INDIA INFRASTRUCTURE FINANCE COMPANY LTD vs M/S ESSEL GWALIOR SHIVPURI TOLL ROADS PRIVATE LIMITED on 19 June 2026

FINAL ORDER

1. This original application has been filed by the Applicant on 03.08.2021, through Sh. Ravi Chouhan, Assistant 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 & 2 for recovery of a sum of Rs. 198,46,73,909.26 (Rupees One Hundred Ninety Eight Crore Forty Six Lakh Seventy Three Thousand Nine Hundred Nine and Paise Twenty Six only) due as on 29.07.2021 along with future interest @12.75% p.a. with monthly rests against the Senior Debt and @14.75% p.a. with monthly rests against the Subordinate Debt Account apart from penal interest @1.00% p.a. against the Senior Debt and @2.00% against the Subordinate Debt over and above the above rate, from 01.07.2021 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. 510/2021 was originally filed before Ld. DRT-I, 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-I, Delhi to this Tribunal in October 2022 and was numbered at TA-152/2022.

2. The brief facts of the case are that the Applicant i.e. India Infrastructure Finance Company Limited (IIFCL) is a Company registered and constituted under the Companies Act, 1956. It is further stated that the Applicant is filing the present OA through Sh. Ravi Chouhan, Assistant Manager of the Applicant 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 Letter of Authority dated 12.04.2021 executed in his favour by the Applicant.

2.1 It is stated in the OA that the Defendant no. 1 is a Company incorporated under the Companies Act, 1956 which was set up for the project (described hereafter). The Defendant no. 2 is the Corporate Guarantor to the credit facilities availed by the Defendant no. 1 from Lenders apart from the Sponsor of the Borrower. The Defendants no. 3 to 10 and the Applicant are the Senior Lenders who have sanctioned the Senior Debt to the Defendant no. 1 and the Applicant, being the Subordinated Lender also, allowed Subordinate Debt to the Defendant no. 1 for part financing of the project. The Defendant no. 11 is the Security Trustee, who held the securities for and on behalf of the Applicant and Defendants no. 3 to 10.

2.2 It is stated in the OA that the National Highway Authority of India (NHAI) has granted to the Defendant no. 1 a concession for the purpose of constructing a (four) laning of the Gwalior Shivpuri Section of National Highway No. 3 from Km 15,600 to Km 236,000 (approx. 125,300 Km) in the State of Madhya Pradesh and operation and maintenance thereof, on design, build, finance, operate and transfer (DBFOT) (the Project) (hereinafter referred to as "the Project") on the terms and conditions and covenants contained in the Concessions Agreement dated 09.01.2012 entered into between the NHAI and the Defendant no. 1.

The Project cost of the proposed Project was estimated at Rs. 1601.77 Crore proposed to be financed by Senior Debt of Rs. 1090.00 Crore, Subordinate Debt of Rs. 105.00 Crore and remaining Rs. 406.77 Crore was to be brought in as Sponsor's contribution.

2.3 It is stated in the OA that the Defendant no. 1 for part financing the Project, approached Defendants no. 3 & 4 (earlier Yes Bank Ltd.) who sanctioned the Rupee Term Loan Facility in aggregate to Rs. 1090.00 Crore along with sub-limit for an aggregate amount of Rs. 52.75 Crore in the form of Bank Guarantee. Further, Defendant no. 3 was designated as Lender's Agent in respect of the Project. It is also stated that in order to secured the said Senior Debt, the Borrower submitted Resolution dated 12.12.2012. Further, Defendant no. 1 on the basis of Certificate also submitted that there is no litigation pending against it and no action initiated by any Bank / FI. Apart from the above, Defendant no. 2 also submitted Resolution dated 12.12.2012 to the Lenders for furnishing its corporate guarantee and to pledge their shareholding and furnish Promoters Undertaking.

In consideration of having allowed the Senior Debt of Rs. 1090.00 crore, the Defendant no. 1 executed the following documents:-

- (i) Common Loan Agreement dated 13.12.2012;

- (ii) Lenders' Agent Agreement dated 13.12.2012 thereby appointing the Defendant no. 3 as the Lenders Agent;

- (iii) Security Trustee Agreement dated 13.12.2012 thereby appointing the Defendant no. 11 as Security Trustee for the Project;

- (iv) Supplementary Escrow Agreement dated 13.12.2012 thereby appointing the Defendant no. 3 as the Escrow Bank;

- (v) Undertaking dated 13.12.2012;

- (vi) Indenture of Mortgage dated 24.12.2012 thereby creating charge over the assets detailed therein i.e.

- (a) mortgage over Plot No. 49, measuring 267 sq. mtrs. Gat No. 1023, 1025, 1117 Landmarc Meeadows IIA, Village-Kudali, Taluka Roaha, Distt. Raigad and

- (b) charge over the movable plant and machinery etc. and other movables of Defendant no. 1 wherever installed, located, created or provided [details given in Para 5(5.6)(vi) of the OA].

Apart from the above, the Defendant no. 2 also executed the following documents:-

- (i) Share Pledge Agreement dated 13.12.2012;

- (ii) Share Pledge Power of Attorney dated 13.12.2012;

- (iii) Sponsor Support Agreement dated 13.12.2012;

- (iv) Corporate Guarantee dated 27.06.2013.

It is stated in the OA that in all the above documents, the Defendants no. 1 & 2 and Lenders have agreed that the Delhi Courts including the DRT at New Delhi shall have the jurisdiction.

In addition to above, the Lenders at the time i.e. Defendants no. 3 & 4 as well as Defendant no. 11 being security trustee also entered into an Inter-Creditor Agreement dated 24.04.2013.

It is also stated that vide its Letter dated 08.01.2013, the Defendant no. 11 confirmed that the Project was duly secured by various securities [details given in Para 5(5.7) (i) to (vi) of the OA]. The Defendant no. 11 further confirmed that the above securities were created by the Defendant no. 1 in its favour for and on behalf of the then Lenders i.e. Defendants no. 3 & 4.

It is stated in the OA that the Defendant no. 1 in terms of Common Loan Agreement submitted two Certifications, seven Confirmations all dated 11.01.2013 to the Defendant no. 3 being the Lenders' Agent / Representatives. Apart from the same, the Defendant no. 2 also submitted confirmation dated 11.01.2013 in terms of the Common Loan Agreement dated 11.01.2013.

Moreover, the Defendant no. 11 also submitted a Letter dated 22.04.2013 to the Defendants no. 3 & 4 to the effect that the additional shares were pledged by Defendant no. 2.

2.4 It is stated in the OA that NHAI suggested some modifications / suggestions to the aforesaid existing documents and accordingly, the following First Amendment documents were executed:-

- (i) First Amendment Agreement dated 26.04.2013 to the Common Loan Agreement dated 13.12.2012;

- (ii) First Amendment Agreement to the Security Trustee Agreement dated 26.04.2013 to the Common Loan Agreement dated 13.12.2012.

Further, the First Supplemental Agreement dated 10.05.2013 to the Indenture of Mortgage dated 24.12.2012 was executed by the Defendant no. 1 in favour of Defendant no. 11 (being the Security Trustee) in respect of the Layout Plot bearing no. 49, admeasuring 267 sq. mtrs., out of sanctioned Layout for Gat No. 1023, 1025 and 1117 in the Residential Project known as "LandmarcMeadows IIA" lying, being and the situated at Village Kundali, Taluka – Roha, District Raiarh.

It is stated in the OA that the Concession Agreement required the Concessionaire i.e. the Defendant no. 1 to establish an Escrow Account and, accordingly, the Defendant no. 1 and the Defendant no. 3 & 4 decided to appoint the Defendant no. 3 as Escrow Bank and accordingly, an Escrow Agreement dated 23.05.2013 was entered into between the Defendant no. 1, as the Concessionaire; Defendant no. 3 being the Lenders Representative; the Defendant no. 3 being the Escrow Bank and the NHAI, for establishment of the Escrow Account with Defendant no. 3. Not only this, a Substitution Agreement dated 23.05.2013 was also entered into between NHAI, Defendant no. 1 and the Lenders Agent / Representative.

It is also stated that upon the letters of the Defendant no. 1 Company dated 14.05.2013 and 16.05.2013, the NHAI issued Letter dated 22.05.2013 by virtue of which the NHAI waived off the damage on the concessionaire on account of delay under clause No. 4.3 of the Concession Agreement on mutual basis and the Defendant no. 1 confirmed not to claim damage from NHAI under Clause 4.2 and Clause No. 10.3.4 of the Concession Agreement and accordingly informed the Defendant no. 1 the Appointed Date for the Project shall be 16.05.2013 and Financial close shall be 08.03.2013.

It is stated in the OA that post execution and registration of the Supplemental Agreement dated 10.05.2013 by Defendant no. 1, the Defendant no. 11 required the Supplementary Agreement to be re-executed due to certain errors in the same and accordingly a Deed of Cancellation dated 24.05.2013 was executed by the Defendant no. 1 in favour of Defendant no. 11 which was duly registered as document No. 1731/2013 in the office of Sub-Registrar – II, Roha on 10.05.2013.

Accordingly, a fresh Supplementary Agreement dated 24.05.2013 to the Indenture of Mortgage dated 24.12.2012 was executed by Defendant no. 1 in favour of Defendant no. 11 which was registered as document No. 1732/2013 on 24.05.2013 in the office of Sub-Registrar Roha.

It is further stated that the charge in respect of the above securities is filed with List of Documents on 24.05.2013 by the Defendant no. 1 in Form 8 with Registrar of Companies (ROC).

It is also stated in the OA that the Defendant no. 11, being the Security Trustee, issued Letter dated 18.06.2013 to Defendants no. 3 & 4 by virtue of which it has confirmed all the Security and Finance document are held by it.

2.5 It is stated in the OA that the Defendant no. 5 also sanctioned the Rupee Term Loan of Rs. 200.00 Crore and consequent thereto, the share of the Defendants no. 3 & 4 were reduced by way of novation and accordingly, documents relating to the Novation including Inter-creditor Agreement all dated 26.06.2013 were entered into between the Defendant no. 1, as Borrower; Defendants no. 3 & 4 as the Existing Lenders and the Defendant no. 5 as the new Lender. Thus, the shares of the Lenders i.e. Defendants no. 3 to 5 remained as under:- (Rs. in Crores)

<thead> <tr>

<th>Commitment</th> <th>BG Earmarked</th> </tr> </thead> <tbody> <tr>

<td>458.00</td> <td>52.75</td> </tr> <tr> <td>2.</td> <td>Defendant no. 4 (Yes Bank)</td> <td>432.00</td> <td>52.75</td> </tr> <tr>

<td>--</td> </tr> <tr> <td></td> <td></td> <td>1090.00</td> <td>52.75</td> </tr> </tbody> </table>

It is stated that apart from the above, the Defendant no. 2 had also executed Corporate Guarantee dated 02.06.2013.

The said documents were deposited by the Lenders with the Defendant no. 11 being the Security Trustee which was duly acknowledged by the Defendant no. 1 vide its Letter dated 28.06.2013.

2.6 It is stated in the OA that the Defendant no. 1 also approached the Applicant for sanction of the Senior Debt as well as Subordinate Debt. In pursuance to the said request of the Defendant no. 1, the Applicant sanctioned the Senior Debt of Rs. 55.00 Crore vide Sanction Letter dated 08.07.2013. It is further stated that the proposed limit allowed by the Applicant was duly secured by the Securities.

2.7 It is further stated in the OA that the Defendants no. 7 to 9 also sanctioned the Rupee Term Loan and BG Earmarked amount to the Borrower. Accordingly, the share of the Defendants no. 3 & 4 were reduced by way of novation and thus the documents relating to the Novation including Inter-Creditor Agreement all dated 14.08.2013, 17.10.2013 were entered into between Defendant no. 1 as Borrower, Defendants no. 3 & 4 as the Existing Lenders and the Defendants no. 6 to 9 as the new Lenders. Consequent thereupon, the shares of the Lenders i.e. Defendants no. 3 to 9 remained as under:-

<thead> <tr> <th colspan="4">(Rs. in Crores)</th> </tr> <tr>

<th>Commitment</th> <th>BG Earmarked</th> </tr> </thead> <tbody> <tr>

<td>282.00</td> <td>52.75</td> </tr> <tr> <td>2.</td> <td>Defendant no. 4 (Yes Bank)</td> <td>208.00</td> <td>--</td> </tr> <tr>

<td>--</td> </tr> <tr> <td>4.</td> <td>Defendant no. 6 (Central Bank of India)</td> <td>100.00</td> <td>--</td> </tr> <tr> <td>5.</td> <td>Defendant no. 7 (Union Bank of India)</td> <td>100.00</td> <td>--</td> </tr> <tr> <td>6.</td> <td>Defendant no. 8</td> <td>100.00</td> <td>--</td> </tr> </tbody> </table>

<table border="1"> <tr> <td></td> <td>(Canara Bank)</td> <td></td> <td></td> </tr> <tr> <td>7.</td> <td>Defendant no. 9<br/>(Punjab &amp; Sind<br/>Bank)</td> <td>100.00</td> <td>--</td> </tr> <tr> <td><b>Total</b></td> <td></td> <td><b>1090.00</b></td> <td><b>52.75</b></td> </tr> </table>

The said documents were deposited by the Lenders with the Defendant no. 11 being the Security Trustee which was duly acknowledged by the Defendant no. 1 vide its Letter(s) dated 04.09.2014 and 30.10.2014.

2.8 It is stated in the OA that as duly detailed hereinabove, the Applicant sanctioned the Senior Debt of Rs. 55.00 Crore and Sub Debt of Rs. 105.00 Crore and accordingly, the proportion and Senior Debt and Subordinate Debt remained as under:- (Rs. in Crores)

<thead> <tr>

<th>Senior Debt</th> <th>BG Earmarked</th> <th>Subordinate Debt</th> </tr> </thead> <tbody> <tr>

<td>258.00</td> <td>52.75</td> <td>--</td> </tr> <tr> <td>2.</td> <td>Defendant no. 4 (Yes Bank)</td> <td>177.00</td> <td>--</td> <td>--</td> </tr> <tr>

<td>--</td> <td>--</td> </tr> <tr> <td>4.</td> <td>Defendant no. 6 (Central Bank of India)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>5.</td> <td>Defendant no. 7 (Union Bank of India)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>6.</td> <td>Defendant no. 8 (Canara Bank)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>7.</td> <td>Defendant no. 9 (Punjab &amp; Sind Bank)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>8.</td> <td>Applicant</td> <td>55.00</td> <td>--</td> <td>105.00</td> </tr> </tbody> </table>

<tr> <td></td> <td>(India Infrastructure Finance Company Ltd.)</td> <td></td> <td></td> <td></td> </tr> <tr> <td></td> <td></td> <td>1090.00</td> <td>52.75</td> <td>105.00</td> </tr> </table>

It is stated in the OA that in consideration of having sanctioned the Senior Debt and Subordinate Debt by the Applicant to the Defendant no. 1, the following documents were executed amongst the parties:-

- (i) Deed of Assignment dated 03.02.2014 executed between the Defendant no. 1, Defendants no. 3 & 4 and the Applicant;

- (ii) Deed of Accession dated 03.02.2014 to the Lenders Agent Agreement amongst the Applicant, Defendant no. 1, being the Borrower and the Defendant no. 3, being the Lenders Agent;

- (iii) Deed of Accession dated 03.02.2014 to the Security Trustee Agreement executed amongst the Defendant no. 3 being Lenders Agent, Defendant no. 11, being the Security Trustee, Applicant being the new Lender and Defendant no. 1 as the Borrower;

- (iv) Novation Deed dated 03.02.2014 entered into between the Defendants no. 3 & 4, being the Existing Lenders; Defendant no. 3 being the Lenders' Agent, Applicant being the New Lender and the Defendant no. 1 being the Borrower;

- (v) Deed of Accession dated 03.02.2014 of the Inter-Creditor Agreement entered into between the Applicant as New Lender, Defendant no. 11, being the Security Trustee, Defendant no. 3 being the Lenders' Agent and Defendant no. 1 being the Borrower.

It is also stated that in consideration of having sanctioned the Subordinate Debt of Rs. 105.00 Crore by the Applicant to the Defendant no. 1, the Defendant no. 1 through its authorized signatory executed the Subordinate Rupee Facility Agreement dated 03.02.2014 which was also signed by the Defendant no. 3, being the Lenders Agent for Subordinate Debt, Defendant no. 11 being the Security Trustee for Subordinate Debt and the Applicant as the Subordinate Lender.

By virtue of the said Agreement, the Defendant no. 1 agreed to repay the said Subordinate Debt in Door to Door tenure of 14.5 years with 2.5 years of construction period, a moratorium period of 10-years and a repayment of 4.50 years. The said amount shall be paid in 18-quarterly instalments of Rs. 5,83,00,000/- commencing from the third fiscal quarter of Financial Year 2023-24 (i.e. December 31, 2023) and ending in the fourth fiscal quarter of Financial Year 2027-28 (i.e. March, 2028). Further, the Defendant no. 1 shall be liable to pay interest @14.50% on the said Sub Debt.

It is also stated that the Subordinate Debt Facility was to be secured on second pari passu charge basis to the various securities created in favour of the Senior Lenders [details of securities given in Para 5(5.27) (i) to (v) of the OA].

Not only this, the Defendant no. 2 also executed Deed of Confirmation (Sponsor Support Agreement) dated 03.02.2014 and Deed of Confirmation (Corporate Guarantee) dated 03.02.2014 for securing the Subordinate Debt Facility.

It is also stated in the OA that originals of all the said documents and Deed(s) of Confirmation dated 03.02.2014 were deposited with the Defendant no. 11 being the Security Trustee which was duly acknowledged by the Defendant no. 1 vide its letter dated 09.12.2019.

Further, the charge in respect of Senior Debt of Rs. 1090.00 Crore wherein the share of the Applicant was Rs. 55.00 Crore was duly modified by ROC in accordance with provisions contained in that behalf in Section 135 of the Act and a certificate dated 28.02.2014 was also issued by ROC.

2.9 It is stated in the OA that the Defendant no. 10 also sanctioned the Rupee Term Loan of Rs. 100.00 Crore, accordingly, the share of the Defendants no. 3 & 4 were reduced by way of novation and in order to record the same documents relating to the Novation including Inter-Creditor Agreement were executed on 07.03.2014 were entered into between Defendant no. 1, as Borrower, Defendants no. 3 & 4 as Existing Lenders and the Defendant no. 10 as the new Lender. Accordingly, the share of the Lenders i.e. Defendants no. 3 to 10 and the Applicant remained as under:- (Rs. in Crores)

<thead> <tr>

<th>Senior Debt</th> <th>BG Earmarked</th> <th>Subordinate Debt</th> </tr> </thead> <tbody> <tr>

<td>214.00</td> <td>52.75</td> <td>--</td> </tr> <tr> <td>2.</td> <td>Defendant no.</td> <td>121.00</td> <td>--</td> <td>--</td> </tr> </tbody> </table>

<table border="1"> <tr> <td></td> <td>4 (Yes Bank)</td> <td></td> <td></td> <td></td> </tr> <tr>

<td>--</td> <td>--</td> </tr> <tr> <td>4.</td> <td>Defendant no. 6 (Central Bank of India)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>5.</td> <td>Defendant no. 7 (Union Bank of India)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>6.</td> <td>Defendant no. 8 (Canara Bank)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>7.</td> <td>Defendant no. 9 (Punjab &amp; Sind Bank)</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td>8.</td> <td>Applicant (India Infrastructure Finance Company Ltd.)</td> <td>55.00</td> <td>--</td> <td>105.00</td> </tr> <tr> <td>9.</td> <td>Defendant no. 10</td> <td>100.00</td> <td>--</td> <td>--</td> </tr> <tr> <td></td> <td></td> <td>1090.00</td> <td>52.75</td> <td>105.00</td> </tr> </table>

It is stated in the OA that the Defendants no. 5 to 10 sanctioned the Senior Debt upon novating / down-selling the share by the Defendants no. 3 to 5 from time to time and the securities to secure the said Senior Debt was common for all the Lenders on first pari passu charge basis, therefore, in order to record the same, the amendatory documents were required to be executed. Therefore, they agreed to execute the following documents:-

- (i) Second Amendment Agreement dated 07.03.2014 to the Common Loan Agreement dated 13.12.2012 executed between Defendant no. 1 as Borrower, Defendant no. 11 as Security Trustee, Defendant no. 3 as Lenders' Agent and Applicant and Defendants no. 3 to 10 as the Senior Lenders.

By virtue of the said Agreement, it was agreed that the said Senior Debt of Rs. 1090.00 crore (wherein the share of the Applicant is Rs. 55.00 Crore) was agreed to be repaid by the Defendant no. 1 in Door to Door tenure of 15 years with 910 days of construction and moratorium of 18-months and Rupee Loan shall be repaid in 44-quarterly instalments commencing from 31.05.2017. Further, the Defendant no. 1 also agreed to pay interest on the said Senior Debt to the Applicant @12.50% p.a. with monthly rests. However, in case of default, the Defendant no. 1 shall be liable to pay penal interest.

- (ii) Second Amendment Agreement to the Security Trustee Agreement dated 07.03.2014 entered into between the Defendant no. 1, being the Borrower, Defendant no. 2 as Lenders' agent, Defendant no. 11 being the Security Trustee, the Applicant and Defendants no. 3 to 10 as the Senior Lender and Applicant as the Subordinated Lender;

- (iii) First Amendment Agreement to the Lenders' Agent Agreement dated 07.03.2014 executed by the Defendant no. 1, being the Borrower, Defendant no. 3 as Lenders' agent, the Applicant and Defendants no. 3 to 10 as the Senior Lender and Applicant as the Subordinated Lender;

- (iv) First Amendment Agreement dated 07.03.2014 to the Supplementary Escrow Agreement dated 13.12.2012 entered into between the Defendant no. 1, Defendant no. 3 as Lenders' agent and Defendant no. 11 being the Security Trustee and the Defendant no. 3 as the Escrow Bank.

Apart from the above, the Defendant no. 2 being the Guarantor to the credit facilities availed by the Borrower as well as Promoter of the Defendant no. 1 also executed the following documents:-

- (i) Corporate Guarantee dated 07.03.2014 in favour of Defendant no. 11, being the Security Trustee for and on behalf of the Senior Lenders and Subordinated Lender i.e. the Applicant and Defendants no. 3 to 10 as Senior Lenders and the Applicant as Subordinated Lender. [details given in Para 5(5.33) (i) of the OA].

- (ii) First Amendment Agreement to the Sponsor Support Agreement dated 07.03.2014 entered into between the Defendants no. 1 & 2, the Defendant no. 3 as Lenders' Agent and Defendant no. 11 as the Security Trustee.

It is also stated in the OA that the First Amendment Agreement dated 07.03.2014 to the Inter-Creditor Agreement dated 26.12.2012 was entered into between Defendant no. 11, as Security Trustee, Defendant no. 3 being the Lenders' Agent, the Defendants no. 3 to 10 and Applicant as Senior Lenders and the Applicant as Subordinated Lenders. Apart from the above, the Defendant no. 1 also executed the Confirmation dated 07.03.2014 to the Inter Creditor Agreement dated 26.04.2013 and Deeds of Accession executed thereto from time to time.

2.10 It is stated in the OA that since the Defendant no. 1 failed to achieve the Scheduled Project Completion Date, which was agreed by it as per the Common Loan Agreement dated 13.12.2012 (which was 910 days from the Appointed Date as per the Concession Agreement), pursuant thereto the cost of the Project was increased from Rs. 1601.77 Crore to Rs.1705.54 Crore. Thus, the repayment schedule was also impacted. Therefore, the Defendant no. 1 approached the Senior Lenders as well as Subordinate Lender for extension for Repayment Schedule as well as the Scheduled Project Commercial Date.

2.11 It is further stated in the OA that in pursuance to the request of the Defendant no. 1, the Senior Lenders including the Applicant agreed to extend the Scheduled Project Commercial Date to 15.10.2017 and also extended the repayment schedule from 2016-17 to 31.03.2019.

In order to record the above said amendments, the Third Amendment Agreement to Common Loan Agreement dated 13.12.2012 was entered on 11.10.2017 into between the Defendant no.1, Applicant as well as Defendants no. 3 to 10 as Lenders, Defendant no. 3 as Lenders' Agent and Defendant no. 11 as Security Trustee.

Similarly, in pursuance to the request of the Defendant no. 1, the Subordinate Lender i.e. Applicant agreed to extend the Scheduled Project Commercial Date to 15.10.2017.

In order to record the above said amendment, the Amendment Agreement to Subordinate Rupee Facility Agreement dated 03.02.2014 was entered on 11.10.2017 into between the Defendant no.1, Applicant, as Subordinate Lender, Defendant no. 3 as Lenders' Agent and Defendant no. 11 as Security Trustee.

2.12 It is stated in the OA that since there was delay in achieving the Scheduled Project Completion Date (SPCD) of the Project, therefore, the Defendant no. 1 approached the Senior Lenders for extension of the SPCD and accordingly, the Scheduled Project Completion Date was shifted from 15.10.2017 to 15.07.2018 and the availability period was also extended six months from the SPCD and in order to record the said amendment, the Arrangement Agreement dated 12.07.2018 was entered into between the parties. However, the Applicant as well as the Defendant no. 11 was not party to the same.

2.13 It is further stated in the OA that the Defendant no. 1 being the owner of the property mentioned above created mortgage thereon as security for the Senior Debt and Subordinated Debt availed by the Defendant no. 1 from the Applicant as well as Defendants no. 3 to 10 as Senior Lenders and the Applicant, as Subordinated Lender. The details of mortgage have been given in Para 5(5.41) of the OA. It is also stated that the original title deeds in respect of the mortgaged property are lying with Defendant no. 11.

2.14 It is stated in the OA that even despite extension of COD from time to time, the Defendant no. 1 could not achieve the COD and has also not serviced the interest in the account, hence, the entire amount became outstanding against the credit facilities.

Since, despite repeated follow up and financial assistances, the Defendant no. 1 could not achieve the COD and failed to maintain the financial discipline, therefore, the account of the Defendant were declared as Non-Performing Asset with the Applicant on 31.12.2018 in accordance with the guidelines of the Reserve Bank of India.

It is also stated in the OA that the Defendant no. 11 being the Security Trustee acting for and on behalf of the Lenders vide its Letter dated 09.12.2019 confirmed that the original documents are in its custody since 14.08.2013 upto 12.07.2018.

2.15 It is further stated in the OA that the Defendant no. 1 availed, used and utilized the Senior Debt as well as Subordinate Debt from the Applicant as stated in the OA and more particularly shown in the Statement of Accounts filed with the OA duly certified in accordance with the Bankers' Book Evidence Act, 1891.

It is stated that the Defendant no. 1 did not adhere to the financial discipline and violated the terms and conditions of the security documents and the said Account became irregular and overdue. The Applicant requested the Defendant no. 1 many times through letters as well as meetings with them and the Defendant no. 1 though assuring to pay the dues of the Applicant but till date failed and neglected to pay the dues of the Applicant outstanding in the said Account. Since, the Defendants no. 1 & 2 were not coming forward to make payment of the amount due and outstanding, the Applicant through its Counsel issued to the Defendants no. 1 & 2 with a Recall Notice dated 17.03.2020 thereby calling upon the Defendants no. 1 and 2 to pay the entire outstanding amount, however, Defendants no. 1 & 2 failed to pay the amount.

2.16 It is stated in the OA that no relief is being claimed against the Defendants no. 3 to 11 as the Defendants no. 3 to 10 are the Senior Lenders who have allowed the Senior Debt to the Defendant no. 1 along with the Applicant and Defendant no. 11 is the Security Trustee for the Applicant as well as Defendants no. 3 to 10 who hold the security for and on their behalf.

Further, w.e.f. 01.04.2019, Dena Bank has been merged into and become part of Bank of Baroda vide Gazette of India Notification No. GSR No. 2E dated 02.01.2019 issued by Ministry of Finance, Government of India. Thus, Dena Bank merged and became part of Bank of Baroda and similarly Senior Debt / Rupee Loan granted by the Dena Bank to the Defendant shall become the Facilities of Bank of Baroda. Therefore, in place of Dena Bank, the Bank of Baroda has been arrayed as Defendant.

Apart from the above, the Yes Bank, being one of the Senior Lenders to the Senior Debt granted by it to the Borrower assigned / sold its share to BRIGGS Trading Company Private Limited, a body corporate under the Companies Act, 1956 vide Deed of Assignment dated 28.09.2017 entered into between Yes Bank and said BRIGGS Trading Company Pvt. Ltd. on the basis of which, the BRIGGS Trading Company has entered into the shoes 

of the Yes Bank and thus, in place of Yes Bank, the BRIGGS Trading Company has been arrayed as Defendant in the present OA.

2.17 It is also pertinent to mention here that due to the default by the Defendant no. 1, the Authority terminated the Concession Agreement vide Termination Notice dated 01.01.2020. It is stated that in terms of the Concession Agreement, the first tranche of termination payment in all was paid and deposited into the Escrow Account, out of which the Applicant received Termination payment of Rs. 24.56 Crore [Rs. 23.94 crore on 04.09.2020 and Rs. 0.62 Crore on 11.09.2020] and the said entire amount of Rs. 24.56 Crore was received in Senior Debt and which has been appropriated by the Applicant towards the outstanding Senior Debt.

Similarly, in terms of Concession Agreement, the second / final tranche of termination payment in all was paid and deposited into the Escrow Account, out of which the Applicant received Termination payment of Rs. 16,71,00,000/- on 16.07.2021 and the said amount was received in Senior Debt and which has been appropriated by the Applicant towards the outstanding Senior Debt.

2.18 It is stated in the OA that the Applicant maintains its books of accounts in its usual and ordinary course of banking business. It is further stated that as per books of accounts, Defendants no. 1 & 2 are liable to pay a sum of Rs. 57,71,77,427.15 against the Senior Debt, however, as detailed in Para 5.52 of OA, the Applicant has already received an amount of Rs. 41,27,00,000/- towards Termination Payment and upon realization of the said amount, the Defendants no. 1 & 2 are liable to pay a sum of Rs. 16,44,77,477.15 against the Senior Debt. Moreover, Defendants no. 1 & 2 are also liable to pay a sum of Rs. 182,01,96,482.11 against the Subordinate Debt. Thus, in this way, the Defendants no. 1 & 2 are jointly and severally liable to pay in all a sum of Rs. 198,46,73,909.26 due as on 30.06.2021 along with interest etc. [details given in Para 5(5.54) (i) to (iii) of the OA].

It is also stated that the certified copy of Statement of Account and the Memorandum of Interest pertaining to the Senior Debt and Subordinate Debt are filed with this OA which are duly certified in terms of the Bankers Books Evidence Act, 1881 and a Certificate under Section 2-A of the Bankers Books Evidence Act is also filed with the OA.

2.19 It is stated in the OA that the Defendants no. 1 & 2 failed to adhere to maintain financial discipline, thus, the Applicant Bank has been compelled to file this Application before this Tribunal.

3. Notices of this O.A. were issued to the Defendants, and Defendants no. 1 & 2 appeared through their counsel but they did not file the WS within stipulated period in pursuance to Section 19(5)(i) of RDB Act. Thus, the right of Defendants no. 1 & 2 to file the WS was closed vide Order dated 23.08.2023 of this Tribunal.

Thereafter, Defendants no. 1 & 2 filed an Appeal before Hon'ble DRAT and vide Order dated 29.01.2024 passed by Hon'ble DRAT, this Tribunal was directed to take on record the WS filed on behalf of Defendants no. 1 & 2.

In the light of above order passed by Hon'ble DRAT, the WS filed by the Defendants no. 1 & 2 on 22.02.2024 was taken on record.

3.1 So far as, rest of the Defendants i.e. Defendants no. 3 to 11 are concerned, they neither appeared nor filed any WS before this Tribunal.

It is matter of record that the Defendants no. 3 to 11 are the Proforma Defendants against whom no relief has been claimed by Applicant Bank.

4. In the common WS of Defendants no. 1 & 2 have stated that the Defendant no. 1 is a Private Limited Company duly incorporated on 13.10.2011 and is duly registered with Registrar of Companies Delhi. It is also stated that the present WS has been signed and verified by Mr. Imran Khan who is duly authorized by the Board of Directors of Defendant no. 1. So far as, Defendant no. 2 is concerned, it is also a Public Limited Company duly incorporated on 07.07.1987 and is duly registered with Registrar of Companies, Mumbai. On behalf of Defendant no. 2, the present WS has been signed and verified by Mr. Tribuwan Kumar Singh who is duly authorized by the Board of Directors of Defendant no. 2.

It is stated in the WS that the answering Defendant no. 1 is alleged to be the borrower and answering Defendant no. 2 is alleged to be the Corporate Guarantor for the credit facilities allegedly sanctioned and granted by Applicant FI to the Defendant no. 1. It is further stated that the answering Defendants have given detailed representation about the several hindrances and delays present on Project Highway such as delays in land acquisition, Forest clearances, in disbursement of compensation, in shifting of religious structures, in shifting of utilities, which caused substantial delays in achieving Project milestones. It is stated that all such delays were not attributable to the answering Defendants and therefore entitle the answering defendants extension of time (EOT) under the provisions of CA. Thus, the answering Defendants asked for EOT to NHAI by giving detailed delay matrix detailing impacts of all such delays on project construction activities and in achievement of Project Milestones. But the Authority has not given EOT despite knowing full well about the hindrances and actual condition of the site. Since the delay in achievement of COD is not attributed to the answering Defendants, it can't be asked to pay compensation for loss of premium on account of delay in schedule completion. It is stated in the WS that the Provisional Completion Certificate was issued on 01.01.2019 and the answering Defendants have been collecting toll on the project highway after PCOD. However, the actual traffic on the Project Highway is significantly less than that projected in the approved Financial Model, hence, the it has made revenue collection unsustainable, which cannot meet operation & maintenance expenses, payment of additional Concession fee and payment to Lenders. The answering Defendants commissioned traffic due diligence study through independent agency to ascertain the correctness of traffic volume versus revenue forecasted in Financial Package. This study clearly show the wide gap between the projected revenues in the Financial Package and the estimate based on the present traffic. Therefore, the answering Defendants had 

given its request to exit from Project vide letter dated 31.01.2019 itself. Due to the above reasons, the answering Defendants had to issue the Suspension Notice dated 04.11.2019 and Termination Notice dated 13.11.2019 to NHAI for payment. It is further stated that answering Defendants have in the second trench of Termination Payment / OTS amount of Rs. 321.64 crore from NHAI was received on 30.06.2021 and based on the consortium meeting, the same has been released to the member banks who have complied with the requirement of the lead bank. It is also stated that the answering Defendants have even tried to settle the matter with the Applicant FI and issued many Settlement proposals including OTS proposal dated 10.07.2021 which were never replied by the Applicant FI. It is stated that the Applicant FIs never cooperated with the answering Defendants nor accepted the proposed OTS offer or any settlement. It is also stated that the Applicant FIs did not cooperate in sharing statement of accounts even for the purpose of conducting audit by the auditors, which is a statutory duty. Various emails (which includes email dated 15.06.2023) were also written by the Auditor of answering Defendant no. 1 to the Lead Bank seeking statement for balance confirmation but the Lead Bank never bothered to revert or comply by the same. It is stated that Applicant FI has misled the Hon'ble Tribunal by not disclosing all the facts and documents.

In their WS, the Defendants no. 1 & 2 have raised following main objections :-

- (i) Defendants have raised an objection that the present OA is liable to be dismissed on the ground that the Applicant FI has failed to place on record all the documents including complete documents on which Applicant FI relied upon, holding itself guilty of concealment of material facts from this Tribunal;

(ii) Next objection raised by the Defendants no. 1 & 2 is that the present OA is not maintainable in view of the mis-joinder and non-joinder of necessary parties. It is stated that the Applicant has failed to implead NHAI in the present OA, hence, this OA is liable to be dismissed with costs.

(iii) Defendants no. 1 & 2 have also taken a plea that Defendant no. 1 never submitted any request letters for sanction of the loan facilities.

(iv) Next objection of Defendants no. 1 & 2 is that the alleged corporate guarantee allegedly executed by the answering Defendant no. 2 is not binding on it as the Applicant FI has failed to produce any valid Board Resolution in favour of Signatory of alleged Corporate Guarantee and in the absence of valid authorization the alleged corporate guarantee cannot be held binding upon the answering Defendant no. 2.

(v) Defendants no. 1 & 2 have also taken a plea that perusal of Annexures which are placed on record by Applicant FI before this Tribunal reveals that all the above documents are alleged to have been executed at Mumbai, Maharashtra whereas the Stamp Duty affixed thereon have been purchased from Govt. of NCT of Delhi and insufficient stamp duties have been paid as per the local laws of Delhi and Maharashtra.

- (vi) Defendants no. 1 & 2 have also raised an objection that this OA is hopelessly barred by limitation.

- (vii) Defendants no. 1 & 2 have also taken a plea that the alleged documents purported to have been signed and executed by the answering Defendants and relied upon by the Applicant are false and interpolated documents, hence, same cannot be permitted to be relied upon for any purpose whatsoever and least of all for the purposes of fastening any alleged claims or liabilities on the answering Defendants.

- (viii) Defendants no. 1 & 2 have also taken a plea that the Applicant FI has varied the rate of interest and by virtue of such action, levied exorbitant rates against the terms of the documents.

- (ix) Next objection raised by Defendants no. 1 & 2 is that the present OA has not been signed, verified and filed by a duly authorized or competent personal.

- (x) Defendants no. 1 & 2 have also taken a plea that the Applicant FI has wrongly invoked the jurisdiction of this Tribunal.

- (xi) Defendants no. 1 & 2 have further raised an objection that they did not execute any security documents including guarantee deed etc.

In the light of above, it has been prayed to dismiss the present OA of the Applicant Bank and to award heavy and exemplary costs in favour of the answering Defendants.

4. Replication to the WS of Defendants no. 1 & 2 has also been filed by the Applicant FI denying the allegations levelled against it and reiterating the averments made in the OA.

5. To prove its case, the Applicant FI leads its evidence by filing the affidavit of Sh. Ravi Chouhan, Assistant Manager of the Applicant FI.

5.1 Sh. Ravi Chouhan, Officer of Applicant FI has placed reliance upon the documents filed by the Applicant FI which includes:-

- (i) Letter of Authority dated 12.04.2021 executed by the Applicant in favour of the deponent (Ex. AW-1/1);

- (ii) Resolution dated 12.12.2012 of the Borrower as well as Resolution dated 12.12.2012 of Defendant no. 2 submitted to the Lenders [Ex. AW-1/2(i) to AW-1/2(iii)];

- (iii) Common Loan Agreement dated 13.12.2012 (Ex. AW-1/3) executed by Defendant no. 1;

- (iv) Lenders' Agent Agreement dated 13.12.2012 thereby appointing the Defendant no. 3 as the Lenders Agent (Ex. AW-1/4);

- (v) Security Trustee Agreement dated 13.12.2012 thereby appointing the Defendant no. 11 as Security Trustee for the Project (Ex. AW-1/5);

- (vi) Supplementary Escrow Agreement dated 13.12.2012 thereby appointing the Defendant no. 3 as the Escrow Bank (Ex. AW-1/6);

- (vii) Undertaking dated 13.12.2012 executed by Defendant no. 1 (Ex. AW-1/7);

- (viii) Indenture of Mortgage dated 24.12.2012 executed by Defendant no. 1 thereby creating charge over the assets detailed therein i.e. (a) mortgage over Plot No. 49, measuring 267 sq. mtrs. Gat No. 1023, 1025, 1117 Landmarc Meadows IIA, Village-Kudali, Taluka Roaha, Distt. Raigadand (b) charge over the movable plant and machinery etc. and other movables of Defendant no. 1 wherever installed, located, created or provided (Ex. AW-1/8);

- (ix) Share Pledge Agreement dated 13.12.2012 executed by Defendant no. 2 (Ex. AW-1/9);

- (x) Share Pledge Power of Attorney dated 13.12.2012 executed by Defendant no. 2 (Ex. AW-1/10);

- (xi) Sponsor Support Agreement dated 13.12.2012 executed by Defendant no. 2 (Ex. AW-1/11);

- (xii) Corporate Guarantee dated 27.06.2013 executed by Defendant no. 2 (Ex. AW-1/12);

- (xiii) Inter-Creditor Agreement dated 24.04.2013 executed by Defendants no. 3 & 4 as well as Defendant no. 11 being security trustee (Ex. AW-1/13);

- (xiv) Letter dated 08.01.2013 of the Defendant no. 11 confirming that the Project was duly secured by various securities (Ex. AW-1/14);

- (xv) two Certifications and seven Confirmations all dated 11.01.2013 submitted by the Defendant no. 1 to the Defendant no. 3 being the Lenders' Agent / Representatives [Ex. AW-1/15(i) to AW-1/15(vii)];

- (xvi) confirmation dated 11.01.2013 submitted by Defendant no. 2 (Ex. AW-1/16);

- (xvii) Letter dated 22.04.2013 submitted by the Defendant no. 11 to the Defendants no. 3 & 4 to the effect that the additional shares were pledged by Defendant no. 2 (Ex. AW-1/17);

- (xviii) First Amendment Agreement dated 26.04.2013 to the Common Loan Agreement dated 13.12.2012 (Ex. AW-1/18);

- (xix) First Amendment Agreement to the Security Trustee Agreement dated 26.04.2013 to the Common Loan Agreement dated 13.12.2012 (Ex. AW-1/19);

- (xx) First Supplemental Agreement dated 10.05.2013 to the Indenture of Mortgage dated 24.12.2012 was executed by the Defendant no. 1 in favour of Defendant no. 11 (being the Security Trustee) in respect of property situated at Taluka – Roha, District Raigarh (Ex. AW-1/20);

- (xxi) Escrow Agreement dated 23.05.2013 entered into between the Defendant no. 1, as the Concessionaire; Defendant no. 3 being the Lenders Representative; the Defendant no. 3 being the Escrow Bank and the NHAI, for establishment of the Escrow Account with Defendant no. 3 (Ex. AW-1/21);

- (xxii) Substitution Agreement dated 23.05.2013 entered into between NHAI, Defendant no. 1 and the Lenders Agent / Representative (Ex. AW-1/22);

- (xxiii) Letter dated 22.05.2013 issued by NHAI by virtue of which the NHAI waived off the damage on the concessionaire on account of delay under clause No. 4.3 of the Concession Agreement on mutual basis and the Defendant no. 1 confirmed not to claim damage from NHAI under Clause 4.2 and Clause No. 10.3.4 of the Concession Agreement and accordingly informed the Defendant no. 1 the Appointed Date for the Project shall be 16.05.2013 and Financial close shall be 08.03.2013 (Ex. AW-1/23);

- (xxiv) Deed of Cancellation dated 24.05.2013 executed by the Defendant no. 1 in favour of Defendant no. 11 (Ex. AW-1/24);

- (xxv) fresh Supplementary Agreement dated 24.05.2013 to the Indenture of Mortgage dated 24.12.2012 executed by Defendant no. 1 in favour of Defendant no. 11 which was registered in the office of Sub-Registrar Roha (Ex. AW-1/25);

- (xxvi) Form 8 filed by the Defendant no. 1 on 24.05.2013 with Registrar of Companies (ROC) with respect to the charge of the securities (Ex. AW-1/26);

- (xxvii) Letter dated 18.06.2013 issued by the Defendant no. 11, being the Security Trustee, to Defendants no. 3 & 4 by virtue of which it has confirmed that all the Security and Finance document are held by it (Ex. AW-1/27);

- (xxviii) Letter dated 28.06.2013 of Defendant no. 1 whereby it acknowledged that the documents were deposited by the Lenders with the Defendant no. 11 being the Security Trustee (Ex. AW-1/28);

- (xxix) Office copy of Sanction Letter dated 08.07.2013 issued by the Applicant (Ex. AW-1/29);

- (xxx) Letter(s) dated 04.09.2014 and 30.10.2014 of Defendant no. 1 whereby they acknowledged that the documents were deposited by the Lenders with the Defendant no. 11 being the Security Trustee (Ex. AW-1/30 & AW-1/31);

- (xxxi) Deed of Assignment dated 03.02.2014 executed between the Defendant no. 1, Defendants no. 3 & 4 and the Applicant (Ex. AW-1/32);

- (xxxii) Deed of Accession dated 03.02.2014 to the Lenders Agent Agreement amongst the Applicant, Defendant no. 1, being the Borrower and the Defendant no. 3, being the Lenders Agent (Ex. AW-1/33);

- (xxxiii) Deed of Accession dated 03.02.2014 to the Security Trustee Agreement executed amongst the Defendant no. 3 being Lenders Agent, Defendant no. 11, being the Security Trustee, Applicant being the new Lender and Defendant no. 1 as the Borrower (Ex. AW-1/34);

- (xxxiv) Novation Deed dated 03.02.2014 entered into between the Defendants no. 3 & 4, being the Existing Lenders; Defendant no. 3 being the Lenders' Agent, Applicant being the New Lender and the Defendant no. 1 being the Borrower (Ex. AW-1/35);

- (xxxv) Deed of Accession dated 03.02.2014 of the Inter-Creditor Agreement entered into between the Applicant as New Lender, Defendant no. 11, being the Security Trustee, Defendant no. 3 being the Lenders' Agent and Defendant no. 1 being the Borrower (Ex. AW-1/36);

- (xxxvi) Subordinate Rupee Facility Agreement dated 03.02.2014 executed by the Defendant no. 1 through its authorized signatory which was also signed by the Defendant no. 3, being the Lenders Agent for Subordinate Debt, Defendant no. 11 being the Security Trustee for Subordinate Debt and the Applicant as the Subordinate Lender (Ex. AW-1/37);

- (xxxvii) Acknowledgement Letter dated 09.12.2019 of Defendant no. 11 (Security Trustee) acknowledging execution of various security documents and custody of same with Defendant no. 11 (Ex. AW-1/38);

- (xxxviii) certificate dated 28.02.2014 issued by ROC with regard to modification of the charge (Ex. AW-1/39);

- (xxxix) Second Amendment Agreement dated 07.03.2014 to the Common Loan Agreement dated 13.12.2012 executed between Defendant no. 1 as Borrower, Defendant no. 11 as Security Trustee, Defendant no. 3 as Lenders' Agent and Applicant and Defendants no. 3 to 10 as the Senior Lenders (Ex. AW-1/40);

- (xl) Second Amendment Agreement to the Security Trustee Agreement dated 07.03.2014 entered into between the Defendant no. 1, being the Borrower, Defendant no. 2 as Lenders' agent, Defendant no. 11 being the Security Trustee, the Applicant and Defendants no. 3 to 10 as the Senior Lender and Applicant as the Subordinated Lender (Ex. AW-1/41);

- (xli) First Amendment Agreement to the Lenders' Agent Agreement dated 07.03.2014 executed by the Defendant no. 1, being the Borrower, Defendant no. 3 as Lenders' agent, the Applicant and Defendants no. 3 to 10 as the Senior Lender and Applicant as the Subordinated Lender (Ex. AW-1/42);

- (xlii) First Amendment Agreement dated 07.03.2014 to the Supplementary Escrow Agreement dated 13.12.2012 entered into between the Defendant no. 1, Defendant no. 3 as Lenders' agent and Defendant no. 11 being the Security Trustee and the Defendant no. 3 as the Escrow Bank (Ex. AW-1/43);

- (xliii) Corporate Guarantee dated 07.03.2014 executed by Defendant no. 2 in favour of Defendant no. 11, being the Security Trustee for and on behalf of the Senior Lenders and Subordinated Lender i.e. the Applicant and Defendants no. 3 to 10 as Senior Lenders and the Applicant as Subordinated Lender (Ex. AW-1/44);

- (xliv) First Amendment Agreement to the Sponsor Support Agreement dated 07.03.2014 entered into between the Defendants no. 1 & 2, the Defendant no. 3 as Lenders' Agent and Defendant no. 11 as the Security Trustee (Ex. AW-1/45);

(xlv) First Amendment Agreement dated 07.03.2014 to the Inter-Creditor Agreement dated 26.12.2012 entered into between Defendant no. 11, as Security Trustee, Defendant no. 3 being the Lenders' Agent, the Defendants no. 3 to 10 and Applicant as Senior Lenders and the Applicant as Subordinated Lenders (Ex. AW-1/46);

(xlvi) Confirmation dated 07.03.2014 to the Inter Creditor Agreement dated 26.04.2013 executed by Defendant no. 1 and Deeds of Accession executed thereto from time to time (Ex. AW-1/47);

(xlvii) Third Amendment Agreement to Common Loan Agreement dated 13.12.2012 entered on 11.10.2017 into between the Defendant no.1, Applicant as well as Defendants no. 3 to 10 as Lenders, Defendant no. 3 as Lenders' Agent and Defendant no. 11 as Security Trustee (Ex. AW-1/48);

(xlviii) Amendment Agreement to Subordinate Rupee Facility Agreement dated 03.02.2014 entered on 11.10.2017 into between the Defendant no.1, Applicant, as Subordinate Lender, Defendant no. 3 as Lenders' Agent and Defendant no. 11 as Security Trustee (Ex. AW-1/49);

(xlix) Arrangement Agreement dated 12.07.2018 entered into between the parties wherein the Applicant as well as the Defendant no. 11 was not party to the same (Ex. AW-1/50);

- (l) Office copy of Recall Notice dated 17.03.2020 issued by the Applicant through its Counsel to the Defendants no. 1 & 2 [Ex. AW-1/51(i)];

- (li) Three original postal receipts in respect of the Recall Notice dated 17.03.2020 [Ex. AW-1/51(ii)];

- (lii) Three original courier receipts in respect of the Recall Notice dated 17.03.2020 [Ex. AW-1/51(iii)];

- (liii) Termination Notice dated 01.01.2020 issued by NHAI (Ex. AW-1/52);

- (liv) Certified copies of Statement of Accounts and Memorandum of Interest pertaining to the Senior Rupee Facility and Subordinate Rupee Facility duly certified in terms of the Bankers Books Evidence Act, 1881 along with Certificate under Section 2-A of the Bankers Books Evidence Act (Ex. AW-1/53, AW-1/54 & AW-1/55).

6. So far as, Defendant no. 1 is concerned, it filed the Evidence by way of Affidavit of Sh. Imran Khan, authorized representative of Defendant no. 1. He has relied upon the following documents :-

- (i) True copy of certificate of incorporation of Defendant no. 1 Company on 13.10.2011 and Memorandum and Articles of Association of Defendant no. 1 Company (Ex. DW1/1);

- (ii) Board Resolution passed by Defendant no. 1 in favour of the Deponent to file the WS and Evidence (Ex. DW1/2);

- (iii) Provisional Completion Certificate issued on 01.01.2019 by Defendant no. 1 (Ex. DW1/3);

- (iv) True copy of Letter dated 31.01.2019 (Ex. DW1/4);

- (v) Suspension Notice dated 04.11.2019 issued by Defendant no. 1 (Ex. DW1/5);

- (vi) Termination Notice dated 13.11.2019 issued to NHAJ for payment (Ex. DW1/6);

- (vii) True copy of OTS proposal dated 10.07.2021 issued to the Lead Bank by Defendant no. 1 (Ex. DW1/7);

- (viii) Email dated 15.08.2023 issued by Defendant no. 1 to the Lead Bank (Ex. DW1/8).

7. During the pendency of this OA, it was informed by the Ld. counsels for the parties Applicant Bank that CIRP proceedings have been initiated qua Defendant no. 2 company before Ld. NCLT, Mumbai Bench.

8. Heard Ld. counsels for the parties and perused the entire record.

8.1 It is matter of record that CIRP proceedings have been initiated qua Defendant no. 2 company before Ld. NCLT, Mumbai Bench, hence, no final order can be passed qua Defendant no. 2, at this stage.

However, it is directed that Applicant shall be at liberty to revive the OA qua Defendant no. 2 in case NCLT / CIRP proceedings are quashed / withdrawn in future, in accordance with law.

It is also directed that in case Applicant FI receives any amount from CIRP proceedings, it shall give due adjustment of the same in the recovery proceedings.

8.2 It is also matter of record that Defendant no. 2 had filed the WS, however, as Defendant no. 2 is before Ld. NCLT, Mumbai Bench, hence, there is no need to deal with the WS filed by Defendant no. 2.

8.3 Now I would like to deal with the objections raised by Defendant no. 1 in its WS in following paras:-

(i) Defendant no. 1 has raised an objection that the present OA is liable to be dismissed on the ground that the Applicant FI has failed to place on record all the documents including complete documents on which Applicant FI relied upon, holding itself guilty of concealment of material facts from this Tribunal.

Since, Applicant has already filed the relevant documents in support of its pleadings and same have already been proved / exhibited by the Applicant, hence, this objection of Defendant no. 1 does not hold any water and same stands rejected.

(ii) Next objection raised by the Defendant no. 1 is that the present OA is not maintainable in view of the mis-joinder and non-joinder of necessary parties. It is stated that the Applicant has failed to implead NHAI in the present OA, hence, this OA is liable to be dismissed with costs.

This Tribunal is of the considered view that so far as, NHAI is concerned, same is not liable to pay the dues of the Applicant as this OA has been filed by the Applicant for recovery of its dues from Defendants no. 1 & 2 only. Since, no NHAI was not a party for paying the dues of the Applicant, hence, this plea of Defendant no. 1 is not going to give any benefit and same stands rejected.

- (iii) Defendant no. 1 has also taken a plea that Defendant no. 1 never submitted any request letters for sanction of the loan facilities.

This plea of Defendant no. 1 is liable to be dismissed on the ground that Defendant no. 1 has itself stated in the WS that it made various requests to the Applicant for settling the matter and now it cannot get absolved from its liability by taking such vague plea. With these observations, this objection of Defendant no. 1 stands rejected.

- (iv) Next objection of Defendant no. 1 is that the alleged corporate guarantee allegedly executed by the answering Defendant no. 2 is not binding on it as the Applicant FI has failed to produce any valid Board Resolution in favour of Signatory of alleged Corporate Guarantee and in the absence of valid authorization the alleged corporate guarantee cannot be held binding upon the answering Defendant no. 2.

I have gone through the entire record and I do not find any infirmity or illegality in the documents relied by the Applicant with regard to Defendant no. 2. However, it is matter of record that since Defendant no. 2 is already before Ld. NCLT, Mumbai Bench, hence, no order is going to be passed qua Defendant no. 2, at this stage. With these observations, this objection of Defendant no. 1 stands disposed off accordingly.

- (v) Defendant no. 1 has also taken a plea that perusal of Annexures which are placed on record by Applicant FI before this Tribunal reveals that all the above documents are alleged to have been executed at Mumbai, Maharashtra whereas the Stamp Duty affixed thereon have been purchased from Govt. of NCT of Delhi and insufficient stamp duties have been paid as per the local laws of Delhi and Maharashtra.

This Tribunal is of the view that when the Defendant no. 1 did not raise any such objection at the time of availing loan facilities, now at the time of paying their dues, they cannot take benefit by taking such pleas. Accordingly, this objection of Defendant no. 1 also stands rejected.

- (vi) Defendant no. 1 has also raised an objection that this OA is hopelessly barred by limitation.

It is matter of record that the Defendants executed various security documents from time to time and lastly they executed the documents on 12.07.2018, however, this OA was filed on 03.07.2021, Hence, it is clear that this OA has been filed well within the period of limitation.

Even otherwise, present matter pertains to recovery of amount advanced to the Borrower Company against the mortgage of immovable properties. In this case, equitable mortgage was created at the time of disbursal of loan facilities from time to time till July 2018 wherein the mortgage of immovable properties of Defendants is involved and recovery suit is filed which is covered under Article 62 of Limitation Act under which the Suit / OA is filed to enforce payments secured by the mortgage / otherwise charged upon the immovable property wherein the period of limitation is 12-years.

Thus, it is clear that this OA has been filed well within the period of limitation. Accordingly, this plea of Defendant no. 1 is not tenable and same is hereby rejected.

- (vii) Defendant no. 1 has also taken a plea that the alleged documents purported to have been signed and executed by the answering Defendants and relied upon by the Applicant are false and interpolated documents, hence, same cannot be permitted to be relied upon for any purpose whatsoever and least of all for the purposes of fastening any alleged claims or liabilities on the answering Defendants.

It is matter of record that Defendant no. 1 has not filed any documentary evidence in support of their contention. Even otherwise, in the light of law laid down by the Hon'ble Delhi High Court in the matter of "Indian Bank Vs. Cheese Wafers (India) Pvt. Ltd.

wherein it was held if the defendants have not filed any complaint before higher authorities of the bank or filed any complaint before police authorities.....". Thus, the plea of signing the documents under misrepresentation / blank / unfilled documents / without consent, alleged to be misused by the Applicant Banks, is not maintainable after filing of the suit. Accordingly, this objection of Defendant no. 1 is hereby rejected.

(viii) Defendant no. 1 has also taken a plea that the Applicant FI has varied the rate of interest and by virtue of such action, levied exorbitant rates against the terms of the documents.

It is matter of record that the Applicant herein has already filed respective Statement of Accounts duly certified under the Banker's Book of Evidence Act along with Statement of Calculation of accrued interest uncharged interest. On the other hand, Defendant no. 1 has not chosen to file its own statement of accounts. This Tribunal is of the view that this objection of Defendant no. 1 is merely a bald allegation without any substantial documentary evidence, hence, same is liable to be dismissed and same stands dismissed.

(ix) Next objection raised by Defendant no. 1 is that the present OA has not been signed, verified and filed by a duly authorized or competent personal.

It is matter of record that the Applicant herein has duly filed the Authority Letter in favour of its officer which has already been proved by the Applicant in the OA. Even otherwise, no infirmity is found in the said authorization filed by the Applicant herein. Hence, this plea of Defendant no. 1 stands rejected.

- (x) Defendant no. 1 has also taken a plea that the Applicant FI has wrongly invoked the jurisdiction of this Tribunal.

It is matter of record that one of the address of Defendant no. 1 is of Delhi and Section 19(1) of RDB Act, which governs the territorial jurisdiction of Debt Recovery Tribunals (DRTs), states that *an application may be made to the Tribunal within the local limits of whose jurisdiction: (a) The bank or financial institution maintains the account in which the debt is outstanding. (b) The defendant resides, carries on business, or personally works for gain. (c) The cause of action, wholly or in part, arises.*

In these circumstances, the Tribunal is of the considered view that in pursuance to Section 19(1) (b) of the RDB Act, this Tribunal has territorial jurisdiction to entertain this Original Application (OA). Hence, this objection of Defendant no. 1 stands rejected.

- (xi) Defendant no. 1 has further raised an objection that they did not execute any security documents including guarantee deed etc.

It is matter of record that the Applicant has already filed the documents in support of the OA and the Defendants have not denied their signatures on them. In these circumstances, this plea of Defendant no. 1 does not hold any water and same stands rejected.

8.4 So far as, Defendants no. 3 to 11 are concerned, they are Proforma Defendants and no relief has been claimed against these defendants by the Applicant FI.

8.5 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 unrebutted 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 Defendant no. 1 along with pendentelite and future interest @12.50% p.a. and cost of this OA.

8.6 In this OA, Applicant has prayed to issue recovery certificate against Defendants no. 1 & 2 wherein the Defendant 1 is principal borrower and Defendant no. 2 is corporate guarantors.

8.7 So far as, defendants no. 3 to 11 are concerned, no relief has been claimed by Applicant qua these defendants being Proforma Defendants.

8.8 Since, Defendant no. 2 is already before Ld. NCLT, Mumbai Bench, as stated above, hence, no final order can be passed qua Defendant no. 2, at this stage till the relevant order(s) of Ld. NCLT are withdrawn / quashed. However, Applicant be at liberty to revive the OA qua Defendant no. 2 in case NCLT proceedings are quashed / withdrawn in future, in accordance with law.

It is also directed that in case Applicant receives any amount from the CIRP proceedings pending before Ld. NCLT, Mumbai Bench it shall give due adjustment of the same in the recovery proceedings.

8.9 Consequently, TA No. 152/2022 is liable to be allowed in favour of Applicant against Defendant No. 1 (being Principal Borrower), who is liable to pay the dues of the Applicant along with costs and pendentelite & future interest @12.50% p.a. from the date of filing of present OA, till the date of payment in full.

ORDER

- (i) TA No. 152/2022 stands allowed in favour of Applicant and against the Defendant no. 1 for a sum of Rs. 198,46,73,909.26 (Rupees One Hundred Ninety Eight Crore Forty Six Lakh Seventy Three Thousand Nine Hundred Nine and Paise Twenty Six only) along with pendentelite and future interest @12.50% p.a. from the date of filing of this OA till realization of the entire dues of the Applicant. Now Defendant no. 1 is directed to the aforesaid amount(s) to the Applicant, within 30

days, failing which, the aforesaid amount shall be recovered from the sale of secured assets / mortgaged properties / hypothecated assets / stocks etc. belonging to Defendant no. 1.

In case of shortfall, same shall be recovered from the movable and immovable assets of Defendant no. 1 only.

- (ii) So far as, Defendant no. 2 is concerned, since CIRP proceedings have been commenced qua Defendant no. 2 before Ld. NCLT, Mumbai Bench, no order can be passed against Defendant no. 2, 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 Defendant no. 2 in case NCLT proceedings are quashed / withdrawn in future, in accordance with law.

It is also directed that in case Applicant receives any amount from the CIRP proceedings pending before Ld. NCLT, Mumbai Bench, it shall give due adjustment of the same in the recovery proceedings.

- (iii) It is also directed that the Applicant 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.

(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 20.08.2026.

(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.

19.06.2026

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

(Pronounced in open court) Dated: 19.06.2026

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