M/S Kut Energy Pvt.Ltd vs The Authorized Officer Punjab National ...

2. An agreement was entered into between the appellants and the Government of Himachal Pradesh on 26.05.2008 for setting up 24 MW “Kut Hydro Electric Project” in District Shimla. For commissioning said Project, the appellants availed loan from the consortium of Punjab National Digitally signed by Bank (‘the Bank’, for short), Corporation Bank and Central Bank of India. MUKESH KUMAR Date: 2019.08.20 18:07:05 IST Reason:

3. Soon thereafter, three proposals were made by the appellants in quick succession on 27.06.2017, 01.08.2017 and 19.08.2017 offering Rs.84, 87 and 90 crores respectively for One Time Settlement (“OTS”, for short). On 22.08.2017 a possession notice under Section 13(4) of the SARFAESI Act was issued by the Bank in respect of the Project in question. On 29.08.2017 a sale notice was issued in terms of which the concerned properties were to be sold by e-auction on 06.10.2017 with a reserve price of Rs.120 crores.

4. Immediately an application seeking interim relief being SA No.481 of 2017 was moved by the appellants before the Tribunal2, which prayer was rejected by the Tribunal by its order dated 06.10.2017. On 06.10.2017 itself, the e-auction was conducted by the Bank in which a bid was 1 Non-Performing Asset 2 Debt Recovery Tribunal-(1), Chandigarh Civil Appeal Nos.6016-6017 of 2019 M/s Kut Energy Pvt. Ltd. & Ors. vs. The Authorised Officer, Punjab National Bank, Large Corporate Branch, Ludhiana & Ors. 3

8. On 22.05.2018 the Bank filed CMP No.4761 of 2018 in aforesaid CWP No.2274 of 2017 seeking appropriation of amount of Rs.40 crores deposited by the appellants in terms of the order dated 11.10.2017, against the dues of the appellants. On the other hand, CMP No. 5386 of 2018 was filed by the appellants on 29.05.2018 in said Writ Petition for refund of said amount of Rs.40 crores. These applications were disposed of by the High Court by its judgment and order dated 19.03.2019. The submissions advanced by the rival parties were dealt with and the directions were passed as under:-

We direct that subject to the petitioners depositing a sum of Rs.140 crores with the Punjab National Bank, in terms of their statement, no coercive action shall be taken against them, more so when they are still in the actual physical possession of the assets, which fact is not disputed before us. Also, such deposit shall be subject to further orders, which may be passed by the Court. Deposit with the bank shall be treated to be a deposit in the Registry of this Court. Further, bank shall take a decision on the petitioners’ request, dated 7th October, 2017 (Annexure P-18), which Mr. Ajay Kumar, learned Senior Advocate, states shall be taken within a period of four weeks from today. We further direct that in the event of petitioners’ succeeding in the present petition and/or the bank agreeing with the petitioners’ request, petitioners shall be liable to pay interest to the auction bidder on the amount already deposited pursuant to the auction. We further direct that till further orders, it shall not be obligatory on the auction purchaser to deposit the remaining balance amount.

In a recent judgment delivered by one of us in Authorised Officer, State Bank of Travancore and Anr. Vs. Mathew K.C. (2018) 3 SCC 85, we have cautioned against the High Court interfering in such matters in the writ jurisdiction. Such caution has unfortunately not been heeded in the present case. Given the facts of the present case, we, therefore, set- aside the impugned orders passed by the High Court. The appeals are allowed in the aforesaid terms. Pending applications, if any, shall stand disposed of.”

been established, the claim of the appellants cannot be negated by any direction that the money may continue to be in deposit with the Bank.

12. We, therefore set aside the judgment and order dated 19.03.2019 passed by the High Court, allow CMP No.5386 of 2018 preferred by the appellants and direct that the amount deposited by the appellants in terms of the order dated 11.10.2017 be returned to them within two weeks along with interest, if any, accrued thereon.

13. These appeals stand allowed in aforesaid terms. No costs.

August 20, 2019.