Allowed

Punjab National Bank v. Sh. Shiv Kumar Bagolia and Others

DRT3 Feb 2024OA/1246/2022

Case brief

AI extract

What is this about?

DRT allowed the applicant bank's original application for recovery of Rs. 26.31 Cr against guarantors and mortgagors, adjudging liability and granting uniform simple interest at 7.50% p.a. pending realization from sale of mortgaged properties.

What did the court decide?

Recovery of Rs. 26.31 Cr with uniform simple interest at 7.50% p.a. declared; liability fixed for respondents 1, 2, and 3 jointly and severally; recovery via execution proceedings authorized.

Punjab National Bank versus Sh. Shiv Kumar Bagolia and… — Execution and Attachment | DRT (2024)

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DEBTS RECOVERY TRIBUNAL-III, CHANDIGARH

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ORIGINAL APPLICATION NO.1246/2022

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PRESIDED OVER BY MRIDULESH KUMAR SINGH

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DATE OF INSTITUTION: 24.02.2022

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DATE OF DECISION: 03.02.2024

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Punjab National Bank, a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Corporate Office at Plot no.4, Sector 10, Dwarka, New Delhi110075 and one of its Branch Office Circle SASTRA, SAS Nagar (Mohali), 2^nd Floor, SCO 43, Sector 54, Phase II, SAS Nagar Mohali, Punjab-160055, through its Chief Manager, Sh. Ravi Kumar

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……..Applicant

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Versus

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Sh. Shiv Kumar Bagolia S/o Sh. Lal Bahadur Bagolia, R/o House No.1155, Sector 33-C, Chandigarh-160020 (Personal Guarantor)

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2^nd Address : R/o G-57, 1^st Floor, Masjid Moth (Greater Kailash, Part-III) New Delhi-110048

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Smt. Uma Bagolia W/o Sh. Shiv Kumar Bagolia, R/o House No.1155, Sector 33-C, Chandigarh-160020 (Guarantor/Mortgagor) 2^nd Address : R/o G-57, 1^st Floor, Masjid Moth (Greater Kailash, Part-III) New Delhi-110048

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M/s Revolution Infocom Pvt. Ltd., Registered Office at YC Co Working Space, 3^rd Floor, Plot No.94, Dwarka, Sector 13, Opposite Metro Station, Near Radisson Blue New Delhi, South West Delhi- 110078; through its directors (Corporate Guarantor/Mortgagor)

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(Guarantors/Mortgagors/Defendants)

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State Bank of India, Constituted under the State Bank of India Act, 1955 having its Central office at Madam Cama Road, Nariman Point, Mumbai and its Local Head Office at Sector 17, Chandigarh and one of its branch known as SME, SCO no.43-48, Third Floor, Bank Square, Sector 17-B, Chandigarh

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(Performa Defendant)

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Advocates: Argued by Sh. C.S. Pasricha, counsel for the applicant Defendants are ex-parte

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FINAL ORDER

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Present Original Application was instituted by the applicant bank under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, against the defendants for recovery of Rs.26,31,30,207.00 (Rupees Twenty Six Crores Thirty One Lacs Thirty Thousand Two Hundred and Seven only). The Original Application has been filed through Sh. Ravi Kumar, Chief Manager o f the applicant bank, who is competent to institute the Original Application vide General Power of Attorney dated 17.11.2009, which is Annexure A1 to this OA.

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The brief facts of the OA are that M/s Sandwood Infratech Projects Pvt. Ltd. (the borrower company) through its then Directors had approached the applicant bank from time to time for the grant of Term Loan-I of Rs.20.00 Crores, Term Loan-II of Rs.5.00 Crores and GECL Loan of Rs.4.23 Crores vide Loan applications dated 23.01.2018 and 12.08.2020, which are Annexures A3, A41 and A73 to this OA.

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Furthermore, the borrower company through its directors requested the applicant bank to reschedule their Term loans vide Request Letters dated 27.12.2018 and 28.03.2019, which are Annexures A58 and A67 to this OA.

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Additionally, M/s Sandwood Infratech Projects Pvt. Ltd. through its then Directors had also approached State Bank of India (defendant no.4) under Consortium for Term Loan of Rs.15.00 Crores and GECL Loan of Rs.2.58 Crores.

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The applicant Bank sanctioned the credit facilities under consortium with SBI i.e. Term Loan-I of Rs.20.00 Crores, Term Loan-II of Rs.5.00 Crores and GECL Loan of Rs.4.23 Crores vide Sanction Letters dated 18.01.2016, 30.03.2018 and 24.09.2020, which are Annexures A4, A42 and A74 to this OA; and the terms and conditions were duly accepted by the defendants.

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The applicant bank also reviewed/rescheduled the Term loans on request of the borrowers vide Sanction letters dated 15.01.2018, 31.12.2018 and 16.12.2019, which are Annexures A40, A59 and A68 to this OA.

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M/s Sandwood Infratech Projects Pvt. Ltd. through its Directors defendant nos.1 and 2; and defendant no.3 through its director had mortgaged their immovable properties detailed as: (A) Properties mortgaged by M/s Sandwood Infratech Projects Pvt. Ltd. through its Directors defendant nos.1 and 2 with PNB on behalf of PNB consortium (PNB and SBI) are detailed as under:-

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(a) Land Measuring 02 kanal 08 Marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali vide Sale Deed No.5731 dated 26.12.2011 along with its Translation, which is Annexure A23 to this OA; (b) Land Measuring 01 Kanal 18 Marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali vide Sale Deed No.4768 dated 20.10.2011 along with its Translation, which is Annexure A26 to this OA; (c) Land Measuring 01 Kanal 06 Marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali vide Sale Deed No.5816 dated 30.12.2011 along with its Translation, which is Annexure A25 to this OA;

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(d) Land Measuring 00 Kanal 12 Marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali vide Sale Deed No.5817 dated 30.12.2011 along with its Translation, which is Annexure A24 to this OA;

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(e) Land Measuring 05 Kanal 11 Marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali vide Sale Deed No.113 dated 09.04.2012 along with its Translation, which is Annexure A22 to this OA;

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(f) Land Measuring 04 Kanal 08 Marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali vide Sale Deed No.112 dated

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09.04.2012 along with its Translation, which isAnnexure A21to this OA;
(g) Land Measuring 06 Kanal 03 Marla situated at Village Bhagomajra,
Sector 110, SAS Nagar, Mohali vide Sale Deed No.2760 dated
31.10.2012 along with its Translation, which isAnnexure A20to this
OA;
(h) Land Measuring 07 Kanal 08 Marla situated at Village Bhagomajra,
Sector 110, SAS Nagar, Mohali vide Sale Deed No.2805 dated
02.11.2012 along with its Translation, which isAnnexure A19to this
OA; and
(i) 1/4th share of Land Measuring 02 Kanal 13 marla i.e. 00 Kanal 13¼
marla situated at Village Bhagomajra, Sector 110, SAS Nagar, Mohali
vide Sale Deed No.2129 dated30.09.2014along with its Translation, which isAnnexure A27to this OA.
(B)Properties mortgaged by defendant no.3 through its managing director with PNB on behalf of PNB consortium (PNB and SBI) are
detailed as under:-
(a) Land Measuring 02 Kanal 13 Marla situated at Village Bhagomajra,
HB-40, Tehsil and District SAS Nagar vide Sale Deed No.3735 dated
03.01.2013 along with its Translation, which isAnnexure A30to this
OA;
(b) Land Measuring 00 Kanal 12 Marla situated at Village Bhagomajra,
HB-40, Tehsil and District SAS Nagar vide Sale Deed No.3736 dated
03.01.2013 along with its Translation, which isAnnexure A34to this
OA;
(c) Land Measuring 08 Kanal 00 Marla situated at Village Bhagomajra,
HB-40, Tehsil and District SAS Nagar vide Sale Deed No.3737 dated
03.01.2013 along with its Translation, which isAnnexure A29to this
OA;
(d) Land Measuring 04 Kanal 00 Marla situated at Village Bhagomajra,
HB-40, Tehsil and District SAS Nagar vide Sale Deed No.3738 dated

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03.01.2013 along with its Translation, which is Annexure A32 to this OA;

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(e) Land Measuring 04 Kanal 00 Marla situated at Village Bhagomajra, HB-40, Tehsil and District SAS Nagar vide Sale Deed No.3739 dated 03.01.2013 along with its Translation, which is Annexure A31 to this OA; and

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(f) Land Measuring 01 Kanal 19.75 Marla situated at Village Bhagomajra, HB-40, Tehsil and District SAS Nagar vide Sale Deed No.3805 dated 03.01.2013 along with its Translation, which is Annexure A33 to this OA.

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(C) Properties mortgaged by defendant No.2 are detailed as under:-

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a) Flat No. F-29, Super Area 615 Sq. Ft;

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b) Flat No. F-30, Super Area 615 Sq. Ft;

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c) Flat No. F-30A, Super Area 615 Sq. Ft;

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d) Flat No. G-38, Super Area 615 Sq. Ft; e) Flat No. G-39, Super Area 615 Sq. Ft; f) Flat No. G-40, Super Area 615 Sq. Ft; g) Flat No. G-41, Super Area 615 Sq. Ft; h) Flat No. G-42, Super Area 615 Sq. Ft; and

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i) Flat No. G-44, Super Area 615 Sq. Ft;

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All the above mentioned flats from point C(a) to C(i) are

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situated at Village Kamyana Bharari Road, Hadbast No.22, Tehsil Shimla Rural, District Shimla constructed/to be constructed over property comprised in Khata Khatoni No.3/15 & 5/21 Khasra No.256/42/8/2 & 303/256/42 Measuring 0-65-64 Hectares; owned and possessed by Defendant No.2 vide Mortgage Deed No.794 dated 23.04.2018 along with its Translation, which is Annexure A54 to this OA. Documents executed:- Certificate of Incorporation and Memorandum of Association and Article of Association dated 05.09.2014, which is Annexure A2 to this OA; Letter along with Terms and Conditions dated 27.01.2016, which is Annexure A5 to this OA; Board

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Resolutions dated 19.02.2016, 10.06.2016 and 17.06.2016, which are Annexures A6 to A8 to this OA; Letter of Authority, Letter, Resolution, Inter Se Agreement, Joint Deed of Hypothecation, Term Loan Agreement, Letter Regarding Accepting Terms and Conditions of Sanction, Undertaking on Stamp Paper, Joint Guarantee Deed and Board Resolution along with Deed of Guarantee all dated 29.06.2016, which are Annexures A9 to A18 to this OA; Indentures of Mortgage, which are Annexures A28 and A35 to this OA; Escrow Agreement dated 29.06.2016, which is Annexure A36 to this OA; Certificates of Registration of Charge with ROC dated 28.07.2016, which are Annexures A37 and A38 to this OA; Report of Advocate dated 20.10.2016, which is Annexure A39 to this OA; Board Resolutions dated 02.04.2018, which are Annexures A43 and A44 to this OA; Term Loan Agreement between Borrower and PNB and Supplementary Joint Term Loan Agreement Between Borrower and PNB consortium dated 11.05.2018, which are Annexures A45 to A47 to this OA; Supplementary Inter Se Agreement Between PNB and SBI dated 17.05.2018, which is Annexure A48 to this OA; Undertaking by Borrower, Joint Guarantee Deed and Agreement of Guarantee dated 11.05.2018, which are Annexures A49 to A51 to this OA; Letters of Continuity dated 15.05.2018, which are Annexures A52 and A53 to this OA; Letter written by the Applicant Bank to the Tehsildar, Tehsil Shimla dated 23.04.2018, which is Annexure A55 to this OA; Certificates of Registration of Charge issued by ROC, which are Annexures A56 and A57 to this OA; Board Resolution dated 30.12.2018, which is Annexure A60 to this OA; Supplementary Agreements dated 31.12.2018, which are Annexures A61 and A62 to this OA; Board Resolution dated 23.03.2019, which is Annexure A63 to this OA; Joint Supplementary Agreement Between Borrower Company and SBI and Agreement of Guarantee dated 28.03.2019, which are Annexures A64 and A65 to this OA; Board Resolution dated 23.03.2019, which is Annexure A66 to this OA; Board Resolution dated 26.12.2019, which is Annexure A69 to this OA;

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Joint Supplementary Agreement and Agreement of Guarantee dated 26.12.2019, which are Annexures A70 and A71 to this OA; Agreement of Guarantee dated 24.02.2020, which is Annexure A72 to this OA; Board Resolution and Letter Conveying the Acceptance, Agreement for Working Capital Term Loan/GECL Between Borrower Company and PNB, Master Agreement Between Borrower Company and PNB, Letter Accepting Terms and Conditions of Sanction, Letter Regarding Execution of Document, Letters of Continuity and Board Resolution dated 24.09.2020, which are Annexure A75 to A82 to this OA; Letters written by the Applicant Bank to the Tehsildar, Mohali regarding Entry of Equitable Mortgage dated 18.01.2021 and 26.04.2021, which are Annexures A83 and A84 to this OA; Letters of Continuity dated 04.12.2020, which are Annexures A85 and A87 to this OA; Board Resolution dated 27.10.2020, which is Annexure A86 to this OA; ROC Certificates dated 01.12.2020, which are Annexures A88 and A89 to this OA; Balance Confirmation Letters dated 12.04.2017, 28.03.2019 and 20.09.2021, which is Annexure A90 (Colly) to this OA; Statements of accounts along with Certificates, which are Annexures A91 to A93 to this OA; Recall Notice and Notice invoking the Guarantee dated 18.01.2022, which are Annexures A94 and A95 to this OA; Notice U/s 13(2) along with Postal Receipts dated 08.02.2022, which is Annexure A96 (Colly) to this OA; Letter vide which Claim Lodged by the PNB dated 05.11.2021, which is Annexure A97 to this OA; Letter Communication/ Minutes of Meeting dated 01.01.2022, which is Annexure A98 to this OA and Latest Balance Sheet dated 31.03.2021, which is Annexure A99 to this OA.

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The loan accounts became irregular and were classified as NPA by the applicant bank on 30.05.2021 and after adjusting debit and credit entries in loan accounts there was a debit of Rs.26,31,30,207.00, which is recoverable and the defendants were served recall notices but they did not repay the outstanding amount,

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therefore, the applicant bank requested to accept the application and to issue Recovery Certificate accordingly.

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The defendant nos.1 to 3 were served notices to appear before this Tribunal but no one appeared on behalf of defendant nos.1 to 3 and they were proceeded ex-parte on 02.08.2023. 7. In support of the OA, affidavit of Sh. Ravi Kumar, Chief Manager, Punjab National Bank has been filed. 8. Heard ex-parte arguments and perused record. 9. It was argued by learned counsel that in view of the documentary evidence brought on record which had gone unrebutted, the applicant bank had proved its case. From the perusal of all the Annexures A1 to A99 to this OA, it is proved that M/s Sandwood Infratech Projects Pvt. Ltd. (the borrower company) through its then Directors had approached applicant bank and State Bank of India (defendant no.4) for availing of the loan facilities under Consortium which were granted to them and for that they had executed all the relevant documents in favour of the bank. The credit facilities were sanctioned by both the banks i.e. the applicant bank and State Bank of India (defendant no.4) under consortium arrangement. The State Bank of India having paripassu charge over the assets of the company; had recognized the applicant bank as “Lead Bank” of the consortium known as “the PNB consortium” to enable the applicant bank to take all actions and decisions for and on behalf of SBI and other members of consortium. The borrower and guarantors failed to pay back the loans as per terms and conditions of the agreement between the parties. Subsequently, accounts of the Borrower Company and guarantors were classified as NPA on 30.05.2021.

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That, due to the legal provisions (moratorium declared by the Hon’ble NCLT-III, New Delhi), applicant bank has not arrayed borrower company in the array of defendants but as per established law, bank can validly proceed to recover its dues from the guarantors/mortgagors. From the documentary evidence brought on record, it is proved that applicant bank is entitled to recover a sum of

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Rs.26,31,30,207.00 (Rupees Twenty Six Crores Thirty One Lacs Thirty Thousand Two Hundred and Seven only) along with interest from the defendant nos.1 to 3, jointly and severally, from the date of filing of the present Original Application till realization of the accounts. 10. In so far as pendent elite and future rate of interest is concerned, the present rate of interest in loan accounts stated in plaint is @12.35%p.a. in Term loans and @7.50%p.a. in WCTL; and the applicant bank in relief clause has claimed interest as per calculation sheet with monthly rests in the loan accounts from 01.02.2022 till the realization as below:

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(i) Defendant no.3 is liable for Rs.26,31,30,207/- with respect to TL-I, TL-II being the Guarantor and Mortgagor and in GECL facility being the Mortgagor;

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(ii) Defendant nos.1 and 2 are liable for Rs.21,78,47,326/- (Defendant no.1 with respect to TL-I and TL-II being Personal guarantor and Defendant no.2 being Personal guarantor as well as Mortgagor). The Tribunal is of the considered opinion that sometimes in appropriate cases the prerogative of mercy is the brightest jewel in the crown of the Judge. Keeping in view the facts and circumstances of the instant case including nature of the mortgaged property, undertaking of the defendant nos.1 to 3, quantum of loans and prevalent market rates of interest which have gone drastically downhill in yester years, while exercising the discretion vested in this Tribunal, this Tribunal deems it just and appropriate to grant uniform simple interest @7.50%p.a. in all the loan accounts from the date of filing of the OA till realization of the amount ordered vide this final order. It is ordered accordingly.

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In the result, the application is allowed declaring that the defendant nos.1 to 3 are liable to pay to the applicant and out of the total sum of Rs.26,31,30,207.00; defendant no.1 and 2 are liable for Rs.21,78,47,326.00 only and defendant no.3 is liable for the whole amount of Rs.26,31,30,207/-; jointly and severally, with costs, current and future simple interest @7.50%p.a. in all the loan accounts from

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the date of filing of OA till the date of realization of the amount. Accordingly, the applicant bank shall be entitled to recover aforesaid amount from the sale of hypothecated/mortgaged properties of the defendant nos.1 to 3 in execution proceedings if not sold earlier under the provisions of the SARFAESI Act, 2002. If the dues of the bank still remain unsatisfied, it shall be entitled to recover the same by attachment and sale of personal assets of the defendant nos.1 to 3. The applicant is at liberty to enforce the claim through due process of law. 12. Any other application pending stands disposed of. 13. Issue Recovery Certificate accordingly. 14. Parties to appear before Learned Recovery Officer of this Tribunal on 13.02.2024. 15. Copy of this order be given dasti to the applicant bank and be sent to defendants through registered/speed post and this order be also uploaded on the official website of this Tribunal and record be consigned. Pronounced by me in the open Tribunal Dated: 03.02.2024 (MRIDULESH KUMAR SINGH) Presiding Officer, DRT-III, Chandigarh

Punjab National Bank v. Sh. Shiv Kumar Bagolia and Others

Case brief

What is this about?

What did the court decide?

Punjab National Bank v. Sh. Shiv Kumar Bagolia and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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