Bombay High Court
Sadhana Bharat Rai vs The Board Of Directors Of Kotak Mahindra ... on 17 January, 2024
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2024:BHC-OS:1051-DB
502.wp(l).1812.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1812 OF 2024
Mrs.Sadhana Bharat Rai .. Petitioner
Versus
The Board of Directors of
Kotak Mahindra Bank & Ors. .. Respondents
UTKARSH
KAKASAHEB
BHALERAO Mr.Mathews Nedumpara a/w B.S. Munday, Hemali
Digitally signed by Kurne i/b Nedumpara & Nedumpara Advocates for the
UTKARSH KAKASAHEB
BHALERAO
Date: 2024.01.19
Petitioner.
17:49:33 +0530
Mr.Rushabh Shah a/w Tikshita Modi i/b Akhil Modi &
Associates, Advocates for Respondents.
CORAM: B. P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
DATE : JANUARY 17, 2024
P. C.
1. The above Writ Petition has been urgently moved seeking
to restrain and prohibit the Respondent Bank from initiating or
continuing any action for recovery of the amounts allegedly due to it,
including the physical possession scheduled for 17 th January, 2024 in
furtherance of Exhibit P10 notice issued by Respondent No.7.
2. Mr.Nedumpara submitted that the Petitioner is entitled to
this relief because the Petitioner is a MSME and by virtue of the
JANUARY 17, 2024
Utkarsh
502.wp(l).1812.2024.doc
MSMED Act, 2006 and the notification dated 29 th May, 2015 issued
under Section 9 thereof, no recovery proceedings can be initiated
against the MSME without first complying with the provisions of the
said notification.
3. We have perused the Writ Petition in great detail. We find
that the Writ Petition raises the exact same issue that has already been
decided by this Court in the case of M/s. A. Navinchandra Steels Pvt.
Ltd. & Anr. V/S Union of India & Ors. [(Writ Petition No.4620 of 2022)
decided on 11th January, 2024] along with other connected matters. By
this judgment, the Division Bench of this Court has opined that the
Banks/NBFCs are not obliged to adopt the restructuring process on its
own without there being any application by the Petitioners/MSMEs. In
the said judgment, and since we were only deciding this particular issue,
we had directed that all the Petitioners in those cases, on a case to case
basis, may adopt alternate remedies, as may be available in law.
4. Mr.Nedumpara submitted that the decision of the Division
Bench of this Court in M/s. A. Navinchandra Steels Pvt. Ltd. (supra) is
absolutely wrong because the judgment proceeds on the basis that the
incipient stress is not required to be identified by the Bank/NBFCs. He
submitted that this is contrary to the notification dated 29 th May, 2015.
JANUARY 17, 2024
Utkarsh
502.wp(l).1812.2024.doc
5. Having heard Mr.Nedumpara, we are unable to agree with
his submission. There is binding decision of the Division Bench of this
Court. If it is erroneous the aggrieved party has to carry the matter
further. We are in agreement with the view of this Court in the case of
M/s. A. Navinchandra Steels Pvt Ltd (supra).
6. In these circumstances, we find that let alone the prayer in
the Interim Application, the Writ Petition itself does not hold any merit
as the same is covered by the decision of this Court in M/s. A.
Navinchandra Steels Pvt. Ltd. (supra). In these circumstances, the Writ
Petition is dismissed.
7. We make it clear that dismissal of this Writ Petition does
not mean that the Petitioner cannot avail of the alternate remedy that is
available to her.
8. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this order.
[SOMASEKHAR SUNDARESAN,J.] [B. P. COLABAWALLA, J.]
JANUARY 17, 2024
Utkarsh
