Sanjeev Bhel & Another vs Punjab National Bank & Another
2009 Latest Caselaw 3641 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          Writ Petition (Civil) No.16310-11/2006

%                              Date of Decision: 09.09.2009

Sanjeev Bhel & Another                             .... Petitioners
                    Through Mr.Pankaj Gautam, Advocate

                                        Versus

Punjab National Bank & another                    .... Respondents
                    Through Mr.Pankul Nagpal, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.       Whether reporters of Local papers may be                   YES
         allowed to see the judgment?
2.       To be referred to the reporter or not?                     NO
3.       Whether the judgment should be reported in                 NO
         the Digest?


ANIL KUMAR, J. (ORAL)

*

1. Learned counsel for the petitioners seeks an adjournment on the

ground that the counsel is indisposed and has not started coming to the

Court after her disability.

2. Perusal of the record reveals that the learned counsel, Mr.Pankaj

Gupta is appearing in the matter since 30th April, 2007 and the matter

has been adjourned on account of one reason or the other reason

attributable to the counsel for the petitioner.

3. In the circumstances, the request for adjournment is declined.

4. The petitioner has filed the present petition seeking direction for

quashing the decision alleged to have been taken by the respondent

No.1 in their letter dated 15th May, 2006 on the request of the petitioner

seeking settlement of litigation of the loan account in the name of M/s.

Rajnath Motors Pvt. Ltd. The petitioner has also sought that the

petitioner‟s request for one time settlement be considered in accordance

with the RBI circulars and policy guidelines without discrimination and

to issue direction to the respondent Bank to refund the excess amount

after adjusting OTS dues.

5. The plea of the petitioner is that by letter dated 15th May, 2006,

compromise proposal of the petitioner was approved for Rs.20.12 lakhs

along with interest from 1st April, 2006 on the terms and conditions

stipulated in the said letter.

6. The petitioner has impugned the settlement on the ground that

the settlement agreed by the respondent Bank is not in consonance

with the RBI policy guidelines issued in public interest and in exercise

of power under Section 21 read with Section 35 (a) of Banking

Regulation Act, 1949.

7. Learned counsel for the petitioner has also relied on 2009 (10)

Scale 566, M/S.Sardar Associates & Others v. Punjab & Sind Bank &

Others to contend that the respondent is liable to consider the

guidelines of the Reserve Bank of India for settlement offered by the

petitioners.

8. The petition is contested by the respondent and respondent has

filed an affidavit contending that the recovery proceedings had been

filed against the petitioner long back on 22nd December, 1998 and a

final order of recovery certificate was passed on 23rd November, 2001

whereby the liability of the petitioners has been held to be

Rs.10,68,315.77 with costs as well as pendente lite and future interest

at the rate of 19.38% per annum. According to the respondent, the

guidelines for compromise settlement do not cover the cases of willful

default, fraud and malfeasance and in respect of cases which have been

identified as doubtful or the non-performing assets which have been

classified as on 31st March, 2000. Respondent Bank has also objected

to the applicability of the guidelines on the ground that the guidelines

are applicable to the pending proceedings.

9. Learned counsel or the respondents also contends that an appeal

challenging the recovery certificate issued against the petitioner was

filed after letter dated 15th May, 2006 accepting the proposal of the

petitioner was issued which has been challenged in the present petition.

The appeal of the petitioners with an application for condonation of

delay in filing the appeal is also pending before the Appellate Tribunal.

10. Considering the facts and circumstances, it cannot be disputed

that the question of the applicability of the guidelines can be considered

by the Appellate Tribunal. Learned counsel for the petitioner contends

that the question of delay is also involved in the appeal which has been

filed after filing the present petition.

11. Since the matter is already pending before the Appellant Debt

Recovery Tribunal, the applicability of the Reserve Bank circulars for

settlement of disputes between the petitioners and the respondents can

be considered by the Appellate Tribunal. If an alternate remedy is

available to the petitioners, they are not entitled to invoke the

jurisdiction of this Court under Article 226 of the Constitution of India

in the present facts and circumstances of the case. There cannot be any

doubt whatsoever that the question as to when a discretionary

jurisdiction is to be exercised or refused to be exercised by the High

Court has to be determined having regard to the facts and

circumstances of each case, where for no hard-and-fast rule can be laid

down. But normally, the High Court does not entertain writ petitions

unless it is shown that there is something more in a case, something

going to the root of the jurisdiction, something which would show that it

would be a case of palpable injustice to the writ petitioner to force him

to adopt the remedies provided by the statute. To the doctrine of

exhaustion of alternative remedy there are two exceptions. One is when

the proceedings are under a provision of law which is ultra vires which

will entail quashing of same on the ground that the proceedings are

incompetent without a party being obliged to wait until those

proceedings run their full course. The other exception is when an order

is made in violation of principles of natural justice and the proceedings

itself are an abuse of process of law. A Division Bench of the Supreme

Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of

India Ltd. ((2004) 3 SCC 553: JT (2003) 10 SC 300 [12]) observed that

the High Court having regard to the facts of the case, has a discretion to

entertain or not to entertain a writ petition and it is the Court that has

imposed upon itself certain restrictions in the exercise of this power.

The Supreme Court had held on page 572 in para 28 as under:

"28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article

226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

12. The writ petition of the petitioners does not challenge any statute

or provision of law which is ultra vires. Rather it is contended that

Policy of Reserve Bank of India and its circular for settlement of NPA

accounts is applicable to the case of the petitioners and the plea of the

settlement of the petitioners should be considered with regard to policy

and circulars of the Reserve Bank of India. It is also not disputed that

the appeal of the petitioners with an application for condonation of

delay in filing the appeal is pending. In the circumstances, the Appellate

Tribunal will be competent to consider this plea also in accordance with

law and rules and regulations.

13. The petitioners have not challenged the decision of the

respondent bank on the ground that the decision has been taken in

violation of the principles of natural justice. In the circumstances, it will

be appropriate for the petitioners to approach the Appellate Tribunal in

the Appeal which is already pending with an application for

condonation of delay, for resolution of present dispute also as to

whether the bank is liable to consider the proposal of the petitioners for

one time settlement in the light of policy and guidelines of the Reserve

Bank of India. In the circumstances, this Court also declines to invoke

its jurisdiction under Article 226 of the Constitution of India.

14. In the circumstance, the writ petition is disposed of with liberty to

the petitioners to raise the applicability of the policy of Reserve Bank of

India and its guidelines for settlement of their proposal for one time

settlement, in case it is raised by the petitioners before the Appellate

Tribunal in accordance with law. With these directions, the writ petition

is disposed of. Parties are, however, left to bear their own costs.

September 9, 2009                                             ANIL KUMAR, J.
„Dev‟