CANARA BANK vs YOGRAJ INFRASTRUCTURE LTD on 15 July 2025

**FINAL ORDER**

1. This original application has been filed by the applicant bank, on 23.01.2012, through Mr. D.V. Krishna Kumar, Assistant General Manager of Applicant Bank, being authorized representatives of Applicant Bank, under Section 13(10) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act 2002) r/w Rule 11 of the Security Interest (Enforcement) Rules 2002 r/w Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants no. 1 to 3 for recovery of a sum of Rs. 142,17,41,489.65 (Rupees One Hundred Forty Two Crore Seventeen Lakh Forty One Thousand Four Hundred Eighty Nine and Paise Sixty Five only) together with pendentelite and future interest from 01.01.2012 upto to realization at interest rates detailed in Annexure No. 133 compounded monthly, as mentioned in Para 5 of this OA; along with all costs, charges and other relief(s).

1.2 It is pertinent to note here that this OA bearing no. 01/2012 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 November 2022 and was numbered at TA-375/2022.

2. The brief facts of this case are that the Defendant no. 1 is a company incorporated under the Companies Act, 1956, initially as a private limited company now functioning as limited company, and was doing business of contract relating to infrastructure development. It is stated that various credit facilities were granted by the applicant to the defendant no. 1 (details below in the OA) and on whose account the amounts are overdue and outstanding. It is also stated that the Defendant no.1 is the owner of the immovable properties being Land Building at Village Chawarpatha, N.B. 154, P.C.10, Rev. Cir. Dobhi, Khasra No. 226 (area 1.461 hectares), Tehsil Tendukhera, District Narsingpur, Madhya Pradesh and also created mortgage of the same as security to the credit facilities availed by the said defendant.

Further, the defendants no. 2 & 3 are the guarantors of the credit facilities granted by the applicant bank to the defendant no. 1 and executed Guarantee Agreements in favour of the applicant bank. Defendants no.2 & 3 have also created the mortgage of the immovable properties belonging to them as security to the credit facilities availed by Defendant no. 1.

It is also stated in the OA that the defendant no.1 claims that the claims against the defendant no.4 are pending before an arbitral Tribunal at Singapore and further claims that huge amount is receivable from them. Hence, the defendant no.4 is added as a party for claiming the amounts payable by them to defendant to. 1and for seeking effective interim reliefs against them.

2.2 It is further stated in the OA that Sh. D.V. Krishna Kumar is working as Assistant General Manager of Nehru Place Branch, New Delhi of applicant bank who has instituted the present OA, being holder of Power of Attorney executed in his favour by the applicant bank, is competent to sign and verify the application and has verified this OA.

2.3 It is stated in the OA that the Defendant No. 1 availed various credit facilities from time to time since 2006 and the credit facilities under the liability is outstanding and payable by defendants no.1 to 3 are as under:-

<thead> <tr> <th>S. No.</th> <th>Loan A/s No.</th> <th>Type of Facility</th> <th>Original Advance Limit</th> <th>Date of execution of documents</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>9044.125.662</td> <td>SOD</td> <td>2,10,00,000/-</td> <td rowspan="2">27.06.2008/<br/>13.10.2009</td> </tr> <tr> <td>2.</td> <td>101WCDL09297000</td> <td>WCDL</td> <td>8,40,00,000/-</td> </tr> <tr> <td>3.</td> <td>NPL 6/10</td> <td>OSL</td> <td>25,00,00,000/-</td> <td>14.11.2006/<br/>02.02.2009</td> </tr> <tr> <td>4.</td> <td>NPL 10/10</td> <td>OSL</td> <td>12,00,00,000/-</td> <td>10.02.2007/<br/>02.02.2009</td> </tr> <tr> <td>5.</td> <td>NPL 7/10</td> <td>OSL</td> <td>10,00,00,000/-</td> <td>21.07.2007/</td> </tr> </tbody> </table>

<tr> <td></td> <td></td> <td></td> <td></td> <td>02.02.2009</td> </tr> <tr> <td>6.</td> <td>NPL 9/10</td> <td>OSL</td> <td>28,00,00,000/-</td> <td>21.07.2007/<br/>02.02.2009</td> </tr> <tr> <td>7.</td> <td>NPL 8/10</td> <td>OSL<br/>(STL)</td> <td>3,50,00,000/-</td> <td>25.11.2008/<br/>02.02.2009</td> </tr> <tr> <td>8.</td> <td>101OLLN090300001</td> <td>OSL</td> <td>6,50,00,000/-</td> <td>30.01.2009</td> </tr> <tr> <td>9.</td> <td>101WCDN100640001</td> <td>WCDL</td> <td>6,38,00,000/-</td> <td>05.03.2010</td> </tr> <tr> <td>10.</td> <td>BG</td> <td>BG</td> <td>51,95,97,000/-</td> <td>13.10.2009</td> </tr> </table>

In the above table the full form of abbreviations used is as under:- SOD : Secured Overdraft WCDL : Working Capital Demand Loan OSL : Other Secured Loan STL : Short Term Loan BG : Bank Guarantee The details of the sanction, availment and the restructure and the documents executed at the time of availing various credit facilities granted by the applicant bank to the defendant no. 1 which includes the credit facilities in the above table are detailed following paragraphs.

**Facts in respect of credit facilities to the extent of Rs. 38.05 crore granted in 2006 and the claim in respect thereof**

2.4 It is stated in the OA that the defendant no.1 approached the applicant bank for various credit facilities which includes the Bank Guarantees for Performance as well as Financial to the extent of Rs.13.05crore. Pending receipt of the formal sanction from the competent Authority, the defendant requested for release of the BG facilities and executed / furnished the following amongst other documents:-

- (i) Extract of Minutes of the Meeting of the Board of Directors of the defendant no. 1 held on 18.10.2006 at their registered office.

- (ii) Omnibus Counter Guarantee dated 31.10.2006 for Rs. 6.05 crore for BG (Performance) executed by the defendant no. 1 through Mr. Yogendra Singh.

- (iii) Letter dated 31.10.2006 enclosing the Counter guarantee along with Fixed Deposits for Rs. 60,50,000/- as margin money;

- (iv) Guarantee Agreement dated 31.10.2006 for Rs. 6.05 crore executed by Mr. Yogendra Singh, the defendant no. 2;

- (v) Guarantee Agreement dated 31.10.2006 for Rs. 6.05 crore executed by Ms. Ritu Singh, the defendant no. 3.

It is also stated that the defendant no. 1 created the equitable mortgage of their immovable property [at Narsingpur Madhya Pradesh] in favour of the applicant bank on 31.10.2006 the date on which the BG facility for Rs. 6.05 crore was availed as security by deposit of title deeds. [details of the property and the documents of property deposited by defendant no. 1 have been given in Para 5(5.6) of the OA]. Moreover, defendant no. 1 confirmed the creation of mortgage of above detailed Narsingpur property vide letter dated 31.10.2006 by deposit of title deeds. Defendant no. 1 also furnished documents to show that the land use of the mortgaged Narsingpur property has been changed to commercial and residential with 60% and 40% along with copy of modification / order dated 24.08.2006 and other relevant documents. Further, defendant no. 2 also deposed an affidavit dated 31.10.2006 as director of the defendant no. 1 confirming the ownership of the Narsingpur property by defendant no. 1.

It is further stated in the OA that the defendant no. 2 created mortgage of Portion of property situated at B-63, Paschimi Marg, Vasant Vihar, New Delhi as security to the credit facilities granted to them to the extent of Rs. 605.0 lakh by deposit of title deeds on 31.10.2006. [details of the property and the documents of property have been given in Para 5(5.10) of the OA]. Moreover, defendant no. 2 confirmed the creation of mortgage of above detailed Basement Vasant Vihar property vide letter dated 31.10.2006 by deposit of title deeds. Defendant no. 2 by depositing affidavit dated 31.10.2006 confirmed his ownership of the Basement Vasant Vihar property.

On execution of the aforesaid documents, the applicant bank permitted the defendant no.1 to utilize the BG facility to the extent of Rs.6.05 crore.

2.5 It is further stated in the OA that on 02.11.2006, the defendant no. 1 again requested for release of the BG Facility for Rs. 7.00 crore and executed / furnished the following amongst other documents:-

- (i) Extract of Minutes of the Meeting of the Board of Directors of the defendant no. 1 held on 01.11.2006 at their registered office.

- (ii) Omnibus Counter Guarantee dated 02.11.2006 for Rs. 7.00 crore for BG (Financial) executed by the defendant no.1 through Mr. Yogendra Singh.

- (iii) Letter dated 02.11.2006 enclosing the Counter guarantee along with Fixed Deposits for Rs. 30.0 Lakh as margin money;

- (iv) Guarantee Agreement dated 02.11.2006 for Rs. 7.00 crore executed by Mr. Yogendra Singh, the defendant no. 2;

- (v) Guarantee Agreement dated 02.11.2006 for Rs.7.00 crore executed by Ms. Ritu Singh, the defendant no. 3.

It is further stated that the defendant no. 1 agreed and confirmed that the mortgage already created by them on Narsingpur property will continue as security to the BG Facility of Rs.7.00 crore also vide letter dated 02.11.2006.

Similarly, defendant no. 2 also agreed and confirmed that the mortgage already created by him on "Basement Vasant Vihar Property" will continue as security to the BG Facility of Rs.7.00 crore also vide letter dated 02.11.2006.

On execution of the aforesaid documents, the applicant bank permitted the defendant no.1 to utilize the BG facility to the extent of Rs.7.00 crore.

2.6 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank conveyed the sanction of credit facilities to the extent of Rs. 38.05 crore vide their Sanction Letter dated 02.11.2006 which included Term Loan of Rs. 25.0 crore and Bank Guarantees (Performance) (BG) of Rs. 6.05 crore and Bank Guarantee (Financial) (BG) of Rs. 7.00 crore already released as detailed in the earlier paras for the purpose of their business needs.

The defendant no.1 through its Director, Mr.Yogendra Singh executed / furnished the following amongst other documents for availing the above said credit facilities to the extent of Rs. 38.05 crore :-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 09.11.2006 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 14.11.2006 for Rs. 38.05 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Power of Attorney for collection of Book Debts and other receivables dated 14.11.2006 executed on behalf of defendant no.1 duly notarized authorizing the applicant bank to collect the Book Debts and Receivables on behalf of the Defendant no. 1;

- (iv) Letter dated 14.11.2006 executed by defendant no. 1 confirming the execution of POA and authorizing the applicant bank to set off the amounts recovered on the basis of the Power of Attorney;

- (v) Letter of Undertaking dated 14.11.2006 executed by defendant no.1 whereby it undertook to get the POA registered with M/s Ssangyong Engineering & Construction Co. Ltd. for direct payment of the contract money to the Bank and further providing undertaking as required in sanction;

- (vi) Guarantee Agreements dated 14.11.2006 executed by defendants no.2 & 3 for Rs. 38.05 crore.

It is also stated that the defendant no. 1 also agreed and confirmed that the mortgage already created by them on Narsingpur property will continue as security to the credit facilities granted under Sanction Letter dated 02.11.2006 and availed under documents executed on 14.11.2006.

It is further stated in the OA that the defendants no. 2 & 3 created the mortgage of Ground Floor (GF) of their property situated at Vasant Vihar as security by deposit of title deeds. [details of the property and the documents of property deposited by defendants no. 2 & 3 have been given in Para 5(5.22) of the OA]. Moreover, defendants no. 2 & 3

confirmed the creation of mortgage of above detailed GF Vasant Vihar property vide letter dated 14.11.2006 by deposit of title deeds. Defendants no. 2 & 3 also deposed an affidavits dated 14.11.2006 confirming the ownership of the GF Vasant Vihar property by defendants no. 2 & 3.

It is further stated in the OA that the defendant no. 2 also agreed and confirmed that the mortgage created by them on "Basement Vasant Vihar Property" will continue as security to the Credit Facilities granted under Sanction Letter dated 02.11.2006 and availed under documents executed on 14.11.2006.

On execution of the aforesaid documents, the applicant bank released the Term Loan amount to the extent of Rs. 25.0 crore to the defendant no.1 as and when sought for in accordance with the terms of the sanction in addition to the BG facilities to the extent of Rs. 13.05 crore.

**Facts in respect of Credit Facilities (OSL) to the extent of Rs. 12.0 crore granted in February 2007 and the claim in respect thereof**

2.7 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank during February 2007 granted a Term Loan (TL) of Rs. 12.0 crore (sub limit ILC of Rs. 12.0 crore) for the purpose of purchasing equipment / machinery / vehicles for ongoing road project and future construction activity.

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the above said TL facility to the extent of Rs. 12.0 crore :-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 10.02.2007 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 10.02.2007 for Rs. 12.0 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Omnibus Counter Guarantee Agreement dated 10.02.2007 for Rs. 12.0 crore for ILC facility;

- (iv) Letter dated 10.02.2007 enclosing the Counter Guarantee dated 10.02.2007 for Rs. 12.0 crore as continuing security for the amounts due under the ILC;

- (v) Letter dated 10.02.2007 from defendant no. 1 undertaking to comply with the terms of sanction of ILC of Rs. 12.0 crore;

- (vi) Guarantee Agreements dated 10.02.2007 executed by defendants no.2 & 3 for Rs. 50.05 crore (which included Rs. 38.05 crore facilities granted earlier).

It is also stated that the defendant no. 1 vide letter dated 10.02.2007 confirmed the creation of mortgage in respect of Narsingpur property by deposit of title deeds and further agreeing that same would continue as security to the credit facilities which include the Term Loan of Rs.12.0 crore sanctioned as detailed above.

It is further stated in the OA that the defendants no. 2 & 3 vide letter dated 10.02.2007 confirmed the creation of mortgage in respect of "GF Vasant Vihar Property" by deposit of title deeds and further agreeing that same would continue as security to the credit facilities which include the Term Loan of Rs.12.0 crore sanctioned as detailed above.

It is further stated in the OA that the defendant no. 2 vide Letter dated 10.02.2007 confirmed the creation of mortgage in r/o "Basement Vasant Vihar Property" by deposit of title deeds and further agreeing that the same would continue as security to the credit facilities which include term loan of Rs.12.0 crore sanctioned as detailed above.

On execution of the various documents and creating / assuring to create security, the applicant bank released the OSL amount to the extent of Rs. 12.0 crore to the defendant no.1 as and when sought for in accordance with the terms of the sanction.

It is also stated in the OA that the defendants have agreed vide letters dated 19.05.2007 that the "Narsingpur Property", "GF Vasant Vihar property" and the "Basement Vasant Vihar property" would continue as security to the BG facility of Rs. 1.0 crore granted to M/s Yograj Sugars Ltd., by the applicant bank. However, as the liability under the said BG, if any, is not being claimed in this OA, the said documents are not relevant for the purpose of adjudication and hence are not enclosed to this OA and this information is being brought to the notice to clarify the facts stated in the documents relied upon by the applicant bank.

**Facts in respect of Credit Facilities to the extent of Rs. 58.0 crore granted in July and the claim in respect thereof**

2.8 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank granted various credit facilities to the extent of Rs. 58.0 crore for the purpose of executing additional sub-contract works valued at Rs. 200.0 crore under MoU with M/s Ssangyong Engineering & Construction Co. Ltd. Vide the said sanction letter dated 

11.07.2007, the applicant bank also permitted the restructure of existing term loan of Rs. 25.0 crore and said sanction letter was duly acknowledged / signed by the defendant no. 1 in token of consenting to the terms and conditions of sanction. The details of the said facilities are as under:-

<thead> <tr> <th><b>Details of facility</b></th> <th><b>Limit Sanctioned (in Rupees)</b></th> </tr> </thead> <tbody> <tr> <td>Term Loan<br/>(Sublimit : ILC)</td> <td>28.0 crore<br/>(20.0 crore)</td> </tr> <tr> <td>STL</td> <td>10.0 crore</td> </tr> <tr> <td>BG(PG)</td> <td>10.0 crore</td> </tr> <tr> <td>BG</td> <td>10.0 crore</td> </tr> <tr> <td><b>Total</b></td> <td><b>58.0 crore</b></td> </tr> </tbody> </table>

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the above said credit facilities to the extent of Rs. 58.0 crore :-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 20.07.2007 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 21.07.2007 for Rs. 58.0 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Omnibus Counter Guarantee Agreement dated 21.07.2007 in respect of BG facility for Rs. 40.0 crore;

- (iv) Letter dated 21.07.2007 enclosing the Counter Guarantee for Rs. 40.0 crore as continuing security for the amounts due under the said guarantee;

- (v) Power of Attorney for collection of Book Debts and other receivables dated 21.07.2007 on behalf of the defendant no. 1 authorizing the applicant bank to collect the Book Debts and Receivables etc. on behalf of the defendant no. 1;

- (vi) Letter dated 20.07.2007 undertaking to comply with the terms of sanction of Rs. 58.0 crore;

- (vii) Guarantee Agreements dated 21.07.2007 executed by defendants no.2 & 3 for Rs. 58.0 crore; It is stated in the OA that the Applicant Bank vide letter dated 21.07.2007 wrote to M/s Ssangyng Engineering & Construction Co. Ltd. informing them of the Power of Attorney executed by defendant no. 1 in favour of the applicant bank for book debts and receivables and requesting them to note the Bank's lien in their records. The applicant bank received a letter dated 05.10.2007 from M/s Ssangyng Engineering & Construction Co. acknowledging the receipt of Power of Attorney sent by the Bank and confirming that they have noted the same in their records.

It is also stated in the OA that the defendant no. 1 vide letter dated 21.07.2007 confirmed the creation of mortgage in respect of "Narsingpur property" by deposit of title deeds and further agreeing that same would continue as security to the credit facilities to the extent of Rs. 58.0 crore granted to them.

It is further stated in the OA that the defendants no. 2 & 3 vide letter dated 21.07.2007 confirmed the creation of mortgage in respect of "GF Vasant Vihar Property" by deposit of title deeds and further agreeing that same would continue as security to the credit facilities to the extent of Rs.58.0 crore granted to them.

It is stated in the OA that the defendant no. 2 vide Letter dated 21.07.2007 confirmed the creation of mortgage in r/o "Basement Vasant Vihar Property" by deposit of title deeds and further agreeing that the same would continue as security to the credit facilities to the extent of Rs.58.0 crore granted to them.

On execution of the various documents and creating / assuring to create security, the applicant bank released the credit facilities as and when sought for in accordance with the terms of the sanction.

**Facts relating to revising the Repayment Schedule of OSL for Rs. 25.0 crore and the claim in respect thereof**

2.9 In July 2007, at the request of defendant no.1, the applicant bank vide Sanction Letter dated 11.07.2007 referred above, agreed to revise the repayment schedule of the Term Loan of Rs. 25.0 crore availed by defendant no. 1 on 14.11.2006 by executing various documents dated 14.11.2006 detailed in above paras.

In consideration of same, the defendants no. 1 to 3 executed an Agreement for revising the repayment schedule of Term Loan dated 26.07.2007 and agreed to repay the loan of Rs.25.0 crore latest by March 2012 starting from October 2007 in addition to the interest payable monthly starting from October 2007.

**Facts in respect of Credit Facilities to the extent of Rs. 47.83 crore granted in June 2008 and the claim in respect thereof**

2.10 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank granted various credit facilities to the extent of Rs. 47.83 crore for their business needs vide the sanction letter dated 27.06.2008 and the said sanction letter was duly acknowledged / signed by the defendant no. 1 in token of consenting to the terms and conditions of sanction.

The details of the said facilities are as under:-

<thead> <tr> <th>Details of facility</th> <th>Limit Sanctioned (in Rupees)</th> </tr> </thead> <tbody> <tr> <td>SOD</td> <td>10.50 crore</td> </tr> <tr> <td>BO(PG)</td> <td>35.00 crore</td> </tr> <tr> <td>BG/Bid Security<br/>(One Time)</td> <td>2.33 crore</td> </tr> <tr> <td><b>Total</b></td> <td><b>47.83 crore</b></td> </tr> </tbody> </table>

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the above said credit facilities to the extent of Rs. 47.83 crore :-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 02.07.2008 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 02.07.2008 for Rs. 47.83 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Omnibus Counter Guarantee Agreement dated 08.07.2008 in respect of BG facility for Rs. 37.33 crore;

- (iv) Letter handling over the Counter Guarantee dated 08.07.2008 as continuing security to the BG facilities;

- (v) Power of Attorney for collection of Book Debts and other receivables dated 08.07.2008 on behalf of the defendant no. 1 authorizing the applicant bank to collect the Book Debts and Receivables etc. on behalf of the defendant no. 1;

- (vi) Letter dated 08.07.2008 of defendant no. 1 authorizing the applicant bank to set off the amounts recovered on the basis of Power of Attorney;

- (vii) Guarantee Agreements dated 08.07.2008 executed by defendants no.2 & 3 for Rs. 47.83 crore; 

It is also stated in the OA that the defendant no. 1 vide letter dated 08.07.2008 confirmed the creation of mortgage in respect of "Narsingpur property" by deposit of title deeds and further agreeing that same would continue as security to the credit facilities to the extent of Rs. 47.83 crore granted to them.

It is also further stated in the OA that the defendant no. 1 vide letter dated 08.07.2008 confirmed the creation of mortgage in respect of "GF Vasant Vihar property" by deposit of title deeds and further agreeing that same would continue as security to the credit facilities to the extent of Rs. 47.83 crore granted to them.

It is also stated in the OA that the defendant no. 1 vide letter dated 08.07.2008 confirmed the creation of mortgage in respect of "Basement Vasant Vihar property" by deposit of title deeds and further agreeing that same would continue as security to the credit facilities to the extent of Rs. 47.83 crore granted to them.

On execution of the various documents and creating / assuring to create security, the applicant bank released the credit facilities as and when sought for in accordance with the terms of the sanction.

**Facts in respect of Credit Facilities (OSL) to the extent of Rs. 3.50 crore granted in November 2008 and the claim in respect thereof**

2.11 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank during November 2008 permitted interchange of limits from BG to Short Term Working Capital loan for a period of 3-months to an extent of Rs.3.50

crore at the rate of 15% p.a .and to be repaid in bullet form on the due date.

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the above said STL facility to the extent of Rs. 3.50 crore :-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 25.11.2008 at the registered office of the company;

- (ii) Demand Promissory Note dated 25.11.2008 for Rs.3.50cror.

- (iii) Separate letters of defendants no. 2 & 3 agreeing to interchange of limits; It is stated in the OA that the STL facility of Rs. 3.50 crore is only a limit which is permitted by interchange of the non fund based limits for which documents have already been executed and as such the guarantee agreements and the documents continuing the mortgage are valid and binding on the parties in respect of the STL facility.

**Facts in respect of Credit Facilities (OSL) to the extent of Rs. 6.50 crore granted in January 2009 and permitting restructure of all the existing Term Loans and the claim in respect thereof**

2.12 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank on 27.01.2009 granted an Additional Term Loan (Working Capital) of Rs. 6.50 crore for their business needs. Along with the granting of additional term loan, the Applicant Bank vide the same sanction letter permitted the restructuring of five term loan accounts which are detailed as follows :-

<thead> <tr> <th>A/c No.</th> <th>Amount sanctioned (in Rupees)</th> </tr> </thead> <tbody> <tr> <td>101OSLNo.82380010</td> <td>2500 Lakh</td> </tr> <tr> <td>101OSLNo.82380007</td> <td>1000 Lakh</td> </tr> <tr> <td>101DLFG083300001</td> <td>350 Lakh</td> </tr> <tr> <td>90447220000485</td> <td>1200 Lakh</td> </tr> <tr> <td>101OSLNo.82380008</td> <td>2800 Lakh</td> </tr> </tbody> </table>

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the Term Loan (Working Capital) of Rs. 6.50 crore and also executed documents for the restructure of the above said term loan accounts mentioned in the sanction letter.

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the abovesaid TL (Working Capital) facility to the extent of Rs. 6.50 crore:-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 29.01.2009 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 30.01.2009 for Rs. 6.50 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Letter dated 29.01.2009 undertaking to comply with the terms of sanction of Rs. 6.50 crore;

- (iv) Letter dated 30.01.2009 by the defendant no.1 confirming utilization of the loan for the purpose which it was sanctioned.

Further, the defendant no.1, as borrower, through its Director, Mr. Yogendra Singh along with defendants no. 2 & 3 as guarantors executed / furnished the following amongst other documents for the restructure of the term loans accounts (as mentioned in sanction letter dated 27.10.2009) ;-

- (i) Agreement for replace of the term loan of Rs. 2500 lakh dated 02.02.2009;

- (ii) Agreement for replace of the term loan of Rs. 1000 lakh dated 02.02.2009;

- (iii) Agreement for replace of the term loan of Rs. 350 lakh dated 02.02.2009;

- (iv) Agreement for replace of the term loan of Rs. 1200 lakh dated 02.02.2009;

- (v) Agreement for replace of the term loan of Rs. 2800 lakh dated 02.02.2009;

- (vi) Guarantee Agreement(s) dated 30.01.2009 executed by defendants no. 2 & 3 for Rs. 135,98,00,000/- It is also stated in the OA that the defendant no. 1 vide letter dated 30.01.2009 confirmed the creation of mortgage in respect of "Narsingpur property" by deposit of title deeds as security for the various credit facilities availed by them from time to time and also to the additional facility of Rs.6.50 crore granted and availed n 30.01.2009.

It is also further stated in the OA that the defendants no. 2 & 3 vide letter dated 30.01.2009 confirmed the creation of mortgage in respect of "GF Vasant Vihar property" by deposit of title deeds as security for the various credit facilities availed by them from time to time and also to the additional facility of Rs.6.50 crore granted and availed n 30.01.2009.

It is also stated in the OA that the defendant no. 2 vide letter dated 30.01.2009 confirmed the creation of mortgage in respect of "Basement Vasant Vihar property" by deposit of title deeds as security for the various credit facilities availed by them from time to time and also to the additional facility of Rs.6.50 crore granted and availed on 30.01.2009.

**Facts in respect of renewal of Credit Facilities to the extent of Rs. 6885.72 Lakh granted in August 2009 and the claim in respect thereof**

2.13 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank renewed the Secured Overdraft (SOD) of Rs. 2.10 crore and Working Capital Demand Loan (WCDL) of Rs. 8.40 crore (totaling to the extent of Rs.10.50 crore) and also BG facilities to the extent of Rs. 5834.72 crore granted earlier for the purpose of business needs of the company. In this regard, the Sanction Letter dated 13.08.2009 was duly acknowledged / signed by the defendant no.1, in token of consenting to the terms and conditions of sanction.

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for renewal of the above said SOD, WCDL and BG facilities to the extent of Rs. 6884.72 Lakh :-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 17.08.2009 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 13.10.2009 for Rs. 6884.72 Lakh executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Omnibus Counter Guarantee Agreement dated 13.10.2009 in respect of BG facility for Rs. 5834.72 Lakh;

- (iv) Power of Attorney for collection of Book Debts and other receivables dated 13.10.2009 on behalf of defendant no. 1 authorizing the applicant bank to collect the Book Debts and Receivables etc. on behalf of the defendant no. 1;

- (v) Letter dated 13.10.2009 of defendant no. 1 authoring the applicant bank to set off the amount recovered on the basis of Power of Attorney;

- (vi) Guarantee Agreement(s) dated 13.10.2009 executed by defendants no. 2 & 3 for Rs. 135,90,74,655/-.

It is also stated in the OA that the defendants no. 2 & 3 created mortgage of residential property situated at Muzaffar Nagar [fully described in Para 5(5.64) of OA] as security to the credit facilities granted to them to the extent of Rs.135,90,74,655/- including the credit facilities granted in terms of sanction letter dated 13.08.2009 by deposit of title deeds on 13.10.2009. It is further stated that the documents of title were deposited with the Bank amongst others on 13.10.2009 [details given in Para 5(5.64) of the OA]. Moreover, the defendants no. 2 & 3 confirmed the creation of mortgage of the above said "Muzaffar Nagar property" vide their letter dated 13.10.2009 by deposit of title deeds. Further, defendants no. 2 & 3 also deposed the affidavits dated 19.09.2009 confirming their ownership of the Muzaffar Nagar property.

**Facts in respect of Credit Facilities to the extent of Rs. 6.38 crore granted in February 2010 in the form of WCDL and the claim in respect thereof**

2.14 It is stated in the OA that at the request of the defendant no. 1 and on the assurance of defendants no. 2 & 3, the applicant bank during February 2010 granted an additional Working Capital Demand Loan of Rs. 6.38 crore and a Deferred Payment Guarantee (DPG) of Rs. 7.50 crore by reducing the BG limit of Rs. 5834.72 availed earlier for their business needs. In this regard, the Sanction Letter dated 26.02.2010 was duly acknowledged by the defendant no. 1 in token of consenting to the terms and conditions of sanction.

The defendant no.1 through its Director, Mr. Yogendra Singh executed / furnished the following amongst other documents for availing the above said WCDL Facility and DPG Facility to the extent of Rs. 13.88 crore:-

- (i) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 26.02.2010 at the registered office of the company;

- (ii) Composite Hypothecation Agreement dated 05.03.2010 for Rs. 13.88 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh;

- (iii) Power of Attorney for collection of Book Debts and other receivables dated 05.03.2010 on behalf of the defendant no. 1 authorizing the Applicant Bank to collect the Bank Debts and Receivables etc. on behalf of the Defendant no. 1;

- (iv) Letter dated 05.03.2010 of defendant no. 1 authorizing the applicant bank to set off the amounts recovered on the basis of Power of Attorney;

- (v) Letter dated 05.03.2010 undertaking to comply with the terms of sanction letter dated 26.02.2010;

- (vi) Guarantee Agreement(s) dated 05.03.2010 executed by defendants no.2 & 3 for Rs.145,10,57,014/- .

It is also stated in the OA that the defendant no. 1 vide letter dated 05.03.2010 confirmed the creation of mortgage in respect of "Narsingpur property" by deposit of title deeds and further agreeing that the same would continue as security to the credit facilities which include the loan amount of Rs. 13.88 crore sanctioned as detailed above.

It is further stated in the OA that the defendants no. 2 & 3 vide letter dated 05.3.2010 confirmed the creation of mortgage in respect of "GF Vasant Vihar property" by deposit of title deeds and further agreeing that the same would continue as security to the credit facilities which include the loan amount of Rs. 13.88 crore sanctioned as detailed above.

It is also stated in the OA that the defendant no. 2 vide letter dated 05.03.2010 confirmed the creation of mortgage in respect of "Basement Vasant Vihar property" by deposit of title deeds and further agreeing that the same would continue as security to the credit facilities which include the loan amount of Rs. 13.88 crore sanctioned as detailed above.

Moreover, defendants no. 2 & 3 vide letter dated 05.03.2010 confirmed the creation of mortgage in respect of "Muzaffar Nagar property" by deposit of title deeds and further agreeing that the same would continue as security to the credit facilities which include the loan amount of Rs. 13.88 crore sanctioned as detailed above.

**Facts relating to Bank Guarantees issued, invoked, paid & pending payment and the claim in respect thereof**

2.15 It is stated in the OA that the applicant bank issued various BGs at the request of defendant no. 1 in favour of different parties at different points of time. The details of the invoked BGs, the amount paid and the date on which such payment has been made are furnished in Annexure filed with the OA. Moreover, the margin money available with the Bank has been adjusted in the BG paid accounts.

The details of BGs issued, paid and outstanding and the related correspondence in respect of each of the BGs paid are detailed in following paragraphs:- **In respect of BG payments made to M/s Ashoka Buildcon Ltd.**

2.16 At the request of the defendant no. 1 one BG [details given in Para 5(5.77)] was issued by the applicant bank I which the beneficiary was M/s Ashoka Buildcon Ltd. (ABL). The said BG was extended from time to time and was finally valid upto 16.07.2011 and was invoked by the beneficiary, thus, the applicant bank made the payment to the beneficiary as the defendant o. 1 did not arrange to provide funds for payment of the invoked BG.

The relevant documents are detailed hereunder:-

- (i) BG (one) issued in favour of ABL;

- (ii) Four letters dated 13.07.2010, 13.10.2010, 30.12.2010 and 31.03.2011 by which the validity of the BG was extended upto 16.07.2011;

- (iii) Letter of Invocation dated 10.09.2011 sent by the beneficiary i.e. ABL for an amount of Rs. 40,34,176/- and requested the Bank for making payment;

- (iv) Letter dated 14.06.2011 by the applicant bank to defendant no.1 requesting them to make payment with respect to the BG issued and paid;

- (v) Letter dated 15.06.2011 under which the Bank remitted the amount by pay order for Rs. 40,34,176/;

- (vi) Notice /Letter dated 20.06.2011 issued to Defendant no. 1 requesting them to make the payment of amount paid by the Bank under the BG.

It is stated in the OA that the amount paid under the BG has been debited to the respective BG paid account and continues a part of the claim made under the OA.

**In respect of BG payments made under four (4) BGs to M/s Eta Star Infrastructure Ltd.**

2.17 At the request of the defendant no. 1 various BGs were issued by the applicant bank in which the beneficiary was M/s Eta Star Infrastructure (ESIL) and the Four BGs issued which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary as the defendant no. 1 did not arrange to provide funds for payment of the invoked BGs [details of said BGs have been given in Para 5(5.78) of OA]. It is also stated that the said BGs were extended from time to time and were valid upto the dates mentioned in the said Para.

It is stated in the OA that the beneficiary of the above said guarantees, ESIL, invoked the said guarantees vide its letter dated 09.05.2011 stating that the contractor has failed to perform the obligations under the Agreement. The applicant bank vide letter dated 10.05.2011 requested the defendant no. 1 to make arrangements for the payment. The defendant no. 1 in turn sent a letter dated 13.05.2011 by fax in forming the bank that the Ld. ADJ, District Court, Gurgaon vide order dated 13.05.2011 restrained ESIL from encashing the aforesaid guarantee and the next date is 21.05.2011. The applicant bank vide letter dated 14.05.2011 informed ESIL about the restraint order and accordingly did not make the payment. The beneficiary, ESIL, vide letter dated 13.06.2011 sent a letter to the applicant bank informing that the petition filed by the defendant was dismissed by Ld. ADJ, District Court, Gurgaon on 09.06.2011. Thus, the applicant bank on 13.06.2011 requested defendant no. 1 to make arrangement for payment of the BGs as the applicant bank received a letter that the petition filed by the defendant was dismissed. As the defendant no. 1 did not make arrangement for payment of the BGs, the applicant bank made the payment of the said BGs aggregating to Rs. 5.70 crore to ESIL, by pay orders and the said Pay Orders have been forwarded by the Bank to ESIL vide letter dated 14.06.2011

It is stated in the OA that the amount paid under the BGs has been debited to the respective BG paid accounts and continues a part of the claim made under the OA.

**In respect of BG payments made under four (4) BGs to M/s KMC Constructions Ltd.**

2.18 At the request of the defendant no. 1 various BGs were issued by the applicant bank in which the beneficiary was M/s KMC Constructions Ltd. (KMC) and the Four BGs issued which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary as the defendant no. 1 did not arrange to provide funds for payment of the invoked BGs [details of said BGs have been given in Para 5(5.79) of OA]. It is also stated that the said BGs were extended from time to time and were valid upto the dates mentioned in the said Para.

It is stated in the OA that the beneficiary of the above said guarantees, KMC, invoked the said guarantees vide its letter dated 09.05.2011 stating that the contractor has failed to perform the obligations under the Agreement. The applicant bank requested the defendant no. 1 to make arrangements for the payment. The defendant no. 1 in turn sent a letter dated 13.05.2011 by fax in forming the bank that the Ld. ADJ, District Court, Gurgaon vide order dated 13.05.2011

restrained KMC from encashing the aforesaid guarantee and the next date is 21.05.2011. The applicant bank vide letter dated 14.05.2011 informed KMC about the restraint order and accordingly did not make the payment. The beneficiary, KMC, vide letter dated 13.06.2011 sent a letter to the applicant bank informing that the petition filed by the defendant was dismissed by Ld. ADJ, District Court, Gurgaon on 09.06.2011. Thus, the applicant bank on 13.06.2011 requested defendant no. 1 to make arrangement for payment of the BGs as the applicant bank received a letter that the petition filed by the defendant was dismissed. As the defendant no. 1 did not make arrangement for payment of the BGs, the applicant bank made the payment of the said BGs aggregating to Rs. 5.25 crore to KMC, by Pay Orders and the said Pay Orders have been forwarded by the Bank to KMC vide letter dated 14.06.2011

It is stated in the OA that the amount paid under the BGs has been debited to the respective BG paid accounts and continues a part of the claim made under the OA.

It is also stated in the OA that the Applicant Bank vide letter dated 15.06.2011 requested the Defendant no.1 to make arrangement for payment of the amount paid by the Applicant Bank to KMC and ESIL to the extent of Rs. 10.95 crore and also in respect of the other BG paid accounts.

**In respect of BG payments made under Two (2) BGs to M/s Pink City Expressway Private Ltd.**

2.19 At the request of the defendant no. 1 various BGs were issued by the applicant bank in which the beneficiary was M/s Pink City Expressway Pvt. Ltd. (PCEPL) and the two BGs issued which were invoked by the beneficiary and 

the appellant bank made the payments to the beneficiary as the defendant no. 1 did not arrange to provide funds for payment of the invoked BGs [details of said BGs have been given in Para 5(5.81) of OA]. It is also stated that the said BGs were extended from time to time and were valid upto the dates mentioned in the said Para.

It is stated in the OA that the beneficiary of the above said guarantees, PCEPL, invoked the said guarantees vide its letter dated 24.05.2011 stating that the contractor has failed to perform the obligations under the Agreement. The defendant no. 1 vide its letter dated 27.05.2011 sent by fax informed that there are arbitration proceedings pending before the Ld. District Judge, Gurgaon. The applicant bank vide letter dated 27.05.2011 informed the defendant no.1 that both the guarantees were paid on the same day as there are no stay orders for encashment and requested him to remit the amount of Rs. 88,65,081.90 with interest @16.75% per annum from 27.05.2011 immediately being the amount paid by the Bank under the above said guarantees after adjusting the margin money.

It is further stated that the Demand Drafts by which the payments under the said BGs were handed over to persons authorized by PCEPL. In this regard, letters dated 26.05.2011 authorizing Mr. Anand Dixit to collect the drafts is relevant which is filed with the OA.

It is stated in the OA that the amount paid under the BGs has been debited to the respective BG paid accounts and continues a part of the claim made under the OA.

**In respect of payments made under Four (4) BGs to M/s Soma Isolux H One Toll Way Pvt. Ltd.**

2.20 At the request of the defendant no. 1 various BGs were issued by the applicant bank in which the beneficiary was M/s Soma Isolux NH One Tollway Pvt. Ltd. (SOMA) and the four BGs issued which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary as the defendant no. 1 did not arrange to provide funds for payment of the invoked BGs [details of said BGs have been given in Para 5(5.82) of OA]. It is also stated that the said BGs were extended vide letter dated 04.01.2010 by the Applicant Bank and were valid upto the dates mentioned in the said Para.

It is stated in the OA that the beneficiary of the above said guarantees, SOMA, invoked the said guarantees vide its letter dated 01.12.2010 stating that the contractor has failed to perform the obligations under the Agreement. The Applicant Bank vide letter dated 03.12.2010 requested the Defendant no. 1 to make arrangement for payment. The defendant no. 1 failed to make the arrangement for the payment of BGs. The Applicant Bank paid the same by four pay orders aggregating to an amount of Rs. 15,01,06,000/- and sent the same vide letter dated 07.12.2010. The applicant bank vide letter dated 08.12.2010 informed the defendant no.1 about the payment and requested him to make the payment of the amount along with interest immediately. It is stated in the OA that the amount paid under the BGs has been debited to the respective BG paid accounts and continues a part of the claim made under the OA.

**In respect of payments made under Six (6) BGs made to M/s Madhya Pradesh Rural Road Development Authority.**

2.21 At the request of the defendant no. 1 various BGs were issued by the applicant bank in which the beneficiary was M/s Madhya Pradesh Rural Road Development Authority (MPRRDA) and the six BGs issued which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary as the defendant no. 1 did not arrange to provide funds for payment of the invoked BGs [details of said BGs have been given in Para 5(5.83) of OA]. It is also stated that three BGs were extended from time to time and were valid upto the dates mentioned [details given in same Para i.e. 5(5.83) of the OA].

It is stated in the OA that the beneficiary, MPRRDA, vide letter dated 11.02.2011 invoked BG dated 28.10.2009 for Rs. 13,58,500/- and the BG dated 05.10.2009 for Rs. 6,85,000/- It is further stated that the Applicant Bank vide letter dated 14.02.2011 informed the Defendant no.1 about the invocation of 2 BGs referred above and requested them to remit the amount immediately.

It is stated in the OA that the Applicant Bank made the payment on 15.02.2011 of the above said two BGs on failure of defendant no. 1 in making payment on demand vide letter dated 14.02.2011. However, the BG paid account in respect of the BG dated 05.10.2009 for Rs. 6,85,000/- has been closed from the account of margin money available in respect of the other closed BGs issued. It is also stated that the BG paid account in respect of the BG dated 28.10.2009

for Rs. 13,58,500/- is still outstanding as shown in the above give in the said Para of OA.

It is stated in the OA that the Applicant Bank made the payment of the said BGs vide Demand Drafts for Rs. 13,58,500/- and Rs. 6,85,000/- and personally handed over the same to the representative of MPRRDA with acknowledgment on letter 15.02.2011. The applicant bank vide letter dated 15.02.2011 requested the Defendant no. 1 to make the payment with respect to the two BGs immediately. MPRRDA vide letter dated 20.04.2011 invoked the BG dated 28.10.2009 for Rs. 12,22,300/- but paid the said amount on failure of the Defendant remit the amount of the same.

The applicant bank vide letter dated 27.04.2011 informed the defendant no.1 about the said payment and having adjusted the margin money relating to the said BGs and also the margin money in respect of another BG number 101BGFG092780002 which was duly released by the beneficiary and requested the said Defendant to make the payment of the amount paid by the Bank along with interest.

It is further stated in the OA that the Beneficiary, MPRRDA, vide letter dated 16.05.2011 invoked the BG dated 05.10.2009 for Rs. 6,15,490/-. Moreover, the Beneficiary vide another letter of the same date invoked the BG dated 26.08.2009 for Rs. 12,30,000/- and another BG dated 05.10.2009 for Rs. 23,80,200/-.

It is further stated in the OA that the Applicant Bank vide letter dated 15.06.2011 informed the Defendant no.1 about the invocation of the four BGs under the three invocation letters dated 16.05.2011 and requested him to remit the funds equivalent to the guarantees.

It is stated in the OA that the Applicant Bank vide letter dated 16.06.2011 remitted an amount of Rs. 53,11,690/- being the amount of the BGs invoked by them vide their three letters dated 16.05.2011 by four demand drafts.

It is further stated in the OA that the Applicant Bank vide letter dated 20.06.2011 requested the Defendant no. 1 to make the payment of the BGs paid as stated above to the beneficiary MPRRDA.

It is also stated in the OA that the amount paid under the BGs has been debited to the respective BG paid accounts and continues a part of the claim made under the OA.

2.22 It is further stated in the OA that the Applicant Bank issued various BGs as stated in earlier paras out of which some BGs are already invoked [details given in Para 5(5.84) of the OA] but not paid because of stay orders passed by Hon'ble Supreme Court from encashment of the same. All the said BGs have been issued in the name of beneficiary, M/s SsangYong Engineering & Construction Co. Ltd. and the validity of the same were extended from time to time and at present they are valid upto 31.01.2012.

2.23 It is also stated that the order dated 31.08.2010 of Hon'ble Supreme Court of India in SLP (C) No. 24746 with cause title M/s Yograj Infrastructure Ltd. Vs. Ssangyong Eng. & Construction Co. Ltd. by which M/s Ssangyong Engineering & Construction Co. Ltd. respondents are enjoined from encashing the BGs of Hon'ble Supreme Court is enclosed with the OA. It is further stated that the details of the BGs which are still outstanding in the Books of account issued on behalf of defendant no.1 have been furnished in an Annexure filed with the OA and applicant bank may be required to make the payment if invoked in respect of the said BGs. The item at Sl. No. 1 has not been closed though the validity date has expired as the same has been issued in favour of the Government Department. The Applicant Bank reserves the right to make a separate claim in respect of any payment made by the Applicant Bank under the outstanding BGs as detailed in the Annexure filed with the OA.

2.24 It is stated in the OA that the charge created by the defendant no. 1 on their assets from time to time has been registered with the Registrar of Companies (ROC). In this regard, the copy of the search report dated 17.01.2012 obtained from M/s Sanjeev Seema & Associates, Chartered Accountants showing the charge creation and its registration with ROC is also enclosed to this OA.

2.25 It is further stated in the OA that the Defendant has admitted and acknowledged their liability to Syndicate bank in their Balance Sheet as on 31.03.2009 filed with Registrar of Companies.

2.26 It is stated in the OA that the Applicant Bank has time and again considered the request of the Defendant no. 1 for restructuring the repayment schedule in respect of the Term Loan granted and further granted / renewed the SOD and WCDL facilities as detailed in paras above, however, the Defendant no. 1 did not comply with the terms of sanctions / renewals / restructures and did not repay the amounts in terms of the documents executed by them from time to time.


Under the aforesaid circumstances, the Applicant Bank sent a notice dated 13.08.2010 under Section 13(2) of SARFAESI Act 2002 and thereafter proceeded with taking action under Section 13(4) of SARFAESI Act for enforcing the security interest on the charged assets. However, the defendants preferred SA No. 37/2011 before the DRT-I, Delhi and in view of the orders passed in said SA, the Bank could not proceed with the further steps under the SARFAESI Act, 2002. It is further stated that vide order dated 11.01.2012 in IA No. 25/2012 filed in SA No.37/2011, the Hon'ble Tribunal permitted the sale of the "Muzaffar Nagar property" at a price of Rs. 85.0 lakh and the same has been accordingly disposed of and the Applicant Bank has adjusted the said amount of Rs. 85.0 lakh in SO account number 9044.125.662. Hence, no relief is being prayed in respect of the said "Muzaffar Nagar Property" in the present OA.

2.27 It is stated in the OA that the Defendant no. 1 represented to the Applicant Bank that they were given sub-contract of work by M/s Ssangyong Engineering & Construction Co. Ltd. ("SSY" or 'Principal Contractor), the principal contractor of M/s National Highway Authority of India (NHAI) who is defendant no. 4 in this OA. It is also stated in the OA that the Defendant no. 1 further informed to the Applicant Bank that huge amounts are receivable from SSY, the Principal Contractor of NHAI in a dispute No. SLAC Arbitration No. 37/2010 (ARB37/10/AG) with cause title Yograj Infrastructure Limited Vs. Ssangyong Engineering & Construction Co. Ltd. pending adjudication before the Ld. Sole Arbitrator, Mr. Graham Easton at 

Singapore which in all probability will be deposed off in first week of February 2012. It is also stated that the receivables rights / title of the Defendant no. 1 under the various contracts entered into by Defendant no. 1 with various parties including SSY, the Defendant no. 4 are charged as security in favour of the Applicant Bank and thus, the Applicant Bank is entitled for an order for recovery of its dues from the amounts that are receivable under any order that may be passed in the Arbitration proceedings which are said to be pending in Singapore and also for an ex-parte interim order restraining the defendant no. 1, or any of his agents/attorneys/representatives/heirs from receiving any of the amounts under the orders, if any passed, in the said Arbitration proceedings. The above said facts with regard to the pendency of the Arbitration proceedings between the defendant no. 1 and SSY can also be culled out from the order dated 01.09.2011 of Hon'ble Supreme Court in Civil Appeal No. 7562 of 2011 [arising out of SLP(C) No. 25624 of 2010] with cause title Yograj Infrastructure Ltd. Vs. SSangyong Engineering and Construction Co. Ltd.

2.28 It is stated in the OA that in the circumstances stated above, and after adjusting the sale proceeds in respect of the "Muzaffar Nagar Property" detailed above, an amount of Rs. 142,17,41,489.65 as on 19.01.2012 along with interest payable from 01.01.2012 is due and outstanding in the said loan accounts maintained by the Applicant Bank in the name of Defendant no. 1 and payable by the Defendants no. 1 to 3, jointly and severally [details given in Para 5(5.90) of OA].


2.29 It is stated in the OA that the loan accounts standing in the name of defendant no. 1 were classified as NPA on 31.05.2010 with retrospective effect from 31.01.2009. Accordingly, the loan accounts which are restructured have been transferred to respective NPL accounts subsequent to 31.05.2010. It is further stated that the Applicant Bank also caused a Legal demand notice dated 17.12.2011 to be issued on the defendants calling upon them to clear the dues in the loan accounts of defendant no. 1. By the said Notice, the Applicant Bank also invoked the guarantees executed by defendants no. 2 & 3. But all in vain.

2.30 It is stated in the OA that the defendant no. 1, after availing the various credit facilities from time to time, did not maintain the financial discipline, thus, the loan accounts maintained in the name of the Borrower Company became overdue and have been classified as NPA on 31.05.2010 with effect from retrospective date i.e. 31.01.2009. It is clarified that the Loan Accounts in the name of defendant no. 1 were restructured and after the said restructured accounts have become overdue, the said accounts, in terms of guidelines, were to be classified from retrospective date on which the loan accounts would have been classified as NPAs, if restructure was not done. Since, the defendants no. 1 to 3 have failed and neglected to pay the dues of the applicant bank, hence, 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 to 3 appeared through their counsel and filed their common WS. Moreover, the Counter Claim was also filed by the defendants no. 1 to 3 (Claimants).

3.1 So far as, defendant no. 4 is concerned, it appeared through counsel but did not chose to file the WS. I

It is pertinent to note here that no relief with regard to recovery of the dues has been claimed qua defendant no.4 by the applicant bank but it has been prayed that direction be given that the amount recovered from the book debts and receivables under any contracts of defendant no. 1 with any party charged to the applicant bank as security which includes the amount receivable from defendant no. 4 i.e. M/s Ssangyong Engineering & Construction Co. Ltd.

4. In their WS, Defendants no. 1 to 3 have raised following main objections :-

- (i) that it a this OA has not been signed, verified or instituted by duly authorized and/or competent person;

- (ii) that this OA is pre-mature and lacks the cause of action. In the OA itself the Bank has admitted that it has initiated action under the SARFAESI Act, hence, the Bank cannot file the OA unless the action under the said Act is not completed;

- (iii) that the present OA is bad for mis/non-joinder of necessary parties. Moreover, defendant no. 4 is not the necessary party in the suit as the Bank has no privity of contract with the defendant no.4;

- (iv) that the Statement of Accounts filed by the Bank along with the OA are not true and correct copies of the Accounts maintained by the Bank, hence, the Bank should be ordered to produce the original Statement of the Accounts as under the Banker's Book of Evidence Act, this Hon'ble Court has the powers to direct the Bank to produce the original Statement of Accounts. Defendants have further raised an objection that the Applicant Bank has also charged interest at varying rates from time to time and such exorbitant and usurious rates of interest has been charged and debited in the accounts of the Defendant no. 1 deliberately. Moreover, the applicant bank has charged the interest @18% which is apparent from certain entries of statement of accounts of March to August 2008 [details given in Para 23 of preliminary objections]. Further, the bank has not provided the material particulars as to the varying rates of interest, penal interests and capitalization thereof for the various periods;

(v) That the Applicant Bank exhibiting its dominant position got a large number of and series of unfilled and undated printed proformas over the years. Even the signatures of various persons including the defendants to the OA were got appended even on blank stamp papers. Moreover, such previous signed papers that have now been subsequently materially altered, the interpolated including by filling up of words, figures and dates and that too without the knowledge, consent, authority or mandate of the Defendants and are now being sought to be used in support of illegal, unsustainable and fraudulent claims made in the instant OA;

(vi) That this OA has not been filed within limitation; 

(vii) That the personal guarantee document allegedly executed by the answering Defendant was unstamped and the same is still unstamped, hence, the same is liable to be impounded under the law; In nutshell, the defendants no. 1 to 3 have denied the execution of documents, sanction of various loan facilities, creation of mortgage and invocation of BGs etc. etc. Hence, request is made to dismiss the OA with heavy costs.

5. In the Counter Claim of Defendants no. 1 to 3 / Claimants no. 1 to 3, it is stated that the Claimant no. 1 is a Company registered under the provisions of Companies Act which is doing the business of construction of building / roads and other projects and has been dealing with the Defendant Bank, for its Banking Services since 2006. It is further stated that the Claimant no.1 got the project for the construction of road at Madhya Pradesh from M/s Ssangyong Engineering & Construction Co. Ltd. Korea (Korean company) who was awarded the contracts by National Highway Authority of India. The defendant bank examined the project and assured to the Claimant no. 1, to provide for the required funds. Moreover, the defendant bank also furnished the Bank Guarantees to the Korean company, who is the principal of the Claimants. It is also stated that once the project is taken and work is started, the Contractor cannot look back and cannot leave the project in between. The Bank being the Financer for projects is always aware about the financial implications, if the project is not completed. In case the work is not carried out as per the contracts, all the BGs furnished by the contractor in favour of the Principal are stand invoked and Principal also 

does not pay the pending bills for the work already completed by the contractor. Due to terms of the contract/ project work, the Principal is always in dominating position and the contractor is on the mercy of the Principal. As per the terms of the contract for project works, for the amount due for the work done and to recover the said dues the contractor had to file its claim before the Arbitrator and in the said proceedings the Principal also had the right to file its counter claim. Moreover, pursuing the arbitration is a costly affair. The defendant Bank furnished the Bank Guarantees, in favour of the Principal and released some advance for the machinery and some amount, to meet the Working Capital requirements to the Claimants. But the project could not be completed because of the dealy at the part of National Highway Authority of India and because of the acts and deeds of the main Contractor M/s Ssangyong Engineering & Construction Co. Ltd., Korea and the Principal National Highway Authority of India. The Claimant has suffered huge losses because of the non-release of the required Working Capital and non-disbursal of the loan. One Loa for Rs. 638.0 Lakh was sanctioned by the Bank in February 2010, however, the entire loan amount was appropriated by the Defendant Bank to meet its illegal demands of non contractual interest. The Defendant Bank has started agitating a huge claim against Claimant though the Bank was not having actual claim against Claimants. This action of the Defendant Bank has tarnished the entire business and image / repute of the Claimant which caused huge financial loss to Claimants which Claimants are entitled to recover from the Defendant Bank. This Project was stopped in October 2010.


It is further stated that the Claimant no. 1 company bagged another contract for Rs.617.0 crore from M/s Soma Enterprises for the construction of GT Road. The claimant on the receipt of the letter of intent approached the Defendant Bank for the issuance of the BGs and the Bank issued BGs for Rs. 4,50,52,500/-in favour of M/s Soma Enterprise Ltd. and the Agreement dated 04.04.2009 was executed between the parties. It is stated that the Bank issued the total BGs of Rs. 19,51,58,500/- in favour of M/s Soma Enterprise Ltd. It is also stated that though the Bank issued the BGs but failed to make available the necessary loans / credit facilities for the working capital to the claimant. M/s Soma Enterprises Ltd. repeatedly wrote to the Claimant about the slow progress of the work, shortfall in the achievement of the targets and served on the claimant the letters dated 29.04.2010, 22.05.2010, 21.06.2010, 19.07.2010, 01.10.2010, 20.10.2010 and 02.11.2010. The principal specifically pointed out the lack of working capital which resulted into the slow progress of the work. The Claimant wrote to the Bank the letters dated 06.11.2009, 26.12.2009, 09.01.2010, 22.01.2010, 04.02.2010, 05.05.2010 and 21.07.2010 requesting the Defendant Bank for making available the promised and need based financial limits to enable the Claimants to complete the project. But the funds were not made available to the Claimants. Hence, the Defendant Bank has created the circumstances that the projects could not be completed and consequently, the Claimants suffered the loss of Rs. 171,68,25,737.88. In this regard the Statement of Loss of profit is filed as Annexure – I.


It is also stated that the National Highway Authority of India (NHAI) has awarded the contract for the construction of the Delhi-Jaipur Highway on construct, built and operate basis to a group of companies and the said group of companies formed a special purpose vehicle named as Pink City Expressway Pvt. Ltd.(PCEPL), M/s ETA Star Infrastructure Ltd. & M/s KMC Construction Ltd. (Principals) who were the promoters of the special vehicle company had to execute the work of construction of the road. The claimant company was approached for quarrying of stone. The principals were having the mines and the job of the claimant was to move the stone from the mines and to crush the same. Initially, the letter of intent was given to the Defendant Bank and the bank while granting the principle approval to finance the project issued the BGs. Subsequently, the Agreement dated 21.04.2009 was executed between the claimants and the principals. The Defendant Bank despite various requests made by the Claimants had not come forward to make available the need-based working capital and loans. Subsequently, the Principals got the mines in the State of Rajasthan and approached the claimants by letter dated 05.07.2010 to quarry the stone from the mines of the principals but because of the non-supporting attitude of the Defendant Bank, the claimant failed to grab the opportunity. Thus, the non performance resulted into the encashment of the BGs for Rs. 11,95,00,000/- which the Defendant Bank has paid without providing the sufficient opportunity to the claimants to approach the High Court for legal redressal. Though the Guarantee Agreement provide seven days time to the Bank for making the payments under BGs, hence, the Claimants have no liability for the payments made by the Bank against these BGs. However, the Claimants has the claim against the Bank for the loss suffered by it and claims Rs. 24,19,50,000/- from the defendant Bank as per the Statement of the loss of profit.

It is stated in the Counter Claim that the Claimants were able to procure the contracts amounting to Rs. 14,45,67,491/- from M/s Madhya Pradesh Rural Development Authority. The Claimants had asked the Defendant Bank for financing the project and despite making major assurances for the release of working capital requirements, the defendant Bank has issued only the BGs in favour of M/s Madhya Pradesh Rural Road Development Authority amounting to Rs. 1,06,83,490/-. Due to non completion of the projects, which were due to non release of working capital requirements, these BGs were invoked. The claimant wrote to the Defendant Bank the letters dated 06.11.2009, 26.12.2009, 09.01.2010, 22.01.2010, 04.02.2010, 05.05.2010 and 21.07.2010 requesting for making available the promised and need based financial limits to enable the claimants to complete the project.

It is further stated that the BGs were invoked and Defendant Bank illegally made the payments, however, the said payment made by the Defendant Bank to the beneficiary is illegal because the same is against the specific terms of the Bank Guarantee. If the invocation of the BG is not as per the BG, the bank is under the obligation to make the payment. It is also stated that regarding these invocations, the bank never informed the Claimant and never delivered the letters of invocation to the Claimant to enable it to examine the authority of invocation. It is settled law by the 

Supreme Court of India that any invocation which is not as per the terms of the BG is no invocation in the eyes of law. As the project could not be completed, Claimant has suffered huge loss in the projects because of the Defendant Bank, hence, Claimant is making a claim of Rs. 4,33,70,247.30 for the loss suffered in this project as per the Statement of the loss of profit. In the light of above, Claimant has made a total claim for an amount of Rs. 276,99,11,117.66 under this Head.

It is further stated that besides the above losses, Claimants have suffered big loss in the reputation, which was enjoying in the market as a contractor of repute. Despite the request of the Claimants, the Defendant Bank did not provide NOC to get the required money/finance from other banks nor made the funds available to them. Moreover, the Claimants lost the contract in hand for about Rs. 700.0 crore and had also lost the projects for more than Rs. 500.0 crore which the claimant was about to get. Further more, the Claimant no. 1 and its directors Claimants no. 2 & 3 suffered humiliation and mental agony and the Claimants estimates their claim on this account of Rs. 5.0 crore. Moreover, the Defendant Bank filed this OA No. 01/2012 for the recovery of Rs. 142,17,41,489.65 and has made the Korean Company as defendant no. 4 and also prayed for the interim relief against the Korean Company. The sole purpose of the Bank of making the Korean Company as the defendant was only to ruin the business of Claimant. While making the Korean Company as Defendant, the Bank has supplied all papers/documents of its claim. The false allegations made by the Defendant Bank in the OA against the claimant can also be used by the Korean Company to defeat the claim of the Claimants which is subject to Arbitration. It is stated that it is likely that the Claimants may loose the claim because of the acts of the defendant Bank otherwise the Claimants have very good case for the award of Rs. 144,42,25,884/- in its favour. Thus, the Defendant Bank is liable to compensate the Claimants for the loss of its claim against the Korean Company and is liable to pay Rs. 144,42,25,884/- to the Claimants. Further more, the Korean Company has also made a Counter Claim of Rs. 221,36,00,000/- against the Claimant Company which is also subject matter of the Arbitration proceedings. In fact the Claimant has no liability towards the Korean Company, but because of the action of the Defendant Bank, if any award is passed by the Arbitrator against the Claimant Company, the Defendant Bank is liable for the said amount also to the Claimant Company.

Thus, the total amount payable by the defendant Bank to the Claimants is as under:- <table> <tbody> <tr> <td>(i)</td> <td>Amount due towards<br/>Loss of Profit<br/>(As per Annexure-I)</td>

</tr> <tr> <td>(ii)</td> <td>Amount due towards<br/>Loss of reputation</td> <td>Rs. 10,00,00,000.00</td> </tr> <tr> <td>(iii)</td> <td>Loss of profit on<br/>Expected Turn Over</td> <td>Rs. 50,00,00,000.00</td> </tr> <tr> <td>(iv)</td> <td>Compensation for<br/>Harassment and mental<br/>Agony</td> <td>Rs. 5,00,00,000.00</td> </tr> <tr> <td>(v)</td> <td>Loss on account of non<br/>Getting the award in<br/>Arbitration Proceedings<br/>Because of the conduct of</td> <td></td> </tr> </tbody> </table>


<table> <tr> <td></td> <td>The Bank</td>

</tr> <tr> <td>(vi)</td> <td>Loss on account of payments<br/>Under the Arbitration Award<br/>To the Korean Company</td> <td>Rs.221,36,00,000.00</td> </tr> <tr> <td></td> <td><b>Total</b></td> <td><b>Rs.707,77,37,001.66</b></td> </tr> </table>

It is also stated that in this Counter Claim, Claimant has not included its claim for the months illegally debited by the defendant Bank in the accounts of Claimant from time to time and the Claimant reserves its rights to claim the same from the Defendant Bank. Moreover, the Defendant Bank has been claiming the interest @19.5% p.a. with monthly rests from the dates when the respective claims arose till the actual payments.

In the light of above, it has been prayed that the Defendant Bank may be ordered to pay a sum of Rs. 707,77,37,001.66 to the Claimants, together with pendentelite and future interest @19.5% p.a. with monthly rests till the date of actual realization and a Recovery Certificate may be issued in favour of the Claimants and against the Defendant Bank for the said amount.

6. Applicant Bank / Defendant in Counter Claim has also filed its reply to the Counter Claim vehemently opposing the same.

It is mainly contented in the Reply of the Bank that the sole basis of the Counter Claim is that the Bank has not granted credit facilities as sought by the defendants for the project which have been undertaking. It is denied by the Bank that the Bank assured to grant credit facilities and non-sanctioning of the credit facilities and non-cooperation of the bank resulted in huge losses. It is alleged by the Bank that the Defendants have not filed even one document where the Bank has assured the defendants with regard to grant of credit facilities. In fact, the Bank had been all along assisted the Defendant no. 1 / Borrower by restructuring the term loan granted and granting further facilities since 2006. In its reply, the Bank has raised following grounds / objections:-

- (i) that no borrower / person is entitled to any loan as a matter of right whereas the counter claim is entirely based on the allegation that the Bank has not granted credit facilities to the defendants for the projects which they have undertaken;

- (ii) That the defendants did not file even one letter wherein such assurance for granting credit facilities was given by the Bank except filing some correspondence and some proposal which was being processing. It is also stated that the Banks have guidelines to follow in the matter of advancing moneys and a credit policy to be followed depending on various factors;

- (iii) That the defendant no. 1 itself has expressed gratitude toward the Bank for assistance more than once in their Balance Sheet and other correspondence. In this regard, Balance Sheet as on 31.03.2009 filed with the OA is relevant;

- (iv) That the details of the BGs issued, their invocation, advance granted, non-payment as per contract, amount of outstanding dues are detailed in the OA;

- (v) That the applicant bank has exercised its legal right to recover its dues and exercising of right in law cannot be said as an action to furnish the image / repute of the Claimant herein on any count. Thus claiming to have incurred huge losses on this count has no basis; In the light of above, request is made to dismiss the Counter Claim with exemplary costs.

7. Rejoinder to the WS of defendants no. 1 to 3 has also been filed by the applicant bank denying the allegations levelled against them and reiterating the averments made in the OA. Moreover, applicant bank has also filed certain documents along with the rejoinder:-

- (i) copy of reply dated 27.03.2012 by the counsel for applicant bank to the Notice by the defendants dated 13.02.2012 (Annexure A-134);

- (ii) Details of disbursement of loans (Annexure A-135);

- (iii) Statement of Current Account no. 90441010011792 duly certified as required under Bankers Books Evidence Act [Annexure A-136(i)];

- (iv) Statement of Current Account no. 9044101004055 duly certified as required under Bankers Books Evidence Act [Annexure A-136(ii)];

- (v) copies of letters / vouchers evidencing the release by way of remittance by RTGS / pay orders (Annexure A-137-colly);

- (vi) Circulars indicating the rates of interest charged by the Bank from time to time in case of various credit facilities (Annexure A-138-colly);

- (vii) Details of the demand letters for the invoked BGs and the mode of communication (Annexure A-139);

- (viii) copy of order dated 11.01.2012 passed by Ld. P.O., DRT-I (Annexure A-140).

8. Defendants no. 1 to 3 have also filed Replication to the Reply to the Counter Claim filed on behalf of Applicant Bank

9. To prove their case, the Applicant Bank leads the evidence by filing affidavit(s) of Mr. D.V. Krishna Kumar, Assistant General Manager; Mr. Krishan Singh Bharti, Assistant Manager; Mr. Sanjay Kumar Gupta, Manager and Mr. Prabhu Dayal Arora, Senior Manager of applicant bank.

9.1 Mr. D.V. Krishna Kumar, officer of applicant bank has relied upon following documents:-

- (i) Power of Attorney of applicant bank in favour of the deponent (Ex. A/A.W.1);

- (ii) Extract of Minutes of the Meeting of the Board of Directors of the defendant no. 1 held on 18.10.2006 (Ex. A-1(i)/A.W.1);

- (iii) Omnibus Counter Guarantee dated 31.10.2006 for Rs. 6.05 crore for BG (Performance) executed by the defendant no.1 through Mr. Yogendra Singh (Ex. A-1(ii)/A.W.1);

- (iv) Letter dated 31.10.2006 enclosing the Counter guarantee along with Fixed Deposits for Rs.60,50,000/- as margin money (Ex. A-1(iii)/A.W.1);

- (v) Guarantee Agreement dated 31.10.2006 for Rs. 6.05 crore executed by Mr. Yogendra Singh, the defendant no. 2 (Ex. A-1 (iv)/A.W.1);

- (vi) Guarantee Agreement dated 31.10.2006 for Rs. 6.05 crore executed by Ms. Ritu Singh, the defendant no. 3 (Ex. A-1 (v)/A.W.1);

- (vii) Title documents with regard to "Nasingpur Property" (Ex. A-2 (i)/A.W.1 to A-2(iv)/A.W.1);

- (viii) Letter dated 31.10.2006 of defendant no. 1 confirming creation of mortgage of the Narsingpur property (Ex. A-3/A.W.1);

- (ix) Documents furnished by defendant no. 1 with regard to land use of mortgaged property with copy of notification /order dated 24.08.2006 and other relevant documents (Ex. A-4(i)/A.W.1 to A-4(v)/A.W.1);

- (x) Affidavit dated 31.10.2006 of defendant no. 2, as director of the defendant no. 1 confirming the ownership of the Narsingpur property by defendant no. 1 (Ex. A-5/A.W.1);

- (xi) Title documents with regard to "Basement Vasant Vihar Property" (Ex. A-6/A.W.1);

- (xii) Letter dated 31.10.2006 of Defendant no. 2 confirming his ownership of the Basement Vasant Vihar property (Ex. A-7/A.W.1);

- (xiii) Affidavit dated 31.10.2006 of Defendant no. 2 confirming his ownership of the Basement Vasant Vihar property (Ex. A-8/A.W.1);

- (xiv) Extract of Minutes of the Meeting of the Board of Directors of the defendant no. 1 held on 01.11.2006 at their registered office (Ex. A-9(i)/A.W.1);

- (xv) Omnibus Counter Guarantee dated 02.11.2006 for Rs. 7.00 crore for BG (Financial) executed by the defendant no. 1 through Mr. Yogendra Singh (Ex. A-9(ii)/A.W.1);

- (xvi) Letter dated 02.11.2006 enclosing the Counter guarantee along with Fixed Deposits for Rs. 30.0 Lakh as margin money (Ex. A-9(iii)/A.W.1);

- (xvii) Guarantee Agreement dated 02.11.2006 for Rs. 7.00 crore executed by Mr. Yogendra Singh, the defendant no. 2 (Ex. A-9(iv) /A.W.1);

- (xviii) Guarantee Agreement dated 02.11.2006 for Rs.7.00 crore executed by Ms. Ritu Singh, the defendant no. 3 (Ex. A-9(v) /A.W.1);

- (xix) Letter dated 02.11.2006 of defendant no.1 confirming creation of mortgage already created on Narsingpur Property will continue as security to the BG Facility of Rs.7.00 crore (Ex. A-10 /A.W.1);

- (xx) Letter dated 02.11.2006 of defendant no. 2 confirming that the mortgage already created by him on "Basement Vasant Vihar Property" will continue as security to the BG Facility of Rs.7.00 crore (Ex. A-11 /A.W.1);

- (xxi) Sanction Letter dated 02.11.2006 duly acknowledged / signed by the defendant no. 1 consenting to terms and conditions of sanction (Ex. A-12 /A.W.1);;

- (xxii) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 09.11.2006 at the registered office of the company (Ex. A-13 / A.W.1);

- (xxiii) Composite Hypothecation Agreement dated 14.11.2006 for Rs. 38.05 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-14 /A.W.1);

- (xxiv) Power of Attorney for collection of Book Debts and other receivables dated 14.11.2006 executed on behalf of defendant no.1 duly notarized authorizing the applicant bank to collect the Book Debts and Receivables on behalf of the Defendant no. 1 (Ex. A-15 /A.W.1);

- (xxv) Letter dated 14.11.2006 executed by defendant no. 1 confirming the execution of POA and authorizing the applicant bank to set off the amounts recovered on the basis of the Power of Attorney (Ex. A-16 /A.W.1);

- (xxvi) Letter of Undertaking dated 14.11.2006 executed by defendant no.1 whereby it undertook to get the POA registered with M/s Ssangyong Engineering & Construction Co. Ltd. for direct payment of the contract money to the Bank and further providing undertaking as required in sanction (Ex. A-17 /A.W.1);

(xxvii) Guarantee Agreements dated 14.11.2006 executed by defendants no.2 & 3 for Rs. 38.05 crore (Ex. A-18 /A.W.1 and A-19/A.W.1);

(xxviii) Letter dated 14.11.2006 of defendant no. 1 confirming the continuation of mortgage of Narsingpur property (Ex. A-20 /A.W.1);

(xxix) Title Documents with regard to "GF Vasant Vihar property" (Ex. A-21 /A.W.1);

(xxx) Letter dated 14.11.2006 of defendants no. 2 & 3 confirming the creation of mortgage of "GF Vasant Vihar Property" (Ex. A-22/A.W.1);

(xxxii) Affidavits dated 14.11.2006 of defendants no.2 & 3 confirming the ownership of the GF Vasant Vihar property (Ex. A-23 /A.W.1 & A-24 / A.W.1);

(xxxii) Letter dated 14.11.2006of defendant no. 2 confirming that the mortgage created by them on "Basement Vasant Vihar Property" (Ex. A-25 /A.W.1);

(xxxiii) Sanction Letter dated09.02.2007 duly acknowledged / signed by the defendant no. 1 (Ex. A-26 /A.W.1);

(xxxiv) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 10.02.2007 at the registered office of the company (Ex. A-27 (i) /A.W.1);

(xxxv) Composite Hypothecation Agreement dated 10.02.2007 for Rs. 12.0 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-27 (ii) /A.W.1);

(xxxvi) Omnibus Counter Guarantee Agreement dated 10.02.2007 for Rs. 12.0 crore for ILC facility (Ex. A-27 (iii) /A.W.1);

- (xxxvii) Letter dated 10.02.2007 enclosing the Counter Guarantee dated 10.02.2007 for Rs. 12.0 crore as continuing security for the amounts due under the ILC (Ex. A-27 (iv) /A.W.1);

- (xxxviii) Letter dated 10.02.2007 from defendant no. 1 undertaking to comply with the terms of sanction of ILC of Rs. 12.0 crore (Ex. A-27 (v) /A.W.1);

- (xxxix) Guarantee Agreements dated 10.02.2007 executed by defendants no.2 & 3 for Rs. 50.05 crore (Ex. A-28 /A.W.1);

- (xl) Defendant no. 1's vide letter dated 10.02.2007 confirming the creation of mortgage in respect of Narsingpur property (Ex. A-29 /A.W.1);

- (xli) Defendants no. 2 & 3's Letter dated 10.02.2007 confirming the creation of mortgage in respect of "GF Vasant Vihar Property" (Ex. A-30 /A.W.1);

- (xlii) Letter dated 10.02.2007 of defendant no. 2 confirming the creation of mortgage in r/o "Basement Vasant Vihar Property" (Ex. A-31 /A.W.1);

- (xliii) Sanction letter dated 11.07.2007 duly acknowledged / signed by the defendant no. 1 (Ex. A-32 /A.W.1);

- (xliv) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 20.07.2007 at the registered office of the company (Ex. A-33 (i) /A.W.1);

- (xlv) Composite Hypothecation Agreement dated 21.07.2007 for Rs. 58.0 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-33 (ii) /A.W.1);

- (xlvi) Omnibus Counter Guarantee Agreement dated 21.07.2007 in respect of BG facility for Rs. 40.0 crore (Ex. A-33 (iii) /A.W.1);

- (xlvii) Letter dated 21.07.2007 enclosing the Counter Guarantee for Rs. 40.0 crore as continuing security for the amounts due under the said guarantee (Ex. A-33 (iv) /A.W.1);

- (xlviii) Power of Attorney for collection of Book Debts and other receivables dated 21.07.2007 on behalf of the defendant no. 1 authorizing the applicant bank to collect the Book Debts and Receivables etc. on behalf of the defendant no. 1 (Ex. A-33 (v) /A.W.1);

- (xlix) Letter dated 20.07.2007 undertaking to comply with the terms of sanction of Rs. 58.0 crore(Ex. A-33 (vi) /A.W.1);

- (l) Letter dated 21.07.2007 of applicant bank to M/s Ssangyong Engineering & Construction Co. Ltd. informing them of the POA executed by defendant no.1 in favour of applicant bank (Ex. A-34 /A.W.1);

- (li) Letter dated 05.10.2007 from M/s Ssangyong Engineering & Construction Co. Ltd.to applicant bank acknowledging the receipt of PA sent by applicant bank (Ex. A-35 /A.W.1);

- (lii) Guarantee Agreements dated 21.07.2007 executed by defendants no.2 & 3 for Rs. 58.0 crore (Ex. A-36 /A.W.1 & A-37/A.W.1);

- (liii) Letter dated 21.07.2007 of defendant no. 1 confirming the creation of mortgage in respect of "Narsingpur property" (Ex. A-38 /A.W.1);

- (liv) Letter dated 21.07.2007 of defendants no.2& 3 confirming the creation of mortgage in respect of "GF Vasant Vihar Property" (Ex. A-39 /A.W.1);

- (lv) Letter dated 21.07.2007 of defendant no. 2 confirming the creation of mortgage in r/o "Basement Vasant Vihar Property" (Ex. A-40 /A.W.1);

- (lvi) Rephase Agreement for revising the repayment schedule of Term Loan dated 26.07.2007 executed by defendants no. 1, 2 & 3 (Ex. A-41 /A.W.1);

- (lvii) Sanction letter dated 27.06.2008 duly acknowledge by defendant no. 1 in token of consenting to the terms and conditions of sanction (Ex. A-42 /A.W.1);

- (lviii) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 02.07.2008 at the registered office of the company (Ex. A-43 (i) /A.W.1);

- (lix) Composite Hypothecation Agreement dated 02.07.2008 for Rs. 47.83 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-43 (ii) /A.W.1);

- (lx) Omnibus Counter Guarantee Agreement dated 08.07.2008 in respect of BG facility for Rs. 37.33 crore (Ex. A-43 (iii) /A.W.1);

- (lxi) Letter handling over the Counter Guarantee dated 08.07.2008 as continuing security to the BG facilities (Ex. A-43 (iv) /A.W.1);

- (lxii) Power of Attorney for collection of Book Debts and other receivables dated 08.07.2008 on behalf of the defendant no. 1 authorizing the applicant bank to collect the Book Debts and Receivables etc. on behalf of the defendant no. 1 (Ex. A-43 (v) /A.W.1);

- (lxiii) Letter dated 08.07.2008 of defendant no. 1 authorizing the applicant bank to set off the amounts recovered on the basis of Power of Attorney (Ex. A-43 (vi) /A.W.1);

- (lxiv) Guarantee Agreements dated 08.07.2008 executed by defendants no.2 & 3 for Rs. 47.83 crore (Ex. A-44 /A.W.1 & A-45/A.W.1);

- (lxv) Letter dated 08.07.2008 of defendant no.1 confirming the creation of mortgage in respect of "Narsingpur property" (Ex. A-46 /A.W.1);

- (lxvi) Letter dated 08.07.2008 of defendant no. 1 confirming the creation of mortgage in respect of "GF Vasant Vihar property" (Ex. A-47 /A.W.1);

- (lxvii) Letter dated 08.07.2008 of defendant no.1 confirming the creation of mortgage in respect of "Basement Vasant Vihar property" (Ex. A-48 /A.W.1);

- (lxviii) Sanction Letter dated 25.11.2008 duly acknowledged / signed by the defendant no. 1 in token of consenting to the terms and conditions of sanction (Ex. A-49 /A.W.1);

(lxix) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 25.11.2008 at the registered office of the company (Ex. A-50(i) /A.W.1);

(lxx) Demand Promissory Note dated 25.11.2008 for Rs.3.50 crore (Ex. A-50(ii) /A.W.1);

(lxxi) Separate letters of defendants no. 2 & 3 agreeing to interchange of limits (Ex. A-50(iii) /A.W.1 & A-50(iv) / A.W. 1);

(lxxii) Sanction Letter dated 27.01.2009 duly acknowledged / signed by defendant no. 1 in token of consenting to the terms and conditions of sanction (Ex. A-51 /A.W.1);

(lxxiii) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 29.01.2009 at the registered office of the company (Ex. A-52 (i) /A.W.1);

(lxxiv) Composite Hypothecation Agreement dated 30.01.2009 for Rs. 6.50 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-52 (ii) /A.W.1);

(lxxv) Letter dated 29.01.2009 undertaking to comply with the terms of sanction of Rs. 6.50 crore (Ex. A-52 (iii) /A.W.1);

(lxxvi) Letter dated 30.01.2009 by the defendant no.1 confirming utilization of the loan for the purpose which it was sanctioned (Ex. A-52 (iv) /A.W.1);

(lxxvii) Rephase Agreement for replace of the term loan of Rs. 2500 lakh dated 02.02.2009 (Ex. A-53 /A.W.1); (lxxviii) Agreement for rephase of the term loan of Rs. 1000 lakh dated 02.02.2009 (Ex. A-54 /A.W.1);

(lxxix) Agreement for replace of the term loan of Rs. 350 lakh dated 02.02.2009 (Ex. A-55 /A.W.1);

(lxxx) Agreement for rephase of the term loan of Rs. 1200 lakh dated 02.02.2009 (Ex. A-56 /A.W.1);

- (lxxxii) Agreement for rephase of the term loan of Rs. 2800 lakh dated 02.02.2009 (Ex. A-57 /A.W.1);

- (lxxxiii) Guarantee Agreement(s) dated 30.01.2009 executed by defendants no. 2 & 3 for Rs. 135,98,00,000/- (Ex. A-58 /A.W.1 & A-59 / A.W. 1);

- (lxxxiiii) Letter dated 30.01.2009 of defendant no. 1 confirming the creation of mortgage in respect of "Narsingpur property" (Ex. A-60 /A.W.1);

- (lxxxiv) Letter dated 30.01.2009 of defendants no.2 & 3 confirmed the creation of mortgage in respect of "GF Vasant Vihar property" (Ex. A-61 / A.W.1);

- (lxxxv) Letter dated 30.01.2009 of defendant no. 2 confirming the creation of mortgage in respect of "Basement Vasant Vihar property" (Ex. A-62 /A.W.1);

- (lxxxvi) Sanction Letter dated 13.08.2009 was duly acknowledged / signed by the defendant no.1, in token of consenting to the terms and conditions of sanction (Ex. A-63 /A.W.1);

- (lxxxvii) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 17.08.2009 at the registered office of the company (Ex. A-64(i) /A.W.1);

- (lxxxviii) Composite Hypothecation Agreement dated 13.10.2009 for Rs. 6884.72 Lakh executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-64(ii) /A.W.1);

- (lxxxix) Omnibus Counter Guarantee Agreement dated 13.10.2009 in respect of BG facility for Rs. 5834.72 Lakh (Ex. A-64(iii) /A.W.1);

- (xc) Power of Attorney for collection of Book Debts and other receivables dated 13.10.2009 on behalf of defendant no. 1 authorizing the applicant bank to collect the Book Debts and Receivables etc. on behalf of the defendant no. 1 (Ex. A-64(iv) /A.W.1);

- (xci) Letter dated 13.10.2009 of defendant no. 1 authoring the applicant bank to set off the amount recovered on the basis of Power of Attorney (Ex. A-64(v) /A.W.1);

- (xcii) Guarantee Agreement(s) dated 13.10.2009 executed by defendants no. 2 & 3 for Rs. 135,90,74,655/- (Ex. A-65 /A.W.1 & A-66/A.W.1);

- (xciii) Title documents with regard to Muzaffar Nagar property belonging to defendants no.2 & 3 (Ex. A-67(i) /A.W.1, A-67(ii)/A.W.1 & A-67(iii)/A.W.1);

- (xciv) Letter dated 13.10.2009 of defendants no. 2 & 3 confirming the creation of mortgage of the "Muzaffar Nagar property" by deposit of title deeds (Ex. A-68 /A.W.1);

- (xcv) Affidavits dated 19.09.2009 of defendants no. 2 & 3 confirming their ownership of the Muzaffar Nagar property (Ex. A-69 /A.W.1);

- (xcvi) Sanction Letter dated 26.02.2010 duly acknowledged by the defendant no. 1 in token of consenting to the terms and conditions of sanction (Ex. A-70 /A.W.1);

- (xcvii) Board Resolution passed in a Meeting of the Board of Directors of the defendant no. 1 held on 26.02.2010 at the registered office of the company (Ex. A-71 (i) /A.W.1);

- (xcviii) Composite Hypothecation Agreement dated 05.03.2010 for Rs. 13.88 crore executed by the defendant no. 1 through its Director Mr. Yogendra Singh (Ex. A-71 (ii) /A.W.1);

- (xcix) Power of Attorney for collection of Book Debts and other receivables dated 05.03.2010 on behalf of the defendant no. 1 authorizing the Applicant Bank to collect the Bank Debts and Receivables etc. on behalf of the Defendant no. 1 (Ex. A-71(iii) /A.W.1);

- (c) Letter dated 05.03.2010 of defendant no. 1 authorizing the applicant bank to set off the amounts recovered on the basis of Power of Attorney (Ex. A-71(iv) /A.W.1);

- (ci) Letter dated 05.03.2010 undertaking to comply with the terms of sanction letter dated 26.02.2010 (Ex. A-71(v) /A.W.1);

- (cii) Guarantee Agreement(s) dated 05.03.2010 executed by defendants no.2 & 3 for Rs.145,10,57,014/- (Ex. A-72 /A.W.1 & A-73/A.W.1);

- (ciii) Letter dated 05.03.2010 of defendant no. 1 confirming the creation of mortgage in respect of "Narsingpur property" (Ex. A-74 /A.W.1);

- (civ) Letter dated 05.3.2010 of defendants no. 2 & 3 confirming the creation of mortgage in respect of "GF Vasant Vihar property" (Ex. A-75 /A.W.1);

- (cv) Letter dated 05.03.2010 of defendant no. 2 confirming the creation of mortgage in respect of "Basement Vasant Vihar property" (Ex. A-76 /A.W.1);

- (cvi) Letter dated 05.03.2010 of defendants no. 2 & 3 confirming the creation of mortgage in respect of "Muzaffar Nagar property" (Ex. A-77 /A.W.1);

- (cvii) Details of the invoked BGs, the amount paid and the date on which such payment has been made furnished in Annexure (Ex. A-78 /A.W.1); Documents with regard to BG issued by applicant bank in which the beneficiary was M/s Ashoka Buildcon Ltd. (ABL) i.e. :-

- (cviii) BG (one) issued in favour of ABL (Ex. A-79 (i) /A.W.1);

- (cix) Four letters dated 13.07.2010, 13.10.2010, 30.12.2010 and 31.03.2011 by which the validity of the BG was extended upto 16.07.2011 (Ex. A-79 (ii) (a)/A.W.1) to (Ex. A-79(ii) (d) /A.W.1);

- (cx) Letter of Invocation dated 10.09.2011 sent by the beneficiary i.e. ABL for an amount of Rs. 40,34,176/- and requested the Bank for making payment (Ex. A-79 (iii) /A.W.1);

- (cxi) Letter dated 14.06.2011 by the applicant bank to defendant no.1 requesting them to make payment with respect to the BG issued and paid (Ex. A-79 (iv) /A.W.1);

- (cxii) Letter dated 15.06.2011 under which the Bank remitted the amount by pay order for Rs. 40,34,176/- (Ex. A-79(v) /A.W.1);

- (cxiii) Notice /Letter dated 20.06.2011 issued to Defendant no. 1 requesting them to make the payment of amount paid by the Bank under the BG (Ex. A-79(vi) /A.W.1); Documents with regard to BG issued by applicant bank in which the beneficiary was M/s Eta Star Infrastructure Ltd. i.e. (ESIL) :-

- (cxiv) Four BGs issued which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary (Ex. A-80(i) /A.W.1) to (A-80(iv) / A.W.1);

- (cxv) Letters by which the validity dates of BGs were extended by the Bank (Ex. A-81(i) /A.W.1) to (Ex. A-81(vi)/A.W.1);

- (cxvi) Letter dated 09.05.2011 of ESIL invoking the BGs (Ex. A-82 /A.W.1);

- (cxvii) Letter dated 10.05.2011 of applicant bank requesting the defendant no. 1 to make arrangements for the payment (Ex. A-83 /A.W.1);

- (cxviii) Letter dated 13.05.2011 of defendant no.1 sent by fax in forming the bank that the Ld. ADJ, District Court, Gurgaon vide order dated 13.05.2011 restrained ESIL from encashing the aforesaid guarantee and the next date is 21.05.201 (Ex. A-84 /A.W.1);

- (cxix) Letter dated 14.05.2011 of applicant bank informing ESIL about the restraint order (Ex. A-85 /A.W.1);

- (cxxx) Letter dated 13.06.2011 sent by ESIL to the applicant bank informing that the petition filed by the defendant was dismissed by Ld. ADJ, District Court, Gurgaon on 09.06.2011 (Ex. A-86 /A.W.1);

- (cxxi) Letter dated 13.06.2011 of applicant bank requesting defendant no. 1 to make arrangement for payment of the BGs (Ex. A-87 /A.W.1);

- (cxxii) Letter dated 14.06.2011 of applicant bank along with Pay Orders forwarded by the Bank to ESIL (Ex. A-88 (i) /A.W.1) to (Ex. A-88(iii)/A.W.1); Documents with regard to BGs issued by applicant bank in which the beneficiary was M/s KMC Construction Ltd. (KMC) :-

- (cxxiii) Four BGs which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary (Ex. A-89 (i) /A.W.1) to (Ex. A-89 (iv)/A.W.1);

- (cxxiv) Letters by which the validity dates of the BGs were extended by the Bank (Ex. A-90 (i) /A.W.1) to (Ex. A-90(vi)/A.W.1);

- (cxxv) Invocation Letter dated 09.05.2011 of KMC (Ex. A-91 /A.W.1);

- (cxxvi) Letter dated 13.05.2011 of defendant no. 1 sent by fax in forming the bank that the Ld. ADJ, District Court, Gurgaon vide order dated 13.05.2011 restrained KMC from encashing the aforesaid guarantee and the next date is 21.05.2011 (Ex. A-92 /A.W.1);

- (cxxvii) Letter dated 14.05.2011 of applicant bank informing KMC about the restraint order and accordingly did not make the payment (Ex. A-93 /A.W.1);

- (cxxviii) Letter dated 13.06.2011 of KMC sent to the applicant bank informing that the petition filed by the defendant was dismissed by Ld. ADJ, District Court, Gurgaon on 09.06.2011 (Ex. A-94 /A.W.1);

- (cxxix) Letter dated 13.06.2011 of the applicant bank requesting the defendant no. 1 to make arrangement for payment of the BGs (Ex. A-95 /A.W.1);

- (cxxx) Letter dated 14.06.2011 of applicant bank a/w Pay Orders by which the applicant bank made the payment of the said BGs aggregating to Rs. 5.25

crore to KMC (Ex. A-96 (i) /A.W.1) to (Ex. A-96(iii) / A.W. 1);

- (cxxxii) Letter dated 15.06.2011 of applicant bank requesting the Defendant no.1 to make arrangement for payment of the amount paid by the Applicant Bank to KMC and ESIL to the extent of Rs. 10.95 crore and also in respect of the other BG paid accounts (Ex. A-97 /A.W.1); Documents with regard to BGs issued by applicant bank in which the beneficiary was M/s Pink City Expressway Private Ltd. (PCEPL) i.e.:-

- (cxxxii) Two BGs which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary (Ex. A-98(i)/A.W. 1) & (Ex.A-98(ii)/A.W. 1);

- (cxxxiii) Letters dated 24.05.2011 of PCEPL invoking the said guarantees (Ex. A-99(i)/A.W.1) and (Ex. A-99(ii)/A.W.1);

- (cxxxiv) Letter dated 27.05.2011 of defendant no.1 sent by fax informing that there are arbitration proceedings pending before the Ld. District Judge, Gurgaon (Ex. A-100/A.W. 1);

- (cxxxv) Letter dated 27.05.2011 of applicant bank informing the defendant no.1 that both the guarantees were paid on the same day (Ex. A-101/A.W. 1);

- (cxxxvi) Letters dated 26.05.2011 of PCEPL authorizing Mr. Anand Dixit to collect the drafts (Ex. A-102 (i) /A.W. 1) to (Ex.A-102(iii)/A.W. 1); Documents with regard to BGs issued by applicant bank in which the beneficiary was M/s Soma Isolux NH One Tollway Pvt. Ltd.(SOMA) i.e.:-

- (cxxxvii) Four BGs which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary (Ex. A-103 (i) /A.W.1) to (Ex. A-103(v)/A.W.1);

- (cxxxviii) Letter dated 04.01.2010 of applicant bank whereby the BGs were extended (Ex. A-104/A.W.1);

- (cxxxix) Letter dated 01.12.2010 of SOMA invoking the BGs (Ex. A-105/A.W.1);

- (cxl) Letter dated 03.12.2010 of applicant bank requesting the Defendant no. 1 to make arrangement for payment (Ex. A-106/A.W.1);

- (cxli) Letter dated 07.12.2010 of Applicant Bank forwarding four pay orders aggregating to an amount of Rs. 15,01,06,000/- (Ex. A-107(i)/A.W.1) to (Ex. A-107(iii)/A.W.1);

- (cxlii) Letter dated 08.12.2010 of applicant bank informing the defendant no.1 about the payment and requesting him to make the payment of the amount along with interest (Ex. A-108/A.W.1); Documents with regard to BGs issued by applicant bank in which the beneficiary was M/s Madhya Pradesh Rural Road Development Authority (MPRRDA) i.e.:-

- (cxliii) Six BGs which were invoked by the beneficiary and the appellant bank made the payments to the beneficiary (Ex. A-109 (i) /A.W.1) to (Ex. A-109(vi)/A.W.1);

- (cxliv) Letters by which three BGs were extended by the Bank (Ex. A-110(i)/A.W. 1) to (Ex. A-110(iii)/A.W.1);

- (cxlv) Letter dated 11.02.2011 of MPRRDA whereby two BGs were invoked (Ex. A-111/A.W.1);

- (cxlvi) Letter dated 14.02.2011 of applicant bank to defendant no.1 informing about the invocation of 2 BGs and requesting to remit the amount (Ex. A-112/A.W.1);

- (cxlvii) Letter dated 15.02.2011 of applicant bank a/w two Demand Drafts (Ex. A-113(i)/A.W. 1) & (Ex. A-113(ii)/A.W. 1);

- (cxlviii) Letter dated 15.02.2011 of applicant bank requesting the Defendant no. 1 to make the payment with respect to the two BGs (Ex. A-114/A.W.1);

- (cxlix) Letter dated 20.04.2011 of MPRRDA whereby it invoked the BG dated 28.10.2009 for Rs. 12,22,300/- (Ex. A-115/A.W.1);

- (cl) Letter dated 27.04.2011 of applicant bank informing the defendant no.1 about the said payment and having adjusted the margin money relating to the said BGs and also the margin money in respect of another BG number 101BGFG092780002 which was duly released by the beneficiary and requesting the said Defendant to make the payment of the amount paid by the Bank along with interest (Ex. A-116/A.W.1);

- (cli) Three letters of 16.05.2011 of MPRRDA invoking three BGs (Ex. A-117/A.W.1), (Ex. A-118-A.W.1) and (Ex. A-119/A.W.1);

- (cli) Letter dated 15.06.2011 of Applicant Bank informing the Defendant no.1 about the invocation of the four BGs under the three invocation letters dated 16.05.2011 and requested him to remit the funds equivalent to the guarantees (Ex. A-120/A.W.1);

- (cli) Letter dated 16.06.2011 of applicant bank remitting an amount of Rs. 53,11,690/- being the amount of the BGs invoked by them vide their three letters dated 16.05.2011 by four demand drafts (Ex. A-121(i)/A.W.1) to (Ex. A-121(iii)/A.W.1);

- (cliv) Applicant Bank's letter dated 20.06.2011 requesting the Defendant no. 1 to make the payment of the BGs paid to the beneficiary MPRRDA (Ex. A-122/A.W.1);

- (clv) Four BGs issued in the name of the beneficiary, M/s Ssangyong Engineering & Construction Co. Ltd. which have been invoked but not paid because of stay orders passed by Hon'ble Supreme Court from encashment of the same (Ex. A-123(i)/A.W.1) to (Ex. A-123(iv)/A.W.1);

- (clvi) Letters invoking the said guarantees (Ex. A-124(i)/A.W.1 to Ex.A-124(iv)/A.W.1);

- (clvii) Copy of order dated 31.08.2010 of Hon'ble Supreme Court of India in SLP(C) No. 24746/2010 in *M/s Yograj Infrastructure Ltd. Vs.Ssangyong Eng. & construction Co. Ltd. & Anr.* (Mark-A-125/AW-1);

- (clviii) Details of BGs which are still outstanding in the Books of Accounts issued on behalf of defendant no. 1 (Ex. A-126/A.W.1);

- (clix) Search Report dated 17.01.2012 obtained from M/s Sanjeev Seema & Associates, Chartered Accountants showing the charge creation and its registration with ROC (Ex. A-127(i)/A.W.1);

- (clx) Balance Sheet as on 31.03.2009 of the defendant whereby the Defendant has admitted and acknowledged their liability to Syndicate bank in their Balance Sheet filed with Registrar of Companies (Ex.A-127(ii)/A.W.1);

- (clxi) Notice dated 13.08.2010 issued by the applicant bank u/s 13(2) of SARFAESI Act (Ex.A-128/A.W.1);

- (clxii) Copy of Order dated 11.01.2012 in IA No. 25/2012 filed in SA No. 37/2011 whereby this Tribunal permitted the sale of the "Muzaffar Nagar property" (Mark A-129/A.W.1);

- (clxiii) Copy of order dated 01.09.2011 of Hon'ble Supreme Court in Civil Appeal No. 7562/2011 [arising out of SLP(C) No. 25624 of 2010] with cause title "Yogra] Infrastructure Ltd. Vs. Ssang Yong Engineering and Construction Co. Ltd." (Mark A-130/A.W.1);

- (clxiv) Statement of Accounts of the said SOD/Loan Accounts from the date of inception till 19.01.2012 containing the true copies of the entries made in the ordinary books of accounts/computer data kept in the ordinary course of the Banking business and duly certified as required under the Bankers' Books Evidence Act, 1891 (Ex. A-131(i)/A.W.-1) to (Ex. A-131(x)/A.W.1);

- (clxv) Copy of Legal Demand Notice dated 17.12.2011 issued by the applicant bank to the defendants along with postal receipts and acknowledgments (Ex. A-132(i)/A.W.1) to (Ex. A-132(v)/A.W.1);

- (clxvi) Computer generated table with regard to interest chargeable as per the Banks guidelines / terms of agreements (Mark A-133/A.W.1).


9.2 Mr. Krishan Singh Bharti, officer of applicant bank (AW-2) has also placed reliance upon various documents which have already been relied by Sh. D.V. Krishna Kumar (AW-1) i.e. (Ex. A-1/A.W.1) to (Ex. A-25/A.W.1).

9.3 Mr. Sanjay Kumar Gupta, officer of applicant bank (AW-3) has also placed reliance upon various documents which have already been relied by Sh. D.V. Krishna Kumar (AW-1) i.e. (Ex. A-26/A.W.1) to (Ex. A-50(i) to (iv)/A.W.1).

9.4 Mr. Prabhu Dayal Arora, officer of applicant bank (AW-4) has also placed reliance upon various documents which have already been relied by Sh. D.V. Krishna Kumar (AW-1) i.e. (Ex. A-51/A.W.1) to (Ex. A-133/A.W.1)

10. So far as, evidence of defendants no. 1 to 3 is concerned, defendants no. 1 & 2 have led evidence by way of affidavit of Sh. Yogendra Singh, director of defendant no. 1 and is also defendant no. 2 but no document has been filed in support of the WS.

11. Moreover, defendants no. 1 & 2 / Counter Claimants no. 1 & 2 also led evidence by way of affidavit of Sh. Yogendra Singh, director of defendant no. 1 and also defendant no. 2 in support of their Counter Claim. They have placed reliance upon the following documents but did not chose to exhibit the same :-

- (i) Letters dated 29.04.2010, 22.05.2010, 21.06.2010, 19.072010, 01.10.2010, 20.10.2010 and 02.11.2010 served by Soma Enterprises Ltd. on the Counter Claimant (CCW-1/1 to CCW1/7);

- (ii) Letters dated 06.11.2009, 26.12.2009, 09.01.2010 22.01.2010, 04.02.2010, 05.05.2010 and 21.07.2010 written by Counter Claimant to the Defendant Bank (CCW-1/8 to CCW1/14);

- (iii) Letter dated 05.07.2000 of the companies to the Counter Claimant to quarry the stone from the mines situated at Rajasthan (CCW-1/15);

- (iv) Letter dated 11.02.2011 i.e. Annexure A-111 of OA (CCW-1/16);

- (v) Letter dated 20.04.2011 i.e. Annexure A-115 of OA (CCW-1/17);

- (vi) Letter dated 16.05.2011 i.e. Annexure A-117 & 118 of OA (CCW-1/18);

- (vii) Award passed by the Arbitral Tribunal against the Claimant (CCW-1/19);

- (viii) Agreement between the Claimant and Ssangyong dated 13.08.2006 (CCW-1/20);

- (ix) Legal Notice dated 13.02.2012 served by the Claimants to the Defendant Bank (CC-1/21).

12. It is pertinent to mention here that during the pendency of this OA, IA no. 187/2021 was filed on behalf of applicant bank for seeking substitution of Canara Bank in place of applicant bank i.e. Syndicate Bank which was allowed vide order dated 10.09.2021 of this Tribunal. Accordingly, names of applicant bank was substituted with Canara Bank

13. Moreover, during the pendency of this OA, it was informed by the parties that personal insolvency proceedings have also been initiated qua defendants no. 2 & 3 before Ld. NCLT, Delhi.

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

14.1 Since, personal insolvency proceedings are pending qua defendants no. 2 & 3, hence, no final order can be passed qua these defendants, at this stage.

14.2 In these circumstances, now there is no need to deal with the WS of defendants no. 2 & 3, however, the objections raised in the common WS on behalf of defendants no. 1 to 3 is being dealt by this Tribunal with regard to defendant no. 1 only in following paras:-

- (i) Defendant no. 1 has raised an objection that it a this OA has not been signed, verified or instituted by duly authorized and/or competent person.

Record reveals that the applicant bank has filed the power of attorney (Ex. A/A.W.1) executed by the applicant bank in favour of Sh. D.V. Krishan Kumar, Assistant General Manager of applicant bank who has filed this OA. Hence, this Tribunal is of the view that this plea of defendant no. 1 does not hold any water and same stands dismissed accordingly.

- (ii) Next objection raised by the defendant no. 1 is that this OA is pre-mature and lacks the cause of action. In the OA itself the Bank has admitted that it has initiated action under the SARFAESI Act, hence, the Bank cannot file the OA unless the action under the said Act is not completed.

Record reveals that the applicant bank has itself admitted in the OA that the applicant bank has already sold the "Muzaffar Nagar Property" under SARFAESI as per order passed by the Tribunal in the SA filed by the defendants and adjustment of the sale proceeds has already been given by the bank. Hence, this OA has been filed under Section 13(10) of SARFAESI Act r/w Rule 11 of the Security Interest (Enforcement) Rules r/w Section 19 of the RDB Act, 1993. In this regard, Section 13(10) of SARFAESI Act is relevant which is as follows :- *13(10) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower.*

This Tribunal is of the view that the Bank can go ahead simultaneously under RDB Act as well as SARFAESI Act, as already held by higher forums in catena of judgments. Accordingly, this plea of defendant no.1 is liable to be dismissed and same stands dismissed accordingly.

(iii) Next objection of defendant no.1 is that the present OA is bad for mis/non-joinder of necessary parties. Moreover, defendant no. 4 is not the necessary party in the suit as the Bank has no privity of contract with the defendant no.4.

Record reveals that applicant bank has filed various Power of Attorneys executed by defendant no. 1 on 14.11.2006, 21.07.2007, 08.07.2008, 13.10.2009 and 05.03.2010 [(Ex. A-15/A.W.1), (Ex. A-33/A.W.1), (Ex. A-43(v)/A.W.1); (Ex. A-64(v)/A.W.1), (Ex.A-71(iii)/A.W.1)] whereby it authorized the applicant bank to collect the Book Debs and Receivables on behalf of defendant no. 1. Hence, there is no merit in the contention of defendant no. 1 and same stands rejected.

- (iv) Defendant no. 1 has also raised an objection that the Statement of Accounts filed by the Bank along with the OA are not true and correct copies of the Accounts maintained by the Bank, hence, the Bank should be ordered to produce the original Statement of the Accounts as under the Banker's Book of Evidence Act, this Hon'ble Court has the powers to direct the Bank to produce the original Statement of Accounts. Defendants have further raised an objection that the Applicant Bank has also charged interest at varying rates from time to time and such exorbitant and usurious rates of interest has been charged and debited in the accounts of the Defendant no. 1 deliberately. Moreover, the applicant bank has charged the interest @18% which is apparent from certain entries of statement of accounts of March to August 2008 [details given in Para 23 of preliminary objections]. Further, the bank has not provided the material particulars as to the varying rates of interest, penal interests and capitalization thereof for the various periods.

Record reveals that the applicant bank has already filed the Statement of Accounts of the SOD/Loan Accounts under Bankers' Books of Evidence Act (Ex. A-131(i)/A.W.1) to (Ex.A-131(x)/A.W.1). Moreover, computer generated table with regard to interest chargeable has also been filed. Defendant no. 1 was always at liberty to file its own statement of accounts with correct figures but it has failed to do so. In these circumstances, this plea of defendant no. 1 is also hereby rejected.

(viii) Defendant no.1 has also raised an objection that the Applicant Bank exhibiting its dominant position got a large number of and series of unfilled and undated printed proformas over the years. Even the signatures of various persons including the defendants to the OA were got appended even on blank stamp papers. Moreover, such previous signed papers that have now been subsequently materially altered, the interpolated including by filling up of words, figures and dates and that too without the knowledge, consent, authority or mandate of the Defendants and are now being sought to be used in support of illegal, unsustainable and fraudulent claims made in the instant OA.

This Tribunal is of the view that plea of blank documents is no plea in the eyes of law as has been held by the Hon'ble Delhi High Court in the matter of "Indian Bank Vs. Cheese Wafers (India) Pvt. Ltd 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 blank / unfilled documents, alleged to be misused by the applicant for creating false claims, is not maintainable after filing of the suit and the same is rejected.

A solid green square is positioned at the bottom right of the page, below the page number 72.

(ix) Defendant no. 1 has also raised an objection that this OA has not been filed within limitation.

Record reveals that this OA was filed on 23.01.2012 and various loan facilities were sanctioned / restructured from time to time and the security documents were executed by the defendants on 30.01.2009, 02.02.2009, 13.10.2009. Moreover, mortgage was created in 2006 which was further confirmed from time to time latest in March 2010. Further more, defendant no. 1 has also admitted and acknowledge its liability to the applicant bank in Balance Sheet as on 31.03.2009 filed with the Registrar of Companies (Ex.A-127(ii)/A.W.1). Hence, this OA has been filed well within the period of limitation. Accordingly, this plea of defendant is also hereby rejected.

(x) Defendant no. 1 has also raised an objection that the personal guarantee document allegedly executed by the answering Defendant was unstamped and the same is still unstamped, hence, the same is liable to be impounded under the law.

I have gone through the guarantee documents and it is apparent from the record that the said guarantee agreements are duly stamped, hence, I do not find any infirmity or illegality in the same. Accordingly, this plea of defendants is hereby rejected.

15. Now I would like to deal with the Counter Claim filed by Defendant no. 1. Record reveals that the defendant no. 1 has filed the Counter Claim only on the basis that the Bank has not granted credit facilities as sought by the defendants for the project which have been undertaking. It is matter of record that the Defendant no. 1 has failed to file even one document where the Bank has assured the defendants with regard to grant of credit facilities. In fact, the Bank had been all along assisted the Defendant no. 1 / Borrower by restructuring the term loan granted and granting further facilities since 2006.

This Tribunal is of the view that no borrower / person is entitled to any loan as a matter of right. Even otherwise, the defendants did not file even one letter wherein such assurance for granting credit facilities was given by the Bank except filing some correspondence and some proposal which was being processing. In fact, the Banks have guidelines to follow in the matter of advancing moneys and a credit policy to be followed depending on various factors. Moreover, it is apparent from the record i.e. Balance Sheet as on 31.03.2009 of defendant no. 1 as well as other correspondence that the defendant no. 1 itself has expressed gratitude toward the Bank for assistance. Moreover, the details of the BGs issued, their invocation, advance granted, non-payment as per contract, amount of outstanding dues are detailed in the OA which have been duly proved by the bank.

In the light of above discussion, this Tribunal is of the view that the Counter Claim filed by the defendant no.1, being devoid of merits, is liable to be rejected and same stands rejected.


16. On the other hand, the witnesses of applicant bank have fully corroborated the averments made in the OA. Even otherwise the whole case of the applicant bank is based on the documents and the respective witnesses have 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 bank has proved its case beyond reasonable doubts. Accordingly, the Applicant is entitled to recover the entire amount, as claimed in the OA from the defendants along with pendentelite interest i.e. @17% p.a. and costs as agreed between the parties.

17. In this OA, applicant bank has prayed to issue recovery certificate against defendants no. 1 to 3 wherein the defendant 1 is principal borrower and defendants no. 2 & 3 are personal guarantors.

18. Since defendants no. 2 & 3 are before Ld. NCLT, Delhi, hence, no order qua defendants no. 2 & 3 also can be passed against said defendant at this stage.

However, it is directed that applicant banks shall be at liberty to revive the OA qua defendants no. 2 & 3 in case proceedings before Ld. NCLT are quashed / withdrawn in future, in accordance with law.

It is directed that in case Applicant Banks receive any amount from the proceedings pending before Ld. NCLT, they shall give due adjustment of the same in the recovery proceedings.

19. So far as, defendant no. 4 is concerned, though no relief with regard to recovery of the dues has been claimed qua defendant no.4 by the applicant bank but it has been prayed that direction be given that the amount recovered from the book debts and receivables under any contracts of defendant no. 1 with any party charged to the applicant bank as security which includes the amount receivable from defendant no. 4 i.e. M/s Ssangyong Engineering & Construction Co. Ltd.

In the light of discussion made in Para 14.2(iii) [whiling dealing with the WS of defendant no. 1] of this Order, applicant bank is permitted to recover the amount recovered from the book debts and receivables under any contracts of defendant no. 1 with any party charged to the applicant bank as security which includes the amount receivable from defendant no. 4 i.e. M/s Ssangyong Engineering & Construction Co. Ltd.

20. Consequently, TA No. 375/2022 is liable to be allowed in favour of applicant bank against defendant no. 1 (Borrower company) who is liable to pay the respective dues of the applicant bank along with costs and pendentelite & future interest @17% p.a., from the date of filing of present OA, till the date of payment in full.

ORDER

- (i) TA No. 375/2022 stands allowed and the defendant no. 1 is directed to pay to the applicant bank, within 30 days, a sum of Rs. 142,17,41,489.65 (Rupees One Hundred Forty Two Crore Seventeen Lakh Forty One Thousand Four Hundred Eighty Nine and Paise Sixty Five only) along with pendentlite and future interest @17% p.a. from the date of filing of this OA till realization of the entire dues of the Applicant Bank failing which, the aforesaid amount shall be recovered from the sale of secured assets / mortgaged properties / hypothecated assets / stocks etc., if any, belonging to the defendant no. 1 only.

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

- (ii) Since defendants no. 2 & 3 are before Ld. NCLT, Delhi, hence, no order qua defendants no. 2 & 3 also can be passed against said defendant at this stage.

However, it is directed that applicant banks shall be at liberty to revive the OA qua defendants no. 2 & 3 in case proceedings before Ld. NCLT are quashed / withdrawn in future, in accordance with law.

It is also directed that in case Applicant Banks receive any amount from the proceedings pending before Ld. NCLT, they shall give due adjustment of the same in the recovery proceedings.

- (iii) In the light of discussion made in Para 14.2(iii) [whiling dealing with the WS of defendant no. 1] of this Order, applicant bank is permitted to recover the amount recovered from the book debts and receivables under any contracts of defendant no. 1 with any party charged to the applicant bank as security which includes the amount receivable from defendant no. 4 i.e. M/s Ssangyong Engineering & Construction Co. Ltd.

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

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

- (i) Parties are directed to appear before the Recovery Officer-II, DRT-III, Delhi on 16.09.2025.

- (ii) 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: 15.07.2025