Allowed

State Bank of India v. Macrocosm Infrastructure & Power Pvt. Ltd.

DRT28 Jul 2023TA/77/2023

Case brief

AI extract

What is this about?

The Tribunal allowed the Transfer Original Application filed by State Bank of India for recovery of outstanding dues under the SARFAESI Act. The court directed respondents to jointly and severally pay the balance amount with interest and recover it from hypothecated or mortgaged assets.

What did the court decide?

Direction to defendants to pay balance amount of Rs. 72,78,25,210.93 with 16.50% p.a. interest and issue recovery certificate.

State Bank of India versus Macrocosm Infrastructure & Power… — Banking and Recovery | DRT (2023)

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TOA 77 of 2023

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Registered on:- 09/07/2014

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Decided on:-28/07/2023

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IN THE DEBT RECOVERY TRIBUNAL-I AT MUMBAI TRANSFER ORIGINAL APPLICATION NO. 77 of 2023

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STATE BANK OF INDIA

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A Banking company constituted under the State Bank of India Act, 1955, and having its Corporate Centre at State Bank Bhavan, Madam Cama Road, Nariman Point, Mumbai 400021 and one of its branches named Stressed Asset Management Branch at “The Arcade”, 2^nd Floor, World Trade Centre, Cuffe Parade, Colaba, Mumbai 400005, through its Chief Manager Mr. Sanjay T. Gawhale.

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…Applicant Bank

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VERSUS

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1. MACROCOSM INFRASTRUCTURE & POWER PVT. LTD.

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A Company incorporated and registered under Companies Act, 1956 and having its Registered Office at 401, 4^th Floor, Wellington Business Park I, Andheri Kurla Road, Marol, Andheri (East), Mumbai 400059 and another officer at 804, 8^th Floor, Maker V Jamnalal Bajaj Marg, Nariman Point, Mumbai 400021.

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2. MR. HRISHIKESH SHAH,

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Adult, Indian Inhabitant residing at Anjali, 2^nd Floor, Plot no. 18, Gulmohar Road, JVPD, Vile Parle (W), Mumbai 400049

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TOA 77 of 2023

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3. MR. JAY KISHAN SHAH Adult, Indian Inhabitant residing at Anjali, 2^nd Floor, Plot no. 18, Gulmohar Road, JVPD, Vile Parle (W), Mumbai 400049

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4. MACROCOSM INDUSTRIES PVT. LTD. A Company incorporated and registered under Companies Act, 1956 and having its Registered Office at 401, 4^th Floor, Wellington Business Park I, Andheri Kurla Road, Marol, Andheri (East), Mumbai 400059 and another officer at 804, 8^th Floor, Maker V Jamnalal Bajaj Marg, Nariman Point, Mumbai 400021.

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5. MACROCOSM METALS AND ENERGY PVT. LTD.

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A Company incorporated and registered under Companies Act, 1956 and having its Registered Office at 401, 4^th Floor, Wellington Business Park I, Andheri Kurla Road, Marol, Andheri (East), Mumbai 400059 and another officer at 804, 8^th Floor, Maker V Jamnalal Bajaj Marg, Nariman Point, Mumbai 400021.

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6. MACROCOSM METALLOYS PVT. LTD. A Company incorporated and registered under Companies Act, 1956 and having its Registered Office at 401, 4^th Floor, Wellington Business Park I, Andheri Kurla Road, Marol, Andheri (East), Mumbai 400059 and another officer at 804, 8^th Floor, Maker V Jamnalal Bajaj Marg, Nariman Point, Mumbai 400021.

…Defendants

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TOA 77 of 2023

Counsel for the Applicant : Advocate P. Kumar N i/b. Prakash P. & Co.

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Counsel for the Defendants : None

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J U D G M E N T

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The Original Application (O.A.) has been filed by the Applicant Bank against the Defendants before the Ld. DRT-II, Mumbai, for recovery of Rs.76,11,75,210.93 (Rupees Seventy Six Crore Eleven Lakh Seventy Five Thousand Two Hundred Ten and Paise Ninety Three Only) together with further interest at the rate of 2.70% per annum above SBI base rate (presently 12.70% p.a.) for Cash Credit Limits and 2.85% above SBI base rate (presently 12.85%p.a.) for Term Loan facility with monthly rests from the date of filing of the Application till full payment and/or realization. After the change of jurisdiction, the same was transferred to this Tribunal from DRT-II, Mumbai and registered as T.A. No. 77/2023.

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Facts as succinctly set out in the O.A./T.A. are that the Defendant No.1 is the Borrower and Defendant No.2 & 3 are the Guarantors as well as Mortgagers, Defendant no. 4 and 5 are the Corporate Guarantors as well as Mortgagers and the Defendant No. 6 is the Guarantor for due repayment of the debt and payable by the Defendant No.1 Borrower to the Applicant. It is stated that that in or about September, 2009, the Applicant, at the request of Defendants, sanctioned and granted the Credit Facilities of

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Page 3 of 9

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TOA 77 of 2023

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Rs.65.00 Crores to the Defendant No.1 vide Sanction Letter dated 17.06.2010 which was renewed on 05.07.2011 and lastly on 11.04.2012.

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In order to secure the repayment of the said facility, the Defendants executed the various loaning and security documents on 31.07.2010 which includes Agreement of Loan for Overall Limit; Agreement of Hypothecation of Goods and Assets; Deed of Guarantee for Overall Limit; Undertaking dated 31.07.2010 and Letter regarding the Grant of Individual Limits within the overall limit etc.

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In order to further secure the said loan facility, the Defendant No.1 hypothecated its movable assets and current assets (described in Annexure “A” of OA, in favour of the Applicant and also created first mortgage/charge on its immoveable properties as a security for repayment of the said credit facility. The details of the properties are as under :

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(a) Plot No. 104, Hissa No.10b, Survey No. 54, Hissa No.1A at village Savroil, Taluka -Khalapur, Dist. Raigad mortgaged by the Defendant No.1 (Annexure “A-1” of OA).

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(b) Flat No.501, 5^th Floor, Kumkum Kavita Co-op. HSG Society Limited, Plot No. 188, CTS No. 5746, TPS III, Ratilal B. Mehta Road, Ghatkopar (East), Mumbai 400077, admeasuring area 84.08 sq.fts. mortgaged by the Defendant No.2 and 3 (Annexure “A-2” of OA ) ( Sold by the Applicant through e- auction on 15.12.2017 as set out in the Applicant’s Affidavit of Revised Claim dated 29^th March 2022) ;

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Page 4 of 9

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TOA 77 of 2023

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(c) Land at Survey No.58, Hissa No.3 admeasuring 1 Hectare 43 Acre 90 Prati, situated at Village Lodhiwali, Taluka Khalapur, Dist. And Registration District Raigad., mortgaged by the Defendant no.4(Annexure “A-3” of OA).

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(d) Land at Survey No.58, Hissa No.4 admeasuring 1 Hectare 24 Acres 1 Prati, situated at Village Lodhiwali, Taluka Khalapur, District and Registration District Raigad, mortgaged by the Defendant No. 4 (Annexure “A-4” to OA).

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(e) Land at Survey No.58, Hissa No.12 admeasuring 0 Hectare 42 Acre 0 Prati, situated at Village Lodhiwali, Taluka Khalapur, District and Registration District Raigad, mortgaged by the Defendant No. 4 (Annexure “A-5” to OA).

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(f) Land at Survey No.60, Hissa No.0 admeasuring 0 Hectare 68 Acres 0 Prati, situated at Village Lodhiwali, Taluka Khalapur, District and Registration District Raigad, mortgaged by the Defendant No. 4 (Annexure “A-6” to OA).

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(g) Land at Survey No.51, Hissa No.3 at Village Wadawal, Taluka Khalapur, Dist. Raigad, admeasuring 0 Hectare 47 Acre 0 prati mortgaged by the Defendant No.4 (Annexure “A-7” to OA).

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(h) Plots of land bearing Survey Nos. 69,70,75,76,77,78,81 & 82 situated at Mahalaxmi Industrial Estate, Sanand, Viramgam Highway, Taluka Sanand, District and Registration District Ahemedabad, Gujarat, mortgaged by the Defendant no.5 (Annexure “A-8” of OA).

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It is further stated that the Defendants signed Revival Letter dated 23.05.2012 thereby acknowledged liability in respect of the said credit facilities.

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However, the Defendants failed to adhere the financial discipline and neglected to make the payment of the dues thus, the account

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Page 5 of 9

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TOA 77 of 2023

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of the Defendant No.1 became irregular and the same was classified as Non Performing Assets (NPA) on 14.11.2012. Thereafter, the Applicant issued various letters and reminders to the Defendants and also issued notice under Section 13(2) of the SARFAESI Act, 2020 dated 10.10.2013 called upon the Defendants to make the payment of the outstanding dues but they failed to pay the dues. Hence, the present OA has been filed.

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Notices were issued to the Defendants, they put their appearance through counsel and filed the written statement however, no CAOD has been filed by the Defendants thus, their right to file the CAOD was closed vide order dated 19.05.2016.

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The Applicant Bank has produced all the Original Loan Documents and other relevant documents along with their Claim Affidavit filed on 12.02.2016 through Chief Manager, Mr. Sanjay T. Gawhale.

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I have heard the Ld. Counsel for the Applicant Bank and perused the record. None appeared on behalf of the Defendants since 28.10.2022

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Since the Defendants failed to prove the allegations made in the written statement, further despite opportunities failed to appear before this Tribunal to argue the matter, therefore, the WS filed by the Defendants is not being considered.

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TOA 77 of 2023

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Record reveals that during the pendency of the OA, Ld. Counsel for the Applicant has informed that the Applicant has sold one of the mortgaged properties i.e. Flat No.501, 5^th Floor, Kumkum Kavita Co-op. HSG Society Limited, Plot No. 188, CTS No. 5746, TPS III, Ratilal B. Mehta Road, Ghatkopar (East), Mumbai 400077, admeasuring area 84.08 sq.fts. mortgaged and owned by the Defendant No.2 and 3 (Annexure “A-2” of OA), through e-auction on 15.12.2017 and recovered a sum of Rs.3,33,50,000/-.

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12. It is also informed by the Applicant that the the claim of the Applicant as follows:	Applicant has realized
(i) DCC (Stock & Book Debts Facility) A/c No.31488720852	Amount
Principal outstanding	Rs.36,15,91,868.00
Add; Interest due from 01.09.2012 to 24.06.2014	Rs. 9,32,60,826.83
Total (i)	Rs.45,48,52,694.83
(ii) Term Loan Facility A/c No. 31299538763
Principal outstanding	Rs.23,49,90,240.00
Add; Interest due from 23.08.1993 to 10.06.2014	Rs. 7,13,32,276.10
Total (ii)	Rs.30,63,22,516.10
Total (i) + Total (ii)	Rs.76,11,75,210.93

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Page 7 of 9

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TOA 77 of 2023

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Less; Amount received/realized from Rs. 3,33,50,000.00 20.03.2015 to 31.07.2019: Balance Amount Rs.72,78,25,210.93

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The witness of the Applicant Bank has fully corroborated the averments made in the OA. Even otherwise the whole case of the Applicant Bank is based on documents and the witness has duly proved all these documents as against the defendants. In my view there is no question of disbelieving the evidence led by the Applicant Bank and the Applicant Bank has proved its case beyond reasonable doubt. The liability of the Defendant No. 1 to 6 is joint and several.

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In the light of above discussions, the Original Application filed by the Applicant Bank deserves to be allowed against the defendant No.1 to 6.

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O R D E R

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(i) I allow this OA and direct the Defendant No.1 to 6 to pay to the Applicant, jointly and severally, within a period of 60 days, a sum of Rs.72,78,25,210.93 (Rupees Seventy Two Crores Seventy Eight Lakh Twenty Five Thousand Two Hundred Ten and Paise Ninety Three only) together with further interest at the rate of 16.50% p.a. from the date of filing of the present OA till its realization .

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(ii) Failing which the aforesaid amount shall be recovered from the sale of hypothecated assets, mortgaged properties as well as other personal and moveable assets of these Defendants.

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(iii) Defendants are hereby directed not to deal with their properties till further direction of Ld. Recovery Officer.

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(iv) Defendant shall also pay the cost and expenses of the OA.

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(v) Recovery Certificate be issued forthwith and be sent to the Recovery Officer of this Tribunal

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Copy of this order be sent to the parties as per rules.

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File be consigned to record.

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Place: Mumbai. (Dr. Rekha G. Dhakar) Date : 28.07.2023 Presiding Officer, DRT-1, Mumbai.

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State Bank of India v. Macrocosm Infrastructure & Power Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

State Bank of India v. Macrocosm Infrastructure & Power Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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