BANK OF BARODA vs M/S GULBARGA AIRPORT DEVELOPERS PVT LTD on 8 October 2024

: - FINAL ORDER - :

1. The Applicant Banks plead that the 1st Defendant - Company registered under the Companies Act 1956, having its registered office at Hyderabad, is engaged in the business of Development, Designing, Financing, Construction, Commissioning, Maintenance, Operation and Management of Green Field Airport at Gulbarga in the State of Karnataka. The 2nd Defendant is the promoter of the 1st Defendant and it is also ‚Project Sponsor Company‛ in respect of construction of Airport at Gulbarga.

2. The applicants submit that in the later part of the year 2010 and early part of the year 2011, the Defendants 1 and 2 approached the Applicant Banks for Term Loans to purchase of Machinery, Equipments, Constructions, Materials, etc., that the 2nd Defendant being the sponsor is willing to infuse necessary capital to the 1st Defendant in the event of the applicants granting the loan, etc. The 1st Defendant offered to secure repayment by mortgage of its lease hold rights in the First Schedule Property, described in the OA and also to hypothecate of all its Machinery, Equipments, Building Materials, Book Debts, etc., in favour of the Applicant Banks.

3. The 3rd Defendant is the State of Karnataka which has leased the First Schedule Property in favour of the 1st Defendant, which in turn created a mortgage of lease hold rights in favour of the Applicant Banks. The 4th Defendant is a Security Trustee relating to the advances made by the Applicants.

4. It is submitted that the 1st Defendant is having the lease hold rights in respect of 692 Acres and 4 Guntas of land in various Survey Nos. of Sreenivas Saradgi Village in Gulbarga Taluk and District, described in the First Schedule to the OA. It is pleaded that such lease hold rights are mortgaged to the Applicant Banks, by Deposit of title Deeds, on 31-03-2012.

5. Acceding to the request of the Defendants 1 and 2, the applicant Banks sanctioned Term Loans as under:

(a) Rs.50.00 Crores by 1st Applicant viz., Bank of Baroda as per Sanction letter dated 07-03-2011

(b) Rs.50.00 Crores by 2nd Applicant viz., Corporation Bank (now Union Bank of India) as per Sanction letter dated 28-02-2011.

(c) Rs.39.75 Crores by 3rd Applicant viz., Dena Bank (now Bank of Baroda) as per Sanction letter dated 24.03.2011.

6. Consequently, the 1st Defendant has executed the following documents in favour of the applicant Banks:

(a) Common Loan Agreement dated 21-06-2011

(b) Deed of Hypothecation dated 21-06-2011

(c) Facility Agency Agreement dated 21-06-2011

(d) Escrow Agreement dated 21-06-2011

(e) Security Trustee Agreement dated 21-06-2011

7. The Applicant Banks further submits that they entered into an Inter-se Agreement dated 21-06-2011 as to their rights, inter-se in relation to the advances made to the 1st Defendant Company, the sharing of the securities, etc. and the Bank of Baroda is the facility agent.

8. It is averred that the 1st Defendant Company availed the Term Loans from the Applicant Banks as under:

(a) Term Loan Account No.25280600000080 with the 1st Applicant Bank; (b) In Term Loan Account No. TLS/01/110019 with the 2nd Applicant Bank – now Union Bank of India:

(c) In Term Loan Account No.073357031001 with the 3rd Applicant Bank – merged into applicant No.1:

9. It is alleged that the 1st Defendant defaulted in repayment of the loan amounts as agreed as per the terms of sanction.

10. After giving credit to the payments received and after debiting interest up to 23.04.2014, the 1st Defendant is due to the Applicant Bank No.1 in a sum of Rs.37,73,58,610/- towards the said Term Loan Account No.25280600000080 as per Statement of account maintained.

11. It is also submitted by the applicants that after giving credit to the payments received and after debiting interest upto 23-04-2014 the 1st Defendant is due to the 2nd Applicant Bank in a sum of Rs.37,35,54,049/- in their said Term Loan Account No.TLS/01/110019 as per the statement of accounts.

12. It is also alleged that after giving credit to the payments received and after debiting interest up to 23-04-2014 the 1st Defendant is due to the 3rd Applicant Bank in a sum of Rs.30,46,14,246/- in the said Term Loan Account No.073357031001 as per Statement of accounts.

13. The total amount now due from Defendant No.1 to all the Applicant Banks together is Rs.105,55,26,905-00 as on the date of filing of the OA along with the applicable interest agreed. Hence the present OA.

14. Defendant No.1 was placed exparte by the Ld. PO, DRT-1, Bangalore on 16.03.2015. Defendant No.2 was placed exparte on 17.04.2015. Defendant No.3 had entered appearance and filed the objection statement to the IAs only. D4 was placed exparte on 01.09.2014.

15. However, after transfer of this matter, this Tribunal issued notices to the applicants vide order dated 10.01.2023 and directed the applicants to inform the next date of hearing to the Defendants also. Consequently, on 29.03.2023, it is noted that a memo is filed by the Applicants intimating that Defendants 1, 2 & 4 have left the addresses and they remained exparte before DRT-1, Bangalore. However, these defendants were placed exparte by the DRT-1, Bangalore on the different mentioned above and they did not contest.

16. It is pertinent to note that the Defendants 1 & 2 against whom the recovery is sought have not filed their written statements. Consequently the Applicants were asked to lead the evidence, which they have filed before this Tribunal after transfer of the case.

17. Heard the Ld. Counsel for the Applicants, who had also filed the written arguments. In the written arguments, the facts are reiterated. In the affidavit filed by the Applicant Banks dated 09.08.2024, it is clarified that the Banks have made enquiries on the current status of Defendants 1 & 2 Companies with regard to the pendency of any proceedings before the Tribunals under Company Law and IBC, and it is stated that there are no such proceedings pending as against Defendants 1 & 2. With the available material on record, the only point that arises for determination in this OA is:- “Whether the applicants are eligible for recovery of the sums claimed against the Defendants 1 & 2?”

18. To answer this issue, this Tribunal had carefully considered the pleadings in the OA, the available evidence on record. In the evidence tendered through AW1 Mr.Durgesh Chandra, on behalf of the 1st Applicant Bank, it is categorically sworn by the Aw1 that he is authorised to swear on behalf of the bank which claimed the interest of erstwhile Dena Bank also. He has reiterated the facts of the case and relied on the sanction letters dated 07.03.2011, of Bank of Baroda, the sanction letter dated 24.03.2011 of Dena Bank and also the sanction letter dated 28.02.2011 of Corporation Bank at Exhibits A2, A4 & A3 respectively. The sums sanctioned by each of the bank are also narrated. He also relies on the common loan agreement at Exh. A5. There is an allegation that the Defendants agreed to pay the interest at the rate of 5.75% over the base rate i.e. 16% p.a. with monthly rests. It is also proved through Exh.A6 that the hypothecation deed dated 21.06.2011, the Defendant hypothecated the first charge in favour of the bank. The facility agreement dated 21.06.2011 is produced at Exh. A7. The escrow agreement is at Exh.A8. The Security Trustee agreement is also produced at Exh.A9. The inter-se agreement among the applicants is at Exh. A10.

19. AW1 had further averred that the 1st Applicant Bank of Baroda, in terms of the loan account is eligible to recover Rs.37,73,58,610/- as on 23.04.2014. The 2nd Applicant Bank in terms of the loan account TLS/01/110019 is eligible to recover Rs.37,35,54,049/-. It is also affirmed in the affidavit that the erstwhile 3rd applicant, a sum of Rs.30,46,14,246/- due is unpaid. The say of AW1 that the Defendants 1 is liable to pay a sum of Rs.105,55,26,905/- to both the applicants as per three different accounts goes unrebutted. The statement of accounts are produced at Exhs. A11 to A13 respectively.

20. AW1 further states that the land leased in favour of the 1st Defendant by the State of Karnataka is as per the agreement at Exh.A14 and such lease hold rights are mortgaged in favour of the applicants by deposit of title deeds with the security trustee, which is confirmed by the memorandum of entry is duly registered before the sub-registrar Gulburga, which is at Exh.A15 dated 31.03.2012. It is averred that the mortgage is subsisting and thus the first schedule property is the secured asset.

21. AW1 further swears that the Defendant No.2 executed a letter of undertaking 21.06.2011 to infuse the funds into the Defendant No.1 Company which is at Exh.A16. Despite the warning letters, Defendants 1 & 2 did not conform to this undertaking. The meetings of consortium held between 2011 to 2013 is proved through the minutes of different dates produced at Exh.A17 to A24. In view of the documentary evidence, this witness prays for the Recovery Certificate.

22. The Applicants have also examined AW2 – Shri. V.Moorthi, who is the authorised signatory of the 2nd Applicant Bank and he has also corroborated the version of AW1 with regard to the status of D1 & D2, the creation of mortgage and the sanction of loan. He relied on Exh.A30, the sanction letter of Corporation Bank, the common loan agreement at Exh.A31 and the other documents namely the Deed of Hypothecation and Facility Agent Agreement, Security Trustee agreement and the Inter-se Agreement among the banks, which are at Exh.A31 to A36. The statement of accounts maintained by the 2nd Applicant Bank duly certified under the Bankers Book Evidence Act is produced at Exh.A37.

23. From the evidence available on record, the say of the applicant banks that the sanctioning of the loan and defaults committed by the Defendant No.1 in the matter of repayment of the loans, as on the date claimed under the pleadings go un- rebutted. Thus the Defendant No.1 is liable to pay the sums claimed by the Banks.

24. The liability of the 2nd Defendant now is to be verified through the documentary evidence. Exh. A5, the common loan agreement dated 21.06.2011 is perused. The parties to the loan agreement is the Defendant No.1 and the Applicant Banks. The 2nd Defendant Company is not a party to the common loan agreement. It is only seen that the 2nd Defendant Company is the sponsor and the word sponsor is defined at Exh.A5 as:-

Sponsor:- means Regional Airport Holdings International Limited (‚RAHI‛) a special purpose vehicle promoted by M/s.Comet Infra Development Private Limited (‚CIDPL‛) and IL&FS Transformation Networks Limited (‚ITNL‛) and its successors and assigns.

Sponsors Contribution:- means contribution of Rs.46.59 Crores made/to be made by the Sponsor by way of equity/equity like instruments into the Project.‛

After perusal of Exh.A5, this Tribunal does not see that Defendant No.2 is a signatory to the common loan agreement.

25. In the evidence of AW1 through the affidavit, it is contended that the 2nd Defendant a Project Sponsor Company of Defendant No.1 has executed a letter of undertaking, which is at Exh.A16. This document assumes significance to evaluate the liability of the 2nd Defendant. It is undertaken by the Defendant No.2 that it shall infuse the funds to the tune of Rs.46.59 Crores by way of equity or equity like instruments and during the currency of the facilities hold such share holding in the borrower Company. It has also undertaken that it would bridge any short fall or sponsor contribution, if and when required shall bridge such short fall in the debt service reserve account. It is also acknowledged by the Defendant No.2 that they undertake and agree any breach of this undertaking to be treated as an event of default. Therefore, the liability of the Defendant No.2 is not that of a guarantor, it is only to the extent of infusing the funds. The OA averments do not show that the Defendant No.2 had failed in its duty to infuse the funds to the extent to which it undertook under the document at Exh.A16. Therefore, this Tribunal is unable to come to the conclusion that the 2nd Defendant had stood as a guarantor to the liability of Defendant No.1.

26. In the written arguments furnished by the Ld. Counsel for the Applicants, though it is claimed that the Defendants 1 & 2 are jointly and severally liable to pay the amount due. The common loan agreement does not put forth such case of the joint and several liability of Defendant No.2 to the sums due by the Defendant No.1. In the absence of the 2nd Defendant having stood as a guarantor to the loan transaction of Defendant No.1, it becomes difficult to hold the liability of Defendant No.2 merely on the basis of an undertaking to infuse the funds as per Exh.A16. The liability if any is only to infuse the funds to the extent of Rs.46.59 Crores by way of equity as noted at Exh.A16. (Page 344 of the Proof Affidavit of AW1).

27. Even in the OA pleadings, it only stated at Para-5.21 and 5.22 that the 2nd Defendant undertook to infuse the funds. The only allegation at Para 5.23 of the OA is that upon the failure of the 2nd Defendant to infuse the required funds, and failure to adhere to the terms of undertaking, the 2nd Defendant has become jointly and severally liable for the payments due by the Defendant No.1 to the Banks. This averment cannot be accepted in toto to fix the joint liability on the 2nd Defendant in the absence of any guarantee to the entire liability of the Defendant No.1 Company to the Applicant Banks. Suffice to say that there is no evidence to fix the joint and several liability on the 2nd Defendant Company qua the liability of Defendant No.1. The non-performance of the undertaking as alleged in the OA does not lead to liability of debt against Defendant No.2 to the entire extent of the OA claim and the same is not joint and several; since the agreement was only to infuse the funds into the coffers of Defendant No.1, and there being no separate undertaking or agreement or guarantee deed or surety to repay the banks by the Defendant No.2 upon the defaults committed by Defendant No.1.

28. The OA is filed in the year 2014. The Ld. P.O. had kept the matter for applicant’s evidence by 23.11.2017 in his order dated 25.09.2017. Thereafter several arguments were taken for leading the evidence. However Order dated 03.09.2018, last chance was given to lead evidence by 20.11.2018. Thereafter, the evidence was not adduced till 30.04.2024. Thereafter, it could be unfair to make the Defendant liable to pay interest for this period.

29. For the discussion and evaluation of the material available on record including the documentary evidence, this Tribunal is of the considered view that the Defendant No.1 is liable to pay the amounts claimed in the OA to the Applicant Banks. Hence the following:-

: - O R D E R - :

(a) The Defendants 1 is hereby ordered to pay:-

(i) a sum of Rs.37,73,58,610/- along with interest @16% p.a. with monthly rests plus penal interest @2% p.a. from 24.04.2014 till 20.11.2018 and from 30.04.2024 till the date of realization payable to the 1st Applicant - Bank of Baroda, AND

(ii) a sum of Rs.37,35,54,049/- along with interest @16% p.a. with monthly rests plus penal interest @2% p.a. from 24.04.2014 till 20.11.2018 and from 30.04.2024 till the date of realization payable to the 2nd Applicant – Union Bank of India (erstwhile Corporation Bank), AND,

(iii) a sum of Rs.30,46,14,246/- along with interest @16% p.a. with monthly rests plus penal interest @2% p.a. from 24.04.2014 till 20.11.2018 and from 30.04.2024 till the date of realization payable to the 3rd Applicant – Bank of Baroda (erstwhile Dena Bank); and less the amounts realized by the Banks or the security trustee in any other collateral proceedings including the realization of the shares of the Defendants No.1.

(b) Recovery certificate in favour of the applicant bank in terms of this final order, be issued.

(c) The schedule of the properties mentioned herein below shall be the part of the present recovery certificate upon which the bank to enforce recovery in case of default in paying the dues outstanding to the applicants by the Defendant No.1.

FIRST SCHEDULE

Description of the Lease hold properties

Lease hold rights for the remaining period [for 30 years from 14.10.2011 in favour of D1 Company] on the following lands measuring approximately 692 Acres, 04 Guntas all in the following Sy. Nos. of Srinivas Saradgi Village, Gulbarga Taluk and District:

Sl. No. Sy. No. Acres Guntas

1. 476/1,2,3

477/1,2,3

475/1AB,2ABCD3

487/1,2

537/1,2

567/6A

567/6B

570/1,2,3

474/1,2

473/1A,1B,2,3

466/A

466/B

466/C

413/A

413/B

413/C

413/C

412/A

TOTAL:

SECOND SCHEDULE

Description of the hypothecated Machinery, Equipments, Interiors, Stock in Trade etc.

1. The whole of the 1st Defendant’s movable properties, arising are created in the ordinary course of the business of the project, tangible and intangible assets, receivables, cash and investments created as part of the project, both present and future, whether in the possession of or under the control of the 1st Defendant or not, whether installed or not and whether now lying loose or in cases or which are now lying or stored in or about or shall hereafter from time to time during the continuance of the hypothecation be brought into or upon or be stored or be in or

about all the 1st Defendant’s premises and godowns or those of 1st Defendant’s agents, affiliates, associates or representatives or wherever else the same may be or be held by any party to the order or disposition of the 1st Defendant or in the course of the transit or on high seas or on order or delivery and all replacements thereof and additions thereto, whether by way of substitutions, replacements, conversion, realizations, or otherwise howsoever with all benefits, rights and incidentals attached thereto which are now or shall at any time hereafter be owned by the borrowers; and all right, title, interest, property, claims and demands of whatsoever of the 1st Defendant unto and upon the same.

2. All the monies lying in all project account including but not limited to the Escrow Account into which all the investments in the project and all projects revenues and insurance proceeds relating to / connected with the project and all rights, title, interest, benefits, claims and demands whatsoever of the 1st Defendant, in, to, under and in respect thereof and all monies including all cash flows and receivables and all proceeds arising from / in connection with the project and all insurance proceeds payable into the said accounts which have been / are deposited / credited / lying therein, all investments, assets, instruments and securities which represent amounts in the said accounts, both present and future.

3. All contractual rights, assignment rights, applicable permits, title, interest, benefits, claims and demands whatsoever of the 1st Defendant in, to under and or in respect of all agreements, contracts, indemnities, guarantees obtained pursuant to Project Development Agreements, CNS / ATM Agreements entered into by the 1st Defendant with service providers, land Lease Deed and all other documents / writings in respect of the project (Project Agreements) and all Licenses, security, permits, approvals and consents in respect of the project which are now executed or hereafter to be executed and delivered by the 1st Defendant, including, without limitation, the right to compel performance there under, and to be substituted for the 1st Defendant and to commence and conduct either in the name of the 1st Defendant or in its own name or otherwise any proceedings against any person in respect of any breach of, the project agreements, including without limitation, rights to recover payments and / or collect any receivables pertaining thereto, and the right to claim the benefits of all rights, entitlements, claims and powers of the 1st Defendant thereunder and enforce the same including any claims of the 1st Defendant under or in any proceedings against any person(s) in connection therewith; and together with the right to further assign any of the Project Agreement and / or any rights thereunder.

THIRD SCHEDULE

Description of hypothecated Book Debts.

Entire Book Debts of the 1st Defendant.

Communicate a copy of this order to the Applicant Banks and the 2nd Defendant as per Rules. Sd/- (A.S.JAYACHANDRA) PRESIDING OFFICER DRT-I, CHENNAI