Appeal No. 143 of 2012 and M.A. No. 543 of 2012. Case: Invent Assets Securitisation & Reconstruction Pvt. Ltd. Vs Emtex Industries (I) Ltd.. Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Case NumberAppeal No. 143 of 2012 and M.A. No. 543 of 2012
Party NameInvent Assets Securitisation & Reconstruction Pvt. Ltd. Vs Emtex Industries (I) Ltd.
CounselFor Appellant: Rajani Iyyer, Sr. Advocate, Rajesh Nagori and Uma Fadia, Advocates and For Respondents: Nitin Thakkar, Sr. Advocate and U.S. Samudrala, Advocate
JudgesRaj Mani Chauhan, J. (Chairperson)
IssueCompanies Act, 1956 - Sections 23, 433(e), 80; Recovery of Debts Due To Banks And Financial Institutions Act, 1993 - Sections 2(g), 2(ha), X2(g); Securitisation And Reconstruction of Financial Assets And Enforcement Of Security Interest Act, 2002 - Sections 13(2), 13(3A), 13(4), 17, 18, 2(za), 3; Sick Industrial Companies (special Provisions) ...
CitationIV (2014) BC 27 (DRAT)
Judgement DateJanuary 10, 2014
CourtMumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Judgment:

Raj Mani Chauhan, J. (Chairperson)

  1. This Appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as the "SARFAESI Act") has been directed by the original respondent (hereinafter referred as the "appellant") against the impugned judgment and order dated 12th June, 2012 passed by Mr. P. Govindan, the then learned Presiding Officer (P.O.), DRT-III, Mumbai in S.A. No. 296/2011 (Emtex Industries (India) Limited v. Invent Assets Securitisation and Reconstruction Pvt. Ltd.), whereby the learned Presiding Officer has allowed the aforesaid S.A. filed by the respondents (original applicants). The factual matrix of the case may be briefly, stated as under:

    The respondent No. 1 is a private limited company incorporated and registered under the Companies Act, 1956 having its registered office at F/S, MIDC, Badlapur, District Thane, Bombay - 421503 (Maharashtra). The applicant company had been engaged in processing of textile and marketing the same for various agencies for sale. The respondent No. 2 Shri Prakash Makharia and respondent No. 3 Pradeep Makharia are the directors of respondent No. 1. Admittedly, the respondent Nos. 2 and 3 along with one Mr. Pramod Makharia were joint owners of the property being residential land, building and structures standing thereon situated at Plot No. B-12, Part of Plot No. 5/1, Kapole Co-operative Housing Society Limited, JVDP Scheme, C.T.S. No. 844 and Municipal K. Ward No. 8112 (12) and being Part of S. No. 70 of Juhu Village and/or 287 of Vile Parle, Mumbai - 400049 admeasuring 1104.5 sq. yards (hereinafter referred as "secured asset").

  2. The respondent No. 1 in or about January, 2001 had issued 10 lacs (Ten lacs) Preference Shares of the face value of Rs. 100/- each, aggregate nominal value of Rs. 1000/- lacs in favour of erstwhile Unit Trust of India (UTI) a body Corporate constituted under the Unit Trust of India Act, 1963. The respondent Nos. 2 and 3 along with Pramod Makharia stood guarantors in their individual and personal capacity to the preference shares issued by the respondent No. 1 in favour of UTI. They created English mortgage of their immovable properties as referred above by depositing the title deed and other relevant documents of the property with UTI and executed registered mortgage deed in favour of respondents.

  3. In the year 2002, the Unit Trust of India Act was repealed by another enactment namely Unit Trust of India (Transfer of Undertaking and Repeal) Act, 2002. In pursuance of the above referred Act, UTI was succeeded by Administrator of a Specified Undertaking of Unit Trust of India (SUUTI) and UTI Trustee Company Private Limited (UTITCPL) of the UTI Mutual Fund (UTIMF). The successor of the erstwhile UTI vide deed of assignment dated 20th August, 2010 transferred all the rights, title and interest in the debt along with the underlying securities, interests and claims arising out of the subscription of the redeemable preference shares referred as above in favour of the appellant, the Invent Assets Securitisation and Reconstruction Pvt. Ltd. a company incorporated under the Companies Act, 1956 and registered as Securitisation and Asset Reconstruction Company pursuant to Section 2(za) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 having its Registered Office at 107, 10th Floor, Jolly Maker Chambers No. 2, 225, Nariman Point, Mumbai-400021. The appellant on the basis of aforesaid deed of assignment became entitled to the redeemable preference shares issued by respondent No. 1.

  4. The erstwhile UTI had already issued recall notice on 11th July, 2002 to the respondent No. 1 calling upon it to pay a sum of Rs. 11,87,39,726.03 (Rupees eleven crores eighty-seven lacs thirty-nine thousand seven hundred twenty-six and paise three only) due as on 30th June, 2002 within 7 days from the date of the receipt of the said notice. But the respondent No. 1 did not pay any amount. The appellant as assignee of the successor of the erstwhile UTI, on 20th July, 2011 issued demand notice under Section 13(2) of the SARFAESI Act to the respondents as well as Shri Pramod Makharia calling upon them to pay an amount of Rs. 54,95,30,375/- along with future interest within 60 days from the date of issuance of the said notice. The respondent No. 1 on 13th September, 2011 sent its reply/objection to the aforesaid notice through its Advocate. The appellant after dealing with the objection sent by the respondent No. 1 sent its reply to the respondent No. 1 on 21st September, 2011. Since the respondents did not pay any amount as demanded by the appellant in its demand notice, therefore, the officer of the appellant took over the symbolic possession of the secured asset on 4th November, 2011 and affixed possession notice on the secured premises. The officer of the appellant got Panchanama prepared on the spot. They also published possession notice in three daily newspapers viz. Economic Times in English, Navbharat Time in Hindi and Nav Shakti in Marathi.

  5. The respondent being aggrieved by the measures taken by the appellant under Section 13(4) of the SARFAESI Act, whereby it had taken over the symbolic possession of the secured assets filed Appeal/Securitisation Application No. 296/2011 under Section 17 of the SARFAESI Act. The respondents in the aforesaid S.A. have challenged the measures taken by the appellant under Section 13(4) of the SARFAESI Act mainly on the following grounds.

    (i) As provided under Section 13(2) of the SARFAESI Act, the appellant can issue demand notice only, after classifying the account of the borrower as Non-Performing Asset (NPA). The appellant has not classified the account of respondent No. 1 as NPA and moreover, same cannot be classified as such. Therefore, the demand notice issued by the appellant under Section 13(2) of the SARFAESI Act is illegal. On the basis of such notice, no further measures can be taken by the appellant under Section 13(4) of the SARFAESI Act.

    (ii) The amount claimed by the appellant is not "debt" within the meaning of Section 2(ha) read with clause Section 2(g) of the RDDBFI Act, 1993.

    (iii) The appellant is not a secured creditor and it has got no security interest over the secured asset which can be enforced under the SARFAESI Act.

    (iv) The appellant is shareholder of redeemable preference shares issued in favour of erstwhile UTI which can redeemed out of the profits of the respondent No. 1 company as provided under Section 80 of the Companies Act. If the company is not earning any profit, the fresh shares can be issued in lieu of redemption. The appellants therefore cannot proceed under the SARFAESI Act to recover the amount claimed in the notice.

    (v) The respondent No. 1 company is declared as sick industrial unit by the BIFR, therefore, the appellant cannot proceed under the SARFAESI Act to recover the amount payable under the redeemable preference shares.

    (vi) The redeemable preference shares which were subscribed by the erstwhile UTI, forms capital of the company cannot be termed as "debt" or "financial assistance". Therefore, the appellant cannot proceed under the SARFAESI Act for recovery of the amount payable on the maturity of the redeemable preference shares.

    The respondents in the aforesaid in S.A. had sought for the following reliefs:

    (a) The impugned possession notice dated 4th November, 2011 and the impugned public notice of possession dated 4th November, 2011 may please be quashed and set aside;

    (b) The proceedings initiated by the respondent under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2003 pursuant to the impugned notice of possession dated 4th November, 2011 may please be quashed and set aside;

    (c) The proceedings initiated by the respondent under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 pursuant to the said impugned notice of possession dated 4th November, 2011 may please be stayed;

    (d) Pending the hearing and final disposal of the application the proceeding initiated by the respondent under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 pursuant to the impugned notice of possession dated 4th November, 2011 may please be stayed.

  6. The appellant resisting the aforesaid S.A. filed by the respondents, filed affidavit of Gopi K. Sharma, its Senior Vice-President and the Financial Officers in reply. The deponent has stated that the appellant company is incorporated under the Companies Act and registered as Securitization and Reconstruction Company, pursuant to Section 3 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and also secured creditor and Financial Institutions under Section 2(ha) of RDDBFI Act, 1993. The respondents/applicants approached to the erstwhile UTI at...

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