w w w . L a w y e r S e r v i c e s . i n



Central Bank of India V/S Kalpana Cold Storage Pvt. Ltd. and Others.


Company & Directors' Information:- R J COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049659

Company & Directors' Information:- K C INDIA LIMITED [Active] CIN = U74899DL1995PLC068383

Company & Directors' Information:- S. D. COLD STORAGE PRIVATE LIMITED [Active] CIN = U15132UP1995PTC018791

Company & Directors' Information:- D G COLD STORAGE PRIVATE LIMITED [Active] CIN = U45209WB2001PTC092809

Company & Directors' Information:- N P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15549WB1997PTC085229

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC041010

Company & Directors' Information:- G C G COLD STORAGE PRIVATE LIMITED [Active] CIN = U01400MH2012PTC235712

Company & Directors' Information:- L P COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC021864

Company & Directors' Information:- P D COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039698

Company & Directors' Information:- N R S COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031524

Company & Directors' Information:- S M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC040843

Company & Directors' Information:- A TO Z COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2010PTC040956

Company & Directors' Information:- A-1 COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900TG2015PTC100777

Company & Directors' Information:- D N COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1989PTC010708

Company & Directors' Information:- P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15139UP2001PTC026373

Company & Directors' Information:- N L COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022ML2001PTC006536

Company & Directors' Information:- K H I COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC100373

Company & Directors' Information:- K J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1996PTC018274

Company & Directors' Information:- V K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022RJ1998PTC014964

Company & Directors' Information:- R M COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024532

Company & Directors' Information:- KALPANA COLD STORAGE PRIVATE LIMITED [Active] CIN = U63000UP2011PTC045310

Company & Directors' Information:- S L P COLD STORAGE PRIVATE LIMITED [Converted to LLP] CIN = U00063KA1997PTC022544

Company & Directors' Information:- M D COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP2001PTC025987

Company & Directors' Information:- S N COLD STORAGE PVT LTD [Active] CIN = U15132WB1977PTC031040

Company & Directors' Information:- A K COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024374

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- G D COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1997PTC084601

Company & Directors' Information:- J S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020250

Company & Directors' Information:- B C COLD STORAGE PRIVATE LIMITED [Active] CIN = U45302PB1997PTC019355

Company & Directors' Information:- G S P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069618

Company & Directors' Information:- R R COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022TZ1995PTC006478

Company & Directors' Information:- H J COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1999PTC089452

Company & Directors' Information:- B K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020070

Company & Directors' Information:- J T S COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2011PTC044733

Company & Directors' Information:- COLD STORAGE CORPORATION OF INDIA LIMITED [Active] CIN = U25193UP1946PLC001472

Company & Directors' Information:- M K R S S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63090WB2020PTC241530

Company & Directors' Information:- R G P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74999KA2006PTC039844

Company & Directors' Information:- J P G A COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB2005PTC028831

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- R B COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022BR1979PTC001418

Company & Directors' Information:- N J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63020DL2010PTC207001

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Strike Off] CIN = U63022OR1985PTC001574

Company & Directors' Information:- S V S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U74999AP1999PTC033134

Company & Directors' Information:- R V COLD STORAGE PVT LTD [Strike Off] CIN = U15133UP1988PTC010122

Company & Directors' Information:- V L S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63010TG2011PTC072072

Company & Directors' Information:- KALPANA CORPORATION INDIA LIMITED [Strike Off] CIN = U70102UP2013PLC055771

Company & Directors' Information:- M Y COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2012PTC053516

Company & Directors' Information:- K T COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022NL2001PTC006616

Company & Directors' Information:- M M COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63090TG2013PTC090068

Company & Directors' Information:- H. R. COLD STORAGE PRIVATE LIMITED [Active] CIN = U63030GJ2016PTC092718

Company & Directors' Information:- KALPANA PRIVATE LIMITED [Under Process of Striking Off] CIN = U99999MH1949PTC007196

Company & Directors' Information:- A K STORAGE PRIVATE LIMITED [Strike Off] CIN = U99999MH1978PTC020884

Company & Directors' Information:- COLD STORAGE (INDIA) LTD. [Dissolved] CIN = U99999MH1922PTC000998

Company & Directors' Information:- INDIA COLD STORAGE CO. LTD. [Not available for efiling] CIN = U99999MH1948PLC006673

Company & Directors' Information:- KALPANA PVT LTD [Active] CIN = U24248PN1949PTC007196

    Case No. O.A. 626 of 2016

    Decided On, 29 April 2017

    At, Debts Recovery Tribunal Kolkata

    By, THE HONORABLE JUSTICE: VINAY GOEL
    By, PRESIDING OFFICER

    For Petitioner: Vikram Bhalla And For Respondents: Noorie Ullah



Judgment Text


1. This Original Application (hereinafter called as O.A.) has been instituted by the applicant Bank Under Section 19 of Recovery of Debts Due to Banks And Financial Institutions Act, 1993 against the defendants for recovery of Rs. 3,88,42,999.00 (Rs. Three Crore Eighty Eight Lac Forty Two Thousand Nine Hundred Ninety Nine only) together with pendente lite and future interest @ 11.20% per annum with monthly rests and other reliefs as stated.

2. The case of the applicant bank is that the defendant No. 1 borrower company passed a resolution through Board of Directors meeting held on 16.9-2011 resolved that term loan facility for Rs. 200.00 lacs and Cash Credit/Overdraft facility for Rs. 50.00 lacs be availed from the applicant bank and the said Directors Ashok Kumar Shukla and Mrs. Kalpana Shukla were duly authorized to sign all necessary documents and affixed common seal of the company as per bank norms.

3. The defendant No. 2 & 3 as directors of defendant No. 1 company approached the applicant Bank for grant of Term Loan of Rs. 200.00 lacs on the margin of 25% and Cash Credit Limit of Rs. 50.00 lacs on the margin of 25%. The applicant Bank considered the request of the defendants and sanctioned the Term Loan of Rs. 200.00 lacs and Cash Credit Limit of Rs. 50.00 lacs.

4. Upon sanction and in order to avail the said loan facility, the defendant Nos. 2 & 3 as directors of defendant No. 1 company signed and executed the Bank's Standard Loan Documents and guarantee agreement and in their individual capacity as guarantors on 10.1.2012 in their respective capacity. The defendant Nos. 2 & 3 hypothecated the Plant & Machinery etc. belonging to defendant No. 1 in favour of the applicant Bank by execution of hypothecation agreement.

5. The defendant No. 2 in order to secure the due repayment of the applicant bank created equitable mortgage of his immovable property i.e. Arazi No. 132 ga Village Bara, Tehsil Akbarpur, District Ramabai Nagar, Kanpur Dehat - 209206 by way of deposit of original title deed in favour of the applicant bank,

6. The defendant No. 3 also created equitable mortgage of her immovable property i.e. Premises No. 128/1358 Block 'Y' Yojna No. 2 Kidwai Nagar, Kanpur - 208001 by way of deposit of original title deed in favour of the applicant bank.

7. The defendant Nos. 2 & 3 as directors of defendant No. 1 company again requested to the applicant bank for grant of Term Loan of Rs. 48.00 lacs for installation of Milk Chilling Plant and Civil Works in addition to Cold Storage Project. The applicant bank considered the request of the defendants and sanctioned Term Loan of Rs. 48.00 in favour of them.

8. Upon sanction and in order to avail the said loan facility, the defendant Nos. 2 & 3 as directors of defendant No. 1 company signed and executed the Bank's Standard Loan Documents including guarantee agreement and in their individual capacity as guarantors on 03.11.2012 in their respective capacity. The defendant Nos. 2 & 3 hypothecated all types of stocks, Plant & Machinery etc. belonging to defendant No. I to be created out of the bank finance and collateral security to be secured by extension of equitable mortgage of House No. 128/1358 V Block Kidwai Nagar, Kanpur consisting factory, land and building at Bara, Akbarpur, Ramabai Nagar, Kanpur Dehat in favour of the applicant Bank.

9. The defendant Nos. 2 & 3 as directors of defendant No. 1 company also signed and executed letter of acknowledgement of debt on 07.4.2014.

10. The defendant no, 1 borrower company passed a resolution through Board of Directors meeting held on 20.3.2015 and resolved to avail Cash Credit Facility of Rs. 50.00 lacs and also resolved that directors to sign and execute loan documents and affixed the common seal of the company and in order to avail the said financial facility of Rs. 50.00 lacs signed and executed the loan documents on 20.3.2015. The defendant Nos. 2 & 3 hypothecated the stocks, goods etc. belonging to defendant No. 1 company in favour of the applicant bank as security.

11. The defendant Nos. 2 & 3 availed the said credit facilities to their advantage. Subsequently, the defendants failed and willfully neglected to adhere to the financial discipline of the applicant Bank and committed various acts of default. The applicant Bank repeatedly approached the defendants to regularize the account or to settle and liquidate the dues of the applicant Bank but the defendants failed to do so inspite of legal notice dated 30.6.2015. Thereafter Demand Notice u/s. 13(2) of SARFAESI Act, 2002 dated 01.7.2015 was sent by the applicant bank but the defendants failed to comply the terms and conditions of the said notices.

12. The defendants filed a Writ Petition No. 69682 of 2015 before the Hon'ble High Court which was dismissed by the Hon'ble High Court on 15.1.2016.

All these acts and conduct on part of the defendants were contrary to the terms and conditions of the documents signed and executed by them. Thus, applicant Bank filed the present O.A.

13. Soon after registration of the case, the defendants were summoned through registered post with A/D. The defendants appeared through counsel and filed their written statement.

14. The defendants in their written statement pleaded that the bank has not come to this Tribunal with clean hand and as such the bank is not entitled to get any relief on this ground alone. The defendants further pleaded that as per valuation report of the approved government valuer of the bank panel, the premises situated at Khata No. 924, Arazi Plot No. 332 Village Bara, Tehsil Akbarpur, District Kanpur Dehat where the plant and machineries are inducted over the property in question is valued to the tune of Rs. 4.50 Crores in the year 2015. The defendants further pleaded that the bank has published the auction notice for sale of the property on 15.9.2015 and fixed the date for auction on 24.10.2015 and further submitted that on 24.10.2015 no none has turned to participate in the auction sale bid before the applicant bank and as such the bank again published the sale notice on 29.11,2015 and fixed the auction sale on 06.1.2016. The defendants further pleaded that the bank again published the auction notice of the property on 12.1.2016 and fixed the auction sale of the property in question on 18.2.2016. The defendants further pleaded that the bank again published the auction notice of the property on 16.6.2016 and fixed the auction sale of the property in question on 25.7.2016. The defendants further pleaded that the bank again published the auction notice of the property on 26.8.2016 and fixed the auction sale of the property in question on 18.10.2016. The defendants further pleaded that the bank again published the auction notice of the property on 24.11.2016 and fixed the auction sale of the property in question on 10.1.2017. The defendants further pleaded that the bank again published the auction notice of the property on 05.2.2017 and fixed the auction sale of the property in question on 16.3.2017. The defendants further pleaded that the applicant bank is not interested to relies his dues from the property in question but it seems that the applicant bank is interested to harass the defendants. The defendants further pleaded that the defendants proposed some purchaser before the applicant bank but the applicant bank refused to talk to them very rudely. The defendants further pleaded that the applicant bank is restrained by the Hon'ble Supreme Court of the land to proceed in order to recover the loan amount from the residential portion of the directors of the borrower company until unless they shall proceed to auction the property in which the cold storage plant alongwith land appurtenant thereto is more than Rs. 5.00 Crores and as such the Hon'ble Apex Court of the land had directed the applicant bank to auction the property i.e. the cold storage plant and machineries and land appurtenant thereto at first instance but the applicant bank is adamant to proceed against the order dated 16.2.2016 passed by the Hon'ble Apex Court which is highly arbitrary, illegal and bad in the eyes of laws. The defendants further pleaded that the defendants are ready to settle the matter amicably outside from the Ld. Tribunal but the applicant bank failed to talk in a positive manner since the directors of the company proposed some purchasers who was interested to purchase the property at a high value which was published in daily newspaper on 05.2.2017 and ultimately requested to dismiss the Original Application.

15. In support of the Original Application, the applicant bank has filed evidence on affidavit of P.W. 1 Sri R.B. Ved, constituted Attorney of the applicant bank and the defendants filed Affidavit of Sri Ashok Kumar Shukla (Defendant No. 2).

16. I have heard the Ld. Counsel for the parties and also gone through the pleadings and documents on record.

17. The Ld, Counsel for the applicant bank submitted that the bank has duly proved all the documents on file as required under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and thereafter submitted that the defendants are willful defaulters as defendants availed the credit facility to their advantage but failed to maintain the financial discipline of the bank. The defendants also failed to honour their commitments given in loan documents and defendants have failed to deny transaction, creation of security interest, availment of loan, default and further admitted the liability before respondent bank in Hon'ble Supreme Court, as such the Original Application may be allowed and bank will be abide by the orders of Hon'ble Supreme Court.

18. I have gone through the loan documents, Exhibit A-1 to Exhibit A-43 of the Original Application and also considered the submission made by counsel for the applicant bank. The evidence produced by the bank remains un-rebutted. There is no reason to disbelieve the same. The Bank has proved execution of loan documents, hypothecation of plant & machinery, stocks, goods etc., mortgage of properties by defendant Nos. 2 & 3, availment of loan and default committed by the defendants and even otherwise the defendants failed to deny all such facts. I have considered the claim of the bank, the claim of the applicant bank is within time in view of execution of loan documents on 10.1.2012, 03.11.2012, 20.3.2015 and operation in loan account. The disputes regarding affixation of valuation under securitization process cannot be looked into in an application u/s. 19 of Recovery of Debts Due to Banks & Financial Institutions Act, 1993, if at all the defendants are aggrieved with such measure they may avail appropriate legal remedy prescribed under Section Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. I feel fair to observe that if defendants proposed some purchaser to the bank, the bank is under obligation to give patience hearing to the defendants as well as said purchaser provided they can come with some plausible and concrete proposal but if that proposal is to delay the process of recovery and to gain time that can be shredded of.

19. In a Special Leave Petition No. 4512 of 2016 filed by the defendants, the Hon'ble Supreme Court has pleased to passed following orders on 16.2.2016:-

It has been submitted by him that the amount payable by the petitioner to the respondent-creditor Bank, is approximately Rs. 3,41,00,000/- (Rupees three crores and forty one lakhs only) and according to him, the value of his cold storage plant along with land appurtenant thereto is more than Rs. 5,00,00,000/- (Rupees five crores only), hence there are all chances that the said property would fetch more than Rs. 5,00,00,000/'- (Rupees five crores only) and from the sale proceed thereof, it would be possible to pay the entire amount payable to the respondent-creditor-Bank. It has been further submitted that if the said cold storage plant and the land appurtenant thereto are sold first, it would not be necessary to sell the residential house which is occupied by the petitioner,

The afore-stated submission made by the learned counsel for the petitioner appears to be quite fair and therefore, we direct the respondent-Bank to auction the property No. 2 (as stated in the advertisement) i.e. the cold storage plant and machinery and the land appurtenant thereto at first instance. If the amount realised therefrom is more than the amount which is payable to the respondent-creditor Bank, the residential bungalow of the petitioner shall not be sold.

In view of the afore-stated direction, the Special Leave Petition stands disposed of.

20. The parties to lis will be abide by the directions given in the said Special Leave Petition by the Hon'ble Supreme Court.

21. As per the statement of accounts on the date of filing of Original Application, the defendants was liable to pay Rs. 3,88,42,999.00 (Rs. Three Crore Eighty Eight Lac Forty Two Thousand Nine Hundred Ninety Nine only) and the applicant Bank has further claimed pendente lite and future interest @ 11.20% per annum with monthly rests to which the bank is entitled to. The hypothecated assets and mortgaged properties as well as other personal movable and immovable properties of the defendants are liable to be sold for the recovery of amount due. The liability of defendant Nos. 1 to 3 is/will be joint and several.

22. As a result, the Original Application No. 626 of 2016 allowed on contest against the defendants with costs.

It is, therefore ordered:-

(i) That the Original Application No. 626 of 2016 initiated by the applicant bank for issuance of Recovery Certificate to the tune of Rs. 3,88,42,999.00 (Rs. Three Crore Eighty Eight Lac Forty Two Thousand Nine Hundred Ninety Nine only) together with pendente

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lite and future interest @ 11,20% per annum with monthly rests hereby succeeds and is allowed against the defendants with costs. The defendants are directed to pay the dues within a period of two months from the date of judgment, failing which the applicant bank will be entitled to sell the hypothecated assets, mortgaged properties of defendant Nos. 2 & 3 and other personal movables and immovable properties of the defendants. The applicant bank is further entitled to pendente lite and future interest on the amount due @ 11.20% per annum from the date of filing of this O.A. till the full recovery is made from the defendants. (ii) Let a Recovery Certificate be issued along with memo of costs immediately u/s. 19(22) of Recovery of Debts Due to Banks and Financial Institution Act, 1993 together with the details of the properties (as detailed in O.A.) by fixing 03.7.2017 before Ld. Recovery Officer, DRT, Allahabad. The Ld. Recovery Officer before proceeding further will take of orders passed by Hon'ble Supreme Court in Special Leave Petition No. 4512 of 2016. (iii) The defendants are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating or in any way dealing with their properties/assets without first paying the claim of the applicant bank. (iv) However, the parties to lis would be abide by the directions given by the Hon'ble Supreme Court in Special Leave Petition No. 4512 of 2016 passed on 16.2.2016 for all times. Judgment is completed, pronounced in the open court.
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