CENTRAL BANK OF INDIA vs M/s. Synotech Polymers Pvt. Ltd. on 30 May 2024

J U D G M E N T

1. The Original Application has been filed by the Applicant against the Defendants before Ld. DRT-III, Mumbai, which was transferred to this Tribunal on 22.05.2017 as per the Govt. Notification dated 26.09.2016 and registered as OA No. 227/2021. Thereafter, on 26.10.2022 the matter was again transferred to the Ld. DRT-II, Mumbai due to charge of jurisdiction vide Govt. Notification dated 04.10.2022. Subsequently, the same stands transferred to this Tribunal in view of the said order dated 17.11.2022 to the said Notification dated 04.10.2022, passed by the Hon’ble Bombay High Court, and thus, the matter is registered as TOA 468/2023.

2. The present OA has been filed for recovery of following amounts: i. Rs. 10,67,93,563.88 (Rupees Ten Crore Sixty Seven Lakh Ninety Three Thousand Five Hundred Sixty Three and Pasie Eighty Eight Only) with future interest at the rate of 13.20 % p.a. with monthly rests and penal interest @ 2 % from 21.08.2016 till the payment of the entire amount or till actual realisation.

ii. Rs. 2,42,82,303.39 (Rupees Two Crore Forty Two Lakh Eighty Two Thousand Three Hundred Three and Paise Thirty Nine Only) with future interest at the rate of 13.20 % p.a. with monthly rests and penal interest @ 2 % from 21.08.2016 till the payment of the entire amount or till actual realisation. iii. Rs. 11,72,51,868.42 (Rupees Eleven Crore Seventy Two Fifty One Thousand Eight Hundred Sixty Eight and Paise Forty Two Only) with future interest at the rate of 17.70 % p.a. monthly rests and penal interest @ 2 % from 21.08.2016 till the payment of the entire amount or till actual realisation. Aggregating to an amount of Rs. 24,70,73,551/- (Rupees Twenty Four Crore Seventy Lakhs Seventy Three Thousand Five Hundred Fifty One Only) with further interest as mentioned above.

3. Facts as succinctly set out in the OA are that the Defendant No.1 is a private limited company, Defendant No. 2 & 3 are the directors of Defendant No. 1 and are also guarantors. Defendant No. 4 to 6 are guarantors.

4. It is stated that pursuant to the request made by the Defendant No. 1 through its directors to the Applicant for sanction enhancement and revise of various credit facilities from time to time, the Applicant considered request of the Defendant No. 1 and sanctioned various credit facilities to the Defendant No. 1 from time to time.

5. In consideration of the said sanction and consequent availing of the said facilities by the Defendant No. 1, the Defendants had executed loaning and security documents to secure the said loan in favour of the Applicants, from time to time.

6. It is further stated that on or about 28.02.2012, the Defendant No. 1 submitted an application to the Applicant through its Directors, for sanction of Fund and Non Fund based Credit Facilities. The Applicant considered the aforesaid request of the Defendant No. 1 and sanctioned following Credit facilities to the Defendant No.1 vide its Sanction Letter dated 30.03.2012: i. Cash Credit Facility against Hypothecation of Stocks of Rs. 2,00,00,000/- (Rupees Two Crores only) and sub-limit ODBD Facility of Rs. 1,50,00,000/- (Rupees one crore fifty lakhs only) within Cash Credit Limit for Working Capital Fund. ii. Terms Loan of Rs. 2,75,00,000/- (Rupees Two crores Seventy Five lakhs only) for purchase of machineries, equipments etc. iii. Letter of Inland DP/DALC (Inland 90days Usance) of Rs. 1,25,00,000/- (Rupees One Crore Twenty Five Lakhs Only) for purchase of raw materials.

7. In consideration of sanction of aforesaid facilities aggregating to Rs. 6 Crore, the Defendant No. 1 executed following loaning and security documents in favour of the Applicant on 30.03.2012: i. Certified true copy of the relevant extract from the minuets of the Board’s Meetings of the Defendant No. 1 held on 20.03.2012. ii. Demand Promissory Note iii. Letter of continuity for the aforementioned DP note iv. Letter of Waiver v. Letter of Interest Variation vi. Agreement for Hypothecation to secure Demand cash Credit against goods vii. Agreement for Hypothecation viii. General Irrevocable Power of Attorney ix. Term Loan Agreement x. Agreement of Hypothecation xi. Text of the consent clause to e included in the loan documents to be executed by borrower xii. Text of consent clause to included in the loan documents to be executed by guarantors xiii. Letter addressed by the Defendant No. 1 to the Applicant

8. It is further stated that pursuant to the request made by the Defendant No. 1, the Applicant open LC account and issued LC in favour of the respective parties from time to time. The Applicant paid LC amount to respective parties on due date from time to time.

9. In order to secure the aforesaid facility, Defendant No. 2 to 5 have individually executed form of Guarantee for advances & credit generally for Rs. 6 Crore.

10. It is also stated that on or about 03.07.2012, the Defendant No.1 through its Directors approached to the Applicant for sanction of the aforesaid Fund and Non Fund based Credit Facilities. The Applicant considered the aforesaid request of the Defendant No. 1 and the Regional office of the Applicant sanctioned on 31.12.2012 the following Credit facilities to the Defendant No.1 vide its Sanction Letter dated 10.01.2013: i. Cash Credit Facility against Hypothecation of Stocks of Rs. 2,75,00,000/- (Rupees Two crores Seventy Five Lakh Only) from Rs. 2,00,00,000/- (Rupees Two Crore Only) and sub- limit ODBD Facility of Rs. 1,50,00,000/- (Rupees One Crore Fifty Lakh Only) within the said Cash Credit Limit for Working Capital Fund. ii. Terms Loan of Rs. 2,75,00,000/- (Rupees Two Crore Seventy Five Lakh Only), iii. Letter of Credit / Inland / Import DP/DA (150 days) of Rs. 3,50,00,000/- (Rupees Three Crores Fifty Lakh Only) from Rs. 1,25,00,000/- (Rupees One Crore Twenty Five Lakh Only) for purchase of raw materials.

11. In consideration of sanction of aforesaid facilities aggregating to Rs. 9 Crore, the Defendant No. 1 executed following loaning and security documents in favour of the Applicant on 31.12.2013: i. Certified true copy of the relevant extract from the minutes of the Board’s meeting of the Defendant No. 1, held on 29.12.2012. ii. Demand Promissory Note iii. Letter of continuity for the aforementioned DP note iv. Letter of Waiver v. Letter of Interest Variation vi. Agreement for Hypothecation to secure Demand cash Credit against goods vii. Agreement for Hypothecation of Book Debts viii. Supplemental Term Agreement ix. Agreement of Hypothecation of Goods to secure letter of Credit (DA Basis) x. Text of the consent clause to be included in the loan documents to be executed by borrower xi. Text of consent clause to included in the loan documents to be executed by guarantors

xii. Letter addressed by the Defendant No. 1 to the Applicant

12. It is also stated that pursuant to the request made by the Defendant No. 1, the Applicant open LC account and issued LC in favour of the respective parties from time to time.

13. In order to secure the aforesaid facilities, Defendant No. 2 to 5 individually, executed form of guarantee for advances & credit generally for Rs. 9 Crore dated 31.12.2012 in favour of the Applicant.

14. It is further stated that Defendant No.1, through its directors further approached the Applicant for enhancement of the aforesaid fund and Non-Fund based Credit facilities. The Applicant considered the aforesaid request of the Defendant No. 1 and the Regional Office of the Applicant enhanced vide sanction letter dated 20.06.2013 the following credit facilities: i. Cash Credit Facility against Hypothecation of Stocks of Rs.8,00,00,000/- (Rupees Eight crores only) from Rs. 2,75,00,000/- (Rupees Two crores seventy five lakhs only) and sub-limit ODBD Facility of Rs. 1,50,00,000/- (Rupees one crore fifty lakhs only) within the said Cash Credit Limit for Working Capital Fund. ii. Terms Loan of Rs. 2,75,00,000/- (Rupees Two Crore Seventy Five Lakh Only). iii. Letter of Credit / Inland / Import DP/DA (150 days) of Rs.12,00,00,000/- (Rupees Twelve Crore Only) from Rs.3,50,00,000/- (Rupees Three Crore Fifty Lakh Only) to purchase of goods / raw materials.

15. In consideration of sanction of the aforesaid enhanced facilities aggregating to Rs. 22,75,00,000/- Defendant No. 1 executed following loaning and security documents in favour of the Applicant dated 26.06.2013; 24.08.2013: i. Certified true copy of the relevant extract from the minutes of the Board’s meeting of the Defendant No. 1, held on 26.06.2013. ii. Demand Promissory Note iii. Letter of Continuity, for the aforementioned D.P. Note iv. Letter of Waiver v. Letter of Interest Variation vi. Agreement for Hypothecation for Goods, Plant and Machineries, Book Debts and other movable assets vii. Agreement for Hypothecation of Goods to secure letter of credit (DA Basis) viii. Demand Promissory Note ix. Supplemental Term Agreement x. General Irrevocable Power of Attorney xi. Text of the consent clause to e included in the loan documents to the executed by borrower. xii. Text of the consent clause to e included in the loan documents to the executed by guarantors. xiii. Letter Addressed by the Defendant No. 1 to the Applicant.

16. It is further stated that pursuant to request made by the Defendant No. 1 the Applicant opened LC account and issued LC in favour of the respective parties from time to time. The Applicant paid LC amount to respective parties on due date from time to time. The Applicant stated that on the request of the Defendant No.1, the Applicant further opened LC accounts and issued LC No. 52 dated 28/10/2013 amount of Rs.5,00,8500/-, LC No. 53 dated 29/10/2013 amount of Rs.49,89,600/-, LC No. 54 dated 06/11/2013 amount of

Rs.21,06,930/-, LC No.

dated 16/11/2013 amount of Rs.32,97,000/-, LC No dated 20/11/2013 amount of Rs.41,47,500/-, LC No.

dated 20/11/2013 amount of Rs.39,39,600/-, LC No.

dated 25/11/2013 amount of Rs.36,26,700/-, LC No. 60 dated 28/11/2013 amount of Rs.35,51,625/-, LC No. 61 dated 30.11.2013 amount of Rs.40,71,375/- LC No. 62 dated 09/12/2013 amount of Rs. 50,24,250/-, LC No. 63 dated 20/12/2013 amount of Rs. 20,79,000/-, LC No. 64 dated 27/12/2013 amount of Rs. 50,08,500/-, LC No. 65 dated 06/01/2014 amount of Rs. 50,08,500/-, LC No. 66 dated 10/01/2014 amount of Rs.49,98,000/-, LC No. 67 dated 17/01/2014 amount of Rs. 51,86,475/-, LC No. 68 dated 28/01/2014 amount of Rs. 50,24,250/- , LC No. 70 dated 03/02/2014 amount of Rs. 49,37,625/-, LC No. 71 dated 05/02/2014 amount of Rs. 49,37,625/-, LC No. 72 dated 21/02/2014 amount of Rs. 50,27,400/-, LC No. 73 dated 24/02/2014 amount of Rs. 52,47,900/-, LC No. 74 dated 04/03/2014 amount of Rs. 51,15,600/-, LC NO. 75 dated 04/03/2014 amount of Rs. 26,30,250/-, LC No. 76 dated 07/03/2014 amount of Rs. 50,87,250/- , LC No. 77 dated 15/03/2014 amount of Rs. 49,63,350/-, LC No. 78 dated 19/03/2014 amount of Rs. 49,63,350/-, aggregating amount of Rs. 10,99,78,155/- (Rupees Ten crores ninety nine lakhs seventy eight thousand one hundred fifty five only) in favour of the respective parties from time to time. The Applicant also paid LC amount to respective parties on due date from time to time.

17. In order to secure the aforesaid facilities, Defendant No. 2 to 6 individually, executed form of guarantee for advances & credit generally for Rs. 22,75,00,000/- dated 24.08.2013 in favour of the Applicant.

18. It is further stated that Defendant No. 1 had availed various credit facilities from the Applicant from time to time and in order to secure the repayment thereof, the Defendant No. 1, 3 & 6 created equitable mortgage over the following immovable properties by depositing, executing documents in favour of the Applicant: i. All that piece and parcel of immovable properties i.e. land and building along with Plant and Machineries, etc. on bearing Gut No. 982 & 942 situated at Near Pachwad Phata, Mouje - Shiral, Kharad Patan Road, Taluka – Paten, District – Satara, Maharashtra as more particularly mentioned in Agreement for Sale, dated 16.07.2010, 15.03.2011 & 13.04.2012 (hereinafter for brevity’s sake referred to and described as the “said property No.1 or Factory Land”) owned by the Defendant No.1. ii. All that piece and parcel of the immoveable property i.e. Flat No. 401, 402, 403 & 404 situated at ‘A’ Wing, Reviera Tower Co-operative Housing Society Ltd. Akurli, Kandivali (East), Mumbai (hereinafter for brevity’s sake referred to and described as the “said Property No.2 or Flats”) as more particularly mentioned in the Agreement for Sale dated 29.03.2012 owned by the Defendant No. 1. iii. All that piece and parcel of the immoveable property i.e. NA land bearing Survey No. 371 situated at Panube Tarphe Warun, Taluka – Shirala, Dist. Sanglli (hereinafter for brevity’s sake referred to and described as the “said Property No. 3”) as more particularly mentioned in the Agreement for Sale dated 17/07/2013 owned by the Defendant No. 3.

iv. All that piece and parcel of the immoveable property i.e. Flat No.165 situated at Building No. 3, Trishul Co-operative Housing Society, M.H.B. Colony, Sardar Nagar No.1, Sion, Koliwada, Mumbai – 400 022 (hereinafter for brevity’s sake referred to and described as the “said Property No. 4 or Flat”) as more particularly mentioned in the Agreement for Sale dated 25.06.2003 owned by the Defendant No. 6.

19. It is also stated that necessary documents of the mortgaged properties were deposited by the Defendants in favour of the Applicant.

20. It is further stated that pursuant to the sanction of the aforesaid facilities and enhancement facilities, the charge of the hypothecated and the mortgaged properties was registered in the office of R.O.C. from time to time in favour of the Applicant.

21. It is also stated that Defendants have admitted their liabilities by executing acknowledgement of Debts dated 31.12.2012.

22. However, after availing aforesaid facilities and enhancement facilities, the Defendants did not regularise the accounts despite several reminders, thus the accounts of the Defendant No. 1 were classified as NPA on 15.12.2014. Thereafter, the Applicant through their legal notice dated 08.08.2016 called upon the Defendants to pay the outstanding dues, but they failed to pay the dues. Hence, the present OA is filed.

23. Notices were issued to the Defendants. Despite service, none appeared on behalf of the Defendant No. 2, 3, 5 & 6 nor any WS has been filed, thus, they were proceeded ex-parte vide order dated

24.05.2024. Despite service, none appeared on behalf of the Defendant No. 1 & 4.

24. The Applicant Bank has produced all the Original Loan documents and other relevant documents along with their Claim Affidavit filed through Senior Manager Gaurav Singh Chauhan.

25. I have heard the Ld. Counsel for the Applicant Bank and perused the record.

26. Record reveals that during the pendency of the OA, the Applicant has informed that the Applicant has initiated proceeding under the SARFAESI Act, 2002 to recover its dues against secured assets/mortgaged property and sold the secured assets/Property No.2 & 4 in public e-auction and sale proceeds of Rs.54,23,250/- on 31.03.2017 and Rs.1,60,52,920/- on 21.04.2017 is adjusted in the Cash Credit Account and Letter of Credit Accounts and Rs.49,30,000/- is adjusted in the Term Loan Account.

27. The witness of the Applicant Bank has fully corroborated the averments made in the OA, even otherwise the whole case of the Applicant Bank is based on documents and the witness has duly proved all these documents as against the Defendants. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of Defendant No. 1 to 6 is joint and several.

28. In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the Defendant No. 1 to

6.

O R D E R

(i) I allow the present O.A. and direct the Defendant No. 1 to 6 to pay to the Applicant, jointly and severally, within a period of 60 days, a sum of following amounts:

a. Rs. 10,67,93,563.88 (Rupees Ten Crore Sixty Seven Lakh Ninety Three Thousand Five Hundred Sixty Three and Pasie Eighty Eight Only) under Cash Credit Account, with future interest at the rate of 13.20 % p.a. with monthly rests and penal interest @ 2 % from 21.08.2016 till the payment of the entire amount or till actual realisation.

b. Rs. 2,42,82,303.39 (Rupees Two Crore Forty Two Lakh Eighty Two Thousand Three Hundred Three and Paise Thirty Nine Only) under Term Loan Account, with future interest at the rate of 13.20 % p.a. with monthly rests and penal interest @ 2 % from 21.08.2016 till the payment of the entire amount or till actual realisation.

c. Rs. 11,72,51,868.42 (Rupees Eleven Crore Seventy Two Fifty One Thousand Eight Hundred Sixty Eight and Paise Forty Two Only) under Letter of Credit Account, with future interest at the rate of 17.70 % p.a. monthly rests and penal interest @ 2 % from 21.08.2016 till the payment of the entire amount or till actual realisation. Aggregating to an amount of Rs. 24,70,73,551/- (Rupees Twenty Four Crore Seventy Lakhs Seventy Three Thousand Five Hundred Fifty One Only) with further interest as mentioned above.

(After adjusting the amount recovered during the pendency of the present OA from the sale of the mortgaged property No.2 & 4, as discussed in para 25 of this final order).

(ii) Failing which the aforesaid amount shall be recovered from the sale of the remaining mortgaged properties, hypothecated assets and goods as well as other personal moveable and immoveable assets of the Defendants.

(iii) Defendants are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

(iv) Defendants shall also pay the cost and expenses of the OA.

(v) Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal. Copy of this order be sent to the parties as per rules. File be consigned to record.

Place: Mumbai.

(Dr. Rekha G. Dhakar) Date : 30.05.2024

Presiding Officer, DRT-1, Mumbai.

Tjs/-