R.A:62/2011
1. This Appeal impugns the order dated 19.1.2011 passed by the Ld. Presiding Officer, DRT Hyderabad in OA No.132/2004.
2. The case of the appellants may be stated as follows:
It is stated that the first Respondent bank granted an Equipment Lease Assistance to the 2ndRespondent company through its Mumbai Head Office on 18.12.1995 and obtained the necessary Lease Agreement from it on 26.7.1996 and the two appellants guaranteed the repayment of the same through a Deed of Guarantee executed on the same day and first Respondent bank provided two 1250 KVA DG Sets worth Rs.125.42 lakhs to the 2nd Respondent company. It is stated that subsequently the 2nd Respondent company became a sick company and was registered as a “Sick Company” on 30.6.1999 before the BIFR, New Delhi in Case No.22/1999. The BIFR formed an opinion on 7.11.2000 that the 2nd Respondent Company was not viable for a revival and recommended its winding up. It is stated that the Hon’ble High Court of Andhra Pradesh registered the BIFR reference on 27.11.2000 as RCC No. 20/2000 for winding up of the 2nd Respondent Company by passing orders for winding up of the Company on 14.2.2001 and appointed the Official Liquidator to deal with the assets and liabilities of the company. The first Respondent bank issued a recall notice cum termination of lease dated 16.4.2001 addressed to the 2nd Respondent Company represented by the OL and marked a copy of the said recall notice to the appellants and thereafter issued another recall notice to the appellants on 9.5.2001. It is stated that the first Respondent bank filed OA No.132/2004 before DRT, Hyderabad for a recovery of a sum of Rs.6,03,49,871/- and the same has been allowed by the Tribunal below on 19.1.2011. It is stated that the appellants aggrieved by the said order of the tribunal below have filed the present appeal. It is stated that the OA ought not to have been allowed by the Ld. Presiding Officer against the appellants and it is prayed that the appeal may be allowed.
3. The learned counsel for the appellants submitted that the first Respondent bank issued Exhibit A16 substituting the requirement of extension of charge on the fixed assets of the borrowing company proposed under Clause 10 (a) of Exhibit A3 i.e. the Letter of Intent (sanction letter) with the personal guarantee of the appellants and that the same was received and acknowledged by the 2nd appellant alone in person and not by both the appellants merely with the endorsement “received” and without the words “accepted” and this modification is not supported by any resolution of the borrowing company. The Ld. Counsel drew the attention of this Tribunal to Exhibit A5 and stated that the necessary ingredients of a valid contract of Guarantee have not been brought about in the said document and Exhibit A5 being a document lacking consensus ad idem has to be brushed aside as void and further that the Exhibit A5 does not comply with Sections 10, 13, 14, 16, 18, 19 & 142 of the Contract Act and therefore unworthy of being looked into. The Ld. Counsel submitted that the OA ought to have been filed in DRT, Mumbai and the DRT,Hyderabad ought have rejected the OA for want of jurisdiction. Ld. Counsel submitted that a perusal of clause No.10.7 of Exhibit A4 would reveal that it confines the exclusive jurisdiction for the present cause of action at Greater Bombay in exclusion of Hyderabad and Visakhapatnam and contended that the introduction of the Applicant-oriented Rule 6(a) of the DRT (Procedure) Rules, 1993 w.e.f.21.1.2003 can have only a prospective operation in respect of all contracts executed on or after 21.1.2003 and further that the said Rule is supplementary and not in derogation of the defendant-oriented Section 19 (1) of the RDDBFI Act. The Ld. Counsel relied upon on the following decisions on the above aspect:
a) Laxman Prasad Vs Prodigy Electronics Ltd. And Another (2008) 1 SCC 618
b) Harshad Chiman Lal Modi Vs DLF Universal & Anr (2005) 7 SCC 791
c) New Moga Transport Company, through its proprietor Krishanlal Jhanwar Vs United India Insurance Co. Ltd. And Ors. (2004) 4 SCC 677
d) M/s. Hanil Era Textiles Ltd. Vs M/s. Puromatic Filters (P) Ltd.
(2004) 4 SCC 671
e) Shriram City Union Finance Corporation Ltd. Vs Rama Mishra
(2002) 9 SCC 613
f) Cholamandalam Investments & Finance Co. Pvt. Ltd. Vs Radhika Syanthetics and Anr. (1996) 2 SCC 109
g) Angile Insulations Vs Davy Ashmore India Ltd. And Anr.
(1995) 4 SCC 153
4. The Ld. Counsel for the appellants further contended that the OA filed on 5.5.2004 is time barred as the limitation period is to be calculated from 16.4.2001 of Exhibit A6 instead of 9.5.2001 of Exhibit A7 as Exhibit A6 is the termination of lease cum recall notice issued on 16.4.2001 addressed to the principal borrower with due marking of its copy to the appellants in their status as guarantors and it was not a usual debt recall notice. He added that the repeat recall notice on 9.5.2001 would not in any way extend the period of limitation and the Notice of the termination of the lease with or without recall of outstanding dues and with marking of its copies to the guarantors is inherently possessive of the element of recalling the outstanding dues against the guarantors and is also covered under the “doctrine of constructive notice”. The Ld. Counsel contended that the ruling in the case of Syndicate Bank Vs Channaveerappa Beleri & Ors. (2006) 11 SCC 506 relied upon by the 1st Respondent Bank has no application to the present case as Exhibit A6 is considered as mere debt- recall notice not only to the Principal Borrower but also to the appellants simultaneously. The Ld. Counsel sought the rejection of Exhibit A1 i.e. the Evidence Affidavit of AW-1 dated 13.8.2010 as the averments made therein were not on behalf of IDBI Bank Limited and as the same did not incorporate all the events of transition from the original applicant IDBI to the present IDBI Bank Limited. The appellants further stated that the first Respondent Bank surrendered the leased assets to the OL and joined the general pool for which reason it has not only got the realizations on its secured assets to the tune of Rs.64.57 lakhs on 30.3.2005 but also received Rs.21,36,604/- from the general pool out of the amount of Rs.33,50,460/- which is nothing but the admitted dues payable to the 1st Respondent Bank as of 14.2.2001 i.e. the date of winding up order and adjudicated by the OL accordingly . The Ld. Counsel relied on Rule154 of Companies (Court) Rules, 1959 which reads as follows: “The value of all debts and claims against the company shall, as far as is possible, be estimated according to the value thereof at the date of the order of the winding-up of the company or where before the presentation of the petition for winding-up, a resolution has been passed by the company for voluntary winding-up, at the date of the passing of such resolution” and stated that the O.L. is reportedly holding more than Rs.1 Crore realized from the assets of the 2ndRespondent Company. The debts and claims receivable by the 2nd Respondent Company to the extent of Rs.11.27 crores stand admitted before the OL out of which Rs.72,34,758/- is decreed and the balance are in the execution process and therefore the balance pending dues of the first Respondent to the tune of Rs.12,13,856/- are realizable from the above amounts presently lying with the OL. The Ld. Counsel stated that the dictum laid down in the case of Murali D. Kanuri Vs DRAT, Chennai & Ors - CDJ 2010 APHC 203 relied by the first Respondent Bank has no application to the present case as the appellants did not allege any distress sale of the company’s assets by the OL. The Ld. Counsel stated that the liability of the appellants as guarantors is coextensive with that of the principal debtor u/s 128 of the Contract Act and therefore the dues at any rate cannot exceed Rs.33,50,460/- out of which the 1st Respondent Bank had already received and appropriated Rs.21,36,604/-. The Ld. Counsel stated that the decision in the case of T. Raju Setty vs. Bank of Baroda vide AIR 1992 Karnataka 108 (DB) cannot be relied upon by the 1st Respondent Bank in this case as there is no waiver of Sections 140 &141 of the Contract Act in Exhibit A5. The Ld. Counsel added that the appellants are entitled to the securities from the first Respondent bank in terms of Section 141 of Contract Act, 1872 in the event of any amounts recoverable from them as held in the case of IFCI Vs The Cannore Spinning & Weaving Mills Ltd. – (2002) 5 SCC 54. The Ld. Counsel stated that when once the Hon’ble High Court of Andhra Pradesh was pleased to pass an order for winding up of the second Respondent Company on 14.2.2001, the appellants as guarantors get divested of their right of subrogation available u/s 141 r/w 140 of the Contract Act and when the appellants right over the securities is abrogated through operation of law, the corresponding obligation for the discharge of the liability stands automatically abrogated. The Ld. Counsel submitted that the appellants are not liable even to the extent of the balance of the pending dues of Rs.12,13,856/- out of the total dues admitted before the OL. The Ld. Counsel stated that the order under appeal is exfacie illegal and is not enforceable against them as the OA was allowed against them alone even without crystallizing the liability against the 2nd Respondent Company and without addressing the fact of the 1st Respondent Bank’s admission of the claim before OL atRs.33,50,460/-.
5. The appellants filed their written submissions and the same forms part of the record.
6. The Ld. Counsel for the Respondent stated that the DRT, Hyderabad originally allowed the OA 132/2004 on 25.11.2005 setting the appellants ex-parte and later MA 114/2008 filed by the appellants for setting aside the said ex-parte order was dismissed by DRT, Hyderabad on 19.2.2009. The said Order was challenged by the appellants before this Tribunal through MA 93/2010 and the same was allowed on 16.6.2010 and that thereafter the DRT, Hyderabad heard the matter at length and passed the impugned order allowing the OA. The Ld. Counsel for first Respondent Bank opposed the contention of the appellants about the lack of jurisdiction for the DRT, Hyderabad to the present cause of action and stated that the introduction of Rule 6(a) of the DRT (Procedure) Rules, 1993 w.e.f.21.1.2003 overrules the Clause No.10.7 of Exhibit A4 dated 26.7.1996 and that in view of the same the DRT, Hyderabad had the jurisdiction and that it had correctly allowed the OA as prayed for. The learned counsel stated that the OA was filed within limitation on 5.5.2004 as calculated from 9.5.2001 being the date of Exhibit A7 and relied on the dictum laid down in the case of Syndicate Bank Vs Channaveerappa Beleri & Ors. (2006) 11 SCC 506 to show that the OA was filed within limitation. The learned counsel further contended that the appellants cannot challenge the issues of sale by the OL as decided by A.P. High Court in the case of Murali D. Kanuri Vs DRAT, Chennai & Ors - CDJ 2010 APHC 203. The learned counsel contended that the first Respondent would not get any amounts from the Official Liquidator in the capacity as a secured creditor as it had no charge on the fixed assets.
7. The 1st Respondent Bank filed its detailed written submission and the same forms part of the record.
8. The 2nd Respondent is the Company represented by Official Liquidator. The Documents issued by the OL in respect of the admitted claim of the first Respondent Bank before it and the amounts disbursed by his office to the bank have come on record.
9. Heard the Ld. Counsel.
10. Exhibit A4 is the equipment lease agreement executed on 26.7.1996 between the Respondents and clause 10.7 of the said exhibit A4 reads as follows:
“It is agreed by and between the parties that the Civil Courts in Greater Bombay shall have exclusive jurisdiction in respect of any matter, claim or dispute arising out of or in any way, relating to this Agreement”.
The words civil Court in the above clause have to be deemed as the Debts Recovery Tribunals of Mumbai. In this case the equipment lease was sanctioned by the 1st Respondent at its Mumbai Head Office, disbursed at its Hyderabad Branch and end used at Nellore, Andhra Pradesh and it can be seen that the 1st Respondent being the Applicant in the OA is to be deemed to be functioning in the jurisdictions of DRT, Mumbai, DRT, Vishakapatnam and DRT, Hyderabad and when the parties have expressly agreed to resolve their disputes within the jurisdictions of Civil Courts in Mumbai the OA ought to have been filed in the DRT at Mumbai. It is settled law that parties by using the words exclusive have restricted the place of suing to one place in exclusion of the other courts having jurisdiction. The 1st Respondent Bank is deemed to be functioning for the present cause of action in the jurisdictions of DRT- Mumbai, DRT- Hyderabad and DRT-Visakhapatnam in terms of Rule 6(a) of the DRT (Procedure) Rules, 1993 r/w Section 19 (1) of the RDDBFI Act as it sanctioned the ELA credit facility at its Mumbai Head Office, disbursed the amount at its Hyderabad Branch and deployment of funds was occasioned at Nellore, Andhra Pradesh. Clause No.10.7 of ExhibitA4 specifically confined the jurisdiction for the present cause of action at Greater Bombay in exclusion of Hyderabad andVisakhapatnam. It is not the case of the first Respondent bank that they had filed the OA at DRT,Hyderabad due to a mistaken impression or bonafide belief of jurisdiction there at Hyderabadand the first Respondent has vehemently opposed the contention of the appellants about jurisdiction both in the OA proceedings and in the present appeal proceedings. In such an event, as held by the Hon’ble Supreme Court in the cases of Laxman Prasad Vs. Prodigy Electronics Ltd. (2008) 1 SCC 618, Harshad Chiman Lal Modi Vs DLF Universal Ltd. (2005) 7 SCC 791, Transport Co. vs. United India Insurance Co. Ltd. (2004) 4 SCC 677, Textiles Ltd. v. Puromatic Filters (P) Ltd. (2004) 4 SCC 671, Shriram City Union Finance Corporation Ltd. Vs Rama Mishra (2002) 9 SCC 613, Cholamandalam Investments & Finance Co. Pvt. Ltd. Vs Radhika Syanthetics and Anr (1996) 2 SCC 109 and Angile Insulations Vs Davy Ashmore India Ltd. And Anr (1995) 4 SCC 153, the present cause of action should have been adjudicated at DRT, Mumbai and its adjudication at DRT, Hyderabad is without jurisdiction.
11. Exhibit A5 is the guarantee bond and the circumstances preceding the execution of Exhibit A5 and the subsequent events revealing the absence of objections ever being made about the said guarantee bond by the appellants, drive this Tribunal to hold that the execution of Deed of Guarantee is valid on the ground of acquiescence by the appellants. Similarly Exhibit A1 is also to be held valid by virtue of Section 34 of the Companies Act and also on the basis of the description of the 1st Respondent bank appearing in Exhibits A4 and A5 that cover the successors and assigns of IDBI.
12. Exhibit A6 is the Notice of termination of the lease and it is dated 16.4.2001. The said Notice of termination is inherently and impliedly a recall notice of dues as no further lease rentals would accrue except the interest from the date of the termination of the lease. Moreover the copies of the same have been specifically sent to the Appellants. Any acknowledgement of debt on behalf of the principal debtor extends simultaneously the limitation period for the principal debtors as well as the guarantors in terms of Section 18 of the Limitation Act. The notice to the principal debtor company recalling the advance is to be considered as a deemed notice of recall of the advance to its Directors and it is also to be considered as the invocation of the guarantees of its Directors who are claimed as the guarantors to the advance and in this case the Notice of termination dated 16.4.2001 sent to the company has also to be deemed to be the Notice of termination to upon its Directors and therefore it has to be reckoned that the period of limitation runs only from 16.4.2001 and not from 9.5.2001 being the date of the repeat Notices sent to the Appellants by the 1st Respondent Bank and such being the case it can be seen that the OA filed is barred by limitation.
13. A perusal of clause VIII of the equipment lease agreement dated 26.7.1996 between the 2ndRespondent and the 1st Respondent reveals that the 1st Respondent was entitled to terminate the lease without any notice at any time after occurrence of any of the events stated therein. A reading of clause 8.1.i of the agreement reveals that the 1st Respondent was entitled to the termination of the lease when the 2nd Respondent failed to pay the dues. It is seen after the commencement of the lease for a period of 60 months from 1.1.1996, the 2nd Respondent was irregular in payment of lease rentals and did not pay any of lease rentals after 16.7.1997 and that upon such continued default in the payment of lease rentals the 1st Respondent was entitled to remove and repossess the equipment as per clause 8.2.1 of the agreement on any day after 16.7.1997 or at least after 30.6.1999 when the 2nd Respondent made a reference under Section 15 of SICA to BIFR as per the provisions of Clause 8.1.v. It can be seen that the first Respondent issued the termination of lease-cum-recall notice only on 16.4.2001 much after the Official Liquidator had taken possession of the assets of the 2nd Respondent company and that the 1st Respondent had not chosen to enforce its rights and preferred to remain quite till the year 2001 when the Official Liquidator took possession of the 2 DG sets. In this case there is an agreement between the creditor who is the 1stRespondent herein and the sureties who are appellants with reference to the enforcement of the security and it can be seen that the 1st Respondent was bound to act in diligence in terms of the lease agreement or in other words the 1st Respondent was bound to take possession of the 2 DG sets and dispose of the same and recover its dues soon after no payments were made after 16.7.1997 and it can also further be seen that the 1st Respondent was negligent and had omitted to enforce its rights guaranteed to it under the lease agreement and by such neglect had caused a gross reduction in the value of the 2 DG sets when they were sold much later by the Official Liquidator in addition to huge accrual of defaulted release rentals. The omission on the part of the 1st Respondent to promptly terminate the lease on the date of default and the further omission on its part to take possession and dispose of the 2 DG sets from 17.7.1997 till the parting of the same to the Official Liquidator in the year 2001 has enabled the sureties i.e. the appellants to claim discharge to the extent of the value of the 2 DG sets as on 17.6.1997 and therefore in view of the same it can be easily said that the appellants are entitled to a discharge under Sec. 139 of the Indian Contract Act.
14. It is a settled position of law that where the right of the surety against the principal debtor is impaired due to any action or inaction of the creditor, the surety is discharged to that extent under the combined effect of Section 139 and 141 of the Indian Contract Act. It can be seen from the above that due to the inaction on the part of the first Respondent bank the rights of the appellants have been impaired and therefore the appellants are entitled to a discharge under the combined effect of Section 139 and 141 of the Indian Contract Act. Further Section 139 of the Indian Contract Act is a residuary section, the object of which is to ensure that no arrangement different from that contained in the surety’s contract is forced upon the surety and if the surety pays the debt, he has the benefit of every remedy which the creditor had against the principal debtor which in this case is not available to the appellants as the principal debtor company had already been taken over by the Official Liquidator.
15. It is also seen that the 1st Respondent has already recovered Rs.64.57 lakhs on 30.3.2005 out of the net sale proceeds of the leased assets carried out by the Official Liquidator. After adjusting the same, it has admitted before the Official Liquidator the net dues payable at Rs.33,50,460/- being the outstanding amount in the ELA account as of 14.2.2001 i.e. the date of winding up order. Out of the said amount, which stand as adjudicated dues payable by the 2nd Respondent company, the 1st Respondent has already received a sum of Rs.21,36,604/- from the Official Liquidator and that a sum of Rs.1 crore lying in deposit and readily available with the Official Liquidator would eventually enable the 1st Respondent bank to realize its adjudicated dues and as per Rule 154 of the Companies (Court) Rules, 1959, the liability of the 2nd Respondent Company is crystallized at the level of amount admitted and adjudicated by the Official Liquidator which can be deemed as the full and final settlement. In the case of Union Bank of India vs. Chairperson DRAT & others - (2011) 167 Comp Cases 1 (All) it has been laid down that whena Bank accepts certain amount in full and final settlement of the claim from Liquidator, it cannot proceed again against the guarantors for the balance amount and therefore the guarantors automatically stand discharged. In the present case, the appellants cannot be held liable even to the extent of balance of the dues of Rs.12,13,856/- from the amount admitted before and adjudicated by OL due to the abrogation of rights available to them in terms of Sections 140 ,141 and 145 of the Contract Act and when once the second Respondent borrower company comes under the ambit of Section 456, 535, 536 & 537 r/w 441of the Indian Companies Act, 1956.
16. Therefore from the fact that the OA has been filed by the 1st Respondent Bank against the appellants after the prescribed period of limitation, from the fact that the OA was adjudicated by DRT, Hyderabad without jurisdiction, from the fact that the secured creditor has acted in a manner not consistent with the rights of the surety, from the fact that by the inaction of the 1st Respondent bank the eventual remedy of the surety against the principal debtor had been impaired, from the fact that there is every possibility of the first Respondent realizing the dues admitted before and adjudicated by the Official Liquidator and from the fact that the appellants are entitled to a discharge by virtue of operation of Sections 139 and 141 of the Indian Contract Act this tribunal is driven to conclude that the order of the tribunal below allowing the OA claim against the appellants is liable to be set aside.
17. Accordingly the order of the Ld. Presiding Officer, DRT, Hyderabad dated 19.1.2011 passed in OA 132/2004 is hereby set aside and consequently the OA filed against the appellants in OA 132/2004 on the file of DRT, Hyderabad is hereby dismissed.
18. In the result the Appeal is allowed. No costs.
19. The Ld. Presiding Officer, DRT, Hyderabadis directed to recall the Recovery Certificate issued against the appellants.
The Chair Person of DRAT Chennai passed this order on 16th DEC2011
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