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2016 (5) TMI 730 - MADRAS HIGH COURT

2016 (5) TMI 730 - MADRAS HIGH COURT - TMI - Winding up - auction sale proceeded under the SARFAESI Act - Held that:- Sale of the assets of the company for realisation of the loan amount to State Bank of Patiala, Syndicate Bank and M/s. LIC Housing Finance Limited, Chennai. Company sought to be wound up has also now filed an affidavit dated 18.01.2016, undertaking that they would handover physical possession of the secured assets upon completion and confirmation of the auction sale to be proceed .....

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d respondent, shall take measures in the manner known to law, under the provisions of the SARFAESI Act to sell the assets of the company and take steps to get the sale confirmed as expeditiously as possible. No sooner the sale is confirmed, M/s.Riverside Infrastructure (India) Private Limited, Chennai, shall handover the possession of the assets as per the affidavit of undertaking dated 18.01.2016, without demur or objections. The whole exercise has to be completed within four months from the da .....

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e Limited, Chennai has submitted that they are the leading Housing Finance Company and engaged in the field of Housing and Project Finance from the year 1989 and they advance loans for project development and housing requirement against mortgage of immovable properties. As a part of business, M/s. LIC Housing Finance Limited, Chennai is also advancing loans against mortgage of immovable properties to corporate companies, for execution of projects of business development and infrastructure. 3. Th .....

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a proposed Mall complex named, "Marg Junction" at Karapakkam, Old Mahabalipuram Road, Chennai. 4. The respondent company was promoted by Mr.G.R.K.Reddy and Mrs.Rajini Reddy, promoters of Marg Limited, with the conceived project of establishing a Mall with multiplexes. The respondent company had originally availed funding from HUDCO and commenced the project in the year 2008. During the course of their business activities the respondent approached the petitioner, for part funding to dev .....

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ank had sanctioned a project Term Loan in the year 2011 for the completion of construction of a Mall cum Multiplex Complex at Karapakkam OMR, Chennai. The details of the loan which had been sanctioned by the petitioner and the other consortium bankers are as follows: LIC HFL - ₹ 100 Crores State Bank of Patiala - ₹ 67 Crores Syndicate Bank - ₹ 50 Crores Total - ₹ 217 Crores. 6. The salient features of the lending and the terms and conditions to be complied with the respon .....

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pany on 21.04.2011. In consideration of availing and to secure the said loan the under mentioned loan documents were executed by the Respondent Company in favour of the petitioner and the consortium Bankers. (a) Common Loan Agreement entered into between the respondent, petitioner and the consortium bankers viz., State Bank of Patiala and Syndicate Bank. (b) Common Deed of Hypothecation executed by the respondent in favour of the Security Trustee under the Common Loan Agreement viz., State Bank .....

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Resolution dated 22.10.2010. Further, the Director of the respondent Company viz., Mr.G.R.K.Reddy also stood as the guarantor in his individual capacity for the Project Term Loan availed by the respondent by executing a Guarantee Deed dated 21.04.2011. STATE BANK OF PATIALA is the Lenders Agent and Security Trustee, pursant to the Lenders Agreement dated 21.04.2011 entered into between the lenders and the Respondent Company. 9. The petitioner has further stated that the said Project Term Loan wh .....

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mbers of Karapakkam Village, in an by a Mortgage Deed dated 23.05.2011 executed by them in favour of the Security Trustee and the other consortium bankers viz., State Bank of Patiala and Syndicate Bank. The said Mortgage Deed was registered as Document No.3077 of 2011, on the file of the SRO, Neelankarai. The details of the mortgaged property are set out in the mortgage deed. 10. It is also contended that in terms of the Common Loan Agreement the respondent company had to repay the loan amount t .....

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the Petitioner, the respondent had delayed the completion of the Project. 11. Added further that the respondent company had also deviated from the original plan of construction and had modified the project without the consent of the lenders. In the result there was an over run and the project could not be completed on account of the conversions and modifications made. Further the respondent company having availed the loan amount did not adhere to the repayment schedule. On account of the defaul .....

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Similar defaults were committed with the other consortium lenders, forcing the petitioner and the consortium lenders to initiate proceedings as against the respondent company by enforcing the mortgage on the secured Asset, under the provisions of the SARFAESI Act. State Bank of Patiala as the lead banker had issued Demand Notice dated 06.05.2013 under Sec.13(2) of SARFAESI Act calling upon the respondent company to pay the total outstanding sum of ₹ 250,66,51,688.47p, as on 28.02.2013 due .....

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e possession notice. All procedures as contemplated under the Act and Rules have been complied with in the measures taken under SARFAESI. 13. As the respondent company has huge arrears, not able to honour the committed and accepted the liability, a statutory notice dated 07.01.2015, has been issued under Section 433 of the Companies Act, 1956. Notice has been acknowledged on 01.02.2015. So far no amount has been paid. According to the petitioner as on 28.02.2015, the respondent has to pay a sum .....

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he Respondent Company. c) Directing the costs of this petition come out from the estate of the respondent company M/s.Riverside Infrastructure (India) Private Limited." 14. On 15.12.2015, when the matter came up for hearing, this Court passed the following orders "On behalf of M/s. Riverside Infrastructure (India) Private Limited, though, a counter affidavit has been filed by Mr.K.Rajasekaran, learned counsel for the company sought to be wound up submitted that they are willing to sell .....

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truction Company Limited, Mumbai, the proposed 2nd respondent, in its counter affidavit has submitted that State Bank of Patiala and Syndicate Bank have under the Consortium lending advanced a total sum of ₹ 117 Crores to the 1st respondent for construction of a Multiplex Mall at Karapakkam, IMR, Chennai. The 1st respondent mortgaged the Multiplex Mall as security by way of equitable mortgage with the Consortium lenders for the loan sanctioned. With the passage of time, the 1st respondent .....

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77; 250,66,51,688.47/- (Rupees Two Hundred Fifty Crores Sixty Six Lakhs Fifty One Thousand Six Hundred and Eight and Forty Seven Paise only) as on 28.02.2013 along with further interest, charges and expenses within a period of 60 days from the date of the said notice, which is payable by the 1st respondent to State Bank of Patiala, Syndicate Bank and LIC Housing Finance Limited collectively. 17. Since M/s.Riverside Infrastructure Pvt. Ltd., failed to clear dues as demanded vide aforesaid Demand .....

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right, title and interest in and to the financial assistance granted by them to 1st respondent alongwith underlying securities thereto in favour of the answering respondent. 19. As per the said Assignment Agreements, the answering respondent has become the full and absolute owner and as such the only person legally entitled to recover the financial assets as any part thereof including the right to file a suit or nay such other proceedings in its own name and to take such other action as may be .....

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ested with the answering respondent. 21. The proposed 2nd respondent has all the rights, title and interest in the Financing Documents apart from all collateral security, undertaking, security interest and / or pledges created to secure and/or guarantees issued in respect of the repayment of loans. The answering respondent has got the right to enforce such Security Interests, pledges and /or guarantees and appropriate the amount realized there from towards the repayment of loans and to exercise .....

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handover possession of the secured assets of the company upon completion and confirmation of the auction sale to be proceeded under the SARFAESI Act. 6. I submit that the 1st respondent Company is always ready and willing to settle the loan amounts due to the respondents and to cooperate with the Asset Reconstruction Company for the amicable settlement by restructuring the Financial Assets and to appropriate the amount realized there from towards repayment of the loans. In this regard the 1st re .....

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the 1st respondent company to discharge the loans outstanding to the consortium banks, the 1st respondent company undertakes to handover physical possession of the secured assets upon completion and confirmation of the auction sale to be proceeded under the SARFAESI Act." 23. Added further, submissions have also been advanced by the learned counsel for the petitioner and Edelweiss Asset Reconstruction Company, Mumbai, that consent has been given by the respondent company to recover the amou .....

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