MUNISH KUMAR BHUNSALI Vs. KOTAK MAHINDRA BANK LTD.

JUDGEMENT

(1.) M/S. KEW Precision Parts Private Limited (in short the company) approached the respondent/ Bank for availing financial facilities which were sanctioned vide letter dated 23rd November, 2012. For the said facilities Munish Kumar Bhunsali, the petitioner herein besides Kumud Jain and Mohit Kumar Bhunsali executed several security documents to secure the facilities. The company again approached the respondent/ Bank for renewal of existing financial facilities in March, 2013 which were renewed vide the letter dated 11th March, 2013. Again the above-noted persons executed several security documents to secure the facilities. These financial facilities were further renewed vide letter dated 7th February, 2014 and as noted the petitioner, Munish Kumar Bhunsali is a guarantor having executed guarantee documents in relation to the financial facilities taken by the company. The petitioner Munish Kumar Bhunsali created security interest in favour of the applicant/Bank for repayment of the term loan by way of deposit of title deeds of immovable property and extended the mortgage charge from time to time in respect of the entire second floor of property bearing No. B-384 situated at New Friends Colony admeasuring 2976.62 sq.ft. In terms of the financial facilities the petitioner and the company were required to repay the principal amount of loan in accordance with the repayment schedule besides interest and other charges, however the company defaulted in re-paying the principal and interest amount along with other charges and thus the account of the company was classified as NonPerforming Assets (NPA) on 30th September, 2015. Further, petitioner herein who stood as guarantor also failed to make repayment of the outstanding dues.

(2.) The respondent/Bank through its authorized officer issued a statutory demand notice on 19th November, 2015 to the company and its three guarantors under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (in short the SARFAESI Act) and called upon them to make the payment for a sum of Rs. 18,65,05,035.86/- (Rupees Eighteen Crores Sixty Five Lakhs Five Thousand Thirty Five and Paise Eighty Six only) due on 17th November, 2015 together with further interest and charges starting from 18th November, 2015 till actual payment within 60 days from the date of receipt of the demand notice failing which the bank intimated the company that it would be entitled to exercise all or any of its rights under Section 13(4) of SARFAESI Act in respect of the mortgaged property.

(3.) Despite the expiry of 60 days of the receipt of demand notice under Section 13(3) of the SARFAESI Act no payment was made. Vide their letter dated 22nd January, 2016 the company raised objections/ representations under Section 13(3) of the SARFAESI Act before the authorized officer of the bank against demand notice dated 19th November, 2015 which were duly adjudicated upon under Section 13(3A) of the SARFAESI Act, vide reply letter dated 16th February, 2016, whereafter action under Section 13(4) of the SARFAESI Act was initiated and the authorized officer proceeded to take possession of the mortgaged property on 25th February, 2016. However, the authorized officer was not able to take the physical possession as borrower, mortgagors and guarantors and their authorized representatives refused to hand-over the peaceful and vacant possession of the secured asset and thus only took the symbolic possession of the mortgaged property on 25th February, 2016 which was published in the local newspaper on 26th February, 2016. Thus the respondent/Bank was constrained to approach the Court of learned Chief Metropolitan Magistrate, South East District for exercising its power under Section 14 of the SARFAESI Act and to take physical possession of the said mortgaged property and to hand-over the same to the authorized officer of the respondent/Bank.