BASHEER M.PICHA Vs. INDIAN BANK

JUDGEMENT

(1.) In 1991, the petitioners availed of a performance mobilisation guarantee of Rs. 100 lakhs from the respondent bank. On its invocation, as on 9.5.1994, Rs. 45,43,376/- was due to the Bank. Though payment was defaulted, on 03.04.2008, petitioners paid Rs. 1.5 crores. In spite of it, the Bank now claims that more than Rs. 27 crores is due to it. Petitioners are husband and wife and were the partners of a firm', M/s. Bainds Associates. In connection with a contract work that the firm had undertaken with the Konkan Railway Corporation, on 21.10.1991, as per Ext. R(p) sanction letter, the firm had availed of a performance mobilisation guarantee of Rs. 100 lakhs from the Bank. As security, apart from margin money deposit of 25% and a counter guarantee, a plot of land owned by M/s. Bainds Towers (Pvt) Ltd., a company, of which, the petitioners were the Directors, was mortgaged. On 9.5.1994, Konkan Railway Corporation invoked the Bank Guarantee and thereupon, the Bank paid Rs. 67.20 lakhs. After appropriating Rs. 21,76,624/- provided as margin money the Bank demanded payment of Rs. 45,43,3767- from the defaulters, viz., the firm, its partners, including the petitioners herein and the company.

(2.) Due to their failure to pay the amount demanded, on 5.9.1995, the Bank filed O.S. No. 816 of 1995 before the Sub Court, Trivandrum. The Sub Court declared the defendants ex parte and on 31.10.1996, by Ext. P1, the suit was decreed as prayed for allowing the Bank to realise Rs. 58,07,134.05 with interest @ 23.25% with quarterly rest till realisation, with costs from the defendants and their assets. It was also decreed that if the defendants failed to pay the amount within 2 months, plaint A and B schedule properties can be brought to sale.

(3.) Subsequently, the Bank filed O. A. 23 of 1999 before the Debt Recovery Tribunal (Kerala and Lakshadweep). The O. A. was allowed with costs of Rs. 12,000/- by Ext. R(e) final order. By this order, the Bank was allowed to realise Rs. 1,36,25,152.03 together with interest @ 23.25% with quarterly rest from 1.3.1999 till realisation, on Rs. 74,62,116.98. Thereafter, on an application filed by the Bank, the Tribunal passed Ext. R(f) order and by this order, the figure Rs. 74,62,116.98 occurring in para 7 of Ext. R(e) order was corrected to be read as Rs. 1,32,69,251.03.