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2022 (6) TMI 544 - Insolvency & Bankruptcy
Head Note / Extract:
Recovery of outstanding amounts - NPA - Forum Shopping - Section 13(2) of the SARFAESI Act, 2002 - HELD THAT:- It is undisputed fact that the impugned order of Adjudicating Authority dated 04.10.2019 was passed ex parte - This Tribunal has observed that loan facility has been granted to the Trust which is engaged in Educational Services @25% p.a by the R1/Bank which itself seems to be very high. It is difficult to predict about the bargaining power of the Trust/CD with the banks to borrow at such a high rate of interest. Although, not much details are provided but as it looks that sanctioned amount is Rs. 3 Crore to M/s. Camellia Educare Services Ltd., and Rs. 8.5 Crore each to M/s. Multiple Educational and Manpower Development Trust and Camellia Educare Trust sanctioned in the year 2012 for the furtherance of the objective of the trust for Development of Education Services and the Corporate Guarantee Agreement was executed apart from offering its properties in mortgage for Rs. 20.80 Crore - It is also evident from the pleadings that the Corporate Debtor/Guarantor has executed a ‘Corporate Guarantee Agreement’, in lieu of the said loans apart from offering its property in mortgage. It is also observed that the R1/Bank also issued ‘demand notice’ on 29.12.2016 under the provisions of SARFAESI Act, 2002 to the Appellant demanding further Rs. 14 Crore from the Appellant being the Corporate Guarantor. It is also observed from the pleadings that the Appellant has given reply of the said ‘demand notice’ as per provisions laid in SARFAESI Act, 2002 vide their letter dated 13.02.2017 denying and disputing the said ‘demand notice’ and the quantum. It has also been mentioned in the pleadings that the borrower was continuously making payment inspite of receiving ‘demand notice’ under the relevant provisions of SARFAESI Act, 2002. As per the pleadings, it is also mentioned that the ‘original borrower’ has paid an amount of Rs. 92 lakhs during the time of pendency of the said application. It is a settled law that the practice of Forum Shopping be condemned as it is an abuse of law. This case is beyond doubt falls under the category of Forum Shopping as it is a classic example of Forum Shopping when the Respondent Bank has approached one Court for relief but does not get the desired relief and then approached another court for the same or similar relief. It is deemed fit and proper to remand back the matter to the Adjudicating Authority to give a patience hearing also to the Appellant and the Respondents including the RP and then to decide the matter considering the fact of the case as well as the provisions of applicable laws on the issue and then to finally pass appropriate order in accordance with law - appeal allowed by way of remand.