INDIAN OVERSEAS BANK vs Emmsons International Limited on 4 December 2025

**FINAL ORDER**

1. This original application has been filed by the applicant bank, on 05.05.2017, through Mr. I. Prabakar, Chief Manager and constituted attorney of applicant bank, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants no. 1 to 6 for recovery of a sum of Rs. 302,49,07,250.00 (Rupees Three Hundred Two Crore Forty Nine Lakh Seven Thousand Two Hundred and Fifty only) as on 05.05.2017 besides pendentelite plus future interests along with all cost & charges and other relief(s).

1.2 It is pertinent to note here that this OA bearing no. 558/2017 was originally filed before Ld. DRT-I, Delhi, however, in pursuance to Gazette Notification No. 4718 (E)

dated 04.10.2022 issued by Government of India, Department of Financial Services, Ministry of Finance, this case file was transferred by Ld. DRT-I, Delhi to this Tribunal in October 2022 and was numbered at TA-248/2022.

2. The brief facts of the case are that the Applicant Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and is represented by its authorized representative, Mr. I. Prabakar, Chief Manager who is a duly constituted attorney of the Applicant Bank vide General Power of Attorney dated 19.12.1997 who is authorized to sign and verify the pleadings, application, reply, affidavit, other necessary proceedings and to do all other needful acts on behalf of the Applicant Bank and to file suit and to do all connected and incidental acts or deeds with the prosecuting, instituting and presenting this case.

2.1 It is stated in the OA that the Defendants No. 7 to 9 are Performa Defendants, as no substantial relief is claimed against them and the Applicant Bank and Performa Defendants no. 7 to 9 are collectively referred to as "Lender Banks". The Defendant no. 7 was appointed as Security Trustee by and with the consent of Applicant Bank, Defendant no. 1 and other lender banks.

The defendants no. 2 to 6 are the directors and guarantors to the credit facilities availed by the Defendant no. 1 Company and executed the Deed of Personal Guarantees for the benefit of the Term Loan Lenders, including the Applicant Bank.

It is stated in the OA that Defendant no. 1 is company incorporated under the Companies Act and have availed / borrowed different credit facilities from the Applicant Bank and from Defendants no. 7 to 9 from time to time, for merchant export purpose for importing and exporting various types of commodities included in the merchant trading activities. It is further stated that for availing the loan for the proposed purpose, applicant bank and the defendants no. 7 to 9 banks were approached by the Defendant no. 1 company and credit facilities were secured from them under the Consortium Banking Agreement. The members of the Joint / Consortium Banking Arrangement are Applicant No. 1 and the Defendants no. 7 to 9 respectively and the credit facility lastly to the extent of Rs. 1083.19 Crore, excluding the Unsecured Loan of Rs. 29.40 Crore sanctioned by the Applicant Bank, towards financing company's share of investment as its equity contribution in the Joint Venture projects overseas and released on the individual documentation of the Applicant Bank, was sanctioned by them.

2.2 It is stated in the OA that the Defendant No. 1 company is the Principal Borrower and defendants no. 2 to 6 are Director / Guarantor of the loan facilities which were obtained by the Defendant No. 1 Company from Applicant Bank and the Defendants no. 7 to 9. Moreover, Defendants No. 1 to 6 have also created security interest in favour of all the member banks under Consortium Banking Agreement for which different documents have been signed / executed by the Defendants no. 1 to 6. Further, pari-passu charges have also been created which have been duly registered in the office of the Registrar of Companies. Therefore, defendants no. 1 to 6 are jointly and severally liable to liquidate the dues towards the Applicant Bank and defendants no. 7 to 9.

2.3 It is further stated in the OA that the Defendant no. 1 Company was earlier also availing certain credit facilities from Applicant Bank i.e. Indian Overseas Bank, since 2001. The borrowers and guarantors had executed several loan documents during this period in favour of the applicant bank while availing credit facilities. Further, some properties were submitted as collateral securities on pari-passu basis besides the other eight properties which were mortgaged by the borrower and guarantors [details of the credit facilities extended as well as details of collateral securities have been given in Para 5(5.9) of the OA].

It is pertinent to point out that the above mentioned sanction was issued under restructuring proposal. The defendants borrower / guarantors executed inter alia the following documents accepting the terms and conditions stated in the above mentioned credit sanction advise:-

- (i) F12A (Demand Promissory Note) for Rs. 4.0 Crore dated 31.03.2005;

- (ii) F378 (Letter of Undertaking repayment in instalments) dated 31.03.2005;

- (iii) Agreement for hypothecation of book debts dated 31.03.2005;

- (iv) Board Resolution dated 14.03.2005 & 31.03.2005.

2.4 It is stated in the OA that the Defendants no. 1 to 6 again approached the applicant bank requesting for further credit and the applicant bank issued a credit sanction advice dated 04.09.2015 extending the credit facilities [details given in Para 5(5.11) of the OA]. The unavailed portion of portion of packing credit is permitted to be availed as Letter of Credit on DP terms. The entire limits were collaterally secured by the securities on 1^st pari-passu basis with Defendant no. 7 as well as additional security of equitable mortgage of property [details given in Para 5(5.11) at page 16-17 of OA].

It is pertinent to point that that accepting the terms and conditions stated in the above mentioned credit sanction advice, the defendants – borrower / guarantors executed joint documents dated 15.05.2006.

2.5 It is also stated in the OA that on 02.11.2005, defendant no. 7 issued a letter to initiate process for joint documents and confirm the creation of Equitable Mortgage of additional properties of Defendants no. 2 & 3 on pari passu basis. In furtherance of the above request, the defendant no. 7 / Oriental Bank of Commerce executed General Power of Attorney dated 18.02.2006. On 28.04.2006, resolution was passed by the Defendant no. 1 to create joint mortgage for availing various credit facilities from the member banks of the consortium.

2.6 It is stated in the OA that the Defendants no. 1 to 6 again approached the applicant bank and requested for additional adhoc credit. After considering the facts and documents put forth by the defendants no. 1 to 6, the applicant bank on 12.05.2006 issued credit sanction advice to the Defendant no. 1 extending credit facilities of Rs. 16.0 crore on additional adhoc secured packing credit and Rs. 20.80 crore on additional adhoc FDDBP [details of said credit facilities as well as terms & conditions have been given in Para 5(5.17) of the OA] and the following documents were executed :-

- (i) Working Capital Consortium Agreement dated 15.05.2006 executed between Defendant no. 1 and the Bank Consortium;

- (ii) Joint Deed of Hypothecation dated 15.05.2006 executed by Defendant no. 1 in favour of Bank Consortium;

- (iii) Interse Agreement dated 15.05.2006 executed between the applicant bank and Defendant no. 7;

- (iv) personal guarantees executed by the defendants in faovur of the applicant bank and defendant no. 7.

It is also stated in the OA that accepting the terms and conditions of the above-mentioned sanction advice, the defendants – borrowers / guarantors further executed the following individual documents:-

- (i) F12A (DPN) dated 15.05.2006 for Rs. 16.0 Crore;

- (ii) F251B (Advances against Good Awaiting Shipment Packing Credit) Rs. 16.0 Crore;

- (iii) Letter of Hypothecation dated 15.05.2006;

- (iv) F12A (DPN) dated 15.05.2006 for Rs. 20.8 crore;

- (v) F111A (Guarantee for Cash Credit etc.) dated 15.05.2006 for Rs. 65.0 crore.

2.7 It is further stated in the OA that the Defendants no. 1 to 6 again approached the applicant bank for renewal of the limits and on 06.10.2006, the applicant bank issued a credit sanction advice to the Defendant no. 1 extending credit facility of Rs. 15.0 crore on the Secured Packing Credit, Rs. 3.75 crore on working capital term loan, Rs. 9.0 crore on FDDPB/FDUBD with sub-limit of Rs. 3.60 crore, Rs. 6.0 crore on the Letter of Credit, Rs. 90.0 Lakh on the Letter of Personal Guarantee and Rs. 50.0 Crore on forward purchase [details of the credit facilities sanctioned under the above mentioned credit sanction advice as well as terms and conditions have been given in Para 5(5.24) of the OA].

2.8 It is stated in the OA that the Defendant no. 7 Bank was authorized to act as Lead Bank and agent and further to accept the delivery and deposit of all documents of title, evidence, deed and writings to be made by the Defendant no. 1 Company.

2.9 It is further stated that the Defendant no. 1 Company in the meeting of its Board of Directors held on 28.12.2006, accepted the terms and conditions in the respective sanction letters of the lender banks by passing a resolution, authorizing Anil Monga, Director of Defendant no. 1 Company to execute the necessary security documents and to affix the common seal of the Defendant no. 1 company and to deposit the title deeds of the properties of the Defendant no. 1 company.

2.10 It is stated in the OA that Defendants no. 1 to 5 signed and executed the following loan and security documents for a sum of Rs. 248.0 crore in favour of the member Banks for availing the above mentioned facilities:-

- (iii) Deed of Guarantee dated 30.12.2006 executed by Defendants – Guarantors.

It is also stated in the OA that the above mentioned documents are with the lead bank namely defendant no. 7, therefore, this Hon'ble Tribunal may direct the defendant no. 7 to produce the originals of the same, if so desired.

It is further stated in the OA that an Inter se Agreement dated 30.12.2006 was also signed and executed amongst the lender banks detailing the Inter se Rights and obligations with respect to the credit facilities extended to the Defendant no. 1 Company.

2.11 It is stated in the OA that the Defendant no. 1 Company again requested for additional adhoc credit and the applicant bank on 10.05.2007 issued a credit sanction advice. It is also stated that the entire limits shall be collaterally secured by the securities on first pari passu basis with other consortium members [details of securities have been given in Para 5(5.29) of the OA].

On 11.05.2007, the Defendant no. 1 passed a Board Resolution for the purpose of availing adhoc Letter of Credit (Foreign) limit of Rs. 1000.0 Lakh.

Further, the Defendants no. 1 to 6 executed the following documents:-

- (i) Guarantee for Cash Credit etc. (F111A) dated 11.05.2007 for a sum of Rs. 44.65 Crore;

- (ii) Demand Promissory Note dated 11.05.2007 for Rs. 10.0 Crore;

- (iii) F-16 enclosing DPN of Rs. 10.0 Crore dated 11.05.2017;

- (iv) Letter of Hypothecation for securing machinery / goods / book debts for Rs. 44.65 Lakh.

2.12 It is further stated in the OA that on 19.06.2007, the Applicant Bank issued a credit sanction advice to the Defendant no. 1 extending credit facilities of Rs. 16.5 crore on secured packing credit, Rs. 3.0 crore on the working capital term loan, Rs. 10.5 crore on FDDBP/FDUBD (LC) with a sub-limit of Rs. 5.0 crore, Rs. 15.0 crore on Letter of Credit, Rs. 9.0 Lakh on Letter of Guarantee and Rs. 50.0 Crore on forward contract by creating pari-passu charge [details of credit facilities extended have been given in Para 5(5.32) of the OA].

Accepting the terms and conditions of the above-mentioned credit sanction advice, the following individual documents were executed by the defendants – borrowers / guarantors:-

- (i) F12A (DPN) dated 20.06.2007 for Rs. 1.5 crore for the packing credit;

- (ii) F-16 dated 20.06.2017 for Rs. 1.5 crore;

- (iii) F68 dated 20.06.2017 for collection and negotiation of bills;

- (iv) Letter of Hypothecation dated 20.06.2017;

- (v) F251B (Advances against goods awaiting shipment) dated 20.06.2017 for Rs. 1.5 crore;

- (vi) F16 enclosing DPN dated 20.06.2017 for Rs. 1.5 crore;

- (vii) F12A (DPN) dated 20.06.2017 for Rs. 9.0 Crore for LC Limit;

- (viii) F16 dated 20.06.2017 for Rs. 9.0 crore;

- (ix) F111A (Guarantee for Cash Credit) dated 20.06.2017 for Rs. 45.9 crore;

- (x) Letter of Consent for disclosure of information to CIBIL dated 20.06.2017;

- (xi) F110E Letter of Hypothecation for securing machineries / goods / book-debts dated 20.06.2017 for Rs. 45.9 crore.

Further, on 23.04.2007, the Defendant no. 7 issued a letter confirming creation of equitable mortgage on the properties mortgaged for the account.

On 19.06.2007, the Defendant no. 1 passed import resolution for execution of loan documents to avail the loan sanction to them.

2.13 It is further stated that the Defendant no. 1 Company in the meeting of its Board of Directors held on 03.07.2007, accepted the terms and conditions in the respective sanction letters of the lender banks by passing a resolution, authorizing Anil Monga, Director of Defendant no. 1 Company to execute the necessary security documents and to affix the common seal of the Defendant no. 1 company and to deposit the title deeds of the properties of the Defendant no. 1 company in favour of applicant bank by passing a resolution, in the presence of Anil Monga, Director of Defendant no. 1 Company.

2.14 It is stated in the OA that Defendants no. 1 to 5 signed and executed the following loan and security documents for a sum of Rs. 288.0 crore in favour of the member Banks for availing the above mentioned facilities:-

- (iii) Agreement of Guarantee dated 10.07.2007 by Defendant no. 2 Mr. Anil Monga;

- (iv) Agreement of Guarantee by Defendant no. 3 Sh. Rajesh Monga dated 10.07.2007;

- (v) Agreement of Guarantee by Defendant no. 4 Mr. Roshan Lal Monga dated 10.07.2007;

- (vi) Agreement of Guarantee by Defendant no. 5 Sh. Sanjeev Monga dated 10.07.2007;

- (vii) Agreement of Guarantee by Sh. Madan Lal Monga (since Deceased) dated 10.07.2007; It is further stated in the OA that in respect of the above said credit facility, an Inter se Agreement was signed and executed amongst the applicant bank and defendants no. 7 to 9 bank (lender banks), detailing the Inter se Rights and obligations of the Lender Banks, with respect to the credit facilities extended to the Defendant no. 1 Company.

It is also stated that said credit facility to Defendant no. 1 was secured by various current Assets and fixed Assets of the Borrower Company as well as mortgage of various properties belonging to defendants which are as follows:-

- (i) Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga dated 10.07.2007;

- (ii) Equitable Mortgage of property situated at 20, Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, dated 10.07.2007 standing in the name of Anil Monga;

- (iii) Equitable Mortgage of property situated at 20, Lower Ground Floor, NRI Complex, Greater Kailash-IV, dated 10.07.2007 standing in the name of Rajesh Monga;

- (iv) Equitable mortgage of property situated at S-473, Second Floor, Greater Kailash-I, New Delhi standing in the name of defendant company;

- (v) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters, total of both Plot 10587.98 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga;

- (vi) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007;

- (vii) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney;

- (viii) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney.

[details of aforesaid properties given in Para 5(5.39) of the OA].

2.15 It is stated in the OA that the Defendant no. 1 Company again approached and requested the applicant bank for enhancement cum renewal of sanctioned limits and vide sanction letter dated 06.12.2007 issued to the defendant no. 1, applicant bank extended credit facilities of Rs. 21.5 crore on secured packing credit; Rs. 2.5 crore on the working capital term loan, Rs. 10.75 crore on FDDBP / FDUBD (LC) with a sub-limit of Rs. 4.75 crore, Rs. 25.0 crore on Letter of Credit, Rs. 9.0 Lakh on letter of guarantee and Rs. 80.0 crore on forward contract by creating pari-passu charge. It is also stated that the entire limits shall be collaterally secured by the securities on first pari passu basis with other consortium members [details of securities have been given in Para 5(5.40) of the OA].

Further, accepting the terms and conditions of the sanction advance, the Defendants – borrower / guarantors also executed the following documents:-

- (i) F12A (DPN) dated 07.12.2007 for Rs. 4.75 crore for Packing Credit;

- (ii) F16 dated 07.12.2007 for Rs. 4.75 crore for Packing Credit;

- (iii) F251B (Advances against goods awaiting shipment Packing Credit) dated 07.12.2007 for Rs. 4.75 crore;

- (iv) F68 (Customer's Letter of Authority for collection and negotiation of bills) dated 07.12.2007;

- (v) F12A (DPN) dated 07.12.2007 for Rs. 25.0 Lakh for bills limit;

- (vi) F16 dated 07.12.2007 for Rs. 25.0 Lakh crore for bills limit;

- (vii) F107 (Letter of Hypothecation) dated 07.12.2007;

- (viii) F12A (DPN) dated 07.12.2007 for Rs. 10.0 Crore for LC Limit;

- (ix) F16 dated 07.12.2007 for Rs. 10.0 Crore;

- (x) F110E (Letter of Hypothecation for securing machineries / goods / book – debts) F12A (DPN) for Rs. 60.40 crore;

- (xi) F111A (Guarantee for Cash Credit) dated 07.12.2007 for Rs. 140.4 crore;

- (xii) Board Resolution dated 07.12.2007 by defendant no. 1.

2.16 It is stated in the OA that on 28.01.2008, the Defendant no. 1 passed Resolution for executing loan documents to avail the credit facilities sanctioned by the Consortium Banks. Further on 20.02.2008, the following documents were executed by way of joint documentation:-

- (i) Letter of Authority from applicant to defendant no. 7;

- (ii) Working Capital Consortium Agreement;

- (iii) Joint Deed of Hypothecation;

- (iv) Interse Agreement between member banks;

- (v) Deed of Guarantee executed by the defendants – borrower / guarantors.

2.17 It is stated in the OA that after considering the loan application dated 05.11.2008 of the defendants no. 1 to 6 for renewal and enhancement of credit facilities, the Applicant Bank on 19.05.2009 issued a sanction letter and credit sanction advice to the defendant no. 1 extending credit facilities of Rs. 27.5 crore on secured packing credit, Rs. 1.0 crore on the working capital term loan, Rs. 20.0 crore on FDDBP/FDUBD (LC) with a sub-limit of Rs. 12.5 crore, Rs. 25.0 crore on Letter of Credit, Rs. 2.5 crore on Letter of Guarantee, Rs. 29.40 crore on unsecured / clean corporate term loan and Rs. 100.0 crore on forward contract by creating pari-passu charge [details of the credit facilities sanctioned have been given in Para 5.45 of the OA]. Moreover, credit limits were to be secured on pari passu basis with other consortium members by various properties as detailed in Para 5(5.45) of OA.

It is stated in the OA that on 29.06.2009, the Defendant no. 1 passed a Board Resolution to execute the loan documents to avail the above stated credit facilities.

It is also stated that on 03.07.2009, accepting the terms and conditions of the sanction advice, the defendants – borrower / guarantors also executed the following individual documents:-

- (i) F12A for Rs. 9.25 crore for Bills;

- (ii) F107 (Letter of Hypothecation);

- (iii) F16 for Rs. 9.25 crore for Bills;

- (iv) F12A for Rs. 6.25 crore for Packing Credit;

- (v) F12A for Rs. 1.6 crore or LG;

- (vi) F251B (Advances against goods awaiting shipment Packing Credit for Rs. 6.25 crore);

- (vii) F111A (Guarantee for Cash Credit);

- (viii) F286E (General Counter Guarantee);

- (ix) Letter of Hypothecation for securing machineries / vehicles / goods / book-debts for Rs. 60.40 crore;

- (x) Letter of Consent for disclosure of information to CIBIL to be executed by Guarantors.

2.18 It is relevant to point out that the above mentioned Rs. 29.40 crore extended to the Defendants no. 1 to 6 was part of Rs. 78.40 crore sanctioned to Defendant no. 1 to 6. However, only the applicant bank had released Rs. 29.40 crore as unsecured / clean corporate term loan towards financing defendant no. 1 share of investment as equity contribution in joint venture projects in overseas company. The above said Term Loan was released as per the documents dated 18.06.2010 executed by the defendants – borrowers / guarantors.

2.19 Further on 30.09.2009, the following documents were executed by way of joint documentation:-

- (i) Letter of Authority from applicant to defendant no. 7;

- (ii) Interse Agreement between member banks;

- (iii) Working Capital Consortium Agreement;

- (iv) Joint Deed of Hypothecation;

- (v) Agreement of Guarantee executed by the defendants – borrower / guarantors.

- (vi) Confirmation of Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga dated 10.07.2007;

- (vii) Confirmation of Equitable Mortgage of property situated at 20, Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, dated 10.07.2007 standing in the name of Anil Monga;

- (viii) Confirmation of Equitable Mortgage of property situated at 20, Lower Ground Floor, NRI Complex, Greater Kailash-IV, dated 10.07.2007 standing in the name of Rajesh Monga;

- (ix) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters, total of both Plot 10587.98 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga;

- (x) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007;

- (xi) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney;

- (xii) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney;

- (xiii) Negative Lien on KHasra no. 230 (1-1), 232(0-13) covering a land measuring 1 bigha and 14 biswa situated at village Saidulajab, Tehsil Hauz Khas.

On 22.10.2009, the Defendant no. 7 issued a letter to the applicant bank enclosing copy of joint document executed by defendant no. 1.

2.20 It is stated in the OA that on 05.05.2010, the Applicant Bank issued a credit sanction advice to the defendant no. 1 extending credit facilities of Rs. 37.5 crore on secured packing credit, Rs. 15.0 crore on FDDBP/FDUBD not under LC, Rs. 7.5 crore on FDDBP/FDUBP under LC, Rs. 29.40 crore on unsecured / lean corporate term loan, Rs. 62.5 crore on Letter of Guarantee, Rs. 2.50 crore on Letter of Guarantee (Inland/Foreign) Final / performance and Rs. 1.25 crore on forward contract by creating pari-passu charge.

On 26.05.2010, the defendants - borrowers / guarantors passed a board resolution to execute loan documents for availing the abovementioned credit facilities.

Further on 10.06.2010, following documents were executed accepting the terms and conditions specified in the above stated sanction advice :-

- (i) F12A (DPN) for Rs. 10.0 crore for packing credit;

- (ii) F16 for Rs. 10.0 crore for packing credit;

- (iii) F251B (Advance against good awaiting shipment Packing Credit);

- (iv) F12A (DPN) for Rs. 2.5 crore for bills;

- (v) F16 for Rs. 2.5 crore for bills;

- (vi) F107 (Letter of Hypothecation);

- (vii) Letter of Indemnity;

- (viii) F12A (DPN) for Rs. 37.5 crore for LC limits;

- (ix) F16 for Rs. 37.5 crore for LC limits;

- (x) F110E (Letter of Hypothecation for securing machineries / goods / vehicles / book-debts) for Rs. 125.0 crore; Rs. 37.5 crore for LC Limits;

- (xi) F111A (Guarantee for Cash Credit etc.) for Rs. 2.5 crore.

2.21 It is stated in the OA that the unsecured / clean term loan of Rs. 29.40 crore extended by the applicant bank for financing for defendant no. 1's investment as equity contribution in overseas company was reviewed and renewed by the above mentioned credit sanctioned advice. Accordingly, the defendants no. 1 to 6 executed the following documents:-

- (i) Board Resolution dated 18.06.2010;

- (ii) Demand Promissory Note dated 18.06.2010 for Rs. 29,40,00,000/-;

- (iii) F-16 enclosing DPN of Rs. 29.40 crore dated 18.06.2010;

- (iv) Letter of Undertaking dated 18.06.2010 for repayment in instalment;

- (v) Guarantee for Cash Credit etc. dated 18.06.2010 for Rs. 279,40,00,000/-;

- (vi) Letter of Consent for disclosure of information to CIBIL executed by borrower dated 18.06.2010;

- (vii) Letter of consent for disclosure of information to CIBIL executed by guarantor dated 18.06.2010;

- (viii) Letter dated 18.06.2010 undertaking to meet cost escalation in overseas project, not to escrow future cash close without the approval of the applicant bank etc;

- (ix) Letter dated 18.06.2010 issued by Applicant in response to the request of the defendants – borrower / guarantors wherein it is evident that the release of Rs. 29.40 crore was for investment in overseas project;

- (x) Letter dated 23.06.2010, by the Defendant, requesting to release USD 6 million along with undertaking to avail loan facilities from Bank of Baroda dated 23.06.2010.

2.22 Thereafter, a new consortium for the Cash Credit Facilities by the Applicant Bank and Defendants no. 7 to 9 was formed and they sanctioned their irrespective limits as per sanction letters. It is also stated that the sanction letter dated 04.10.2011 was issued by the Applicant Bank.

On 04.10.2011, the defendants - borrower / guarantors executed the following loan documents:-

- (i) Board Resolution by defendant no. 1 to execute the loan documents;

- (ii) F14A (DPN) of Rs. 12.5 crore for packing credit;

- (iii) F-16 of Rs 12.5 crore for packing credit;

- (iv) F251B (Advances against good awaiting shipment Packing Credit) for Rs. 12.5 crore;

- (v) F14A(DPN) for Rs. 2.50 crore;

- (vi) F16 for Rs. 2.50 crore;

- (vii) F12A(DPN) for Rs. 50.0 crore;

- (viii) F16 for Rs. 50.0 crore;

- (ix) F14A(DPN) for Rs. 12.5 crore;

- (x) F16 for Rs. 12.5 crore;

- (xi) F107 (Letter of Hypothecation);

- (xii) Letter of Indemnity;

- (xiii) F110E (Letter of Hypothecation for securing machineries / goods / vehicles / book-debts) for Rs. 125.0 crore;

- (xiv) F111A (Guarantee for Cash Credit etc.) for Rs. 235,65,00,000/-;

- (xv) F-419 Letter of Undertaking by defendant no. 1 to not to create any further charge over their property / asset including uncalled capital;

- (xvi) F68 (Letter of Authority for collection and negotiation of bills);

- (xvii) Letter of undertaking for disclosure of information to CIBIL by borrowers and guarantors.

2.23 It is also stated in the OA that in the consortium meeting dated 28.12.2011 and in pursuance thereof, the lender banks, vide their joint letter dated 28.12.2011 authorized defendant no. 7(OBC) to act as Lead Bank and agent for other banks, vide their joint letter dated 28.12.2011 and further to accept the delivery and deposit of all documents of title, evidence, deeds and writings to be made by the Defendant no. 1 company.

It is further stated in the OA that the Defendant no. 1 company in the meeting of its Board of Directors held on 26.12.2011, accepted the terms and conditions in the respective sanction letters of applicant bank and defendants no. 7 to 9 banks, by passing a resolution, authorizing Anil Monga Director of the defendant no. 1 to executed necessary security documents and to affix the common seal of the defendant no. 1 company and to deposit the title deeds of the properties of the defendant no. 1 company in favour of the applicant bank, in the presence of Anil Monga.

It is further stated that Defendants no. 1 to 5 signed and executed the following loaning and security documents for a total sum of Rs. 1365.0 crore in favour of the member Lender Banks for availing the above mentioned facilities:-

- (iii) Interse Agreement between members of consortium;

- (iv) Agreement of Guarantee dated 28.12.2011 by Defendants – guarantors.

It is also stated that the above said credit facility was secured by the whole of the current assets and fixed assets, stocks, Bill receivables and books debts etc. etc. [details given in Para 5(5.50(i) of the OA].

Further more, the said credit facility was secured by the mortgage of various properties of the defendants which are as follows:-

- a) Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga;

- b) Equitable Mortgage of property situated at 20, front half of Basement and 1/3 share in Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, New Delhi standing in the name of Anil Monga;

- c) Equitable Mortgage of property situated at 20, rear half of Basement and 1/3 share in Ground Floor Lower Ground Floor, NRI Complex, Greater Kailash-IV, New Delhi standing in the name of Rajesh Monga;

- d) Equitable mortgage of property situated at S-473, Second Floor, Greater Kailash-I, New Delhi standing in the name of defendant company;

- e) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar -- Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga;

- f) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 60610.38 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007;

- g) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney;

- h) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney;

- i) Negative Lien on the office flat 102, First Floor, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Defendant no. 1 Company under power of attorney;

- j) Negative Lien on the office flat at Southern Half Portion of Ground Floor in South Delhi, 12, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Company under power of attorney;

- k) Negative Lien on farm house at Khasra no. 230-232, Monga Farms, Saiduljab, Opp. Saket, M.B. Road, New Delhi acquired by Anil Monga under power of Attorney.

[details given in Para 5(5.50) (ii) (a) to (k) of the OA]

Moreover, the above said security was also secured by

- (i) Pledge of shares of Sh. Anil Monga and Sh. Rajesh Monga on pari passu basis,

- (ii) Cash Security in the form of FED to the extent of Rs. 1.20 crore in lieu of ECGC cover and

- (iii) Personal guarantee of Sh. Anil Monga, Shri Rajesh Monga, Shri Sanjeev Monga and Sh. Roshan Lal Monga, as stated above.

2.24 It is stated in the OA that the defendants no. 1 to 6 again approached the applicant bank for enhancement of various credit facilities and on 30.03.2013, the Applicant Bank after considering the documents putforth by the defendants no. 1 to 6, issued a credit sanction advice to the defendant no.1 extending credit facilities of Rs. 62.50 crore on Secured Packing Credit; Rs. 22.50 crore on FDDBPBP/FDUBD not under LC and Rs. 7.5 crore on FDDBP/FDUBD(LC), Rs. 87.5 crore on Letter of Credit, Rs. 6.25 crore on Letter of Guarantee, Rs. 23.60 crore on unsecured / clean corporate terms loan and Rs. 125.0 crore on forward contract by creating pari passu charge on collateral securities [details given in Para 5(5.61) (a) of the OA]. Moreover, certain properties were held under Negative Lien [details given in Para 5(5.61) (b) of the OA] and Pledging of Promoters shares of Emmsons International Ltd. [details given in Para 5(5.61) (c) of the OA].

The Defendant no. 1 passed a board resolution dated 09.04.2013 to execute the loan documents to avail the above mentioned credit facilities.

It is also stated that accepting the terms and conditions specified in the abovementioned sanction advice, the defendants - borrower / guarantors executed the following documents on 17.04.2013 :-

- (i) F14A (DPN) of Rs. 5.0 crore for bills;

- (ii) F14A (DPN) of Rs. 12.5 crore for packing credit;

- (iii) F-16 of Rs 12.5 crore for packing credit;

- (iv) F14A (DPN) of Rs. 12.5 crore for LC;

- (v) F16 of Rs. 12.5 crore for LC;

- (vi) F251B (Advances against good awaiting shipment Packing Credit) for Rs. 12.5 crore;

- (vii) F107 (Letter of Hypothecation);

- (viii) Letter of Indemnity;

- (ix) F110E (Letter of Hypothecation for securing machineries / goods / vehicles / book-debts) for Rs. 333.85 crore;

- (x) F111A (Guarantee for Cash Credit etc.) for Rs. 1323.40 crore;

- (xi) F-419 Letter of Undertaking by defendant no. 1 to not to create any further charge over their property / asset including uncalled capital;

- (xii) Letter of undertaking for disclosure of information to CIBIL by borrowers and guarantors.

2.25 It is also stated in the OA that the defendant no.1 company in the meeting of its Board of Directors held on 09.08.2013, accepting the terms and conditions in the respective sanction letters of applicant bank and defendants no. 7 to 9 banks, passed a resolution to execute necessary loan documents.

It is further stated that on 20.08.2013, the Defendants no. 1 to 5 signed and executed the following loaning and security documents for availing the above mentioned facilities:-

- (i) Supplemental Working Capital Consortium Agreement dated 28.12.2011;

- (ii) Supplemental Joint Deed of Hypothecation dated 28.12.2011;

- (iii) Confirmatory Letter of Guarantee;

- (iv) Agreement for Pledge of Shares and debentures;

- (v) Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga;

- (vi) Equitable Mortgage of property situated at 20, front half of Basement and 1/3 share in Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, New Delhi standing in the name of Anil Monga;

- (vii) Equitable Mortgage of property situated at 20, rear half of Basement and 1/3 share in Ground Floor Lower Ground Floor, NRI Complex, Greater Kailash-IV, New Delhi standing in the name of Rajesh Monga;

- (viii) Equitable mortgage of property situated at S-473, Second Floor, Greater Kailash-I, New Delhi standing in the name of defendant company;

- (ix) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No.

350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga;

- (x) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 60610.38 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007;

- (xi) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney;

- (xii) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney;

- (xiii) Negative Lien on the office flat 102, First Floor, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Defendant no. 1 Company under power of attorney;

- (xiv) Negative Lien on the office flat at Southern Half Portion of Ground Floor in South Delhi, 12, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Company under power of attorney;

- (xv) Negative Lien on farm house at Khasra no. 230-232, Monga Farms, Saidulajab, Opp. Saket, M.B. Road, New Delhi acquired by Anil Monga under power of Attorney.

Further more, an Interse Agreement between members of consortium was also executed on 20.08.2013.

2.26 It is further stated in the OA that the account of defendant no. 1 company was not operating regularly, with the applicant bank and defendants no. 7 to 9 banks (Lender Banks) and was slipped into NPA category and on the request of defendant no. 1 company the account was restructured by the applicant and the leader banks. Accordingly, the applicant bank issued a credit sanction letter on 23.09.2014 extending the following credit facilities:- <table> <tr> <td>Secured Packing credit</td> <td>-</td> <td>Rs. 62.50 crore</td> </tr> <tr> <td>FDDBP / FDUBD<br/>(not under LC)</td> <td>-</td> <td>Rs. 22.50 crore</td> </tr> <tr> <td>FDDBP/FDUBD<br/>(under LC)</td> <td>-</td> <td>Rs. 7.50 crore</td> </tr> <tr> <td>Unsecured / clean<br/>Corporate Term Loan</td> <td>-</td> <td>Rs. 14.58 crore</td> </tr> <tr> <td>Letter of Credit /<br/>(Inland / Foreign) DP</td> <td>-</td> <td>Rs. 87.50 crore</td> </tr> <tr> <td>Letter of Guarantee</td> <td>-</td> <td>Rs. 6.35 crore</td> </tr> <tr> <td>Stand By Letter of<br/>/Credit</td> <td>-</td> <td>Rs. 60.00 crore</td> </tr> </table>

Forward Purchase / Sale contract - Rs. 125.00 crore Consortium Limit Further, various properties were held under equitable mortgage as well as under negative lien [details given in Para 5(5.68) of the OA), Moreover, above said facilities were also secured by pledging of Promoters shares of Emmsons International Ltd. [details given in Para 5(5.68)(C) of the OA)

2.26 It is stated in the OA that as per the sanction dated 23.09.2014, the applicant bank has only renewed the existing limits to the defendant no. 1. However, other members of the consortium have restructured the limit by sanctioning Working Capital Term Loan by carrying out the overdraft in Current Account on account of development of LCs. The members of the consortium including the applicant have executed the Master Restructuring Agreement dated 26.11.2014. Though the applicant has executed the MRA, but it has not restructured the limit since there has been no development of LCs.

The defendant no.1 company in the meeting of its Board of Directors held on 13.11.2014, accepted the terms and conditions in the respective sanction letters of applicant bank and defendants no. 7 to 9 banks, of restructuring the credit facilities, by passing a resolution, authorizing Anil Monga, Director of Defendant no. 1 company to execute necessary documents and to affix the common seal of the defendant no. 1 company in favour of applicant bank by passing a resolution, in the presence of Anil Monga, Director of the Defendant no. 1 Company.

It is further stated that the Defendants no. 1 to 6 signed and executed the following loaning and security documents in favour of member Lender Banks for availing the above mentioned facilities:-

- (i) Master Restructuring Agreement dated 26.11.2014;

- (iii) Agreement of Guarantee dated 26.11.2014 by Defendants no. 2 to 6;

- (iv) Agreement for Pledge of Shares by Defendants no. 1 & 2, Sh. Anil Monga and Sh. Rajesh Monga dated 26.11.2014;

- (v) Irrevocable Power of Attorney by Defendants no. 1 & 2 as Pledgors of shares dated 26.11.2014;

- (vi) Security Agent Appointment Agreement amongst the borrower and lender banks dated 26.11.2014;

- (vii) Conformation of contents of Security Agent Agreement dated 26.11.2014.

It is stated in the OA that in respect of the abovesaid credit facility, an Inter se Agreement was also signed and executed amongst the applicant bank and defendants no. 7 to 9 banks (Lender Banks), detailing the inter se rights and obligations of the Lender Banks, with respect to the credit facilities extended to the defendant no. 1 company.

On 23.12.2014, the Applicant Bank issued another credit sanction advice on the request of the defendant no. 1 for enhancement of limit extending credit facilities of Rs. 75.0 crore on Secured Packing Credit, Rs. 27.0 crore on FDDPBP/FDUBD not under LC and Rs. 9.0 crore on FDDBP/FDUBD(LC), Rs. 53.5 crore on Letter of Credit, Rs. 6.25 crore on Letter of Guarantee, Rs. 13.25 crore on unsecured / clean corporate term loan and Rs. 125.0 crore on forward contract by creating pari-passu charge. The details of collateral securities viz. properties held under equitable mortgage; properties under negative lien; pledged shares of promoters of Emmsons International Ltd. as on 30.05.2014; and security in the form of FDRs to the extent of Rs. 1.0 crore in lieu of ECGC cover have been given in Para 5(5.73)(A) to (D) of the OA.

2.27 It is also stated in the OA that the Applicant Bank as on the date of signing of the MRA dated 26.11.2014 had not sanctioned the Working Capital Term Loan though had participated in the signing of the MRA and other Financing documents. Thereafter, the Applicant Bank sanctioned WCTL of Rs. 34.00 crore out of Letter of Credit Limit of Rs. 87.50 crore vide Applicant's sanction dated 23.12.2014, in terms of the arrangement the share of the applicant in WCTL was restricted to Rs. 21.61 crore and thereafter the Lead Bank (OBC) share was reduced from Rs. 61.20 crore to Rs. 48.40 crore which necessitated the change in the Letter of Credit Limit and execution of supplemental documents on 23.12.2014.

It is further stated that the defendant no. 1 passed a board resolution on 23.12.2014 to execute loan documents to avail the above mentioned credit facilities.

On 23.12.2014, a supplementary Master Restructuring Agreement was also executed between the parties. Further, Deed of Guarantee dated 23.12.2014 was also executed by the defendants – borrowers / guarantors. Moreover, a supplemental deed of hypothecation dated 23.12.2014 was executed. Further, a supplementary interse agreement dated 23.12.2014 as well as letter conforming pari passu arrangement dated 23.12.2014 were executed between the members of consortium. A supplementary security agent appointment agreement dated 23.12.2014 and a supplementary agreement for pledge dated 23.12.2014 were also executed.

2.28 It is stated in the OA that the pari-passu charges have also been created which have been duly registered in the office of the Registrar of Companies for Rs. 1083.19 crore. Therefore, the defendants no. 1 to 6 are jointly and severally liable to liquidate the dues towards the Applicant Bank and the Defendants no. 7 to 9.

2.29 It is stated in the OA that defendant no. 1 company availed the above said credit facilities but failed to keep the banking discipline. The defendant no.1 company failed to pay their dues as per the terms of agreement and the repayment schedule as agreed. Though Applicant Bank requested the Defendant no. 1 company time and again to regularize their account but all the efforts of the applicant bank failed to make the defendant no. 1 company regularize their accounts. Consequently, the account of defendant no. 1 company became irregular and sticky, hence, it was classified by the applicant bank as Non Performing Asset (NPA) on the basis of the directions of the Reserve Bank of India and internal guidelines of the applicant bank on 07.07.2014.

2.30 It is further stated in the OA since the defendants failed to regularize their accounts, hence, the applicant bank issued demand notice under Section 13(2) of SARFAESI Act on 08.06.2014. However, the Defendant borrowers have not discharged their liability. On the contrary, the defendants borrowers / guarantors have sold one of their wholly owned subsidiary Emmsons Grains Limited, Cyprus amounting to USD 1168243.00 which has been routed through the current account maintained with State Bank of Hyderabad by the Defendant Company (outside consortium) pertains to the Applicant as the company has designated out bank as the designated AD Bank. The Minutes of Joint Lenders meeting of Emmsons International Ltd. held on 22.07.2016 at OBC, Large Corporate Branch records that Sh. Anil Monga, CMD of the Defendant Company had informed the house that the funds of US1168243/- were routed though the SBH, Kailash Colony, New Delhi and out of the said proceeds, an amount of Rs. 2.42 crore was utilized by the Defendant company. After that, the applicant bank along with other member banks of the consortium had requested the SBH not to release the proceeds. It was also record therein that since the SBH was not a member bank, they cannot hold the money and should be remitted to applicant bank. In view of the same, the applicant bank has become susceptible towards the attitude of defendants borrowers. It is also stated that the applicant bank has been informed by SBH on 08.02.2017 that since the funds received by them was to be routed through the applicant bank and was diverted to them in violation of RBI guidelines, they had kept a hold on the funds received by them. The applicant bank was informed by SBH (now SBI) Kailash Colony Branch through email dated 18.07.2016 that they have received an amount of USD 1168273.00 for the defendant no. 1 current account maintained with them and the statement of Hyderabad also requested for a copy of ODI form submitted to RBI. The applicant bank by an email dated 18.07.2016 advised SBH not to credit the amount to the defendants – borrower/guarantors but the SBH out of Rs. 7.8 crore, released Rs. 2.42 crore to the defendant – borrower / guarantors. Further, the SBH on 31.03.2017 credited Rs. 5.39 crore being the balance amount of the sale proceeds to the applicant bank. Therefore, the applicant bank is seeking a direction from this Tribunal to direct the SBH (now SBI) to remit Rs. 2.42 crore to the applicant bank.

2.31 Thus, it is evidence that the Defendants did not accede to the Applicant Bank's request and kept on committing defaults time and again which forced the applicant bank to take a legal action against the defendants. Hence, present OA has been filed.

3. Notices of this O.A. were issued to the defendants, and defendants no. 1 to 3, 7 & 9 appeared through their respective counsels and Defendants no. 1 to 3 as well as Proforma Defendant no. 7/OBC (now PNB) & Defendant no. 9 (BOB) filed their respective written statement(s).

It is also pertinent to note here that defendants no. 1 to 3 have also filed Set Off / Counter Claim along with their WS.

3.1 So far as, defendants no. 4 to 6 are concerned, despite service, they did not chose to appear before this Tribunal nor filed any WS.

3.2 So far as, defendant no. 8 / Allahabad Bank (now Indian Bank) & 10 / State Bank of Hyderabad (SBH) [now State Bank of India (SBI)] are concerned, these defendants neither appeared before this Tribunal nor filed any WS; hence, the claim of applicant bank remain unrebutted on behalf of defendants no. 8 & 10.

4. Defendants no. 1 to 3 filed their common WS along with Set Off / Counter Claim wherein these defendants have denied availment of loan facilities, execution of documents, creation of mortgage / security in favour of the bank etc. etc.

4.1 Defendants no. 1 to 3 have stated in their common WS (preliminary submissions) that Defendant no. 1 i.e. Emmsons International Limited (EIL for short) is a flagship company of the Emmsons Group and during initial years, EIL was growing at a steady pace. It is also stated that within a short span, EIL achieved turnover on standalone basis and it won many awards from the Government of India [details given in Para 5 of Preliminary Submissions at Page 7 of the WS]. It is further stated that EIL raised Working Capital Finances under consortium arrangement of four banks, lead by the Applicant Bank – OBC with 45% share, IOB (25% share); Allahabad Bank (15% share) & Bank of Baroda (15%) share. EIL has been banking with various banks since 1992 and had satisfactory dealings till 2013, however, during the year 2013-14, it started facing liquidity mismatch beyond its control and hence, it requested the banks for restructuring of account.

Defendants no. 1 to 3 have also given reasons for liquidity mismatch viz. Slump in global commodities; Overdue Export receivables; Advance to overseas subsidiaries; Investment in Emmsons Grains Limited, Cyprus [details given in Para 8 of Preliminary Submissions at pages 8 to 12 of the WS]. They have also mentioned about the Restructuring Plan as well as Fresh Restructuring Plan [as mentioned in Para 9 to 11 of Preliminary Submissions at page 13 to 15 of the WS]. These Defendants have further discussed about the Losses suffered by the Defendants due to Banks viz. Losses due to delay in release of sanctioned limits; Losses due to non-release of working capital facilities; Loss of Business opportunity [as mentioned in Para 13 of Preliminary Submissions at page 15 to 19 of the WS].

In support of their Preliminary Submissions, answering defendants have relied upon letters dated 31.05.2014, 07.07.2014, 16.07.2014, 18.07.2014, 06.10.2014, 28.10.2014, 28.10.2014, 29.10.2014, 03.11.2014, 09.12.2014, 30.12.2014, 02.01.2015, 20.01.2015, 24.01.2014, 08.04.2015, 15.04.2015, 15.04.2015, 21.05.2015, 15.06.2015, 07.07.2015, 05.08.2015, 26.08.2015, 28.08.2015, 31.08.2015, 04.09.2015, 26.11.2015, 27.11.2015, 28.01.2016, 16.02.2016, 21.03.2016, 12.05.2016, 06.06.2016, 15.06.2016, 20.07.2016, 28.07.2016, 16.08.2016, 17.08.2016 and 27.09.2016 exchanged with the answering defendants and the applicant bank and other consortium banks.

It is also stated that there are various joint meetings held between the defendant company and the applicant bank and other consortium member banks which are also relevant and necessary to adjudicate present suit and also set off / counter claim by the defendant company. It is further stated that the answering defendant relies upon the same and relevant minutes in support are being filed with the WS.

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

- (i) that the applicant bank failed to file proper and complete documents which are relevant and necessary for adjudication of present OA;

- (ii) that there are various credits running into several crores in the statement of account maintained with the applicant bank which have not been deliberately filed by the applicant bank just to create inflated and non-existing liability / claim against the defendants;

- (iii) that the applicant bank and other consortium banks under consortium agreements have already filed their claim before ECGC and same must be under process. Hence, the claim made by the applicant bank in the present OA is pre-mature and is not maintainable at this stage and the applicant bank be directed to file respective documents in support in view of claim already filed before ECGC;

- (iv) that there are more inconsistencies in the plaint as can be seen that in the separate sheet of Memo of Parties, the defendant / respondent no. 11 & 12 have been mentioned but there is such mention in the main application;

- (v) That this Tribunal is not having territorial jurisdiction to entertain this OA;

- (vi) That this OA has not been filed within the period of limitation;

- (vii) That this OA has not been filed by duly authorized officer of applicant bank;

- (viii) that the defendants no. 2 & 3 did not execute the Deed of personal guarantees nor created any equitable mortgage or negative lien on their respective properties.

- (ix) That the applicant bank is not entitled for direction from this Hon'ble Tribunal to direct the SBH (now SBI) to remit Rs. 2.42 crore to the Applicant Bank; Along with the WS, defendants no. 1 to 3 have also preferred set off / counter claim against the lenders banks including proportionate share of the applicant bank on following grounds :-

- (A) Losses due to delay in release of sanctioned facilities by all the banks :

It is stated that the Leader Bank / OBC had sanctioned CAP vide dated 23.06.2014 pending joint documentation; documents on individual basis may be executed in order to avoid delay in implementation of the restructuring package. Despite the above approval, the Lead Bank refused to release the SBLC until sanctions of all the banks were received which led to delay in implementation of the restructuring package by amount 7 months. During this period, the company suffered huge losses and also lost opportunity to do further business.

It is also stated that the company was achieving turnover of around Rs. 350-400 crore per quarter prior to financial problems and was also hopeful to continue same or with improvements had the bankers approved within time without delay. The company was earning a gross profit of 5% which works out to be 19 crore (approx.) per quarter. Despite the setback, the company was able to maintain the momentum for another quarter ended June, 2013 and recorded a turnover of Rs. 397 crore. The banks knew that due to the nature of trading business, usually the rolling period for executing orders is 2-3 months, however, due to delay in release of credit facilities by Lead Bank /OBC and other banks, the company lost the momentum and turnover for Sep 2014 quarter fell to Rs. 115.0 crore. Thereafter, the performance of the company deteriorated further in following quarters and during the 10 quarters upto Sep 2016, the company was able to record average business of Rs. 111.0 Crore per quarter, leading to a shortfall of Rs. 267.0 crore per quarter. Hence, the aggregate shortfall in business during this period works out to Rs. 26.70 crore, which at the usual gross profit rate of 5%, resulted in a loss of Rs. 133.50 crore. Thus, on this account, the company lost a sum of Rs. 133.50 crore.

(B) Losses due to non-release of working capital facilities It is stated that even after implementation of the restructuring package, the bank became selective in releasing the working capital facilities and on several occasions refused to release funds to the company, leading to loss of credibility of the company in the international market. Since, the banks halted further release of sanctioned credit facilities, hence, the company was not able to fulfil its contractual obligations and the partially executed contracts ran into problems and the said customers raised huge claims on the company and refused to pay the outstanding dues until their claims were settled. This alone has led to loss of over Rs. 145.51 crore for the company and is in addition to the recorded losses.

(C) Loss of business opportunity

It is stated that as a part of the restructuring package, the company had received new export orders of USD 38.10 Mn approx.. from M/s CFSIT Inc. USA against advance payments and the advance payments were to be secured by issuance of SBLCs by the consortium. It is further stated that the payments of about Rs. 231.0 crore were received from the buyer immediately after issuance of the SBLCs, however, the banks appropriated the entire amount towards their past dues against the guidelines of the RBI, which stipulates that advance remittance should be used for working capital utilization only. This also seriously constrained the company's capacity to execute the export orders and contributed to deterioration of the company's financial health. The company was expecting to make a profit of about 5% aggregating to Rs. 12.0 crore, which it had lost.

It is also stated that the consortium member banks, including the applicant bank herein, have illegally and arbitrarily adjusted / set off / appropriated advance amount towards overdues in account, received by the defendant company against purchase order, towards their alleged overdues in the running account:-

- (i) Oriental Bank of Commerce Rs. 12822.19 Lakh

- (ii) Indian Overseas Bank Rs. 5729.06 Lakh

- (iii) Bank of Baroda Rs. 3409.37 Lakh

- (iv) Allahabad Bank Rs. 3412.55 Lakh

It is stated that for the reasons mentioned above, the applicant bank and other lender banks are liable to compensate / set off a sum of Rs. 291.01 crore on account of Set off / Counter Claim raised by the defendants herein. Hence, request is made to allow Set Off / Counter Claim of Rs. 291.01 Crore and the applicant bank be held liable for claim to its share proportionately, being a member of consortium.

Now request is made to reject / dismiss the OA filed by the applicant bank against the answering defendants and to allow Set Off / Counter Claim of the defendants in their favour against the applicant bank.

5. Defendant no. 7 / Oriental Bank of Commerce (OBC) [now Punjab National Bank (PNB)] has also filed its WS through Mr. H.S. Phillip, Chief Manager and Principal Officer of Defendant who is fully conversant with the facts of the present case and also hold General Power of Attorney dated 04.09.2003 in his favour from the bank, which is still valid.

5.1 It is stated in the WS that for availing loan for the proposed purpose, applicant bank and defendants no. 7 to 9 banks were approached by the Defendant no. 1 Company and credit facilities were secured from them under the Consortium Banking Arrangements led by answering defendant no. 9 as a Lead Bank. It is stated that the members of the joint / consortium Banking Arrangement are Applicant no. 1 and defendants no. 7 to 9 respectively and the credit facility to the extent of Rs. 1083.19 Crore, was sanctioned by them. It is also stated that there is a joint lending and the charge as been created by the defendants no. 1 to 6 through Consortium, thus, the consortium banks are entitled for realization for monies advanced and secured documents executed by Bank Consortium.

5.2 Defendant no. 7 has also stated that defendant no. 7 has already filed OA No. 119/2015 (OBC Vs. M/s Emmons International Ltd. & Ors.) which is pending before DRT-II, Delhi at New Delhi. Further, defendant no. 9 has given details of loan facilities granted to defendants no. 1 to 6 along with other consortium members.

5.3 It is also stated in the WS that though the contents of Para 5(85) are matter of record, however, the applicant bank along could not claim or appropriated an amount of Rs. 5.39 crore received from SBH on account of disbursement of wholly owned subsidiary of M/s Emmons International Ltd.. It is stated that as the Consortium is having 1^st pari-passu charge over the entire assets of company and any amount received by way of disposal of assets has to be shared among the consortium members on pari-passu basis.

Further, Corporate Loan sanctioned by Applicant Bank to the defendant, individually was unsecured loan, therefore, unsecured creditor cannot have priority of charge / claim over the secured creditor's rights including the applicant bank. As such the amount so received / to be received from SBH (now SBI) by the applicant bank should be shared among consortium on pro-rata on pari-passu charge.

5.3 It is prayed by the defendant no. 7 that the relief(s) as being sought in the OA cannot be granted in isolation in favour of Applicant Bank because the Applicant Bank continues to be bound by the Inter-Creditor Agreement dated 30.12.2016.

It is further prayed that SBH be directed to remit and share the balance amount of Rs. 2.42 crore to the member banks and applicant bank be further directed to share said amount of Rs. 5.38 crore among the consortium members on pari-passu basis on pro rata basis.

It is reiterated in the WS that the answering defendant has a pari passu first charge over the securities towards the sanctioned Rupee Facilities and has a pari passu second charge over the securities towards the subordinate rupee facilities. Thus, it is just and proper that the instant OA can only be validity pursued by the Applicant Bank, if the interest of the answering Defendant are entirely protected in terms of the financing documents. It is further prayed that the proceeds of any enforcement action or execution of Recovery Certificate must necessarily be shared with the answering defendant on pro-rata basis strictly in terms of the financing documents which provides for sharing of securities.

5.4 Along with its WS, the Defendant no. 7 has also filed the copy of General Power of Attorney dated 04.09.2003 issued by defendant no. 7 (Annexure D-1).

6. Further more, Defendant no. 9 / Bank of Baroda has also filed its WS through Mr. Anil Kumar Garg, Assistant General Manager of Defendant no. 9 who is fully conversant with the facts of the present case and also hold General Power of Attorney dated 06.10.2016 in his favour from the defendant no. 9 bank, which is still valid and hence, is fully authorized and empowered by the defendant no. 9.

6.1 It is stated in the WS that this OA has been filed by the applicant bank in the capacity of a consortium member Bank under the Consortium Banking Arrangement. The members of the joint / consortium Banking Arrangement are the Applicant Bank and Defendants no. 7 to 9 respectively, among which defendant no. 7 stood as lead bank and together they have advanced credit facilities to the extent of Rs. 1083.19 crore as on 08.10.2011 to Defendant no. 1 Company being the Principal Borrower and Defendants no. 2 to 6 as Guarantors. It is also stated that defendants no. 1 to 6 have created security interest in favour of all the member banks under Consortium Banking Arrangement for which different documents have been signed and executed by defendants no. 1 to 6. Further, pari-passu charges have also been applied and created and duly registered with the Registrar of Companies.

6.2 Further more, it is also stated that Defendant no. 9 became a member of the new consortium Banking Arrangement vide Sanction letter dated 08.10.2011 and share of the defendant no. 9 is 15% in the said Consortium. Defendant no. 9 has given details of the financing pattern of the consortium members (at Page 2-3 of the WS). It is further stated that the credit facilities advanced to defendant no. 1 company was secured by way of hypothecation over Entire inventory of defendant no. 1 as well as by creation of equitable mortgage and negative lien on various properties and pledge of shares of defendants no. 2 & 3, cash security in the form of FDRs to the extent of Rs. 1.20 crore in lieu of ECGC cover. It is also stated that the account of defendant no. 1 company was restructured on 26.11.2014, however, due to defaults committed by defendant no. 1, its account was declared as NPA on 30.09.2018. Now Defendants no. 1 to 6 are jointly and severally liable to pay the outstanding amount of Rs. 165,63,29,825.32 including interest upto 15.05.2016 [details of outstanding amount has been given at Page 4 of the WS]. It is stated in the WS that defendant no. 9 issued demand notice dated 26.05.2016 to the defendant no. 1 company u/s 13(2) of the SARFAESI Act 2002.

6.3 Along with its WS, the Defendant no. 9 has also filed the copy of General Power of Attorney dated 06.10.2016 issued by defendant no. 9 (Annexure D-9/1).

7. Applicant bank has also filed rejoinder to the WS filed by defendants no. 1 to 3 as well as Written Statement to the Counter Claim of defendants denying the allegations levelled against it and reiterating the averments made in the OA.

7.1. Further more, applicant bank has also filed the replication to the WS filed on behalf of defendant no. 7 i.e. OBC (now PNB).

8. To prove its case, the Applicant Bank leads its evidence by filling the affidavit of Sh. Sanjay Kishore, Assistant General Manager of Applicant Bank.

8.1 Sh. Sanjay Kishore, officer of Applicant Bank has relied upon following documents:-

- (ix) General Power of Attorney dated 19.12.1997 executed by applicant bank in favour of Sh. L. Prabakar (Ex. A-1-colly);

- (x) Credit Sanction Advice dated 31.03.2005 issued by the Applicant Bank (Ex. A-2);

- (xi) F12A (Demand Promissory Note) for Rs. 4.0 Crore dated 31.03.2005 (Ex. A-3);

- (xii) F378 (Letter of Undertaking repayment in instalments) dated 31.03.2005 (Ex. A-4);

- (xiii) Agreement for hypothecation of book debts dated 31.03.2005 (Ex. A-5);

- (xiv) Board Resolution dated 14.03.2005 & 31.03.2005 (Ex. A-6);

- (xv) Credit Sanction Advice dated 04.09.2005 issued by Applicant Bank (Ex. A-7);

- (xvi) Letter dated 02.11.2005 (Ex. A-8);

- (xvii) General Power of Attorney dated 18.02.2006 executed by defendant no. 7 / OBC (Ex. A-9);

- (xviii) Resolution dated 28.04.2006 passed by the Defendant no. 1 to create joint mortgage for availing various credit facilities from the member banks of the consortium (Ex. A-10);

- (xix) Credit Sanction Advice dated 12.05.2006 issued by Applicant Bank (Ex. A-11);

- (xx) Working Capital Consortium Agreement dated 15.05.2006 executed between Defendant no. 1 and the Bank Consortium (Ex. A-12);

- (xxi) Joint Deed of Hypothecation dated 15.05.2006 executed by Defendant no. 1 in favour of Bank Consortium (Ex. A-13);

- (xxii) Interse Agreement dated 15.05.2006 executed between the applicant bank and Defendant no. 7 (Ex. A-14);

- (xxiii) Personal guarantees executed by the defendants in faovur of the applicant bank and defendant no. 7 (Ex. A-15-colly);

- (xxiv) F12A (DPN) dated 15.05.2006 for Rs. 16.0 Crore (Ex. A-16);

- (xxv) F251B (Advances against Good Awaiting Shipment Packing Credit) Rs. 16.0 Crore (Ex. A-17);

- (xxvi) Letter of Hypothecation dated 15.05.2006 (Ex. A-18);

- (xxvii) F12A (DPN) dated 15.05.2006 for Rs. 20.8 crore (Ex. A-19);

- (xxviii) F111A (Guarantee for Cash Credit etc.) dated 15.05.2006 for Rs. 65.0 crore (Ex. A-20);

- (xxix) Credit sanction advice dated 06.10.2006 issued by applicant bank to the Defendant no. 1 (Ex. A-21);

- (xxx) Letter of Authority in favour of Defendant no. 7 Bank to act as Lead Bank and agent (Ex. A-22);

- (xxxii) Board Resolution dated 28.12.2006 passed by defendant no. 1 (Ex. A-23);

- (xxxiii) Working Capital Consortium Agreement dated 30.12.2006 (Ex. A-24);

- (xxxiii) Joint Deed of Hypothecation dated 30.12.2006 (Ex. A-25);

- (xxxiv) Deed of Guarantee dated 30.12.2006 executed by Defendants – Guarantors (Ex. A-26-colly);

- (xxxv) Inter se Agreement dated 30.12.2006 executed amongst the lender banks (Ex. A-27);

- (xxxvi) Credit Sanction Advice dated 10.05.2007 issued by Applicant Bank (Ex. A-28);

- (xxxvii) Board Resolution dated 11.05.2007 passed by the Defendant no. 1 (Ex. A-29);

- (xxxviii) Guarantee for Cash Credit etc. (F111A) dated 11.05.2007 for a sum of Rs. 44.65 Crore (Ex. A-30);

- (xxxix) Demand Promissory Note dated 11.05.2007 for Rs. 10.0 Crore (Ex. A-31);

- (xl) F-16 enclosing DPN of Rs. 10.0 Crore dated 11.05.2017 (Ex. A-32);

- (xli) F-110E Letter of Hypothecation for securing machinery / goods / book debts for Rs. 44.65 Lakh (Ex. A-33);

- (xlii) Credit Sanction Advice dated 19.06.2007 issued by the Applicant Bank (Ex. A-34);

- (xliii) F12A (DPN) dated 20.06.2007 for Rs. 1.5 crore for the packing credit (Ex. A-35);

- (xliv) F-16 dated 20.06.2017 for Rs. 1.5 crore (Ex. A-36);

- (xlv) F68 dated 20.06.2017 for collection and negotiation of bills (Ex. A-37);

- (xlvi) Letter of Hypothecation dated 20.06.2017 (Ex. A-38);

- (xlvii) F251B (Advances against goods awaiting shipment) dated 20.06.2017 for Rs. 1.5 crore (Ex. A-39);

- (xlviii) F16 enclosing DPN dated 20.06.2017 for Rs. 1.5 crore (Ex. A-40);

- (xlix) F12A (DPN) dated 20.06.2017 for Rs. 9.0 Crore for LC Limit (Ex. A-41);

- (l) F16 dated 20.06.2017 for Rs. 9.0 crore (Ex. A-42);

- (li) F111A (Guarantee for Cash Credit) dated 20.06.2017 for Rs. 45.9 crore (Ex. A-43);

- (liii) Letter of Consent for disclosure of information to CIBIL dated 20.06.2017 (Ex. A-44);

- (liiii) F110E Letter of Hypothecation for securing machineries / goods / book-debts dated 20.06.2017 for Rs. 45.9 crore (Ex. A-45);

- (liv) Letter dated 23.06.2007 issued by Defendant no. 7 confirming creation of equitable mortgage on the properties mortgaged for the account (Ex. A-46);

- (lv) Import Resolution dated 19.06.2007 passed by the Defendant no. 1 (Ex. A-47);

- (lvi) Resolution dated 03.07.2007 passed by the Defendant no. 1 Company (Ex. A-48);

- (lvii) Working Capital Consortium Agreement dated 10.07.2007 (Ex. A-49);

- (lviii) Joint Deed of Hypothecation dated 10.07.2007 (Ex. A-50);

- (lix) Agreement of Guarantee dated 10.07.2007 by Defendant no. 2 Mr. Anil Monga (Ex. A-51);

- (lx) Agreement of Guarantee by Defendant no. 3 Sh. Rajesh Monga dated 10.07.2007 (Ex. A-52);

- (lxi) Agreement of Guarantee by Defendant no. 4 Mr. Roshan Lal Monga dated 10.07.2007 (Ex. A-53);

- (lxii) Agreement of Guarantee by Defendant no. 5 Sh. Sanjeev Monga dated 10.07.2007 (Ex. A-54);

- (lxiii) Agreement of Guarantee by Sh. Madan Lal Monga (since Deceased) dated 10.07.2007 (Ex. A-55);

- (lxiv) Inter se Agreement dated 10.07.2007 executed amongst the applicant bank and defendants no. 7 to 9 (Lender Banks) (Ex. A-56);

- (lxv) Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga dated 10.07.2007 (Ex. A-57);

- (lxvi) Equitable Mortgage of property situated at 20, Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, dated 10.07.2007 standing in the name of Anil Monga (Ex. A-58);

- (lxvii) Equitable Mortgage of property situated at 20, Lower Ground Floor, NRI Complex, Greater Kailash-IV, dated 10.07.2007 standing in the name of Rajesh Monga (Ex. A-59);

- (lxviii) Equitable mortgage of property situated at S-473, Second Floor, Greater Kailash-I, New Delhi standing in the name of defendant company (Ex. A-60 & A-61);

- (lxiix) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters, total of both Plot 10587.98 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga (Ex. A-62);

- (lxx) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007 (Ex. A-63);

- (lxxi) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney (Ex. A-64);

- (lxxii) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney (Ex. A-65);

- (lxxiii) Sanction Letter dated 06.12.2007 issued by Applicant Bank (Ex. A-66);

- (lxxiv) F12A (DPN) dated 07.12.2007 for Rs. 4.75 crore for Packing Credit (Ex. A-67);

- (lxxv) F16 dated 07.12.2007 for Rs. 4.75 crore for Packing Credit (Ex. A-68);

- (lxxvi) F251B (Advances against goods awaiting shipment Packing Credit) dated 07.12.2007 for Rs. 4.75 crore (Ex. A-69);

- (lxxvii) F68 (Customer's Letter of Authority for collection and negotiation of bills) dated 07.12.2007 (Ex. A-70);

- (lxxviii) F12A (DPN) dated 07.12.2007 for Rs. 25.0 Lakh for bills limit (Ex. A-71);

- (lxxix) F16 dated 07.12.2007 for Rs. 25.0 Lakh crore for bills limit (Ex. A-72);

- (lxxx) F107 (Letter of Hypothecation) dated 07.12.2007 (Ex. A-73);

- (lxxxi) F12A (DPN) dated 07.12.2007 for Rs. 10.0 Crore for LC Limit (Ex. A-74);

- (lxxxii) F16 dated 07.12.2007 for Rs. 10.0 Crore (Ex. A-75);

- (lxxxiii) F110E (Letter of Hypothecation for securing machineries / goods / book – debts) F12A (DPN) for Rs. 60.40 crore (Ex. A-76);

- (lxxxiv) F111A (Guarantee for Cash Credit) dated 07.12.2007 for Rs. 140.4 crore (Ex. A-77-colly);

(lxxxv) Board Resolution dated 07.12.2007 by defendant no. 1 (Ex. A-78);

(lxxxvi) Resolution dated 28.01.2008 passed by the Defendant no. 1 (Ex. A-79); Documents executed on 20.02.2008 [from (lxxxvii) to xci]

(lxxxvii) Letter of Authority from applicant to defendant no. 7 (Ex. A-80); (lxxxviii) Working Capital Consortium Agreement (Ex. A-81);

(lxxxix) Joint Deed of Hypothecation (Ex. A-82);

(xc) Interse Agreement between member banks (Ex. A-83);

(xci) Deed of Guarantee executed by the defendants – borrower / guarantors (Ex. A-84-colly);

(xcii) Sanction Letter and credit sanction advice dated 19.05.2009 issued by applicant bank to the defendant no. 1 (Ex. A-85-colly);

(xciii) Board Resolution dated 29.06.2009 passed by the Defendant no. 1 (Ex. A-86); Documents executed on 03.07.2009 [from (xciv) to ciiii]

(xciv) F12A for Rs. 9.25 crore for Bills (Ex. A-87);

(xcv) F107 (Letter of Hypothecation) (Ex. A-88);

(xcvi) F16 for Rs. 9.25 crore for Bills (Ex. A-89) and Letter of Indemnity (Ex. A-90);

(xcvii) F12A for Rs. 6.25 crore for Packing Credit (Ex. A-91);

(xcviii) F12A for Rs. 1.6 crore or LG (Ex. A-92);

(xcix) F251B (Advances against goods awaiting shipment Packing Credit for Rs. 6.25 crore) (Ex. A-93);

(c) F111A (Guarantee for Cash Credit) (Ex. A-94-colly);

(ci) F286E (General Counter Guarantee) (Ex. A-95);

- (cii) Letter of Hypothecation for securing machineries / vehicles / goods / book-debts for Rs. 60.40 crore (Ex. A-96);

- (ciii) Letter of Consent for disclosure of information to CIBIL to be executed by Guarantors (Ex. A-97-colly); Documents executed on 30.09.2009 [from (civ) to cxvi]

- (civ) Letter of Authority from applicant to defendant no. 7 (Ex. A-98);

- (cv) Interse Agreement between member banks (Ex. A-99);

- (cvi) Working Capital Consortium Agreement (Ex. A-100);

- (cvii) Joint Deed of Hypothecation (Ex. A-101);

- (cviii) Agreement of Guarantee executed by the defendants – borrower / guarantors (Ex. A-102-colly);

- (cix) Confirmation of Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga dated 10.07.2007 (Ex. A-103);

- (cx) Confirmation of Equitable Mortgage of property situated at 20, Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, dated 10.07.2007 standing in the name of Anil Monga (Ex. A-104);

- (cxi) Confirmation of Equitable Mortgage of property situated at 20, Lower Ground Floor, NRI Complex, Greater Kailash-IV, dated 10.07.2007 standing in the name of Rajesh Monga (Ex. A-105);

- (cxii) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters, total of both Plot 10587.98 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga (Ex. A-106);

- (cxiii) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350±B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007 (Ex. A-107);

- (cxiv) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney (Ex. A-108);

- (cxv) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney (Ex. A-109);

- (cxvi) Negative Lien on KHasra no. 230 (1-1), 232(0-13) covering a land measuring 1 bigha and 14 biswa situated at village Saiduljab, Tehsil Hauz Khas (Ex. A-110);

- (cxvii) Letter dated 22.10.2009 issued by the Defendant no. 7 to the applicant bank enclosing copy of joint document executed by defendant no. 1 (Ex. A-111);

- (cxviii) Credit Sanction Advice dated 05.05.2010 issued by the Applicant Bank to the defendant no. 1 (Ex. A-112);

- (cxix) Board Resolution dated 26.05.2010 of defendants borrowers / guarantors (Ex. A-113); Documents executed on 10.06.2010 [from (cxx) to (cxxx)]

- (cxx) F12A (DPN) for Rs. 10.0 crore for packing credit (Ex. A-114);

- (cxxi) F16 for Rs. 10.0 crore for packing credit (Ex. A-115);

- (cxxii) F251B (Advance against good awaiting shipment Packing Credit) (Ex. A-116);

- (cxxiii) F12A (DPN) for Rs. 2.5 crore for bills (Ex. A-117);

- (cxxiv) F16 for Rs. 2.5 crore for bills (Ex. A-118);

- (cxxv) F107 (Letter of Hypothecation) (Ex. A-119);

- (cxxvi) Letter of Indemnity (Ex. A-120);

- (cxxvii) F12A (DPN) for Rs. 37.5 crore for LC limits (Ex. A-121);

- (cxxviii) F16 for Rs. 37.5 crore for LC limits (Ex. A-122);

- (cxxix) F110E (Letter of Hypothecation for securing machineries / goods / vehicles / book-debts) for Rs. 125.0 crore; Rs. 37.5 crore for LC Limits (Ex. A-123);

- (cxxx) F111A (Guarantee for Cash Credit etc.) for Rs. 2.5 crore (Ex. A-124);

- (cxxx i) Board Resolution dated 18.06.2010 (Ex. A-125);

- (cxxxii) Demand Promissory Note dated 18.06.2010 for Rs. 29,40,00,000/- (Ex. A-126);

- (cxxxiii) F-16 enclosing DPN of Rs. 29.40 crore dated 18.06.2010 (Ex. A-127);

- (cxxxiv) Letter of Undertaking dated 18.06.2010 for repayment in instalment (Ex. A-128);

- (cxxxv) Guarantee for Cash Credit etc. dated 18.06.2010 for Rs. 279,40,00,000/- (Ex. A-129-colly);

- (cxxxvi) Letter of Consent for disclosure of information to CIBIL executed by borrower dated 18.06.2010 (Ex. A-130);

- (cxxxvii) Letter of consent for disclosure of information to CIBIL executed by guarantor dated 18.06.2010 (Ex. A-131-colly);

- (cxxxviii) Letter dated 18.06.2010 undertaking to meet cost escalation in overseas project, not to escrow future cash close without the approval of the applicant bank etc. (Ex. A-132);

- (cxxxix) Letter dated 18.06.2010 issued by Applicant in response to the request of the defendants – borrower / guarantors wherein it is evident that the release of Rs. 29.40 crore was for investment in overseas project (Ex. A-133);

- (cxl) Letter dated 23.06.2010, by the Defendant, requesting to release USD 6 million alongwith undertaking to avail loan facilities from Bank of Baroda dated 23.06.2010 (Ex. A-134-colly);

- (cxli) Sanction letter dated 04.10.2011 issued by the Applicant Bank (Ex. A-135);

- Documents executed on 04.10.2011 [from (cxlii) to (clviii)]

- (cxlii) Board Resolution by defendant no. 1 (Ex. A-136);

- (cxliii) F14A (DPN) of Rs. 12.5 crore for packing credit (Ex. A-137);

- (cxliv) F-16 of Rs 12.5 crore for packing credit (Ex. A-138);

- (cxlv) F251B (Advances against good awaiting shipment Packing Credit) for Rs. 12.5 crore (Ex. A-139);

- (cxlvi) F14A(DPN) for Rs. 2.50 crore (Ex. A-140);

- (cxlvii) F16 for Rs. 2.50 crore (Ex. A-141);

- (cxlviii) F12A(DPN) for Rs. 50.0 crore (Ex. A-142);

- (cxlix) F16 for Rs. 50.0 crore (Ex. A-143);

- (cl) F14A(DPN) for Rs. 12.5 crore (Ex. A-144);

- (cli) F16 for Rs. 12.5 crore (Ex. A-145);

- (clii) F107 (Letter of Hypothecation) (Ex. A-146);

- (cliij) Letter of Indemnity (Ex. A-147);

- (cliv) F110E (Letter of Hypothecation for securing machineries / goods / vehicles / book-debts) for Rs. 125.0 crore (Ex. A-148);

- (clv) F111A (Guarantee for Cash Credit etc.) for Rs. 235,65,00,000/- (Ex. A-149);

- (clvi) F-419 Letter of Undertaking by defendant no. 1 to not to create any further charge over their property / asset including uncalled capital (Ex. A-150);

- (clvii) F68 (Letter of Authority for collection and negotiation of bills) (Ex. A-151);

- (clviii) Letter of undertaking for disclosure of information to CIBIL by borrowers and guarantors (Ex. A-152-colly);

- (clix) Joint letter dated 28.12.2011 of consortium members authorizing defendant no. 7(OBC) to act as Lead Bank and agent for other banks (Ex. A-153);

- (clx) Board Resolution dated 26.12.2011 of defendant no. 1 (Ex. A-154);

- (clxi) Working Capital Consortium Agreement dated 28.12.2011 (Ex. A-155);

- (clxii) Joint Deed of Hypothecation dated 28.12.2011 (Ex. A-156);

- (clxiii) Interse Agreement between members of consortium (Ex. A-157);

- (clxiv) Agreement of Guarantee dated 28.12.2011 by Defendants – guarantors (Ex. A-158-colly);

- (clxv) Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga (Ex. A-159);

- (clxvi) Equitable Mortgage of property situated at 20, front half of Basement and 1/3 share in Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, New Delhi standing in the name of Anil Monga (Ex. A-160);

(clxvii) Equitable Mortgage of property situated at 20, rear half of Basement and 1/3 share in Ground Floor Lower Ground Floor, NRI Complex, Greater Kailash-IV, New Delhi standing in the name of Rajesh Monga (Ex. A-161); (clxviii) Equitable mortgage of property situated at S-473, Second Floor, Greater Kailash-I, New Delhi standing in the name of defendant company (Ex. A-162);

(clxix) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga (Ex. A-163);

(clxx) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 60610.38 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007 (Ex. A-164);

(clxxi) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney (Ex. A-165);

(clxxii) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney (Ex. A-166); (clxxiii) Negative Lien on the office flat 102, First Floor, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Defendant no. 1 Company under power of attorney (Ex. A-167);

(clxxiv) Negative Lien on the office flat at Southern Half Portion of Ground Floor in South Delhi, 12, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Company under power of attorney (Ex. A-168);

(clxxv) Negative Lien on farm house at Khasra no. 230-232, Monga Farms, Saiduljab, Opp. Saket, M.B. Road, New Delhi acquired by Anil Monga under power of Attorney (Ex. A-169);

(clxxvi) Credit sanction advice dated 30.03.2013 issued by applicant bank to the defendant no.1 (Ex. A-170); (clxxvii) Board resolution dated 09.04.2013 passed by defendant no. 1 (Ex. A-171); Documents executed on 17.04.2013 [from (clxxviii) to (clxxxix)]

(clxxviii) F14A (DPN) of Rs. 5.0 crore for bills (Ex. A-172);

(clxxix) F14A (DPN) of Rs. 12.5 crore for packing credit (Ex. A-173);

(clxxx) F-16 of Rs 12.5 crore for packing credit (Ex. A-174); (clxxxii) F14A (DPN) of Rs. 12.5 crore for LC (Ex. A-175); (clxxxii) F16 of Rs. 12.5 crore for LC (Ex. A-176); (clxxxiii) F251B (Advances against good awaiting shipment Packing Credit) for Rs. 12.5 crore (Ex. A-177); (clxxxiv) F107 (Letter of Hypothecation) (Ex. A-178);

- (clxxxv) Letter of Indemnity (Ex. A-179);

- (clxxxvi) F110E (Letter of Hypothecation for securing machineries / goods / vehicles / book-debts) for Rs. 333.85 crore (Ex. A-180);

- (clxxxvii) F111A (Guarantee for Cash Credit etc.) for Rs. 1323.40 crore (Ex. A-181);

- (clxxxviii) F-419 Letter of Undertaking by defendant no. 1 to not to create any further charge over their property / asset including uncalled capital (Ex. A-182);

- (clxxxix) Letter of undertaking for disclosure of information to CIBIL by borrowers and guarantors (Ex. A-183-colly);

- (cxc) Board Resolution dated 09.08.2013 passed by defendant no. 1 (Ex. A-184); Documents executed on 20.08.2013 [from (cxci) to (ccv)]

- (cxci) Supplemental Working Capital Consortium Agreement dated 28.12.2011 (Ex. A-185);

- (cxcii) Supplemental Joint Deed of Hypothecation dated 28.12.2011 (Ex. A-186);

- (cxciii) Confirmatory Letter of Guarantee (Ex. A-187-colly);

- (cxciv) Agreement for Pledge of Shares and debentures (Ex. A-188-colly);

- (cxcv) Equitable Mortgage of property situated at 184, Kohat Enclave, Pitampura, Delhi standing in the name of Anil Monga and Rajesh Monga (Ex. A-189);

- (cxcvi) Equitable Mortgage of property situated at 20, front half of Basement and 1/3 share in Ground Floor, NRI Complex – Mandakini, Alaknanda, Greater Kailash-IV, New Delhi standing in the name of Anil Monga (Ex. A-190);

- (cxcvii) Equitable Mortgage of property situated at 20, rear half of Basement and 1/3 share in Ground Floor Lower Ground Floor, NRI Complex, Greater Kailash-IV, New Delhi standing in the name of Rajesh Monga (Ex. A-191); (cxcviii) Equitable mortgage of property situated at S-473, Second Floor, Greater Kailash-I, New Delhi standing in the name of defendant company (Ex. A-192);

(cxcix) Equitable mortgage of property situated at Plot No. 1 admeasuring 3813.98 sq. meters and Plot No. 3 admeasuring 67.44 sq. meters in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 6061038 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) dated 10.07.2007 standing in the name of Shri Anil Monga (Ex. A-193);

(cc) Equitable mortgage of property situated at Plot No. 1A admeasuring 3814.53 sq. meters and Plot No. 2 admeasuring 5918.54 sq. meters, total of both Plot 9733.07 sq. metres in non-agricultural land bearing Survey No. 352/1 acres 7-23 gunthas and Survey No. 352/4 acres 2-10 gunthas and Survey no. 573.7 acres 2-36 gunthas and Survey No. 350-B acres 2-10 gunthas i.e. total acres 14-39 gunthas = 60610.38 sq. metres converted for industrial godown and storage purpose lying and situated at village Mithirohar, Taluka Gandhinagar – Kutch (Gujarat) standing in the name of Shri Rajesh Monga dated 10.07.2007 (Ex. A-194);

(cci) Negative Lien on the office flat 301, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Rajesh Monga under power of attorney (Ex. A-195);

(ccii) Negative Lien on the office flat 302, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Anil Monga under power of attorney (Ex. A-196);

(cciii) Negative Lien on the office flat 102, First Floor, South Delhi House, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Defendant no. 1 Company under power of attorney (Ex. A-197);

(cciv) Negative Lien on the office flat at Southern Half Portion of Ground Floor in South Delhi, 12, Zamrudpur Community, Centre, Kailash Colony, New Delhi and acquired by Company under power of attorney (Ex. A-198);

(ccv) Negative Lien on farm house at Khasra no. 230-232, Monga Farms, Saiduljab, Opp. Saket, M.B. Road, New Delhi acquired by Anil Monga under power of Attorney (Ex. A-199);

(ccvi) Interse Agreement dated 20.08.2013 executed between the members of consortium (Ex. A-200);

(ccvii) Credit sanction letter dated 23.09.2014 issued by the applicant bank (Ex. A-201);

(ccviii) Board Resolution dated 13.11.2014 passed by defendant no. 1 (Ex. A-202);

(ccix) Master Restructuring Agreement dated 26.11.2014 (Ex. A-203);

(ccx) Joint Deed of Hypothecation dated 26.11.2014 (Ex. A-204);

(ccxi) Agreement of Guarantee dated 26.11.2014 by Defendants no. 2 to 6 (Ex. A-205-colly);

(ccxii) Agreement for Pledge of Shares by Defendants no. 1 & 2, Sh. Anil Monga and Sh. Rajesh Monga dated 26.11.2014 (Ex. A-206);

(ccxiii) Irrevocable Power of Attorney by Defendants no. 1 & 2 as Pledgors of shares dated 26.11.2014 (Ex. A-207);

(ccxiv) Security Agent Appointment Agreement among the borrower and lender banks dated 26.11.2014 (Ex. A-208);

(ccxv) Conformation of contents of Security Agent Agreement dated 26.11.2014 (Ex. A-209);

- (ccxvi) Inter se Agreement executed amongst the applicant bank and defendants no. 7 to 9 banks (Lender Banks) (Ex. A-210);

- (ccxvii) Credit Sanction Advice dated 23.12.2014 issued by the Applicant Bank (Ex. A-211);

- (ccxviii) Board Resolution dated 23.12.2014 passed by defendant no. 1 (Ex. A-212);

- (ccxix) Supplementary Master Restructuring Agreement dated 23.12.2014 executed between the parties (Ex. A-213);

- (ccxx) Deed of Guarantee dated 23.12.2014 executed by the defendants – borrowers / guarantors (Ex. A-214);

- (ccxxi) Supplemental deed of hypothecation dated 23.12.2014 (Ex. A-215);

- (ccxxii) Supplementary interse agreement dated 23.12.2014 executed between the members of consortium (Ex. A-216);

- (ccxxiii) Letter dated 23.12.2014 conforming pari passu arrangement executed between the members of consortium (Ex. A-217);

- (ccxxiv) Supplementary security agent appointment agreement dated 23.12.2014 (Ex. A-218);

- (ccxxv) Supplementary agreement for pledge dated 23.12.2014 (Ex. A-219);

- (ccxxvi) Demand Notice under Section 13(2) of SARFAESI Act issued by applicant bank on 08.06.2014 (Ex. A-220);

- (ccxxvii) Email dated 18.07.2019 of SBH to applicant bank (Ex. A-221);

- (ccxxviii) Statement of Account certified as per Bankers Books of Evidence Act 1893 (Ex. A-222 & A-223).

9. So far as, Defendants no. 1 to 3 are concerned they have also filed their evidence by way of affidavit of Mr. Rajesh Monga, director of defendant no. 1 and have relied upon certain documents viz. Board Resolution of defendant no. 1 (DW1/57); letters dated 23.12.2014 (DW1/1), 31.05.2014 (DW1/2), 07.07.2014 (DW1/3), 16.07.2014 (DW1/4), 18.07.2014 (DW1/5), 06.10.2014 (DW1/6), 28.10.2014 (DW1/7), 28.10.2014 (DW1/8), 03.11.2014 (DW1/9), 09.12.2014 (DW1/10), 30.12.2014 (DW1/11), 02.01.2015 (DW1/12), 20.01.2015 (DW1/13), 24.01.2014 (DW1/14), 08.04.2015 (DW1/15), 15.04.2015 (DW1/16), 15.04.2015 (DW1/17), 21.05.2015 (DW1/18), 15.06.2015 (DW1/19), 07.07.2015 (DW1/20), 05.08.2015 (DW1/21), 26.08.2015 (DW1/22), 28.08.2015 (DW1/23), 31.08.2015 (DW1/24), 04.09.2015 (DW1/25), 26.11.2015 (DW1/26), 27.11.2015 (DW1/27), 16.02.2016 (DW1/28), 21.03.2016 (DW1/29), 12.05.2016 (DW1/30), 15.06.2016 (DW1/31), 20.07.2016 (DW1/32), 28.07.2016 (DW1/33), 16.08.2016 (DW1/34), 17.08.2016 (DW1/35), 27.09.2016 (DW1/36) exchanged with the answering defendants and the applicant bank and other consortium banks; Minutes of Joint Lenders Meeting dated 05.11.2016 (DW1/37), Minutes of JLM dated 22.07.2016 (DW1/38), Minutes of JLM dated 16.06.2016 (DW1/39), Minutes of JLM dated 26.05.2016 (DW1/40), Minutes of JLM dated 22.04.2016 (DW1/41), Minutes of JLM dated 15.02.2016 (DW1/42), Minutes of JLM dated 04.11.2015 (DW1/43), Minutes of JLM dated 07.08.2015 (DW1/44), Minutes of JLM dated 21.04.2015 (DW1/45), Minutes of JLM dated 12.11.2014 (DW1/46), Minutes of JLM dated 15.05.2014 (DW1/47), Minutes of JLM dated 15.07.2014 (DW1/48), Minutes of JLM dated 24.04.2014 (DW1/49), Minutes of JLM dated 08.02.2013 (DW1/50), Sanction letter dated 23.06.2014 by OBC along with appraisal (DW1/51), Sanction letter dated 11.09.2014 by BOB (DW1/52), Sanction letter dated 23.09.2014 by Indian Overseas Bank (DW1/53), Sanction letter dated 24.09.2014 by Allahabad Bank (DW1/54), Sanction letter dated 29.10.2014 by BOB (DW1/55) and Letter dated 10.11.2014 by the Allahabad Bank (DW1/56).

10. So far as, Defendants no. 7 & 9 are concerned, they did not file any evidence. However, it is important to note here that Defendants no. 7 to 9 are proforma defendants against whom no relief has been claimed by the applicant bank.

11. It is pertinent to note here that during the pendency of this OA, one application being IA No. 122/2021 was filed for seeking substitution of name of defendant no. 7 i.e. Oriental Bank of Commerce with Punjab National which was allowed vide order dated 22.09.2023 of the Tribunal.

12. In the present case, the applicant bank as well as defendants no. 1 to 3 have filed their respective written submissions.

12.1 It is also important to note here that in the written submissions of defendants no. 1 to 3, they have relied upon following judgments also:-

- a) (2007) 5 SCC 660 : Ram Baniwal Vs. Ram Lakhani (Dead)

- b) (1974) 1 SCC 675 : Shiharchand Jain Vs. Digamber Jain Prabnd Karina Sabha

- c) (1975) 1 SCC 770 : Pasupati Venkateswarlu Vs. The Motor & Genral Traders

- d) 1992 Supp (2) SCC 623 : Ramesh Kumar Vs. Kesho Ram

- e) (2009) 10 SCC 197 : Jai Prakash Gupta (Dead) Vs. Riyaz Ahmed and Another

- f) 1954 SCC Online Bom 64 : AIR 1955 Bom 419 : Bank of India Limited by Rustom Fakirji Cowasjee

- g) (2012) 5 SCC 370 : Maria Margarida Sequeira Fernandes and Others Vs. Erasmo Jack De Sequeira

- h) 2009 SCC Online Ori 3 : AIR 2009 Ori 147 : Swastik Agency and Others Vs. State Bank of India, Bhubaneshwar & Others (Para 38)

- i) C.K. Sasankan Vs. Dhanalakshmi Bank Ltd. (2009) 11 SCC 60 : (2009) 4 SCC (Civ) 436 : 2009 SCC OnLine SC 459 at Page 63

13. Heard Ld. counsel for applicant and perused the entire record. Now I would like to deal with the defence taken by the contesting defendants in subsequent paras.

**Defence of defendants no. 1 to 3 in their common WS along with Set Off / Counter Claim**

- (i) The defendants no. 1 to 3 have raised an objection that the applicant bank failed to file proper and complete documents which are relevant and necessary for adjudication of present OA.

On perusal of record, it is evident that the applicant bank has filed all the documents relied upon by it which have also been duly exhibited by the applicant bank. Thus, it is clear that the applicant bank has very well filed the documents in compliance of Rule 9 of DRT (Procedure) Rules 1993. In these circumstances, this Tribunal does not find any merit in the contention of defendants no. 1 to 3 and same stands rejected accordingly.

- (ii) The next objection raised by defendants no.1 to 3 are that that there are various credits running into several crores in the statement of account maintained with the applicant bank which have not been deliberately filed by the applicant bank just to create inflated and non-existing liability / claim against the defendants; This Tribunal is of the view that the allegations levelled by the defendants is without any base and documentary proof. Whereas, on the other hand, applicant bank has duly filed the statement of account duly certified under Bankers Books of Evidence Act.

Record further reveals that the defendants have not challenged any entry, charges / expenses specifically nor they have filed their own statement of accounts. Hence, this Tribunal is of the view that the defendants have taken this plea just to get absolve from their liability. Accordingly, this plea of defendants no.1 to 3 is hereby rejected.

(iii) The next objection of the defendants is that the applicant bank and other consortium banks under consortium agreements have already filed their claim before ECGC and same must be under process. Hence, the claim made by the applicant bank in the present OA is pre-mature and is not maintainable at this stage and the applicant bank be directed to file respective documents in support in view of claim already filed before ECGC.

This Tribunal is of the view that Export Credit Guarantee Corporation of India (ECGC) is wholly owned by the Government of India which provides export credit insurance to banks and other financial institution to enable them to extend credit facilities to exporters. As per the ECGC guidelines, the amount being settled by ECGC, under this claim should not be credited to the account of exporter unless and until the amount due from the exporter is fully recovered or a decision is taken to write off of the dues, if it so warranted but only with the prior approval of ECGC. Further, the amount, if any, received from the ECGC is not a payment of debt. This Tribunal is also of the opinion that ECGC claim by the bank is an independent transaction and has nothing to do with enforcement of security interest / loan by the bank against the defendants.

With these observations, the present objection of the defendants is hereby discarded.

- (iv) Next objection of defendants no. 1 to 3 is that there are more inconsistencies in the plaint as can be seen that in the separate sheet of Memo of Parties, the defendant / respondent no. 11 & 12 have been mentioned but there is such mention in the main application.

Record reveals that in the memo of parties filed at the time of filing of OA, the applicant bank has given details of defendants no. 1 to 10 only. Thereafter, at the time of filing IA No. 122/2021 (for seeking substitution of PNB in place of defendant no. 7 / OBC), an amended memo of parties was filed by the applicant bank wherein also defendant no. 1 to 10 have been mentioned and no details of defendants no. 11 & 12 have been given. But one amended memo of parties dated 22.05.2023 is available on record wherein defendants no. 11 & 12 have been arrayed which may be mentioned inadvertently by the applicant bank. Even otherwise, no notice was ever issued to the defendants no. 11 & 12 nor any claim was raised against them. Hence, it is directed that the names of defendants no. 11 & 12 mentioned in memo of parties filed on 22.06.2023 shall not be considered in the memo of parties.

With these directions, this objection of defendants stands disposed off accordingly.

(v) The defendants no. 1 to 3 have raised an objection that this Tribunal has no jurisdiction to this Tribunal.

On perusal of record, it is clear that this OA was original filed before Ld. Ld. DRT-II, Delhi and at that time Ld. DRT-II had jurisdiction to entertain this OA. The said OA was subsequently transferred to this Tribunal in pursuance to Gazette Notification dated 04.10.2022 issued by Govt. of India and now this Tribunal is having jurisdiction to entertain this OA. Hence, the present objection of defendants no. 1 to 3 is liable to be dismissed and same stands rejected.

(vi) Defendants no. 1 to 3 have also raised an objection that that this OA has not been filed within limitation.

Record reveals that this OA was filed on 05.05.2017 and the defendants no. 1 to 3 were availing loan facilities till December 2014. Since defendant no. 1 failed to maintain financial discipline, therefore, the applicant bank also issued notice dated 08.06.2016 under Section 13(2) of SARFAESI Act 2002. Hence, it is clear that the defendants lastly executed documents in December 2014 whereas this OA was filed on 05.05.2017, which is well within the period of limitation. Accordingly, this plea of defendants no. 1 to 3 is liable to be rejected and same stands rejected.

- (vii) Next objection raised by defendants no. 1 to 3 is that this OA has not been filed by duly authorized officer of applicant bank.

In the light of General Power of Attorney / Authorization Letter of applicant Bank (Ex.- A-1), I do not find any merit in the contention of defendants no. 1 to 3, hence, same is hereby rejected accordingly.

- (viii) Defendants no. 2 & 3 have also taken a plea that they did not execute the Deed of personal guarantees nor created any equitable mortgage or negative lien on their respective properties.

Record reveals that the applicant bank has filed the guarantee deeds executed by defendants no. 2 & 3 as well as defendants no. 4 to 6 from time to time w.e.f 2006 till 23.12.2014 (Ex. A-15-colly, Ex. A-26-colly), (Ex. A-43), (Ex. A-51 to A-55), (A-77-colly), (A-84-colly), (A-94-colly), (A-102-colly), (A-129-colly), (A-158-colly), (A-187-colly), (A-205-colly) and (A-214) which have been duly proved / exhibited by the bank.

Moreover, applicant bank has also proved various documents with regard to creation of mortgage / negative lien on various properties viz. Ex. A-57

to A-65, A-103 to A-110, A-159 to A-169, A-189 to A-199.

It is also evident from the documents placed on record viz. duly accepted sanctions letters issued from time to time that the charge of negative lien was created by the defendants to create the availability of those properties for paying the dues of the Bank.

In their WS, Defendants no. 2 & 3 have simply denied the execution of guarantee agreements as well as creation of mortgage. This Tribunal is of the view that mere denial of the execution of documents by the defendants is not sufficient to prove their contention. Moreover, defendants no. 2 & 3 have not denied their signatures on the aforesaid documents. Hence, the plea of defendants no.1 to 3, being devoid of any merit, is not tenable in the eyes of law and same stands rejected accordingly.

(ix) Next objection of defendants no. 1 to 3 is that the applicant bank is not entitled for direction from this Hon'ble Tribunal to direct the SBH (now SBI) to remit Rs. 2.42 crore to the Applicant Bank.

It is matter of record that the applicant bank has sought this relief qua defendant no. 10 / SBH (now SBI) for remitting the amount of Rs. 2.42 crore. This Tribunal is of the view that the said amount claimed by the applicant bank qua defendant no. 10 cannot be considered as a 'debt' since SBH is only a holder of the money / sale proceeds routed through the current account maintained with it by the Defendant no. 1 company from the sale of its wholly owned subsidiary Emmsons Grains Limited, Cyprus. Since, this issue is between bank to bank, hence, this Tribunal is not going to pass any order in this regard. With these observations, this objection of defendants no. 1 to 3 stands disposed off accordingly.

**Grounds taken by the defendants for preferring set off / counter claim against the lenders banks including proportionate share of the applicant bank**

The main ground taken in the counter claim is that the defendants suffered various losses due to delay in release of sanctioned facilities by all the banks. Moreover, the banks did not release the working capital facilities from time to time. Hence, they lost business opportunity. Therefore, the applicant bank and other lender banks are liable to compensate / set off a sum of Rs. 291.01 crore on account of Set off / Counter Claim raised by the defendants herein. Hence, request is made to allow Set Off / Counter Claim of Rs. 291.01 Crore and the applicant bank be held liable for claim to its share proportionately, being a member of consortium.

Though defendants no. 1 to 3 have filed various documents viz. DW1/1 to DW1/60 but on perusal of record, it is reveals that none of the said documents prove any wrong on the part of the applicant bank. The defendants no. 1 to 3 have duly availed the loan facilities from the applicant bank as well as from consortium member banks which has been proved from the documents filed / proved by the applicant bank. This Tribunal is of the view that due to non-maintenance of financial discipline the account of defendant no. 1 was slipped into NPA and the applicant bank filed this OA under Section 19 of RDB Act for recovery of its dues from defendants no. 1 to 6. Hence, this Tribunal is of the view that the set off / counter claim filed by defendants no. 1 to 3, being devoid of any merits, is liable to be rejected and same stands rejected.

So far as, judgments relied by defendants no. 1 to 3 in their written submissions (as detailed in Para 12.1 of this order), are concerned, I have gone through the same which reveals that same Judgments relate to UP Urban Building Act 1972, other matters are relating to Civil Case as Vacation of Land and some Judgments related to Civil Matters in Second Appeal before Hon'ble High Court where subsequent event was considered. The facts of the said cases are different from the case in hand. Hence, these Judgments are not going to give any benefit to the defendants no. 1 to 3.

14. So far as, Defendant no. 7 / OBC (now PNB) is concerned, it has been impleaded as proforma party and no relief has been claimed against it.

Though, defendant no. 7, in its WS, has not denied the availment of loan facilities by defendants no. 1 to 6 from applicant bank as well as defendants no. 7 to 9 but it is contended by defendant no. 7 that the applicant bank along could not claim or appropriated an amount of Rs. 5.39 crore received from SBH on account of disbursement of wholly owned subsidiary of M/s Emmsons International Ltd.. It is also stated that as the Consortium is having 1^st pari-passu charge over the entire assets of company and if any amount is received by way of disposal of assets has to be shared among the consortium members on pari-passu basis. Further, Corporate Loan sanctioned by Applicant Bank to the defendant, individually was unsecured loan, therefore, unsecured creditor cannot have priority of charge / claim over the secured creditor's rights including the applicant bank. As such the amount so received / to be received from SBH (now SBI) by the applicant bank should be shared among consortium on pro-rata on pari-passu charge. Hence, it is prayed by the defendant no. 7 that the relief(s) as being sought in the OA cannot be granted in isolation in favour of Applicant Bank because the Applicant Bank continues to be bound by the Inter-Creditor Agreement dated 30.12.2016. Further more, it has been prayed that SBH be directed to remit and share the balance amount of Rs. 2.42 crore to the member banks and applicant bank be further directed to share said amount of Rs. 5.39 crore among the consortium members on pari-passu basis on pro rata basis.

Though this issue has already been discussed in Para 13(ix) of this order, however, it is once again reiterated that the amount so received by SBH cannot be considered as a 'debt' since SBH is only a holder of the money / sale proceeds routed through the current account maintained with it by the Defendant no. 1 company from the sale of its wholly owned subsidiary Emmsons Grains Limited, Cyprus. Similarly, so far as question of appropriation of Rs. 5.39 crore by applicant bank (received from SBH) is concerned, since this issue is also between bank to bank, hence, this Tribunal is not going to pass any order in this regard.

Further more, this OA has been filed by the applicant bank qua defendants no. 1 to 6 for recovery of its dues and qua defendant no. 10 for a limited relief (which has already been declined, as discussed above).

Even otherwise, defendants no. 7 to 9 have been impleaded as proforma defendants against whom no relief has been claimed by the applicant bank.

With these observations, this objection of defendant no. 7 stands disposed off accordingly.

15. So far as, Defendants no. 8 & 9 / Allahabad Bank (now Indian Bank) & Bank of Baroda are concerned, they have also been impleaded as proforma party and no relief has been claimed against it by the applicant bank.

It is also matter of record that defendant no. 8, though proforma party, has neither appeared through its counsel nor filed any WS. On the other hand, Defendant no. 9 has filed its WS wherein it has supported the claim of applicant bank.

16. In the present case, the defendants no. 4 to 6 have failed to appear nor any WS has been filed by them. Thus, the case of applicant remained un-rebutted by Defendants no. 4 to 6.

17. On the other hand, the witness of applicant bank has fully corroborated the averments made in the OA. Even otherwise the whole case of the applicant bank is based on the documents and the witness has duly proved all these documents. The evidence filed by the applicant bank gone unrebutted and there is no question of disbelieving the evidence lead by the applicant bank and applicant 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 no. 1 to 6 along with pendentelite interest @12% p.a. and costs as agreed between the parties.

18. In this OA, applicant bank has prayed to issue recovery certificate against defendants no. 1 to 6 wherein the defendant 1 is principal borrower and defendants no. 2 to 6 are personal guarantor to the Borrower of the Applicant Bank.

19. Consequently, TA No. 248/2022 is liable to be allowed in favour of applicant bank against defendants no. 1 to 6 (being principal borrower and guarantors), who are liable to pay the dues of the applicant bank along with costs and pendentelite & future interest @ 12.0 % p.a., from the date of filing of present OA, till the date of payment in full.

ORDER

- (i) TA No. 248/2022 stands allowed and the defendants no. 1 to 6 are directed to pay to the applicant, within 30 days, a sum of sum of Rs. 302,49,07,250.00 (Rupees Three Hundred Two Crore Forty Nine Lakh Seven Thousand Two Hundred and Fifty only) along with pendentelite contractual rate of interest @12 % p.a. from the date of filing of this OA till realization of the entire dues of the Applicant failing which, the aforesaid amount shall be recovered from the sale of secured assets / mortgaged properties / properties having negative lien, pledged shares, hypothecated stocks / goods belonging to defendants no. 1 to 6 (which have not been sold by the consortium members i.e. applicant bank and defendants no. 7, 8 & 9 as yet). In case of shortfall, same shall be recovered from the movable and immovable assets of the defendants no. 1 to 6.

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

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

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

TA-248/2022

- (v) Parties are directed to appear before the Recovery Officer-I, DRT-III, Delhi on 05.02.2026.

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

File be closed and consigned to records.

04.12.2025

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

(Pronounced in open court) Dated: 04.12.2025

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