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Judgment
S.N.H. Zaidi, J
It appears that a caveat was filed by respondent Nos. 1 and 2 on 18.12.2012 subsequent to the filing of this appeal on 11.12.2012. However, since Mr. Bhandari has put in appearance for the respondent/caveators, the caveat is discharged. He has been supplied with the copy of the appeal paper book. Heard Mr. Gupta on office objections. He submits that the appellant was substituted in place of IDBI (respondent No. 1 in M.A. No. 47/2008) vide order dated 8.11.2012 of the DRT and this fact has been admitted by the respondents in paragraph 1 of the caveat application. Since the appellant was duly substituted during the proceedings before the Tribunal below, the appeal has rightly been filed by it. The first office objection is accordingly overruled.
Mr. Gupta further submits that the order impugned has been passed in M.A. No. 47/2008, which was filed by respondent Nos. 1 and 2 with a fee of Rs. 250/- and the same fee has been paid by the appellant on the appeal memo also. In view of this, I am satisfied that the fee paid is sufficient. Objection No. 3 is also overruled.
In view of the fact that the IDBI was substituted by the appellant, there is no need to implead IDBI in this appeal and as such the objection No. 5 also goes.
Other objections have already been removed by the appellant.
Mr. Bhandari points out that reply to the appeal is ready and he will file the same with the Registry during the course of the day. Let the same be taken on record. Advance copy thereof has been given to the appellant's Counsel.
Heard parties' Counsel. The instant appeal has been directed against the order dated 2.11.2012 passed by the learned Presiding Officer of DRT-II, Delhi in MA No. 47/2008. The factual matrix of the case, in brief, is that an O.A. (No. 75/2000) was filed by the original creditor (IDBI) against the respondents with the following prayers:
Reliefs sought--
In view of the facts mentioned hereinabove, the applicant prays for the following reliefs--
(a) for issuance of a Certificate for the recovery of the debt amount of Rs. 4,71,47,991/- (Rupees four crore seventy-one lac forty-seven thousand nine hundred and ninety-one only) under the EFS loan agreement as due on 7.2.2000 jointly and severally against the defendant Nos. 1 to 3 with future interest @ 19.50% from 7.2.2000 till the date of final payment;
(b) for issuance of Certificate for the recovery of the debt amount of Rs. 3,86,12,822/- (Rupees three crore eighty-six lac twelve thousand eight hundred twenty-two only) under the CL agreement as due on 7.2.2000 jointly and severally against the defendant Nos. 1 to 3 with future interest @ 18% from 7.2.2000 till the date of final payment;
(c) for issuance of a certificate of recovery of the debt amount of Rs. 6,56,70,422/- (Rupees six crore fifty-six lac seventy thousand four hundred twenty-two only) as due on 7.2.2000 against the defendant No. 1 with future interest @ 18% from 7.2.2000 till the date of final payment towards the amounts due under the Subscription Agreements.
(d) for issuance of a Certificate for sale of the mortgaged property, the details whereof are as follows--
All those pieces and parcels of land admeasuring 7409.50 sq. mtrs. Bearing Plot No. UV-242/243 situated at Phase-IV, Udyog Vihar, District Gurgaon in the State of Haryana and bounded as under--
On or towards the North : Road
On or towards the South : Nallah
On or towards the East : Plot No. 244
On or towards the West : Plot No. 241
together with all buildings and structures thereon and all plant and machinery attached to the earth or permanently fastened to anything attached to the earth;
(e) for issuance of a certificate for sale of hypothecated property under said EFS agreement as lying with detailed Annexure-A, annexed with the original application;
(f) for issuance of a certificate for sale of hypothecated property under said CL agreement as detailed hereunder:
The whole of the movable properties of the defendant No. 1 including its movable plant and machinery, spares, tools and accessories and other movable both present and future (save and except book debts) whether installed for not and whether now lying loose or in cases or which are now lying or stored in or about or shall hereafter from time during the continuance of the security of these presents be brought into or upon or be stored in or about all the defendant No. 1's factories, premises and godowns or wherever else the same may be or be held by any party to the order or disposition of the defendant No. 1 or in the course of transit or on high seas or on order, or delivery, howsoever and wheresoever in the possession of the defendant No. 1 and either by way of substitution or addition, laying at Plot No. UV-242/243 situated at Phase-IV, Udyog Vihar, District Gurgaon, Haryana or anywhere else;
(g) for award of costs of this application to the applicant against the defendants;
(h) and any other reliefs that the applicant is entitled in law to obtain from the defendants.
The said O.A. was disposed of ex parte on 2.6.2006 and all the reliefs as prayed were allowed. An application (M.A. No. 47/2008) was later filed by the respondents 1 and 2 for withdrawal/cancellation/revocation/modification of the said order and also for the cancellation of the R.C. issued in pursuance thereof. The said application was contested by the appellant company, which was substituted in place of the original creditor on the basis of the assignment of debt to it. The learned Tribunal below, vide impugned order, has allowed the application as under:
On the above discussions, I come to the conclusion that the operative portion of the final order dated 2.6.2006 in OA 75/00 needs correction/modification to the extent as indicated above and I order accordingly and the operative portion of the final order shall be modified/corrected as follows:
The Original Application is allowed as hereunder--
(i) The applicant shall be entitled to recover the sum of Rs. 4,71,47,991/- under Equipment Finance Scheme Loan Agreement from defendant Nos. 1 to 3 jointly and severally with future interest at the rate of 19.50% from 7.2.2000 till the date of final payments.
(ii) The applicant shall be entitled to recover the sum of Rs. 3,86,12,822/- under the Corporate Loan Agreement from defendant Nos. 1 to 3 with future interest at the rate of 18% from 7.2.2000 till the date of final payment.
(iii) The applicant shall be entitled to recover the sum of Rs. 6,56,70,422 under Subscription Agreement with interest at the rate of 18% per annum from 7.2.2000 till recovery from the defendant No. 1.
(iv) The liability of defendant Nos. 2 and 3 shall be to the extent maximum of Rs. 500 lacs by each.
(v) The applicant shall be entitled to recover the amount due in respect of debt at Clauses (i) and (ii) by sale of mortgage property and by sale of hypothecated property.
(vi) The applicant shall be entitled to cost from the defendant Nos. 1 to 3 jointly and severally.
(vii) The Recovery Certificate issued shall be withdrawn and the amended Recovery Certificate shall be issued as indicated above.
MA is allowed as above.
The contention of Mr. Gupta is that the recall/modification application was filed much beyond the period of limitation as it was filed after about 2 years of passing of the order dated 2.6.2006. He further contends that in the body of the O.A. the appellant had stated that the loan was sanctioned with interest compoundable quarterly, which has been modified in the order impugned.
Mr. Bhandari, on the other hand, points out that interest was not sought with compounding effect in the O. A. as would appear from the reliefs prayed therein and the Tribunal below has allowed by the impugned order all the reliefs which were initially sought in the O.A. He, however, very candidly admits that the Tribunal below has wrongly made the order in Clause (IV) of its operative order and to that extent the respondents concede that the order impugned is not in accordance with the facts and circumstances of the case. He points out to para V. B(c) (page 4 of the reply) wherein the respondents have said that except where the Tribunal below had limited the personal guarantee of the respondents 1 and 2 to Rs. 500 lacs, all other reliefs were rightly granted. He also admits that the Tribunal below has also omitted to mention the words "jointly and severally" qua relief (ii), which may have probably occurred due to typographical omission.
Considering the submissions of the parties' Counsel and on going through the records, I am of the considered view that since by the order impugned, the Tribunal below has allowed all the reliefs which were sought in the O.A. except Clause (iv) of its operative portion, no cause of grievance can be said to have accrued to the appellant by the order impugned. The contention of the appellant that the M.A. was filed beyond the period of limitation does not hold water as no such plea was taken by the appellant in its reply to the M.A. though it appears that it was contended orally during the course of arguments, but the Tribunal has not accepted it. In view of the facts and circumstances of the matter as stated above, the appeal is hereby disposed of with the direction that the liability of defendants 2 and 3 mentioned as in Clause (iv) of the impugned order, shall not be restricted to the maximum extent of Rs. 500 lacs each and the liability of respondents 1 to 3 qua the recovery of Rs. 3,86,12,822/- under the Corporate Loan Agreement with future interest @ 18% from 7.2.2000 as mentioned in Clause (ii) of the impugned order shall be joint and several. The operative portion of the order impugned stands modified to the above extent.
Copy of this order be furnished to the parties as per law.