ASSET RECONSTRUCTION COMPANY INDIA LIMITED vs M/S EASUN PRODUCTS OF INDIA PRIVATE LIMITED on 28 March 2023

: - O R D E R - :

This application is filed by the applicant under Section 19(1) of Recovery of Debts due and Bankruptcy Act, 1993 (formerly Recovery of Debts Due to Banks and Financial Institutions Act, 1993) against the defendants 1 & 2 for recovery of a sum of Rs. 137,15,89,293/- (Rupees One Hundred Thirty-Seven Crore Fifteen Lacs Eighty-Nine Thousand Two Hundred Ninety-Three Only) being the aggregate amount due, as on 31.12.2020, with further interest thereon at 15.35% per annum along with penal interest at 2% per annum, with monthly rests, from 01.01.2021 till realization and for sale of schedule mentioned properties along with costs of this application.

1.0 However, by a memo dated 11.10.2022, the applicant seeks adjudication as against D2 only who is the guarantor having co-extensive liability. D3 to D6 are formal parties.

FACTS OF THE CASE:-

1.1 The Applicant, Asset Reconstruction Company India Limited (ARCIL), is a company incorporated under the Companies Act, 1956 and is registered as a Securitization and Asset Reconstruction Company in terms of Section 3 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‚SARFAESI Act‛).It is recognized as a ‚financial institution‛ within the meaning of section 2(h) (ia) of the RDB Act. 1.2 It is stated that the Defendant No. 1, M/s.Easun Products of India Private Limited, is a limited company limited by shares, incorporated on 09.10.1964, under the provisions of the Companies Act, 1956. The Defendant No.1 is inter alia engaged in the business of manufacturing and export of electrical products. The Defendant No.2 is the Whole-time Director and Shareholder of the Defendant No.1 and stood as the guarantor in respect of the facilities advanced by the Applicant in favor of Defendant No.1. 1.3 The Defendant Nos.3 to 6 are the other lenders of the Defendant No.1, holding a pari-passu charge and claiming right, title and interest in the assets/properties of the Defendant No.1, more fully described in Schedule to the OA. It is pleaded that Defendant Nos.3 to 6 are proper and necessary parties. 1.4 The Defendant No.1 and M/s. Standard Chartered Bank at Rajaji Salai Office, (hereinafter also referred to as “the Assignor of the Applicant”) had entered into a Facility Agreement dated 21.05.2008 where under the Assignor of the Applicant inter alia sanctioned Working Capital Facility to a tune of Rs.25 Crores in favour of the Defendant No.1 with break-up of each facility as described in the sanction letter bearing reference number 171/83/08 dated 19.05.2008. 1.5 On the same day, for securing the performance of the obligations of the Defendant No.1 under the above sanction letters and the Facility Agreement together with all interest, costs, charges, expenses, and other monies whatsoever stipulated in or payable under or pursuant to the Loan Documents, the Defendant No.1 inter- alia, created the following securities for the benefit of the Assignor of the Applicant.

Owner

Particulars of the asset Particulars of specific security agreement(s)/document (s)/ confirmation of creation of mortgage / security Defendant No.1 First Pari Passu Charge by way of hypothecation of stocks and book-debts of Schedule mentioned properties. By Unattested memorandum of Hypothecation dated 21.05.2008, annexed as Document No.6, and Supplemental to Unattested memorandum of Hypothecation dated 26.08.2008, annexed as Document No.7. 1.6 In addition, the Defendant No.2 provided guarantee in favor of the Assignor of the Applicant, for securing the obligations of the Defendant No.1 under the above- mentioned sanction letters and Facility Agreement by executing the Letter of Personal Guarantee Agreements dated 21.05.2008 and 26.08.2008. 1.7 It is pleaded that the Defendant No. 1 was normally operating for a period of one year and after lapse of one year, after mutual negotiation, the same was being renewed. Thereafter, several Supplemental Facility Agreements / several Counter Guarantee

Agreements were entered into between the Defendants and the Assignor of the Applicant from time to time towards enhancement of the credit facilities and the Assignor of the Applicant continued to provide working capital facilities to the Defendant No.1 on mutually agreed terms, under the following list of Sanction Letters and Loan Documents executed.

Date of execution of the Document Loan Documents executed by the Defendants, as indicated, as the case may be Executed by 16.06.2009 Sanction Letter bearing reference number 10005189 for USD 1,07,00,000/-. Defendants 22.06.2009 Supplemental to Unattested Memorandum of Hypothecation (21.05.2008 and 26.08.2008). Defendant No. 1 22.06.2009 Letter of Personal Guarantee Agreement. Defendant No. 2 22.01.2010 Sanction Letter bearing reference number 10025559 for Rs. 30,00,00,000/-. Defendants 28.01.2010 Supplemental to Unattested Memorandum of Hypothecation (21.05.2008, 26.08.2008 and 22.06.2009). Defendant No. 1

28.01.2010 Letter of Personal Guarantee Agreement. Defendant No. 2 03.06.2010 Sanction Letter bearing reference number 10025559 for USD 1,07,00,000/-. Defendants 07.06.2010 Facility Agreement. Defendants 07.06.2010 Supplemental to Unattested Memorandum of Hypothecation (21.05.2008, 26.08.2008, 22.06.2009 and 28.01.2010). Defendant No. 1 07.06.2010 Letter of Personal Guarantee Agreement. Defendant No. 2 01.08.2011 Sanction Letter bearing reference number 10025559 for USD 1,07,00,000/-. Defendants 22.08.2011 Supplemental to Unattested Memorandum of Hypothecation (21.05.2008, 26.08.2008, 22.06.2009, 28.01.2010, and 07.06.2010). Defendant No. 1 22.08.2011 Supplemental / Amendment Personal Guarantee Agreement. Defendant No. 2 18.06.2012 Sanction Letter bearing reference number 10173705 for USD 1,07,00,000/-. Defendants

27.06.2013 Sanction Letter bearing reference number 10173705 for USD 1,07,00,000/-. Defendants 27.05.2014 Sanction Letter bearing reference number 10322096 for Rs. 57,00,00,000/-. Defendants 28.05.2014 Master Credit Terms (Uncommitted). Defendants 28.05.2014 Demand Promissory note payable on demand for Rs. 57,00,00,000/-. Defendants 28.05.2014 Promissory note delivery cum waiver letter for Rs. 57,00,00,000/-. Defendants 28.05.2014 Working Capital Demand Loan Agreement for Rs. 10,00,00,000/-. Defendants 28.05.2014 Trade Service Supplement Export Financing Agreement Defendants 28.05.2014 Packing Credit Undertaking cum Indemnity Agreement for Rs. 40,00,00,000/-. Defendants 28.05.2014 Post Shipment Undertaking cum Indemnity Agreement for Rs. 40,00,00,000/-. Defendants 28.05.2014 Indemnity for Payment Undertaking Facility Defendants

Agreement for Rs. 57,00,00,000/-. 04.09.2015 Sanction Letter bearing reference number 10417053 for Rs. 57,00,00,000/- Defendants 08.09.2015 Packing Credit Undertaking cum Indemnity Agreement for Rs. 30,00,00,000/-. Defendants 08.09.2015 Undertaking cum Indemnity Agreement. Defendants

1.8 The board resolution of the Defendant No.1 dated 19.06.2009, 28.01.2010, 05.06.2010, 22.08.2011, 27.06.2013, to avail / renew / enhance / the afore-said credit facilities, authorizing the directors to execute the afore-said documents, to create hypothecation etc., are also produced. It is submitted that the charges / security interests over the Schedule Property has been registered, under the provisions of the Companies Act, with the Registrar of Companies since 2008 and the same is annexed with the OA. 1.9 The afore-said facilities were granted subject to renewal after annual review against the securities and other terms and conditions specified in the afore-said letters of sanction. It is submitted that pursuant to the execution of the afore-said loan documents and compliance of conditions precedent, the Assignor of the Applicant disbursed the entire facility of Rs. 57,00,00,000/- and the Defendants acknowledged its receipt from time to time. In terms of the above said credit facilities agreements, it was expressly agreed and covenanted inter alia by the Defendants 1 & 2 with the Assignor of

the Applicant that they shall repay the said credit facilities to the Assignor of the Applicant forthwith on demand of all such amounts as may be outstanding at the foot of the said accounts together with interest, costs, charges, expenses and other monies thereon at the rate/s as may be applicable thereof as set out in the said agreements. Any failure of the Defendants to repay enables the Assignor of the Applicant to treat the Defendants as a defaulter. 1.10 It is submitted that towards the outstanding dues, the Defendants, had executed an Acknowledgments of Debt dated 15.06.2012, 15.04.2015 and 08.01.2018, annexed with the OA in terms of Section 18 of the Limitation Act, 1963, acknowledging liability towards the Assignor of the Applicant with respect to afore-said credit facilities availed, whereby the Defendants acknowledged their outstanding debt of a sum of Rs. 54,58,84,319/- as on 12.06.2012 and Rs.57,33,29,506.40/- as on 31.01.2015. 1.11 During the above period and despite issuance of reminders by the Assignor of the Applicant, the Defendants did not make any effort to make payment of any amount whatsoever to the Assignor of the Applicant. It is submitted that the over dues / defaults continued, and the bank account of the Defendant No.1 became ‘irregular’ as it miserably failed to adhere to the financial discipline of the Assignor of the Applicant. As a result, by operation of relevant regulatory guidelines, the Defendant No.1’s account with the Assignor of the Applicant slipped into Sub-standard category. It is submitted that in spite of the Assignor of the Applicant providing ample time for adjustment of overdue amounts, the same were never cleared by the Defendants, as a result of which, the account of Defendant No.1 was declared as Non-Performing Asset (‚NPA‛) w.e.f. 24.11.2015, in accordance with the guidelines issued by the Reserve Bank of India. 1.12 In the meantime, it is submitted that the Defendants, towards the outstanding dues, executed an Acknowledgments of Debt dated 08.01.2018, in terms of Section 18

of the Limitation Act, 1963, acknowledging liability towards the Assignor of the Applicant with respect to afore-said credit facilities availed, whereby the Defendants acknowledged their outstanding debt of a sum of Rs.66,27,01,418.90/- as on 28.02.2017. 1.13 The Defendants however failed to adhere to the terms and conditions as agreed upon under the afore-said loan documents and the failure on the part of the Defendant No.1 to regularize the borrowal account amounted to an Event of Default under Clause 11.1 (c) of the afore-said Master Credit Terms dated 28.05.2014. In light of the above, the Assignor of the Applicant, as per Clause 11.2 of the afore-said Master Credit Terms dated 28.05.2014, issued demand notice for a sum of Rs. 83,18,54,282.31/- as on 31.12.2017 to the Defendant No.1 declaring that the principal of and all accrued interest on and all other monies in respect of the credit facilities are due and payable by the Defendant No.1, forthwith. A copy of the notice dated 05.02.2018 issued by the Assignor of the Applicant to the Defendant No.1 is relied in support of the pleadings. 1.14 As the Event of Default as under the afore-said Master Credit Terms dated 28.05.2014 had occurred and was subsisting, the Assignor of the Applicant issued demand notice to the Defendant No.2 in terms of the Personal Guarantee Agreements declaring that the principal of and all accrued interest on and all other monies in respect of the credit facilities to the Defendant No.1, be paid by the Defendant No.2 forthwith. A copy of the said notice dated 01.03.2018 issued by the Assignor of the Applicant to the Defendant No.2 invoking the Personal Guarantee is also relied. 1.15 Thereafter, the Assignor of the Applicant, had assigned to the Applicant herein, the above debt disbursed to the Defendant No.1 under the aforementioned sanction letters / Facility Agreements vide Assignment Agreement duly executed on 13.12.2019 and registered as Document No.1373 of 2020 with the concerned sub-registrar’s office, as envisaged under Section 5(1)(b) of the SARFAESI Act along with the underlying securities. Thus the Applicant has stepped into the shoes of Standard Chartered Bank, as its Assignee, and the creditor of the Defendants. 1.16 As per the said Assignment Agreement, the Applicant has become the full and absolute owner and as such the only person legally entitled to receive the repayment of the financial assets or any part thereof including the right to file a suit or institute such other proceedings in its own name and to take such other action as may be required for the purpose of the recovery of the said financial assets. The Applicant has become the lender and all rights, title, and interest of the Assignor of the Applicant in respect of the said debt against Defendants are now completely vested with the Applicant and as such the Applicant is entitled to enforce the rights and recover the dues. Copy of the Assignment Agreement dated 13.12.2019 and registered as Document No.1373 of 20209 executed between Standard Chartered Bank is also produced. 1.17 It is alleged that the Defendants have been avoiding the payment. The Applicant states that despite being provided adequate opportunities, the Defendants failed to repay the dues with the Applicant. The Applicant had numerous meetings prior to and subsequent to the issuance of the notice wherein the Defendants were made aware of the status of their account, but to no avail. 1.18 It is submitted that as per the afore-said Personal Guarantee Agreements, the Defendant No.2 has unconditionally, irrevocably and absolutely undertaken that, inter alia, in the event of any default on the part of the Borrower (the Defendant No.1) in payment/repayment of its obligations, or in the event of any default on the part of the Defendant No.1 to comply with or perform any of the terms and conditions and covenants contained in the afore-said Facility Agreements and/or Security Documents, the Applicant shall be entitled to demand performance of the secured obligations from the Defendants No.2. Therefore, the Defendant No.2 is personally liable to the Applicant to the tune of the below mentioned liability together with interest, penal interest, expenses, charges etc. 1.19 The Assignor of the Applicant / Applicant has been maintaining the account of Defendant No.1 in regular course of business showing all the entries of debit and credit as existing from time to time in original shape. The amount due under the afore-said Facilities Account is Rs.137,15,89,293 (Rupees One Hundred Thirty-Seven Crore Fifteen Lacs Eighty-Nine Thousand Two Hundred Ninety-Three Only) as of 31.12.2020, with further interest with monthly rests from 01.01.2021.

(In Rupees / Crores) Type of facility Limit Principal out- standing as on NPA date of 24.11.2015 Accrued Interest as on 31.12.2020 Outstanding as on 31.12.2020 Overdraft 57,00,00,000/- 61,94,40,797/- 75,21,48,496/- 137,15,89,293/-

1.20 It is submitted that the Applicant is entitled to receive interest at the contractual rate from the Defendants until repayment in full. As such, the Applicant is entitled to pendente lite and future interest at the contracted rate, which is at 15.35% p.a., with applicable penal interest at 2% p.a. with monthly rests, as on the date of this application. It is submitted that the interest / compound interest has been charged at such rates and capitalized at such periodical rests, as are permitted by, and do not run counter to the directives of the Reserve Bank of India. In this regard, the billing parameters provided by the Assignor of the Applicant evidencing levy of interest at the rate of 15.75% p.a., plus penal interest of 2% p.a., at the time of assignment of debt is also produced.Hence the Application.

Contours of the Case:- 2.1 Summons were issued by the Ld. Predecessor. Despite service of summons, D1 to D4 did not appear and they were placed exparte by an order dated 28.04.2022 by the Ld. Predecessor. Defendant No.5 filed its WS and the chance to file the WS on behalf of Defendant No.6 is closed on 28.04.2022. 2.2 While the matter is pending before the DRT-II, Chennai, the same came to be transferred to this Tribunal as per the notification of the Ministry of Finance dated 04.10.2022. 2.3 It is seen from the record that the Ld. Counsel for the Applicant has filed a memo dated 11.10.2022 submitting that there is an order of moratorium passed by the Ld. NCLT Special Bench-1, Chennai in IBA 617/2020 dated 19.09.2022 by which the proceedings against D1 cannot be proceeded with. It is submitted that the OA be taken up for adjudication except against D1. The memo also enclosed a copy of the order of the Ld. NCLT. The same is noted by this Tribunal on 09.11.2022.

Case of Defendant No.5 (The lone Defendant filing WS):- 2.4 The case of the only contesting Defendant No.5 in its Written Statement is that the 5th Defendant is also a banking company and the D1 & D2 had been sanctioned Rs.12.50 Crores with the terms of the various credit facilities both fund based and non fund based. Defendant No.1 accepted the terms of D5 vide letter dated 16.10.2008 agreeing to repay as per the detailed terms and conditions accepted by D1 & D2. The modification charge before the Registrar of Companies was made on 17.03.2020 and the credit facilities were enhanced to Rs.25.00 Crores. The 2nd Defendant had also executed a personal guarantee dated 17.10.2018 which is a continuing guarantee and the 2nd defendant agreed not to sell, transfer or alienate in any manner including creation of any lien in the movable and immovable properties detailed in the said agreement. It is also pleaded by the 5th Defendant that the liability of D1 & D2 towards the 5th Defendant is Rs.47,17,60,445/- as on 31.08.2021 along with the interest @19% p.a. It is also submitted that the 2nd Defendant had acknowledged the liability of Rs.21,18,30,750/- as on 29.02.2016 towards the Invoice Discounting fasciitis sanctioned. It is also pleaded that they have filed OA No.26/2022 against the 1st Defendant for recovery of Rs.47,17,60,445/- as on 31.08.2021. Thus the Defendant No.5 prays for dismissal of this suit as against Defendant No.5.

Evidence on Record:- 3.0 Consequent to the submission made by the counsel for the applicant that the OA be proceeded against D2, the Applicant had examined its witness i.e. AW1 Mr.V.Raghuthoman and marked documents Exh. A1 to A50. There is no evidence on behalf of the Defendants.

Arguments:-

4.0 In the course of arguments Ld. Counsel Mr.Chetan Sagar appearing for the applicant submits that the entire allegations in the OA remain unchallenged. The case

against D1 is not pressed. He submits that pursuant to Section 14(3)(b) of the Insolvency and Bankruptcy Code, 2016 and the Judgement of the Hon’ble Supreme Court in State Bank of India Vs. Ramakrishnan & Ano., the OA may be proceeded to be adjudicated pursuant to Section 14(3)(b) of Insolvency and Bankruptcy Code 2016 (Citation not furnished). He submits that since the 2nd Defendant had not chosen to contest the matter and from the documentary evidence available and further considering the deposition of AW1, the claim be allowed as prayed for.

5.0 The Point for Determination:-

In the context of above facts and circumstances, the only point that arises for determination is ‚Whether the applicant is eligible for money recovery as prayed for in the claim petition against D2 and if so what order?‛ 6.0 Answers to the point for determination:- The facts leading to the filing of this OA is already discussed above. The evidence of AW1 which reiterates the facts pleaded goes unchallenged. The Defendant No.2 against whom the relief is sought for, had not contested and remained exparte. 6.1 AW1 Mr.Ragothaman, who is examined on behalf of the Applicant had stated on oath that the Defendant No.1 is a Company engaged in manufacturing and export of electrical products and Defendant No.2 is the whole time Director of Defendant No.1 and also the guarantor in respect of the loan facility availed by Defendant No.1 with the Standard Chartered Bank. The same is proved by Exh.A10. The personal guarantee of the Defendant No.2 is proved by Documents Exh.A8 & A9. These documents were executed in favour of Standard Chartered Bank. There are further personal guarantee deeds dated 22.06.2009 at Exh.A12, 28.10.2010 at Exh.A15, the facility Agreement accepted by D1 & D2 dated 07.06.2010 at Exh.A17, another personal guarantee executed by D2 at Exh.A19 dated 07.06.2010 and the sanctioned letters of loan of different dates as mentioned in the documents spoken to in the affidavit, which are seen at Exh.A1 to A46 makes it clear that the transaction pleaded by the AW1 Mr.Ragothaman is corroborated by the documentary evidence more particularly from Exh. A1 to Exh.A46. 6.2 The say of AW1 that the debt is assigned in favour of the applicant ARC is spoken to from the registered document, which copy is produced as Exh.A48. The statement of accounts dated 31.12.2020 could be seen at Exh.A49. These documents go unchallenged. The total due summary is also certified under Section 65B(f) of the Evidence Act, as required under the Information Technology Act, 2000. 6.3 The Ld. Counsel for the applicant submits that the acknowledgement of debt executed by the D1 dated 12.06.2022 is signed by both the D1 & D2 as could be seen at Exh. A43. Similar is the document at Exh. A45 dated 08.01.2018. The Defendant No.2 had confirmed in writing the liabilities which arise under the earlier documents dated 28.01.2010, 07.06.2010 and 22.08.2011 are reconfirmed. In view of this document dated 08.01.2018, there is a clear acknowledgement of debt. The Ld. Counsel for the applicant bank submits that the Defendant No.1 & 2 having acknowledged the debt and further having not made the payments are liable to pay the amount claimed in the OA. 6.4 However, considering submissions made by the Ld. Counsel that the Defendant No.1 Company is facing the resolution proceedings and the moratorium is granted, the Ld. Counsel for the applicant bank submits that the claim be allowed as against the Defendant No.2. From the documentary evidence and the uncontroverted evidence of AW1 placed on record which details are already discussed in the facts of the case, and under the caption ‚evidence‛, this Tribunal finds that there is no evidence to demolish the say of AW1. The liability of Defendant No.2 is co-extensive with that of Defendant No.1. 6.5 It is to be noted that no relief is sought against the defendants 3 to 6 herein. As regards Defendant No.5, they have already filed an OA for recovery of Rs.47,17,60,445/- against Defendant No.1 & 2. The suit pending filed by Defendant No.5 against D1 & D2 does not impede the disposal of the present OA. Suffice it to say that the case of the applicant is proved against the Defendant No.1 & 2 for the recovery, but for the submissions made, the liability of D2 cannot be denied in view of the personal guarantee executed by Defendant No.2. In the circumstances the following Order:

: - O R D E R - :

A) The Defendant No.2 is hereby ordered to pay to the Applicant, within 30 days on receipt of this order, the sum of Rs. 137,15,89,293/- (Rupees One Hundred Thirty-Seven Crore Fifteen Lacs Eighty-Nine Thousand Two Hundred Ninety-Three Only) ALONG with interest at 15.35% per annum along with the penal interest of 2% per annum, with monthly rests, from 01.01.2021 till the date of this final order. B) It is further hereby ordered that in the event of Defendant No.2 failing to make payment of the afore-said outstanding dues, he shall be liable to pay the interest @15.35% from the date of this order till realisation. C) It is further hereby ordered that the bank would be at liberty to recover the aforesaid amount from Defendant No.2 personally by proceeding against the estate of the Defendant No.2 to recover the whole amount along with the costs.

E) It is also ordered that any other amount remitted or realized, if any, during the course of the proceedings, shall be given due credit to the loan account of the defendants. 8.0 The applicant bank is directed to file costs memo within two weeks of the receipt of this order.

9.0 Issue recovery certificate in favour of the applicant bank in terms of this final order. 10.0 Communicate a copy of the order to the parties concerned in terms of Rule 16 read with Rule 2(c) of DRT (Procedure) Rules, 1993.

Sd/-

(A.S.JAYACHANDRA)

PRESIDING OFFICER

DRT-I, CHENNAI

(Dictated to PS on the system corrected, signed and pronounced by me on this 28th day of March, 2023)