Full Text
HIGH COURT OF DELHI
Date of Decision: 9th May, 2022
PUNJAB AND SIND BANK ..... Appellant
Through: Ms.Seema Gupta, Adv. alongwith Mr.Arun Kr. Patel, AGM
Through: Mr.Praveen K Sharma, Adv.
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J (ORAL)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
JUDGMENT
1. This appeal has been filed by the appellant challenging the judgment and order dated 26.04.2022 passed by the learned Single Judge of this Court in WP(C) 12042 of 2021, allowing the writ petition filed by the respondents herein, and directing the appellant to return the original Title Deeds of the mortgaged properties, bearing number 7th Kilometer stone, Moradabad-Kashipur Road, Kashipur, 2022:DHC:1845-DB District Udham Singh Nagar, Uttarakhand, admeasuring approximately 6.[5] acres, and C – 12, Sector – 1, Noida, Uttar Pradesh (hereinafter collectively referred to as the „mortgaged properties‟) to the respondents within a period of two weeks.
2. The respondents had filed the abovementioned writ petition praying for a writ of mandamus to the appellant herein to extend the timelines of One-Time Settlement (hereinafter referred to as the „OTS‟) dated 09.03.2021, till 31.03.2022, and for restraining the appellant from cancelling the OTS on account of delay in payment of the amount by the respondents.
3. It was the case of the respondents that:- (a) the respondents had approached the appellant for an OTS for their loan accounts for a sum of ₹20,00,00,000/- (Rupees twenty crore). The same was approved by the appellant/Bank vide sanction letter dated 09.03.2021. (b) The respondents have paid a sum of ₹6,00,00,000/- (Rupees six crore) out of ₹20,00,00,000/- (Rupees twenty crore) to the appellant till 31.03.2021. However, due to the sudden outbreak of the Covid – 19 pandemic, the respondents requested the appellant to extend the time period for the payment of the next tranche of ₹7,00,00,000/- (Rupees seven crore), which was to be paid by 30.06.2021, after selling the mortgaged properties.
(c) The respondents arranged for and deposited ₹4,80,00,000/- (Rupees four crore eighty lakh) with the appellant by 30.06.2021, leaving a balance of ₹2,20,00,000/- (Rupees two crore twenty lakhs) that was to be paid by 30.06.2021. As the appellant was seeking payment thereof, the respondents filed a writ petition, being WP(C) 8968 of 2021, before this Court seeking extension of timelines for payment under the OTS till 31.03.2022.
(d) A learned Single Judge of this Court, by its Order dated
03.09.2021, dismissed the said petition as withdrawn on the statement made by the respondents that they shall be submitting a revised proposal to the appellant/Bank. (e) The respondents thereafter, vide their letter dated 08.09.2021, sought an extension of time for making the payment of the balance amount of ₹9,20,00,000/- (Rupees nine crore twenty lakh). The said request was, however, rejected by the appellant/Bank vide its letter dated 21.09.2021. (f) The respondents thereafter preferred another writ petition, being WP(C) 11099 of 2021, before this Court. The said petition was, however, withdrawn by them vide order dated 29.09.2021. (g) The respondents thereafter made a further payment of ₹2,20,00,000/- (Rupees two crore twenty lakh) to the appellant on 29.09.2021, and preferred an application before the Debts Recovery Tribunal (hereinafter referred to as „the learned DRT‟) seeking an extension of time to make the balance payment. The respondents made a further payment of ₹3,60,00,000/- (Rupees three crore sixty lakh) to the appellant on 07.10.2021, leaving a balance amount of ₹3,40,00,000/- (Rupees three crore forty lakh) to be paid. (h) As the application filed by the respondents before the learned DRT could not be heard by the learned DRT, the respondents filed the abovementioned writ petition, being WP(C) 12042 of 2021, before this Court.
4. By an Order dated 26.10.2021 passed in the above writ petition, the learned Single Judge directed that subject to the respondents depositing a further sum of ₹1,00,00,000 (Rupees one crore) with the appellant/Bank by 12.11.2021, the appellant/Bank is restrained from taking coercive steps against the respondents until the next date of hearing.
5. Finally, by its letter dated 31.12.2021, the appellant/Bank agreed to the request of the respondents granting an extension of time for repayment under the OTS, with applicable interest, till 31.03.2022. All the other terms and conditions of the OTS, as per sanctioned letter dated 09.03.2021, were to remain unchanged.
6. By its letter dated 31.01.2022, the appellant/Bank informed the respondents of receipt of ₹20,00,00,000/- (Rupees twenty crore) against the OTS up to 17.01.2022, and called upon the respondents to pay the interest amount due thereon for the delayed payment.
7. Though the respondents filed an application seeking waiver of interest, it is not denied by the appellant that the respondents thereafter deposited the interest amount payable of ₹76,61,524/- (Rupees seventy-six lakh sixty-one thousand five hundred twenty-four) till 06.04.2022.
8. It is at this stage that the appellant/Bank took a position that as the payment against the OTS was not made by the respondents through the sale of the mortgaged properties, the respondents cannot be said to have complied with the terms of the OTS.
9. The learned Single Judge, however, by the Impugned Order, has rejected the said submission and passed the direction as aforenoted.
10. The learned counsel for the appellant submits that the OTS was sanctioned by the appellant/Bank on the premise that the respondents do not otherwise have funds to repay the loan amounts, and would need to sell the mortgaged properties to make the payment. It is for this reason that condition no. 4 of the OTS sanction letter dated 09.03.2021 provided that a Tripartite Agreement shall be executed with the Bank and the proposed buyer by the respondents before the release of the mortgaged properties on receipt of the instalment amounts as promised.
11. She submits that in terms of the „Recovery Management Policy and Guidelines for Settlement/Write-Off in Borrowal Accounts‟ (hereinafter referred to as the „OTS Policy‟) dated 18.09.2019, the OTS amount/minimum recoverable amount is calculated on the basis of six parameters, which include borrowers/guarantors means to repay the notional dues and the realisable value of the available securities. The borrowers‟/guarantors‟ means to repay is to be taken in negative if the unit is not working and the OTS amount is paid through the sale of mortgaged assets. The OTS Policy further sets out a „Line of Approach to Compromise‟, which gives the guidelines on the amount at which the loan can be settled, based on the points scored by the borrowers/guarantors on the parameters mentioned in the OTS Policy. The learned counsel for the appellant submits that as the respondents had undertaken to pay the OTS amount through the sale of mortgaged properties in question, the respondents‟ means to repay was taken as negative, and thus, the respondents given minus two (-2) points as per the OTS Policy. Accordingly, the proposal/offer to respondents was approved for ₹20,00,00,000 (Rupee twenty crores) by the appellant/Bank. Had the appellant/Bank been aware that the respondents had other means to pay, they would have been adjudged at a zero („0‟) score, and the OTS amount would have been ₹23,35,00,000 (Rupees twenty-three crore thirty-five lakh) instead of ₹20,00,00,000 (Rupees twenty crore). She submits that the respondents were, therefore, obliged to make up the balance payment before the release of the original Title Deeds of the mortgaged properties.
12. We have considered the submissions made by the learned counsel for the appellant, however, we find no merit in the same.
13. The OTS Policy sets out the six parameters on which the „Minimum Recoverable Amount‟ is to be calculated and also sets out the „Line of Approach to Compromise‟, that is, the amount on which the OTS may be offered. The relevant terms of the OTS Policy are reproduced herein below:
14. The respondents had submitted their revised proposal for an OTS vide letter dated 03.03.2021. In terms of the revised proposal, on payment of ₹6,00,00,000 (Rupees six crore), the appellant/Bank was to release the Title Deed of one of the mortgaged properties, being 7th Kilometer stone, Moradabad-Kashipur Road, Kashipur, Uttarakhand, with a permission to sell the said property for arranging the balance payment to be made to the appellant/Bank. On making the full payment of ₹20,00,00,000 (Rupees twenty crore), the appellant/Bank was to release the Title Deed with respect to the other mortgaged property, being C – 12, Sector – 1, Noida, Uttar Pradesh. The said offer was accepted by the Appellant/Bank vide its letter dated 09.03.2021, Clause 4 whereof, reads as under:
15. On the respondents defaulting in making timely payments under the OTS, the appellant/Bank first refused to grant any extension, however, thereafter, vide its letter dated 31.12.2021, granted an extension for making such payment till 31.03.2022, along with applicable interest. The extracts from the said letter are as under: “This is with reference to your aforesaid request, the competent Authority has approved the extension of the repayment period in the accounts along with applicable interest till 31.03.2022. Further all other terms & conditions of OTS as per existing sanction dated 09.03.2021 to remain unchanged.”
16. Further, vide its letter dated 31.01.2022, the appellant/Bank acknowledged the receipt of ₹20,00,00,000 (Rupees twenty crore) from the respondents, and demanded the respondents to deposit the interest amount payable. The extracts of the said letter are as under: “This is with reference to our aforesaid letter conveying you the extension of the repayment period in the accounts along with applicable interest till 31.03.2022. This is to inform you that an amount of Rs.20 crores was received in the above accounts upto 17/01/2022 against the OTS sanction letter dated 09/03/2021. You are advised to deposit the interest amount in the account of OTS at the earliest and adhere to all other terms & conditions of OTS dated 09.03.2021.”
17. It is only on deposit of the interest amount that the appellant/Bank sought to contend that the terms of the OTS need to be revised as the respondents have paid the OTS amount without selling the mortgaged properties. We are afraid that this stand of the appellant cannot be accepted. It is not the case of the appellant that the respondents had, in any manner, misguided or misrepresented to the appellant into accepting the OTS by concealing any information or intentionally stating any incorrect facts. Merely because the respondents were later able to generate the funds to meet the OTS amount through means, other than the sale of mortgaged properties, it cannot be said that the OTS could not be enforced or needed to be revisited. In fact, the appellants have not even sought to make an enquiry from the respondents about the source of funds from which the OTS amount has been paid by the respondents. The sale of mortgaged properties was a concession sought by the respondents and not a pre-condition for the OTS to work itself out. We find no term in the OTS which permits the same to be reopened in case the respondents pay the OTS amount for source other than sale of the mortgaged properties. It was for the appellant/Bank to have made inquiries at the time of sanctioning the OTS on whether the respondents had other means to pay the OTS amount. Having not done so, and it not being the case of the appellant/Bank that the respondents in any manner concealed or misstated any information from/to them, the appellant/Bank cannot be permitted to unilaterally reopen the terms of the OTS.
18. In view of the above, we find no merit in the present appeal. The same is dismissed. There shall be no order as to costs.
NAVIN CHAWLA, J VIPIN SANGHI, ACJ MAY 9, 2022 RN/P