.00 Crores dated 10.03.2010 (ii) Omnibus Counter Guarantee for Letter of Credit Limit for Rs.100.00 Crores dated 10.03.2010 (iii) General Counter Indemnity for Rs.100 Crores dated 10.03.2010 (iv) Hypothecation Agreement for Bank Guarantee Facility dated 10.03.2010 (v) Deed of Hypothecation to Secure Letter of Credit dated 10.03.2010 and (vi) Undertaking from the defendant No.1 dated 10.03.2010. It is submitted that in consideration of the said credit facilities sanctioned in favour of the defendant No.1, the defendant No. 2 i.e. Mr. Mohinder Singh Narula, defendant No. 3 i.e. Mr. Narinder Singh Narula and defendant 4 i.e. Mr. Harpinder Singh Narula, executed/stood personal guarantee/surety for the due repayment of the facility availed by the defendant no.l and executed Form of Guarantee for Advances and Credits Generally dated 10.03.2010 in favour of the Applicant Ban( so as to liquidate the entire outstanding dues, due and payable by the borrower, together with up to date interest, with monthly rests and other allied charges.

3. It is submitted that the Non Fund Based limits were availed by the defendant no. 1 from time to time, however, the account of the defendant no.1 was running irregular. The borrower company failed to adjust the devolved amount of LCs, which was un- adjusted for over 90 days and the defendant no.l requested the Bank vide letter dated 25.03.2011 for a shoft term loan vide resolution of the Board of Directors of the company held on 24.03.20Lt, authorizing the company to apprgach the Applicant 9"\ I:

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Bank for a short term loan of Rs40.00 Crores. On the request of the defendant no.l company, the Applicant Bank agreed to review the existing facilities, and accordingly, vide sanction letter dated 30.03.2011 sanctioned Rs.40 Crores as a Short Term loan and the outstanding balance of Rs.14.94 Crores in LC to continue till adjustment on due date. The said Short Term loan was repayable in six monthly equal installmenb of Rs 6.67 crores each, commencing from October 2011 and ending in March 2012. The interest was to be serviced as and when charged. As per the terms of the said sanction, the existing NFB Limits of Rs.100.00 Crores will stand cancelled after payment of the devolved amount and outstanding LCs and fresh review on NFB limits will be undertaken after adjustment of then existing liabilities under NFB limits. The defendant no. 1 accepted the sanction letter and agreed to follow the terms and conditions of the sanction and applicant acceded to disburse the Short Term Loan (STL) to the Company. As per sanction letter the amount so disbursed was utitized for adjusting the then Outstanding Devolved LC amount. It is submitted that as LCs of the defendant no.1, company was continuously devolved since October 2010 and were adjusted in March 2011 after getting the STL of Rs.z10 Crores from the Applicant Bank as per the observations of the Bank's stafutory auditor for F.Y. 2010-11 the said account was treated as NpA w.e.f. 31.03.2011 as per the RBI guidelines. In consideration of the said credit facilities given to the defendant no.1, the defendant no.2, as Director/Authorized Signatory of defendant no.1, executed Term Loan Agreement, undertaking, declaration and hypothecation agreement dated 9^ I l i I I I I l I I l

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31.03.2011 for Rs. 40.00 Crores in favour of the Applicant Bank. In consideration of the said credit facilities to defendant no.1, the defendant nos.2 to 9 executed/mortgaged/stood personal guara ntee/surety for the due repayment of the facilities availed by the defendant no.1 and executed Form of Guarantee for Advances and Credits Generally dated 31.03.2011, in favour of the Applicant Ban( so as to liquidate the entire outstanding dues, due and payable by the borrower together with up to date interest with monthly rests and other allied charges. In consideration of the said credit hcilities sanctioned in favour of the defendant no.1, the defendant no.2 i.e. Sh. Mohinder Singh Narula, being the sole and exclusive owner thereof, with the intention to create mortgage, deposited the title deeds with respect to one shop on Ground Floor (adjacent to E-10) of E-9, South Extension Part-II, New Delhi, in favour of the Applicant Bank on 31.03.2011, as collateral security for the due repayment of the said credit faciliUes sanctioned by the ban( along with interest and other charges. The defendant no.6 i.e. Sh. Birender Singh Narula, being the sole and exclusive owner thereof, with the intention to create mortgage, deposited the title deeds with respect to one shop on Ground Floor (adjacent to E-8) of E-9, South Extension Part-II, New Delhi, in favour of the Applicant Bank on 31.03.2011, as collateral security for the due repayment of the said credit facilities sanctioned by the bank, along with interest and other charges. The defendant no. 7 ie. Sh. Anhad Narula, being the sole and exclusive owner thereof, with the intention to create mortgage, deposited the title deeds with respect to the rear portion of Ground Floor of E-? Solth Extension Part- eA

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II, New Delhi, in frvour of the Applicant Bank on 31.03.2011, as collateral security for the due repayment of the said credit facilities sanctioned by the bank along with interest and other charges. The defendant no.5 i.e. Sh. Manhad Narula, being the sole and exclusive owner thereof, with the intention to create mortgage, deposited the title deeds with respect to entire mezanine Floor in E-9, South Extension Part-II, New Delhi, in favour of the Applicant Bank on 31.03.2011, as collateral security for the due defendant no.8 i.e. Sh. Arwinder Singh Narula, being the sole and exclusive owner thereof, with the intention to create mortgage, deposited the title deeds with respect to the entire First Floor of E-9, South Extension Part-II, New Delhi, in favour of the Applicant Bank on 31.03.2011, as collateral security for the due defendant no.9 i.e. Sh. Herman Narula, being the sole and exclusive owner thereof, with the intention to create mortgage, deposited the title deeds with respect to entire Second Floor of E-9, South Extension Part-II, New Delhi, in favour of the Applicant Bank on 31.03.2011, as collateral security for the due defendant no.5 i.e. Sh. Manhad Narula, defendant No.6 i.e. Sh. Birender Singh Narula, defendant No.7 i.e. Sh. Anhad Narula, defendant No.8 i.e. Sh. Arwinder Singh Narula and defendant no.9 i.e. Sh. Herman Narula executed Special Power of Attorney in favour of defendant no.2 Sh. Mohinder Singh Narula to 4\.

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mortgage their respective rights in ttie aforesaid portions of E-9, South Extension Paft-II, New Delhi, in favour of the Bank to secure the credit facility made available/to be made available to defendant no. 1 company. Accordingly as Attorney of defendant no. 5 to 9 and for himself, the defendant no.2 deposited on 31.03.2011, the tiUe deeds as detailed above, with the Applicant Bank with the intent to oeate mortgage by deposit of title deeds in favour of the Applicant Bank.

4. It is further submitted that no installment was paid by the borrower company from October 2011 to December 2011, in violation of the terms of sanction dated 30.03.2011. The first installment of Rs. 6.67 Crores was paid in January 2012. Even the said cheque bearing No. 740315 dated 31.10.2011 For Rs.6.67 Crores being installment for the month of October 2011 was returned dishonored due to insufficiency of funds and on request of the bank the defendant no.l, deposited the amount of dishonoured cheque with the bank on 06.01.2012. Thereafter, number of cheques were issued by the company towards payment of the installments were retumed unpaid due to insufficiency of funds. The applicant bank has filed cases under Sections 138-L45 of the NI Act 1881 pertaining to the aforementioned cheques and the matter is sub judice at MM Dwarka Courts. It is submitted that the Applicant Bank vide letter dated 03.12.20L2, again requested the defendants to pay the outstanding amount failing which, the bank will be constrained to initiate recovery measuresr including under SARFAESI Act. The defendant no.1, rarhile admifting the receipt of the letter dated 03.L2.2012 for overdue in the STL and their liability to the bank, 9A, rI*& .=. ajrt ' TA NO. 02of 2022

assured to pay one installment cf Rs' 6.67 Crores and the balance amount of loan in the month of January 2013. Vide lefter dated 13.03.2013,the defendant no.1 again admifted their liability to the Applicant Bank and assured to clear the entire outstanding to the Applicant Bank. However, despite admission of their liability to the Applicant Bank and their assurance to pay the entire dues, payable to the bank, the defendants failed to pay the dues to the bank and acmrdingly the bank was constrained to issue notice under Section 13(2) under SARFAESI Act, dated 03.04.2013, calling upon the borrower/ guarantors/ moftgagors to clischarge in full their liability of Rs.22,44,73,L141- along with intercst from the date of notice, within a period of 60 days from the date of notice. After, the issuance of the said notice dated 03.04.2013, the borrower company deposited Rs.1 Crore in lvlay 2013. The said notice dated 03.04.2013 was served Dasti on the employee working in the legol department of the borrower company, who received all the notices on behalf of all the moftgagors/guarantors and the copy was also affixed on 27.05.201:r on the main entrance oi the mortgaged property. The said notice was also duly published in 28,05.2013 edition of nmes of Ipdia in Errylish Language and Nav Bharat Tlmes in Hincii language. Thereafter, the Applicant . Bank took qymbolic possession of the said property on 08.08.2013 by affixation of notice under Section 13(4) and also Q serving the notice dasti to the mortgagcrs thrcn gh their employee. The said notice was also duly published in 13.08.2013 edition of ttre Statesman in English and in Veer Arjun in Hindi, The deferdant no. 2 5,6,7,8 and 9, have filed.SA No. 8U2013 titled d -(r t.+ TANO.02of2022 l0 Mohinder Singh Narula and Ors Vs. Crntral Bank of India & Anr. Vide order dated 02.09.2013, this Hon'ble Court was pleased to pass ad-interim injunction in favour of the defendant nos. 2 5,6,7,8 and 9 subject to the condition that the said defendants herein, shall deposit !0o/o of the notice amount of RI.22,44,73,LL41- with the applicant bank on or before 03.10.2013 and another L0o/o of the noUce amount of Rs. 22,44,73,L!41' on or before 04.11.2013. In case of failure to comply with the said condition to deposit the said amount, it was left open to the bank to proceed further as per the 13(4) notice. In compliance of the said order the defendants have deposited Rs.1.00 Crore on 03.10.2013 and Rs. !,24,47,3LL.00 on 09.10.2013 and as they had sought an extension of time to deposit the balance amount of the first installment and the said delay was condoned by this Hon'ble Couft. The defendants failed to pay the second installment due on or before 04.11.2013, as directed in the order dated 02.09.2013 and accordingly the Applicant bank as on t6.02.20L4 issued notice of sale of the mortgaged propefties through public auction for 20.03.2014. The defendans subsequent to the publication of the notice for sale of the mortgaged property had submitted an OTS proposal dated 18.02.2014, to the applicant bank, which did not find tavour with the applicant bank. On 20.02.2014, the defendants as per the order dated 19.03.2014 passed by this Hon'ble Court, in SlA No. 8lt2123 deposited an amount of Rs.2,24,47,31U' with the Applicant Bank. The said SA is pending adjudication before this Hon'ble Tribunal. It is submitted that apart from the numerous notices and letters sent to the defendanq cajng upon tlrem to I

o -<f TANO.02of2022 ll repay the dues, the applicant bank also issued a Legal Notice dated 25.03.2014 calling upon the defendants to pay Rs.23,93,92,475.27 .inclusive of interest Base Rate +4olo with monthly rests w.e.f. 26.03.20t4 upto the date of actual payment. An amount of Rs. 2,24,47,311.00 received as per directions of this Hon'ble tribunal in SA No.81 of 2013 was credited to the said account. Despite receipt of the aforesaid legal notice, the defendants have failed to pay the dues of the applicant bank. Thut the present T,A. is preferred by the applicant bank to recover its dues.

5. On notice by this Tribunal, defendant nos. 1 to 9 put appearance and filed the written statement. In the written statement it is submitted that the defendant No. 1 is a Limited company and prior to its demerger as approved by the Hon'ble High Court of Delhi vide order dated L6.L2.20LL, was engaged in business of executing construction projects on engineering, procurement and construction (EPC) basis. Defendant No. 1 was also involved in the executing business of hydro power projects and production of power. It is the case of the applicant bank that in order to meet the working capital requirements of the defendant No. 1 for its EPC undertakings, the applicant bank sanctioned Short Term Loan of Rs 40.p0 crores as evident from the sanction letter dated 30.03.2011. It is submitted that as a measure of corporate restructuring and to develop potential for further growth and diversification to have better synergy aM optimization of resources as well as to facilitate development of requisite infrastructure and with an object to ensure the overall Enerts to all the stake c^

,:r \ -ti holders including share holders, creditors and employees, the defendant no. 1 along with DSC Engineering h/t. Ltd. (DEPL), DSC Hydro Power Pvt. Ltd. i.e. DHPL and with its shareholders and creditors including applicant bank presented a Scheme of arrangement before Hon'ble High Court of Delhi vide Company Petition No. 464120L1, under Section 391 to 394 read with Section 100 to 104 of the Companies Act, 1956 for demerger of EPC and Power Undertaking of Defendant no. 1 to DSC Engineering Private Limited and DSC Hydro Power Private Limited respectively. The defendant no. 1 company along with the aforesaid petition filed the list of Secured Creditors as on 31.07.2011. In terms of order of Hon'ble High Court of Delhi, the individual notices of Scheme of arrangement were also sent to all secured creditors, including the applicant bank whose name appears at serial no. 1 of the said list of secured creditors, vide ordinary post on 01.10.2011 and notices of the meeting was also published in Indian Express, English edition and Jansatta Hindi edition on 29.09.2011. In terms of order of Hon'ble High Court of Delhi, the meeting of the seured creditors was convened on 24.10.20L1 which was attended by 7 secured creditors. It is submitted that inspite of rerceipt of specific notices through post and as well as knowledge throuqh general notice published as aforesaid, the applicant bank chooses not to attend the meeting of the secured creditors and also did not file any opposition to the said Petition no. 464l20LL.before the Hon'bte High Court when an opportunity was afforded to all who were to effected by the said scheme. Vide order dated 76.L2.2011, the Hon'ble High Court after hearing all the interested and affected perscp.s ,/ eI

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including the seotred creditors, was pleased to sanction the said scheme of arrangement and declared and hold that the said scheme shall be binding on all the Shareholders and creditors of the petitioner at close of business hours on 30.11.2011. In view of the above sanction of scheme of arrangentent by the Hon'ble High Court, all assets and liabilities of defendant no. 1 company as on the appointed day i.e 30.11.2011, with respect to EPC undertakings stood transferred in the name of DSC Engineering h/t. Ltd. and defendant no. 1 is/was not entitled for any assets of the dernerged company or liable for any liabilities. It is submitted that the said scheme of arrangement was never assailed by any shareholder, creditor including applicant bank and has become binding and operative and attained finality. It is submifted that on

20. L2.20tt, Oriental Bank of C.ommerce had convened a meeting of working capital lenders under MBA arrangement (Multiple Banking arrangement), after sending due notice on 13.12.2011 for consideration of various agenda items including consideration of Demerger of defendant no. 1, which was attehded by Mr. Pawan Kumar Garg, Chief Manager of Applicant Bank, wherein none of the lenders inclu<ling Applicant Bank had objected to the Scheme of Demerger as approved by Hon'ble High Court of Delhi, which is recorded in the minutes of the meefing. The Applicant Bank was also throughout kept fully informed and updated about the status of scheme of demerger of the Company. A copy of the aforesaiC order and scheme was also sent to the branch including otf'cr member bank vide letter dated 12.03.2012. It is submitted that that the Scheme of Deme:qer hm been duly approved by majority of secured creditors I -{f

i..,*?* TANO.02of2022 14 including Applicant Bank and the same was also duly approved by Hon'ble Delhi High Court. R copy of the said order was also filed with ROC, NCI- of Delhi & Haryana on 10.02.2012. As such the said scheme has become final and binding on all the secured creditors including Applicant Bank. As per sanctioned scheme, the secured creditors of DSC Limited became creditors of DSC Engineering Private Limited on the appointed date i.e. 30.11.2011 without any fufther act on part of Transferor and Transferee Company i.e. DSC Limited, DSC Engineering Private Limited. In pursuance thereof DEPL has recognized the Applicant Bank as ib creditors in its Books of Acounts. The only further action which was required to be done to file Form-8 by Transferor Company i.e. DSC Limited and Applicant Bank with ROC, NCT of Delhi & Haryana with respect to DSC Engineering Private Lim"ited rd thereifter filing of Form-17 with ROC, NCT of Delhj & Haryana with respect to DSC Limited. Hence, the amount owed to the applicant bank by the defendald: no. 1 also stood transferred to DSC Engineering Private Limited and Defendant no. 1 to 9 stood discharged of their liability. Therefore, it is submitted that the defendant no. 1 company and defendant no. 2 to 9 are liable to be discharged from the arrays of the parties. It is submiftecl that SA no. 81/2013 filed by the defendant no. 2 and defendant no, 5 to 9 is also pinding befoi'e this Hon'ble Tribunal and fixed for hearing on 05.03.2015. It is submitted that the classificatian of account of borrower defendant no. 1 company as NPA on 31.03.2011 is bad in the eyes of law as well as per the extent guidelines of Reserue Bank of India, as no rational and basis for the same has beel Provided or mentioned. The date of NPA rys n9! meni:iond in the c,\ I I I I I I I I I I i

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notice datei 03.04.2013 under section L3(2), whereas the outsbnding of the defendant no.1 on 31.03.2011 was Rs.38.43 Crores as evident from the reply filed by the applicant bank to SA no. 8L|2OL3 filed by defendant no. 2 and defendant no. 5 to 9 and short term loan of Rs. 40.00 Crores was also disbursed in the account of the defendant no. 1 company on 31.03.2011 itt"f. tt is submitted that the account of the borrower company with outstanding liability of Rs.38.43 Crores as on 31.03.2011 and dlsbursement of Short term Loan of Rs.40.00 crores on 31.03.2011 ought to have not declared as NPA on the very same day by the applicant Bank. As per the sanction letter dated 30.03.2011, there was a nroratorium period of 6 months and 1st installment for the repayment of the short term loan of Rs.40.00 Crores was to commence from Cctober, 20LL and ending in March, 2-012 in six monthly equal installment. Therefore the mandatory period of 90 days for declaring the acctount of the defendant no. 1 company as NPA has not been complied with by the applicant bank. Therefore, tlre dasiification of the account as NPA is bad in law and unteanable under the clear guidelines iaid down by the RBI. Conequently and naturally all the actions and measures taken by the applicant bank thereafter under Section 13(2), 13(4) and sale process are illqal and void-ab-iniUo. The notice dated 03.C4.2013 under Section 13(2) and the possession notice &ted 08.08.2013 and all steps taken by the Aoplicant-Bank $ereafter under the SAR.FESI Act, including fillirg of the present OA are also illegal and void ancl liatde to be quashed and set aside in the interest of justice in view of the judgment Sardar Associates Vs. Punjab & Sindh Bank reported in 2009 (2) DRTC 4C9 SC. It is e/\

^ir f,i''ct-=r. '13 , ' TANO.02of2022 16 submitted that the statement of account filed along with the OA clearly shows that the balance due towards the defendants is Rs.12,43,91,5451- only whereas the amount claimed in the OA is Rs.21,92, 95,255.67, therefore false, forged and incomplete statement of accounts duly supported by affidavit of the officer concerned has been submitted by the applicant bank as a part of the documents, is not reliable at all in as much as the sarne has been made merely to conform to the requirements of Bankers Books of Evidence Act whereas the actual story is different. It is further submitted that the bank has failed to give due credit for the amounts deposited by the defendants from time to time more particularly after the aileged date of NPA. It is submitted that even though the defendant no. 1 to 9 are discharged borrowers and guarantors, the defendant no. 1 company has offered for settlement of dues by way of One Time Settlement vide its letter dated 09.05.2014 which was sanctioned by Applicant Bank vide its letter dEted L7.06.2014 as amended by letter dated 28.06.20t4 sanctioned, which was duly accepted by the Company on 07.07.2014' It is submitted that an initial upfront payment of Rs. 2 crores was duly paid by defendant no. 1 company, however, despite an oral request made to the applicant bank to defer the encashment of the cheque for the lst installment bv 3-4 days as certain funds which were to be available with the Company had gotten delayed, the applicant bank in a malafide manner encashed the aforesaid cheque and upon its dishonor immediately proceeded to cancel the compromise setdement vide letter dated 06.08.2014. The defendant company vide its letter dated 19.09.2014 clarified ttat iI was committed to EA

-+ TANO.02of2022 17 honour the compromise settlement and oftered to pay the due installments along with interest. But surprisingly, the Applicant Bank vide its letter dated 24-09-20t4 malafidely adopted a rigid stand stating that the compromise settlement had already been cancelled and the same could not be revived. It is submitted that the defendant no. 1 company has till date deposited a total sum of Rs.9,15,28,815/- inclusive of the rent from the property as per the order of this Tribunal in SA no. 8Ll20l3 It is further submitted that a monthly rental of Rs. 15,40,9291- is being regularly deposited with the applicant bank by the respective tenants, who are occupying the property since long. It is submitted that no personal guarantee as alleged by the applicant bank has at any point in time was ever executed by the de.fendant no. 2 to 9. Fufther, no consideration as required under the Indian Contract M, 1872 was ever pasied on in favour of the defendants and hence any alleied personal guarantee is void ab- initio and cannot fcrm the basis for fastening of any allegecl liability of the defendant no.l against the defendant nn. 2- to 9 anC they cannot be held liable. Hence, the defendant no. 2 to 9 are entitled to be discharged from the present proceedings on this ground alone. It is su'bmitted that no mortgage as alleged by the applicant bank has at any point in time was ever executed by the defendant no. 2 to 9. The Special Power of Attorneys executed by the defendant no. 5 to 9 in favour of defendint rc. 2 and filed by the applicant-bank with the OA are not registered and are not adrnssible in aviderrce. The defendant no. 5 to 9 never authorised defendant no. 2 to create mortgage in favour of Applicant Bank. It is submitted that the officers q ry Applicant bank in 9A

-+\ TANO.02of2022 l8 j: active connivance with each other have forged and fabricated the signatures of the defendants on all the alleged security documents which are now being relied upon by the Applicant Bank in order to harass the defendants. The documents on which the Applicant bank has placed its reliance cannot be read in evidence being forged and fabricated and hence the OA is liable to be dismissed. The present Original Application of the applicant bank is not at all maintainable and is liable to be rejected in its pfesent form as the same has been filed in sheer violation of Rule 10 of the Debts Recovery Tribunal (Procedure) Rules, 1993. It is further submitted that the applicant bank is guilty of breach of trust and total misrepresentation. The applicant bank officials had gqt from the defendants certain unfilled/blank proformas signed in blank by exercising misrepresentation, commercial duress and coercion and without evec giving an opportunity to read or understand the nature and contents of the said pbpers got signed in blank. All documents filed and relied upon by the Applicant bank can not be allowed to be received in evidence and are vitiated. It is apparent that the applicant bank has filled and dated the documents subsequently and apparenfly at the time of the institution rf the OA re suit its own convenience. No cause of action cal accrue or to be created on such false, fabricated anc manufactured docurnents as fte ipltlicae? u, attempting to do in the present proceedings. It b submitted that the statement of accourls which'lrls been placed on record is incomlilete artt not ?E I':, the judgment passed try the Aoex Court in Ravinri"n Vs. Central Bank of India. It is sutrmitted that in the entire Original Application, -the, dpplicant banii iras CA f,. r

TANO. 02of 2O2Z ls ' " 1;:' failed to give the averments and the exact date on which the account of the tbfiendants was declared as NPA by the bank in accordance with guidelines issued by RBI from time to time. It is further pertinent to mention herein that Applicant bank has never informed the answering the defendants either before classification or ofr.€r classifoing the account as NPA. It is submitred that the instant application is not maintainable in as much as the same has not been presented and filed by the duly authorized person. It is vehemently denied that Sh. R, Sundara Raman is the Asstt. General Manager of the Applicant bank and is entitled to file the present OA before this Hon'ble Tribunal. Only power of attorney is being filed by the bank in favour of Sh. R. Sundara Raman and no Board Resolution has been filed and on the basis of the GPA alone, no suit can/could be filed against the defendants. It is submitted that the Applicant bank has not come before this Hon'ble Tribunal with clean hands and it is a well settled proposition of law that anyone who comes to the court must come with clean hands and is bound to produee all the documents which are relevant and if one party withholds the documents in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. The Applicant bank has not even produced the true, correct and complete statement of accounts, all the loan applications, sanction letters/partiqrlars of the alleged facilities granted by the Applicant to the defendants, before this Hon'ble Tribunal and thus the present Original Application of the Applicant bank 'is liable to be dismissed with heavy and exemplary costs. It is submitted that the Applr:y bank has charged (J --

TANO.02of2022 20 interest at the exorbitant, excessive and usurious rates. A major portion of the claim of the applicant bank consists of interest and charges, charged at the exorbitant rates as well as rests. The applicant bank has also debited various wrongful charges and has also mmpounded penal interest, liquidated damages etc. in the accounts of defendant no.l and despite that the bank has filed a wrong and false affidavit in support of its OA. Therefore, it is prayed the present TA of the Applicant bank is liable to be dismissed with heavy and exemplary costs.

6. Both the parties have filed their respective evidence and exhibited the documents.

7. Heard the Ld. Sr. Advocate of applicant bank and Ld. counsel of defendants and perused the record.

8. The first and the main content'ron of the Ld. counsel for the defendants is that in the written statement filed by the defendants it has been specifically pleaded that a short term .lpan of Rs.40 Crores was sanctioned by the bank to the defendant no.1 DSC in order to make working Capital requirements of DSC LimiGd for its EPC undeftaking. The defendant has further pleaded that Hontle Delhi High Court has sanctioned the scheme of arrangement/demerger under Section 39i. and 394 of the Companies Act vide its order dated t6.12.201t whereunder all the assets and liabilities of the DSC Limited relating to the its Erc undertaking stood transferred to the demerge comparry i.e. DSC Engineering M.Ltd. including the.liabilities owned by ../ e^

TANO.02of2022 2l DSC Ltd. to the bank. It is submitted that the defendants have taken a same plea'in para no. 2 to 13 of the written statement. In the rejoinder the applicant bank had not denied or disputed that the liability in respect of which the present OA has been filed pertains to the EPC undertaking of the DSC Ltd' Therefore, it is clear that the loan was sanctioned by the applicant bank for the purpose for EPC undertaking and therefore, the present liability of the loan shall be deemed to be transferred to the DEPL under Scheme and therefore, the defendant has no liability to pay the same to the applicant bank. It is the duty of the applicant bank to sue the DEPL for the recovery of the loan due from the DEPL. When the liability has been transferred to the DEPL the same cannot be recovered from the defendant company. It is further submitted that the Honble Delhi High Court has specifically approved the scheme in which it has been menUoned that all properties, rights and powers of the transferrer company pertaining to the EPC undertaking and power undertaking speciry in Schedule-2 hereto and all other propefi, rights and power of the transferor company pertaining to the EPC undertaking and power undertaking be transferred without any further act or deed to the transferee company. It is further submifted that all the liabilities and duties of the transferor company pertaining to the EPC undeftaking and power undertaking be transferred without further act or deed of the transferee company no.1 and the transferee company no.2 respectively and acmrdingly the same shall pursuant to Section 392 of the Companies Act be transferred to and become the liabilities and duties of the transferee company no.l and transferee company no.| Therefore, it is clear qA

TANO.02of2022 22 that the present liability to repay the loan shall be deemed to be transferred to the DEPL and therefore, the liability cannot be recovered from the defendant no.lcompany. In this regard the applicant has filed the judgement passed by the Hontle Supreme Court in Hindustan Liver and Ors. Vs. State of Maharashtra (2004) 106 Bombay LR page 557 SC, Smt. Pramila Devi Vs. Peoples Bank of Northern India Limited (1938), Privy Counsel Vol. X11938, Administrator of Specified Undertakings of the Unit Trust of India and Ors. Vs. Garware Polyster Ltd., JK(Bombay)(P) Ltd. Vs. New Kaiser-I-Hind Spg. & Wvg. Co. Ltd. and Ors' (1969) 2 SCR page 866, In Re:Euro Plast India Ltd' (2010) 112 BOMLR page 281, Sadanand S. Vardi and Ors. Vs. State of Maharashtra and Ors. (2000) Vol' 102

(2) BOMLR page 930, National Ability SA Vs. Tlnna Oil and Chemicals Ltd. (2008) 105 DRI pge446 and also referred the Section 391 and 394 of the Companies Act and has submitted that as per provisions contained under the Company Act, the liability shall be deemed to be transferred and even if there is any conduct contrary to the scheme approved by the Hontle High Court, the same shall not be binding and cannot be entertained. Therefore, the defendants has no liability against the applicant bank and therefore, the claim of the applicant is liable to be dismissed.

9. On the other hand the Ld. Sr. Advocate of the applicant bank has submitted that the defendants has taken the loan of Rs.40 Crores to pay off the previous loan and the loan was not taken for EPC undertaking purposes and therefore, the same shall not be deemed to be transferred to the EPC undertaking. It is submitted that as Per + roved by the Honble

Delhi High Court for demerger of the company, the liability was never transferred to the DEPL and therefore, the liability shall mntinue with the defendant no.l and defendant no.l is liable to pay the same. It is fufther submitted that the defendant no.l and other defendants have paid repayment on the loan and has further entered into an OTS with the applicant bank and the conduct of the defendant no.1 shows that the liability was continued with the defendant no.1 and the same was never transferred to DEPL. It is submitted that the conduct of the defendant no.1 is such as proves that the liability continued with the defendant no.l. It is submitted that the defendant no.l is estopped from claiming that the liability was transferred to the DEPL. It is further submitted that by accepting the OTS with the applicant bank, the defendant has waived his right to claim that the liability has been transferred to DEPL, therefore, the claim of the defendant cannot be accepted. In this regard the Ld. counsel of the applicant bank has submitted the judgement of Pravesh Kumar Sachdeva Vs. State of UP and Ors. (2018) 10 SCC page 628, ARCE Polymers h/t.Ltd. Vs. M/s Alphine Pharmaceuticals tut.Ltd. and Ors. SC Civil Appeal no.737212021, Central Bank of India Vs. Upendra Pravin Bhai Patel and Ors. Appeal no.96/2015 dated 09.08.2021, Smt. Kusum Deshmukh Vs. State of Madhya Pradesh W.P.no. 201812023, Rajender Narottam Das Seth Vs. Chandra Prakash Jain and Anr. 2022(5) SCC page 600, State Bank of India Vs. Krishidhan Seeds tut.Ltd. (2022)SCC ontine SC page 632, Dena Bank Vs. C.Shiv Kumar Reddy and Anrs. (2021) 10 SCC page 330, Ishita Haldhar Vs. Shiba Kumar Mohopatra and Anr. Q0]t) SCC online NC|-AT a- --* i l I I I I I j I I

TANO.02of2022 24 page 266, Mahesh Aggarwal Vs. Bank of India and Anrs. (2020) SCC online NCIAT page 975, Bank of Baroda Vs. Pitampur Poly Products Ltd' (2020) SCC online NCLT page 9113, B.L. Sreedhar and Ors' Vs. K.M. Munireddy (dead) and Ors. (2003) 2 SCC page 35, HR Bansava Raj (dead) by his LRs and Anrs' Vs. Canara Bank and Ors. (2010) 12 SCC page 458 and Kusum Sanghe and Ors. Vs. Raj Kishan Das (2013) SCC online Delhi page 3742. I have perused the judgements filed by both the parties and also perused the entire record.

10. From perusal of the entire record it is clear that the main dispute between the parties is that whether the loan of Rs.40 Crores was taken by the defendant no.1 for EPC purposes and whether the loan taken by the defendant no.l shall be deemed to be transferred to the DEPL in terms of the scheme formulated and approved by the Honble Delhi High Court. It is also a question whether the conduct of the defendant no.l in accepting the liability and paying off the liabilities shall be deemed to be effective and from his conduct it shall be deemed that the liability continued with the defendant no.1. It is also to be considered as to whether the conduct of the defendant no.1 is so that the applicant presumed that the liability remained with the defendant no.1 and thus the defendant no.1 shall be deemed to be estopped from taking the plea that the liability was transferred to the DEPL. It is also a question whether the any conduct of the defendant no.1 can be considered in view of the approval of the scheme by the Honble Delhi High Couft'

11. The Ld. counsel of the defendants has fufther argued that the notice of the scheme of the demerger q\r "-i I I I I I l TANO.02of2022 25 was given to all the stakeholders including the Secured Creditors and the same was communicatd by publication in Indian Express and Jansatta. Therefore, it is clear that notice of the demerger and scheme was well within knowledge of the applicant bank and the applicant bank has chosen not to appear in the meeting called by the Hontle Delhi High Court and therefore, the applicant bank cannot claim that the liabilities were not transferred in terms of the minutes of the meeting. L2. On the above points I have perused the entire record. From perusal of the record it is clear that notice of the scheme of demerger was communicated to all the stakeholders including the applicant' It is also clear that the notice was also published in two newspapers Jansatta and Indian Express. The applicant bank has not participated in the said meetings. It is also clear that the minutes of the demerger were approved by the Hontle High Court and the scheme has become final. Therefore, as per Section 391 of the Companies Act and various judgements referred by the applicant the scheme has become final and no objections can be entertained against the scheme. It is also clear that the terms of the scheme cannot be nullified by any conduct of any pafi. But the core question is whether the present liability has been transferred to the DEPL or remained with the existing company i.e. defendant no'1. In this regard I have perused the entire scheme and the record. From perusal of the scheme it is clear from para 1.9.3 that it has been mentioned in the scheme that " .If rs clarifid that the EPC undetbking shall not include any employrc, asseB, lt?bilitis, righB and obtigations betonging b a?d-prming @ft of DSCL c\

TANO.02of2022 26 residual entity." In the para no.4.3 of the scheme it has been mentioned that "vvith effxt from appintd date and upon scheme Moming effectiuq all debB, tiabitities, duties and obligations of every kind nature and descriptbn of DSCL relabble to the Erc undertaking whether provtdd for or not in the bol<s of accounB of the DSCL as on the date prrceding the appointment date and all liabilitis of DSCL relating b the EPC undertaking which may arise or accrue after the appointd date but which relates to the period upto the date immediately prMing the appond date shatl, under prouisrbns of kction 391 to 394 of the Act, without any futtlter act or dd, fu transfend to or fu demd to be tnnsferd to DEPL so as to bsome from the appointd date the debb, liabilities, contingent liabilities, dutis and obligations of DEPL and it shatl not be n*esary to obbined the consnt of any third party or other Penon who is a party to any contract or arrangement by virtue of which such deb@ ltbbtlitie, contingent liabtlitis have ar6en....... From perusal of the scheme it is also clear that in the para no.19.1 it has been provided that "DSCL resr:dual entity and all the asse9 liabilities, obligations perbining there to shall continue to belong to and fu vestd in and be continud to be owned and managd by DSCL. Att tqal bxation or other procdings whether ciuil or criminal (including before any sbtutory or quasi judiciat authority or Tribunal) by or against the demerge compny under any sbtute ---.... shall be confinud and enforcd by or against the demerge company......" -qoi

TANO.\2of 2022

13. From perusal of the above scheme it is clear that the assets and liabilities which were given in the schedule attached with the scheme shall be deemed to be transferred to the new company. It is also clear that the liabilities regarding the EPC businesses shall be deemed to be transferred to the new company. But it is clear that the EPC undertaking shall not include any liability belonging to the former company. Therefore, it is clear that the Tribunal has to decide whether the present loan/liability was taken for EPC purposes and whether this liability has been transferred expressly under the schedule attached with the scheme. In this regard I have perused the record' From perusal of the schedule-Il part-I of the scheme it is clear that in this schedule the present liability has not been mentioned. I have also gone through the part-Il and part-III of the schedule and it is clear that in these schedules also there is no mention of the present liability and it is clear that as per schedule the present liability has not been tran#erred to the DSC Limited. The liability can be transferred only if it is expressly transferred as per terms of the scheme' The other way to transfer the scheme is deemed transfer' The deemed transfer shall be deemed only when it is clearly proved that the loan was taken for the EPC business. In this regard I have perused the proposal for the short term loan. From the perusal of the loan agreement it is clear that the limit was of Rs.40 Crores and it was non fund based LC and BG. The purpose of the term loan has been mentioned in the proposal' It has been mentioned that it has been Eken"to met cash flow mismatch on account of pymenB getting stuck up br uarious projrB viz. Ol/G ontra6/ Lbya contrab due to circunqaqcg| beyond the mntrol of cA, TANO.02of2022 28 the company''. In the Term Loan agreement it has again been mentioned that "the lmn is being grantd by the funk to enable the borrower for meeting cash flow mismatch on account of pymenB getting stuck up for uarious proj*t uiz. CWG contracb/ Libya contraB due to circumstances beyond the controt of the company......". t4. From perusal of the above documents it is clear that in the proposal letter and the term loan agreement it has not been mentioned that the loan is being taken for EPC business as claimed by the Ld. counsel of the defendants. It is clear from the above documents that the loan was taken for meeUng cash flow mismatch on account of payments getting stuck up for various projects. Therefore, the claim of the defendants that the loan was taken for the purpose of running EPC business is against the terms of the contract of the loan and therefore, the contention of the defendanb cannot be accepted. Once it is proved that the loan was not taken for EPC business, the same shall not be deemed to be transferred to the DEPL under the scheme of demerger. From perusal of the above loan documents and the scheme it is clear that the loan was neither taken for the EPC purposes nor it was expressly transferred to the DSC Limited, thereforg it cannot be said that the loan was transferred or will be deemed to be transferred to the newly created company i.e. DEPL. Therefore, the contention of the defendant has no force and it is clear that the present liability was taken by the defendant no.1 to meet the cash flow mismatch and remained with the existing company. It is also clear from the conduct of the defendant no.l. It is clear that the defendant no.1 has contin,ued to repay the liability and 9A --,\ i I i I

TANO.02of2022 29 has also issued cheques for repayment' The defendant no.l has also entered into an OTS with the applicant bank with respect to the existing liability. Therefore, it is clear that the defendant no.1 has also accepted that the existing loan facility remained with the existing company and was never transferred to the newly created DEPL. When the loan was not taken for EPC purposes and the same was not transferred as per schedule of the scheme, the defendant no.1 cannot claim and cannot be permitted to claim that the liability was tran#erred to the newly created DEPL. Therefore, there is no case that there is any violation of the scheme which cannot be permitted even by the conduct. Therefore, the contention of the defendants has no force and the liability cannot be deemed to be transferred and it cannot held that the defendants are not liable to pay any liabilitY.

15. The Ld. counsel of the defendants has further contended that in an other case the Hon'ble DRAT has held that the liability has been transferred to the newly created company, therefore, the defendants are not liable. It is submitted that the facts of the present case is similar to that case and therefore, in this case also it should be deemed that the liability has been transferred to the newly created mmpany and the defendants are not liable. In this regard I have gone through the judgement passed by the Hontle DRAT' The Honble DRAT has eramined that facts of the case and has given a verdict on the basis of the evidence filed by the parties in that case. It is a verdict given on the basis of the facts and no law has been propounded in the above judgement. Every case has to be decided on the basis of the evidence filed in that case. It is not the case that the facts of both the cases are same' In +

TANO.02of2022 30 the present case it is clearly mentioned in the loan documents that the loan has not been taken for EPC purposes and therefore, the loan shall not be deemed to be transferred as per provisions contained in the scheme. Therefore, the facts of the present case are entirely different and on the basis of that judgement it cannot be held in the present case that the liabilities have been transferred to DEPL and the defendants are not liable. Therefore, the contention of the defendants has no force.

defendant is that the applicant has filed the present OA for an amount of Rs.21,92,95,2551- and the applicant has filed the statement of account showing due of Rs.12,43,91,545/- and therefore, the applicant cannot claim an amount of around Rs.21 Crores' It is submitted that as per provisions contained under Section 19(3) of the RDB Act and Rule 9 of the DRT Procedure Rules, the applicant has to accompany the statement of account along with the OA at the time of filing OA. It is submitted that the statement of account has been filed subsequently which cannot be taken on record. On the other hand the Ld. counsel of the applicant bank has submitted that the statement of account which was filed along with the OA does not bear the interest after declaration of the account as NPA and the applicant has filed the true statement of account reflecting all the dues which has been taken on record by this Tribunal and therefore, the OA is suppofted by the evidence filed by the applicant and the contention of the defendants cannot be accepted' In this regard I have gone through the record and also perused the relevant provisions. From perusal of the Section 19(3) of the RDB Act-and Rule 9 of the DRT EA

TANO.02of2022 31 Procedure Rules it is clear that the Secured Creditor has to file statement of account along with the OA. But it has not been given in any provision that if the Secured Creditor has failed to file the full statement of account then the statement of account cannot be taken on record on subsequent date. From perusal of the record it is clear that the statement of account has been filed by the applicant bank on subsequent date and same has been accepted by this Tribunal and therefore, it will be deemed that the applicant was permitted to file the statement of account. Merely because the statement of account could not be filed showing all the dues at the time of filing the OA, it cannot be deemed that only an amount of Rs.!2,43,9L,545/- is only due against the defendants. From perusal of the statement of account it is clear that amount of Rs.21,92,95,2551- is due at the date of filing of the OA. The Ld. counsel of the defendant has filed judgements passed by the Hontle Supreme Couft of India in Union Bank of India Vs. DRT and Ors. (1994) 4 SCC page 69, State Bank of Bikaner and Jaipur Vs. Ballabh Das and Company (1999) 7 SCC page 539 and M/s J.U. Mansukhani and Company Vs' the Presiding Officer, ILR (1999) 2 Delhi page 439 and has submitted that on the basis of these judgements the statement of account cannot be taken on record. I have perused the judgements. From perusal of these judgements it is clear that there is no mandate of the Hontle Supreme Court or the Hontle High Court that the statement of account cannot be taken subsequently after filing of the OA. If the complete statement of account could not be filed due to some technical fault, it cannot be said that the same cannot be filed subsequently. The fil!.ng of the evidence is a I

TANO.02of2l22

procedural act and a procedural act cannot preclude the pafi from producing evidence at a subsequent stage. In the present matter the applicant has filed the complete statement of account subsequently and the same has been taken on record' Therefore, the contention of the applicant has no force.

17. The next contention of the Ld. counsel of the defendant is that there was no personal guarantee furnished by the defendant no.5 to 9 and alleged mortgage of propefi does not make defendant no.5 to 9 liable for dues of the bank. It is submitted that as per bank the existing limit of Rs.100 Crores stood cancelled and fresh limit was undertaken and therefore, it will be deemed that defendant no.5 to 9 has not taken any personal guarantee. But the contention of the defendants has no force. From perusal of the record it is clear that defendant no.5 to t have given guarantee of the loan and executed the mortgage deed through special power of attorney. It is submitted that the power of attorney has not been duly notarized and has not been duly stamped. It is submitted that the notary has not put their signatures and the special power of attorney is not as per Notary Act. On the other hand the Ld. counselofthe applicant bank has submitted that the defendant no.5 to t have duly executed the mortgage deed through power of attorney. From perusal of the record it is clear that the mortgage deed has been executed through power of attorney. In the pleadings the defendants have mainly claimed that the liability of the bank has been transferred to the newly created DEPL in compliance of the minut-e of the demerger scheme. This means that the defendants have accepled lhat the loan was taken C-t\

TANO.02of2022 33 by the defendant no.1 and the other defendants stood as guarantors of the loan' The defendant no.5 to 9 never appeared before the Tribunal and has not filed their affidavit in evidence that they have not executed any mortgage deed in favour of the applicant bank. If the defendants have denied that they have not stood as guarantor and have not executed any special power of attorney they have to appear before this Tribunal and file their evidence by way of affidavit in this regard. No affidavit has been filed on behalf of defendant no.5 to 9 claiming that they have never executed any special power of attorney authorizing any person to execute the moftgage deeds. Therefore, the technicality in execution of special power of attorney cannot be entertained. Merely because there is some discrepancy in the execution of special power of attorney, the defendant no.5 to 9 cannot be exonerated from their liabilities. Merely because there is some shortage of the court fee or the power of attorney has not been executed on sufficiently stamped paper, the enUre power of attorney cannot be deemed to be invalid and it cannot be deemed that the defendant no. 5 to t have not executed any mortgage deed in favour of the applicant bank. If the defendant no. 5 to 9 want to say that they have never executed any power of attorney, it was the duty of defendant no.5 to 9 to come before this Tribunal and say that this power of attorney is a forged power of attorney and they have never executed it. In the present matter the defendant no.5 to t have never filed any evidence in this regard, therefore, the contention of the defendants cannot be accePted. ,9,

TANO.02of2022 34

defendants is that the guarantee and mortgage of the defendants stood discharged upon transfer of the liability to DEPL Limited as the liability was transferred by virtue of the scheme sanctioned by the Hontle High Court. As discussed above, this Tribunal has come to the conclusion that the liability remained with the existing company and the same was not transferred to newly created company and therefore, the contention of the defendants has no force as the liability was never transferred to the newly created company, therefore, the liability of the defendants remained continued.

defendants is that the applicant bank has sold the property ofthe defendants in SARFAESI action and has received an amount of Rs.18,50,78,783 during the pendency of the suit as rent. It is submitted that amount should be adjusted and therefore, it is clear that the defendants have already paid more amount than the due amount to the applicant bank' From perusal of the record it is clear that the applicant bank has sold {he property of the defendants under the SARFAESI Act and is in the possession'of the same. After taking possession of the subject propefi the applicant bank has leased the same to the tenant and received rents. But the rent received from the tenants cannot be deemed to be a payment made by the defendants. Therefore, whatever amount has been received by the aoplicant bank from the rent cannot be deemed to be a valid discharge of the glues of the bank. After taking the possession of the property under the SARFAESI Act and purchasing the propefi in the auctlon sale, the sybjqt property became the 4A

TANO.02ot?022 35 property of applicant bank and therefore, the rent receivd from the property purchased in e'auction cannot be adjusted against the dues of the defendants. Therefore, on this basis the claim of the defendants cannot be accePted.

20. From perusal of the entire evidence it is clear that the applicant bank has succe'"-sfully proved his case on the basis of the evidence filed by him. All the contentions and objections raised by the defendants have no force and therefore, the TA of the applicant is liable to be allowed.

ORDER

1) I hereby allow this T.A. of the Aoplicant Bank and direct the defendant nos. 1 to 9 to pay jointly and severally to the applicant bank within 30 days from today, a sum of Rs.21,92,95,255.67 along with cost, expenses and interest @ B.R. + 4o/o p.d. from the date of filing of this O.A. which has become T.A. till the date of realization.

2) In case of failure to deposit the above amount within the stipulated period, the same shall be recovered from the sale of the mortgaged properties bearing (i) One Shop on Ground Floor of E-9, South Extension Part-II, New Delhi of Respondent No. 2 i.e. Sh. Mohinder Singh Narula, (ii) One Shop on Ground Floor of E-9, South Extension Part-II, New Delhi of Respondent No. 3 i.e. Sh. Birender Singh Narula (iii) Rear portion of Ground Floor of E-9, South Extension Part-II, New Delhi of Respondent No. 4 i.e. Sh. Anhad Narula (iv) Entire mezzanine Floor in E-9, South Extension Part-II, New DelhioJRespondent No. 5 i.e. 9A

: qE=,: q , TANO. 02of 2022

. - jHE-E Sh. Manhad Narula (v) Entire First'Floor of E-9, South Extension Paft-II, New Delhi of Respondent No' 6 i.e. Sh. Arwinder Singh Narula and (vi) Entire Second Floor of E-9, South Extension Part-II, New Delhi of Respondent lrto.Z i.e. Sh. Herman Nalqfa. In case of shoft fall, the same shall be recovered from the sale of personal movable and immovable asseb of the defendant no. 1 to 9. The properfy already sold under the SARFAESI Act shall be excluded from the above mentioned properties.

3) Recovery Certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal-Il, Delhi.

4) The registry of this Tribunal is hereby directed to issue free copy of the order and send the same to both the parties.

5) Parties are directed to appear before the Ld. Recovery Officer, DRT-II, Delhi on 28-02.2025. Pending IAs, if any, stand disposed of. / File be consigned to records. Date:3t.12.2024 _€A (SUSHIL KUMAR RASTOGI) PRESIDING OFFICER DRT-II, Delhi This judgement has been signed, dated and pronounced in open coutt. A Date:31.12.2024 g-\ (susHrl rufi-nn nnsrocl) PRESIDING OFFICER DRT-II, Delhi m