Allowed

Canara Bank v. Srinivasan health and Educational

DRT6 Dec 2022TA/101/2022

Case brief

AI extract

What is this about?

The DRT allowed the OAs filed by Canara Bank and PNB for recovery of dues from a charitable trust and its trustees based on a bank loan and restructuring agreement. The court decimated the claim for joint liability against the 6th defendant as she lacked a guarantee deed while allowing recovery from trustees under their status as guarantors.

What did the court decide?

Recovery certificate issued for sum Rs.75,25,89,039.70p plus interest to 1st applicant; Rs.86,01,34,923.85p plus interest to 2nd applicant; authority conferred to sell schedule properties.

Canara Bank versus Srinivasan health and Educational — Banking and Recovery | DRT (2022)

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IN THE DEBTS RECOVERY TRIBUNAL –I AT CHENNAI

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Dated this 6^th Day of December, 2022

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PRESENT: SHRI A.S.JAYACHANDRA

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Presiding Officer

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TA No.101 of 2022

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(O.A.No.33 of 2020 - DRT-III, Chennai)

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M/s Canara Bank (IFSC Code: CNRB0001214) Perambalur Branch, MVK Complex, Thuraiyur Road, Perambalur – 621 212. Rep by its Senior Manager Ms. Uma V.G.

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M/s.Punjab National Bank

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No.7, Royal Road, Cantonment, Tiruchirappalli – 620 001 Rep by its Chief Manager Mr. K. Thirumavalavan . . . Applicants

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Versus

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M/s. Srinivasan Health and Educational Trust, 274.C, Thuraiyur Main Road, Perambalur – 621 212, Tamil Nadu Represented by its Trustee

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Mr. A. Srinivasan (PAN ARHPS0428Q) Son of Mr. Arunachalam, No.274 – C, Thuraiyur Road, Perambalur – 621 212.

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Mr. S. Kathiravan (PAN AJSPK66872) Son of Mr. A. Srinivasan No.274 – C, Thuraiyur Road, Perambalur – 621 212

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Mr. P. Neelraj (PAN ADDPN9585F) Son of Pasupathy, 274/C, Thuraiyur Road, Perambalur – 621 212

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Mr. P. Mani (PAN AIGPM9233P) Son of Pasupathy, 274/C, Thuraiyur Road, Perambalur – 621 212 .

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Mrs. K. Annalakshmi (PAN No.ASMPA6568) Wife of S. Kathiravan No.274 – C, Thuraiyur Road, Perambalur – 621 212 . . . Defendants

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This application is filed by the applicant banks 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 for recovery of a sum of Rs.75,25,89,039.70p along with interest @16.25% p.a. Compounded with monthly rests from the date of filing of the OA till realization to the 1^st applicant; and Rs.86,01,34,923.85p along with interest @16.25% p.a. Compounded with monthly rests from the date of OA till realization to the 2^nd applicant and for sale of schedule mentioned properties along with costs of this application.

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1.0 Brief Facts of the Case :-

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1.1 The applicants are M/s Canara Bank, and M/s. Punjab National Bank both being the Bodies Corporate Constituted under the Banking Companies (Acquisition and Transfer of Undertakings), Act,1970.

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1.2 The 1^st defendant is a Public Charitable Trust, duly constituted vide Deed of Declaration of Trust dated 02.09.2009, registered as Doc.No.536 of 2009, before the office of the SRO Perambalur, by the 2^nd defendant herein. The 1^st defendant is having its registered office at No.274/C, Thuraiyur Road, Perambalur Town, Perambalur Taluk and Perambalur District. The defendants 2 to 6 are its trustees as per the trust deed, the 2nd Defendant Srinivasan is the author of the trust and initially the board of trustees were defendant No.3, 4 and 5 along with one Mr.A.Duraisamy as per the trust deed dated 02.09.2009. The 6th Defendant is later inducted into the trust. The first Defendant trust is created to achieve certain social, charitable aspects for the general public and its aims and objects included to spread the education and particularly to the linguistic minority namely the Telugu speaking people. The Second Defendant being the author - donor of the trustee remained its Managing Trustee.

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1.3 The applicants plead that as per the terms of the Deed of Declaration of Trust dated 02.09.2009, the 1^st defendant is duly empowered “to borrow on security of the trust property or otherwise from any bank or banks, Government, Semi-Government Agencies, Private Institutions or individuals for the purpose and benefits of the trust and to execute on behalf of the Trust, any such documents as may be necessary for such purpose”. It is also pleaded that the 1^st defendant represented by its trustees approached them during October 2011, with a request to sanction Term Loan Facility for the purpose of establishing Medical College at Samayapuram, Trichy, Tamil Nadu. The 1^st defendant offered to create equitable mortgage in and over its land and building, more fully and particularly described in Schedule-A in favour of the applicants as collateral security for securing the repayment of the Term Loan facility along with interest accrued thereon. The 1^st defendant also offered to hypothecate all their movables, machineries and equipments in favour of the applicants as security for the repayment of the Term Loan facility along with interest accrued thereon by them to the

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applicants. The applicants plead that the defendants 1 to 5 offered their personal guarantee to the applicants for guaranteeing the repayment of the aforesaid financial facilities. The applicants submit that thus the defendants herein jointly and severally represented to the applicants that in the event of the applicants sanctioning the financial facility as sought for by the 1^st defendant, the same would be repaid along with the interest accrued thereon, without any delay / default in accordance with the repayment schedule to be prescribed by the applicants herein.

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1.4 It is submitted that based on the promises and undertakings put forth by the 1^st defendant, and relying on the personal guarantee of the defendants 2 to 5 and on the strength of the equitable mortgage offered to be created the applicants herein sanctioned consolidated Term Loan Facility of Rs.93,00,00,000/- (Rupees Ninety Three Crores only) to the 1^st defendant trust. The applicants submit that the aforesaid Term Loan facility was sanctioned by them under Consortium Arrangement to the 1^st defendant herein.

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1.5 It is also averred that the 1^st applicant vide their sanction letter dated 29.06.2012, sanctioned Term Loan Facility of Rs.49,00,00,000/- (Rupees Forty Nine Crores only) to the 1^st defendant. As per the terms of sanction, the aforesaid Term Loan facility was due and liable to be repaid by the 1^st defendant together with interest calculated at the rate being 3.75% more than the base lending rate of the bank per annum, the then prevailing rate being 14.25% per annum compounded with monthly rests. The same is agreed to be repaid by the defendants to the applicants in 33 quarterly installments commencing from December 2014 ending by December 2023. It was also agreed that the interest in this regard is to be paid and serviced by the 1^st defendant as and when the same becomes due immediately upon being debited by the applicants.

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1.6 It is also alleged that the 1^st applicant vide their sanction letter dated 29.06.2012, sanctioned the Bank Guarantee Limit of Rs.9,50,00,000/- (Rupees Nine Crore Fifty Lakhs only) and accordingly issued the Bank Guarantee for the said amount for and on behalf of the 1^st defendant in favour of Medical Council of India for guaranteeing the performance of the 1^st defendant.

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1.7 It is the case of the applicant No.2 that vide their Sanction Letter dated 27.12.2012, sanctioned Term Loan Facility of Rs.44,00,00,000/- (Rupees Forty Four Crores only) to the 1^st defendant. As per the terms of the sanction, the aforesaid Term Loan Facility was due and liable to be repaid by the 1^st defendant together with interest calculated at the rate 3.25% more than the base lending rate of the bank, the rate being 14.25% per annum compounded with monthly rests. It was agreed that the defendant No.1 would be liable to repay the same in 33 quarterly installments commencing from December 2014 ending by December 2023 together with interest accrued. The defendant No.1 also agreed to service the debt by paying interest as and when the same becomes due, immediately upon being debited by the applicants. The applicants submit that the 1^st defendant herein accepted the Sanction Letter dated 29.06.2012 and 27.12.2012, issued by the 1^st and 2^nd applicants respectively in its entirety both in form and content.

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1.8 The applicants submit that the 1^st defendant vide their resolution dated 22.02.2013, accepted the sanction letters dated 29.06.2012 and 27.12.2012, issued by the 1^st and 2^nd applicants herein respectively in its entirety, both in form and content and authorized its Managing Trustee Mr.A.Srinivasan to execute all the loan and security documents for and on their behalf in favour of the applicants herein.

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1.9 The applicants submit that in pursuance to the above, the applicants herein entered into Consortium Term Loan Agreement dated 26.02.2013 between themselves

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for the purpose of extending the Term Loan Facility to the 1^st defendant which was sanctioned by them to the 1^st defendant, vide their Sanction letters dated 29.06.2012 and 27.12.2012 respectively. The applicants submit that as per the Consortium Inter-se Agreement dated 26.02.2013, entered into between the applicants, the 1^st applicant has been appointed as “Lead Bank” for the purpose of accepting the execution of loan documents by the 1^st defendant and accepting the mortgage and hypothecation created by the 1^st defendant in and over the Schedule-A and B mentioned properties respectively. The applicants submit that as per the Consortium Term Loan Agreement, the 1^st applicant is duly empowered to all such lawful acts, deeds and things in their name, for and on behalf of both the applicants herein in order recover the sums that are due and liable to be paid by the defendants to the applicants. Hence the above OA has been filed by the 1^st applicant, for and on their behalf and on behalf of the 2^nd applicant herein.

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1.10 It is the case of the applicants that in acknowledgement for having availed the aforesaid term loan facility and towards security for repayment of the same along with the interest accrued thereon, the 1^st defendant executed following loan documents in favour of the applicants:-

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➢ Facility Agreement relating to Consortium Term Loan dated 26.02.2013.

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➢ Agreement relating to General Conditions applicable to Consortium Term Loan, dated 26.02.2013.

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➢ Joint Deed of Hypothecation relating to Term Loan by the 1^st defendant in favour of the applicants dated 26.02.2013.

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➢ Agreement relating to General Conditions applicable to Joint Deed of Hypothecation dated 26.02.2013.

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➢ Mandate Letter / Letter of Authority dated 26.02.2013.

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➢ Affidavit-cum-Undertaking by the Managing Trustee of the 1^st defendant in favour of the applicants dated 26.02.2013.

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➢ Deed of Declaration dated 26.02.2013 by the Managing Trustee of the 1^st defendant in favour of the applicants.

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❖ The applicants submit that it was towards guaranteeing the repayment of the aforesaid financial facilities along with interest accrued thereon by the 1^st defendant to the applicants, the 2^nd to 5^th defendants executed deed of personal guarantee dated 26.02.2013 in favour of the applicants and thus rendered themselves jointly and severally liable to pay the said sums to the applicants along with the 1^st defendant.

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❖ It is also pleaded that the 1^st defendant herein created equitable mortgage in and over their Schedule-A mentioned immovable property in favour of the applicants. The 1^st defendant has executed the following documents in favour of the applicants in this regard:-

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i. Memorandum of Entry dated 26.02.2013, relating to deposit of title documents by the 1^st defendant in favour of the applicants.

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ii. Letter dated 26.02.2013, executed by the 1^st defendant confirming creation of equitable mortgage by them in favour of the applicant by way of deposit of original title documents.

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iii. Letter dated 26.02.2013, executed by all the then trustees of the 1^st defendant confirming creation of equitable mortgage by them in favour of the applicant by way of deposit of original title documents.

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iv. The 1^st defendant herein registered the Memorandum of Deposit of Title Deeds relating to the equitable mortgage created by them in and over the Schedule-A mentioned immovable property in favour of the applicants before the Office of the SRO Manachanallur as Doc.No.857 of 2013, on 27.02.2013.

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1.11 The 1^st defendant also hypothecated its movables furniture, fixtures, equipments and other movable items purchased by them from and out of the Term Loan facilities availed by them from the applicants, more fully and particularly described in Schedule-B to the application in favour of the applicants as security. The 1^st defendant executed Deed of General Power of Attorney dated 26.02.2013 in favour of the applicants, empowering them to deal with the Schedule-A mentioned mortgaged properties and the Schedule-B mentioned hypotheca for ensuring the repayments. The 1^st defendant herein also executed mandate letter dated 08.06.2013 in favour of the applicants in this regard.

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1.12 It is averred that vide their letter dated 16.12.2014, the 1^st defendant informed the applicants that their project has suffered cost and time over run and accordingly they could not complete their project within the projected time schedule. The 1^st defendant also represented to the applicant that due to the incomplete nature of construction, they were not able to obtain necessary NOC / Essentiality Certificate from the Medical Council of India to commence Medical College. By way of making the said representations, the 1^st defendant requested the applicants to reschedule the repayment under the Term Loan facilities availed by them by way of considering grant of additional moratorium period. The 1^st defendant also requested the applicant bank to grant additional Term Loan in the nature of “Funded Interest Term Loan” in order to enable them to service the payment of interest under the existing Term Loan Facility availed by them.

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1.13 The applicants submit that since the 1^st defendant did not service the interest on the subsisting Term Loan sanctioned by them vide their Sanction Letter dated 27.12.2012, the 2^nd applicant rejected the request of the 1^st defendant in this regard.

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1.14 The applicants submit that the 1^st applicant vide their Sanction Letter dated 30.03.2015 considered the restructuring request of the 1^st defendant. The 1^st applicant vide their Sanction Letter dated 30.03.2015 modified and restructured the repayment schedule from the erstwhile tenure of 10 years and 9 months to 10 years and the frequency of repayment was modified to monthly installments in lieu of quarterly installments. As per the terms of the rescheduling the principal amount forming part of the Term Loan Facility of Rs.49,00,00,000/- (Rupees Forty Nine Crores only) was due and liable to be repaid by the 1^st defendant in 10 yearly installments in the following manner:-

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S.No.	Tenure / Period of Payment	Quantum to be remitted in Rs.
1.	September 2014	Rs.20,00,000/-
2.	September 2015	Moratorium
3.	September 2016	Moratorium
4.	September 2017	Rs.49,00,000/-
5.	September 2018	Rs.98,00,000/-
6.	September 2019	Rs.1,46,00,00,000/-
7.	September 2020	Rs.1,95,00,00,000/-
8.	September 2021	Rs.4,88,00,00,000/-
9.	September 2022	Rs.5,86,00,00,000/-
10.	September 2023	Rs.6,83,00,00,000/-
11.	September 2024	Rs.7,81,00,00,000/-
12.	September 2025	Rs.8,78,00,00,000/-
13.	September 2026	Rs.9,76,00,00,000/-

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1.15 The rescheduling was accepted by the 1^st defendant as per the Sanction Letter dated 30.03.2015, by executing the Debt Re-structuring Agreement dated 31.03.2015 in favour of the 1^st applicant. The applicants submit that other trustees also executed Draft Letter of Undertaking and also extended their Personal Guarantee already executed by them in favour of the applicants. The 1^st defendant also executed Letter of undertaking dated 28.04.2015 in favour of the applicants in this regard.

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1.16 It is further pleaded that, though the 1^st defendant availed the restructuring of the repayment of the Term Loan Facility from the 1^st applicant, miserably failed and neglected to honour the commitments. The applicants submit that on account of the default committed by the 1^st defendant in repayment of both principal and interest under the aforesaid Term Loan facilities, the loan account of the defendants was classified as NPA by the 1^st and 2^nd applicants on 31.12.2015 and 31.03.2016 respectively. The defendants herein have become due and liable to pay the penal interest calculated at the rate of 2% per month on the amount over due to the applicants.

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1.17 The applicants submit that vide their notice dated 20.04.2016, issued under Section 13(2) of the SARFEASI Act, the 2^nd applicant recalled the Term Loan facility sanctioned by them vide their Sanction Letter dated 27.12.2012 and called upon the defendants jointly and severally to discharge the entire liability, but to no avail.

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1.18 It is further alleged that on 06.06.2016, the 1^st defendant informed the applicants that the 1^st defendant trust has been reconstituted and the 6^th defendant has been inducted as one of the trustees in the place of deceased Trustee Mr.K.Duraisamy. The 1^st defendant represented to the applicants that they would be remitting the entire overdue interest and installments by 31.07.2016, which they have never complied.

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1.19 The 1^st applicant also issued notice dated 31.10.2016, on the defendants, recalled the aforesaid financial facilities and called upon the defendants jointly and severally to discharge the entire liability. The defendants acknowledged vide their letter dated 27.12.2016, by way of citing lame duck excuses, the defendants herein requested the applicants to withdraw their recall notice under the promise to pay the sums by the beginning of academic year 2017-2018. As the request of the 1^st defendant was not bonafide, the same was rejected by the 1st applicant vide their letter dated 06.01.2017.

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1.20 The applicants submit that as stated supra both the 1^st applicant and the 2^nd applicant have already issued notice U/s 13(2) of the SARFEASI Act, recalled the aforesaid financial facilities and called upon the defendants jointly and severally to discharge the entire liability. Despite the receipt of the said 13(2) notices dated 20.04.2016 and 31.10.2016 issued by the 2^nd and 1^st applicant respectively, the defendants discharge their liability. Consequently, the 1^st applicant in their capacity as the Lead Bank (Consortium Leader) took symbolic possession of the secured asset on 18.04.2017. Though the applicants deferred further proceedings under the provisions of the SARFAESI EASI Act based on the letter dated 26.04.2017 issued by the 1^st defendant, much to the disappointment of the applicants, the defendants once again failed to honour their commitment and continued with their default indefinitely. The applicants submit that on 16.09.2017, the 1^st defendant executed letter of acknowledgment of debt and security in favour of the applicants and promised to discharge the liability within a short span of time.

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1.21 The applicants submit that as of 13.11.2020, the defendants herein are jointly and severally liable to pay a sum of Rs.75,25,89,039.70 (Rupees Seventy Five Crores Twenty Five Lakhs Eighty Nine Thousand and Thirty Nine and Paise Seventy only) together with interest calculated at the rate of 16.25% per annum compounded with monthly rests, commencing from the date of OA to date of realization in full to the 1^st applicant herein. Similarly as of 13.11.2020 the defendants herein are jointly and severally liable to pay a sum of Rs.86,01,34,923.85 (Rupees Eighty Six Crores One Lakh Thirty Four Thousand Nine Hundred and Twenty Three and Paise Eighty Five only) together with interest calculated at the rate of 16.25% per annum compounded with monthly rests for the period commencing from the date of OA to date of realization in full to the 2^nd applicant herein. The 1^st defendant herein is liable to pay the said sums to the applicant in their capacity as borrower-cum-mortgagor. The applicants submit that the 2^nd to 6^th

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defendants are jointly and severally liable to pay the said sums to the applicants in their capacity as guarantors.

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1.22 It is pleaded that the cause of action for the OA arose on 29.06.2012 and 27.12.2012, when the applicants issued Sanction Letter to the 1^st defendant : On 22.02.2013, when the 1^st defendant accepted the Sanction Letter issued by the applicants and on 26.02.2013, when the applicants entered into inter-se Consortium Agreement between themselves for the purpose of sanctioning Term Loan to the 1^st defendant, further on 26.02.2013, when the 1^st defendant executed loan and security documents in favour of the applicant and when the 1^st defendant created equitable mortgage in and over the Schedule-A mentioned property in favour of the applicants. It is also pleaded that on 26.02.2013, when the other defendants executed Deed of Personal Guarantee in favour of the applicant ; On 16.12.2014, when the 1^st defendant requested the 1^st applicant for reschedulement and restructuring : on 13.03.2015, when the 1^st applicant issued Sanction Letter for restructure to the 1^st defendant; On 31.03.2015, when the defendants executed loan restructure documents in favour of the applicant; On 31.12.2015 and 31.03.2016, when the applicants classified the loan account of the defendants as NPA : On 20.04.2016 and 31.10.2016, when the applicants recalled the Term Loan facilities sanctioned to the 1^st defendant and called upon them jointly and severally to discharge their liability to them: On 27.12.2016, when the defendants admitted their liability to the applicants and sought for time for repayment : On 18.04.2017, when the applicants took symbolic possession of the secured asset: On 16.09.2017 and 01.09.2020, when the defendants admitted their liability to the applicant: In between 31.12.2016 and 04.11.2020, when the defendants made on account remittances towards part discharge of their liability to the applicants; On 28.02.2020, when the 1^st defendant made last on account remittance to the 2^nd applicant: On

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04.11.2020, when the 1^st defendant made last on account remittance to the 1^st applicant and thereafter when the defendants failed and neglected to discharge their admitted liability to the applicant. The applicants pray for the relief as prayed for.

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2.1 The Defendants were served with the notices. They appeared through their counsel and the Reply Statement is not filed. The Ld. Predecessor by an order dated 11.03.2022 had placed the defendants exparte, noting that the WS were not filed and the matter was kept for proof affidavit and documents. Thereafter none appeared for the defendants.

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2.2 The applicant bank examined Ms.L.Anusuya Devi, the authorised representative on behalf of the applicants and marked Exhs. A1 to A48 and closed their side. My Ld. Predecessor had kept the matter for hearing the applicant.

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3.1 Heard the Ld. Counsel Shri.R.Umasuthan for the Applicant Bank. He submits that the transactions are not denied and the execution of the documents is also not disputed. He submits that this is a case where the applicants are clearly eligible for the reliefs as sought for. He also submits that the applicants are in receipt of part sum which the defendants have paid following the OTS proposal partly acted upon. The same is also deposed in para - 32 of the affidavit.

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4.1 It is seen from the affidavit that the “the 1st defendant herein has remitted a sum of Rs.38,50,00,000/- (Rupees Thirty Eight Crores and Fifty Lakhs only) towards part discharge of their liability to the 1st applicant. The same was received by the first applicant bank without prejudice to the rights to recovery. The Ld. Counsel submits that

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though there were OTS proposals, the same was not acted upon to the compliance of such proposals and only a part sum deposited as above.

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4.2 With the conclusion of evidence on behalf of the Applicants and there being no evidence on behalf of the defendants who did not choose to contest the matter, the following points arise for consideration:

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Points:-

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(a) Whether the applicants are entitled to recover the sums they claim from the Defendants?

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(b) If so, what amount and from whom?

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5.1. The averments made in the application are reiterated in the deposition by way of affidavit. The application is filed for recovery of a sum of Rs.75,25,89,039.70p along with the interest on behalf of the 1st applicant from the Defendants. The 2nd Applicant claims a sum of Rs.86,01,34,923.85p along with interest. It is deposed that the 1st Defendant Trust represented by 2nd Defendant approached both the applicants for the sanction of term loan facility for establishing the Medical College at Samayapuram, Trichy District, Tamilnadu. The 1st Defendant had also created an equitable mortgage in the immovable properties mentioned in Schedule A all belonging to the 1st Defendant Trust. It is submitted that the Defendants 2 to 5 have offered and extended personal guarantee to the applicants. The deponent Ms.L.Anusuya Devi, the Manager of the 1st Applicant lead bank is cautious in submitting that Defendants 2 to 5 are the personal guarantors and that the Defendant No.6 though a trustee of Defendant No.1 had not executed the personal guarantee towards these loans.

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5.2 The documents exhibited during the course of evidence, clearly establishes the sanction letters dated 29.06.2012 and 27.12.2012 issued by the 1st and 2nd Applicant respectively at Exhs.A2 & A3 in favour of the trust which deed is at Exh. A1. The original agreement that is Exh.A10 corroborates the availment of loan and the 1st Defendant has executed original letters of authority, joint mortgage deed at Exh.A11 and A12.

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5.3 Exh. A20, the personal guarantee deed executed, which is dated 26.02.2013 and the registered deed of memorandum of deposit of title deeds at Exh.A22 and the title deeds thus deposited as cited in the equitable mortgage deed by way of deposit of title establishes that the loan transaction and the disbursement thereof. The Defendants have not denied the transaction. They remained exparte. The loan was restructured and the same is proved by the document at Exh. A29 dated 31.03.2015. The letters of undertaking given by 1st defendant dated 28.04.2015 and 15.04.2016 establish that the first defendant had undertaken to abide by the restructured loan along with the guarantors. This document is also supported by yet an another letter dated 31.03.2015 which is part of Exh.A32, wherein all the defendants except the Defendant No.6 had undertaken to comply with the restructured loan and they were conscious of the consequences. The above documents are neither controverted nor denied by the defendants.

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5.4 It is also seen from the documentary evidence that the bank had acknowledged the request letter by Defendant No.1 dated 20.06.2018 through their letter of the 1st Applicant dated 03.07.2018. The same are at Exh. A5 & A46. It is clear from the correspondence that Defendant No.1 Trust clearly acknowledges the debt and further had sought for reduction in the rate of interest, which was declined by the 1st Applicant. Exh.A46 had also clearly notified the 1st Defendant that the entire Over Due

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amount be remitted as per the restricted sanction for upgrading the account from the NPA status.

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5.5 As regards the claim made in the OA, the deponent had made out through the affidavit and the documentary evidence that the defendants are liable to pay the 1st applicant a sum of Rs.75,25,89,039.70p as on 13.11.2020 along with interest @16.25% p.a. Compounded with monthly rests from the date of OA till realisation. Likewise it is also averred that the defendants are liable to pay a sum of Rs.86,01,34,923.85 as on 13.11.2020 along with interest.

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5.6 It is made clear by the deponent that the 1st Defendant remitted a payment of Rs.38,50,00,000 (Rupees Thirty Eight Crores and Fifty Lakhs) in discharging their liability to the first applicant. The date of payment is not mentioned. Therefore the first applicant is entitled to recover the claim amount less the payments made as is made out since the accounts statement produced at Exh. No.A48 corroborates the amount claimed in the suit and the execution of the mortgage deed by way of deposit of title deeds, is proved by the documentary evidence.

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5.7 There is no averment regarding any payments made towards the loan obtained from the 2nd applicant. In the additional affidavit, the permission is sought to prove 15 documents by way of secondary evidence concerning the Exh.A1, 4, 5, 21, 27, 33 to 40, 42 & 46, which include the demand notice, supplemental trust deed and the possession notice.

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5.8 After careful perusal of the documentary evidence, suffice it to say that the applicants 1 & 2 have proved the OA claim and that the Defendant No.1 Trust is liable

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to make good the claim. The Defendants 2 to 5 being the personal guarantors are also jointly and severally liable to pay the claim.

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5.9 As regards the prayers that the decree be drawn against the defendants jointly and severally binding the 6th Defendant personally cannot be passed since the 6th Defendant is not a party to the guarantee deed executed on 26.02.2013. The liability to pay the OA claim shall be on all the defendants jointly and severally and excepting the Defendant No.6 who stands liable only in the capacity of the trustee of Defendant No.1 Trust.

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5.10 Thus the point No.1 is answered in favour of the applicants:-

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That applicant No.1 is eligible for recovery of a sum of Rs.75,25,89,039.70p along with interest @16.25% p.a. Compounded with monthly rests from the date of filing of the OA till the date of this order and future interest ordered in the successive part of order, less the amounts paid under the OTS as noted in Para 5.6 supra.

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The 2nd applicant is eligible for recovery of a sum of Rs.86,01,34,923.85p along with interest @16.25% p.a. Compounded with monthly rests from the date of OA till this order and future interest ordered in the successive part of order.

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The defendants 1 to 5 are liable to pay the above sums to the applicants jointly and severally. The defendant No.6 is held liable to the same in her capacity as a trustee of Defendant No.1 only.

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Thus the points a & b are answered accordingly.

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In the result, application is allowed granting recovery certificate as follows:

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(a) The applicant No.1 is eligible for recovery of a sum of Rs.75,25,89,039.70p along with interest @16.25% p.a. Compounded with monthly rests from the date of filing of the OA till this day and Simple Interest @9% p.a. on the above sum from the date of this order till realisation, less the amounts paid under the OTS as noted in Para 5.6 supra. The 2nd applicant is eligible for recovery of a sum of Rs.86,01,34,923.85p along with interest @16.25% p.a. Compounded with monthly rests from the date of OA till this day and Simple Interest @9% p.a. on the above sum from the date of this order till realisation.

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(b) It is further ordered that in case of default of payment by the defendants, the applicant banks are entitled to sell the schedule mentioned properties in terms of the order in para (a) supra and appropriate the sale proceeds towards the amount due.

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(c) It is further ordered that in case of default of payment by the defendants, the defendants 1 to 5 are personally liable in terms of the order in para (a) supra towards the amount due. The defendant No.6 is held liable to the same in her capacity as a trustee of Defendant No.1 only.

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(c) 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.

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(d) In the event of the sale proceeds not matching the liability, the defendants shall make good personally liable for the balance amount to be recovered.

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(e) The applicant bank is entitled for costs of this application.

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The applicant bank is directed to file costs memo within two weeks of the receipt of this order.

¶110

Issue recovery certificate in favour of the applicant bank in terms of this final order.

¶111

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.

¶112

Sd/-

¶113

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

¶114

(Dictated to PS on the system corrected, signed and pronounced by me on this 6^th day of December, 2022)

¶115

Canara Bank v. Srinivasan health and Educational

Case brief

What is this about?

What did the court decide?

Canara Bank v. Srinivasan health and Educational

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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Coram

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