{"id":112286,"date":"2011-03-07T00:00:00","date_gmt":"2011-03-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sand-plast-india-ltd-vs-punjab-national-bank-anr-on-7-march-2011"},"modified":"2017-08-08T20:11:53","modified_gmt":"2017-08-08T14:41:53","slug":"sand-plast-india-ltd-vs-punjab-national-bank-anr-on-7-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sand-plast-india-ltd-vs-punjab-national-bank-anr-on-7-march-2011","title":{"rendered":"Sand Plast (India) Ltd. vs Punjab National Bank & Anr. on 7 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Sand Plast (India) Ltd. vs Punjab National Bank & Anr. on 7 March, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n\n%                          Judgment Reserved on: 17th Feburary, 2011\n                          Judgment Delivered on: 7th March, 2011\n\n\n+                           W.P.(C) 852\/2011\n\n        SAND PLAST (INDIA) LTD.                ..... Petitioner\n                  Through:   Mr.Abhinav Vashisht, Senior Advocate\n                             with Mr.Dheeraj Malhotra and\n                             Mr.Sanyam Saxena, Advocates.\n\n\n                                    versus\n\n\n        PUNJAB NATIONAL BANK & ANR.            .....Respondents\n                  Through:  Mr.M.U.Khan, Advocate for R-1.\n                            Mr.Ashok Jain & Mr.Amit Kasera,\n                            Advocates for R-2.\n\n\n\n         CORAM:\n         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n         HON'BLE MR. JUSTICE SURESH KAIT\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\n\n\n\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.      The   writ    petitioner,   M\/s.Sand   Plast   (India)   Ltd.    has
\nchallenged the order dated 24.1.2011 passed by the Debt
\nRecovery Appellate Tribunal in Misc.Appeal No.137\/2010, in
\nwhich Appeal order dated 9.3.2010 passed by the Debt Recovery
\nTribunal was challenged.\n<\/p>\n
W.P.(C) No.852\/2011                                        Page 1 of 8<\/span><\/p>\n
 2.      Order dated 9.3.2010, is an interim order passed by the
\nDebt Recovery Tribunal in an appeal filed by the petitioner under
\nSection 17 of the Securitization and Reconstruction of Financial
\nAssets    and   Enforcement    of   Security   Interest   Act   2002
\n(hereinafter referred to as ‘Act No.54 of 2002’), in which appeal
\nchallenge is to action initiated by PNB as per notice dated
\n11.1.2008 to proceed under Section 13 of Act No.54 of 2002. By
\nand under the order dated 9.3.2010 the Debt Recovery Tribunal
\nhas prima facie recorded that the recovery of the dues by the
\ntwo secured creditors before it i.e. PNB and HUDCO approximates
\nabout `70 crores and that even the petitioner was admitting
\nliability approximating about `10 crores.        It has thus been
\ndirected that the petitioner would pay `5 crores each to PNB and
\nHUDCO by 31st March 2010 and thereafter would deposit `50
\nlakhs per month with PNB and HUDCO as a condition of the stay
\nof the notices issued by PNB under Section 13 of Act No.54 of
\n2002. The order in appeal has resulted in partial success to the
\npetitioner. The condition of `50 lakhs per month being deposited
\nwith PNB and HUDCO has been waived.            The requirement to
\ndeposit `5 crores each with PNB and HUDCO has been
\nmaintained.\n<\/p>\n
3.      Relevant facts are that the petitioner company availed a
\nterm loan from HUDCO in sum of about `3.95 crores in the year
\n1990 and availed a credit of `1.09 crores from PNB in the year
\n1992.      Right from the inception, the petitioner company
\ndefaulted and by 31.3.1994 debts were classified in the category
\nof ‘Non Performing Assets’. On 22.4.1994 PNB recalled the credit
\nand by said date amount due to PNB was approximately `2.45
\ncrores. HUDCO recalled the credit on 5.9.1994 and by said date
\nthe amount due to it was approximately `5.88 crores.\n<\/p>\n
4.      In the year 1995, PNB initiated action for recovery of its
\ndues by moving an Original Application before the Debt Recovery
\nTribunal under the Recovery of Debts Due to Banks and Financial
\nW.P.(C) No.852\/2011                               Page 2 of 8<\/span>
\n Institutions Act 1993 and laid a claim to a decree in its favour in
\nsum of `2.94 crores with pendente-lite interest as per the
\nagreement between the parties. HUDCO initiated similar action
\nbefore the Debt Recovery Tribunal in the year 1997 and sought a
\ndecree in sum of `8.51 crores together with pendente lite interest
\nas per the agreement between the parties.\n<\/p>\n
5.      Unfortunately, the two proceedings initiated in the year
\n1995 and 1997 respectively remained pending for over a decade,
\nwhen in the year 2008, as noted herein above, PNB took resort to
\nan action under Section 13 of Act No.54 of 2002.\n<\/p>\n
6.      In between, the petitioner company took recourse remedy
\nunder the Sick Industrial Companies (Special Provisions) Act
\n1985.     On 14.11.2002 the petitioner was declared a Sick
\nIndustrial Company and PNB was appointed as an Operating
\nAgency.\n<\/p>\n
7.      It is unfortunate that proceedings under Sick Industrial
\nCompanies (Special Provisions) Act 1985, which commenced in
\nthe year 2001 have meandered aimlessly and till date we do not
\nhave either an order sanctioning a scheme for the rehabilitation
\nof the petitioner, nor do we have an order requiring the company
\nto be wound up.\n<\/p>\n
8.      We wonder whether Tribunalization and constitution of
\nspecialized Tribunals has served any purpose?            But since the
\nissue before us is not to render an opinion on the efficacy of
\nTribunalization, we leave the question unanswered.\n<\/p>\n
9.      Reverting   to   the   facts,   it   may   be   noted   that   a
\nmemorandum of understanding was arrived at on 12.12.2004
\nbetween the existing promoters of the petitioner company and
\ntwo persons named Dr.Ram S.Garg and Mr.Rajesh Gupta, as per
\nwhich the latter two, agreed to bring in `8 crores to prop up the
\npetitioner and bring it on rails. For reasons best known to these
\ntwo gentlemen and the existing promoters of the company, these
\ntwo gentlemen shrouded the MOU with the cloak of secrecy and
\nW.P.(C) No.852\/2011                            Page 3 of 8<\/span>
\n never brought forth the same before any forum i.e. neither
\nbefore DRT nor before BIFR. Its existence was not even brought
\nto the notice of the creditors.\n<\/p>\n
10.   What was being brewed under cover of the MOU between
\nthe existing promoters and these two gentlemen is not known to
\nus and indeed would never see the light of the day, but
\napparently the existing promoters and these two gentlemen fell
\nfoul and we are informed that the two groups are in inter-se
\nlitigation. It was only in the year 2007 that before BIFR, the new
\npromoters were recognized as having a stake in the matter.\n<\/p>\n
11.   The credits had become sticky.      The assets securing the
\ncredits had apparently fallen in value.       It made sense for the
\nsecured creditors to seek a one-time settlement, and which PNB
\ndid   when   on   1.8.2007    it   accepted   petitioner’s   one-time
\nsettlement proposal to receive `2.75 crores in full and final
\nsettlement of its dues, payable in instalments as per schedule set
\nout in the letter of acceptance dated 1.8.2007. Suffice would it
\nbe to state the petitioner defaulted and did not even deposit the
\nsum of `15 lakhs required to be deposited within 15 days of
\nacceptance of the proposal; the first instalment as also the
\nsecond in sum of `31.25 lakhs were not paid.\n<\/p>\n
12.   It can thus safely be said that by offering to settle the claim
\nof PNB, the petitioner had accepted liability in sum of `2.75
\ncrores. Qua PNB it cannot be said that it accepted its entitlement
\nlimited to `2.75 crores, for the reason PNB was giving a
\nconcession and the sum agreed to be accepted by it was the
\ndiscounted value of the debt due to it. On 9.10.2007, intimating
\ndefaults committed by the petitioner the one-time settlement
\naccepted by PNB was withdrawn.\n<\/p>\n
13.   It was under these circumstances PNB proceeded under
\nSection 13 of Act No.54 of 2002.\n<\/p>\n
14.   Three issues were raised before us during arguments in the
\nwrit petition. It was firstly urged that the mortgage of the
\nW.P.(C) No.852\/2011                             Page 4 of 8<\/span>
\n immovable property of the petitioner, which asset is being
\nproceeded against under Section 13 of Act No.54 of 2002 was
\ncreated in the year 1992 in favour of PNB as the second charge-
\nholder and the first charge in favour of HUDCO was created in the
\nyear 1990 and hence the action initiated by PNB under Section
\n13 in the year 2008 was barred by limitation. It was highlighted
\nthat the action was initiated beyond 12 years of the mortgage i.e.
\nbeyond the period prescribed as per the law of limitation.\n<\/p>\n
15.   The argument has prima facie no force and no legs to stand
\non, for the obvious reason, PNB took recourse to action for
\nrecovery of the debt by moving the Debt Recovery Tribunal in the
\nyear 1995 and HUDCO followed in the year 1997. The cause of
\naction had accrued to PNB on 22.4.1994 when the credit was
\nrecalled, and to HUDCO on 5.9.1994, when the credit was
\nrecalled by HUDCO. The right was enforced well within limitation
\nby filing Original Applications before the Debt Recovery Tribunal
\nwell within three years of the facility being recalled and prima
\nfacie the question of the debts being time barred would not arise;
\nnor would the enforceability of the right under Section 13 of Act
\nNo.54 of 2002.\n<\/p>\n
16.   It has to be noted that the issue pertaining to a secured
\nasset being proceeded against by a secured creditor under Act
\nNo.54 of 2002 during pendency of proceedings under the
\nRecovery of Debts Due to Banks and Financial Institutions Act
\n1993 was a subject matter of consideration before the Supreme
\nCourt in various appeals filed in the year 2006 against decisions
\nof the Madras High Court pronounced in the year 2005 and the
\nissue attained finality when the decision reported as 2008 (1)
\nSCC 125 Transcor vs. UOI & Anr. was pronounced. View taken
\nwas that a secured creditor had an independent remedy under
\nAct No.54 of 2002. Thus, none can blame PNB and HUDCO not to
\nproceed under Act No.54 of 2002 till the year 2008.\n<\/p>\n
W.P.(C) No.852\/2011                                   Page 5 of 8<\/span><\/p>\n
 17.   Prima facie, it has to be held that the proceedings initiated
\nby PNB are within limitation and we express no conclusive
\nopinion on the point for the reason, a final decision on the said
\nissue has to be taken by the DRT and we do not intend to speak a
\nlanguage which is conclusive of the issue, lest we are accused of
\nopining finally while exercising a jurisdiction which is to settle an
\ninterim situation.\n<\/p>\n
18.   The second plea urged was that proceedings under the Sick
\nIndustrial Companies (Special Provisions) Act 1985 are still
\npending and if the secured asset is permitted to be sold, the right
\nof the petitioner company under Sick Industrial Companies
\n(Special Provisions) Act 1985 would be rendered otiose.\n<\/p>\n
19.   The plea takes us nowhere for the simple reason it is
\nsettled law that secured creditors representing more than 75% of
\nthe secured debt can take recourse to Section 13 of Act No.54 of
\n2002 notwithstanding any proceeding pending before BIFR.\n<\/p>\n
20.   Third plea urged was that there was no material to prima-
\nfacie establish that PNB had the consent of HUDCO to proceed
\nunder Section 13 of Act No.54 of 2002 and since the debt due to
\nPNB was not representing 3\/4th in value of the secured debt,
\naction initiated by PNB was void.\n<\/p>\n
21.   We note that this issue has yet to be decided by the DRT,
\nbut would note that as per HUDCO, it had granted the necessary
\nconsent.\n<\/p>\n
22.   It is settled law that an appeal under Section 17 of Act
\nNo.54 of 2002 by a party aggrieved against a measure taken by
\na secured creditor under Section 13(4) of the said Act, inheres in
\nDRT power to pass interim directions and the Tribunal would be
\nempowered to pass such orders as it may consider appropriate
\nand necessary in relation to the recourse taken by the secured
\ncreditors under sub-section 4 of Section 13 of the Act.         This
\npower of the Tribunal to pass interlocutory orders is no longer res
\nintegra and is well settled by the decision of the Supreme Court
\nW.P.(C) No.852\/2011                                 Page 6 of 8<\/span>
\n reported as 2004 (4) SCC 311 Mardia Chemicals Ltd. vs. UOI<\/a>
\nwherein the Supreme Court observed that the Tribunal in
\nexercise of its ancillary powers shall have jurisdiction to pass any
\nstay\/interim order subject to such condition as it may deem fit
\nand proper to impose.     Needless to state, appeal filed to the
\nDRAT under Section 18 of Act No.54 of 2002 would include an
\nappeal against an interim order passed by DRT and the Appellate
\nTribunal would likewise have, in exercise of its ancillary powers,
\nthe jurisdiction to pass such interim orders and subject to such
\nconditions as it may deem fit and proper to impose.\n<\/p>\n
23.   We find that the DRT has exercised an interim jurisdiction
\nand the same has been premised on a consideration of prima
\nfacie facts and so has been done by the Appellate Tribunal.\n<\/p>\n
24.   The main fulcrum of the issue debated was on the issue of
\nlimitation and prima facie the view has to be in favour of PNB.
\nThe other jurisdictional plea of PNB not having the requisite
\nauthority in the absence of a consent by HUDCO is prima facie
\nnegated in view of the stand taken by HUDCO and considering
\nthe claim of PNB and HUDCO, which as per the original
\nagreements would today be in the vicinity of `70 crores, we see
\nno scope to interdict the interim measure directed by the DRAT
\nof maintaining status quo but upon the condition of the petitioner
\ndepositing `5 crores each with PNB and HUDCO. Suffice would it
\nbe to state that the discretion has been exercised within the
\nambit of the discretionary power and our job under Article 226 of
\nthe Constitution of India is limited to ensure that the procedure
\nprescribed by the Tribunal was adhered to and that the Tribunal
\nhas confined itself within the bounds of its jurisdiction. Merits of
\nthe decision has not to be gone into by us.\n<\/p>\n
25.   While dismissing the writ petition we extend time for the
\npetitioner to comply with the directions issued by DRAT and for
\nwhich we fix the date 30th April 2011 as the last date by which<\/p>\n
W.P.(C) No.852\/2011                                   Page 7 of 8<\/span>
\n petitioner should comply with the interim directions issued by
\nDRAT.\n<\/p>\n
26.   No costs.\n<\/p>\n
                                   (PRADEEP NANDRAJOG)
\n                                          JUDGE<\/p>\n
                                       (SURESH KAIT)
\n                                           JUDGE
\nMARCH 07, 2010
\ndk<\/p>\n
W.P.(C) No.852\/2011                              Page 8 of 8<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Sand Plast (India) Ltd. vs Punjab National Bank & Anr. on 7 March, 2011 Author: Pradeep Nandrajog * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 17th Feburary, 2011 Judgment Delivered on: 7th March, 2011 + W.P.(C) 852\/2011 SAND PLAST (INDIA) LTD. ….. Petitioner Through: Mr.Abhinav Vashisht, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-112286","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSand Plast (India) Ltd. vs Punjab National Bank & Anr. on 7 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sand-plast-india-ltd-vs-punjab-national-bank-anr-on-7-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sand Plast (India) Ltd. vs Punjab National Bank & Anr. on 7 March, 2011 - 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