UNION BANK OF INDIA vs HEM SINGH BHARANA AND OTHERS on 18 February 2026

1. 1. This matter is taken up by this Tribunal through Hybrid Mode.

2. 2. Today, captioned TA is listed for pronouncement of final order. Accordingly, final order prepared in separate sheets, signed and pronounced.

3. 3. File be closed and consigned to record room.

(SHIV KUMAR - I) PRESIDING OFFICER, DRT-III, DELHI

**DEBTS RECOVERY TRIBUNAL-III, DELHI** **4^th Floor, Jeevan Tara Building,** **Parliament Street, New Delhi**

**PRESIDING OFFICER : MR. SHIV KUMAR - I**

**(TA No. : 274/2022)**

**Union Bank of India** (E-Corporation Bank)

**Having Head Office at :**

Union Bank Bhawan Vidhan Bhawan Marg Nariman Point, Mumbai – 21

**And it's Branch Office :**

603 B, Konnectus Tower, Bhavbhuti Marg, Opp. New Delhi Railway Station, New Delhi – 110001 Through its Authorized Representative Sh. Binod Kumar

**.....Applicant Bank**

**Versus**

1. **1. Hem Singh Bharana** Before NCLT

**Registered Office at**

C-146, 1^st Floor, Sarvodaya Enclave,

**Also at**

C-56/41, Sector 62, Noida, UP-201301

1. **2. M/s Headway Buildcon Pvt. Ltd.** **(Deleted on 24.10.2024)**

**Registered Office at**

B-292, Chandrakanta Complex, Shop No. 8, Near Metro Pillar No. 161,


**Also at**

C-56/41, Sector 62, Noida, UP-201301

**Also at**

B-153, Okhla Industries Estate, Phase-III, New Delhi – 20

**(Defendant no. 2 has already been deleted vide order dated 24.10.2024 passed in IA No. 464/2024 by this Tribunal)**

**3. M/s Desert Moon Realtors Pvt. Ltd. (Deleted on 24.10.2024)**

**Registered Office at**

B-292, Chandrakanta Complex, Shop No. 8, Near Metro Pillar No. 161,

**Also at**

C-56/41, Sector 62, Noida, UP-201301

**Also at**

B-153, Okhla Industries Estate, Phase-III, New Delhi – 20

**(Defendant no. 3 has already been deleted vide order dated 24.10.2024 passed in IA No. 464/2024 by this Tribunal)**

**4. M/s Nuray Realtech Pvt. Ltd. (Deleted on 24.10.2024)**

**Registered Office at**

B-165, Flat No. D, Ground Floor,

**Also at**

C-56/41, Sector 62, Noida, UP-201301

A handwritten signature in blue ink is positioned above a solid green rectangular stamp. The signature appears to be a stylized 'Q' or similar character.

**Also at**

House No. 130, First Floor, Masjid Moth, South Extension, Part-II, New Delhi – 49

**(Defendant no. 4 has already been deleted vide order dated 24.10.2024 passed in IA No. 464/2024 by this Tribunal)**

**5. M/s Zedek Realtors Pvt. Ltd.**

**Registered Office at**

New Delhi – 01

**Also at**

C-56/41, Sector 62, Noida, UP-201301

**6. Lead Financial Services Ltd.**

**Registered Office at**

101, Sitaram Mansion, 718/21, Joshi Road, Karol Bagh, New Delhi – 05

**Also at**

3/28, Sector – 5, Rajendra Nagar, Sahibabad, Ghaziabad -201005

**7. Paulo Realtech Pvt. Ltd.**

**Registered Office at**

B-165. Flat No. D, Ground Floor,

**Also at**

C-56/41, Sector 62, Noida, UP-201301

**Also at**

House No. 130, First Floor, Masjid Moth, South Extension, Part-II, New Delhi -49

**8. Yarikh Realtors Pvt. Ltd.**

**Registered Office at**

New Delhi – 01

**Also at**

C-56/41, Sector 62, Noida, UP-201301

**9. Era Infra Engineering Ltd. Before NCLT**

**Registered Office at**

New Delhi – 01

**Also at**

C-56/41, Sector 62, Noida, UP-201301

**10. State Bank of India (Performa Defendant)**

**Corporate Office at**

State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai

**Branch Office at**

12^th Floor, Jawahar Vyapar Bhawan, 11^th and 12^th Floor, 1, Tolstoy Marg, New Delhi – 01

**11. Canara Bank (Performa Defendant)**

**Head Office at**

112, Jayachamarajendra Road, Bangalore -560002

**Branch Office at**

Prime Corporate Branch 2^nd Floor, World Trade Tower, Barakhamba Lane,

New Delhi – 01

**12. Bank of India** (Performa Defendant)

**Head Office at**

Star House, C-5, "G" Block, Bandra Kurla Complex, Bandra (East), Mumbai – 400051

**Branch Office at**

Large Corporate Branch, 10^th Floor, Chander Lok Building, Janpath Road, New Delhi – 01

**13. IDBI Bank Ltd.** (Performa Defendant)

**Registered Office at**

IDBI Tower, WTC Complex, Cuffe Parade, Mumbai -400005

**Branch Office at**

NPA Management Group, Videocon Tower, New Delhi

**14. Punjab National Bank** (Performa Defendant)

**Head Office at**

7, Bhikaji Cama Place, Africa Avenue, New Delhi – 110066

**Branch Office at**

Tolstoy House, Tolstoy Marg,

**15. Union Bank of India** (E- Corporation Bank) (Performa Defendant)

**Head Office at**

Union Bank Bhawan Vidhan Bhawan Marg, Nariman Point, Mumbai-21

**Branch Office at**

6038, Konnectus Tower, Bhavbhuti Marg, Opp. New Delhi Railway Station, New Delhi – 01

**(Union Bank of India was substituted in place of Corporation Bank vide order dated 29.08.2024 passed in IA No. 869/2024 by this Tribunal)**

**16. Bank of Maharashtra** (Performa Defendant)

**Head Office at**

Lok Mangal 1501 Shivaji Nagar, Pune -411005

**Branch Office at**

A-13, Ring Road, South Extension Part-I, New Delhi – 110049

**17. Indian Overseas Bank** (Performa Defendant)

**Head Office at**

763, Annasalai, Chennai -600002

**Branch Office at**

14-15, Farm Bhawan, Nehru Place, New Delhi – 19

**18. Punjab National Bank** (E- Oriental Bank of Commerce)

(Performa Defendant)

**Head Office at**

7, Bhikaji Cama Place, Africa Avenue,

**Branch Office**

Large Corporate Branch, E-Block, Harsha Bhavan, Connaught Place, New Delhi – 01

**(Punjab National Bank was substituted in place of Oriental Bank of Commerce vide order dated 29.08.2024 passed in IA No. 869/2024 by this Tribunal)**

**19. SBICAP Trustee Company Limited**

**Registered Office at**

202, Maker Tower - "F", Cuffe Parade, Mumbai – 400005

**Branch Office**

610, 6^th Floor, Ansal Bhavan, Kasturba Gandhi Marg,

Ph No. 91-11-41564086 M – 07838536969

.....Defendants

**Date of Institution: 28.02.2020**

**Date of reserving the Order : 27.01.2026**

**Date of Pronouncement: 18.02.2026**

**Counsels :** Mr. Samrender Kumar, for applicant bank.

Mr. Pallav Saxena, for defendant no. 6.

Ms. Saloni Singh, for defendants no. 5, 7 & 8.

Mr. A.N. Tiwari, for defendants no.11 & 22.

Mr. Vaibhav Dayma for defendant no. 12.

None for other defendants.

Names of defendants no. 2 to 4 have already been dropped / deleted from this OA vide order dated 24.10.2024 passed in IA No. 464/2024 by this Tribunal.

**Defendants no. 1 & 9 are before Ld. NCLT, Delhi.**

FINAL ORDER

1. 1. This original application has been filed by the applicant bank, on 28.02.2020, through Ms. Sangita Dwivedi, Chief Manager, being the authorized officer of the Applicant Bank, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants no. 1 to 8 for recovery of following amount(s):-

1. (i) Rs. 2371,39,48,866.06 from defendant no. 1 due and payable as on 31.12.2019 under the Deed of Personal Guarantee dated 29.03.2014;

2. (ii) Rs. 167,22,94,165.96 from defendant no. 2 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 29.12.2012;

3. (iii) Rs. 167,22,94,165.96 from defendant no. 3 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 29.12.2012;

4. (iv) Rs. 167,22,94,165.96 from defendant no. 4 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 29.12.2012;

5. (v) Rs. 11,60,39,140/- (as per the valuation report dated 28.04.2016 or to the extent of current market value of the property secured) against Defendant no. 5 as sum due and payable to the Applicant on 31.12.2019 under the Deed of Corporate Guarantee dated 21.03.2013 & 23.03.2013;

- (vi) Rs. 2371,39,48,866.06 from defendant no. 6 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015;

- (vii) Rs. 2371,39,48,866.06 from defendant no. 7 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015;

- (viii) Rs. 2371,39,48,866.06 from defendant no. 8 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015; along with interest [as per Para 6 of OA] till the date of actual and final realization in full along with all costs, charges, expenses & other relief(s).

1.2 It is pertinent to note here that this OA bearing no. 414/2020 was originally filed before Ld. DRT-II, Delhi, however, in pursuance to Gazette Notification No. 4718 (E) dated 04.10.2022 issued by Government of India, Department of Financial Services, Ministry of Finance, this case file was transferred by Ld. DRT-II, Delhi to this Tribunal in October 2022 and was numbered at TA-274/2022.

1.3 It is important to note here that during the pendency of this OA, the applicant bank filed IA No. 524/2022 under Order VI Rule 17 of CPC for seeking amendment of OA which was allowed vide order dated 07.06.2022 of the Tribunal. Subsequently, amended OA was filed by the applicant bank vide Diary No. 5434 on 01.08.2022.

**The aforesaid Amended OA was filed through Sh. Amit Kumar Singh, Chief Manager and Authorized Officer of Applicant Bank. As per the Amended OA, the applicant**

**bank has sought recovery of following amount(s) from defendants no. 1 to 8 :-**

- (i) Rs. 2371,39,48,866.06 from defendant no. 1 due and payable as on 31.12.2019 under the Deed of Personal Guarantee dated 29.03.2014;

- (ii) Rs. 167,22,94,165.96 from defendant no. 2 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 29.12.2012;

- (iii) Rs. 167,22,94,165.96 from defendant no. 3 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 29.12.2012;

- (iv) Rs. 167,22,94,165.96 from defendant no. 4 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 29.12.2012;

- (v) Rs. 11,60,39,140/- (as per the valuation report dated 28.04.2016 or to the extent of current market value of the property secured) against Defendant no. 6 as sum due and payable to the Applicant on 31.12.2019 under the Deed of Corporate Guarantee dated 21.03.2013 & 23.03.2013;

- (vi) Rs. 2371,39,48,866.06 from defendant no. 5 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015;

- (vii) Rs. 2371,39,48,866.06 from defendant no. 7 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015;

- (viii) Rs. 2371,39,48,866.06 from defendant no. 8 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015; along with interest [as per Para 6 of amended OA] till the date of actual and final realization in full along with all costs, charges, expenses & other relief(s).

2. The brief facts of the case (as per Amended OA) are that the Applicant Bank i.e. Union Bank of India, is a body corporate constituted by and under the Banking Companies

(Acquisition and Transfer of Undertakings) 1970. It is further stated that the Applicant Bank is filing the present OA through its Authorized Representative who is competent and authorized to institute, sign, verify the plaint and institute the OA and to compete all the legal formalities on behalf of the applicant bank in terms of Power of Attorney executed by applicant bank.

2.1 It is stated in the OA that the Defendant no. 1. Hem Singh Bharana, the personal guarantor of the credit facilities availed by the Defendant no. 9 (Performa Defendant M/s Era Infra Engineering Limited). Defendant no. 1 is also the Promoter and Ex-Chairman cum Managing Director of Defendant no. 9.

So far as, defendant no. 2, Headway Buildcon Private Limited, is concerned, it is a Private Limited Company which is also the Corporate Guarantor of the credit facilities availed by the Defendant no. 9.

So far as, defendant no. 3, Desert Moon Realtos Limited, is concerned, it is a Private Limited Company which is the Corporate Guarantor of the credit facilities availed by the Defendant no. 9 to the extent of the value of the property mortgaged by it.

Similarly, defendant no. 4, Nuray Realtech Private Limited, is also a Private Limited Company which is the Corporate Guarantor of the credit facilities availed by the Defendant no. 9.

So far as, defendant no. 5, Zedek Realtors Private Limited, is concerned, it is a Private Limited Company which is also the Corporate Guarantor of the credit facilities availed by the Defendant no. 9.

As regards, defendant no. 6, Lead Financial Services, is concerned, it is a Private Limited Company which is also the Corporate Guarantor of the credit facilities availed by the Defendant no. 9.

So far as, defendant no. 7, Paulo Realtech Private Limited, is concerned, it is a Private Limited Company which is also the Corporate Guarantor of the credit facilities availed by the Defendant no. 9.

Similarly, defendant no. 8, Yarikh Realtors Private Limited, is concerned, it is a Private Limited Company which is also the Corporate Guarantor of the credit facilities availed by the Defendant no. 9.

So far as, defendant no. 9 (Performa Defendant), Era Infra Engineering Limited, is concerned, it is a Public Limited Company which is currently under Corporate Insolvency Resolution Process pursuant to the Judgment dated 08.05.2018 passed by NCLT, Principal Bench, New Delhi in CP No. IB-190 (PB)/2017.

Furthermore, the defendants no. 10 to 19 are also Performa Defendants and no relief is sought against the Performa Defendants.

2.2 It is stated in the OA that on 03.09.1990, the defendant no. 9 was incorporated in the name of Era Construction (India) Private Limited, which was subsequently changed to Era Constructions (India) Limited on 19.10.1992 and further on 25.06.2007, the name of the Company was changed to Era Infra Engineering Limited. The Defendant no. 9 was engaged in execution of large construction projects involving construction of highways, airports power plant, industrial projects etc. It is important to mention here that the aforesaid Defendant no. 9 was availing credit facilities from the Applicant herein since 1990.

On or about 20.01.2012, Hong Kong Branch of the Applicant sanctioned External Commercial Borrowing (ECB) of \$29.73 Million to the Defendant no. 9 for the Redemption of Foreign Currency Convertible Bonds (FCCB).

The Defendant no. 1 executed Deed of Guarantee dated 20.01.2012 in favour of Union Bank of India, Hong Kong Branch for the purpose of securing the credit facilities extended to the Defendant no.9.

2.3 It is further stated in the OA that Defendant no. 9 availed a Term Loan of Rs. 100.0 Crore on a standalone basis vide Term Loan Agreement dated 29.12.2012. In this regard, Sanction Letter dated 12.12.2012 was issued by the Applicant Bank in favour of the Defendant no. 9. Moreover, Board Resolutions dated 29.12.2012 were also passed by the Board of Directors of Defendant no.2, 3, 4 and 9.

Furthermore, the Defendants no. 2, 3 and 4 have issued their respective consent letters and Deeds of Guarantee dated 29.12.2012 in favour of the Applicant Bank in respect of their consent as Guarantors for the credit facilities granted to the Defendant no. 9.

It is stated in the OA that the title deeds of the mortgaged property belonging to defendant no.2 and defendant no. 3 were deposited with the Applicant Bank at its Mortgage Cell, Karol Bagh, New Delhi vide Memorandum of Deposit of Title Deeds dated 31.12.2012.

2.4 It is stated in the OA that vide Sanction Letter dated 20.03.2013, the Applicant Bank enhanced the then Working Capital Limits of the Defendant no. 9 Company from Rs. 710.0 Crore (comprising of Fund-Based Facilities of Rs. 350.0 Crore and Non-Fund-Based Facilities of Rs. 360.0 Crore) to Rs.825.0 Crore (comprising of Fund-Based Facilities of Rs. 425.0 Crore and Non-Fund-Based Facilities of Rs. 400.0 Crore).

It is further stated that a Letter of Guarantee dated 21.03.2013 was executed by the Defendant no. 1 in favour of the Applicant Bank whereby the Defendant no. 1 guaranteed the repayment of credit facilities extended by the Applicant Bank to the Defendant no. 9.

Moreover, Defendant no. 6 also issued a Letter of Guarantee dated 21.03.2013 was executed by the Defendant no. 1 in favour of the Applicant Bank and given guarantee for the repayment of credit facilities extended by the Applicant Bank to the Defendant no. 9 Company to the extent of Rs. 11,39,00,000/- only based on current valuation of property mortgaged.

It is stated in the OA that on 23.03.2013, Inter-Se Agreement was entered into between Applicant and Defendants no. 10, 11, 12, 13, 14, 15, 16, 17,18 and 19 forming a consortium and recognizing the Applicant Bank as the Lead Bank. The same was confirmed by the Defendant no. 9 vide its Confirmation Deed dated 23.03.2013.

Further, a Working Capital Consortium Agreement dated 23.03.2013 was executed between the Defendant no. 9 and the Applicant Bank and other Lenders (Defendants no. 10 to 16 herein). The total amount of Rs. 4050.0 Crore was sanctioned to the Defendant no. 1 Company by all the lenders. The Applicant Bank has extended the amount of Rs. 710.0 crore to the defendant no. 9 company towards the Working Capital Limits including both Fund Based and Non-Fund Based Limits. True copy of extracts of the Minutes of Meeting of Board of Directors of Era Infrastructure Engineering Limited recording the consent of the Board of Directors to borrow Rs.4050.0 crore, Working Capital Consortium Agreement, Letter of Authority, Deed of Hypothecation and Omnibus Bank Guarantee dated 23.03.2013 have been annexed with the OA.

Further, the Defendant no. 1 executed a Deed of Guarantee dated 23.03.2013 in favour of Union Bank of India whereby the Defendant no. 1 guaranteed the repayment of the principal amount of the facilities together with interest, additional interest, liquidated damages and other amounts in accordance with the agreements with the lenders.

It is also stated in the OA that the Defendant no. 6 executed a Deed of Guarantee dated 23.03.2013 in favour of the Applicant Bank and given guarantee for the repayment of the credit facilities granted to the defendant no. 1 company. Moreover, defendant no. 6 also executed a Declaration dated 15.04.2013 in favour of the Consortium of Bank including the Applicant Bank herein.

2.5 It is stated in the OA that the Defendant no. 9 allotted 11.5% Non-Convertible Debentures worth Rs. 10.0 Crore to the Applicant on 27.02.2010.

2.6 It is also stated in the OA that on 29.11.2013, defendant no 9 sought reference to CDR mechanism for restructuring its entire debt with Banks and FIs and the Applicant gave NOC for the same. The Restructuring package was approved by CDR-EG and conveyed vide their Letter dated 29.03.2014 and the Applicant was appointed as the Monitoring Institution. All the credit facilities granted to the Company including NCD & ECB were restructured by the Applicant Bank as per the restructuring package approved by CDR-EG and sanction was conveyed to the company vide letter dated 10.03.2014 & 10.05.2014 whereby the Defendant no. 9 was sanctioned the credit facilities of Rs.1506.33 Crore.

Pursuant to the CDR process, a Master Restructuring Agreement dated 29.03.2014 was entered into between the Defendant no. 9 Company and Union Bank of India (Applicant Bank) and the other lenders.

Defendant no. 1 executed a deed of guarantee dated 29.03.2014 in favour of Union Bank of India and SBICAP Trustee Company Limited (for the benefit of the CDR Lenders including Union Bank of India, applicant herein). It is stated that the SBICAP Trustee Company Limited was appointed as Security Trustee and was acting for and on behalf of all the consortium lenders.

It is further stated that on 30.03.2014 the Applicant as well as the majority of the lenders implemented the restructuring package.

The said Master Restructuring Agreement dated 29.03.2014 was modified vide Agreement dated 19.05.2014.

Further, the SBICAP Trustee Company Limited, Applicant Bank in its capacity of the Account Bank and Monitoring Institution, and the Defendant no. 9 / borrower entered into a Trust & Retention Account Agreement dated 19.05.2014 establishing trust and retention accounts for implementing the CDR package.

Thereafter, the Defendant no. 9 executed an Unattested Deed of Hypothecation in favour of SBICAP Trustee Company Limited acting as Securing Trustee dated 28.05.2014 and the Defendant no. 1, Defendant No. 9 and others executed a Deed of Pledge of Shares of M/s Hi-Point Investment & Finance Pvt. Limited in favour of SBICAP Trustees Company Limited acting as Security Trustee and an irrevocable power of attorney, both dated 30.10.2014.

It is further stated that on 29.11.2014, the Defendant no. 5 and Defendant no. 7 and Defendant no. 8 deposited Title Deeds of certain immovable properties for the benefit of the CDR lenders with SBICAP Trustees Company Limited acting as Security Trustee on behalf of CDR lenders and executed a Memorandum of Deposit of Title Deeds.

Moreover, defendants no. 5, 7 & 8 executed Corporate Guarantee all dated 31.03.2015 in favour of M/s SBICAP Trustee Company Limited who is acting as Security Trustee on behalf of all CDR lenders (including the Applicant Bank) for securing repayment of credit facilities extended to the Defendant no. 9 Company. True copy of said Corporate Guarantee(s) executed by defendants no.5, 7 & 8 alongwith relevant extracts of the Minutes of Meeting of the Board of Directors of the respective defendants authorizing the said guarantee have been annexed with the OA.

2.7 It is further stated in the OA that by 16.04.2015, the accounts of Defendant no. 9 became irregular and in continuous default. Hence, on 22.07.2015, the account of the Defendant no. 9 was declared as NPA w.e.f. 29.07.2013 by RBI auditor and within a few months thereafter become NPA with all the lenders.

2.8 It is stated in the OA that on or about 21.01.2017 and 28.03.2017, the Defendant no. 9 executed a balance confirmation letter confirming the balance of 8627.05 Crore owed to the Applicant Bank and other CDR lenders. Finally, on 17.06.2017, the lenders decided to exit from the CDR ad as a result, all the concessions granted to the Defendant no. 9 stood withdrawn from the cut-off date. As a result, the total outstanding from the Defendant no. 9 to the Applicant Bank became Rs. 1765,08,54,111/- (rupee liability including BG outstanding but not invoked of Rs.132.77 crore) and ECB of USD 32,667,101.30 due on 31.07.2018 as on 31.07.2018. It is pertinent to mention that the Defendants no. 10 to 19 recalled their portions of the loan individually.

2.9 It is stated in the OA that the Applicant issued a Recall Notice dated 30.08.2018 to the Defendant no. 9 of the events of default which have been subsisting, including the failure by the Defendant no. 9 to pay the interest and instalments under various facility agreements and that the entire principal and all accrued interest and charges to the extent of Rs. 1764,08,54,111 (rupee liability including BGs outstanding but not invoked of Rs. 132.77 crore) and ECB of USD 32,667,101.30 due on 31.07.2018 to the Applicant were recalled and became due and payable. It is specifically stated that the said recall notice dated 31.07.2017 included the sum of Rs. 100.0 Crore plus interest due and payable. The said Recall Notice was also sent to the Defendant no. 1 and other Corporate Guarantors. However, despite the service of Recall Notice dated 30.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the personal guarantee furnished by the Defendant no. 1 and called upon the Defendant no. 1 to pay within 7-days Rs. 1765,08,54,111/- (rupee liability including BGs outstanding but not invoked of Rs. 132.77 crore) and ECB of USD 32,667,101.30 as on 31.07.2018. Additionally, the defendant no. 1 was also called upon to pay the interest as per agreement calculated from 01.08.2018 till the date of payment, due and payable by the Defendant no. 9 as well as to pay default interest as per the agreement and the deed of guarantee that shall be due and payable till the date of actual payment. Moreover, a copy of the letter of invocation of the personal guarantee of defendant no. 1 dated 25.10.2018 was also sent to the Defendant no. 9. But despite the letter invoking the personal guarantee, the Defendant no. 1 did not pay the sum guaranteed as demanded within 7-days or till date.

2.10 It is stated in the OA that the Defendant no. 2 guaranteed the principal amount of Rs. 100.0 Crore (under the 100 Crore Term Loan) together with interest on such amount or on such less amount as may be due in terms of the Corporate Guarantee furnished by said Defendant no. 2 vide Deed of Corporate Guarantee dated 29.12.2012. Thus a copy of the aforesaid Recall Notice dated 30.08.2018 was also sent to the Defendant no. 2. As already stated hereinabove, despite the Recall Notice dated 31.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by defendant no. 2 and called upon the defendant no. 2 to pay within 7-days Rs. 137,01,34,375.13 as well as interest etc. [details given in Para 5(l) of the OA]. A copy of the letter of invocation of Corporate Guarantee of Defendant no. 2 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 2 did not pay the sum guaranteed as demanded within 7 days or till date.

2.11 It is stated in the OA that the Defendant no. 3 guaranteed the principal amount of Rs. 100.0 Crore together with interest on such amount as may be due in terms of the Corporate Guarantee furnished by said Defendant no. 3 vide Deed of Corporate Guarantee dated 29.12.2012. Thus a copy of the aforesaid Recall Notice dated 30.08.2018 was also sent to the Defendant no. 3. As already stated hereinabove, despite the Recall Notice dated 31.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by defendant no. 3 and called upon the defendant no. 3 to pay within 7-days Rs. 137,01,34,375.13 as well as interest etc. [details given in Para 5(lvii) of the OA]. A copy of the letter of invocation of Corporate Guarantee of Defendant no. 3 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 3 did not pay the sum guaranteed as demanded within 7 days or till date.

2.12 It is stated in the OA that the Defendant no. 4 guaranteed the principal amount of Rs. 100.0 Crore together with interest on such amount as may be due in terms of the Corporate Guarantee furnished by said Defendant no. 4 vide Deed of Corporate Guarantee dated 29.12.2012. Thus a copy of the aforesaid Recall Notice dated 30.08.2018 was also sent to the Defendant no. 4. As already stated hereinabove, despite the Recall Notice dated 30.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by defendant no. 4 and called upon the defendant no. 4 to pay within 7-days Rs. 137,01,34,375.13 as well as interest etc. [details given in Para 5(lxiv) of the OA]. A copy of the letter of invocation of Corporate Guarantee of Defendant no. 4 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 4 did not pay the sum guaranteed as demanded within 7 days or till date.

2.13 It is stated in the OA that the Defendant no. 6 executed corporate guarantee dated 21.03.2013 in favour of Union Bank of India for working capital limit sanctioned by the Union Bank of India and corporate guarantee dated 25.03.2013 in favour of Union Bank of India as the lead Bank of the working capital consortium for working capital limit sanctioned by the consortium guaranteeing the repayment of working capital liability together with interest, costs, charges, expenses and / or other money due subject to the market value of the immovable property situated at C-56/41, Sector 62, NOIDA-201301, Uttar Pradesh and 23.03.2013. The guarantee amount stood at Rs. 12.0 crore as per the valuation report dated 05.03.2013 and Rs. 11,60,39,140/- as per valuation report dated 28.04.2016.

It is pertinent to mention that the above working capital facilities were consolidated and subsumed within the CDR facilities extended to the Defendant no. 9 vide Master Restructuring Agreement dated 29.03.2014 as amended on 19.05.2014, the outstanding balance of which was confirmed by the Defendant no. 9 on or about 21.01.2017. It is also pertinent to mention that all the securities furnished were extended to secure the payment of the Principal amount under the CDR and the applicable interests, costs, charges, expenses and other money due. Thus a copy of the aforesaid Recall Notice dated 30.08.2018 was also sent to the Defendant no. 6. As already stated hereinabove, despite the Recall Notice dated 30.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by defendant no. 6 and called upon the defendant no. 6 to pay within 7-days without demur and delay the value of property situated at C-56/41, Sector 62, NOIDA-201301, Uttar Pradesh the value of which was Rs. 11,60,39,140/- as per valuation report dated 28.04.2016. A copy of the letter of invocation of Corporate Guarantee of Defendant no. 6 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 6 did not pay the sum guaranteed as demanded within 7 days or till date.

2.14 It is stated in the OA that the Defendants no. 5, 7 & 8 also guaranteed facilities extended to the Defendant no. 9 vide Master Re-structuring Agreement dated 29.03.2014 as amended on 19.05.2014 the outstanding balance of which was confirmed by the Defendant no. 9 on or about 23.01.2017.

The defendant no. 5 guaranteed the payment of the said principal amount of the facilities aggregating to Rs. 8743.71 crore for the entire consortium including the share of the applicant Bank together with interest, additional interest, liquidated damages and amount in accordance with the Corporate Guarantee furnished by the said Defendant no. 5 vide Deed of Corporate Guarantee dated 31.03.2015 between the Defendant no. 5 and the SBICAP Trustee Company Ltd. (security Trustee for and on behalf of CDR Lenders) with Union Bank of India (Monitoring Institution & also Lead Bank).

It is stated in the OA that a copy of the aforesaid Recall Notice dated 30.08.2018 was also sent to the Defendant no. 5. As already stated hereinabove, despite the Recall Notice dated 30.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by the defendant no. 5 and called upon the defendant no. 5 to pay within 7-days Rs. 1765,08,54,111/- (including BGs outstanding but not invoked of Rs. 132.77 crore as of 31.07.2018) and ECB of USD 31,667,101.30 due as on 31.07.2018. Additionally, the Defendant no. 5 was also called upon to pay interest as per agreement calculated from 01.08.2018 till the date of payment, due and payable by the Defendant no. 9 as well as to pay default interest as per the agreement and the deed of guarantee that shall be due and payable till the date of actual realization. Further, a copy of the letter of invocation of Corporate Guarantee of Defendant no. 5 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 5 did not pay the sum guaranteed as demanded within 7 days or till date.

2.15 It is also stated in the OA that the defendant no. 7 guaranteed the payment of the said principal amount of the facilities aggregating to Rs. 8743.71 crore for the entire consortium including the share of the applicant Bank together with interest, additional interest, liquidated damages and amount in accordance with the Corporate Guarantee furnished by the said Defendant no. 7 vide Deed of Corporate Guarantee dated 31.03.2015 between the Defendant no. 7 and the SBICAP Trustee Company Ltd. (security Trustee for and on behalf of CDR Lenders) with Union Bank of India (Monitoring Institution & also Lead Bank).

It is stated in the OA that a copy of the aforesaid Recall Notice dated 30.08.2018 (sent to defendant no. 9) was also sent to the Defendant no. 7. As already stated hereinabove, despite the Recall Notice dated 30.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by the defendant no. 7 and called upon the defendant no. 7 to pay within 7-days Rs. 1765,08,54,111/- (including BGs outstanding but not invoked of Rs. 132.77 crore as of 31.07.2018) and ECB of USD 31,667,101.30 due as on 31.07.2018. Additionally, the Defendant no. 7 was also called upon to pay interest as per agreement calculated from 01.08.2018 till the date of payment, due and payable by the Defendant no. 9 as well as to pay default interest as per the agreement and the deed of guarantee that shall be due and payable till the date of actual realization. Further, a copy of the letter of invocation of Corporate Guarantee of Defendant no. 7 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 7 did not pay the sum guaranteed as demanded within 7 days or till date.

2.16 It is stated in the OA that the defendant no. 8 guaranteed the payment of the said principal amount of the facilities aggregating to Rs. 8743.71 crore for the entire consortium including the share of the applicant Bank together with interest, additional interest, liquidated damages and amount in accordance with the Corporate Guarantee furnished by the said Defendant no. 5 vide Deed of Corporate Guarantee dated 31.03.2015 between the Defendant no. 8 and the SBICAP Trustee Company Ltd. (security Trustee for and on behalf of CDR Lenders) with Union Bank of India (Monitoring Institution & also Lead Bank).

It is stated in the OA that a copy of the aforesaid Recall Notice dated 30.08.2018 (issued to defendant no. 9 by the applicant bank) was also sent to the Defendant no. 8. As already stated hereinabove, despite the Recall Notice dated 30.08.2018, the Defendant no. 9 did not pay the outstanding amount.

Thereafter, vide Invocation Letter dated 25.10.2018, the Applicant invoked the corporate guarantee furnished by the defendant no. 8 and called upon the defendant no. 8 to pay within 7-days Rs. 1765,08,54,111/- (including BGs outstanding but not invoked of Rs. 132.77 crore as of 31.07.2018) and ECB of USD 31,667,101.30 due as on 31.07.2018. Additionally, the Defendant no. 8 was also called upon to pay interest as per agreement calculated from 01.08.2018 till the date of payment, due and payable by the Defendant no. 9 as well as to pay default interest as per the agreement and the deed of guarantee that shall be due and payable till the date of actual realization. Further, a copy of the letter of invocation of Corporate Guarantee of Defendant no. 8 dated 25.10.2018 was also sent to defendant no. 9. But despite the letter invoking the corporate guarantee, the defendant no. 8 did not pay the sum guaranteed as demanded within 7 days or till date.

2.17 Therefore (pursuant to the invocation of the personal guarantee of Defendant no. 1 and the Corporate Guarantees of the Defendants no. 2, 3, 4, 5, 6, 7 and 8 as on 26.12.2019) the Defendant no. 1 is liable to pay a sum of Rs. 2371.39,48,866.06; the Defendant no. 2 is liable to pay a sum of Rs. 167,22,94,165.96; the Defendant no. 3 is liable to pay a sum of Rs. 167,22,94,165.96; the Defendant no. 4 is liable to pay a sum of Rs. 167,22,94,165.96 and the Defendant no. 6 is liable to pay a sum of Rs. 11,60,39,140/- as per valuation report dated 28.04.2016 and the Defendant no. 5 is liable to pay a sum of Rs. 2371.39,48,866.06; Defendant no. 7 is liable to pay a sum of Rs. 2371.39,48,866.06 and Defendant no. 8 is liable to pay a sum of Rs. 2371.39,48,866.06 [the particular of claim have been given in Para 5(xcix) of the OA].

2.18 It is stated in the OA that as the defendants no. 1 to 8, despite the letter(s) invoking their personal / corporate guarantee, failed to pay the sum guaranteed, thus, the applicant bank has been compelled to file this OA before this Tribunal.

3. Notices of this O.A. were issued to the defendants, and initially, some of the defendants appeared through their respective counsels but the respective WS(s) / Reply(s) were filed by defendant no. 6, 9 and 16 only.

It is pertinent to note here that defendant no. 6 also filed its fresh WS to the Amended OA as well through Sh. Padam Chandra, Director of Defendant no. 6 company.

3.1 So far as, defendants no. 10, 11, 13 to 15 and 17 to 19 are concerned, they neither appeared before this Tribunal nor filed any WS.

It is also matter of record that defendants no. 10 to 19 have been impleaded as proforma defendants in this OA and no relief has been claimed by the applicant bank qua these defendants.

3.2 In its WS (amended) to the amended OA, Defendant no. 6 herein has raised following main objections:-

- (i) Defendant no. 6 has raised an objection that the prayer made in Para 6(e) is wrong on the face of the record and from the contents of OA and document. It is stated that the answering Defendant no. 6 has not executed any personal / corporate guarantee at the time of execution of the Master Restructuring Agreement dated 29.03.2014 or any subsequent agreements. It is an admitted fact that the present claim emanates from the restructured facilities permitted by the Applicant Bank to the Borrower Company M/s Era Infra Engineering Ltd. to which the answering Defendant no. 6 is not a party. Even the guarantee Agreement dated 23.03.2013 alleged executed by the answering defendant no. 6 is to the extent of market value of the property alleged mortgaged by defendant no. 6. As the applicant bank invoked the said guarantee on 25.10.2018 under Guarantee Agreement dated 23.03.2013 allegedly executed by Defendant no. 6, the claim now made on 01.08.2022 under the guarantee agreement through the amended OA is barred by Limitation.

- (ii) Next objection raised by Defendant no. 6 is that the Borrower M/s Era Infra Engineering Private Ltd. is under Corporate Insolvency Resolution Process vide National Company Law Tribunal order dated 08.05.2018 and thus proceedings under the present OA cannot be proceeded without making the Resolution Professional appointed by Ld. NCLT as a party in the present OA. The facts related to sanctioning of credit facilities and the circumstances under which the alleged guarantee and alleged mortgage came to be created in favour of consortium of banks will be available only with the Borrower Company which record is essential for adjudication of liability against the defendants and specifically against the answering defendant no. 6. It is also stated in the WS that the records relating to the present case are in possession of Insolvency Resolution Professional being in charge of the affairs of the borrower company. The said record contains material facts which affects the adjudication of liability of the alleged guarantee / mortgage relied upon by the Applicant Bank as against the defendant no. 6 in these proceedings. Hence, it is necessary to direct the applicant bank to implead the Resolution Professional appointed by Ld. NCLT in the present proceedings before going ahead with further proceedings in the OA.

- (iii) Next plea taken by the defendant no 6 is that the answering defendant is a company incorporated under the Indian Companies Act, 1956 and is governed by its Memorandum and Articles of Association and is also registered with RBI as a Non-banking Financial Company. It is stated that defendant no. 6 is neither an associate nor a group company nor a subsidiary of M/s Era Infra Engineering Ltd. and there has never been any express or implied representation on behalf of defendant no. 6 that it is part or group or associate or subsidiary of M/s Era Infra Engineering. Moreover, answering defendant was never a part of Board of Directors / Management of Era Group.

(iv) Next objection of defendant no. 6 is that the applicant bank has sought a Recovery Certificate for an amount of Rs. 11,60,39,140/- or to the extent of current market valued of the property secured, however, defendant no. 6 is not liable even for the payment of the above amount as the liability granted to the Borrower was novated from time to time and finally at the time of granting of CDR package, in which there is no stipulation of requirement of furnishing of either security as corporate guarantee by the answering defendant. It is stated in the WS that the documents relied by the applicant bank to show alleged guarantee and mortgage allegedly created by the answering defendant are no more valid as answering defendant was never a party to the Master Restructuring Agreement dated 29.03.2014 and also to the amendment agreement to Master Restructuring Agreement dated 19.05.2014 by which the novation / incorporation of sections or provisions to various terms and conditions was permitted by the applicant bank under the CDR Package. No guarantee agreement was ever executed by the defendant no. 6 under novated contracts as there is no stipulation for extending corporate guarantee by the answering defendant no. 6 in letter of Restructure of Debt under CDR Renewal of credit limits / Sanction of Priority Loan dated 10.03.2014 issued by the applicant bank. In view of the admitted position that the answering defendant is not part of the novation under CDR by which all the earlier sanctioned terms and conditions entered into between the parties before executing Master Restructuring Agreement stood amended and the rights under the earlier documents got eroded.

(v) Next plea of Defendant no. 6 is that the OA is liable to be dismissed in entirety in view of the false case made out as against the Defendant no. 6 and part from the same, a criminal prosecution is to be initiated necessarily to dissuade the parties / Banks / FIs to file such false cases in future. In support of its contention, Defendant no. 6 has relied upon the observation of Hon'ble Delhi High Court while dealing with false claims made by the tenant in the case of *Pradeep Khanna Vs. Khetarpal* quoting the observation of Hon'ble Apex Court in *Dalip Singh Vs. State of UP* (2010) 2 SCC 114 as well as the Judgment of Hon'ble Supreme Court in *Ramrameshwari Devi Vs. Nirmala Devi* (2011) 8 SCC 249.

(vi) Defendant no. 6 has stated in the WS that it was represented by the Borrower that the alleged mortgage of the property bearing no. 56/41, Block C Sector 62, Noida, Uttar Pradesh is required to be created in substitution of some immovable properties which were part of the security to the credit facilities sanctioned to the Defendant no. 9 (Borrower). The said immovable properties which were required to be substituted are released along with the guarantee of owners of the respective properties. In the sanction letter of UBI dated 24.02.2010, it has been mentioned that the guarantee other than that of Mr. H.S. Bharana are on account of mortgage and would be released. Defendant no. 6 has raised an objection that the alleged mortgage relied upon by the applicant bank is not valid nor binding on the answering defendant in view of the fact that the said mortgage was never extended as security to the facilities granted under CDR.

(vii) Next objection of defendant no. 6 is that the present claim emanates from the restructured facilities permitted by the applicant bank to the borrower company to which the answering defendant no. 6 is not a party. It is stated that the statement of account relied upon by the applicant bank also proves the said fact. Thus, the claim made against the answering defendant is totally baseless and not supported by any documentary evidence, thus, the relief prayed for / claim is liable to be rejected as against the answering defendant no. 6.

(viii) Defendant no. 6 has also raised an objection that the Statement of Account annexed by the applicant bank along with the OA cannot be treated as correct in view of observations made by Hon'ble Apex Court in Central Bank of India Vs. Ravindra. It is stated that the statement of account relied upon by the bank pertains to the post CDR package period covered by the documents executed under the CDR package to which the defendant no. 6 is not a Party. Hence, no liability can be fastened on the answering Defendant no. 6 on account of the facilities sanctioned under CDR Package.

(ix) Defendant no. 6 has also raised an objection that the claim made as against the answering defendant is beyond limitation as the last document alleged to have been executed is of March 2013 and subsequent to that entire credit facilities were restructured without any consent from the answering defendant no. 6 in March 2014. Since no documents have ever been executed by the answering defendant no. 6 for the restructured facilities permitted to the Defendant no. 9 (Borrower) under CDR Package and thus the claim made as against the defendant no. 6 is barred by limitation and same is liable to be rejected with exemplary cost. As the applicant bank has invoked the guarantee on 25.10.2018 under Guarantee Agreement dated 25.03.2013 allegedly executed by defendant no. 6, the claim now made on 01.08.2022 under the guarantee agreement through the amended OA is barred by limitation.

In the light of above, Defendant no. 6 has stated in the WS that the applicant bank is not entitled to any relief as prayed for as against the Defendant no. 6 and thus the same is liable to be rejected.

In support of its WS, defendant no. 6 has also filed following documents:-

- (a) Copy of certificate of registration issued by RBI (Annexure D6/1);

- (b) Certified true copy of Board Resolution of Lead Financial Services Ltd. / Defendant no. 6 (Annexure D6/2);

- (c) Copy of the Sanction Letter dated 24.02.2010 of Union Bank of India (Annexure D6/3).

3.1 So far as, Defendant no. 9 (Borrower) is concerned, it has filed the Reply to this OA through Resolution Professional of Era Infra Engineering Limited stating therein that Defendant no. 9 is undergoing Corporate Insolvency Resolution Process (CIRP) in terms of the provisions of the IBC 2016 vide Order dated 08.05.2018 passed by Ld. NCLT, Principal Bench at New Delhi in CP (IB) No. 190(PB) of 2017. It is stated in the Reply that the Ld. NCLT appointed Mr. Rajiv Chakraborty as the interim resolution professional of respondent no. 2 pursuant to order dated 08.05.2018 and he was confirmed / appointed as the resolution professional of respondent no. 2 by the Committee of Creditors in its first meeting. Pursuant to orders dated 14.11.2019 and 02.12.2019 passed by Ld. NCLT, Mr. Rajiv Chakraborty was directed to continue as the resolution professional of respondent no. 2.

It is further stated in the Reply that in terms of Section 14 of IBC and the order dated 08.05.2018 passed by Ld. NCLT, moratorium is applicable on respondent no. 9 during the CIRP of respondent and there is prohibition of the present case for far as it extends to the defendant no. 9 herein. Hence, request is made to remove the defendant no. 9 from the array of defendants till the pendency of CIRP.

In support of its WS, Defendant no. 9 has filed copy of orders dated 08.05.2018, 14.11.2019 and 02.12.2019 passed by Ld. NCLT (Annexure R-1-colly).

3.4 It is matter of record that the Defendant no. 16/Bank of Maharashtra (BOM) has been impleaded in this OA as Proforma Defendant against which no relief is claimed by the applicant bank.

However, Defendant no. 16 / BOM has filed its WS through Sh. Sanjeev Kumar, Chief Manager who is authorized by defendant no. 16 bank by Circular / Authority Letter dated 30.12.2013 issued by the Head Office of BOM (Annexure D-16/1). In the WS, defendant no. 16 has given details of loans sanctioned by it and the loan / security documents executed by defendants as well.

It is stated in the WS that the answering defendant has been arrayed as Proforma party in this OA and admittedly neither any averment nor any relief is sought qua the answering defendant, hence, no reply is required to the same. However, defendant no. 16 reserves its right to file a detailed reply in case of any further development in the present case that causes any prejudice to the rights and contention of the answering defendant.

In support of its WS, Defendant no. 16 has filed various documents viz. certified copy of the Authority Letter / Circular dated 30.12.2013, Sanction Letter, loan documents, Statement of Account etc. (D-16/1 to D-16/71).

4. To prove its case, the Applicant Bank leads its evidence by filling the affidavit of Mr. Amit Kumar Sinha (AW-1), Chief Manager of the Applicant bank.

4.1 Mr. Amit Kumar Sinha of applicant bank has placed reliance upon the documents filed by the Applicant Bank which includes:-

- (i) Power of Attorney dated 05.10.2009 of the Applicant Bank passed in favour of the deponent (Ex. AW-1/1);

- (ii) Power of attorney in favour of previous authorized representative of the applicant bank who has been transferred (Mark-ZA);

- (iii) Copy of Deed of Guarantee dated 20.01.2012 executed by Defendant no. 1 in favour of Union Bank of India, Hong Kong Branch (Mart 'A');

- (iv) Sanction Letter dated 12.12.2012 issued by the Applicant Bank in favour of the Defendant no. 9 (Ex. AW-1/2);

- (v) Board Resolutions dated 29.12.2012 passed by the Board of Directors of Defendant no.2, 3, 4 and 9 (Ex. AW-1/3 to AW-1/6);

- (vi) Term Loan Agreement dated 29.12.2012 executed between the Applicant and Defendant no. 9 (Ex. AW-1/7);

- (vii) Consent letters dated 29.12.2012 issued by defendants no. 2 to 4 in favour of applicant bank (Ex. AW-1/8 to AW-1/10);

- (viii) Deed(s) of Guarantee dated 29.12.2012 executed by defendants no. 2, 3 & 4 in favour of the Applicant Bank (Ex. AW-1/11 to AW-1/13);

- (ix) Copy of Memorandum of Deposit of Title Deeds dated 31.12.2012 with regard to mortgaged properties belonging by defendants no. 2 & 3 (Mark 'B');

- (x) Sanction Letter dated 20.03.2013 issued by the Applicant Bank enhancing the then Working Capital Limits of the Defendant no. 9 Company (Ex. AW-1/14);

- (xi) Letter of Guarantee dated 21.03.2013 executed by the Defendant no. 1 (Ex. AW-1/15);

- (xii) Letter of Guarantee dated 21.03.2013 executed by the Defendant no. 6 in favour of the Applicant Bank (Ex. AW-1/16);

- (xiii) Inter-Se Agreement dated 23.03.2013 entered into between Applicant and Defendants no. 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 (Ex. AW-1/17);

- (xiv) Copy of confirmation Deed dated 23.03.2013 executed by Defendant no. 9 with regard to Inter-Se Agreement (Mark 'C');

- (xv) Working Capital Consortium Agreement dated 23.03.2013 executed between the Defendant no. 9 and the Applicant Bank and other Lenders (Defendants no. 10 to 16 herein) (Ex. AW-1/18);

- (xvi) Working Capital Consortium Agreement, Letter of Authority, Deed of Hypothecation and Omnibus Bank Guarantee dated 23.03.2013 (Ex. AW-1/19 to AW-1/22);

- (xvii) Deed of Guarantee dated 23.03.2023 executed by Defendant no. 1 in favour of Union Bank of India (Ex. AW-1/23);

- (xviii) Deed of Guarantee dated 23.03.2023 executed by Defendant no. 6 in favour of the Applicant Bank (Ex. AW-1/24);

- (xix) True copy of Declaration dated 15.04.2013 executed by Defendant no. 6 in favour of the Consortium of Bank including the Applicant Bank (Mark 'D');

- (xx) Letter dated 29.03.2014 conveying the Restructuring package approved by CDR-EG (Ex. AW-1/25);

- (xxi) Sanction Letter dated 10.03.2014 & 10.05.2014 of applicant bank to Defendant no. 9 conveying the sanction in terms of CDR Package (Ex. AW-1/26);

- (xxii) Master Restructuring Agreement dated 29.03.2014 entered into between the Defendant no. 9 Company and Union Bank of India (Applicant Bank) and the other lenders (Ex. AW-1/27);

- (xxiii) Deed / Letter of guarantee dated 29.03.2014 executed by Defendant no. 1 in favour of applicant bank (Ex. AW-1/28);

- (xxiv) True copy of Deed of guarantee dated 29.03.2014 executed by defendant no. 1 in favour of SBICAP Trustee Company Limited (Mark 'E');

- (xxv) Amendment Agreement to the Master Restructuring Agreement dated 19.05.2014 (Ex. AW-1/29);

- (xxvi) Trust & Retention Account Agreement dated 19.05.2014 executed amongst SBICAP Trustee Company Limited, Applicant Bank in its capacity of the Account Bank and Monitoring Institution, and the Defendant no. 9 / borrower (Ex. AW-1/30);

- (xxvii) True copy of Deed of Pledge of Shares of M/s Hi-Point Investment & Finance Pvt. Limited in favour of SBICAP Trustees Company Limited acting as Security Trustee and an irrevocable power of attorney, both dated 30.10.2014, executed by Defendant no. 1, Defendant No. 9 and others (Mark 'F' & Mark 'G');

- (xxviii) Copies of Memorandum of Deposit of Title Deeds executed by Defendants no. 5, 7 & 8 on 29.11.2014 while depositing Title Deeds of certain immovable properties for the benefit of the CDR lenders with SBICAP Trustees Company Limited (Mark 'H');

- (xxix) Corporate Guarantee(s) all dated 31.03.2015 executed by defendants no. 5, 7 & 8 in favour of M/s SBICAP Trustee Company Limited along with the relevant extracts of the Minutes of Meeting of the Board of Directors of the respective defendant authorizing the said guarantee (Mark 'I', 'J' and 'K');

- (xxx) True copy of Balance Confirmation Letter dated 21.01.2017 executed by Defendant no. 9 (Ex. AW-1/31);

- (xxxi) Statement of Account of the Defendant no. 9 as per the Bankers Book of Evidence Act, 1891 (Mark 'L');

- (xxxii) Copy of Recall Notice dated 30.08.2018 issued by the Applicant Bank to the Defendants no. 1 to 9 (Mark 'M');

- (xxxiii) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 1 invoking the personal guarantee furnished by the Defendant no. 1 (Mark 'N');

(xxxiv) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 2 invoking the corporate guarantee furnished by the Defendant no. 2 (Mark 'O');

(xxxv) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 3 invoking the corporate guarantee furnished by the Defendant no. 3 (Mark 'P');

(xxxvi) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 4 invoking the corporate guarantee furnished by the Defendant no. 4 (Mark 'Q');

(xxxvii) Valuation report dated 05.03.2013 and 28.04.2016 of the property belonging to defendant no. 6 (Mark 'R' & 'S'); (xxxviii) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 5 invoking the corporate guarantee furnished by the Defendant no. 5 (Mark 'T');

(xxxix) . Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 6 invoking the corporate guarantee furnished by the Defendant no. 6 (Mark 'U');

(xl) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 7 invoking the corporate guarantee furnished by the Defendant no. 7 (Mark 'V');

(xli) Copy of Invocation / demand letter dated 25.10.2018 issued by the applicant bank to defendant no. 8 invoking the corporate guarantee furnished by the Defendant no. 8 (Mark 'W');

- (xlii) Certified copy of the Board Resolution dated 30.07.2010 passed by Defendant no. 6 (Ex. AW-1/32);

- (xliii) Memorandum of deposit of title deed dated 20.08.2010 with regard to property (NOIDA property) mortgaged by defendant no. 6 (Ex. AW-1/33);

- (xliv) Working Capital Consortium Agreement dated 09.08.2010 executed between the defendant no. 9 and the applicant bank and other lenders (defendants no. 10 to 16 herein) (Ex. AW-1/34);

- (xlv) Letter of Authority given by the applicant bank to the Deputy General Manager for executing working capital consortium agreement (Ex. AW-1/35);

- (xlvi) Joint Deed of Hypothecation dated 09.08.2010 executed by defendant no. 9 (Ex. AW-1/36);

- (xlvii) Letter of Guarantee dated 09.08.2010 executed by defendant no. 6 in favour of the applicant bank (Ex. AW-1/37);

- (xlviii) Letter of Guarantee dated 09.08.2010 executed by the defendant no.1 in favour of the applicant bank (Ex. AW-1/38);

- (xlix) Inter-se Agreement dated 09.08.2010 entered amongst applicant and defendants no. 10 to 16 forming a consortium and recognizing the applicant bank as the Lead Bank (Ex. AW-1/39);

- (l) Board Resolution dated 07.11.2011 of defendant no. 6 (Ex. AW-1/40);

- (li) Working Capital Consortium Agreement 16.11.2011 executed amongst the defendant no. 9 and the applicant bank and other lenders (defendants no. 10 to 16) (Ex. AW-1/41);

- (lii) Letter of Authority dated 16.11.2011 given by the Lead Bank for executing working capital consortium agreement (Ex. AW-1/42);

- (liii) Certified copy of resolution of defendant no. 9 by its Board of Directors in meeting dated 14.11.2011 (Ex. AW-1/43);

- (liv) Joint Deed of Hypothecation dated 16.11.2011 executed by defendant no. 9 (Ex. AW-1/44);

- (lv) Letter of Guarantee dated 16.11.2011 executed by defendant no. 1 (Ex. AW-1/45);

- (lvi) Letter of Guarantee dated 16.11.2011 executed by defendant no. 1 (Ex. AW-1/46);

- (lvii) Inter-se Agreement dated 16.11.2011 entered into amongst applicant and defendants no. 10 to defendant no. 17 (Ex. AW-1/47);

- (lviii) Omnibus Bank Guarantee dated 16.11.2011 executed amongst applicant and defendants no. 10 to 17 (Ex. AW-1/48);

- (lix) Letter of Undertaking dated 16.11.2011 executed by defendant no. 9 to applicant bank and other lenders (defendants o. 10 to 17) (Ex. AW-1/49);

- (lx) Memorandum of Entry dated 25.11.2011 of defendant no. 6 (Ex. AW-1/50);

- (lxi) Omnibus Counter Indemnity for letter of Guarantee dated 16.11.2011 entered amongst applicant and defendant no. 9 (Ex. AW-1/51);

- (lxii) Letter of Undertaking dated 23.03.2013 given by defendant no. 9 to the applicant bank and other lenders (defendants no. 10 to 18) (Ex. AW-1/52);

- (lxiii) Affidavit dated 23.03.2013 given by director of defendant no. 6 with regard to affirming deposit of title deeds of the NOIDA property (Ex. AW-1/53);

- (lxiv) Affidavit dated 23.03.2013 given by defendant no. 1 to the director of defendant no. 9 (Ex. AW-1/54);

- (lxv) Letter(s) dated 29.03.2014 given by defendant no. 9 to the applicant bank (Ex. AW-1/55 to AW-1/57);

- (lxvi) Copy of the Security Trustee Agreement dated 29.03.2014 executed amongst defendant no. 9, defendant no. 19, applicant bank and other lenders (Mark 'X');

- (lxvii) Copy of Deed of Personal Guarantee dated 29.03.2014 executed by defendant no. 1 in favor of defendant no. 19 (Mark 'Y');

- (lxviii) Copy of irrevocable Power of Attorney dated 25.05.2014 executed between defendant no. 9 and defendant no. 19 (Mark 'Z');

- (lix) Copy of Gazette Notification dated 04.01.2020 whereby defendant no. 15 / Corporation Bank was amalgamated with applicant bank / Union Bank of India (Ex. AW-1/58).

5. So far as, Defendant no. 6 is concerned, it has filed its Evidence as well as amended Evidence by way of affidavit of Sh. P.C. Bindal (D6W) who has relied upon the following documents:-

- (i) Board Resolution executed by Defendant no. 6 Company dated 20.08.2022 in favor of the deponent authorizing him to sign and execute and documents and depose Affidavit in present proceedings (Ex. D6W-1);

- (ii) Copy of certificate of registration issued by RBI (Annexure D6W-2);

- (iii) Sanction Letter dated 24.02.2010 of UBI sanctioning substitution of property/ies as security (D6W-3).

6. Though, defendants no. 5, 7 & 8 did not chose to file any WS, however, they filed three separate Affidavits of Sh. Sanjay Kumar Sharma, being their authorized representative, with regard to Admission and Denial of documents filed by the applicant bank. In all the affidavits of defendants no. 5, 7 & 8, they denied each and every document relied by the applicant bank.

7. It is important to note here that during the pendency of this OA, names of defendants no. 15 & 18 i.e. Corporation Bank and Oriental Bank of Commerce were substituted with Union Bank of India (UBI) and Punjab National Bank (PNB) vide order dated 29.08.2024 passed in IA No. 869/2024 by this Tribunal.

8. Further more, during the pendency of this OA, it was informed by the Ld. counsels for the parties (in WS / Reply of D-9 also) that CIRP proceedings have been initiated qua borrower company / defendant no. 9 company before Ld. NCLT, Delhi and Resolution Plan has also been approved It was also informed by the applicant bank that personal insolvency proceedings have also been initiated qua defendant no. 2 before Ld. NCLT, Delhi.

It is pertinent to note here that relevant orders(s) of Ld. NCLT have also been placed on record.

9. It is also important to note here that during the pendency of this OA, defendants no. 2, 3 & 4 filed IA No. 460/2024 for taking on record the NOC dated 02.03.2024 issued by Applicant Bank in favour of defendants no. 2, 3 & 4 releasing corporate guarantee of the said defendants and to dispose off the captioned OA against defendants no. 2, 3 & 4 in furtherance of the said NOC.

It is matter of record that the IA No. 460/2024 was allowed vide order dated 24.10.2024 of this Tribunal and the NOC dated 02.03.2024 issued by the applicant bank in favour of defendants no. 2, 3 & 4 releasing corporate guarantee of the said defendants was taken on record and the OA was disposed off against defendants no. 2, 3 & 4 in furtherance of said NOC. Accordingly, applicant bank filed amended memo of parties mentioning therein that names of defendants no. 2, 3 & 4 has been deleted on 24.10.2024.

10. In the present matter, the Applicant Bank and Defendant no. 6 have filed their respective written submissions as well.

11. Heard Ld. counsels for the applicant bank and perused the entire record.

11.1 It is matter of record that CIRP proceedings have been initiated qua defendant no. 9 / borrower company before Ld. NCLT, Delhi, hence, no final order can be passed qua defendant no. 9, at this stage. Similarly, personal insolvency proceedings have also been initiated qua defendant no. 2 before Ld. NCLT, Delhi and the moratorium is under operation, hence, no final can also be passed qua defendant no. 2 as well.

However, it is directed that applicant bank shall be at liberty to revive the OA qua defendants no. 2 & 9 in case personal insolvency / CIRP proceedings are quashed / withdrawn in future, in accordance with law.

It is also directed that in case applicant Bank receives any amount from personal insolvency / CIRP proceedings, it shall give due adjustment of the same in the recovery proceedings.

11.2 It is also matter of record that names of defendants no. 2, 3 and 4 have already been deleted vide order dated 24.10.2024 passed in IA No. 460/2024 by this Tribunal.

11.3 Now I would like to deal with the objections raised by defendant no. 6 herein in following paras:-

- (i) Defendant no. 6 has raised an objection that the prayer made in Para 6(e) is wrong on the face of the record and from the contents of OA and document. It is stated that the answering Defendant no. 6 has not executed any personal / corporate guarantee at the time of execution of the Master Restructuring Agreement dated 29.03.2014 or any subsequent agreements. It is an admitted fact that the present claim emanates from the restructured facilities permitted by the Applicant Bank to the Borrower Company M/s Era Infra Engineering Ltd. to which the answering Defendant no. 6 is not a party. Even the guarantee Agreement dated 23.03.2013 allegedly executed by the answering defendant no. 6 is to the extent of market value of the property allegedly mortgaged by defendant no. 6. As the applicant bank invoked the said guarantee on 25.10.2018 under Guarantee Agreement dated 23.03.2013 allegedly executed by Defendant no. 6, the claim now made on 01.08.2022 under the guarantee agreement through the amended OA is barred by Limitation.

After careful perusal of record of this OA, it is revealed that the Defendant no. 6 is seeking to disown its liability on the pretext of non-participation in the Corporate Debt Restructuring (CDR) Process and in the absence of post-CDR documentation. However, it is matter of record that Defendant no. 6 has executed two Letters of Guarantee dated 21.03.2013 and 23.03.2013 (Ex. AW-1/16 & AW-1/24), along with a mortgage of immovable property situated at NOIDA, securing the credit facilities extended to defendant no. 9 / principal borrower. It is also matter of record that the said Guarantee(s), by its explicit terms, is a continuing guarantee, binding the guarantor in the capacity of the principal debtor and waiving protection under Section 133 to 141 of the Indian Contract Act, 1972. Further more, the judicial pronouncements, including *H.B. Basavaraj Vs. Canara Bank* and *Rajiv Shetty Vs. Bank of Baroda*, have upheld the validity of such waivers and affirmed that sureties may contractually waive statutory protections. Moreover, there is no evidence on behalf of defendant no. 6 to show that the original guarantee(s) were extinguished or superseded. On the contrary, the applicant bank invoked the guarantee of defendant no. 6 on 25.10.2018 (Mark 'U') and the defendant no. 6's silence and inactive post-invocation reflect acquiescence.

Further more, applicant bank has also filed Memorandum of Deposit of Title Deeds dated 20.08.2010 (Ex. AW-1/33) with regard to NOIDA property mortgaged by Defendant no. 6 as well as Affidavit dated 23.03.2013 given by director of defendant no. 6 with regard to affirming deposit of title deeds of NOIDA property (Ex. AW-1/33).

Further more, defendant no. 9 / principal borrower has also executed Balance Confirmation / Revival Letter dated 21.01.2017 (Ex. AW-1/31) in favour of Applicant Bank (the Lead Bank) which is binding on defendant no. 6, being guarantor to defendant no. 9.

It is matter of record that this OA was filed on 28.02.2020. To decide the issue of limitation, it is pertinent to note here that the applicant bank has also filed Memorandum of deposit of title deeds dated 20.08.2010 with regard to NOIDA property mortgaged by defendant no. 6. Even otherwise, the debt in the present OA was based on mortgage of immovable properties of the defendants including Defendant no. 6. Hence, as per Section 62 of the Limitation Act, the parent OA can be filed within 12-years from the date when the debt became due i.e. the date of NPA i.e. 29.07.2013 (as mentioned in Recall Notice dated 30.08.2018 issued by the applicant bank to the defendants no. 1 to 9 which is annexed as Mark 'M'. .

In the light of above, this Tribunal is of the view that this OA has been filed well within the period of limitation and this plea of defendant no. 6 is hereby rejected.

- (ii) Next objection raised by Defendant no. 6 is that the Borrower M/s Era Infra Engineering Private Ltd. is under Corporate Insolvency Resolution Process vide National Company Law Tribunal order dated 08.05.2018 and thus proceedings under the present OA cannot be proceeded without making the Resolution Professional appointed by Ld. NCLT as a party in the present OA. The facts related to sanctioning of credit facilities and the circumstances under which the alleged guarantee and alleged mortgage came to be created in favour of consortium of banks will be available only with the Borrower Company which record is essential for adjudication of liability against the defendants and specifically against the answering defendant no. 6. It is also stated in the WS that the records relating to the present case are in possession of Insolvency Resolution Professional being in charge of the affairs of the borrower company. The said record contains material facts which affects the adjudication of liability of the alleged guarantee / mortgage relied upon by the Applicant Bank as against the defendant no. 6 in these proceedings. Hence, it is necessary to direct the applicant bank to implead the Resolution Professional appointed by Ld. NCLT in the present proceedings before going ahead with further proceedings in the OA.

This Tribunal is of the view that on account of CIRP of Defendant no. 9 / Principal Borrower, the proceedings before this Hon'ble Tribunal only with respect to the Borrower would be stayed in terms of the moratorium imposed under Section 14 of the IBC. The overriding effect of IBC over the RDB Act in no manner concerns the proceedings related to Defendant no. 6 herein which is admittedly not under CIRP. There is no bar under the provisions of IBC or any other applicable law on continuation of the proceedings related to a corporate guarantor under RDB Act before this Tribunal solely on account that CIRP of the principal borrower is ongoing.

Moreover, the Hon'ble High Court of Delhi, in the matter of *Kiran Gupta vs. State Bank of India & Anr.* [WP(C) 7230/2020], while relying on the judgment of the Hon'ble Supreme Court in the matter of *State Bank of India vs V. Ramakrishnan* [Civil Appeal No.3595 of 2018] held that:- *"14. The view expressed by the Supreme Court amply demonstrates that neither Section 14 nor Section 31 of the IB Code place any fetters on Banks/Financial Institutions from initiation and continuation of the proceedings against the guarantor for recovering their dues. That being the position, the plea taken by*

*the counsel for the petitioner that all proceedings against the petitioner, -who is only a guarantor, ought to be stayed under the SARFESJ Act during the continuation of the Insolvency Resolution process qua the Principal Borrower, is rejected as meritless. The petitioner cannot escape her liability qua the respondent/Bank in such a manner. The liability of the principal borrower and, the Guarantor remain co-extensive and the respondent/Bank is well entitled to initiate proceedings against the petitioner under the SARFESI Act during the continuation of the Insolvency Resolution Process against the Principal Borrower."*

Further, the Hon'ble Supreme Court, in **Rakesh Bhanot in Gurdas Agro Pvt. Ltd [Criminal Appeal No. 1607 of 2025]** held that *it is clear from Section 14 of the IBC that the protection from legal action during the period of moratorium is not available to the surety.*

In the light of above, this objection of defendant no. 6 does not hold any water and same stands rejected.

So far as, question of impleading the Resolution Professional of defendant no. 9 in the present case is concerned, this Tribunal is of the view that the liability of defendant no. 6 is continuing to co-extensive with defendant no. 9 and non-impleadment of Resolution Professional of defendant no. 9 in this OA is not going to give any benefit to defendant no. 6. Accordingly, this plea of defendant no. 6 also stands rejected.

- (iii) Next plea taken by the defendant no 6 is that the answering defendant is a company incorporated under the Indian Companies Act, 1956 and is governed by its Memorandum and Articles of Association and is also registered with RBI as a Non-banking Financial Company. It is stated that defendant no. 6 is neither an associate nor a group company nor a subsidiary of M/s Era Infra Engineering Ltd. and there has never been any express or implied representation on behalf of defendant no. 6 that it is part or group or associate or subsidiary of M/s Era Infra Engineering. Moreover, answering defendant was never a part of Board of Directors / Management of Era Group.

This Tribunal is of the view that once the defendant no. 6 has not denied execution of Letter(s) of guarantee dated 21.01.2013 as well as 23.03.2013, now by taking such pleas, it cannot be absolved from its liability being corporate guarantor to defendant no. 9 / principal borrower. Hence, this objection of defendant no. 6 stands rejected accordingly.

- (iv) Next objection of defendant no. 6 is that the applicant bank has sought a Recovery Certificate for an amount of Rs. 11,60,39,140/- or to the extent of current market valued of the property secured, however, defendant no. 6 is not liable even for the payment of the above amount as the liability granted to the Borrower was novated from time to time and finally at the time of granting of CDR package, in which there is no stipulation of requirement of furnishing of either security as corporate guarantee by the answering defendant. It is stated in the WS that the documents relied by the applicant bank to show alleged guarantee and mortgage allegedly created by the answering defendant are no more valid as answering defendant was never a party to the Master Restructuring Agreement dated 29.03.2014 and also to the amendment agreement to Master Restructuring Agreement dated 19.05.2014 by which the novation / incorporation of sections or provisions to various terms and conditions was permitted by the applicant bank under the CDR Package. No guarantee agreement was ever executed by the defendant no. 6 under novated contracts as there is no stipulation for extending corporate guarantee by the answering defendant no. 6 in letter of Restructure of Debt under CDR Renewal of credit limits / Sanction of Priority Loan dated 10.03.2014 issued by the applicant bank. In view of the admitted position that the answering defendant is not part of the novation under CDR by which all the earlier sanctioned terms and conditions entered into between the parties before executing Master Restructuring Agreement stood amended and the rights under the earlier documents got eroded.

In this case, the main defence of defendant no. 6 is that the liability granted to the Borrower was novated from time to time and finally at the time of granting of CDR package as the answering defendant was never a party to the Master Restructuring Agreement dated 29.03.2014 and also to the amendment agreement to Master Restructuring Agreement dated 19.05.2014. Record reveals that though the Restructure of Debt was done under CDR but it is also matter of record that all the members of consortium unanimously agreed to exit the CDR and subsequently the CDR exit was approved which was conveyed vide letter dated 26.09.2017 and all the concessions granted to the CDR stood withdrawn. Even otherwise, the guarantee of defendant no. 6 is continuing one.

Moreover, it is matter of record that the Deed(s) of Guarantee dated 09.08.2010 (Ex. AW-1/37), Deed of Guarantee dated 21.03.2013 (Ex. AW-1/16) and Deed of Guarantee dated 23.03.2013 (Ex. AW-1/24) executed by defendant no. 6 contains following main clauses:-

1. 1. *If at any time default shall be made by the Borrower in payment of the principal sum not exceeding Rs. 11.00 crore together with interest, costs, charges, expenses and/or other money for the time being due to the Lead Bank, in respect of or under the above mentioned credit facilities or any of them the Guarantor shall forthwith on demand pay to the Lead Bank, the whole of such principal sum not exceeding Rs. 11.00 Crore together with interest, cost, charges, expenses, and/or any other money as may be then due to the Lead Bank in respect of the above mentioned credit facilities and shall indemnify and keep indemnified the Lead Bank against any losses of the said principal sum, interest, or*

other money due and all costs, charges and expenses whatsoever which the lead bank may incur by reason of any default on the part of the Borrower.

1. 8. **The Guarantee herein contained is a continuing one for all amounts advanced by the Lead Bank to the Borrower in respect of or under the above-mentioned credit facilities as also for all interest, costs and other money which may from time to time become due and remain unpaid to the lead bank there under and shall not be determined or in any way be effected by any account or accounts opened or to be opened by the lead bank becoming NIL or coming into credit at any time or from time to time or by reason of the said account or accounts being closed and fresh account or accounts being opened in respect of fresh facilities being granted within the overall limit sanctioned to the Borrower.**

My / our liability to the Bank hereunder shall be that of a Principal debtor and at the Bank's option, the Bank may treat me / us as primarily liable for the debt of the Principal or the balance from time to time due in respect thereof provided always, that the amount for which I/we **the Guarantee shall not exceed Rs. 11,39,00,000/- (Rupees Eleven Crore Thirty Nine Lakh only) and interest at such amount** or on such less than as may be due at the rate which the Principal is or may become liable to pay to the Bank from the date of the principal's default and payment.

**This Guarantee shall be continuing security binding me / us and my/our personal representatives until the receipt by the Bank of notice in writing to discontinue it and notwithstanding the discontinuance by or any release or granting of time or indulgence to any one or more of us this Guarantee shall nevertheless as to the party or parties giving such**

notice continue to be available (subject to the aforesaid limit of total amount).....

1. 1. *If at any time default shall be made by the Borrower in the opinion of the Banks in payment of the principal sum not exceeding Rs. 4050,00,00,000/- (Rupees Four Thousand Fifty Crore only) together with agreed rate of interests, costs, charges, expenses and / or other money for the time being due to the Bank in respect of or under the above mentioned credit facilities or any of them **the Guarantor shall forthwith on demand pay to the Banks the market value of the immovable property situated at Plot No. C-56/41, Sector-62, Noida-201 301 in the State of Uttar Pradesh, presently, being Rs. 11,39,00,000/- (Rupees Eleven Crore Thirty Nine Lakh only) and shall indemnify and keep indemnified the Bank against any losses of the said principal sum, interest, or other money due and all costs, charges and expenses whatsoever which the lead bank may incur by reason of any default on the part of the Borrower.***

2. 2. ***The guarantor hereby guarantees to pay the Banks upon demand in writing all principal, interest, costs, charges and expenses due, limited to Rs. 11,39,00,000/- (Rupees Eleven Crore Thirty Nine Lakh only) and which may at any time become due to the Consortium Banks from the Borrower on the accounts opened in respect of the said limits (hereinafter called the 'said Accounts') down to the date of payment and also all loss or damages, costs, changes and expenses and in the case of legal costs, as between attorney and client occasioned to the bank by reason of omission, failure or default temporary or otherwise in such payment by the borrower of by the Guarantor(s) or any of them including costs (as aforesaid) of enforcement or attempted enforcement of payment by suit or otherwise or by sale or realization or attempted sale or realization of any security for the said indebtedness or otherwise howsoever or any costs (which costs to be as aforesaid) charges or***

expenses which the Bank may incur by being joined in any proceedings to which the Banks may be made or may make itself party either with or without others in connection with any such securities or any proceeds thereof.

3. *The Guarantor hereby declares that this Guarantee shall be continuing guarantee and remain operative in respect of each of the said limits severally and may be enforced as such in the discretion of the Banks, as if each of Facilities / limits had been separately guaranteed by him. This Guarantee shall not be considered as cancelled or in any way affected by the fact that at any time or from time to time any of the said accounts may show on liability against the Borrower or may even show credit in his favour but shall continue and remain in operation in respect of all subsequent transactions till the accounts are closed.*

10. *The Guarantee herein contained is a continuing one for all amounts advanced by the Banks to the Borrower in respect of or under the above-mentioned credit facilities as also for all interests, costs and other money which may from time to time become due and remain unpaid to the Bank thereunder and shall not be determined or in any way be effected by any account or accounts opened or to be opened by the Lead Bank or any of the Banks becoming NIL or coming into credit at any time or loan from time to time or by reason of the said account or accounts being closed and fresh account or accounts being opened in respect of fresh facilities being granted within the overall limit sanctioned to the Borrower.*

Moreover, there are some other documents executed by defendant no. 6 herein viz. Memorandum of Entry dated 25.11.2011 of defendant no. 6 (Ex. AW-1/50) and Affidavit dated 23.03.2013 given by director of Defendant no. 6 with regard to affirming deposit of title deeds of the NOIDA property (Ex.

AW-1/54) & true copy of Declaration dated 15.04.2013 executed by defendant no. 6 in favour of the Consortium of Bank including the applicant bank (Mark 'D') which clearly establish that the defendant no. 6 duly mortgaged its NOIDA property, which is also mentioned in Deed of Guarantee dated 23.03.2013.

Further more, applicant bank has also filed copies of valuation reports dated 05.03.2013 (Mark 'R') and copies of the valuation reports dated 28.04.2016 (Mark 'S').

In the light of above, it is abundantly clear that defendant no. 6 stood as guarantor and the guarantee of defendant no. 6 is continuing one. **However, it is made clear that the liability of defendant no. 6 shall be restricted to the extent of current market value of the property secured / mortgaged with applicant bank viz. Plot No. C-56/41, Sector-62, Noida-201 301 in the State of Uttar Pradesh or Rs. 11,60,39,140/-** (as per the valuation report dated 28.04.2016) which is the sum due and payable to the Applicant on 31.12.2019 under the Deed of Corporate Guarantee dated 21.03.2013 & 23.03.2013 along with interest and costs of this OA.

With the above said observations, this objection of defendant no. 6 stands disposed off accordingly.

- (v) Next plea of Defendant no. 6 is that the OA is liable to be dismissed in entirety in view of the false case made out as against the Defendant no. 6 and part from the same, a criminal prosecution is to be initiated necessarily to dissuade the parties / Banks / FIs to file such false cases in future. In support of its contention, Defendant no. 6 has relied upon the observation of Hon'ble Delhi High Court while dealing with false claims made by the tenant in the case of *Pradeep Khanna Vs. Khetarpal* quoting the observation of Hon'ble Apex Court in *Dalip Singh Vs. State of UP (2010) 2 SCC 114* as well as the Judgment of Hon'ble Supreme Court in *Ramrameshwari Devi Vs. Nirmala Devi (2011) 8 SCC 249*.

This Tribunal is of the view that defendant no. 6 has failed to prove its contention as the applicant bank has filed documentary evidence in support of its OA and the proceedings before this Tribunal are summary in nature. Mere making allegations by defendant no. 6 are not going to give any benefit to the answering defendant. Accordingly, this plea of defendant no. 6 does not hold any water and same stands rejected.

(vi) Defendant no. 6 has stated in the WS that it was represented by the Borrower that the alleged mortgage of the property bearing no. 56/41, Block C Sector 62, Noida, Uttar Pradesh is required to be created in substitution of some immovable properties which were part of the security to the credit facilities sanctioned to the Defendant no. 9 (Borrower). The said immovable properties which were required to be substituted are released along with the guarantee of owners of the respective properties. In the sanction letter of UBI dated 24.02.2010, it has been mentioned that the guarantee other than that of Mr. H.S. Bharana are on account of mortgage and would be released. Defendant no. 6 has raised an objection that the alleged mortgage relied upon by the applicant bank is not valid nor binding on the answering defendant in view of the fact that the said mortgage was never extended as security to the facilities granted under CDR.

This Tribunal is of the view that once defendant no. 6 has not denied execution of letter(s) of guarantees as well as creation of mortgage with regard to its NOIDA property. Now at the time of paying the dues of the bank, defendant no. 6 cannot be absolved from its liability. As already discussed above, it is matter of record that the guarantee of defendant no. 6 is continuing one, hence, this plea of defendant no. 6 also stands rejected accordingly.

- (vii) Next objection of defendant no. 6 is that the present claim emanates from the restructured facilities permitted by the applicant bank to the borrower company to which the answering defendant no. 6 is not a party. It is stated that the statement of account relied upon by the applicant bank also proves the said fact. Thus, the claim made against the answering defendant is totally baseless and not supported by any documentary evidence, thus, the relief prayed for / claim is liable to be rejected as against the answering defendant no. 6.

This issue has already been discussed in above paras and in the light of above, this objection of defendant no. 6 stands rejected accordingly.

- (viii) Defendant no. 6 has also raised an objection that the Statement of Account annexed by the applicant bank along with the OA cannot be treated as correct in view of observations made by Hon'ble Apex Court in Central Bank of India Vs. Ravindra. It is stated that the statement of account relied upon by the bank pertains to the post CDR package period covered by the documents executed under the CDR package to which the defendant no. 6 is not a Party. Hence, no liability can be fastened on the answering Defendant no. 6 on account of the facilities sanctioned under CDR Package.

Record reveals that Applicant Bank has filed Statement of Accounts of Defendant no. 9 as per the Bankers' Book of Evidence Act, 1891 (Mark 'L'). On the other hand, though defendant no. 6 was always at liberty to file its own statement of account but did not chose to do so. I have also gone through the Statement of Account and do not find any infirmity in the same. Hence, this plea of defendant no. 6 is hereby rejected.

- (ix) Defendant no. 6 has also raised an objection that the claim made as against the answering defendant is beyond limitation as the last document alleged to have been executed is of March 2013 and subsequent to that entire credit facilities were restructured without any consent from the answering defendant no. 6 in March 2014. Since no documents have ever been executed by the answering defendant no. 6 for the restructured facilities permitted to the Defendant no. 9 (Borrower) under CDR Package and thus the claim made as against the defendant no. 6 is barred by limitation and same is liable to be rejected with exemplary cost. As the applicant bank has invoked the guarantee on 25.10.2018 under Guarantee Agreement dated 25.03.2013 allegedly executed by defendant no. 6, the claim now made on 01.08.2022 under the guarantee agreement through the amended OA is barred by limitation.

In the light of discussion made in foregoing paras, this plea of defendant no. 6 is hereby rejected.

11.4 So far as, rest of defendants i.e. defendants no. 5, 7 & 8 are concerned, they did not chose to file any WS, the case of applicant bank remained unrebutted / uncontested.

But it is matter of record that defendants no. 5, 7 & 8 have affidavit(s) of admission and denial wherein they have denied all the documents relied by the applicant bank.

This Tribunal is of the view that in the absence of pleadings / WS, the affidavit of admission and denial filed by defendants no. 5, 7 & 8 is not going to give them any benefit in this case and by making mere denial of documents, these defendants cannot be absolved from their respective liabilities. Hence, it is clear that the case of applicant bank against defendants no. 5, 7 & 8 remained uncontested / un-rebutted.

11.5 Further more, defendants no. 10 to 19 are proforma defendants against whom no relief is claimed by the applicant bank.

11.6 On the other hand, the witness of applicant bank has fully corroborated the averments made in the OA. Even otherwise the whole case of the applicant bank is based on the documents and the witness has duly proved all these documents. The evidence filed by the applicant bank gone unrebuted and there is no question of disbelieving the evidence lead by the applicant bank and applicant has proved its case beyond reasonable doubts. Accordingly, the Applicant bank is entitled to recover the entire amount, as claimed in the OA from the defendants no. 5 to 8 along with pendentelite and future interest @11% p.a. and cost of this OA.

**However, it is made clear that the liability of defendant no. 6 herein shall be restricted to the extent of current market value of the property secured / mortgaged with applicant bank viz. Plot No. C-56/41, Sector-62, Noida-201 301 in the State of Uttar Pradesh or Rs. 11,60,39,140/- (as per the valuation report dated 28.04.2016) along with interest and costs of this OA.**

11.7 In this OA, applicant bank has prayed to issue recovery certificate against defendants no. 1 to 8 wherein the defendant 2 to 4 are personal guarantor whereas defendants no. 6 to 8 are corporate guarantors.

11.8 So far as, defendants no. 9 / principal borrower and defendants no. 10 to 19 are concerned, no relief has been claimed by applicant bank qua these defendants since defendant no. 9 / principal borrower is already before Ld. NCLT, Delhi and other defendants no. 10 to 19 are proforma defendants.

11.9 It is pertinent to note here that in the OA itself, it is informed by the applicant bank that CIRP proceedings are pending qua defendant no. 9 / principal borrower before Ld. NCLT, Delhi, hence, no relief is sought by the applicant bank qua defendant no. 9.

Moreover, during the pendency of this OA, it was informed by the Applicant Bank that personal insolvency proceedings have also been commenced qua defendant 1 also before Ld. NCLT, New Delhi.

In the light of above, no order can be passed against defendants no. 1 & 9, at this stage till the relevant order(s) of Ld. NCLT are withdrawn / quashed. However, applicant bank shall be at liberty to revive the OA qua defendants no. 1 & 9 in case NCLT proceedings are quashed / withdrawn in future, in accordance with law.

It is also directed that in case Applicant Bank receives any amount from the CIRP and/or personal insolvency proceedings pending before Ld. NCLT, Delhi it shall give due adjustment of the same in the recovery proceedings.

11.10 It is also matter of record that the names of defendants no. 2 to 4 have already been dropped from the array of parties vide order dated 24.10.2024 passed in IA No. 460/2024 by this Tribunal.

11.11 Consequently, TA No. 274/2022 is liable to be allowed in favour of applicant bank against defendants no.

5 to 8 only (being corporate guarantors and/or mortgagors), who are liable to pay the dues of the applicant bank along with costs and pendentelite & future interest @11% p.a. from the date of filing of present OA, till the date of payment in full.

However, liability of defendant no. 6 is restricted to the extent of current market value of the property secured / mortgaged with applicant bank viz. *Plot No. C-56/41, Sector-62, Noida-201 301 in the State of Uttar Pradesh or Rs.11,60,39,140/-* (as per the valuation report dated 28.04.2016) along with interest and costs of this OA.

ORDER

- (i) TA No. 274/2022 stands allowed in favour of applicant bank and the defendants no. 5 to 8 for a sum of Rs. 2371,39,48,866.06 (Rupees Two Thousand Seventy One Crore Thirty Nine Lakh Forty Eight Thousand Eight Hundred Sixty Six and Paise Six only) in following manner :-

- (a) Rs. 2371,39,48,866.06 from defendant no. 5 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015;

- (b) Rs. 11,60,39,140/- (as per the valuation report dated 28.04.2016) or to the extent of current market value of the property secured i.e. NOIDA property) against Defendant no. 6 as sum due and payable to the Applicant on 31.12.2019 under the Deed of Corporate Guarantee dated 21.03.2013 & 23.03.2013;

(c) Rs. 2371,39,48,866.06 from defendant no. 7 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015; (d) Rs. 2371,39,48,866.06 from defendant no. 8 due and payable as on 31.12.2019 under the Deed of Corporate Guarantee dated 31.03.2015; along with pendentelite and future interest @11% p.a. from the date of filing of this OA till realization of the entire dues of the Applicant Bank. Now Defendants no. 5 to 8 are directed to pay the aforesaid amount(s) to the Applicant Bank within 30-days, failing which, the aforesaid amount(s) shall be recovered from the sale of secured assets / mortgaged properties / hypothecated assets / stocks etc. belonging to defendants no. 5 to 8.

**It is made clear that the liability of defendant no. 6 shall be restricted to the extent of current market value of the property secured / mortgaged with applicant bank viz. *Plot No. C-56/41, Sector-62, Noida-201 301 in the State of Uttar Pradesh or Rs. 11,60,39,140/-* (as per the valuation report dated 28.04.2016) along with interest and costs of this OA.**

In case of shortfall, same shall be recovered from the movable and immovable assets of defendants no. 5, 7 & 8 only.

- (ii) So far as, defendants no. 1 & 9 are concerned, since personal insolvency proceedings and CIRP proceedings have been commenced qua defendants no. 1 & 9 before Ld. NCLT, New Delhi, no order can be passed against defendants no. 1 & 9, at this stage till the relevant order(s) of Ld. NCLT are withdrawn / quashed.

However, applicant shall be at liberty to revive the OA qua defendants no. 1 & 9 in case NCLT proceedings are quashed / withdrawn in future, in accordance with law.

It is also directed that in case Applicant Bank receives any amount from the CIRP and/or personal insolvency proceedings pending before Ld. NCLT, Delhi it shall give due adjustment of the same in the recovery proceedings.

- (iii) It is also directed that the applicant bank shall adjust the amount(s), if any, received from the defendants during the pendency of this case.

- (iv) It is also directed that the sale proceeds of the secured assets shall be distributed between the consortium members, as per inter-se agreements executed amongst them.

TA-274/2022

- (v) The recovery certificate be issued forthwith and be sent to the Recovery Officer-I, Debts Recovery Tribunal-III, Delhi.

- (vi) Parties are directed to appear before the Recovery Officer-I, DRT-III, Delhi on 20.04.2026.

- (vii) Copies of final order as well as Recovery Certificate be sent to all concerned free of cost.

File be closed and consigned to records.

(SHIV KUMAR - I) PRESIDING OFFICER, DRT-III, DELHI

(Pronounced in open court) Dated: 18.02.2026