Edelweiss Assets Reconstruction Company Ltd. vs M/s Polo Amusement Park Ltd. & Ors.

The present case was heard and reserved for order on merits of the case by this Tribunal vide order dated 24.09.2025.

Learned counsel for the appellant submitted that the Tribunal below without considering the entire outstanding amount due has restricted the claim of the appellant to the tune of Rs.6.31 crores. It was further contended that the OTS proposal preferred by the respondents-borrowers were rejected by the appellant-FI through communication dated 26.05.2023, but the Tribunal below without considering it directed the appellant to adjudicate the said proposal and also directed the respondents- borrowers to deposit the amount so proposed by them. It was also contended that the acceptance or rejection of the OTS proposal or any settlement proposal lies solely with the discretion of the appellant and the appellant can not be forced to accept the OTS proposal of the borrower, which has been done by the Tribunal below vide order impugned, hence the same is not sustainable in the eye of law. It was, therefore, prayed that the order impugned may be set aside and the appeal may be allowed.

Learned counsel for the respondents-borrowers submitted that the respondents-borrowers have deposited an amount of Rs.6,15,64,653.73 with the appellant-FI, as such there is nothing due against the respondents-borrowers, but the appellant-FI is not returning the title deed of the mortgaged property to the borrowers. It was further contended that as stated by the appellant that the OTS proposal submitted by the respondents-borrowers has been rejected by the appellant-FI, but the appellant failed to produce any document in this regard either before the Tribunal below or before this Tribunal. It was lastly contended that the appellant-FI may only ask for the interest for the delayed period. It was, therefore, prayed that the appeal filed by the appellant may be dismissed.

I have considered the rival contentions of the learned counsels for the parties and perused the record.

The relevant facts of the present case are that the respondents-borrowers were granted credit facility by the IndusInd Bank vide sanction letter dated 27.07.2016. In order to secure the said facility various security documents were executed and signed by the respondents-borrowers and the respondent no. 3, one of the co-borrowers of the said facility, also created equitable mortgage over his property. Since the borrowers failed to adhere the terms of the loan agreement, therefore, the account was classified as NPA on 24.03.2021 and demand notice dated 13.12.2021 u/s 13(2) of the SARFAESI Act was issued for a sum of Rs.6,31,23,373/- as on 24.11.2021, which was objected to by the borrowers vide letter dated 19.02.2022 and the said objection was rejected by the appellant vide letter dated 04.03.2022. It is averred that the IndusInd Bank after NPA has assigned the said debt to the present appellant vide assignment deed dated 30.03.2021. Since the borrowers did not pay any heed to the said demand, therefore, the appellant issued possession notice u/s 13(4) of the SARFAESI Act and symbolic possession of the property in question was taken. Thereafter, the appellant obtained an order dated 05.12.2022 from the District Magistrate, Ghaziabad, by which the respondents-borrowers were directed to hand over the possession of the property to the appellant-FI.

The respondents-borrowers challenged the aforesaid proceedings before the Tribunal below by filing S.A. No. 273 of 2023, which has been disposed off vide impugned order dated 03.10.2023 with certain directions. Being aggrieved by the said order, the present appeal has been filed by the appellant.

Perusal of the order dated 23.08.2023 passed by the Tribunal below, copy of which is at page no. 146 of the paper book, reveals that the appellant-Bank had accepted the OTS proposal of the borrowers on 02.03.2023 for Rs.6.15 crore on deposit of Rs.4.08 crore, which is also evident from the next order dated 25.09.2023 of the Tribunal below. The said order also shows that the respondents-borrowers sought time to file repayment schedule of the remaining amount i.e. Rs.2.07 crores. The said case was listed before the Tribunal below on 03.10.2023. The Tribunal below vide impugned order dated 03.10.2023 have disposed off the S.A. by passing the orders as under:-

The contention of the appellant that after 26.05.2023, no OTS proposal was given by the borrowers, as the OTS proposal dated 17.03.2023 and 27.04.2023 were rejected by the appellant vide e-mail dated 26.05.2023, is not tenable. In this regard, the paragraph no. X of the memo of appeal is relevant, which says as under:-

The above mentioned facts show that the OTS proposals along with its rejection has been filed by the appellant as Annexure No. 5 collectively to the present appeal, but while going through the said annexure, which is at page no. 143 of the paper book, it is found that there are no documents, as stated above except the proposal dated 27.04.2023. Before and after the said page, there are orders dated 02.03.2023 and 11.08.2023 of the Tribunal below. As such the finding of the Tribunal below in the order impugned that the Bank has not filed any document to show that the OTS proposal has been cancelled by the Bank, is true and from this, it can be inferred that the appellant had tried to mislead the court below, as the said document was neither filed before the Tribunal below nor before this Tribunal. Thus it is held that the OTS proposal dated 17.03.2023 and 27.04.2023 have never been considered and rejected by the appellant-FI.

While going through the annexure no. 1 at page no. 10 of the reply of the respondents-borrowers, which is copies of statement of account, it is found that the respondents-borrowers have deposited the total sum of Rs.6,15,64,653.70 with the appellant-FI, which has been accepted by the F.I. As per the order impugned the remaining amount of the OTS was to be paid on or before 03.02.2024, but as per the said statement of account, the remaining amount was paid up to 30.07.2024, thus there was a delay of more than 5 months in paying the dues of the F.I. by the borrowers. In the case in hand, it is observed that on one hand, the appellant-F.I. was accepting the amount from the borrowers and on other hand, they were trying to recover the amount on its own choice by disputing the case before the forum. The admitted fact is that the borrowers have paid the entire OTS amount, but thereafter the Bank is entitled to recover the interest from the borrowers for the said period on the amount, which has been paid after 03.02.2024. However, it is observed that the respondents-borrowers had always tried to liquidate the dues of the Bank after the NPA and ultimately, they have paid total amount, which was agreed between the parties.

In view of the discussions as recorded above, the order impugned does not call for any interference by this Tribunal. Accordingly, the appeal stands disposed off.

The appellant-FI is directed to calculate the interest on reducing balance of remaining amount for the period from 04.02.2024 till the date of full and final payment and provide the same to the respondents-borrower within 15 days from today, who shall pay the same within 30 days thereafter. In case of compliance, the appellant-F.I. shall release the documents, which were taken at the time of granting the loan, to the respondent-Borrower within 15 days thereafter. In case of non-compliance of this order, the appellant-FI would be free to recover the said amount in accordance with law.

A copy of this order be forwarded to the parties as well as DRT concerned and be also uploaded on e-drt portal.