INDIAN BANK vs MS SOUTHERN BATTERIES PVT LTD AND OTHERS on 21 April 2025

FINAL ORDER

The Original Applicant Allahabad Bank [now merged with Indian Bank] had filed the present OA under Section 19 of the RDB Act for recovery of a sum of Rs.141,01,20,530/- [Rupees One Hundred and Forty One Crores, One Lakh

Twenty Thousand, Five Hundred and Thirty Only] as on 02.08.2019 along with interest against the Defendants 1 to 4 jointly and severally and also sought for enforcement of the Hypothecation in Schedule 1 property and the sale of mortgaged properties as mentioned in Schedule II.

BRIEF FACTS OF THE CASE:-

1.0 The Defendant No.1 is a limited Company and the Defendants 2 to 4 are promoters / guarantors. Defendants 5 & 6 are the members of the consortium who had also accorded credit facilities and the securities are on paripasu basis.

1.1 Defendant No.1 is stated to be a long time customer in the business of manufacturing Batteries UPS, etc. The account was reviewed by the bank on 14.07.2017, which had the facilities with Union Bank of India and Dhanalakshmi Bank.

1.2 It is pleaded that on 14.02.2008, the applicant bank had sanctioned the facilities subject to creation of securities and the details are mentioned in the OA. It is found from the details furnished that the existing limits of various facilities were enhanced/modified certain facilities namely Cash Credit to Rs.1935/- from Rs.900/-, Packing Credit to Rs.100/- from Rs.50, FBP/FBN (Sub-Limit with C/C) to Rs.150 from Rs.75/-, Bills Discounting (ILC/FLC) (Sub-Limit with C/C) to Rs.200 from Rs.100/-, Term Loan – 5 (Renewal at the present level of outstanding) to Rs.101.93 from Rs.153.16 and Term Loan – 6 to Rs.137.78 from Rs.200 and Term Loan 7 at Rs.208.42 from Rs.250 (All in Lakhs).

1.3 It is also pointed out that Term Loan 8 is granted at Rs.400 L. It is pointed out that the nature of non funded facility limit is at Rs.900/- L from Rs.400 L and Bank Guarantee remained the same at Rs.100/-. (All in Lakhs)

1.4 Likewise, certain facilities were also either upgraded or sanctioned in the year 2009 vide letter dated 01.12.2009, which details are provided at Para-6 of the plaint.

The Applicant Bank had further elaborated the modifications and sanctions accorded to Defendant No.1 Company vide sanction letters dated 08.01.2010 and 14.07.2010. It is further pleaded that the Applicant Bank vide its sanction letter dated 17.03.2012 had accorded several sanctions and further in the year 2014, it had sanctioned some more facilities vide letters dated 21.05.2014 and 28.05.2014, which the Defendant No.1 Company accepted through its letter dated 31.05.2004 and certain securities were also executed along with the Bank Guarantees of Defendants 2, 3 & 4.

1.5 It is also pleaded in detail with regard to further sanctions accorded vide sanction letters dated 05.11.2015 and 20.11.2015, for which the securities were executed apart from the Bank Guarantees of Defendants 2 to 4.

1.6 It is the specific case that the Defendant No.1 Company had executed the loan agreement, supplementary to the hypothecation, guarantee agreements, demand promissory note, indemnity and undertaking all dated 28.07.2016 and personal guarantee letters of Defendants 2 to 4 dated 31.03.2016.

1.7 In order to secure the outstanding amounts, the Defendant No.1 Company through its board resolution dated 30.08.2017 had executed various loan documents all dated 30.08.2017.

1.8 It is submitted that the Defendant No.1 Company executed letters of continuity and created mortgage of several properties by deposit of title deeds on 02.05.2001, 25.01.2006 08.03.2008, 30.07.2010, 24.02.2016 and 20.09.2017 with an intention to secure the liabilities. It is also pleaded that the deposit of title deeds dated 02.05.2001 is done for creation of equitable mortgage in the property bearing shed No.A22, KSSIDC, Industrial area, Bommasandra and a letter is also issued confirming the same. Likewise by the letter dated 25.02.2006, the Defendant No.1 had created the equitable mortgage on the property bearing plot No.328, industrial area, jigani hobli, Anekal Taluk, Bangalore and a supplementary letter dated

30.07.2010 is also executed. The Defendant No.1 had also furnished letter extending the mortgage and supplementary letter dated 08.03.2008 with regard to three properties. Second supplementary letter dated 24.02.2016 is issued by the Defendant No.1 Company reaffirming the mortgage. In a similar way the Defendant No.1 Company issued another supplemental letter of mortgage dated 20.09.2019 concerning four properties, one in Bommasandra Bangalore and three in Jigani Hobli, Bangalore District.

1.9 The bank alleges that the working capital and term loan agreements are secured by the mortgages and Defendant No.1 Company had agreed to clear the outstanding term loan in sixty equal monthly installments for 21 months.

1.10 The Applicant Bank pleads that the Defendant No.1 Company had executed the acknowledgement of debt letters dated 30.01.2018, 27.11.2018 confirming the balances. The form 8 & 13 filed with the Registrar of Companies is also produced which shows the Registration of Charges. The Bank also relies on the audited balance sheet dated 31.03.2016, 31.03.2017 & 31.03.2018.

1.11 It is alleged that the Defendant No.1 Company did not adhere to the financial discipline and defaulted in the payment of principal and interest. The bank had addressed several requests in the year 2018 and 2019 started from 03.10.2018 to 10.07.2019. Thereafter the bank issued the legal notices dated 21.11.2019, 15.04.2019 and 02.07.2019.

1.12 It is also pleaded that the Defendant No.1 Company had availed loans from Defendant No.5 & 6 also.

1.13 The Applicant submits that the Defendant No.1 Company is in due a sum of Rs.133,42,29,396/- as on 25.11.2018 and a further sum of Rs.7,58,91,134/-. It is declared that the Bank had charged the interest of such a rate and capitalized at

Periodical rests as per RBI Guidelines. The Applicant submits that there have been major violations and described the events of default. It is pleaded that the cause of action arose from 14.02.2008 and thereafter on various dates, latest by 30.08.2017, when the Defendant No.1 executed the loan documents and further on the date of execution of the acknowledgement of the debt on 30.01.2018 and 27.11.2018. It is also pleaded that the cause of action arose on the date of mortgage and the latest being 20.09.2017 and on the dates when the loans were recalled by issuing demand notices. Hence the OA.

2.0 The OA was filed before the DRT-1, Bangalore and the matter is transferred to this Tribunal vide the DFS notification dated 04.10.2022.

3.0 After the transfer, this Tribunal has directed notices to the counsel for the Applicant Bank, who was asked to inform the next date of hearing in turn to the Defendants.

4.0 The Ld. Counsel for the Applicant who appeared for the bank on 29.03.2023 had filed a memo stating that the dates were notified. No appeared for the Defendants. However, the bank was asked to take fresh notices through RPAD. On 12.07.2023 the notices addressed to Defendants 1 to 4 & 6 returned as having left the address. The Ld. Counsel submitted that they were all served by DRT Bangalore and the Bank does not have the fresh addresses of these Defendants and the notices sent at the last known address suffices the services.

4.1 After perusal of the memo dated 12.12.2020 filed before DRT-1 Bangalore, which recorded in its order sheet that all the Defendants are served and Defendants 2 to 4 have refused the summons, it is clear that the Defendants have no interest to contest the case, nor did they follow up. The paper books have been served as noted in the Order Sheet dated 19.01.2020 of DRT-1, Bangalore. Thus after going through the same, this Tribunal had placed all the Defendants exparte by the order dated 12.07.2023. Thereafter the PA was not filed by the Applicant Bank and not rectified till 18.12.2024. Thereafter, the witness was examined on behalf of the Applicant Bank on 03.01.2025. The counsel for the Applicant Bank submitted that the certain amounts were received through liquidation. The matter was heard.

5.0 In the context of Defendants having remained exparte, this Tribunal had carefully considered the evidence on record. AW1 Mr.C.Karthik Reddy is examined on behalf of the Applicant. He had relied on Exhs.A1 to A14. The originals produced are Exh.A1, A5 to A35, A37 to A45, A58 and A59 and A102. All these originals were compared by the Registry and returned to the Applicant Bank. The rest of the documents were attested photocopies.

6.0 Heard the Ld. Counsel. Perused the evidence. In the wake of the pleadings and the evidence adduced the only point that arises for consideration is:- Whether the Applicant Bank is eligible for the recovery of the amounts sought for as against Defendants 1 to 4 jointly and severally?

7.0 The evidence of AW1 is by way of an affidavit and AW1 Mr.C.Karthik Reddy had reiterated the plaint averments and he relies on Exhs.A1 to A104. The accounts statements are at Exhs. A103 to A104. The allegations made in the affidavit are uncontroverted. The Defendants 1 to 4 having remained exparte, the plaint allegations are not denied. The liability of the company as averred in Para-27 of the Affidavit goes un-rebutted. Therefore, this Tribunal has no hesitation to hold that the liability of Defendants 1 to 4 as pleaded in the OA are proved on record, especially in the wake of the documentary evidence at Exh.A59 dated 31.01.2018 signed on behalf of the Defendant No.1 Company (Found at Page No.408 of Vol-II of the Proof Affidavit. The liability is acknowledged under this document dated 31.01.2018. The same shows that the OA filed is in time.

7.1 However, the subsequent developments during the pendency of the OA cannot be ignored. The Applicant Bank had filed a memo dated 14.04.2024 informing that the 1st Defendant Company was under liquidation and the liquidator Sh. Kanekal Chandrasekar had sold the Company with all the properties mentioned in the TA Schedule and recovered a sum of Rs.127,50,00,000/-. The Applicant Bank had to its share recovered a sum of Rs.73,85,81,084/- and credited to the loan account. In view of the recoveries made and the company having undergone liquidation, no liability can be fastened against Defendant No.1, though the Defendant No.1 Company remained exparte.

7.2 Thus no recovery certificate can be issued against the Defendant No.1 Company. It is to be noted that the hypothecated properties at Schedule No.1all belonged to the Defendant No.1 Company and schedule – II properties mentioned at Item No.A to D, all belong to the Defendant No.1 Company. Therefore the prayer in the OA at Paras B & C seeking direction to sell the movable and immovable properties which belonged to Defendant No.1 Company cannot be granted since the Applicant Bank itself had intimated this Tribunal vide memo dated 14.04.2024 that the properties mentioned in the schedules to the TA are all sold by the liquidator of the D1 Company.

7.3 The Ld. Counsel for the Applicant submits that there are certain dues yet to be recovered and the balance to be recovered is Rs.145,58,66,614/- as on 09.04.2024. He submits that the Defendants 2 to 4 being the guarantors are liable to pay the balance amount. The same is reflected in the memo dated 14.04.2024.

8.0 As far as the prayer to seek recovery certificate as against Defendants 2 to 4 the Ld. Counsel for the Applicant submits that in view of the guarantee agreements produced at Exh. A27 to A29 executed by Defendants No.4, Defendant No.2 and Defendant No.3 respectively, which is found in Page No.186 to 201 (Vol.No.1 of the

Proof Affidavit), the same may be allowed. This Tribunal had perused the documents. Exh.A27 (Page 186 to 192) shows that the same is executed by Defendant No.1, who is the Director of the Defendant No.1 Company. At Para-2 of the said document clearly brings in the personal obligation of this Defendant against the liability of Defendant No.1 Company. Para – 5 of the same also shows that this guarantee is irrevocable and is binding on the successor representatives and assigns. Para-7 is very clear that in case the principle borrower going into liquidation are becoming insolvent, the guarantee shall apply and secures any ultimate balance, which remains due to the bank. Thus the liability of Defendant No.4 towards the balance suit claim is proved on record and the same is not disputed by the said Defendant. The perusal of the guarantee deeds by Defendants 2 & 3 dated 28.07.2016 are also couched in the same terms and the Defendants 2 & 3 having not contested, cannot escape the liability of this suit claim under the deeds of guarantee. After careful perusal of the documentary evidence, there is no reason to differ from the submissions made by the Ld. Counsel for the Applicant Bank. Accordingly the following:-

: - O R D E R - :

(a) The claim against Defendant No.1 Company stands discharged in view of the realizations through liquidation reported.

(b) The Defendants 2 to 4 are hereby ordered personally to pay jointly and severally to the Applicant Bank a total sum of Rs.141,01,20,530/- [Rupees One Hundred and Forty One Crores, One Lakh Twenty Thousand, Five Hundred and Thirty Only] LESS the amounts realized through the liquidation of Defendant No.1 Company along with interest @9% p.a. till the date of realization from the date of filing of i.e. 28.08.2019 along with costs.

(c) It is also ordered that any other amount remitted or realized, if any, shall be adjusted.

9.0 The applicant bank is directed to file costs memo within two weeks of the receipt of this order. 10.0 Issue recovery certificate in favour of the applicant bank in terms of this final order as against Defendants 2 to 4 only. 11.0 Communicate a copy of this order to the parties concerned as per Rules.

Sd/- (A.S.JAYACHANDRA) PRESIDING OFFICER DRT-I, CHENNAI

LIST OF EXHIBITS MARKED THROUGH AW1 Mr.C.KARTHIK REDDY Sl. No Date Particulars Exhibits No.

1. 01.11.2012 Power of Attorney

2. 14.02.2008 Sanction Letter dated 14.02.2008 issued by Applicant Bank. A1

3. 01.12.2009 Sanction Letter dated 01.12.2009 issued by Applicant Bank A2

4. 08.01.2010 Sanction Letter dated 08.01.2010 & 14.07.2010 issued by Applicant Bank A3

5. 14.07.2010 Sanction Letter dated 08.01.2010 & 14.07.2010 issued by Applicant Bank A4

6. 17.03.2012 Sanction Letter dated 17.03.2012 issued by Applicant Bank A5

7. 21.05.2014 Sanction Letter dated 21.05.2014 issued by Applicant Bank A6

8. 28.05.2014 Sanction Letter dated 28.05.2014 issued by the Applicant Bank A7

9. 31.05.2014 Acknowledgement of sanction letter dated 31.05.2014 A8

10. 30.05.2014 EGM Board Resolution dated 30.05.2014 A9

11. 28.05.2014 Board Resolution dated 28.05.2014 A10

12. 30.05.2014 Board Resolution dated 30.05.2014 A11

13. 31.05.2014 Third Supplementary General Letter of Hypothecation dated 31.05.2014 A12

14. 31.05.2014 Guarantee Agreement dated 31.05.2014 executed by Sh.B. Radhakrishnan A13

15. 31.05.2014 Guarantee Agreement dated 31.05.2014 executed by Sh.R. Sreenivasan A14

16. 31.05.2014 Guarantee Agreement dated 31.05.2014 executed by Sh.R. Sudarshan A15

17. 31.05.2014

A16

18. 31.05.2014 Demand Promissory Note Dated 31.05.2014 issued by the Company A17

19. 31.05.2014 Undertaking dated 31.05.2014 for review cum enhancement of limits A18

20. 31.05.2014 Undertaking dated 31.05.2014 A19

21. 31.05.2014 Undertaking dated 31.05.2014 for review cum enhancement of limits A20

22. 31.05.2014 Undertaking dated 31.05.2014 for review cum enhancement of limits A21

23. 05.11.2015 Sanction Letter dated 05.11.2015 issued by Applicant Bank A22

24. 20.11.2015 Sanction Letter dated 20.11.2015 issued by the Applicant Bank A23

25. 28.07.2016 Acknowledgement of sanction letter dated 28.07.2016 A24

26. 28.07.2016 Term Loan Agreement dated 28.07.2016 executed by the Company in favour of the Bank. A25

27. 28.07.2016 Fourth Supplementary of general letter of

A26

28. 28.07.2016 Guarantee Agreement dated 28.07.2016 executed by Sh.B. Radhakrishnan A27

29. 28.07.2016 Guarantee Agreement dated 28.07.2016 executed by R. Sreenivasan A28

30. 28.07.2016 Guarantee Agreement dated 28.07.2016 executed by Sh.R. Sudarshan A29

31. 28.07.2016 Demand Promissory Note dated 28.07.2016 issued by the Company A30

32. 28.07.2016 Letter waiving Presentment of Pro-note A31

33. 28.07.2016 Letter of continuing Security A32

34. 28.07.2016 General Counter Indemnity dated 28.07.2016 A33

35. 28.07.2016 Undertaking dated 28.07.2016 for credit facilities A34

36. 28.07.2016 Undertaking dated 28.07.2016 for Term Loan 11 of Rs. 22.81 Cr. A35

37. 14.07.2017 Sanction Letter dated 14.07.2017 issued by Applicant Bank A36

38. 18.08.2017 Acknowledgement receipt of Sanction Letter dated 18.08.2017 issued by the Company A37

39. 30.08.2017 Company’s Board Resolution dated 30.08.2017 A38

40. 30.08.2017 Term Loan Agreement dated 30.08.2017 executed by the Company in favour of the Bank for Term Loan 11 A39

41. 30.08.2017 Fifth Supplementary of General letter of

A40

42. 30.08.2017 Guarantee Agreement dated 30.08.2017 executed by Sh.B. Radhakrishnan A41

43. 30.08.2017 Guarantee Agreement dated 30.08.2017 executed by Sh.R. Sreenivasan A42

44. 30.08.2017 Guarantee Agreement dated 30.08.2017 executed by Sh.R. Sudarshan A43

45. 30.08.2017 Demand Promissory Note Dated 30.08.2017 issued by the Company A44

46. 30.08.2017 ADV 2 agreement by Borrower to Depositor dated 30.08.2017 A45

47. 30.08.2017 ADV 24 Agreement dated 30.08.2017 A46

48. 30.08.2017

A47

49. 30.08.2017 Undertaking dated 30.08.2017 for credit facilities A48

50. 30.08.2017 Undertaking dated 30.08.2017 – CIBIL Guarantors A49

51. 30.08.2017 Undertaking dated 30.08.2017 – CIBIL Company A50

52. 30.08.2018 Proforma of endorsement of the Bank’s Hypothecation charge on insurance Policy A51

dated 30.08.2018.

53. 02.05.2001 Letter Evidencing deposit of title deeds dated 02.05.2001 and title deeds of property bearing Shed No. A-22, KSSIDC Industrial Area, Bommasandra, Bangalore A52

54. 02.05.2001 Letter Evidencing deposit of title deeds dated 02.05.2001 and Title Deeds of property bearing Plot No. 30, in S. No. (s) 270 in the KIADB Industrial Area, Bommasandra, Hobli Aethibele, Taluk Anekal, District Bangalore A53

55. 25.01.2006 Letter of Mortgagor addressed to Applicant Bank confirming deposit of title deeds by Borrower dated 25.01.2006 and Title Deeds of property bearing Plot No. 328, in Sy. No’s parts of 142 & 143 of Bommasandra Jigani Link Road, Industrial Area, Hobli Jigani, Taluk Anekal, District Bangalore A54

56. 30.07.2010 Supplemental Letter of Mortgagor addressed to Applicant Bank confirming deposit of title deeds through Constructive Delivery by Borrower dated 30.07.2010 and Title Deeds of property bearing Plot No. 20 A of Jigani Industrial Area I Phase, situated in S No’s parts of 123, 133, 134, 130, 562 and 563 of Jigani Village, Jigani Hoble, Anekal taluk, Bangalore A55

57. 08.03.2008 Supplemental Letter of Mortgagor addressed to Applicant Bank confirming deposit of title deeds through Constructive Delivery by Borrower dated 08.03.2008 A56

58. 24.02.2016 Second Supplemental Letter of Mortgagor addressed to Applicant Bank confirming deposit of title deeds through Constructive Delivery by Borrower dated 24.02.2016 A57

59. 20.09.2017 Supplemental Letter of Mortgagor addressed to Applicant Bank confirming deposit of title deeds through Constructive Delivery by Borrower dated 20.09.2017 A58

60. 31.01.2018 & 27.11.2015 Acknowledgement of Debt dated 31.01.2018 & 27.11.2018 issued by the Company & Guarantors A59

61. 25.03.2013 & Form 8 A60

30.08.2017

62. 30.08.2017 Form 13 A61

63. 08.05.2015 ROC search Report issued by Ministry of Corporate Affairs A62

64. 12.09.2017 Certificate of Registration for Modification of Charge dated 12.09.2017 A63

65. 31.03.2016 Audited Balance Sheet for the of Defendant No. 1 A64

66. 31.03.2017 Audited Balance Sheet for the of Defendant No. 1 A65

67. 31.03.2018 Audited Balance Sheet for the of Defendant No. 1 A66

68. 03.10.2018 Follow up letters and correspondence by the Company and Bank dated A67

69. 16.10.2018 Follow up letters and correspondence by the Company and Bank A68

70. 02.11.2018 Follow up letters and correspondence by the Company and Bank A69 & A70

71. 14.11.2018 Follow up letters and correspondence by the Company and Bank A71 & A72

72. 28.11.2018 Follow up letters and correspondence by the Company and Bank A73

73. 13.12.2018 Follow up letters and correspondence by the Company and Bank A74

74. 29.12.2018 Follow up letters and correspondence by the Company and Bank A75

75. 31.01.2019 Follow up letters and correspondence by the Company and Bank A76

76. 01.03.2019 Follow up letters and correspondence by the Company and Bank A77

77. 11.03.2019 Follow up letters and correspondence by the Company and Bank A78

78. 12.03.2019 Follow up letters and correspondence by the A79

Company and Bank

79. 22.03.2019 Follow up letters and correspondence by the Company and Bank A80

80. 31.05.2019 Follow up letters and correspondence by the Company and Bank A81

81. 03.06.2019 Follow up letters and correspondence by the Company and Bank A82

82. 06.06.2019 Follow up letters and correspondence by the Company and Bank A83

83. 24.06.2019 Follow up letters and correspondence by the Company and Bank A84

84. 03.07.2019 Follow up letters and correspondence by the Company and Bank A85

85. 10.07.2019 Follow up letters and correspondence by the Company and Bank A86

86. 27.11.2018 Follow up letters and correspondence by the Company and Bank A87

87. 15.04.2019 Follow up letters and correspondence by the Company and Bank A88

88. 02.07.2019 Follow up letters and correspondence by the Company and Bank A89

89. 25.01.2016 Sanction Letter dated 25.01.2016 issued by Dhanlaxmi Bank A90

90. 12.09.2017 Sanction Letter dated 12.09.2017 issued by Union Bank of India A91

91. 29.09.2018 Renewal Sanction Letter dated 29.09.2018 issued by Union Bank of India A92

92. 23.02.2016 Letter dated 23.02.2016 issued by the Applicant Bank to Dhanlakshmi Bank A93

93. 25.02.2016 Letter Ceding Pari Passu charge to be issued by Existing charge holders dated 25.02.2016 issued by Dhanlaxmi Bank A94

94. 25.02.2016 Letter dated 25.02.2016 issued by Applicant Bank to Dhanlakshmi Bank A95

95. 19.12.2017 Letter Ceding First Pari Passu charge dated 19.12.2017 issued by Union Bank of India A96

96. 31.10.2018 Copy of minutes of Joint Meeting A97

97. 21.02.2019 Copy of minutes of Joint Meeting A98

98. 08.01.2019 Copy of minutes of Joint Meeting A99

99. 10.07.2019 Copy of minutes of Joint Meeting A100

100. 27.11.2018 Notice Under Section 13(2) dated 27.11.2018 issued by the Bank A101

101. 30.01.2019 Possession under Section 13(4) dated 30.01.2019 issued by the bank A102

102. Statement of accounts – of Working Capital limits A103

103. Statement of accounts – of Term Loan limits A104

List of witness and documents on behalf of Defendants Nil.

No properties remain to be sold in realization since all the properties belonged to Defendant No.1 Company which is liquidated.

Sd/- (A.S.JAYACHANDRA) PRESIDING OFFICER DRT-I, CHENNAI

(Dictated to PS, typed by him in the System, corrected, signed and pronounced by me on this 21st Day of April, 2025)