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According to the petitioner, in the consortium financing of the SBI and PNB, the share of SBI was only 31.81% and there was no consent of the PNB in this regard, though it had pari passu charge on the secured assets mortgaged with both the banks. It is further submitted that the assets which are sought to be taken over by the SBI pursuant to the notice issued under Section 13(4) of the Act are not the part of Schedule 'C', being plant and machinery. It is further submitted that insofar as the PNB is concerned, a statement was made by its counsel on 09.04.2015 that the PNB would exercise its right of silence in respect of the issues raised in the present writ petition. He has also referred to another order passed by this Court on 21.04.2015 in which counsel appearing 2 of 6 ***** on behalf of the PNB stated that account of the petitioner was not declared as NPA as on that date. However, on the said date, counsel appearing on behalf of the SBI stated that the plant and machinery of Oncology unit of the petitioner is exclusively hypothecated in favour of the SBI and that such plant and machinery alone is sought to be sold by the SBI in the first instance.

According to the petitioner, the PNB had categorized account of the petitioner as 'NPA' on 18.02.2016 but during pendency of the present petition, a compromise had arrived at between the parties as per which a tagging agreement has been entered into. The petitioner has also produced two ceding agreements executed by the PNB on 10.05.2011 and by the SBI on 18.05.2011.

On the other hand, counsel for the SBI has submitted that firstly the present petition is not maintainable as the petitioner has the statutory alternative remedy under Section 17 of the Act and secondly it is submitted that it is not a case of consortium finance rather it is a case of multiple finance, 3 of 6 ***** therefore, Section 13(9) of the Act is not applicable in this case. He has also submitted that even otherwise, Section 13(9) of the Act is not available to a borrower but to a secured creditor. It is further submitted that the ceding agreements pertain only to the fixed assets for which both the banks have given consent for pari passu charge and insofar as the movable properties are concerned, he has referred to the hypothecation agreement dated 18.03.2011 to contend that all the machineries of the borrower hypothecated and charged to the bank shall be treated as movable property and it would not apply to the immovable property. It is further submitted that the petitioner had applied for loan separately to the PNB for Beta Lectum unit and to the SBI for Oncology unit, therefore, it is not a case of consortium finance but a case of multiple finance, which is not covered under Section 13(9) of the Act. He has also supported his argument that the remedy under Section 13(9) of the Act is not available to the borrower but it is available to the secured creditor by referring to a Division Bench judgment of the Delhi High Court in the case of Chemstar Organics India Limited vs. Bank of Baroda & Ors., W.P.(C) 1487/2011, decided on 17.09.2012 and a Division Bench judgment of this Court in the case of M/s MSD Industrial Enterprises Ltd. vs. Debts Recovery Appellate Tribunal and others, CWP No.19666 of 2014, decided on 26.09.2014. He has also referred to a Single Bench decision of this Court in the case of M/s. Sangrur Milk Products Pvt. Ltd. vs. District Magistrate, Sangrur & Ors., 2012(7) R.C.R. (Civil) 2763 to contend that if the secured assets in question were exclusively mortgaged to bank and not to other secured creditor, then provisions of Section 13(9) of the Act would not applicable.

Insofar as the question as to whether the loan advanced to the petitioner was a consortium finance or multiple finance is concerned, it has been mentioned by the SBI that two loans have been obtained by the petitioner for plant and machinery, one from the SBI for Oncology unit and another from the PNB for Beta Lectum unit, and hypothecation agreements were also executed separately, which I have already mentioned in the earlier part of this order. The hypothecation agreement is specifically meant for the movable 5 of 6 ***** properties and not for the fixed assets and insofar as the ceding agreements are concerned, those were executed in respect of pari passu charge only with regard to the fixed assets and not the movable properties. The SBI is taking action in respect of the movable properties, i.e. plant and machinery of the Oncology unit, which was specifically hypothecated by the petitioner with the SBI.