PUNJAB NATIONAL BANK vs M/S RANA IRON POWER LTD on 25 May 2019

J U D G M E N T

1. Applicant Bank had filed this Original Application on 27.04.2016 under section 19(1) of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 (as amended from time to time) against the Defendant No.1 to 12 before Debts Recovery Tribunal, Lucknow for recovery of Rs.3,47,83,068.32Ps. (Rupees Three Crore Forty-Seven Lacs Eighty-Three Thousand and Sixty-Eight and Paisa Thirty-Two only) alongwith pendente-lite and future interest @15.10% per annum with monthly rests w.e.f. 23.04.2016 till the date of realization and costs.

2. The brief facts of case are that the Defendant No.1 is a Private Limited Company incorporated under the provisions of Companies Act, 1956. The Defendant No.2 to 8 are the Directors of the Defendant No.1 Co. The Defendants No.5 & 6 also stood guarantors & Defendant No.10 to 12 stood Corporate guarantors for the Credit facilities availed by the Defendant No.1 Co. from the Applicant Bank. The Defendant No.1 Co. was engaged in business of manufacturing of Iron Products. The Defendant No.1 through its Directors approached Applicant Bank for grant of financial assistance in the shape of Term Loan of Rs.13,00,00,000/- for purchase of Plant & Machinery. Applicant Bank after considering the loan application sanctioned a Term Loan of Rs.13,00,00,000/- for purchase of Plant & Machinery to the Defendant No.1 against primary security of hypothecation of Plant & Machinery purchased out of Bank finance, personal guarantee of the Defendant No.5 & 6, Corporate Guarantee of the Defendant No.10 to 12 and collateral security by way of equitable mortgage of immovable property owned by the Defendant No.1 in favour of Applicant Bank on which the Defendant No.13 has executed Pari-Passu charge in favour of Applicant Bank. Further, Defendant No.13 also sanctioned the credit facilities to the Defendant No.1 and agreed to execute the Pari-Passu charge in favour of Applicant Bank vide letter dated 31.03.2006 & 05.02.2007 of the aforesaid mortgaged properties. The Defendants executed and signed various loan and security documents on 08.04.2006, 14.10.2006 & 01.03.2008 in favour of Applicant Bank. The rate of interest was agreed between the parties @3.75% above Base Rate, applicable at that time @14.00% per annum with monthly rests plus penal interest @2.00% per annum subject to change from time to time as per RBI Guidelines.

3. However, after availing the aforesaid Loan/Credit Facility, the Defendant No.1 failed to maintain financial discipline as per terms and conditions of the loan agreement due to which loan account became irregular. Despite repeated reminders and persuasion, the Defendant No.1 failed to regularize the loan account. Consequently, the said account of the Defendant No.1 was classified as NPA on 31.01.2012 and recalled by Applicant Bank. Thereafter, Applicant Bank served Demand Notice to the Defendants to repay the outstanding dues but the Defendants failed to make the payment of outstanding dues. Applicant Bank has also initiated action under the S.A.R.F.A.E.S.I. Act, against the secured assets/mortgaged properties and taken possession of secured assets/properties but no secured asset has been sold so far. Hence, the present Original Application has been filed by Applicant Bank against Defendants for recovery of Rs.3,47,83,068.32Ps. (Rupees Three Crore Forty-Seven Lacs Eighty-Three Thousand and Sixty-Eight and Paisa Thirty-Two only) alongwith pendente-lite, future interest, costs and for issuance of Recovery Certificate for the said amount.

4. The averments of Applicant Bank are set out in detail in its Original Application and therefore, these are not being stated here afresh to avoid a repetition of facts.

5. The summons were issued to the Defendants and after due service Defendant No.2, 3, 9 & 13 appeared through their counsel. However, despite service, none appeared for the Defendant No.1, 4 to 8, 10 to 12.

6. Subsequently, vide order dated 07.03.2018 case was transferred from Debts Recovery Tribunal, Lucknow to this Tribunal in view of change of jurisdiction in pursuance of establishment of new DRT at Dehradun on 16th. February 2017 vide Gazette Notification 411, S.O.454 (E) dated 15.02.2017, 692, S.O.784 (E) dated 23.02.2018 and corrigendum Gazette Notification 719 S.O. 816(E) dated 27.02.2018. The case was re-numbered as T.A. No. 168/2018.

7. Thereafter, fresh summons through mode of service were issued to the Defendants by this Tribunal and after due service the Defendant No.1 to 3 & 9 appeared through their counsel and filed preliminary objections denying various averments made in Original Application. However, despite service, none appeared for the Defendant No.4 to 8, 10 to 13. Later on Defendant No.1 to 3 & 9 disappeared. Hence, the Defendant No.1 to 13 were proceeded ex-parte vide order dated 22.05.2019.

8. Applicant Bank filed its evidence by way of affidavit of Sh. Balbir Singh, Chief Manager of Applicant Bank as AW-1/1 who proved the various loan and security documents by way of admission and denial which are marked as Exhibit- AW-1/1 to Exhibit- AW-1/16.

9. I have heard the arguments of Ld. Counsel for the Applicant Bank or ex-parte against Defendant No.1 to 13 and perused the material on record.

10. The point for consideration is whether Applicant Bank is entitled to recover the claim as prayed for?

11. Section 17(1) of the RDB Act of 1993 vests a Tribunal constituted under the Act with the jurisdiction, powers and authority to entertain and decide applications from the Banks and Financial Institutions for recovery of debts due to such Banks and Financial Institutions. 'Debt' is, defined in Section 2(g) of the Act, 1993. The RDB Act, 1993 creates a complete code for the adjudication of matters referred to in Section 17 and provides for the procedure in respect thereof. The jurisdiction of the Civil Courts to try cases in respect of recovery debts of Rs.10.00 Lac and above due to Banks and financial institutions stands ousted by the Act. Hence, Original Application filed U/s 19(1) of the Recovery of Debts and Bankruptcy Act, 1993 is within the jurisdiction and legally maintainable before this Tribunal.

12. The ex-parte Defendant No,2, 3, 9 & 13 raised preliminary objection against maintainability to O.A./T.A. However, they failed to prove through any cogent evidence of their claim or otherwise their point of challenge to legality, validity, authenticity and correctness of the loan documents/Statements of Accounts and that Original Application is not legally maintainable. On the other hand, Applicant Bank has fully corroborated the averments made in the O.A. against the Defendants through evidence of witness

Sh. Balbir Singh, Chief Manager of Applicant Bank as AW-1/1. The Applicant Bank has also established its case through documentary evidence being Exhibit- AW-1/1 to Exhibit- AW- 1/16. On a careful scrutiny of the evidence on affidavit and exhibits marked as Exhibit- AW-1/1 to Exhibit- AW-1/16, it is proved that Defendant No.1 through its Directors had availed the Term Loan facility from the Applicant Bank against primary security of hypothecation of Plant & Machinery purchased out of Bank finance, personal guarantee of the Defendant No.5 & 6 Corporate Guarantee of the Defendant No.10 to 12 and collateral security by way of equitable mortgage of immovable property owned by the Defendant No.1 in favour of Applicant Bank on which the Defendant No.13 has executed Pari-Passu charge in favour of Applicant Bank. Further, Defendant No.13 also sanctioned the credit facilities to the Defendant No.1 and agreed to execute the Pari-passu charge in favour of Applicant Bank vide letter dated 31.03.2006 & 05.02.2007 of the aforesaid mortgaged properties by executing various loan & security documents detailed as above in favour of the Applicant Bank. A perusal of Original Application, evidence and documents relied upon clearly show that Defendant No.1 had utilized the above loan facility as granted to it.

13. However, after availing the aforesaid Term Loan facility, Defendant No.1 failed to maintain financial discipline as per terms and conditions of the loan agreement. Consequently, the said account was rightly classified as NPA on 31.01.2012 and recalled by Applicant Bank. Thereafter, Applicant Bank served final Demand Notice dated 27.07.2012 Exhibit- AW- 1/15 to the Defendants to repay the outstanding dues but the Defendants failed to make the payment of outstanding dues. The whole case of the Applicant Bank is based on documentary evidence and the witness has duly proved all these documents. In my view there is no question of disbelieving the evidence lead by the Applicant Bank and Applicant Bank has proved its case beyond reasonable doubts.

14. Further, on perusal of Exhibits AW-1/16 show that Applicant Bank has maintained the Books of account in the ordinary course of banking business showing disbursal of the loan amounts as per provisions of Bankers Books Evidence Act, 1891 and Guidelines of RBI under Banking Regulation Act, 1949. It further shows that Applicant Bank had regularly credited the amount if any, paid by the defendants in the books of account. Applicant Bank had also charged interest from time to time and the entries are relevant U/s 4 of the Bankers Books Evidence Act, 1891 as reflected from A/c Statements attached with O.A. Exhibits AW-1/16.

15. Moreover, Applicant Bank has been able to prove that the Defendant No.1 availed the Term Loan Facility and failed to repay the same in terms of loan documents. Since, the transactions are of commercial nature between the parties, the Defendants are bound to repay the loan amount with interest as agreed upon and Applicant Bank is entitled to recover suit amount with interest as claimed by it. The Original Application has been presented on 27.04.2016 i.e. within three years from the date of execution of Acknowledgment of last Balance & Security Confirmation Letter being made on 21.08.2013 admitting debt liability for the purpose of limitation as reflected from Account Statement Exhibit AW-1/8. Thus, it is proved that the Defendants are jointly and severally liable to pay the claim made in the O.A. to the Applicant Bank. The hypothecated assets & mortgage properties are liable to be sold for recovery of amount due alongwith the personal movable & immovable properties/assets of the Defendants.

16. In the light of above discussion, the Original Application deserves to be allowed against the Defendants with costs.

ORDER

(i) The Original Application is allowed declaring that the Defendant No.1 being borrower company through its directors and Defendant No.5, 6, 10, 11, 12 being guarantors are liable to pay jointly and severally a total sum of Rs.3,47,83,068.32Ps. (Rupees Three Crore Forty-Seven Lacs Eighty-Three Thousand and Sixty- Eight and Paisa Thirty-Two only) to Applicant Bank alongwith pendente-lite and future interest @15.10% per annum with monthly rests from the date of filing of the O.A. i.e. 27.04.2016 till the date of realization with costs.

(ii) Applicant Bank is entitled to recover aforesaid amount by sale of hypothecated assets & mortgaged properties (if not sold earlier under the provisions of the S.A.R.F.A.E.S.I. Act, 2002). The amount, if any, already recovered by sale of any hypothecated assets & mortgage properties or otherwise shall be adjusted towards the debt and only the balance amount shall be recoverable. If the dues of Applicant Bank still remain unsatisfied, the same shall be recovered by attachment and sale of the personal movable and immovable assets of the Defendant No.1, 5, 6, 10, 11, 12 jointly and severally. Applicant Bank is at liberty to enforce the claim through due process of law.

(iii) Any other application pending stands disposed of.

(iv) Recovery Certificate be issued forthwith in above terms U/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) and be sent to the Recovery Officer-I, DRT, Dehradun.

(v) Applicant Bank is directed to file revised statement of account before the Recovery Officer of this Tribunal. Parties are directed to appear before the Recovery Officer-I, DRT, Dehradun on 10.07.2019.

(vi) The Defendant No.1, 5, 6, 10, 11, 12 being borrower, guarantor & mortgager are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating, selling or otherwise dealing with their properties/estates without first paying the above claim of Applicant Bank.

(vii) In case, any of the Defendant No.5, 6, 10, 11, 12 expire, the legal representatives shall be liable to pay in proportion to the inheritance.

(viii) Copy of this Judgment and Recovery Certificate be given Dasti to Applicant Bank and be sent to the Defendants free of cost by Registered Post in terms of section 19(21) (i) of the RDB Act, 1993 (as amended from time to time) and Rules as well as to the Recovery Officer and after due compliance, file be consigned to record room.

17. Applicant Bank is directed to file a Memo of Cost, if not filed earlier, for preparing Recovery Certificate U/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time). Judgment pronounced in the open court on this 25th Day of May, 2019.

(SHAMMI KHAN) Presiding Officer, DRT, Dehradun