Baraun Textile Processor vs Bank Of Baroda

S.N.H. Zaidi, J

Mr. Bansal points out that in compliance of the order dated 28.10.2013, an affidavit of Smt. Geeta Goyal, one of the partners of the appellant firm, has already been filed and the affidavit of the other partner Rakesh Kumar Goel, which could not be filed as he is in preventive detention under COFEPOSA, is being filed today with the attestation of the Superintendent of Jail, Ludhiana. The affidavit is taken on record. Mr. Bansal submits that as per the said affidavits, the appellants have undertaken to deposit Rs. 200 lacs, the remaining amount of the OTS along with interest @ 14.75% p.a., within six months from today. He further submits that the OTS for Rs. 11,20,40,000/- was accepted by the Bank and the amount was to be deposited by a certain date, which was later extended up to 30.6.2013, but due to certain circumstances the entire amount could not be deposited and Rs. 9,20,40,000 could only be deposited up to 3.4.2013 and a further sum of Rs. 5 lacs was deposited on 2.8.2013 and the remaining amount would be deposited within six months along with interest.

Heard parties Counsel on admission. This appeal has been directed against the order dated 11.10.2013 of DRT-II, Chandigarh passed in SA RR 309/2013 whereby the interim relief sought by the SA applicants/appellants has been declined.

Mr. Bansal submits that when the respondent Bank proceeded to take action under the SARFAESI Act against the secured asset, an S.A. was filed which is still pending disposal before the Tribunal below and the pleas raised therein qua the actions of the Bank are yet to be decided. He further submits that after the classification of the loan account as NPA the Bank had restructured the loan and the account became standard hut the Bank again issued demand notice under Section 13(2) of the SARFAESI Act without classifying the account as NPA. He also submits that the Bank also did not properly pursue the claim with the ECGC despite the appellants had sent numerous letters to it. It is also submitted by him that one of the mortgaged properties, worth about Rs. 12 crores, is available with the Bank and the appellant was seeking indulgence qua the mortgaged property for some time so that the balance OTS amount could be deposited, which has wrongly been declined by the Tribunal below.

Mr. Aggarwal, on the other hand, opposing these submissions submits that the account was restructured on the request of the appellants and, as per the guidelines of the RBI, the Bank was to see the conduct of the borrower for about a year, but since during this period its conduct was not up to the mark as it failed to pay the settlement amount and conducted itself against the restructuring terms, thus, the demand notice was issued on the basis of the earlier ratification of the account as it was not necessary to again classify the account as NPA and the appellants are required to pay interest @ 14.75% from the date of NPA and not from the date of OTS. He points out that on calculating the interest and after giving adjustment of all the payments made by the appellant, an amount of about Rs. 11 crores is still due on the appellants. He also submits that the possession of the mortgaged property was taken by the Bank, but it was illegally taken back by the appellant after breaking the Bank's lock qua which a report is pending investigation with the concerned police authorities. He also contends that after the expiry of extended period for payment of the settlement amount on 30.6.2013, the GTS has come to an end and the appellants are liable to pay the entire amount of debt due on them.

Considering the submissions of the parties' Counsel and looking to the facts and circumstances of the case, I am of the view that since the issues raised qua the Bank's actions taken under the SARFAESI Act are yet to be adjudicated upon in the SA and a security in the form of the mortgaged property is available with the Bank, it would be proper to put on hold the further measures of the Bank for some time to enable the borrower/appellants to deposit the amount with the Bank. It is, therefore, directed that if the appellants deposit with the Bank a sum of Rs. 50 lacs within 30 days from today and further deposit a sum of Rs. 50 lacs within the next 30 days and file an undertaking on affidavit through its partners to this effect within two weeks with this Tribunal, the Bank shall not proceed against the property in question until the disposal of the S.A. In case of default of payment of amount or failure to file the undertaking, as directed above, the Bank shall be at liberty to proceed in accordance with law. This direction shall, however, not affect the undertaking given by the appellant firm's partners to deposit the balance amount of Rs. 2 crores. The amounts deposited may be appropriated by the Bank towards the appellants' liability. With the above direction, nothing remains to be adjudicated in this appeal, which stands disposed of accordingly.