Bombay High Court
Manisha Nimesh Mehta vs Technology Development Board on 14 August, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
Digitally
2024:BHC-OS:12471
signed by
GAURI GAURI AMIT
GAEKWAD
AMIT Date: 1/4 915to917.WPL-23291-2024.doc
GAEKWAD 2024.08.16
14:29:47
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
(915) WRIT PETITION (L) NO.23291 OF 2024
AND
(916) WRIT PETITION (L) NO.23292 OF 2024
AND
(917) WRIT PETITION (L) NO.23295 OF 2024
Manisha Nimesh Mehta ....Petitioner
V/s.
Technology Development Board & Ors. ....Respondents
----
Mr. Mathews J. Nedumpara a/w. Ms. Hemali Merva, Mr. Rahul Yadav, Mr. B.
S. Munday, Mr. Akhilesh Nair and Mr. Immunal Joshua i/b. Nedumpara &
Nedumpara for petitioner.
Mr. Viraj Shelatkar a/w. Mr. Sumedh Ruikar i/b. Mr. Pradip Yadav for
respondent nos.1 to 6.
Mr. Harjot Singh Alang i/b. Raval Shah & Co. for respondent no.10.
Mr. Yahya Batatawala a/w. Ms. Krushi Shah for respondent no.18.
Ms. Jyoti Chavan, Addl. GP a/w. Mr. Vikrant Parshurami, AGP for
respondent no.15 - State in WPL/23291/2024 and WPL/23292/2024.
Mr. Mohit Jadhav, Addl. GP a/w. Mr. Amar Mishra, AGP for respondent
no.15 - State in WPL/23295/2024.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATED : 14th AUGUST 2024
P.C. :
1 At the outset, Mr. Nedumpara states that respondent no.19 has
been added by mistake and should be deleted. Ordered accordingly.
2 During the course of submissions, Mr. Nedumpara brought to
the notice of the Court a recent judgment of the Hon'ble Apex Court in
M/s. Pro Knits v/s. The Board of Directors of Canara Bank and Ors. 1 in
1 Judgment in SLP (C) No.7898 of 2024 and other matters pronounced on 1st August 2024.
Gauri Gaekwad
2/4 915to917.WPL-23291-2024.doc
which the Hon'ble Apex Court has held in paragraphs 17 and 18 as under :
17. It is also pertinent to note that sufficient safeguards have
been provided under the said Chapter for safeguarding the
interest of the Defaulters-Borrowers for giving them
opportunities to discharge their debt. However, if at the stage
of classification of the loan account of the borrower as NPA,
the borrower does not bring to the notice of the concerned
bank/creditor that it is a Micro, Small or Medium Enterprise
under the MSMED Act and if such an Enterprise allows the
entire process for enforcement of security interest under the
SARFAESI Act to be over, or it having challenged such action
of the concerned bank/creditor in the court of law/tribunal
and having failed, such an Enterprise could not be permitted
to misuse the process of law for thwarting the actions taken
under the SARFAESI Act by raising the plea of being an
MSME at a belated stage. Suffice it to say, when it is
mandatory or obligatory on the part of the Banks to follow
the Instructions/Directions issued by the Central Government
and the Reserve Bank of India with regard to the Framework
for Revival and Rehabilitation of MSMEs, it would be equally
incumbent on the part of the concerned MSMEs to be vigilant
enough to follow the process laid down under the said
Framework, and bring to the notice of the concerned Banks,
by producing authenticated and verifiable documents/
material to show its eligibility to get the benefit of the said
Framework.
18. In that view of the matter, we are of the opinion that the
findings recorded by the High Court in the impugned order
that the Banks are not obliged to adopt the restructuring
process on its own or that the Framework contained in the
Notification dated 29.05.2015, as revised from time to time
could not be said to be mandatory in nature, are highly
erroneous and cannot be countenanced. The Instructions/
Directions issued by the Central Government under Section 9
of the MSMED Act and by the RBI under Section 21 and
Section 35A have statutory force and are binding to all the
Banking companies.
3 The counsels are in agreement and state that this issue requires
to be considered by the NCLT and Mr. Nedumpara states petitioner has filed
recall applications being (i) Interim Application No.7226 of 2024,
(ii) Interim Application No.7230 of 2024 and (iii) Interim Application
Gauri Gaekwad
3/4 915to917.WPL-23291-2024.doc
No.7238 of 2024. Mr. Nedumpara, on instructions, states that all office
objections have also been cured.
4 In view of the law as laid down by the Hon'ble Apex Court in
M/s. Pro Knits (Supra), in our view, NCLT may consider the law in the
recall applications filed by petitioner. NCLT is requested to consider the
recall applications and dispose the same at the earliest in accordance with
law and preferably within four weeks from today, subject to the roster of
NCLT. The counsels state that if petitioner makes an application to NCLT for
early hearing of the recall applications, they shall co-operate and also
jointly request NCLT to decide the recall applications at the earliest.
5 We hasten to add that we have not made any observations on
the merits of the recall applications. All rights and contentions of the parties
are kept open.
6 As regards Writ Petition (lodging) No.16964 of 2024,
which is not listed before us and not forming part of our assignment,
Mr. Nedumpara states that leave be granted to amend the petition to delete
the names of petitioner no.5 and respondent nos.10, 11 and 12. Others
have no objection. Therefore, leave granted.
7 All amendments to be carried out and copy of amended
petitions to be served on the remaining respondents within three weeks
from today.
Gauri Gaekwad
4/4 915to917.WPL-23291-2024.doc
8 In view of the above, Mr. Nedumpara also seeks leave to
withdraw the three petitions listed today.
9 All three petitions dismissed as withdrawn.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
Gauri Gaekwad
