SURENDRA SINGH KARNAWAT Vs. SUDHIR HEERAWAT

JUDGEMENT

(1.) This appeal filed under Order XLIII Rule (1)(r) of the CPC read with Section 5 and 13 (1A) of the Commercial Courts Act, 2015 seeks to challenge the order dated 01.10.2018 passed by the Commercial Court No.1 (District Level), Jaipur. The Commercial Court by the aforesaid order has allowed the temporary injunction application.

(2.) Appellants are the defendants in a suit for recovery and permanent injunction filed by respondent no.1-Sudhir Heerawat inter alia with the pleading that defendant nos.1 and 2 i.e. the appellants herein, incorporated defendant no.3-M/s. Kanishka Platinum Gold and Silver Product Ltd. (proforma respondent no.3 herein) while keeping the complete shareholding and control on its day to day affairs with them. Plaintiff was taken as an Executive Director of the Company. He was neither having any interference in day to day affairs of the company, nor having any participation in business of the company directly or indirectly. The defendant nos.1 and 2 requested him to arrange loan for business of the company. The defendant no.3 had submitted an application to the State Bank of India, Branch Malviya Nagar, Jaipur for sanction of loan. Plaintiff and defendant nos.1 and 2 stood guarantors to the financial facilities granted in favour of defendant no.3-company. It was alleged that the plaintiff also mortgaged its property in favour of the Bank for securing the said financial facilities. The immovable properties of the company as well as plant and machinery were also mortgaged/hypothecated with the Bank to secure the said facility. The defendant nos.1 and 2 utilized the proceeds and profit of the company for their personal benefit and therefore the repayment of the loan could not be made, with the result that the loan account of the company was declared as NPA.

(3.) The Bank initiated proceedings for enforcing the aforesaid securities under the Securitization Act, 2002. A demand letter dated 27.08.2011 was issued by the Bank for full payment. After negotiations, the Bank offered a compromise for releasing plaintiff from his liability as well as mortgaged property in lieu of payment of Rs.3.05 crore, which he accepted and deposited the said amount on 21.10.2013. The Bank therefore issued No Dues Certificate to him on 21.10.2013 and returned the title documents. It was alleged that defendant nos.1 and 2 have given their consent for aforesaid compromise and also took responsibility of the aforesaid amount paid to the Bank and for repayment of the said amount.