SICOM LIMITED Vs. ANANDPRASAD G SHRIVASTAVA

JUDGEMENT

(1.) The present petition is filed under section 31 (1) (aa) of the state Financial Corporation Act, 1951 against the Guarantors. The company known as Consolidated Containers (India) Limited was incorporated inter alia for carrying on business in the containers.

(2.) The said company applied for a term loan of Rs. 85,00,000/- and Rs. 32,00,000/- during the period November 1988 to January 1995. Thus, the total term loan lent and advanced by the petitioner to the company was Rs. 1,17,00,000. The said term loan was sanctioned on 25.11.88 and 12.3.91. In respect of the aforesaid sanction of the loan amount, the loan agreement dt. 1.12.89 and 22.10. 92 was executed by and between the said company and the petitioner herein. Under the terms and conditions of the said loan agreement it was provided that the said amount has to be repaid in instalments along with interest costs, charges and expenses. The aforesaid loan amount was secured by a mortgage executed between the said company in respect of the assets being land bearing Survey No. 51, Hissa Nos. 2 8s 3 at Village Kambivili, in the Registration Sub-District of Khalapur at Raigad The charge was created also in respect of plant and machinery, other movable assets. An equitable mortgage was also created by deposit of title deeds in respect of immovable properties. The respondents herein were the promoters and directors of the said company and executed a personal guarantee in favour of the petitioner. Under the said guarantee respondents herein have promised to pay the amount if the said borrower company commits default in repayment thereto. The said deed of guarantee is executed on 1.12.89 by respondent No. 1. Respondent no. 2 has executed a deed of guarantee on 27.2.90. Respondent No. 3 has also executed deed of guarantee on 27.2.90. Respondent No. 4 and 5 have executed joint guarantee on 21.5.90 and the respondent No. 6 has executed guarantee on 21.8.90 under the terms to repay the amount in an event of default on behalf of the said borrower company. In respect of the additional term loan of rs. 32,00,000/- further guarantees were executed. Respondent Nos. 1 to 3 executed guarantee in favour of the petitioner on 22.10. 92. Respondent Nos. 4 and 5 also executed a guarantee in favour of the petitioner on 7.12.92 and respondent No. 6 executed the said guarantee on 14.12.92. Under the terms and conditions of the guarantees it is provided that the same are absolute and unconditional and without any demur and the respondents will make payment on the petitioner calling upon them to do so on default being committed by the borrowers.

(3.) The borrower company failed to make payment of the instalment amount on stipulated dates. The demand notice was issued on 10. 2.95 calling upon the borrower company to repay the overdue amount of Rs. 85,15,490/- with interest thereon. However, borrower company did not make payment and thus entire outstanding amount of loan lent and advanced was recalled. On 18.4.97 the recalled notice was given to the borrower and threatened that the company's assets which are mortgaged with the petitioner will be taken over. However, borrower company approached BIFR under the provisions of Sick industrial Companies (Special Provisions) Act, 1985 and registered the case being case No. 50 of 1997. In the aforesaid circumstances, the petitioner issued notice to the guarantors on 3.11. 00 and invoked the said guarantee and called upon the respondents herein to make payment of outstanding aggregated amount of Rs. 4,22,63,333/- comprising of principal amount of rs. 1,15,11,804/- and an interest amount of Rs. 3,07,51,529/- payable by the respondents to the petitioners. By a letter dt. 28.11. 00 the respondents informed the petitioner that in view of the proceedings pending in the BIFR proceedings cannot be initiated as against guarantors also. However, the BIFR by its otder dt. 3.12. 00 directed that the borrower company should be wound up. Thus, the proceeding under BIFR has came to an end and borrower company being wound up an Official Liquidator has been appointed in respect of the assets of the said company in Company Petition No. 686 of 1996. The aforesaid Official Liquidator attached to this Court has been appointed and he has taken possession of the borrowers company's assets including mortgaged assets with the petitioner herein. In view of non payment of the demanded amount by the respondents herein petitioners have filed the present petition under section 31 (1) (aa) of the SFCs Act, 1951. As on the date of the petition the petitioners have claimed an amount of Rs. 6,91,99,911/- with interest accrued thereon as due and payable by the respondents.