Dismissed

Thangeswari v. City Union Bank Limited

DRT7 Apr 2025SA/17/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed the applicant's Special Appeal challenging the Court Martial's order granting possession under Section 14 of SARFAESI Act. The Tribunal held that proceedings against a personal guarantor continue even during moratorium and that the order was ministerial in nature.

What did the court decide?

The Special Appeal No.17 of 2023 was dismissed, and parties were directed to bear their own costs.

Thangeswari versus City Union Bank Limited — Company and Corporate | DRT (2025)

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IN THE DEBTS RECOVERY TRIBUNAL –I AT CHENNAI

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Dated this 7^th Day of April, 2025

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PRESENT: SHRI A.S.JAYACHANDRA Presiding Officer

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S.A. No.17 of 2023

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Smt. Thangeswari, W/o Mr.K.Mariappan, No.159, Annavi Thottam, Pudur, Behind AVT, Sivakasi. . . . APPLICANT

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-Versus-

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M/s.City Union Bank Ltd., No.13, Chairman NPSN Arumugam Road, Credit Recovery & Management Department, Narayana Administrative Office, No.24-B, Gandhi Nagar, Kumbakonam, Thanjavur District. . . . DEFENDANT

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Ld. Counsel for Applicants :- M/s. D.Dhana Chandra Prakash & Ors. Ld. Counsel for Defendants :- M/s. Ananda Gomathy

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The present SA is filed by the Applicant under Section 17(1) of SARFAESI Act to set aside the measures initiated by the Defendant Bank under Section 14 of the SARFAESI Act on the file of Chief Judicial Magistrate, Srivilliputtur in Crl.M.P. No.40 of 2021.

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FACTS OF THE CASE :-

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1.0 The Applicant is the former Managing Director of a company, which was suspended by the orders of NCLT, Chennai by an order dated 30.09.2019 and the IRP is managing the said company namely M/s. Supreme Coated Board Mills Pvt. Ltd., The proceedings before NCLT is pending. There are many claimants before the NCLT including the Defendant. The husband

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of the Applicant died on 14.09.2020. The Defendant had also approached by filing an IA before the Ld. NCLT.

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1.1 Without disclosing these facts, it is alleged that the bank had approached the Ld. CJM, Virudhunagar in Crl. MP No.40/2021 and obtained an order dated 23.12.2021 under Section 14 of the SARFAESI Act, which came to the knowledge of the Applicant only on 18.04.2022. The said order is challenged before the Hon'ble High Court of Madras and the same is stayed in WMP No.7194/2022. When the Writ Petition was pending, a sum of Rs.4.75 Crores is remitted to the Defendant Bank, which covers the liability pleaded in CMP No.40/2021. The same is also recognized by the Ld. Counsel for the Bank. The Ld. Counsel who appeared for the Applicant has made an endorsement as “ Rs.4.75 Crores has been remitted to the Defendant and most of the properties have been redeemed and the MOD’s have been cancelled. Nothing survives before Learned Chief Judicial Magistrate, Srivilliputtur .”

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1.2 Applicant pleads that the Hon'ble High Court has misconceived the word “Nothing Survives” and pleads that an erroneous order is passed. Consequent to the said order, the Ld. CJM, Srivilliputtur is proceeding under Section 14 of the SARFAESI Act. The Applicant had also pleaded before the NCLT in CP No.1021/IB/2021 that the Defendant cannot enforce the SARFAESI Act since the Defendant is a party claiming only 30% of the outstanding dues among the financial creditors including Bank of India and Bank of Baroda. Major properties under Crl. MP.40/2021 are redeemed.

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1.3 It is alleged that the Defendant suppressed the pendency of liquidation proceedings before the Ld. CJM and the orders passed on 02.09.2023 by the CJM is challenged in another Writ Petition No.24827/2023 at Hon'ble Madras High Court, Madurai Bench, which directed this Applicant to approach the DRT. Now the Advocate Commissioner is demanding to hand over the properties excluding No.7 & 10. The step initiated by the Defendant Bank is opposed to Section 33(5) of IBC Code 2016.

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GROUNDS :-

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2.0 The Ld. CJM omitted to find out that the Defendant is precluded from proceeding under Section 14, while the liquidation proceedings are pending.

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2.1 It is also pleaded that the order of Ld. CJM is against the ruling of the Hon'ble Supreme Court in CA No.4750/2021 titled as Indian Overseas Bank Vs. RCM Infrastructure Limited citation.

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2.2 It is also alleged that the affidavit filed by the bank is full of suppression of material facts and specially the affirmation that there are no stay of other order from any Court or Tribunal as in Para – 12 of the said affidavit.

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2.3 The Defendant Bank could have not approached the Ld. CJM for the reliefs which they failed to get before the Corporate Insolvency Proceedings pending since 2018. The Defendant had already filed OA 215/2022 before the DRT, Madurai and hence the same properties involved in the OA is being prosecuted before the two forums.

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3.0 In the additional grounds filed 30.11.2023, the Applicant contends that the Company is under liquidation in CP No.1021/2018 and that there is a pari pasu agreement among the Defendant and Bank of Baroda, Bank of India. The Financial Creditors had also invoked personal guarantee and that the resolution professional is appointed and moratorium is in force.

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4.0 In the further additional grounds dated 07.02.2024, the Applicant again submits that the Company Petition is pending and the Bank of Baroda had filed an application under Section 95 of IBC against the guarantor and the Resolution Professional had appointed who had filed a report which covers the entire aspects. The IA filed by the Resolution Processional is kept in abeyance by the NCLT, Chennai – II and this Defendant is to file a counter there. The claim of the Defendant Bank is Rs.1,40,92,74,639/-. The personal

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properties are also enlisted there including the subject property of this petition.

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COUNTER BY DEFENDANT BANK:-

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5.0 Upon notice the Defendant Bank had filed its counter, by way of an affidavit of the Authorised Officer. It is contended that the present SA is nothing but perjury, and the Applicant is guilty of suppression of facts and mis-representation. The Applicant is the erstwhile MD of a company. It is company, which availed the facilities. The account was classified as NPA and demand notice dated 20.11.2019 is issued for payment of Rs.91,64,73,024/-. The Possession was taken on 10.03.2020. A sale notice was issued dated 09.09.2022, since the Bank could not get the physical possession, the sale did not fructify. Thus the bank approached the Ld. CJM, Srivilliputtur, in CMP No.40/2021, which was allowed on 04.12.2021. When the Advocate Commissioner wanted to execute the Order, the present SA is filed.

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5.1 In the interregnum CP No.1021/2018 is filed against the Company by M/s.Solar Dynamics and the same was allowed and CIRP was initiated on 30.09.2019. The moratorium kicked from that date until the order of liquidation of the corporate debtor was passed. However the same is operative only against the corporate debtor and not against the guarantor. In State Bank of India Vs. Ramakrishnan & Ors. 2018 SCC 394 , it is held that SARFAESI Act proceedings against the guarantor would continue against the guarantor. The Crl. MP 40/2021 is filed against the company and also the personal guarantors, which was allowed on 04.12.2021. The moratorium was in existence against the Company until 07.02.2023.

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5.2 It is also stated that the orders of the CJM is only a Ministerial Order and not a judicial proceeding. The personal insolvency proceeding in CP/IB 188/CHC/2021 is initiated by Bank of Baroda. The moratorium under Section 101 of IBC is only for a period of 180 days. The said moratorium began on 20.06.2022 and ended by 20.12.2022 as per Section 101 of IBC. As

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on the date when the Advocate Commissioner issued the notice there was no moratorium. This Bank is a party.

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5.3 It is also pointed out in the counter that this Applicant who was aware of the orders of CJM approached the Hon'ble High Court in WP MD 10132/2022 and the petition was withdrawn by the Applicant counsel by making an endorsement that nothing survived for adjudication. The same having been withdrawn before the Hon'ble High Court, the Applicant cannot re-agitate the matter before this Tribunal. The moratorium having already expired, the present SA is devoid of merits and hit by resjudicata as above.

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REJOINDER:-

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6.0 A re-joinder is also filed submitting that the Defendant filed CMP No.40/2021 before the CJM, which was registered, but allowed on 04.12.2021. The Advocate Commissioner issued a letter dated 15.04.2022 and the same was not challenged under Section 17 of the SARFAESI Act as most of the Tribunal’s were left without Presiding Officers at that point of time. Thus writ petition was filed before the Madurai Bench, most of the properties in Item No.7 & 10 covered under CMP were redeemed and MODs were cancelled. Item No.1 to 6 are shown as vacant sites. The Defendant Bank had not taken steps to delete these properties in CMP No.40/2021. These NCLT Proceedings in CP No.1021/2018 against the Company is still pending. The affidavit filed in CMP No.40/2021 is defective and had suppressed the facts. This defect was also pointed out during the year 2021 when Bank of Baroda filed CP/IB/188/2021. This Defendant Bank submitted the claim as against the Company and the personal guarantors. The moratorium started from 08.03.2022. Before the moratorium terminated, one of the members of the Committee of creditors filed IA/IB/642/2024 with a prayer to remove the RP, which was allowed on 03.05.2024. A new RP is appointed, who is yet to file his report. In the ruling of the Hon'ble Supreme Court in Isgee Heavy Engineering Ltd. Vs. Bhushan Energy Ltd. NCLT in CA(AT) (Insolvency) No.532/2019 – Indian Kanoon Doc No.124752031 , it

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is held that moratorium will not come to an end without an order of revocation of the moratorium. (This ruling is not that of the Hon'ble Supreme Court as mentioned but Hon'ble NCLAT). Section 100 of the IBC is not followed by the Defendant. Similar application is pending before the DRT, Madurai in TA No.8/2023. The Defendant is guilty of forum shopping. This Defendant cannot pursue the orders under Section 14 of the SARFAESI Act, while IB/188/2021 is pending. This rejoinder is dated 28.05.2024.

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7.0 Heard the Ld. Counsel. They were also asked to file their written synopsis within seven days from 07.10.2024. Three written submissions were filed on 17.10.2024, 13.11.2024, 10.12.2024 and 03.04.2025 by the Applicant.

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7.1 The written synopsis of the arguments of the Defendants is filed on 30.10.2024. The Ld. Counsel for the Defendant had relied on the rulings of State Bank of India Vs. Ramakrishna 2018(SCC) 394 submitting that SARFAESI Act may continue against the guarantors even if the moratorium related proceedings are in place. The ruling of Dilip K Jiwarjakha Vs. Union of India 2023 INSC 1018 is relied by the Defendant, in which the Hon'ble Supreme Court held that the moratorium in force for a period of 180 days are when an approving repayment plan is past, whichever is earlier.

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8.0 With the available material on record, the following point arises for determination in the present SA:

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“Whether the impugned order of the Ld. CJM, Srivilliputtur in CMP No.40/2021 passed under Section 14 of the SARFAESI Act is opposed to the principles of law laid down under the SARFAESI Act?”

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9.0 No doubt the Defendant Bank had approached the Ld. CJM, Srivilliputtur, Virudhunagar District under Section 14 of the SARFAESI Act, in which this Applicant is the Respondent No.7. The Ld. CJM had noted that the principal borrower and the guarantors have not paid the amounts due as per the demand notice and the possession notice was issued on 10.03.2020, which was also published.

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9.1 The main contention of the Applicant herein is twofold. The impugned order is assailed on the first leg that the Defendant could have never approached the Ld. CJM, while the money recovery proceedings in OA No.215/2022 is pending before the DRT, Madurai. This aspect is already dealt in Transcore Vs. Union of India 2008 (1) SCC 125 . It is held that the SARFAESI Act is an additional remedy, which is not inconsistent with the DRT Act, 1993.

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9.2 The second leg of the argument is that when the Applicant is facing the proceedings of personal insolvency, which is also admitted by the Defendant, the Defendant Bank cannot proceed under the SARFAESI Act in view of the moratorium operating. The Ld. Counsel for the Applicant vehemently submits that the Defendant Bank had filed IA No.306/IB/2021 and IA No.307/IB/2021 in CP No.1021/2021 to safeguard their interest. Liquidation application in IA No.1167/2020 is also filed by the resolution professional. These facts were not mentioned in the Crl.MP 40/2021. Therefore the Applicant on coming to know the orders of the Ld. CJM on 18.04.2022 through the Advocate Commissioner, files this present SA. It is argued that the impugned order is against the scheme and features of Chapter-III of IBC. The Applicant is the only personal guarantor to the loan advanced by Bank of Baroda. It is submitted that in the ruling of State Bank of India Vs. Ramakrishna 2018 (SCC) P 394 is not applicable since the ruling is delivered prior to the notification for applicability of Chapter-III of IBC 2016. It is argued that after initiation of CIRP all the actions under SARFAESI Act are prohibited. In this connection, the Ld. Counsel refers to the ruling in Indian Overseas Bank Vs. RCM Infrastructure 2022 Live Law 496.

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9.3 On the other hand in the written arguments filed by the Defendant Bank, it is contended that the ruling of State Bank of India Vs. Ramakrishna 2018 (SCC) P 394 held that the proceedings under SARFAESI Act may continue against the guarantors, even if the moratorium related matters are

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pending. This application is allowed by the Ld. CJM on 04.12.2021. The moratorium was operative only against the company till 07.02.2023. In view of the above, the orders of the Ld. CJM could not have been enforced against the properties of the Company. It is argued that Bank of Baroda initiated the personally insolvency proceedings against this Applicant and the moratorium arising out of such proceedings is to be understood from Section 101 of the IBC. The Ld. Counsel submits that the moratorium is limited to 180 days from the date of admission of the application. The moratorium commenced on 20.06.2022 and ended by 20.12.2022. It is their case that when the notice of the Advocate Commissioner was issued no moratorium was in force.

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9.4 The Ld. Counsel for the bank further submits that the order of the Ld. CJM was challenged by the Applicant in WP MD 10132 of 2022. The said writ petition was withdrawn with an endorsement indicating that nothing survived for adjudication in the writ petition. Having thus withdrawn the challenge made to the impugned order, the Applicant cannot re-agitate the same in the present proceedings.

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9.5 Further, it is argued that the order of the Ld. CJM is not adjudicatory in nature and the moratorium if any under Section 101 of IBC had already expired.

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9.6 It is also argued that as on the date of filing of Section 14, there was no moratorium. The ruling of IOB Vs. RCM Infrastructure .B 2022 Live law SC 496 is distinguishable since the balance of the bid amount was accepted when the moratorium was in force. It is pointed out in the written arguments that the law is settled by the Hon'ble Supreme Court in Dilip. K.Jiwarajakha Vs. UOI that “ The moratorium remaining in force for a period of 180 days (or) when an approving the repayment plan is past, WHICHEVER IS EARLIER ”. It is also submitted that the protective provisions of IBC 2016 are not applicable to personal guarantor as held in SBI Vs. Ramakrishna ,

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which is followed by the Hon'ble Kerala High Court in Jenithangachan (vs) UOI . Therefore the Defendant prays that the SA may be dismissed.

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ANSWER TO THE POINT FOR DETERMINATION :-

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10.0 It is needless to say again and again that the orders passed under Section 14 of the SARFAESI Act is only administrative/ministerial in nature and no adjudication is involved as held in catena of decisions in Balakrishnarama Tarale Vs. Phoenix ARC Ltd. by the Hon'ble Supreme Court DD 26.09.2022 and Authorised Officer, Indian Bank Vs. Visalakshi and another CA 6295/2015 dt.23.09.2019 SC. In view of the above, it is clear that no adjudication is involved and the point on which the applicant challenges the impugned order alleging that the Ld. CJM did not take note of the IBC Proceedings in CMP No.40/2021 cannot be a ground since the Ld. CJM is only to satisfy itself with regard to compliance of Section 14(1) of the SARFAESI Act.

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10.1 The Defendant Bank had approached the Ld. CJM by a petition in the month of September, 2021. The same is disposed by the order of CJM dated 04.12.2021. The Ld. CJM had given reasons in answering the entitlement of the Applicant to order under Section 14 of the SARFAESI Act. After going through the entire material which is discussed in Paras (i) to (iii), the Ld. CJM had come to the conclusion that the petitioner bank had satisfied the conditions precedent for invoking the provisions of Section 14 of the Act. As already discussed, the order of the Ld. CJM is ministerial in nature and no illegalities can be attributed to the impugned order unless and until there is a grave irregularity.

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10.2 The Ld. Counsel for the applicant points out that the Ld. CJM ought to have not proceeded since there were IBC Proceedings pending before NCLT and moratorium was operating. On the other hand the Defendant submits that while the SA is pending, one Mr.Arun Tensing filed an application for replacement of the RP and the RP was later removed and new RP Mr.Hari

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Karthik is appointed. The report of the earlier RP was set aside. Thus the pending proceedings in CP/IB/188/2021 went back to the proceedings under Section 98 of IBC. These facts are not denied by the Applicant.

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10.3 The pendency of the OA 2015/2022 before the DRT, Madurai cannot impede the proceedings under Section 14 of the SARFAESI Act since the law is made clear in the ruling of Transcore Vs. Union of India 2008 (1) SCC 125. Therefore this ground is untenable to question the orders of the Ld. CJM.

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11.0 The Petitioner had challenged the orders of Ld. CJM, which is admitted by the Applicant in WP No.10132/2022 (MD) of Madurai Bench of the Hon'ble High Court by the Company represented by the very applicant. There it was submitted that nothing survived for the adjudication and the WP was dismissed. The subject matter is the orders of the Ld. CJM dated 04.12.2021. It is pertinent that the Applicant in her personal capacity approaches again challenging “the entire measures initiated under Section 14 of the Act before the Ld. CJM, Srivilliputtur in CMP No.40/2021. The same was withdrawn by the company submitting that nothing survives for adjudication in the writ petition. The allegations in Para vii of the SA that “ The Hon'ble High Court has misconceived the word “nothing survives” and passed the erroneous order ” cannot be a ground to re-agitate the matter. However, the Applicant had approached the Hon'ble High Court Madurai Bench in WP 24827/2023, which was disposed on 13.10.2023.

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11.1 The contention that there was a moratorium as on the date of passing the impugned order is to be understood. The date of the order is 04.12.2021. The Ld. Counsel for the Defendant relied on the ruling of Anil Kumar Vs. Mukund Chowdry 2025/IBC/Law.in56 NCLAT , wherein the full Bench of the NCLAT had held that no extension of moratorium could be allowed and further held that in view of the expressed provisions of Section 101(1) limiting the moratorium to 180 days on the date when the order is passed by the adjudicating authority for repayment plan, whichever is

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earlier. The 180 days period would statutorily come to an end. The relevant observation of the Hon'ble NCLAT is at Para-13 as under:-

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“13. In the present case, the Application under Section 94 was filed by the Personal Guarantor on 08.04.2021 by filing of which the Interim Moratorium commenced. Section 94 Application remain pending consideration before the Adjudicating Authority on account of challenge of the vires of provisions under Section 95 - 100 before the Hon'ble Supreme Court in the matter of 'Dilip B. Jiwrajka' Vs. 'Union of India & Ors.' in Writ Petition No. 1281/2021, Comp. App. (AT) (Ins.) No. 38 of 2025 7 of 17 which could be decided in November 2023 and thereafter the Order of admission under Section 100 was passed on 30.04.2024. Section 101(1) provides that when Application is admitted under Section 100 a Moratorium shall commence in relation to all debts and shall cease to have effect at the end of period of 180 days. Provisions under Section 101, thus provides about both the dates, i.e., date of commencement of the Moratorium and date when it shall cease to have effect. The sub-Section uses the expression "and shall cease to have effect at the end of period of 180 days". Thus, the provision itself provides for the cessation of the Moratorium, which is the statutory scheme as delineated by Section 101(1).”

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11.2 Furthermore, if the company petition filed against M/s.Supreme Coated Board Mills Pvt. Ltd Vs. Solar Dynamics Pvt. Ltd . was allowed in 1021/IB/2018 and the CIRP was initiated on 30.09.2019. The moratorium that comes into effect from that date till the liquidation of the corporate debtor was passed. Such order is applicable only to the corporate debtor and does not extend to the guarantor. The said principle is evolved in State Bank of Vs. Ramakrishna (Supra) is not denied. The position of law is very clear as held in the ruling of Jeny Thankachan Vs. Union of India 2023(Ker) 71553 in which the Hon'ble Kerala High Court had held that:-

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“The petitioner is not entitled to urge the overriding effect of IBC 2016 based on the facts of the case for yet another reason. As far as the proceedings under the Act, 2002 initiated by the Bank, the petitioner has been proceeded against in his capacity as guarantor to the financial advance by the LLP. In the judgment in State Bank of India v. Ramakrishnan and another [(2018) 17 SCC 394], the Apex Court has held that the protective provisions of IBC 2016 are not applicable to a personal guarantor of a corporate debtor. The securitisation proceedings against personal guarantors of corporate debtors can continue

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under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.”

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In the instant case as pleaded – the Applicant is not sure whether she is aggrieved as personal guarantor or as ex MD of the Company. If she is a personal guarantor challenges the case law is against her, if otherwise – she cannot maintain the SA.

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11.3 In view of the above rulings, the pendency of IBC Proceedings in CP No.1021/IB/2018 will not be an impediment against the Applicant who is the personal guarantor. The Application under Section 17 filed by the Applicant is devoid of merits for the following reasons and facts.

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(a) In the facts pleaded, it is submitted that the Applicant is the Ex-Managing Director of the Company, which was facing IBC Proceedings in CP No.1021/IB/2018 and the liquidation was ordered. The facts are pleaded in Para (i) & (ii).

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(b) It is also pleaded that one more person claimed to be the financial creditor filed a separate application. The Defendant Bank had also filed Applications to safe guard their interest.

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(c) The pleadings above show that the proceedings before NCLT were filed against the Company. The Applicant files the present SA in the capacity of the erstwhile Managing Director. All the facts are pleaded and grounds made out are that since there was liquidation proceedings, the properties sought to be possessed under Section 14 all belonged to the Applicant as a personal guarantor. There are 10 properties. Admittedly certain properties were got released, which belonged to the company during the moratorium period. The submissions were made by the Ld. Counsel for the Defendant Bank on 10.12.2024. These facts are not disputed.

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(d) On 08.01.2025, the Ld. Counsel for the Bank had filed the list of properties and submitted that the Applicant could only

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agitate with regard to the properties 8 & 9. These facts are not disputed by the Applicant. Property No. 8 & 9 as per the pleadings are perused. These belong to the Applicant as pleaded. Thus, the Applicant is aggrieved in the capacity of the personal guarantor and the law as held in State Bank of India v. Ramakrishnan and another [(2018) 17 SCC 394] comes into play. Since the law is clear, the Applicant cannot have any grievance. The company, which filed the writ petition, had already submitted that nothing survives for consideration before the Hon'ble Madras High Court at Madurai Bench.

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(e) Further the moratorium if any cannot be deemed to have been extended in view of the full bench ruling of the Hon'ble NCLAT in Anil Kumar (Supra) .

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(f) In the documents filed by the very Applicant dated 13.06.2024, an affidavit is filed wherein the Applicant herself had stated that most of the properties mentioned in the impugned order have been redeemed and the MODs have been cancelled by the Bank. It is contended that the Defendant ought to have sought the amendment to the orders of CMP 40/2021. Therefore the order is defective. This argument cannot be accepted for the reasons that the very applicant concedes to the execution of MODs and the release obtained. Just because certain properties are got released, the whole order cannot be set aside on the alleged part illegality, since the discharge deed of MODT is 23.06.2022 and the impugned order is dated 04.12.2021. The subsequent developments after the passing of the impugned order cannot be directed to invalidate the said order of the Ld. CJM. The same cannot be a ground to set aside the order on the grounds pleaded, the Applicant is partly conceding and at the same time objects such dual contentions cannot be entertained. In view of the disposal of

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WP No.10132/2022 (MD) of Madurai Bench of the Hon'ble Madras High Court and further considering the acquiesce and the subsequent release of MODT’s – the ruling in Indian Overseas Bank Vs. RCM Infrastructure 2022 Live Law 496 is distinguishable on facts.

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12.0 After careful examination of the documents and the contentions of the parties, this Tribunal is unable to sail with the argument of the Ld. Counsel for the Applicant that the impugned orders of the Ld. CJM is bad in law. Hence the following:

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SA No.17 of 2023 stands dismissed. Parties to bear their own costs. Copy of the order be communicated to the parties by the Registry as per rules.

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(Dictated to PS, typed by him in the System, corrected, signed and pronounced by me on this 7^th Day of April, 2025)

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Thangeswari v. City Union Bank Limited

Case brief

What is this about?

What did the court decide?

Thangeswari v. City Union Bank Limited

Case brief

What is this about?

What did the court decide?

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