- (1.) This application has been taken out by the defendant No. 2, United Bank of India, for rejection of plaint. The plaintiff has instituted the suit against the defendants praying, inter alia, for a declaration that the notices dated 13th August, 2011 and 14th August, 2012 issued by the defendant No. 2 is illegal, null and void and liable to be set aside. It is stated in the plaint that the defendant No. 1 and the defendant No. 3 are acting hand in glove with each other and have acted in a manner prejudicial to the interest of the company. The said defendants were instrumental in persuading the plaintiff No. 2 in executing personal guarantees in favour of the bank in consideration of grant of loan and cash credit facilities to the plaintiff No. 1. The cause of action against the defendant No. 2 is stated in Paragraph 16 of the Plaint. It is stated that the defendant No. 2 allowed the defendant No. 1 to solely operate the cash credit account of the Company without considering and ignoring the resolution passed by the Board of the Company on 26th June, 2010. The bank did not reply to the notices issued by the plaintiffs with regard to the non-compliance of the resolution taken by the Board of the Company on 26th June, 2010. The plaintiffs have received a notice purported to have been issued under section 13(2) of the Securitisation Act alleging that the account of the cash credit and term loan account standing in the name of the plaintiff No. 1 had become NPA on 31st July, 2011 and called upon the Company as well as the guarantors to discharge in full the liability of the bank. Since the defendant No. 2 was not disclosing the information relating to transaction alleged to have been illegally conducted by the defendant No. 1 in the cash credit account of the company maintained with the defendant No. 2, the plaintiff applied under the Right to Information Act and pursuant thereto the Public Information Officer on 9th March, 2012 furnished certain documents. On perusal of the documents furnished by the Public Information Officer several irregularities were noticed. It is alleged that the irregularities mentioned in Paragraph 21 of the Plaint have been committed by the defendant No. 1 in collusion and conspiracy between the defendant Nos. 2 and 3. In paragraph 23 the plaintiffs gave particulars of the fraud alleged to have been committed by the defendants in collusion with each other. It is further alleged that in spite of protest being raised by the plaintiff No. 2 against the issuance of the notice dated 13th August, 2011, no step was taken by the bank. On the contrary, in or about 14th August, 2012, the plaintiff No. 2 had received another notice dated 14th August, 2012 purported to have been issued under section 13(2) of the Securitisation Act which is practically a verbatim reproduction of the earlier notice dated 13th August, 2011. It is stated that the defendant No. 3 being a Manager of the defendant No. 2 acted in collusion with the defendant No. 1 and perpetrated fraud upon the plaintiff No. 1 and, accordingly, the bank is not entitled to enforce the remedies available to it and enforce the securities in respect of the cash credit account. The plaintiffs claimed to have filed a criminal complaint against the defendants on 1st September, 2012. On the aforesaid pleading, the plaintiffs claimed declaration that the said notices dated 13th August, 2011 and 14th August, 2012 issued by the defendant No. 2 are illegal, null and void and liable to be set aside. It is further stated that the defendant No. 3 as the Branch Manager of the defendant No. 2 Bank has aided and abetted illegal and unauthorized use of the moneys originally sanctioned by the defendant No. 1. The defendant Nos. 2 and 3 are required and obliged to account for the moneys allowed to be illegally withdrawn and/or transferred at the instance of the defendant No. 1.
(2.) The defendant No. 2 has filed this application for rejection of the plaint and for recalling of the ad interim order dated 24th September, 2014. In the petition it is stated that the plaintiff No. 1 is the borrower. The plaintiff No. 2 and the defendant No. 1 along with one Smt. Salani Samir Saraiya, are the guarantors in respect of a term loan facility for a sum of Rs. 150 lacs and a cash credit facility for a sum of Rs. 150 lacs, aggregating to an overall limit of Rs. 300 lacs obtained by the plaintiff No. 1 from the said bank on the terms and conditions mentioned in the sanction letter dated 30th June, 2009.
(3.) For the purpose of availing of the said Credit facility, the plaintiff No. 1 duly passed a Board resolutions on April 8, 2009 and June 26, 2009 respectively wherein the Directors of the plaintiff No. 1 decided to avail of the said financial assistance from the said bank to run its business and the defendant No. 1 was duly authorized to execute all the necessary papers, agreements and documents with the said Bank in usual course of business. In consideration of the bank agreeing to grant such credit facilities, the plaintiff No. 1 and Smt. Salani Samir Saraiya have jointly executed a letter of guarantee dated 30th June, 2009. The plaintiff No. 1, the plaintiff No. 2 and the defendant No. 1 have also created equitable mortgage of immovable property. The plaintiff No. 1, however, has failed to adhere to the terms of the credit facilities and thereby a sura of Rs. 2,19,58,395/- became due and payable as on March 31, 2010. In spite of repeated demands neither the plaintiff No. 1, the borrower, and the said guarantors paid the just and lawful dues of the bank. As a result thereof the said Loan Account was classified as a "Non Performance Assets" (NPA) on July 31, 2011 within the meaning of section 2(o) of the said SARFEASI Act.;