Quashed

Transons Overseas India Pvt. Limited v. Punjab National Bank

DRT11 Jul 2023SA/655/2022

Case brief

AI extract

What is this about?

The DRT quashed a Demand Notice issued under SARFAESI Act as it failed to provide a detailed bifurcation of the outstanding debt, violating statutory requirements and Gujarat High Court directions. The court also set aside recovery proceedings due to the absence of a mandatory registered mortgage deed, despite an equitable mortgage by deposit of title deeds.

What did the court decide?

The Demand Notice dated 21.06.2022 and all subsequent proceedings initiated thereunder were quashed and set aside.

Transons Overseas India Pvt. Limited versus Punjab National Bank — Banking and Recovery | DRT (2023)

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA

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SA No.- 655/2022

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1. Transons Overseas (India) Pvt. Ltd. having its Work and Registered Office at Industrial Plot Nos. F-182, F-183, Matsya Industrial Area, MIA, Alwar-301030, Rajasthan through director Pawan Kumar Jain S/o (Late)Sh. MC Jain, resident of plot no. 3/9, Aravali Vihar, Kala Kuan Housing Board, Alwar-301001.

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2. Newai Electricals Private Limited , Industrial Plot Nos. F-182, F-183, Matsya Industrial Area, MIA, Alwar-301030, Rajasthan through director Pawan Kumar Jain S/o (Late)Sh. MC Jain, resident of plot no. 3/9, Aravali Vihar, Kala Kuan Housing Board, Alwar-301001.

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.........Applicant

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Versus

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Punjab National Bank , having its Head Office at Plot no. 04, Sector 10, Dwarka, New Delhi-110075, Regional Office at 2, Nehru Place, Tonk Road, Jaipur, Rajasthan-302015 and branch office at Mid corporation Centre, 1st Floor, Manu Marg, Alwar, through its Authorized officer.

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Rajasthan State Industrial Development & Investment Corporation Limited (RIICO) , having its Registered office at DIC, Moti Doongri Road, Alwar-301001 through Managing Director/Chairman.

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........Respondents

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Present:-

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Smt. Suruchi Kasliwal Multani & Smt. Arti Sharma, Counsel for the Applicant

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Sh. B C Jain, Counsel for the Respondent Bank

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(Final Order) (11.07.2023)

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This SA was filed by the SA applicants on 07.10.2022 and vide order dated 15.12.2022, passed by this Tribunal on IA no.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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2011/2022 and IA no. 2089/2022, filed by the applicant with a prayer to quash and set aside Auction Notice dated 09.11.2023, through which auction of subject mortgaged properties was fixed on 16.12.2022, was quashed and set aside.

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As another Auction Notice was issued on 17.12.2022 and auction for Industrial Land & Building at Plot no. F-181, (i.e. subject property) was scheduled on 24.01.2023.p

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SA applicant being aggrieved by the said auction notice and IA no. 122/2023 was filed, and vide order dated 24.01.2023 following order was passed:-

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In the reply, it is also admitted by Respondent Bank, that they are not going to auction “Plant & Machinery”, so installed. Therefore, I am of the view that the Auction can be allowed but confirmation of sale, shall remain stayed, as the SA applicant is entitled to take out/remove, all the unhypothecated Plant & Machinery and Sheds, installed at three plots.

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Accordingly, the SA applicant is directed to file a plan, stating therein, that in how much time, the applicant can taken out entire unhypothecated movable assets, including Plant & Machinery and Sheds, etc. from all three plots, so that the Respondent bank can auction the only mortgaged/unhypothecated (if any) property, within 2 weeks time.

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Put up for compliance on 16.02.2023.

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Auction and its validity, shall remain subject to outcome of final disposal of this SA. As the issue of removal of Plant & Machinery and Sheds, is involved, so the Respondent bank, is directed to not to take possession of the subject properties, till all the unhypothecated, movable assets, goods, sheds and Plant & Machinery, etc. is taken out by the SA applicant.

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In compliance of said order “unhypothecated movable assets, goods, sheds, plant & machinery was removed by SA applicant.

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Vide order dated 22.02.2023 Auction Notice dated 30.01.2023 was quashed and set aside.

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On 24.04.2023, Ld. counsel for the respondent bank filed copy of order dated 11.04.2023 passed by Hon‟ble DRAT, Delhi in Misc. Appeal no. 56/2023 and vide order dated 11.04.2023

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Hon‟ble DRAT, Delhi directed this Tribunal to decide this SA, in accordance with law as expeditiously as possible within three months time and said order was communicated to this Tribunal on 24.04.2023.

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Amended SA was also filed and on 05.07.2023, Ld. counsel for the applicant filed copy of letter dated 17.10.213 issued by RIICO in favor of Chief Manager of Punjab National Bank, MIA, Alwar with regard to „No Objection‟ with regard to creation of mortgage of plot at F-181 & F-182, MIA, Alwar.

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Ld. counsel for the SA applicant raised following issues, while challenging the actions initiated by respondent bank.

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a) The Demand Notice dated 21.06.2022 (Annexure-2) do not have complete detailed bifurcation of outstanding amount, interest, penalty interest, charges and rate of interest because as total outstanding amount as on 18.05.2022+ further interest + charges thereon w.e.f. 01.05.2022, in three loan accounts is mentioned for Rs. 145654368/- and this is against the directive issued by Hon‟ble Gujrat High Court in the matter of Gujrat High Court in the matter of M/s Mithilanchal Industries Pvt. Vs Punjab National Bank decided on 17.08.2020.

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b) Mortgage Deed for the mortgaged properties was not got executed by the Respondent Bank whereas they were required to got execute mortgage Deed in the light of letter dated 17.10.2013, issued by RIICO, so the respondent bank, is not entitled to initiate any action on the secured assets.

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c) Name of one of the guarantor Mr. Mohnish Jain is wrongly mentioned as Mrs. Mohnish Jain.

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Ld. counsel for the respondent bank took preliminary objection that the SA is not as per proper format of SA to be filed by a Tenant/ lessee because, in the SA, the SA applicant claimed himself as a Tenant/ lessee on the subject properties so mortgaged.

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Ld. Counsel also argued and took preliminary objection that when this SA was filed, at the same time a Civil Suit filed by the SA applicant was pending before Civil Court. The prayer of this

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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SA and as made in the said Civil Suit are same, so this SA is required to be dismissed because nobody can approach two forums with the same prayer and relief. Based on these two objections, Ld. Counsel for the bank argued that SA is not maintainable.

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To counter other arguments Ld. Counsel for the respondent bank argued that the Demand Notice have details of outstanding amount and so there is nothing illegal in it.

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With regard to issue of mortgage, it was argued by Ld. Counsel for the respondent bank that earlier the Plots were in the name of M/s Kotsons Electricals Pvt. Ltd, a Sale Deed was executed by this firm in favour of present SA applicant firm, as detailed in letter dt. 17.10.2019, issued by RIICO and so there was no need of creation of Mortgage Deed as an equitable mortgage was created by the bank in order to secure the credit facility.

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Heard arguments and perused the record.

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Though the SA applicant took objections with regard to name of borrowers as Mrs/Mr, details of Property i.e. plot No. 182-183 instead of plot No. 182 & 183 and in my considered opinion these objections are technical objections, which are not required any consideration, further these objections are not such an important objections on the basis of which actions initiated by the bank, can be held illegal.

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So far as the issue of preliminary objections, are concerned. I am of the view, that the SA applicant claimed themselves as a Lessee/Tenant, but it is also a fact that as claimed by the bank equitable mortgage was created over the subject mortgaged properties, so this issue is not such an important issue, which can be sufficient to hold that the SA is not maintainable.

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Preliminary objection with regard to filing of Civil Suit, it was argued and submitted by Ld. Counsel for the SA applicant that said Civil Suit, though it was filed was

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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withdrew and as no relief was granted by Ld. Civil Court. So, the SA is maintainable as Civil Suit stands withdrawn.

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So, considering above said discussion Preliminary objections are rejected.

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After perusal of entire record two main issues/points are required to be heard and decided:-

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(1) Whether the Demand Notice dt. 21.06.2022 is having detailed bifurcation of outstanding amount and is a legally sustainable document in the light of Section 13(2) of the Act of 2002 and as per directions issued by Hon‟ble Gujrat High Court, in the matter of M/s Mithilanchal Industries?

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(2) Whether, the bank is entitled to create their Security Interest on the subject mortgaged properties, without creation of a mortgage deed?

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(3) Whether the account was declared on NPA as per norms? 18. Issue/Point No. 1 and 3

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The Demand Notice dt. 21.06.2022, is at Annexure. A-2 running in two pages only and along with the reply to SA/amended SA, statement of account is filed at Annexure. R/1.

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Table, which is at Page No. 1 of the Demand Notice is being reproduced here as under, in order to clarify that how the bank has decided the outstanding amount:-

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Reg: 0977008700002837 (Cash Credit), 097700IL00000132 (Working capital Term loan), 097700PD00000184 (CECF) and credit facilities availed by M/s TRANSONS OVERSEAS (INDIA) PVT LTD Directors : Mr. Mohnish Jain s/o Pawan Kumar Jain s/o Malook Chand Jain.

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You M/s Transons Overseas (India) Pvt. Ltd., Directors : Mr. Mohnish Jain s/o Pawan Kumar Jain, Mr. Pawan Kumar Jain, s/o Malook Chand Jain have availed the following credit facilities:-

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*Sr.* *No.*	*Account no.*	*Facility*	*Total outstanding amount (as on 18.05.2022) + future* *interest+ charges thereon w.e.f 01.05.2022.*
1	0977008700002837	CC	Rs.14,56,54,368.31 (Rupees Fourteen crore fifty six lac fifty four thousand three hundred sixty eightpaisa thirty one only)
2	097700IL00000132	WCTL	Rs. 1,07,03,482.20(One crore seven lac three thousand four hundred eighty twopaisa twenty only)

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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3 097700PD00000184	CECF	Rs. 30,70,215.00 (Thirty lac seventy thousand two hundred fifteen only)
*TOTAL*		*Rs. 15,94,28,065.51 ( Rupees Fifteen crore Ninety four lac*
		*Twenty eight thousand Sixty five paisa fifty one only)*

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Due to non payment of interest and installment of principal and continue

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irregularities in the account for a period of more than ninety days the account/s has/have been classified as Non Performing Asset on 29.09.2021 as per Reserve Bank of India guidelines. We have demanded/ re called the entire outstanding together with interest and other charges due under the above facilities, vide letter dated 18.05.2022.

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The amount due to the Bank as on 18.05.2022 is Rs. 15,94,28,065.51(Rupees Fifteen crore Ninety four lac Twenty eight thousand Sixty five paisa fifty one only) with further interest and charges expenses including payment of BG w.e.f. 01.05.2022 until payment in full (hereinafter referred to as “secured debts”).

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So, from the above said table, it is clear that bank has mentioned total outstanding amount as on 18.05.2022 in all three Loan Accounts, without informing the rate of interest, without giving any details that how the bank reached on the figure stated to be outstanding.

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It is also claimed below the table that as there was continue irregularities in the account for a period of 90 days, so accounts was classified as NPA.

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In this regard, Ld. Counsel for the applicant referred Page No. 85 of the statement of account (Annexure. R-1) for Account No. 09770087002837 and argued that on 03.09.2021, there are two credit entries of Rs. 1188797/and Rs. 2476355/- on 18.09.2021, there is a credit Entry of Rs. 2599076/- and on 28.09.2021, there is a Credit Entry of Rs. 6575497/-, so it‟s not a matter where there was a continuous default of 90 days before the declaration of account as NPA. i.e. on 25.09.2021 and so it was forcefully objected by Ld. Counsel for the SA applicant that the Demand Notice is completely having illegal demand, which do not have any bifurcation of outstanding amount and on the account was declared as NPA, illegally. So, Demand

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Notice dt. 21.06.2022 and further all proceedings initiated by the bank are required to be quashed and set aside.

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The above said objections were taken by the SA applicant in Para No. 5.2 and 5.3 of the SA.

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In reply to SA, the bank stated that “As far as question of calculation is concerned, it is submitted that bank have already filed one OA before this Hon‟ble Tribunal and notice of the said OA along with paper book duly served upon the SA applicants and in the said paper book duly served upon the SA applicant all relevant loan documents, statement of account, calculation of dues, rate of interest applied in the account from time to time was dully supplied and they are

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possessing all required documents.”

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25. So, above is the reply given by the bank against the objection taken by SA applicant and it is clear that the bank instead of giving break up, based on the statement of accounts, of all three loan accounts, is of the opinion that the SA applicant should have calculated the outstanding amount as per statement of account stands provided, in Original Application filed by them.

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Therefore, it is clear that the bank instead of giving a legally sustainable reply to the said objections left the issue up to this Tribunal to calculate and decide the outstanding amount.

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27. Once again, Demand Notice dt. 21.06.2022 is perused and I am of the considered view that this notice even does not contains the amounts so sanctioned against three credit facilities.

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As per said Demand Notice dt. 21.06.2022, date of account as NPA is 29.09.2021 and as claimed as outstanding, is on 18.05.2022, i.e. after about seven and half month time. It is also not clear that if the account was declared as NPA on 29.09.2021, then why the bank caused delay in issuing Demand Notice, as the same was issued on 21.06.2022.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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It is also important to mention here that the bank provided statement of account of all three accounts only up to 31.12.2021 only, so on what basis demand of NPA, as alleged by SA applicant, it is clear that account was declared as NPA on 29.09.2021, claiming that the account was irregular for a period of 90 days but from the statement of Account No. 2837 and stated by Ld. Counsel for the applicant, there are entries of Rs. 11,88,797/-, Rs. 24,76,355/on 03.09.2021, for Rs. 65,75,497/on 28.09.2021 and so it is not a matter, where there was a continuous default of 90 days.

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Similar is the situation with Account No. 0132, in which there are two credit entries for Rs. 5,22,460/- on 30.06.2021 and for Rs. 293787/- on 27.07.2021.

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31.Perusal of all three statement of account: filed at Annexure. R/1, following amount is shown as on 31.12.2021.

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(1). Account No. 2837 Rs. 3,97,96,155/-. (2). Account No. 0132 Rs. 01,04,43,580/-. (3). Account No. 0184 Rs. 29,94,686/-. 32. But, in Demand Notice dt. 21.06.2022 amount as outstanding on 18.05.2022, is as under:-

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(1). Account No. 2837 Rs. 14,56,54,368/-. (2). Account No. 0132 Rs. 01,07,03,482/-. (3). Account No. 0184 Rs. 30,70,215/-.

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The figures as mentioned in Demand Notice dt. 21.06.2022 are not supported with statement of accounts, filed by the respondent bank at Page No. 97, 98 & 99 showing outstanding amount due as on 15.06.2022 but, even if the amount so mentioned in these pages are claimed as due but again these statements do not have detailed bifurcation of outstanding amount.

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In my considered opinion, the amount so sanctioned and so outstanding could have been mentioned in the Demand

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Notice in the light of provision as contained in Section 13(3) of the Act of 2002 as well as in the light of directions issued by Hon‟ble Gujrat High Court, in the matter of Mithilanchal Industries, which was passed in the matter of respondent bank only and it seems that the Respondent bank failed to adhere clear cut direction issued; by Hon‟ble Gujrat High court in most of the cases like in this case also, the bank failed to give details of even sanctioned amount and of course failed to give bifurcation of total aggregate amount.

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The amount, so claimed as outstanding as on 10.05.2022, do not have any kind of bifurcation of outstanding amount, the respondent bank failed to prove such demand even on the basis of statement of account, so filed at Annexure. R/1 and so, in my considered opinion the Demand Notice (Annexure-1) is not a valid and legal document and is quashed and is set aside.

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36. Issue/Point No. 2

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This was claimed by the bank that the SA applicant is Lessee of the Plots in question and Lessor in RIICO. As per record, and as argued by Ld. Counsel for the bank equitable mortgage was created by deposit of Title Deeds of the Plots in question but Ld. Counsel for the Applicant took objection in the light of letter dated 17.10.2013 giving NOC, for creation of Mortgage Deed and she referred following paras, which are reproduced here as under for more clarity:-

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This office has no objection in case your financial institution decided to extend financial facilities to M/s P & M Transformer & Electrical Pvt. Ltd. Plot no. F-182-183 MIA Alwar by creating equitable mortgaged after depositing the original lease deed of the firm.

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The original Sale deed & lease deed is seek to you for creating of equitable mortgage with the condition that a specific clause will be provided in the mortgage deed of your institution (financial Institution) that on breach of any of the condition of these presents (Lease Agreement) shall be treated as a breach of conditions of your mortgage deed. The mortgage is allowed subject to the various provisions applicable for financial institution as mentioned in the original lease deed.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Kindly note that demise property should not be transferred by any way like change in share holding or change in partnership without prior/ written consent of the RIICO. In such case the Financial Institution shall be responsible for any Loss/ Recovery of the corporation.

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A copy of mortgage deed may please be sent to us within a period of one month positively. The original Sale Deed & lease deed may be return to this office after clearance of charge over Assets.

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The objection with regard to mortgage of subject mortgaged property is taken by SA applicant in Para No. 2(3) (page no. 34 and 35 of the SA) and the SA applicant took specific objection in these paras that even as per Title Search Report dated 28.12.2016 obtained by the bank from their own panel lawyer, the bank was required to be mortgaged as per terms & conditions of the lease Agreement with the prior permission of the RIICO, Title Search Report is at Annexure-7.

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Based on the grounds as mentioned herein above Ld. Counsel for the applicant took objections that as the Respondent bank failed to create/ execute “Mortgage Deed” and so they cannot be allowed to proceed ahead for recovery of amount by enforcing their right only on the basis of title deed and by creating equitable mortgaged. It was also argued on behalf of the SA Applicant that for want of mortgage deed, the respondent bank is not entitled to exercise any right under the provisions of SARFAESI Act of 2002.

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In reply to this objection filed by the bank in Para XII (page no.8) it is admitted that “mortgaged in the present matter is equitable mortgaged by deposited the title deeds and as per law there is no necessity of registration of equitable mortgage”.

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40.From the above admission only, it is clear that there is no mortgage deed executed between the SA applicant and the bank and further it is also clear that equitable mortgaged is not registered.

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10*

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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ld. counsel for the bank referred contents of Lease Deed issued by RIICO (page no. 85) and argued that in the light of this lease Deed lessee (SA applicant) can create mortgage of the property in favor of bank or financial institutions and in that case charge of RIICO will rank II and so it is clear that on account of deposit of title deeds with the bank, first charge will be of the bank and second charge will be of the RIICO. In reply it is also admitted and claimed if inspite of such clear provision in the lease deed, if the penal lawyer have gave opinion for permission same is not correct and mortgaged created by the SA applicant in favor of the defendant bank in legal valid and fully enforceable.

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42. It is not clear that what exactly bank wants to say and it seems that they have held liability on the part of their Penal Lawyer and his opinion.

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43. At page no. 9, it is also admitted that “where mortgaged is created by deposit of title deeds, then a formal mortgaged Deed is not required and there is also no necessity of registration of mortgaged deed.”

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Based on abovesaid fact, as admitted by bank, it is clear that there is no mortgage deed executed between the SA applicant and the bank.

¶121

In order to clarify the need of a mortgage deed clause no. 1(c) which reads as under, is very much necessary and the same is reproduced here as under for more clarity:-

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Provided further that in case the Lessee creates charge in favor of the State Government or Industrial Finance Corporation of India or Rajasthan Financial Corporation or scheduled Banks for any development loan taken by him/ it on the security of the premises hereby demised and the building and machineries built upon or affixed thereto, the first charge of the Lessor shall rank Second to the charge of the State Government or Industrial Finance corporation of India or Rajasthan Financial Corporation I.D.B.I. or I.C.I.C.I., LIC or Scheduled Banks provided the State Banks provided the State Government or Industrial Finance

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11*

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Corporation of India or Rajasthan Financial Corporation or Scheduled Banks keep a specific clause in their mortgage deed that breach of any of the conditions of these presents (lease deed) shall be treated as a breach of the conditions of their mortgage deed.

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From perusal of above said provisions, it is clear that execution of mortgage deed was a mandatory provisions of lease deed/ agreement and as discussed herein above and as admitted in the reply, it is clear that the bank relied upon the opinion given by their Panel Lawyer instead of following the terms & conditions of the Lease Deed, whereas Panel Lawyer, also advised to execute “mortgage Deed”.

¶128

In totality, the fact is that the bank is claiming their right as “secured assets” at the subject mortgaged properties only on the basis of deposit of title deed, there is no mortgage deed, equitable mortgage is not registered and therefore, in my opinion it would be difficult for the respondent bank to enforce their right because along with the reply to the SA, the bank failed to file on record any “Mortgage Deed” including any instrument showing creation of Mortgage deed, in the terms of Lease Deed. The bank may have such an agreement, instrument or any other document or arrangement under which security interest was created in their favor by on the basis of documents so filed and as admitted in the reply to SA it is clear that there is no Mortgage Deed as well as no registered equitable mortgage, whereas as per letter issued by RIICO on 17.10.2013, the bank was required to execute a mortgage deed.

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Therefore, the Demand Notice, which do not have details of outstanding amount and detailed bifurcation of outstanding amount is quashed and set aside in the light of provisions as contained under Section 13(3) of SARFAESI Act as well as directives issued by Hon’ble Gujrat High Court in the matter of Mittilanchal Industries .

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12*

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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It is necessary to point out that in the order of Hon‟ble Gujrat High Court, the bank as a secured creditor was Punjab National Bank and despite said directions issued by Hon‟ble Gujrat High Court, the same bank through their Authorized officers are committing same mistake while issuing demand notice, which of course become a matter of challenge by a defaulter. Therefore, the Authorized officers of the bank are required to adhere the guidelines issued by Hon‟ble Gujrat High Court in letter in spirit.

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Needless to say the bank is at liberty to proceed ahead by taking actions but strictly as per mandatory of law.

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Copy of the order be given free to the concerned parties.

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File be placed before the Registrar for compliance after compliance file be consigned to record, as per rules.

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(VIVEK SAXENA) Presiding Officer DRT, Jaipur

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13*

Transons Overseas India Pvt. Limited v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

Transons Overseas India Pvt. Limited v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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