TaxTMI 
TaxTMI 
2021 (5) TMI 1086
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.... the R-1 - Mr. Praful Satra under Section 151 of the CPC, 1908) 4. The present petition under Section 9 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as the 'Act'] seeks reliefs in the nature of directions to the Respondents to deposit the outstanding amount due and payable as on 7th October, 2020; disclose on affidavit the details of the assets/properties; order of restraint from selling, transferring, alienating, relinquishing or creating any third party interest in respect of the assets/properties etc. 5. Briefly stated, the facts as disclosed in the petition leading to the filing of the present petition are as follows: - 5.1 The Petitioner sanctioned term loan of Rs. 65 Crores to Satra Property Developers Private Limited [hereinafter referred to as 'SPDPL'] under a Loan-cum-Mortgage Agreement dated 4th February, 2016 [hereinafter referred to as the 'Loan Agreement'] read with a sanctioned letter dated 24th December, 2015 [hereinafter referred to as the 'Sanction Letter']; 5.2 Respondent No. 1 - Mr. Praful Satra and Respondent No. 2 - Mrs. Minaxi Satra executed deeds of Personal Guarantees dated 30th December, 2015 irrevocably and uncondition....
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....1 filed I.A. No. 5843/2021, seeking directions for grant of permission to sell property being, Flat No. 1404, in Building known as LE 88 (now known as 81 Aureate), Mahim Bandra Reclamation, near MTNL Office, Bandra Reclamation, Bandra (W), Mumbai - 400050 [hereinafter referred to as the 'Scheduled property']. Along with the application, Respondent No. 1 has annexed: (i) a communication dated 3rd April, 2021, issued by the Union Bank of India, Peddar Road Branch, Mumbai [hereinafter referred to as the 'UBI'] which is an Advance Recall Notice regarding a term loan [hereinafter referred to as 'Recall Notice']; and (ii) copy of the enforcement notice dated 7th April, 2021 [hereinafter referred to as the 'SARFAESI Notice'] in respect of credit facilities enjoyed by Respondent No. 1. By this notice UBI has invoked Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [hereinafter referred to as the 'SARFAESI Act'] and called upon Respondent No. 1 to pay an amount of Rs. 10,61,19,626.11/- together with contractual rate of interest, and monthly rest in accordance with the terms and conditions of the loan documents within 6....
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.... to take appropriate legal action against you in a court of law/Debt Recovery Tribunal for recovery of the balance amount from you. You are further requested to note that as per Section 13(13) of the Act, on receipt of this notice you restrained/prevented from disposing of or dealing with the above securities except in the usual course of business without the consent of the bank Please also note that any violation of this section entails serious consequences. The Borrower attention is invited to the provisions of Sub-section (8) of Section 13 of the Act, in respect of time available, to redeem the secured assets. Yours Faithfully, Authorised Officer" 9. On the basis of the afore-noted Notices, Respondent No. 1 has contended that the Scheduled property is mortgaged by Respondent No. 1 in lieu of term loan availed from UBI and therefore, UBI holds first charge over the said Scheduled property. As against the same, the Petitioner herein is only a purported unsecured creditor and does not have any charge or substantial interest over the Scheduled property. In these circumstances, Respondent No. 1 seeks permission of this Court to exclude the Scheduled propert....
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....was subsequent to the execution of the Deed, the same is invalid, illegal, and of no consequence. Both the application as well as additional Affidavit are silent on whether the Respondent No. 1 had informed UBI regarding the existence and validity of the Deed dated 30th December, 2015, and the liability of the Respondent No. 1 towards the Petitioner herein. Respondent No. 1 is thus, clearly and unequivocally in flagrant breach of the Deed, as Respondents are not permitted to sell, transfer, encumber, charge, pledge, mortgage, hypothecate or create any lien on any assets without the prior permission of the Petitioner. The Deed further provides that the guarantee is a continuing one for all amounts, and it is enforceable against current, as well as future assets that may be acquired by the Respondents and the same cannot be dealt with without the prior written consent of the Petitioner. The Deed itself states that the future assets of the Respondents [such as the Scheduled property herein] cannot be dealt with and/or encumbered, without the prior consent of the Petitioner. Consequently, the memorandum relating to deposit of title deeds dated 30th June, 2016 is null and void. 12. M....
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....rom selling, alienating and/or creating any third-party interest in respect of any of his assets including the Scheduled property. Therefore, in light of the facts noted above, a clarification is necessary insofar as the Scheduled property is concerned. In the opinion of the Court, in the present petition, UBI cannot be restrained from enforcing its rights under the Notices dated 3rd April, 2021 and 7th April, 2021. Even otherwise, the Petitioner's prayer for injunction is only qua the present Respondents. Therefore, the Court clarifies that the order dated 20th November, 2020, recording the undertaking given by Mr. Saket Sikri, would not come in the way of UBI, taking recourse against the mortgaged Scheduled property in terms of the Notices dated 3rd April, 2021 and 7th April, 2021, in accordance with law. 15. It is further clarified that all the rights and contentions of the Petitioner as well as the Respondents on the above issue are left open. The Petitioner would be at liberty to raise objections, or avail appropriate remedies in respect of its right(s) under the Deed vis-à-vis the mortgage created in favour of UBI, before the appropriate forum/ Court. With the above....