Bombay High Court
Mangesh Shridhar Bhagwat vs Bank Of Maharashtra, Thr. Its ... on 13 October, 2022
Bench: S.B. Shukre, Anil Laxman Pansare
1
13-10-2022-wp-631-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.631 of 2022
Mangesh Shridhar Bhagwat,
Aged 54 years,
Occupation - Advocate & Notary Public,
R/o 26, Dewashish, New Swastik Nagar,
In front of Water Supply Office,
Amrvati-444 607. ... Petitioner
Versus
1. Bank of Maharashtra,
through its Zonal Manager,
Regional Office,
Lahanuji Nagar,
Amravati-444606.
2. Bank of Maharashtra,
through General Manager
(Credit Monitoring),
Lokmangal,
1501, Shivaji Nagar, Pune.
3. Indian Banks' Association,
through Chief Executive,
World Trade Centre Complex,
Centre 1, 6th Floor, Cuffe Parade,
Mumbai-400 005. ... Respondents
Shri Anil S. Mardikar, Senior Advocate, assisted by Shri R.D. Wakode,
Advocate for Petitioner.
None for Respondents, though served.
CORAM : SUNIL B. SHUKRE & ANIL L. PANSARE, JJ.
DATE : 13th OCTOBER, 2022
ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :
1. Heard Shri A.S. Mardikar, learned Senior Advocate for the
petitioner. Nobody is present for the respondents, though the
respondents have been served long back and have been granted
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several opportunities by this Court to appear before this Court and file
their reply.
2. On the last occasion, i.e. on 15-9-2022, the respondents were
absent and even then this Court granted one more chance to the
respondents in the interest of justice. While granting additional
chance to the respondents, this Court noted that if the respondents
failed to file any reply and did not remain present before this Court on
the next date, this Court would proceed in the matter, presuming that
the respondents did not wish to contest the claim of the petitioner and
would accordingly finally decide the petition.
3. The warning given to the respondents had no effect on them.
It is now clear that the respondents do not wish to contest this petition
and thus it is seen that the respondents have admitted all the material
contentions in this petition.
4. Hence, Rule. Rule is made returnable forthwith.
Heard finally.
5. It is seen from the documents placed on record that no notice
and no opportunity of submitting the explanation whatsoever has been
issued and granted to the petitioner before putting the name of the
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petitioner, who was an empanelled Advocate of the respondent No.1-
Bank, in the impugned Caution List dated 21-11-2015 issued by the
respondent No.2 and the consequent Caution List dated 4-12-2015
issued by the respondent No.3. Giving of opportunity to submit the
explanation is a minimum requirement of the rules of natural justice
and this is also embedded in the Procedural Guidelines for Reporting
Names of Third Parties Involved in Frauds to IBA for inclusion in the
Caution List issued by the Reserve Bank of India vide it's Circular
No.DBS.CO.FrMC.BC No.3/23.08.001/2008-09 dated 16-3-2009.
These Guidelines also require that the distinction must be made by the
Authority, which is the Forum for deciding such cases as per the said
Guidelines, between negligence simpliciter and negligence resulting
from mala fide intention. The relevant Guidelines, which are stated in
Para 6, Clauses (g) and (h) of the Circular, are reproduced for the sake
of convenience, as below :
"6. Process of evaluation of involvement of TPE and
reporting to IBA
g. The Forum will take a considered view when isolated
cases of negligence/gross negligence on the part of the TPE
is reported as to the desirability of recommending
inclusion of the TPE in the caution list. It may not be fair
to caution list a TPE for a reported instance of negligence
when malafide intentions are not involved.
h. If the Forum feels that the intentions of the TPE were
malafide, the Forum will ask the concerned
business/operations group to write to the TPE concerned
and seek explanation for his/her action."
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6. In the present case, it is also the contention of the petitioner
that there was no negligence committed by the petitioner in
submitting a search report of the property which was to be mortgaged
as a security to the respondent-Bank for sanction of some loan. It is
also submitted that in any case, the negligence, if any, was not with
mala fide intention, as there was no material showing that the
petitioner had acted hand-in-glove with the concerned borrower in
order to give a distorted picture of the subject-matter. He places
reliance upon the view taken by this Court in Criminal Writ Petition
No.593 of 2018 in the case of Abhishek son of Mohan Mudaliar Vs.
State of Mahrashtra, decided on 11-12-2018; and Writ Petition
No.3616 of 2021 in the case of Rajan Shrivallabha Deshpande Vs.
Bank of Baroda and another, decided on 3-8-2022.
7. On going through the impugned communications and also the
fact that all the contentions are admitted by the respondents owing to
their meaningful silence in the matter, we have no hesitation to accept
the argument of the learned Senior Advocate for the petitioner.
8. The impugned communications do not show that any
opportunity of submitting an explanation was afforded to the
petitioner. The said communications also do not show that any effort
was made by the Forum for determining the nature of alleged
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negligence on the part of the petitioner, whether it was negligence
simpliciter or negligence with mala fide intention. Therefore, the law
laid down by this Court in the aforesaid two cases of Abhishek
Mudaliar and Rajan Deshpande would squarely apply to the facts of
the present case. The impugned communications are also violative of
the mandatory requirement of the principles of natural justice which
has also found it's way in the Reserve Bank of India Guidelines of
July 2009 in Clauses (g) and (h) of Para 6 thereof.
9. For the reasons stated above, we find that the impugned
communications are bad in law and require to be quashed and set
aside.
10. The petition is, therefore, allowed in terms of
prayer clause (i), which reads as under :
"i) Quash and set aside the impugned communications
dated 21.11.2015 issued by the respondent no.2, placed at
ANNEXURE-L, and the consequent communication dated
04.12.2015 issued by the respondent no.3, placed at
ANNEXURE-M, in the interest of justice."
11. Rule in above terms. No costs.
(ANIL L. PANSARE, J.) (SUNIL B. SHUKRE, J.)
Digitally Signed By :P D
LANJEWAR Lanjewar
Signing Date:13.10.2022
19:25
