KARUR VYSYA BANK vs M/S SARAVANA STORES GOLD PALACE PVT LTD on 22 May 2023

: - O R D E R - :

This is an application filed under Section 19(1) of the Recovery of Debts and Bankruptcy Act 1993 seeking the recovery of a sum of Rs.164,24,65,944.77/- along with interest with regard to four accounts against the defendants. While the matter was pending the Defendant No-3 is informed dead and the Legal representatives of Defendant No3 were brought on record by an order passed by the Ld Predecessor dt 16.9.2022. It is also informed during the pendency of proceedings that the Defendant No-1 company went into liquidation and liquidator is appointed who is represented by the counsel on one hearing date. Memo is filed dated 22.3.2023 not pressing the relief against Defendant No-1 Company, which went into liquidation.

1.0 FACT OF THE CASE: 1.1 It is pleaded that the First Defendant is a private limited company involved in the trade of textiles, provision, consumer items and gold ornaments trade, is the

Borrower. The other defendants guaranteed the repayment of dues to the Applicant Bank for and on behalf of the First Defendant. The Second and Third Defendants are Mortgagors of the properties mentioned in the schedule to the OA as guarantee to the loan transaction.

1.2 The First Defendant approached the Applicant Bank requesting to sanction the credit facilities totally a sum of Rs.180.00 Crores. The Applicant Bank considered the request and sanctioned the sum of Rs.180.00 Crores vide Sanction Letter dated 28.07.2017:- Nature of Facility Limit in Rs. Cr OCC 50.00 Term Loan 130.00 TOTAL 180.00

1.3 The Applicant further submits that with respect to the said sanction of the Credit Facilities, the First Defendant had executed the following documents in favour of the Applicant Bank on 23.08.2017, consequent to the board of directors meeting held on the same day earlier.

(i) Demand Promissory Note for Rs.50.00 Crores

(ii) Take Delivery Letter to DPN

(iii) Hypothecation Agreement for Cash Credit

(iv) Loan Against Fixed Assets

(v) Letter of Undertaking to repay instalment 1.4 Consequently the Second Defendant executed Agreement of Guarantee dated 23.08.2017, in favour of the Applicant, guaranteeing to repay the credit facilities availed by the First Defendant, on demand with applicable interests, charges, costs and expenses and further declared that the guarantee shall be continuing.

1.5 The defendants 3, 4 & 5 executed Agreement of Guarantee (Single & Joint) dated 23.08.2017, in favour of the Applicant, guaranteeing to repay the credit facilities availed by the First Defendant, to the Applicant in like terms as that of second defendant.

1.6 The Third Defendant had also executed Simple Mortgage over the ITEM -III of Properties i.e, immovable properties to the extent of 6000 feet along with the building thereon situated in Thiyagaraya Village, Mambalam, Guindy Taluk, Chennai Corporation in favour of the Applicant Bank which stood in the name of the third defendant (more fully described in the schedule appended hereto) on 11.09.2017 which is Registered as Document No. 2236 of 2017 at Sub Registrar Office, T Nagar.

1.7 It is also pleaded that the Second Defendant had Mortgaged the Item – I of schedule Properties i.e, immovable property situated at Sholinganallur Village (more fully described as Item No-1 in the schedule) by way of Deposit of Title Deeds in favour of the Applicant Bank on 31.08.2017, which is Registered as Document No. 6283 of 2017 at Sub Registrar Office, Neelankarai.

1.8 It is also the case of the Applicant Bank that the Third Defendant had Mortgaged the Item – II i.e immovable properties situated in Panruti Village – Chengalpet District (more fully described as Item No-2 in the schedule) by way of Deposit of Title Deeds in favour of the Applicant Bank on 14.09.2017, which is Registered as Document No. 2706 of 2017 at Sub Registrar Office, Walajabad.

1.9 The Applicant Bank submits that at request of the First Defendant the Applicant Bank had sanctioned to utilize the OCC as sub-limits to various branches of the First Defendant vide Sanction Letter dated 02.11.2017. The First Defendant had executed supplemental Agreement for sanction of sub-limits on 02.11.2017 and agreed to the terms therein. The sanctioned facilities were reviewed and renewed by the Applicant Bank vide Sanction Letter dated 24.01.2019. The defendants had executed Acknowledgement of Debt confirming the balance as of 27.01.2019. It is also pleaded that the defendants had executed a Revival Letter dated 01.02.2019.

1.10 The Applicant Bank disbursed the Sanctioned Loan Amounts as per the sanction letter & loan agreements/documents. The First Defendant failed and neglected to repay to the Applicant Bank, the loan amount, interests and other monies and also committed other defaults in observing the conditions of the Loan Agreements and Sanction Letter. Consequent to the defaults committed by the Borrower in respect of the repayments, the accounts were classified as Non- Performing Asset on 22.10.2019 in accordance with the directions / guidelines issued by the Reserve Bank of India.

1.11 Consequently the applicant, vide their Recall Notice dated 01.11.2019 demanded and called upon the Defendants to discharge their entire liabilities of Rs.162,80,75,902.88 (Rupees One Hundred and Sixty Two Crore Eighty Lakhs Seventy Five Thousand Nine Hundred and Two and Paisa Eighty Eight only) by paying to the Applicant Bank with interest and notified that the applicant would be constrained to take legal steps for realizing the debt.

1.12 This Applicant submits that, in spite of the Applicant’s notices the Defendants did not make the entire payment as per the demand Notice.

1.13 The Applicant Bank states that consequent to the sanction of the said Credit Facilities by the Applicant Bank to the First Defendant; proper accounts were opened in the name of the First Defendant in the usual books of accounts of the Applicant Bank at its Corporate Business Unit, Chennai. It has kept regularly and maintained the accounts and all entries of debits and credits were correctly made therein by the Applicant Bank in the regular, ordinary and usual course of its banking business in as much as all the payments by way of advance allowed to the Defendants and interest accruing thereon at the contracted rate with agreed rests as also all agreed incidental costs, charges and expenses etc. were duly debited and the payments made by the Defendants towards part liquidation of their liabilities were correctly credited to the aforesaid accounts on respective dates. It was pleaded originally that the defendants are liable to pay a sum of Rs.164,24,65,944.77 (Rupees One Hundred and Sixty Four Crores Twenty Four Lakh Sixty Five Thousand Nine Hundred and Forty Four and Paisa Seventy Seven Only) along with interest at the rate as mentioned below per annum from the date of application to till the date of actual payment realization , after issuing the legal notice dated 1.11.2019 which was not heeded to by the defendants.

2.0 The Course of Litigation :-

2.1 The Ld. Predecessor (DRT-II) issued the summons and all the defendants were served. None represented D1 and D2. D3 and D5 were represented by a counsel, and D4 by another counsel. But they chose to remain absent on all the dates except on 06.01.2021, 25.01.2021 and on 15.02.2021.

2.2. After service of the notices, none of the defendants had filed their written statement to contest the matter despite opportunities. It is seen from the record that the matter was taken for evidence of the applicant bank by an order dated 29.10.2021 and the affidavit was marked by placing the defendants’ exparte by the Ld Predecessor. The evidence was received by way of Proof Affidavit and Ex A1 to Ex A24 were marked before the Ld. Predecessor.

2.3. During the course of proceedings it is reported on 15.11.2021 that defendant No-1 Company went under liquidation. By a memo dated 22.3.2023, the applicant bank informed that the Ld NCLT, Chennai by an order dated 28.11.2022, had appointed Sh.S.Palaniappan as liquidator and the bank does not press the relief against Defendant No -1 company.

2.4. It is also pertinent to note that the Ld Predecessor by an order dated 21.6.2022 had directed notices to bring the LRs on record in place of the Defendant No.3 who is reported dead and the same was allowed by an order dated 16.9.2022. The LRs also did not contest the proceedings. The LRs were placed exparte on 16.9.2022. One of the LRs, namely the widow of the defendant No-3 is already a party to the lis as Defendant No 4 and another LR is defendant No.5.

2.5. Since none of the defendants are contesting the matter and in the light of the evidence produced before this Tribunal, the application is being disposed of basing on merits.

3.0 EVIDENCE ON RECORD:-

3.1 . To prove their case, the applicant bank had adduced the evidence by way of affidavit, which is sworn to by one M.Harihariharan, the Assistant General Manager who is the constituted attorney. He has exhibited the documents at Ex A1 to Ex A24.

3.2. There is no counter proof evidence from the side of the defendants who remained exparte as noted above.

4.0

POINTS FOR DETERMINATION:-

4.1. With the available pleadings and evidence on record, the following point arises for determination in this OA.

Whether the applicant is entitled for recovery of sum as prayed for in the OA and if so against which defendants and what relief?

5.0 ANSWERS TO THE POINT FOR DETERMINATION AND REASONS

5.1 From the material placed on record and the pleadings , it is seen that the applicant seeks recovery of a total sum of Rs.164,24,65,944.77 (Rupees One Hundred and Sixty Four Crores Twenty Four Lakh Sixty Five Thousand Nine Hundred and Forty Four and Paisa Seventy Seven Only) along with interest. This is based on four accounts. The details of the accounts are:-

(i) Account No. 1250223000000133, (Nature of Facility: OCC), outstanding is a sum of Rs.31,44,91,583.03 (Rupees Thirty One Crores Forty Four Lakh Ninety One Thousand Five Hundred and Eighty Three and Paisa Three Only with interest at the rate of [ 11.30% plus 3% penal interest ]% per annum.

(ii) Account No. 1250223000000140 (Nature of Facility: OCC), outstanding is a sum of Rs.19,75,97,500.73 (Rupees Nineteen Crores Seventy Five Thousand Ninety Seven Thousand Five Hundred and Paisa Seventy Three Only) together with interest at the rate of [ 11.30% plus 3% penal interest]% per annum.

(iii) Account No. 1284223000000027 (Nature of Facility : OCC), outstanding is a sum of Rs.5,10,82,603.46 (Rupees Five Crores Ten Lakh Eighty Two Thousand Six Hundred and Three and Paisa Forty Six Only) together with interest at the rate of [11.30% plus 3% penal interest]% per annum.

(iv) Account No. [1250716000000079] (Nature of Facility: TL), outstanding is a sum of Rs107,92,94,257.55 (Rupees One Hundred and Seven Crores Ninety Two Lakh Ninety Four Thousand Two Hundred Five Seven and Paisa Fifty Five Only) together with interest at the rate of [11.30% plus 3% penal interest]% per annum.

5.2 To put forth their case, the applicant bank adduced the evidence of AW1 Sh.M.Hariharan through the affidavit. He had also produced certain documentary evidence. Perused the same. The averments made in the Application are reiterated on oath in the affidavit.

6.0 Heard the Ld Counsel Sh.Sridharan appearing for the applicant bank. He submits that this evidence of AW1 goes unrebutted. He further submits that the recovery certificate be issued against the Defendants 2 to 5 jointly and severally and no relief is pressed against defendant No.1.

6.1 The evidence of AW1 shows that on 28.7.2017, the applicant bank had sanctioned Rs.180 Crores as pleaded vide document Ex A1, which shows that the defendant No 1 company was sanctioned loan of Rs.180 Crores out of which Rs.50 Crores was to meet the capital requirement and Rs.130 Crores was to meet to close SSTL and for building renovation etc., for the showroom at Sholinganallur. The same is duly signed on behalf of defendant no-1 Company and other defendants. ExA2 is the certified copy of the Board resolution. Ex A3 is the on demand promissory note executed by Defendant No -1 company for a sum of Rs.50 Crores agreeing to pay the interest on demand. Ex A4 is the Take delivery letter cum continuity letter with regard to Ex A3 both are dated 23.8.2017.

6.2 The other documentary evidence that Ex A5 shows that, D1 had executed the hypothecation agreement for the cash credit and overdraft facilities availed. Ex A6 shows that the defendant No-1 had agreed to avail the loan of Rs.130 Crores and further agreed to repay with interest as pleaded vide the document dt.23.8.2017. The said sum is agreed to be paid under 72 monthly installments along with interest. The first installments was agreed to be paid during September 2018. Ex A7 is the letter of undertaking to repay the installments executed by D1. It was also specifically agreed by D1, that the entire sale transactions of the Defendant No.1 will be through the OCC account and on inter-alia other conditions.

6.3 The other documentary evidence produced by the applicant shows that the first defendant executed on 23.8.2017 the following documents

(i) Demand Promissory Note for Rs.50.00 Crores

(ii) Take Delivery Letter to DPN

(iii) Hypothecation Agreement for Cash Credit

(iv) Loan Against Fixed Assets

(v) Letter of Undertaking to repay instalment

6.4 The Second Defendant executed Agreement of Guarantee dated 23.08.2017 which is at Ex A9. The Third to Fifth Defendants executed Agreement of Guarantee dated 23.08.2017 which is at Ex A10. It is also seen from the documentary evidence at Ex A11 that the deceased 3rd defendant had executed a simple deed of mortgage registered with Sub Registrar, T.Nagar, Chennai-17 on 23.8.2017 noting that the applicant bank having allowed the credit facilities to the tune of Rs.180 Crores, had agreed to mortgage the property situated in Ranganathan Street, T.Nagar, Chennai for the loan account repayable with interest.

6.5 It is submitted that the Third Defendant had executed Simple Mortgage over the ITEM -III of OA Properties in favour of the Applicant Bank on 11.09.2017 and Registered as Document No. 2236 of 2017 at Sub Registrar Office, T Nagar. Ex A12 is the document showing that the Second Defendant had mortgaged the Item – I of Schedule Properties by way of Deposit of Title Deeds in favour of the Applicant Bank on 31.08.2017 and Registered as Document No. 6283 of 2017 at Sub Registrar Office, Neelankarai, Chennai.

6.6 Ex A13 reveals that the Third Defendant had Mortgaged the Item – II of schedule Properties by way of Deposit of Title Deeds in favour of the Applicant Bank dated 23.8.2017 registered on 14.09.2017 and Registered as Document No. 2706 of 2017 at Sub Registrar Office, Walajabad.

6.7 Ex A14 document shows that certain modifications were permitted and agreed to by both the parties with regard to OCC limits of Rs.50 Crores. Ex A15 shows the supplemental Agreement for sanction of modification vide the document dated 02.11.2017. Ex A16 is the documents showing the sanctioned facilities were reviewed and renewed by the Applicant Bank vide Sanction Letter dated 24.01.2019. Ex A17 is the document which is executed by the defendant No-1 is the Acknowledgement of Debt confirming the balance as on 27.01.2019. Ex A18 shows that the Defendants 2 to 5 had executed the Acknowledgement of Debt as on 1.1.2019 and 23.01.2019 for the different sums on OCC and TL loan transactions. The same is dated 01.02.2019. Ex A19 is the revival letter addressed by the first Defendant No-1 company which shows that the loan transaction is revived and acknowledged vide document dated 1.2.2019. Ex A20 is the copy of the legal notice addressed to all the defendants calling upon them to pay the balance dues.

6.8 Ex A21 is the original sale deed dated 5.6.2012 which is in favour of the 3rd defendant executed by his vendors concerning the title with regard to the immovable property mentioned in item No-2 of the Properties in the schedule at Sl No.2. Ex A22 is the original sale deed executed by his vendors concerning in item No-1 of the Properties in schedule at Sl No.2. Ex A23 is the title deed in favour of second defendant consisting of its partners namely defendant No 3 to 5 concerning for the properties mentioned in Sl No.1 of the schedule Properties. Ex A24 is the statement of accounts, which is duly certified under the Bankers Books of Evidence Act. The certificate is also issued by the applicant bank. The copy of the power of attorney in favour of the deponent is also filed along with the statement of accounts.

6.9 In the written arguments filed by the applicant bank, it is submitted that the applicant bank does not press the relief against the defendant no 1 company. It is argued that the other defendants are jointly and severally liable.

6.10 After careful perusal of the documents and the affidavit it is very clear that the say of AW1 goes unrebutted and the documentary evidence discussed above corroborates the statements made on oath in the affidavit. There is no other material available on record to disbelieve the case of the applicant. The liability of the defendants 2 to 5 including the LRs of defendants No.3 to the extent of their share in the estate of the deceased defendant No-3 is Co existent and equal with that of defendant no 1, who is the borrower company. However, since the other defendants having stood as guarantors, are jointly and severally liable to pay the amount claimed by the applicant bank; the relief against Defendant No.1 is given up.

7.0 RELIEF:-

7.1 For the afore said reasons, this Tribunal hereby orders as under:- 7.2 The Defendants 2 to 5 are hereby directed to pay Jointly and severally a sum of Rs.164,24,65,944.77 (Rupees One Hundred and Sixty Four Crores Twenty Four Lakh Sixty Five Thousand Nine Hundred and Forty Four and Paisa Seventy Seven Only) along with interest @11.30% plus 3% penal interest p.a from the date of filing i.e,19.11.2019 till date of realization along with costs, less the amounts realized before the liquidator.

7.3 Recovery Certificate be issued as above in favour of the Applicant.

7.4 That the defendants 2 to 5 may seek redemption of the mortgage on the schedule properties by paying the entire outstanding dues as on such date, within 30 days from the date of communication of this Final Order, failing which the applicant bank may proceed to recover the dues against the schedule properties.

7.5 It is also hereby clarified that the Legal heirs of deceased D3 namely D3(a) & D3(b) shall be liable to the extent of their share in the estate of the deceased defendant No-3 for discharging the liability arising out of the amount in the recovery certificate.

7.6 The applicant bank shall file the statement of accounts disclosing the amounts realized through the Official Liquidator if any within two weeks along with a proper affidavit for the purposes of drawing the Recovery certificate.

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 The schedule of the properties mentioned herein below shall be the part of the present recovery certificate.

SCHEDULE

Schedule- A (Details of the mortgaged properties of the Guarantors) All the piece and parcel of land admeasuring a total extent of 1.28 acres or 55808 sq.ft, together with building constructed therein consisting of stilt plus 7 floors with a total built up area of 219406 sq.ft comprised in Survey No. 453 (S. No. 453/2 as per Patta) Sholinganallur Village and Taluk, Kancheepuram District and bearing Door No. 2, I T Corridor, Rajiv Gandhi Salai, Chennai 600 119 standing in the name of M/s Saravana Stores Gold Palace and bounded by the following: North S. Nos. 453 & 454/1 South Property owned by Mano Sivasankar East Property owned by A. Alagappan West Rajiv Gandhi Salai, IT Corridor, Mahabalipuram Trunk Road All the piece and parcel of land admeasuring a totalextent of 8.25 acres i.e . Item

No.1 – Acre 4.84 cents comprises of S.No.59/2A - 52 cents, S.No.59/2B – 52 cents, S.No.59/2C – 59 cents, S.No.59/2D – 57 cents, S.No.59/2E – 55 cents, S.No.60/1 – 55 cents, S.No.60/2 – 49 cents, S.No.60/3 – 54 cents, S.No.60/4 – 51 cents and Item No.2

– Acre 3.41 cents comprised in S.No.61/5 – 54 cents, S.No.64/2 – 46 cents, S.No.64/1

– 15 cents, S.No.65/1 – 19 cents, S.No.61/4 – 53 cents, S.No.61/3 – 83 cents, S.No.65/3 – 44 cents, S.No.65/2 – 27 cents in Panruti Village, Mettupalayam Main Road, SriperumbudurTaluk, Chengalpattu District standing in the name of Mr. Y.PallakuDurai and bounded by the following: North Vacant Land South Vacant Land East Vacant Land West Mettupalayam Main Road

All the piece and parcel of land admeasuring an extent of 6000 sq.ft together with commercial building to an extent of 48000 sq.ft in Paimash Nos.61 and 62, T.S.No.5568, Block No.128, situated at Old Door No.30, New No.28, Ranganathan Street, Thiyagaraya Nagar Village, Mambalam – GuindyTaluk, Chennai 600017 within Chennai corporation limit standing in the name of Mr. Y. Pallakkuduraiand bounded by the following:

NORTH Ranganathan Street SOUTH Conservancy Land EAST D No.27, Ranganathan Street WEST D No.29, Ranganathan Street

Schedule B Exclusive Charge on the following:

Whole of the Borrower’s entire current assets and all finished and manufactured goods, movable Plant and Machineries, articles, along with similar movable/current assets which may be acquired by the borrower hereafter, from time to time, during the continuance of this security, belonging to the borrower and which are shall or may be brought into stored at various showrooms, super markets or godowns or wherever else the same may be situated, stored or lying or being, including any such raw materials, articles of goods, stores , spares and components or other similar movable property in course of transit or delivery to the borrower.

All the borrower’s present and future book debts, outstanding monies, receivables, claims, bills, rights to or movable assets and which are now due, owing or payable or belonging to the borrower or which may at any time hereafter during the continuance of this security become due, owing payable or belonging to the borrower during the course of its business.

Entire movable Fixed Assets, plant and machinery, infrastructure, equipment’s of the company.

11.0 Communicate a copy of this 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 the Assistant who directly typed on the system and corrected, signed and pronounced by me on this 22ndday of May, 2023)