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M/S Kut Energy Pvt.Ltd vs The Authorized Officer Punjab … on 20 August, 2019

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.

1

Reportable
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6016-6017 OF 2019

M/s Kut Energy Pvt. Ltd. Ors. …Appellants

VERSUS

The Authorized Officer, Punjab National
Bank, Large Corporate Branch,
Ludhiana Ors. …Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals arise out of the judgment and order dated

19.03.2019 passed by the High Court of Himachal Pradesh at Shimla in

CMP Nos.4761 and 5386 of 2018 in CWP No.2274 of 2017.

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

Signature Not Verified
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:

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.

2

On 29.09.2015 the account of the appellant was declared NPA1 by the

Bank. A demand notice was thereafter issued by the Bank under Section

13(2) of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act, 2002 (“SectionSARFAESI Act”, for short)

on 15.03.2017. The amount due to the Bank as on 14.03.2017 was stated

to be Rs.106,07,91,644.26/-.

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

received from 2nd respondent for Rs.120,00,11,000/-. This prompted the

appellants to revise the OTS proposal to Rs.140 crores. Such offer was

made on 07.10.2017 and was followed by filing of CWP No.2274 of 2017

before the High Court on 10.10.2017 challenging (i) The notices dated

15.03.2017 and 22.08.2017 (ii) Sale Notice dated 29.03.2017 and (iii)

Order dated 06.10.2017 passed by the Tribunal refusing to grant interim

relief.

5. The matter came up for preliminary hearing before the High Court

on 11.10.2017 and the Counsel for the appellants submitted that in order to

establish their bona fides, the appellants were willing and ready to deposit

a sum of Rs.140 crores with the Bank. The submission was recorded and

directions were issued by the High Court as under:

“Mr. B.C. Negi, learned Senior Advocate, states that
without prejudice to the respective rights and
contentions of the parties and subject to the outcome
of the writ petition, pursuant to petitioners’ request
(Annexure P-18), which is pending consideration with
the lead Consortium Bank, in order to establish their
bona fides, petitioners are ready and willing to deposit
a sum of Rs.140 crores with the lead Consortium
Bank (Punjab National Bank) in the following
manner:-

(i) Rs.3 crores already deposited along with
communication, dated 7th October, 2017
(Annexure P-18);

(ii) Rs.15 crores on or before 16th October, 2017;

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.

4

(iii) Rs.22 crores on or before 1st November, 2017
and

(iv) Rs.100 crores on or before 11th December,
2017.

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.

We have not expressed any opinion with regard to the
rights and claims of the State.”

6. On 31.10.2017 the Bank rejected the revised OTS proposal for

Rs.140 crores i.e. even before the sum of Rs.140 crores was deposited by

the appellants. The appellants, therefore, filed CMP No.9618 of 2017

seeking modification of the aforementioned order dated 11.10.2017 stating

inter alia that deposit of Rs.100 crores be made subjection to the sanction
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.

5

of the settlement proposal. It may be noted here that as on the date the

appellants had deposited a sum of Rs.40 crores in keeping with the

commitment of first three stages as set out in the order dated 11.10.2017.

7. The Bank challenged the order dated 11.10.2017 by filing Special

Leave Petition(C) Nos.4898-4904 of 2018 in this Court, submitting inter

alia that the High Court ought not to have interfered in the matter while

exercising writ jurisdiction, as alternate remedy was available to the

appellants. The submission was accepted by this Court and the appeals

arising from SLP(C) Nos.4898-4904 of 2018 were disposed of by this

Court as under:

“Heard learned counsel for the parties.
Delay condoned.

Leave granted.

The respondent is a debtor to the tune of
Rs.325,00,00,000/- (Rupees Three hundred Twenty
Five crores only) and above. The Bank has rejected a
One Time Settlement proposal to settle for a figure of
Rs.150,00,000/- (Rupees one hundred Fifty crores
only), of which the debtor has deposited only
Rs.40,00,00,000/- (Rupees Forty crores only) till date.

Meanwhile, an auction of the mortgaged property has
already taken place, but, as no interim relief was
granted by the Debt Recovery Tribunal by its order
dated 06.10.2017, Respondent No.5, who is the
highest bidder, has paid 25% of the bid amount, after
which sale confirmation has taken place by a letter
dated 07.10.2017. We may hasten to add that on
18.10.2017, a cheque for the balance of 75% was
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.

6

furnished by respondent No.5, but not encashed, and
this was done again on 17.03.2018.

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.”

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:-

“9. We have heard the learned counsel for the parties
at a considerable length and gone through the record.

So far as the prayer of the borrowers for the refund of
the amount of Rs.40.00 crores is concerned, we do not
find any substance in the same. It is not a case where
the entire loan liability, as determined by the
Consortium of Banks, has been satisfied on
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.

7

appropriation of sale proceeds of secured assets. The
lead Bank has already filed suit for the recovery of
Rs.129.47 crores, which is pending adjudication
before the DRT. While the borrower/guarantors have
a right to contest the bank’s claim before the DRT, it
is highly premature and presumptuous for this Court
to comment upon the likely outcome of those
proceedings.

10. It goes without saying that if the bank’s suit is
decreed, fully or partially, the amount of Rs.40.00
crores, deposited by the petitioners before this Court,
is liable to be adjusted/appropriated towards the
decretal amount. However, in the event of dismissal
of such suit, with a finding that the borrower or the
guarantors are no longer under any liability, the
amount so deposited by them can be refunded to
them. Since all these issues are yet to be adjudicated
by the DRT, we are of the view that the prayer made
by the borrower/guarantors for refund of the amount
is liable to be turned down and we order accordingly.

11. The prayer made by the bank, on the other hand,
deserves to be accepted in part to the extent that let
the amount of Rs.40 crores lying deposited with the
bank ‘without any lien’ be deposited with DRT, who
in turn is directed to keep the same in a Nationalized
Bank to fetch maximum rate of interest. The amount
shall remain in FDRs till the decision of the suit filed
by the lead Bank (Punjab National Bank). In case the
suit is decreed and the decretal amount is more than
Rs.40.00 crores or the interest accrued thereupon, the
DRT is directed to transfer the said amount in favour
of the Punjab National Bank for adjustment towards
loan liability. In the event of dismissal of the suit, the
borrower/guarantors shall be at liberty to seek refund
of the said amount from the DRT.”

9. While challenging the aforesaid view taken by the High Court, Mr.

P.S. Patwalia, learned Senior Advocate for the appellants submitted that the
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.

8

deposit of Rs.40 crores with the Registry of the High Court in terms of the

order dated 11.10.2017 was only to establish the bona fides of the

appellants in support of the offer made by them. Once the Writ Petition

itself was held not to be maintainable and the offer made by the appellants

was rejected by the Bank, the amount so deposited must be returned to the

appellants. Reliance was placed on the decision of this Court in SectionAxis Bank

vs. SBS Organics (P) Ltd.3. Mr. S. Guru Krishna Kumar, learned Senior

Advocate, appearing for the Bank however contended that the view taken

by the High Court was perfectly justified. It was submitted that since the

dues of the appellants were far in excess of the value fetched by the sale of

assets, the directions issued by the High Court not only secured the interest

of the Bank but subserved public interest. In his submission the directions

issued by the High Court were consistent with the principles laid down in

Axis Bank3, as the High Court had not allowed the application preferred by

the Bank in its entirety but had directed that amount be kept in deposit

“without any lien.”

10. In Axis Bank3 the questions that arose for consideration were

whether the money deposited, in order to maintain an appeal under Section

18 of the SARFAESI Act before the Debts Recovery Appellate Tribunal

3 (2016) 12 SCC 18
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.

9

(‘DRAT’, for short) could be adjusted towards the amount due to the

concerned bank and whether the concerned bank had a lien over the money

so deposited. The submissions of the concerned bank were recorded in

para 4, the definitions of terms ‘secured asset’, ‘secured creditor’,

‘secured debt’ and ‘security interest’ were set out in paras 9 to 12. It was

observed in para 14 that the secured creditor was entitled to proceed “only

against the secured assets” mentioned in the notice under Section 13(2) of

the SARFAESI Act. The nature of pre-deposit in terms of Section 18 of

the SARFAESI Act was considered in para 21 and it was concluded that

such deposit was neither a ‘secured asset’ nor was a ‘secured debt’ and in

the circumstances, the prayer for refund of amount in deposit was required

to be allowed. This Court also considered the submission that the

concerned bank had lien on the deposited amount in terms of Section 171

of the Contract Act, 1872. The submission was rejected. Paragraphs 14,

21, 22 and 23 of the decision of this Court in Axis Bank3 were as under:-

“14. A conspectus of the aforesaid provisions shows
that under the scheme of the SectionSARFAESI Act, a
secured creditor is entitled to proceed against the
borrower for the purpose of recovering his secured
debt by taking action against the secured assets, in
case the borrower fails to discharge his liability in full
within the period specified in the notice issued under
Section 13(2) of the Act. It is the mandate of Section
13(3) of the Act that the notice issued under Section
13(2) should contain details of the amount payable by
the borrower and also the secured assets intended to
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.

10

be enforced by the secured creditor in the event of
non-payment of the dues as per Section 13(2) notice.
Thus, the secured creditor is entitled to proceed only
against the secured assets mentioned in the notice
under Section 13(2). However, in terms of Section
13(11) of the Act, the secured creditor is also free to
proceed first against the guarantors or sell the pledged
assets. To quote:

“13. (11) Without prejudice to the rights
conferred on the secured creditor under or by
this section, the secured creditor shall be
entitled to proceed against the guarantors or
sell the pledged assets without first taking any
of the measures specified in clauses (a) to (d)
of sub-section (4) in relation to the secured
assets under this Act.”

… … …

21. The appeal under Section 18 of the Act is
permissible only against the order passed by DRT
under Section 17 of the Act. Under Section 17, the
scope of enquiry is limited to the steps taken under
Section 13(4) against the secured assets. The partial
deposit before DRAT as a precondition for
considering the appeal on merits in terms of Section
18 of the Act, is not a secured asset. It is not a secured
debt either, since the borrower or the aggrieved
person has not created any security interest on such
pre-deposit in favour of the secured creditor. If that be
so, on disposal of the appeal, either on merits or on
withdrawal, or on being rendered infructuous, in case,
the appellant makes a prayer for refund of the pre-
deposit, the same has to be allowed and the pre-

deposit has to be returned to the appellant, unless the
Appellate Tribunal, on the request of the secured
creditor but with the consent of the depositors, had
already appropriated the pre-deposit towards the
liability of the borrower, or with the consent, had
adjusted the amount towards the dues, or if there be
any attachment on the pre-deposit in any proceedings
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.

11

under Section 13(10) of the Act read with Rule 11 of
the Security Interest (Enforcement) Rules, 2002, or if
there be any attachment in any other proceedings
known to law.

22. We are also unable to agree with the contention
that the Bank has a lien on the pre-deposit made under
Section 18 of the SARFAESI Act in terms of Section
171 of the Contract Act, 1872. Section 171 of the
Contract Act, 1872 on general lien, is in a different
context:

“171. General lien of bankers, factors,
wharfingers, attorneys and policy-brokers.—
Bankers, factors, wharfingers, attorneys of a
High Court and policy-brokers may, in the
absence of a contract to the contrary, retain as
a security for a general balance of account,
any goods bailed to them; but no other
persons have a right to retain, as a security for
such balance, goods bailed to them, unless
there is an express contract to that effect.”

… … …

23. Section 171 of the Contract Act, 1872 provides for
retention of the goods bailed to the bank by way of
security for the general balance of account. The pre-
deposit made by a borrower for the purpose of
entertaining the appeal under Section 18 of the Act is
not with the bank but with the Tribunal. It is not a
bailment with the bank as provided under Section 148
of the Contract Act, 1872. Conceptually, it should be
an argument available to the depositor, since the
goods bailed are to be returned or otherwise disposed
of, after the purpose is accomplished as per the
directions of the bailor.”

11. In the present case the deposit of Rs.40 crores in terms of the

order of the High Court on 11.10.2017 was only to show the bona fides of
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.

12

the appellants when a revised offer was made by them. The deposit was

not towards satisfaction of the debt in question and that is precisely why

the High Court had directed that the deposit would be treated to be a

deposit in the Registry of the High Court.

Going by the law laid down by this Court in Axis Bank3 the

‘secured creditor’ would be entitled to proceed only against the ‘secured

assets’ mentioned in the notice under Section 13(2) of the SARFAESI

Act. In that case, the deposit was made to maintain an appeal before the

DRAT and it was specifically held that the amount representing such

deposit was neither a ‘secured asset’ nor a ‘secured debt’ which could be

proceeded against and that the appellant before DRAT was entitled to

refund of the amount so deposited. The submission that the bank had

general lien over such deposit in terms of Section 171 of the Contract Act,

1872 was rejected as the money was not with the bank but with the DRAT.

In the instant case also, the money was expressly to be treated to be with

the Registry of the High Court.

On the strength of the law laid down by this Court in Axis Bank3,

in our view, the appellants are entitled to withdraw the sum deposited by

them in terms of said order dated 11.10.2017. Their entitlement having
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.

13

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.

……………………..J.

[Uday Umesh Lalit]

……………………..J.

[Vineet Saran]
New Delhi;

August 20, 2019.

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