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



Kotak Mahindra Bank Limited v/s Capricorn Food Products India Ltd.,


Company & Directors' Information:- MAHINDRA AND MAHINDRA LIMITED [Active] CIN = L65990MH1945PLC004558

Company & Directors' Information:- KOTAK MAHINDRA BANK LIMITED [Active] CIN = L65110MH1985PLC038137

Company & Directors' Information:- CAPRICORN FOOD PRODUCTS INDIA LIMITED [Active] CIN = U15499TN1998PLC041231

Company & Directors' Information:- B. P. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MP1994PTC032994

Company & Directors' Information:- INDIA FOOD COMPANY PRIVATE LIMITED [Active] CIN = U15133MH2006PTC161188

Company & Directors' Information:- P P PRODUCTS PVT LTD [Active] CIN = U32305WB1991PTC051091

Company & Directors' Information:- S P P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412DL2004PTC128666

Company & Directors' Information:- K K PRODUCTS LIMITED [Active] CIN = U31300DL1991PLC045521

Company & Directors' Information:- K B PRODUCTS PRIVATE LIMITED [Active] CIN = U51909MH2007PTC169627

Company & Directors' Information:- J S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314OR1991PTC002964

Company & Directors' Information:- K G PRODUCTS PRIVATE LIMITED [Active] CIN = U51909PB2007PTC031201

Company & Directors' Information:- KOTAK AND COMPANY PRIVATE LIMITED [Active] CIN = U51900MH1995PTC094071

Company & Directors' Information:- H R B FOOD PRODUCTS PVT LTD [Active] CIN = U15146WB1988PTC045281

Company & Directors' Information:- S S P PRODUCTS PRIVATE LIMITED [Active] CIN = U22110WB1974PTC210201

Company & Directors' Information:- M L B PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC040990

Company & Directors' Information:- V D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400DL2012PTC231717

Company & Directors' Information:- O. S. FOOD PRIVATE LIMITED [Active] CIN = U15119DL2006PTC152903

Company & Directors' Information:- M M PRODUCTS LIMITED [Strike Off] CIN = U28994DL1992PLC050955

Company & Directors' Information:- M P K PRODUCTS PVT LTD [Active] CIN = U26919AS1994PTC004183

Company & Directors' Information:- P R FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC030483

Company & Directors' Information:- G K PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC043260

Company & Directors' Information:- S S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15310MH2003PTC142530

Company & Directors' Information:- B K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15312OR1996PTC004541

Company & Directors' Information:- N R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51109AS1998PTC005561

Company & Directors' Information:- C L PRODUCTS INDIA LIMITED [Active] CIN = U51909DL2002PLC116975

Company & Directors' Information:- K. S. A. PRODUCTS PRIVATE LIMITED [Active] CIN = U51220PB2014PTC039023

Company & Directors' Information:- O H P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U52205DL1999PTC100269

Company & Directors' Information:- K V FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15122DL2007PTC162739

Company & Directors' Information:- K. C. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15431JK1982PTC000554

Company & Directors' Information:- G I S FOOD PRIVATE LIMITED [Active] CIN = U15412DL2002PTC117761

Company & Directors' Information:- K I C FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15316DL1979PTC009757

Company & Directors' Information:- D. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U52320DL2011PTC213508

Company & Directors' Information:- T F FOOD PRIVATE LIMITED [Active] CIN = U15122MH2012PTC232222

Company & Directors' Information:- R B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15313DL2010PTC202753

Company & Directors' Information:- R K B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490KL2013PTC033500

Company & Directors' Information:- R S PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036603

Company & Directors' Information:- R R PRODUCTS PRIVATE LIMITED [Active] CIN = U24249HR1999PTC034291

Company & Directors' Information:- I G PRODUCTS PRIVATE LIMITED [Active] CIN = U74999WB2012PTC183503

Company & Directors' Information:- S K G FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15419UP1991PTC013771

Company & Directors' Information:- J S R PRODUCTS PRIVATE LIMITED [Active] CIN = U31908DL2007PTC170841

Company & Directors' Information:- C F C PRODUCTS PRIVATE LIMITED [Active] CIN = U28129DL1998PTC095531

Company & Directors' Information:- B H FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15134DL1997PTC084273

Company & Directors' Information:- N S FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1992PTC055591

Company & Directors' Information:- M S PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC055125

Company & Directors' Information:- B R PRODUCTS PRIVATE LIMITED [Active] CIN = U31909DL1999PTC100727

Company & Directors' Information:- S P B PRODUCTS LIMITED [Active] CIN = U51909DL1996PLC082631

Company & Directors' Information:- H N FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15146UP1990PTC011540

Company & Directors' Information:- V K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412UP1988PTC010023

Company & Directors' Information:- G K D PRODUCTS PRIVATE LIMITED [Active] CIN = U15431WB1998PTC086840

Company & Directors' Information:- M B R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17111WB1993PTC060806

Company & Directors' Information:- P D PRODUCTS PRIVATE LIMITED [Active] CIN = U23201DL2000PTC108462

Company & Directors' Information:- S K M PRODUCTS PRIVATE LIMITED [Active] CIN = U18101DL1998PTC093415

Company & Directors' Information:- H R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1978PTC009183

Company & Directors' Information:- V S PRODUCTS PRIVATE LIMITED [Active] CIN = U36900DL2008PTC185445

Company & Directors' Information:- H K PRODUCTS LIMITED [Active] CIN = U51900GJ2015PLC085457

Company & Directors' Information:- S R K PRODUCTS PRIVATE LIMITED [Active] CIN = U51221KA1989PTC010032

Company & Directors' Information:- G M PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC044687

Company & Directors' Information:- V T N PRODUCTS PVT LTD [Active] CIN = U51109WB1996PTC080094

Company & Directors' Information:- B M FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15419WB1993PTC060386

Company & Directors' Information:- I K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1991PTC051852

Company & Directors' Information:- S S V FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15499AP1982PTC003547

Company & Directors' Information:- P L FOOD PRIVATE LIMITED [Active] CIN = U74899DL1985PTC021305

Company & Directors' Information:- W S T Q PRODUCTS PRIVATE LIMITED [Active] CIN = U31300DL1999PTC102655

Company & Directors' Information:- J M K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24246OR2005PTC008446

Company & Directors' Information:- S Q P FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15100MH2003PTC139217

Company & Directors' Information:- F S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MH2000PTC126031

Company & Directors' Information:- Z K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400MH2010PTC209818

Company & Directors' Information:- G S T PRODUCTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31909TN2006PTC059575

Company & Directors' Information:- M B S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U01112WB2003PTC096375

Company & Directors' Information:- S M P PRODUCTS PRIVATE LIMITED [Active] CIN = U25200DL2009PTC190965

Company & Directors' Information:- N D FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15131DL2002PTC115754

Company & Directors' Information:- S N S PRODUCTS PRIVATE LIMITED [Active] CIN = U15490DL2005PTC142749

Company & Directors' Information:- U B PRODUCTS PRIVATE LIMITED [Active] CIN = U51224DL2002PTC116457

Company & Directors' Information:- A AND A PRODUCTS PRIVATE LIMITED [Active] CIN = U21098MP2004PTC017128

Company & Directors' Information:- V J PRODUCTS PRIVATE LIMITED [Active] CIN = U36900GJ2011PTC065252

Company & Directors' Information:- S AND A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51311DL1991PTC042938

Company & Directors' Information:- S AND G PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL1982PTC014843

Company & Directors' Information:- B P PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24241WB1999PTC089499

Company & Directors' Information:- C K M FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909KL1998PTC012358

Company & Directors' Information:- D AND P PRODUCTS LIMITED [Amalgamated] CIN = U99999MH1951PTC008422

Company & Directors' Information:- S D H PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U55204KA2006PTC040734

Company & Directors' Information:- V M PRODUCTS PRIVATE LIMITED [Active] CIN = U24100DL2014PTC266679

Company & Directors' Information:- E C A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U27209TN1987PTC014022

Company & Directors' Information:- G S C FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15316WB1985PTC038398

Company & Directors' Information:- A K G FOOD PRODUCTS PVT LTD [Under Liquidation] CIN = U15412WB1990PTC049789

Company & Directors' Information:- J M D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15419DL1998PTC097578

Company & Directors' Information:- G S PRODUCTS LIMITED [Strike Off] CIN = U25191UP1989PLC010483

Company & Directors' Information:- L K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15200TG2016PTC103411

Company & Directors' Information:- FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15431JK1966PTC000304

Company & Directors' Information:- A R K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24231UP1978PTC004606

Company & Directors' Information:- S. M. PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17299DL1966PTC004634

Company & Directors' Information:- R R FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2015PTC154753

Company & Directors' Information:- R K D FOOD PRIVATE LIMITED [Strike Off] CIN = U74999MH2014PTC253447

Company & Directors' Information:- R. M. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U74999MH2017PTC298120

Company & Directors' Information:- A N FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400TG2013PTC091969

Company & Directors' Information:- S G L FOOD PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC057688

Company & Directors' Information:- P & Q PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL2014PTC269162

Company & Directors' Information:- R V S K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490DL2012PTC245851

Company & Directors' Information:- K G Y FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400KA1984PTC005909

Company & Directors' Information:- H T PRODUCTS PVT LTD [Strike Off] CIN = U29266WB1981PTC033424

Company & Directors' Information:- PRODUCTS (INDIA) LTD [Strike Off] CIN = U31901WB1961PLC024991

Company & Directors' Information:- FOOD PRODUCTS (INDIA) PVT. LTD. [Strike Off] CIN = U15311HR1994PTC032356

Company & Directors' Information:- M PRODUCTS & CO PVT LTD [Strike Off] CIN = U51909WB1956PTC023215

Company & Directors' Information:- M K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15209DL1979PTC009924

    OA. No. 328 of 2020

    Decided On, 06 October 2020

    At, Debts Recovery Tribunal Chennai

    By, THE HONOURABLE DR. N.V. BADARINATH
    By, PRESIDING OFFICER

    For the Appearing Parties: ---------



Judgment Text

1. This is a petition filed by the applicant bank for appointment of Advocate Commissioners for the purpose of taking inventory of the hypothecated stocks available at the plants of the 1st respondent situated at (1). Palagunta, Satyavedu Mandal, Chittoor District, Andhra Pradesh, PIN - 517588 (2) Kalguddapatti, Palakodu Road, Banni Halli Post, Kaveripatnam, Krishnagiri District, Tamilnadu -635106 and (3).Gonglu Agro Pvt Ltd, Gut No. 207,211,213, Village Jaitpur, Taluk Chandwad, District Nashik- 423101, to seize and to sell the same .2. This Tribunal vide its order dated 07.09.2020 appointed, ex-parte, three Advocate Commissioners for the purpose of taking inventory of the hypotheca and to deliver the stock to the petitioner for proper custody and maintenance. Subsequently, the Respondents 1 to 3 entered appearance, filed their counter and also a separate IA viz., 472/2020 to recall the above order dated 7.9.2020. The respondent bank filed its counter in IA 472/2020.3. In the above backdrop on 28.09.2020 when IA 403/2020 was taken up for enquiry this Tribunal after having heard the Ld. Counsels for both sides in part besides considering the undeniable fact that the subject hypotheca which is a fruit pulp is a highly perishable item, wanted to know from both the parties whether there can be any consensus between the parties for immediate disposal of the hypotheca by way of sale, as the sale of the Hypotheca through the Advocate Commissioners has faced some resistance and is time consuming. Pursuant thereto, Ld. Counsels for both sides agreed to work out and subsequently, on 6.10.2020 filed Joint Memorandum of Terms, inter alia, agreeing for sale of the hypotheca valued tentatively at Rs.156.04 crores (as per stock statement dated 31.8.2020),with full transparency and also for routing the current as well as all the future sale proceeds into the Kotak Mahindra Bank account (Applicant),which account shall be construed as designed by the consortium, however by stating that the Joint Memorandum has been entered without prejudice to the contentions of the applicant as well as the defendants 1to3.Having thus filed a Joint Terms of Memorandum, Ld. Counsel for both parties prayed the Tribunal to record the same and pass orders as expeditiously as possible.4. At this juncture, Mr. Seshadri, Ld. Advocate, submitted that he has been instructed by the 6th defendant (RBL Bank) to appear in this matter and therefore he may be heard in this petition, the applicant be directed to serve the copies of the Joint Memorandum and pending service and hearing the 6th respondent on the joint memorandum the Tribunal may defer recording the terms of Joint Memorandum..5. Ld. Counsel for the applicant bank Mrs. Ananda Gomathi, while strongly opposing the said plea, at the outset submitted that the applicant bank has not sought any relief in this petition against the 6th respondent which is a member of the consortium and that the Joint Memorandum is entered only to ensure that the hypothecated stock which is a highly perishable item is disposed of immediately thereby avert its quality deterioration. Ld. Counsel further submitted that the Joint Memorandum provides for keeping the said sale proceeds in deposit in an account with the applicant bank, which account shall be construed as designed by the consortium. It is the firm contention of the Ld. Counsel that forthwith disposal of the hypotheca will protect the interest of not only the applicant bank but also of the rest of the members of consortium including the 6th defendant, therefore, it is not necessary to adjourn the matter for the purpose of hearing the 6th respondent.6. Mr. Srinath Sridevan, Ld. Counsel for Respondents 1 to 3 submitted that the hypothecated stock is highly perishable as such it is imperative to dispose of the stocks as expeditiously as possible hence to facilitate immediate sale of the stock the Joint Memorandum is entered. Ld. Counsel also submitted that immediate sale of the hypotheca will protect the interest of all the members of the consortium therefore, hence it is not at all necessary to hear the 6th respondents at this stage.7. Having heard the Ld. Counsels for both sides, and also Mr. Sheshadri, Ld. Advocate, at the threshold, it is to be stated that the submissions of the Ld. Counsel Mr. Seshadri that the 6th Respondent be heard before recording the terms of the above joint memorandum and pending hearing the 6th respondent no order be passed, is unacceptable and unnecessary for the following reasons.(i) Firstly, the 6th Respondent has not challenged the order appointing Advocate Commissioners for seizure and also for the sale of the hypothecated stock passed on 7.9.2020 by this Tribunal.(ii) Nextly, the Joint Memorandum now filed is to enable quick disposal of the hypothecated stock which indisputably is highly perishable and thus avoid/prevent delay, quality deterioration and ultimately its value.(iii) The terms of the Memorandum specifically state that the sale proceeds will be deposited in an account of Kotak Mahindra Bank, which shall be construed as an account designed by the consortium, thus, the interest of all the members including the 6th respondent of the consortium is well protected.(iv). It is always open to the 6th respondent to raise objection if any, regarding the appropriation of the sale proceeds if the same is found to be contrary to the terms of the consortium agreement or the Paripassu charge, at the time of appropriation of sale proceeds.(v) The 6th defendant had not even filed vakalat or even a memo of undertaking to file vakalat in due course.8. Therefore, the Tribunal, is of the view that no prejudice will be caused to the 6th respondent if the 6th defendant is not heard on the Joint Terms of Memorandum at this stage of the proceedings.9. Therefore, having heard the Ld. Counsels, supra, and on careful perusal of the Joint Memorandum dated 6.10 2020, the Tribunal is satisfied that the terms of the same are not detrimental to the interests of any of the stake holders, and would in fact protect their interest, hence the following order is passed:I. The order appointing the Advocate Commissioners dated 07.09.2020 shall continue to remain in force until further orders, however with the following modifications: (a). The Advocate Commissioners shall visit each of the factories of the 1st defendant mentioned in the commission warrant and inspect the stocks of the 1st defendant therein and submit biannual (twice a year) reports to this Tribunal. (b) The 1st defendant shall fully cooperate with the learned Advocate Commissioners who shall be accompanied by one representative of the consortium and one representative of 1st defendant, for the above purpose. (c) The 1stdefendant is hereby allowed to work out the ways and means to take forward the existing orders as follows;(i) Order of M/s Capricorn Food Products India Ltd (CFPIL)from Hindustan Coco-Cola Beverages Pvt Ltd for purchase of 4,408 Mt of Mango Pulp for a sum of Rs.23,03,18,000/- (Twenty three crores three lakhs and eighteen thousand only).(ii) Pending supply of 2334 MT must be affected by 30.11.2020, and payment will be made by the respondents on receipt of supply.(iii) The 1st defendant will dispatch 2324 MT of stocks to M/s Hindustan Coco Cola Beverages P Ltd., from 1.10.2020 onwards and submit the Lorry Receipts to Kotak. CFPIL will also raise invoice on M/s Hindustan Coco Cola Beverages P Ltd. for Rs.13.6 Cr inclusive of GST, with a request to wire the same to the Applicant Banks A/c. The Applicant Bank shall ensure that the GST amount of this sale is paid to the department.(iv) The Applicant Bank shall distribute all moneys as per Consortium Agreement according to the Paripassu charge of the member banks. IB. Future Orders (a) The 1st defendant will be entitled to aggressively market the remaining stocks with various buyers. If buyers are related parties (namely, Shuchi Beverages Limited, Gonglu Agro Pvt. Ltd), then, no order shall be serviced until full details are given to the Consortium lenders and approval is obtained. (b) That whenever any order for fruit pulp is received, the following process shall be followed: -(i) If the order is from a related party, then, the approval as per clause above shall be obtained before servicing the order.(ii) If the order is from a third party, 1st defendant can proceed to service the order immediately in the following manner. (a). 1st defendant shall submit the Purchase Order / Confirmation email to the Consortium. Unless Consortium objects to the Purchaser Order / confirmation email with copy to the advocate commissioner within 7 business days, the 1st defendant shall proceed to fulfill the order. (b) 1st defendant shall move the stock to the purchaser, and submit the lorry receipts / BL to Kotak Mahindra Bank Ltd and the advocate commissioner. Advocate Commissioner shall ensure that the goods dispatched as per lorry receipt matches the quantity as per Purchaser Order. (c) 1st defendant shall raise the invoice, ensuring that the invoice proceeds are payable only into the account maintained by 1st defendant with applicant bank.II. As and when the proceeds are received, Applicant Bank shall duly account for the same, and Applicant Bank shall file a Memo recording the receipt of funds received to its credit after distribution between consortium members thereby reducing the OA claim (which includes the interest serviceable) to that extent.III. No hypothecated stocks shall be sold except by following the above procedure.IV. Both parties shall cooperate at the time of biannual visits by the Commissioner for verification of the stocks and also at the time of sale of hypotheca by the Advocate Commissioner. V Expenses of CFPIL (a) The applicant in consultation with consortium should consider reasonably the release of funds to the 1st defendant for critical operations such as salaries, wages of labourer

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s, EB, Logistics, Transport, raw material, packaging material and GST etc.VI. The first defendant shall store the hypothecated stocks in optimum storage conditions to maximize the shelf life of the hypothecated stocks.VII. The Advocate Commissioner shall be entitled to inspect the hypothecated stock at Satyavedu, Krishnagiri, and other places wherever they are stored on biannual basis and submit report to this Tribunal.VIII. The Advocate Commissioner shall give reasonable notice to 1st defendant for execution of the warrant, and the respondents 1 to 3 shall cooperate with the advocate Commissioner.IX. It is hereby recorded that the Joint Memorandum is entered by the parties without prejudice to their respective contentions.X. The warrant issued to the Advocate Commissioners is hereby recalled and the Registry is hereby directed to forthwith issue a fresh warrant incorporating the condition Nos. I(a)(b), IV, VII &VIII above and also the conditions nos.(f) (g) (h)(i) (j) (k) (l) of the order dated 07.09.2020. For compliance and for report of the Advocate Commissioners. Call on 9.11.2020.
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