1. Initially, Andhra Bank, Raj Bhavan Road, Hyderabad filed the present Original Application u/s. 19 of the Recovery of Debts and Bankruptcy Act, 1993 for recovery of a total sum of Rs. 2,34,30,698/- i.e., a sum of Rs. 2,31,21,474/- under SOD loan facility and a sum of Rs. 3,09,223.93 ps under Term Loan account from the defendants 1 to 7 jointly and severally with future interest @14.20% p.a. compounded monthly from 01.09.2017 till the date of realization together with costs and in default for sale of OA schedule properties. Subsequently, Andhra Bank assigned the debt along with securities in favour of M/s. Maximus ARC Ltd. (applicant) under assignment agreement dated 20.12.2017. Accordingly, M/s. Maximus ARC Ltd. ("applicant") substituted Andhra Bank ("assignor bank") as applicant in this OA vide order dated 10.07.2018 in IA No. 1577/2018.
2. The case of the applicant, in brief, is that 1st defendant company represented by 2nd defendant as its Managing Director initially availed OCC loan facility of Rs. 20 lakhs, CBP loan facility of Rs. 1 lakh, ILC loan facility of Rs. 14 lakhs and Bank Guarantee facility of Rs. 9 lakhs totalling to Rs. 44 lakhs from the assignor bank vide sanction letter dated 14.01.2008 against primary security of hypothecation of OA schedule-A properties and equitable mortgage of OA schedules-B to F immovable properties belonging to defendants 2 to 5 besides personal guarantees of defendants 2 to 7. The 2nd defendant representing 1st defendant company executed loan documents such as DP Note, composite agreement on 29.03.2008. Defendants 2 to 5 deposited the title deeds of the OA schedules-B to F immovable properties pertaining to them with the assignor bank towards security for the credit facilities sanctioned to 1st defendant company. At the request of defendants, the assignor bank enhanced/renewed the credit facilities from time to time under sanction letters dated 24.06.2009, 23.06.2010, 05.11.2011, 26.03.2013 and 19.09.2014 and the securities and personal guarantees have been extended to the renewed/enhanced limits. Apart from the said enhanced limits, the 1st defendant also availed a loan of Rs. 1 lakh for purchase of raw material under sanction letter dated 25.11.2014 by executing DP Note and the said temporary overdraft facility was repaid/stands adjusted from the payments made by defendants on 05.12.2014. The National Small Industries Corporation Ltd. (NSIC) being beneficiary invoked the Bank Guarantee and accordingly assignor bank made payments to NSIC to a tune of Rs. 50 lakhs on 10.03.2016 and 18.03.2016. After availing various credit facilities, though made some part payments and acknowledged the liability on 31.10.2015, the 1st defendant company failed to repay the loan amount in spite of several requests and demands and therefore, the loan account became NPA. The assignor bank issued demand notice dated 19.03.2016 u/s. 13(2) followed by possession notice dated 29.09.2016 u/s. 13(4) of Securitization Act against secured assets. In spite of notices, the defendants did not come forward to liquidate the liability. The applicant being assignee of debt along with securities is entitled to recover the loan dues together with interest, penal interest and costs.
3. The defendants 1 and 3 filed written statement which has been adopted by defendants 2, 4 to 7. The submissions of the defendants, as per the written statement, in brief, are that;- the defendants have been banking with assignor bank from 1997 onwards and availed various credit facilities. But in 2015, the assignor bank did not renew the credit facilities and NSIC started invoking Bank Guarantees, due to which the 1st defendant faced downfall in business. The assignor bank did not provide support to 20 years old company involving 35 families to revive by OTS or restructure. The outstanding due as on the date of NPA i.e., in January, 2016 was only Rs. 1.88 crores whereas it came upto Rs. 3.30 crores due to charging of interest. The assignor bank did not provide any opportunity to regularize the account. Various payments made by the defendants are not reflected in loan account. The interest charged to loan account is against agreement. The OA is liable to be dismissed.
4. In order to prove its case, the applicant company examined K. Hari Krishna, Assistant Vice President as AW-1 and marked 61 documents through him as Exs. A.1 to A.61.
5. In order to substantiate the defence, the 1st defendant company examined its Manager-Operations Kode Dinesh Kumar as DW-1 and 2nd defendant B. Vasanthy examined herself as DW-2.
6. Heard learned counsel appearing for the applicant, learned counsel appearing for the defendants. Perused the written arguments submitted by the defendants and the material brought on record.
7. It is contended by learned counsel appearing for the applicant that 1st defendant is a Company and it is represented by its Managing Director. The 1st defendant company availed various credit facilities totalling to Rs. 44 lakhs pursuant to Ex. A.3 sanction letter dated 14.01.2018. Defendants 2 to 7 stood as guarantors and executed Ex. A.9 guarantee agreement. 1st defendant company hypothecated the movable properties morefully described in OA schedule-A. Defendants 2 to 5 mortgaged OA schedules-B to F properties and confirmed the same. Subsequently, the limits came to be renewed/enhanced on 24.06.2009, 23.06.2010, 05.01.2011, 26.03.2013 and 19.09.2014 vide Exs. A.10, A.13, A.24, A.32 and A.41. As and when credit limits renewed/enhanced, defendants executed fresh set of loan documents and extended the securities. The 1st defendant company submitted Ex. A.45 letter dated 25.11.2014 to assignor bank for grant of loan of Rs. 1 lakh for purchasing raw material. The assignor bank considered the request of the 1st defendant company and sanctioned loan of Rs. 1 lakh and thereupon the 1st defendant company executed Ex. A.46 demand pronote dated 25.11.2014. The defendants acknowledged the debt under Ex. A.47 letter dated 31.10.2015. The 1st defendant having availed the credit facilities, committed default and thereupon the assignor bank classified the loan account as NPA and initiated measures under the provisions of Securitization Act and issued Ex. A.56 demand notice dated 19.03.2016 under Sec. 13(2) of Securitization Act. A sum of Rs. 1,01,61,773/- has been realized by sale of OA schedule-B and C properties pending the OA and the same is credited to the loan account. Since the properties are not enough to satisfy the OA claim in the event of it being allowed, the applicant filed IA No. 3861/2018 seeking attachment of defendants 2 and 3 property. The applicant examined K. Hari Krishna, Assistant Vice President as AW-1 and marked 61 documents through him as Exs. A.1 to A.61. A further contention has been advanced that the assignor bank assigned the debt along with securities to the applicant pending the OA under Ex. A.2 assignment agreement dated 20.12.2017 and thereupon the applicant filed IA No. 1577/2018 seeking substitution of it in the place of assignor bank and the same is allowed and that the assignee substituted in the place of assignor bank in the OA proceedings. According to learned counsel, the evidence of AW-1 coupled with recitals in Exs. A.1 to A.61 amply proves the OA claim against the defendants and OA schedule properties and therefore OA deserves to be allowed against the defendants and OA schedule properties.
8. Per contra, learned counsel appearing for the defendants submits that the 1st defendant has been availing credit facilities from assignor bank since the year 1997. The assignor bank negatived the request of the 1st defendant company to renew the credit facilities in the year 2015 and it resulted in invocation of Bank Guarantee by the beneficiaries. Because of non-renewal of credit facilities, the business of 1st defendant company has been badly affected. The assignor bank classified the loan account as NPA without providing opportunity to the 1st defendant company. Debiting of interest to the loan account after its classification as NPA is opposed to the guidelines issued by Reserve Bank of India. The outstanding balance as on the date of NPA in January, 2016 was only Rs. 1.88 crores. In a nut-shell, the submission of learned counsel is that due to non-support at the right time from the assignor bank, the 1st defendant company suffered huge loss in business and all the receivables got stuck with the contractors. Learned counsel referred the evidence of DW-1 and DW-2 in support of his contentions. With these submissions, learned counsel sought for dismissal of the OA claim against the defendants.
9. Now, the points that arise for adjudication are:-
i) Whether the applicant bank proved the OA claim against the defendants and OA schedule properties?
ii) To what relief?
Point No. (i):-
10. It is the matter of record that pending the OA the applicant bank initiated measures against the OA schedule properties under the provisions of Securitization Act and Rules framed thereunder and realized a sum of Rs. 1,01,61,773/- by auction of OA schedule-B and C properties. The applicant filed Memos dated 11.02.2019 and 12.03.2019 for recording part satisfaction. Accordingly OA subsists against defendants and OA schedule-A, D to F properties. DW-1 and DW-2 who are the Manager-Operations and Authorized Signatory of 1st defendant company and 2nd defendant respectively, do not dispute of availment of credit facilities, hypothecation and mortgage of OA schedule properties. Initially the assignor bank sanctioned various credit facilities to a tune of Rs. 44 lakhs to 1st defendant company pursuant to Ex. A.3 sanction letter dated 14.01.2008. Subsequently credit limits came to be renewed/enhanced under Exs. A.10, A.13, A.24, A.32 and A.41 sanction letters. The loan documents executed by the defendants have been marked through AW-1. The grievance of the defendants is that the business of 1st defendant came to be badly affected because of non-renewal of credit facilities by the assignor bank in the year 2015. But no document has been placed on record by the 1st defendant as proof of request for renewal of credit limits. In the absence of any such proof, the assignor bank cannot be found faulted for financial constraints of 1st defendant company. It is not the case of defendants that they were prompt in repayment of the loan dues. Indeed, the beneficiaries under the Bank Guarantee invoked the Bank Guarantee and thereupon assignor bank paid Rs. 50 lakhs to the beneficiaries. The applicant is the assignee of debt along with securities under Ex. A.2 assignment agreement. The applicant being the assignee stepped into the shoes of assignor bank to recover the OA claim.
11. The evidence of AW-1 coupled with recitals in Ex. A.1 to Ex. A.61 amply proves the OA claim minus Rs. 1,01,61,773/- realized by auction of OA schedule-B and C properties under the provisions of Securitization Act and OA schedules-A, D to F properties and accordingly OA deserves to be allowed.
Point No. (ii):-
12. In the result, the present Original Application is allowed with costs, as under:-
i) The defendants 1 to 7 jointly and severally are liable to pay to the applicant a total sum of Rs. 2,34,
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30,698/- i.e., a sum of Rs. 2,31,21,474/- under SOD loan facility and a sum of Rs. 3,09,223.93 ps under Term Loan account minus Rs. 1,01,61,773/- with future interest @12.20% p.a. simple from the date of filing of the OA till the date of realization; ii) The claim of the applicant is secured by way of hypothecation of OA schedule-A movable properties and mortgage of OA schedules-D to F immovable properties and the applicant bank is entitled to proceed against the same towards realization of its debt; iii) The applicant is also entitled to proceed against the IA No. 3861/2018 schedule property pertaining to defendants 2 and 3 towards realization of its debt; iv) The applicant is entitled to proceed against the person and properties of defendants towards realization of its debt; v) The applicant is entitled to the costs of the OA. 13. The applicant is directed to file cost memo within 2 weeks from the date of this Order. 14. Issue Recovery Certificate accordingly. 15. Communicate a copy of this order to the parties concerned. (Dictated to the PS, transcribed by him, corrected, signed and pronounced by me in the open court on this the 03rd February, 2020).