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Appeal No. 114 of 2004. Case: Swift Finlease (India) Ltd. Vs Bank of India and Ors.. Mumbai Debt Recovery Tribunals

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Case Number:Appeal No. 114 of 2004
Party Name:Swift Finlease (India) Ltd. Vs Bank of India and Ors.
Counsel:For Appellant: Sanjay Jain, Adv., i/b., Lalit S. Jain, Adv. and For Respondents: H.P. Narsana, Adv., i/b., Harshad and Co. for the Respondent No. 1, Renuka Nair, Adv., i/b., Kadwani and Co., for the Respondent No. 2 and Santosh K., Adv., i/b., Rathina Marvaraman, Adv.
Judges:K.J. Paratwar, Presiding Officer
Issue:Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13, 13(2), 13(4), 13(9) and 17
Citation:IV (2005) BC 197
Judgement Date:April 01, 2005
Court:Mumbai Debt Recovery Tribunals

Judgment:

K.J. Paratwar, Presiding Officer

  1. This application under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SRFAESI Act') pertains to commercial premises being Office No. 101 to 106, First Floor Nilkanth Commercial Centre, Sahar Road, Andheri (East), Mumbai.

  2. The appellant is respondent No. 1's constituent since 1989. At or about 9.1.1995, the appellant was enjoying Cash Credit Facility of Rs. 3,50 crore granted by respondent No. 1 inter alia against Equitable Mortgage (created in February 1995) of the property. The appellant could not clear the outstandings.

  3. The appellant's case that the respondent No. 2 had sanctioned cash credit facility of Rs. 2.50 crore to it some time in March/April, 1995 does not seem to be disputed. Similarly, the grant of credit facility by respondent No. 2 to the extent of Rs. 1.50 crore also does not seem to be in controversy. As in 1997, the working capital facility enjoyed by the appellant from respondent No. 1 was to the extent of Rs. 3,50 crore, respondent No. 2 to the extent of Rs. 2.50 crore and respondent No. 3 to the extent of Rs. 1.50 crore.

  4. The appellant has contended that the non-repayment of the outstandings was for the reasons beyond its control. Yet, the respondents have charged penal interest and levied and processing charges, leading manager's fees, etc. even while the appellant had explained its position and committed for repayment at the earliest. In fact, the respondents filed against the appellant original application in this Tribunal for recovery of their amount. Even then, the respondent No. 1 issued notice under Section 13(2) of the SRFAESI Act for Rs. 2,05,61,966/-. On failure to pay the amount, the respondent No. 1 took possession of the property on 27.10.1994.

  5. The respondent No. 1 is said to have illegally and with ulterior motives and mala fide intentions failed to disclose that it had agreed with respondent Nos. 2 and 3 to treat the mortgaged property on pari passu basis. The averment in this connection is that in 1996, it was decided between the respondents to form a consortium of which respondent No. 1 would be lead Bank. The exchange of letters between the respondents inter se in this connection had taken place. In fact, the drafts of the agreement were also prepared and duly approved by the parties. There is said to be valid subsisting binding agreement between the respondents...

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