Allowed

State Bank of India v. Shree Automobiles Private Limited

DRT8 Aug 2023OA/22/2022

Case brief

AI extract

What is this about?

The Tribunal allowed the Original Application filed by State Bank of India under Section 19 of the RDBFI Act, 1993, issued a Recovery Certificate against the company and its guarantors for an outstanding debt of Rs. 4.33 crores, and directed issuance of the certificate.

What did the court decide?

Issuance of Recovery Certificate for Rs. 4,33,72,507.71 with future interest at 7.90% p.a.; charge on hypothecated properties kept alive.

State Bank of India versus Shree Automobiles Private Limited — Banking and Recovery | DRT (2023)

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O A 22l2o22/DRT-Gwahali

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IN THE DEBTS RECOVERY^{TRIBUNAL,GUWAHATI}

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(North Eastern Region)

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(Tribunal of Assam, Nagaland,^{Meghalaya, Manipur, Mizoram,ArunachalPradesh& Tripura)}

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Before Shri Shiv Sharan Dubev.^{PresidinoOfficer}

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O.A. No.2212022

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ln the matter of -

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State Bank of lndia Stressed Assets Recovery^Branch, Bamunimaidan, M.R.D^{Road, Guwahati-2'l} District-Kamrup(M), Assam.

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Applica nt

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Vs.

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1. Shreo Automobiles^{Private Limited,}

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Represented by^{its Director} Sri Mukesh Sharma,

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Regd. Office-G.S. Road, Paltanbazar, Guwahati-781^008,

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District-Kamrup(M), Assam.

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2. Sri Muk6h Sharma

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Son of Chandi Prasad^Biyala Director of M/s Shree^{Automobiles Private Limited} R/o-suhagpur, 3d^{Floor, Rehabari, Guwahati-781008,} Oistrict-KamruP(M), Assam.

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Sri Nitin Sharma

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Son of Mukesh^Sharma

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Director M/s Shree^{AutomobilesPrivate Limited,} Ryo Suhagpur, Near^{Arya Hospital, Rehabari,} Guwahati-781007,^{District Kamrup(M) Assam.}

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Shri Mohan Sharma

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Son of Chandi^{Prasad Sharma} 6/367, Veent^{Khand,Gomti Nagar, Locknow-226010,} LJttar Padesh.

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Defendants

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Presenco of^{the Counael:}

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For the Applicant : Sri K K Nandi,^Advocate For the Defendants^: None (Ex-parte)

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Dated :o8ro8r2o23

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JUDGMENT

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This is an application^{undersection 19 ofthe Recoveryof OebtsDue to Banks} and Financial lnstitutions^{Act,1993 filed by the State Bank of lndia,Stressed Assets}

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Recovery Branch,^{Bamunimaidan, M.R.D Road, Guwahati-21 , District-Kamrup(M)'}

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Sl"4rclq^4,i^Dq Pr€rding Offdar^I - ORT, Guwahati

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O A 22 I2A22JOR1^-Guwahati

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Assam, with a prayer to issue Recovery Certificate for the sum of Rs. 4,33,72,507.7'l (Rupees Four Crore Thirty Throe Lakhs Seventy Two Thousands Five Hundred Sevan and Paisa Seventy One) only as on 14.'12.2021 against the defendants with^pendentelite and future interest at the^rate of^7.90o/oper annum^at monthly rest till realization, along with cost and other relief.

¶32

A few facts giving rise to the^present application are as under.

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The defendant no. 1 is a^private limited company incorporated under the Companies Act, 20'13 having its registered^office at G S^{Road, Paltanbazar} Guwahati-781008. The defendant^{no. 1 representeditself before the applicant bank} as authorized dealer of Bajaj Auto Limited^{for the entireGuwahati.The defendant} no 2 & 3 are the director of defendant no.^'l company^{as per company master data} of defendant no.^'l available^{in mca portal. Thedefendantno. 2, 3 & 4 are the} guarantors in their personal capacities of the credit facilities availed by^the defendant no.^'l from the applicant^{bank. The liability of defendant no. 2, 3 & 4 are} joint, several and co-extensive with that of defendant no.^'1. The defendant no.¹ availed various credit^{facilities from the applicantbank.}

¶34

Pursuant to the application^{of the defendantno. 1 dated17.06.2013to the} applicant bank for^grant of credit^{facility, the applicant bank upon considerationof} the said application^{sanctioned cash credit facility underElectronicDealer} Financing Scheme^{(e-DFS) of Rs. 300 Lacsto the defendantno. 1 vide Letter of} Arrangement dated 16.08.2013^{executed on 28.08.2013. The termsand conditions} of the letter of arrangement^{dated16.08.2013executedon 28.08.2013 was duly} accepted by defendant^{no. 1 and as a token of acceptance of the same the} defendant no. 1 represented^{by its the then directors as well as VinayKumar} Nevatia and Sarla Nevatia^{in their personalcapacities have signedin the letterof} arrangement of having^{acceptedthe terms and conditions.The effective rate of} interest in the e-DFS^{account will be 0.25o/o abovebase rate with a minimum of} 9.95%^per annum^{rising or falling therewith calculated on daily productsat monthly} rests. The say of the^{applicant bankis that VinayKumar Nevatia and Sarla Nevatia} being not the directors^{of the defendant No.1 and their personal guaranteebeing}

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replaced by the personal guarantee of defendant No. 2,3 and 4 hence Vlnay Kumar Nevatia and Sarla Nevatia are not impleaded in the original application as defendants. The defendant No.1 by a resolution of the meeting of the board of directors held on 17.08.2013 resolved to obtain advance to the tune of Rs. 300 lacs by way of Cash Credit under e-DFS. lt was also resolved that Vinay Kumar Nevatia and Sarla Nevatia would furnish guarantee. lt was further resolved that Vinay Kumar Nevatia, Oirector of the company would execute necessary security documents as required by bank in^presence of Mrs Sarla Nevatia, Oirector of the company.

¶38

The defendant No. 1 availed the cash credit facility from the applicant bank and the defendant No.'l represented by it's the then directors have executed Agreement of Loan-cum-Hypothecation dated 28.08.2013, Agreement by the defendant No. 1 under Electronic Dealer Financing Scheme dated 29.08.2013.

¶39

The defendant No. 1 availed of the credit facility from the applicant bank and Sri Vinay Kumar Nevatia son of late Hanuman Prasad Nevatia, Sarla Nevatia wife of Sri Vinay Kumar Nevatia in their personal capacities stood as the guarantors of the credit facilities availed by the defendant No. 1 from lhe applicant bank and have executed Guarantee Agreement on 28.08.20'13.

¶40

The defendant no. 1 approached the applicant bank for renewal of the existing cash credit (e-DFS) facility. The applicant bank upon consideration of the prayer so made renewed the existing cash credit (e-DFS) facility of Rs 3OO Lacs in favor of the defendant no. 1 vide arrangement letter dated 20.04.2015. The terms and conditions of the letler of arrangement dated 20.04.2015 was duly accepted by defendant no. 1 and as a token of acceptance of lhe same the defendant no. 1 represented by it's the then director as well as Vinay Kumar Nevatia and Sarla Nevatia in their personal capacities have signed in the letter of arrangement of having accepted the terms and conditions. The effective rate of interest in the e- DFS account will be 0.55% above base rate wilh a minimum of 9.85o/o per annum rising or falling therewith calculaled on daily producls at monthly rests.

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The defendant no. 1 represented by its director approached the applicant bank for renewal cum review of the existing cash credit facility vide letter dated 10.01.2016. The applicant bank upon consideration of the said letter dated 10.01.2016 renewed the cash credit (e-DFS) facility of Rs 3OO Lacs in favour of the defendant no. 1 vide arrangement letter dated 04.03.2016. The effective rate of interest in the e-DFS account will be 0.55% above base rate with a minimum of 9.85% per annum rising or falling therewith calculated on daily products at monthly rests. The defendant No.'l by a resolution of the meeting of the board of directors held on 02.03.2016 resolved to obtain advance to the tune of Rs. 300 lacs by way of Cash Credit under e-DFS. lt was also resolved that Mohan Sharma and Mukesh Sharma would furnish guarantee. lt was further resolved that Mukesh Sharma, Director of the company would execute necessary security documents as required by bank in presence of Mukesh Sharma, Director of the company.

¶45

The defendant No. 1 availed the cash credit (e-DFS) facility from the applicant bank and the defendant No.l represented by it's the director being defendant No. 2 and defendant No.4 (the then director) have executed Agreement of Loan-cum-Hypothecation dated 04.03.201 6.

¶46

The defendant No. 1 availed of the credit facility from the applicant bank and defendants No. 2 and 4 in their personal capacities stood as the guarantors of the credit facilities availed by the defendant No. 1 from the applicant bank and have executed Guarantee Agreement on 04.03.2016.

¶47

The defendant no.^'l approached the applicant bank for renewal of the existing cash credit (e-DFS) facility and grant of Ad-hoc limit, bank guarantee vide letter dated t7.09.2016. The applicant bank upon consideration of the said letter dated 17.06.2016 renewed the existing cash credit (e-DFS) facility of Rs 300 tacs, sanctioned (FBWC Ad hoc limit) by way of cash credil of Rs 125 lacs and bank guarantee of Rs 70 lacs thus totaling ot Rs 495 lacs in favour of the defendant no. 1 vide arrangement letter dated 23.09.2016. The etfective rate of interest in the above credit facilities will be 0.55% above SBAR with a minimum of 9.850/0 per annum rising or falling therewith calculated on daily^products at monthly rests. The

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OA 2Z202ZORT Guwahali

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defendant No. I availed^{the above creditfacilities fromtheapplicant bank and the} defendant No.1 represented^{by it's the director beingdefendant No. 2 and the then} director defendant^{No.4 haveexecuted Supplemental Agreementof Loan-cum-} Hypothecation dated^{23.09.2016, Consent Clausedated23 09 2016 and Omnibus} Counter Guarantee^{dated 23.09.2016.}

¶51

The defendant^{No. 1 availedthe creditfacilities from theapplicant bank and} the defendant^{No. 2 and 4 in their personalcapacities stood as the guarantors of} thecreditfacilitiesavailedbythedefendantNo.lfromtheapplicanibankand have executed^{Guarantoe Agreementon 23 09'2016 and Consent Clausedated} 23.09.2016.

¶52

The defendant^{no lapproachedthe applicantbank for renewal of the} existing^{cash credit(e-DFS)lacility and existing bank guarantee The applicant} bank upon^{consideration ol the prayerso made renewedthe existing cash credit} (e-DFS) facility^{of Rs 3OO Lacs and existing bank guaranteeof Rs 70 Lacs thus} totaling of^{Rs 370 Lacs in favour of the defendant no l vide arrangementletter} dated 07.06.2017.^{The effectiverateof interest in lhe abovecredit facilities willbe} 1.600/0aboveMCLRwithaminimumof9.60%perannumrisingorfallingtherewith calculated^{on daily products at monthlyrests}

¶53

The defendant^{No l by a resolutionof the meeting of the board of directors} held on^{20.05.2017 resolvedto obtain advance to the tune of Rs' 370 lacs by way} of Cash^{Credit under e-DFS' bank guaranteeand such other limit lt was also} resolved^{that Sri Mukesh Sharmaand Sri Mohan Sharma wouldfurnish guarantee} It was^{furtherresolvedthat Mukesh Sharma' Directorof thecompanywould} execute^{necessarysecurity documents as required by bank in presenceot Mukesh} Sharma,^{Directorof the comPanY'}

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The defendant^{no 1 approachedthe applicantbank for renewal of the} existing^{cash credit facility and existing bank guarantee The applicant bank upon} consideration^{of the prayer so maderenewed the existing cash credit(e-DFS)} facility of^{Rs 3OOLacsand existingbank guaranteeof Rs 70 Lacs thus} totaling^{Rs 370 lacsin favour of the defendantno 1 vide arrangementletter dated}

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20.11.2018 executed on^{'l'2J2.2019. The efiective rate of interestin the above} credit facilities will be^{1.600/oaboveMCLR with a minimum of 8.50% per annum} rising or falling therewith^{calculatedon daily products at monthlyrests.}

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The defendant no. 1 approached^{the applicant bank for renewal of thecash} credit (e-DFS) facility, sanction^{of fresh cash credit limit and enhancementof the} existing bank^{guaranteevide letter dated18.01.2019. The applicant bankupon} consideration of the said^{letter dated18.01.2019 renewedthe existing cash credit} (e-DFS) facility of Rs 3OO lacs, sanclioned^{freshcashcredit facility of Rs 100 lacs} and enhanced the existing^{bank guarantee from Rs 70 lacs to rs 150 lacs thus} totaling of Rs 5.50^{lacs in favour of the defendant no. I vide letter of arrangement} dated 26.06.2019^{executedon 21.10.2019. The effective rate of interest in the} above credit facility^{(under e-DFS)will be 'l 00%aboveMCLRwith a minimumof} 9.55%^per annum^{rising or fallingtherewith calculated on daily productsat monthly} rests.

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Vide resolution^{passed at the boardof meetingof directorsof defendant} No.1 held on 19.10.2019^{the defendantNo. 1 company resolvedto obtain advance} to the tune of Rs.^{5.50 crores from the applicant bank. lt was also resolvedthat} defendant No.^{2 and Mr Mukesh Sharma (thethen director of the defendant No 1)} would furnish^{guarantee.lt was furtherresolvedthat defendantNo 2 being} Director of the^{defendantNo.1 would execute necessarysecurity documentsin} favour of the apPlicant^bank.

¶60

The defendant^{No. 1 availedthe abovecredit facilities from the applicant} bank and the defendant^{No.1 represented by it's the director being defendantNo 2} have executed^{Supplemental Agreement of Loan-cum-Hypothecationdated} 21.10.2019, Agreement^{by the defendant No.1 under Electronic DealerFinancing} Scheme dated^{21.1O.2O19,ConsentLetter dated 21 102019 and Omnibus} Counter Guarantee^{dated21 10.2019.}

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The defendant No.^'l availed^{the creditfacilities from the applicant bankand} the defendant^{No. 2 and 4 in their personal capacitiesstood as the guaraniors} of the credit^{facililiesavailedby the defendant No. I from the applicantbank and}

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have executed Guarantee Agreement on 21.10.2019 and Consent Letter dated 21 .10 .20't9 .

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The defendant no. 1 approached the applicant bank for renewal of the existing cash credit facilities. The applicant bank upon consideration of the prayer so made renewed the existing cash credit facirity under Erectronic Dearer Financing Scheme (e-DFS) of Rs 300 lacs, cash credit facility (FBWC) of Rs 1OO lacs and existing bank guarantee of Rs^,l50 lacs thus totaling of Rs S.5O lacs in favour of the defendant no. I vide arrangement letter dated 22.04.2020 executed on 26.OS.2OZO. The effective rate of interest in the credit facility (under e_OFS) will be 0.85% above EBR with a minimum of 7 .9Oo/o per annum both rising or falling therewith calculated on dairy products at monthry rests and effective rate or interest in the credit facility (FBWC) will be 4.75o/o above EBR with a minimum of ,11.80y0 per annum both rising or falling therewith calculated on daily products at monthly rests.

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Vide resolution passed at the board of meeling of directors of defendant No.1 held on 24.O4.2020 the defendant No. 1 company resolved to obtain advance to the tune of Rs. 5.50 crores from the applicant bank. lt was also resotved that defendant No. 2, 3 and 4 would furnish guarantee. lt was further resolved that defendant No. 2, 3 and 4 would give personal guarantors to the applicant bank. lt was resolved that defendant No. 2 being director of defendant No.i would execute necessary security documents in favour of the applicant bank.

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The defendant No. 1 avaited the above credit facilities from the applicant bank and the defendant No.1 represented by it,s the director being defendant No. 2 have execuled Agreement of Loan-cum-Hypothecation daled 26.05.2020, Agreement by the defendant No.1 under Electronic Dealer Financing Scheme dated 26.05.2020, Consent Letter dated 26.05.2020 and Omnibus Counter Guarantee dated 26_05.2020.

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The defendant No. 1 availed the credit facilities from the appticant bank and the defendant No. 2,3 and 4 in their personal capacities stood as the guarantors of the credit facilities availed by the defendant No. 1 from the applicant bank and have execuled Guarantee Agreement on 26.0S.2020.

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SIiJs[x.,4+^ OEI6 Presidins Officar DRT. Guwahaii

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The defendant No. 1 availed the credit^{facilities from the applicant bank and} the defendant No. 4 in his^{personal capacities stoodas lhe guarantors of the credit} facilities availed by the defendant^{No. 1 from the applicant bank and have executed} Guarantee Agreement on^{26.05.2020. The defendant No.2 and 3 executed consent} letter dated 26.05.2020.

¶73

The defendant no. 1 approached^{the applicantbank for renewal of the} existing credit facilities^{and sanction of freshworking capital termloan (GECL)by} way of term loan.^{The applicant bank upon considerationof the prayerso made} renewed the existing^{cash creditfacility oI Rs 100 lacs, cash creditfacility under e-} DFS of Rs 300 lacs,^{bank guarantee of Rs 150 lacs and have sanctioned WCTL} (GECL) of Rs 59 lacs thus totaling^{of Rs 6.09 lacs in favour of the defendant no1} vide letter of arrangement^{dated 30.05.2020 executed on 01 06.2020The effective} rate of interest^{in theabove creditfacility (FBWC)willbe 475Voabove EBRwith a} minimum of^{11.80% per annum, effective rate of interest in the creditfacility (under} e-OFS) will be^{0.85% above EBRwith a minimumof7 '90o/oper annum and} effective rate of^{interest in the WCTL(GECL) will be 0 75% aboveEBR witha} minimum of^{7.80% per annum all are rising or falling therewithcalculated on daily} products at monthlY rests.

¶74

Vide resolution^{passedal the board of meetingof directorsof defendant} No.1 held on^{01.06.2020the defendantNo. I company resolvedto obtain advance} to the tune^{of Rs. 6.09crores fromthe applicant bank lt was furtherresolved that} defendant^{No. 2, 3 and 4 would give personalguarantors to the applicant bank lt} was resolved^{that defendantNo. 2 being directorof defendant No 1 would execute} necessary securily^{documentsin favourof the applicantbank'}

¶75

The defendant No l^{availedthe abovecredit facilities from the applicant} bank and^{the defendant No.1 represented by it's the director being defendantNo 2} have executed^{SupplementalAgreement of Loan-cum-Hypothecationdated} Ol.06.2020,^{Agreement by the defendant No'l under Elecironic Dealer Financing} Scheme daled^{01.06.2020,ConsentLetter dated 01 06 2020 executed} by defendant^{No. 2,g& 4 and Omnibus Counter Guarantee dated 01.06 2020The}

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defendant No.^'l availed the credit facilities from the applicant bank and the defendant No. 2 & 3 in their personal capacities stood as the guarantors of the credit facilities availed by the defendant No. 1 from the applicant bank and have executed Guarantee Agreement on 01.06.2020.

¶78

The defendant No. 1 availed the credit facilities from the applicant bank and the defendant No. 4 in his personal capacities stood as the guarantors of the credit facilities availed by the defendant No.^'l from the applicant bank and have executed cuarantee Agreement on 01 .06.2020. The defendant No.2 and 3 executed consent letter dated 01.06.2020. Defendant No.4 also executed consent letter dated 01.06.2020.

¶79

The defendants had availed the credit facilities from the applicant bank but have not paid the outstanding amount as per terms and condition made with the applicant bank in spite of repeated demands and request by the applicant bank. As the loan accounts of defendant no. 1 was running extremely irregular and due to non_ payment of principal amount and interest, the said accounts were classified as a NpA on 31.08.2021. After the accounts became NpA the applicant bank issued notices for repayment of the due amount, but the defendants have neither chosen for repayment of the loan accounts nor renewed the loan accounts availed by them.

¶80

The applicant bank thus became conslrained to Iile the present Original Application for the recovery of Rs. 4,39,72,507.1,1 (Rupoes Four Cror6 Thirty Thres Lakhs Seventy Two Thouaands Five Hundred Seven and paisa Seventy Ono) only as on 14.12.202'l along with interest and cost of the application.

¶81

After filing of the OA the Tribunal issued notices upon the defendants through registered post and the applicant bank filed service report on 1}-OS_2O22 and brought on record the postal receipts along with track consignment report which shows that notices have not been served upon the defendants. Thereafter the Tribunar ordered paper publication of notice upon the defendants and the applicant bank issued notice to the defendants on 06.08.2022 through paper publication in four newspapers namely "Iha nmes of lndia", "Dainik Assam", "Sisti Mail" and,spastha Aawaz". Even after issuance of notice through paper publication also there was no representation on

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sli, ,r"",o,nn O#d, DRT, Guwahali

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10 OA 2no?2'oRl-Guwahali

¶84

behalf of the defendants either by the counsel or the^person and hence the defendants were set ex-parte on 16-09-2022 and their right to file written statement cum evidence on affidavit was closed and the mafter was^posted for hearing on behalf of the applicant bank.

¶85

Supporting the claim of the applicant bank Sri Nijananda Badir, Chief Manager of the Applicant Bank has filed evidence on afiidavit coupled with the security documents marked as Exhibit A-1 to A€1, supporiing the claim of the applicant bank.

¶86

Heard the learned counsel for the applicant bank who^prayed for issuance of Recovery Certiricate against the defendants as per pleadings made in the Application, supported by evidence on affidavit of their witness who affirmed on oath the execution of the security and other documents by the defendants and also execution of their own documents relied upon, which have been marked exhibits.

¶87

Considering the facts and circumstances of the case, I am of the considered view that the documents filed by the applicant bank are supporting the claim of the applicant bank and establishing the liability of the defendants. tt is proved that the defendants are^jointly and severally liable to pay to the applicant bank the claim made in the Original Application. The loan was obtained and documents have been executed on 28.08.2013, 29.08.2013, 04.03.2016, 23.09.2016, O2.06.2017, 12.02.2019, 21.10.20'19, 26.05.2020 & 01.06.2020, the account became NpA on 31.08.2021 and the OA has been filed on ZS.O,|.2O22. Hence, the OA is flled well within the period of rimitation and this Tribunar having a jurisdiclion to adjudicate the Original Appllcation.

¶88

Considering the unchallenged/unrebutted version of Sd Niiananda Badir, the applicant's witness and all the documents marked as exhibits, including duly certified copy of the three statement of accounts along with interest calculation sheet maintained by the applicant Bank in it,s regular course of business, I hold that the applicant is entitled to get the Recovery Certificate as prayed for.

¶89

ln the result, the present Original Application No.22 ot 2022 is allowed with cost as under :-

¶90

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O.A 22n022DR7 -Gv*.nali

¶92

i) The defendants No. 1,2,3 & 4 are^jointly and severally liable to pay to the applicant bank a sum of tu. 4,33,72,507.71 (Rupees Four Crore Thirty Three Lakhs Seventy Two Thousands Five Hundred Soven and Paisa Seventy One) only with^pendentelite and future interest @7.90% p.a. with monthly rests from 15.12.2021 till the date of full paymenurealization and also cost of the application.

¶93

ii) The charge of the certificated amount be kept alive on hypothecated properties as described in Schedule-A of the OA till the amount is realized in full.

¶94

iiD The applicant bank is entitled to proceed against the secured ilems towards recovery of the debls.

¶95

iv) The applicant bank is also entitled to proceed against the personal assets and properties of the defendants towards recovery of the dues.

¶96

v) The applicant bank is entitled to the costs of the O.A. which inctudes the advocate fees of lhe applicant bank. Applicani is directed to file the cost memo within 2 weeks from today.

¶97

vD lssue Recovery Certificate accordingly for a sum fu. Rs. 4,33,72,507.71 (Rupe€ Four Crore Thirty Three Lakh Seventy Two Thous.nds Five Hundred SevEn and^paiaa Seventy One) only in favour of the applicant bank against the defendants No.^,1,2,3 & 4.

¶98

vii) Communicate copy of this order to tha concemed parties.

¶99

This order is dictated and conected by the undersigned.

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Judgment dated Bh August' 2023, signed and pronounced in the Tribunar

¶101

today under my signature.

¶102

Copy of the JudgmenuFinat Order be uploaded in the Tribunal,s Website and

¶103

file be consigned to Record Room.

¶104

Shn d"o,g," $-)", 0dtgl-t f (srriv srrarafd[u"6]1 - U presiding Officer., DRT, Guwahati.

State Bank of India v. Shree Automobiles Private Limited

Case brief

What is this about?

What did the court decide?

State Bank of India v. Shree Automobiles Private Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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