D. R. Garments (India) Pvt. Ltd vs Reserve Bank Of India
2023 Latest Caselaw 4988 Guj

       C/SCA/9677/2023                                  ORDER DATED: 28/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9677 of 2023

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                         D. R. GARMENTS (INDIA) PVT. LTD.
                                     Versus
                              RESERVE BANK OF INDIA
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Appearance:
MR ADITYA S PATEL(12087) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                 Date : 28/06/2023
                                  ORAL ORDER

1. Heard learned Advocate Mr. S.K. Patel on behalf of learned

Advocate Mr. Aditya S. Patel on behalf of the petitioner.

2. The present petition had been originally preferred seeking the

following prayers :

"22. That the petitioner, therefore, pray to this Hon'ble Court that this Court may be pleased to:

A) Allow this petition by issuing appropriate writ, order or direction holding that the action of Respondent No.2 bank in not making refund of Rs. 60,00,000/- is illegal, arbitrary and also violative of the circulars and directions issued by the Reserve Bank of India from time to time under the provisions of Banking Regulation Act and RBI Act, and thereby, be pleased to direct the Respondent no. 2 Bank to refund Rs.60,00,000/- in the bank a/c of Dahyabhai A Chagan, director of the petitioner firm.

      C/SCA/9677/2023                                 ORDER DATED: 28/06/2023




      B)     Pending admission and till final disposal of this petition direct

the Respondent No.2 to forthwith repay an amount of Rs. 60,00,000/- to the petitioner which is lying in the No Lien Account No. 331190200000033 of the Respondent No.2 bank."

3. Since the averments in the petition were very vague and since there

was no required material found in the annexures to the petition which

would support the prayers sought for, on 14.06.2023 when this matter had

been heard, this Court had adjourned this matter to facilitate the learned

Advocate moving an appropriate draft amendment.

4. At this stage, it would be required to be mentioned that the petition

had been preferred inter alia stating that the respondent No.2-Bank is not

repaying an amount of Rs. 60,00,000/- which is lying in a No Lien Account

in breach and in violation of an OTS Scheme. It is required to be stated that

the petitioner having obtained financial assistance from the respondent

No.2- Bank, had defaulted and whereas upon the Bank coming out with an

OTS Scheme, in the year 2019, the petitioner for applying to be considered

in the said scheme was required to pay 5% of the total amount due as

application charges, which comes to around Rs.60,00,000/- which the

petitioner had deposited with the respondent No.2-Bank vide Cheque dated

03.09.2019. It further appears that since the OTS Scheme had not been

sanctioned and since one of the conditions of the OTS was that the

petitioner would be returned the deposit amount in case the OTS is not

C/SCA/9677/2023 ORDER DATED: 28/06/2023

accepted, the petitioner had preferred this petition inter alia seeking for the

reliefs as noted hereinabove.

5. It would also be pertinent to mention that the petitioner had as per

the averments in the petition moved a petition hereinbefore being Special

Civil Application No. 17739 of 2021 which had been permitted to be

withdrawn with liberty to file a fresh petition. The present petition is

preferred inter alia submitting that the same is filed, more particularly on

account of the liberty granted by learned Co-ordinate Bench vide order

dated 07.12.2021. The entire petition as noted hereinabove, is moved on a

contention that the respondent No.2-Bank had/was withholding the

amount of the present petitioner.

6. Today, a draft amendment has been moved by the learned Advocate,

inter alia referring to various documents, more particularly a document

being an E-mail dated 02.04.2020 is sought to be placed on record. The said

E-mail communication inter alia states that the application money of

Rs.60,00,000/- deposited by the petitioner has been appropriated towards

normal recovery in the NPA Account of the petitioner. It would appear that

the petition as originally preferred, did not make any reference to this

document nor did it make any reference to the fact that the amount in

question had been appropriated by the respondent No.2-Bank.

C/SCA/9677/2023 ORDER DATED: 28/06/2023

7. Learned Advocate Mr. Patel would submit that while the document is

of the year 2020, more particularly dated 02.04.2020, since, the petitioner did

not inform the learned Advocate about the same, the same could not be

brought to the notice of the Court or incorporated in the petition as it had

been originally preferred. Learned Advocate Mr. Patel would further submit

that there is no aspect of delay in questioning order/communication dated

02.04.2020, more particularly since the petitioner had already approached

this Court by way of Special Civil Application No. 17739 of 2021 which had

been permitted to be withdrawn vide order dated 07.12.2021 with liberty to

file afresh. To a pointed query by this Court, learned Advocate would

submit that as such the said communication dated 02.04.2020 was not

brought to the notice of this Court in the said petition nor was it challenged

before the Court in the said petition.

8. Learned Advocate Mr. Patel would also seek to rely upon the decision

of the Hon'ble Apex Court in case of KUT Energy Private Limited and

Others Vs. Authorized Officer, Punjab National Bank, Large Corporate

Branch, Ludhiana and Others. reported in (2020) 19 SCC 533, to contend

that the Bank has no lien over an amount which is deposited by a borrower

to administer its bona fides in a one-time settlement offer and whereas the

said deposited amount could not be treated as a secured asset or a secured

debt of the Bank. Considering the same, learned Advocate Mr. Patel would

C/SCA/9677/2023 ORDER DATED: 28/06/2023

request this Court to intervene and to issue appropriate orders against the

respondent-Bank.

9. In the considered opinion of this Court, in addition to the fact that

the petition/s of the petitioner, suffered from the vice of suppression of

material fact, they are also not required to be entertained from the point of

view of delay in questioning the decision. As per the averments made in the

petition, it would appear that the petitioner had deposited the amount as

application money along with offer letter dated 01.07.2019 and whereas it

would also appear that the Bank, had cancelled the OTS since the petitioner

did not pay the amount mentioned in the OTS Scheme till the last date of

OTS Scheme 2019 i.e. on 31.03.2020. It would appear that immediately

thereafter the Bank had taken a decision of appropriating the application

money. As noted hereinabove, while the petitioner had preferred an earlier

petition being Special Civil Application No. 17739 of 2021, on the broad

contention that the Bank was withholding its amount without any authority

of law and whereas the aspect of the money already having been

appropriated was never brought to the notice of the Court at the relevant

point of time nor did the petitioner challenge the order in question. As

noted hereinabove, even in the petition as it was preferred originally, there is

no challenge to the said decision. In the considered opinion of this Court,

the petitioner not having questioned the decision of the Bank of having

C/SCA/9677/2023 ORDER DATED: 28/06/2023

appropriated the application money could be stated to have acquiesced to

the position or have acquiesced to the action of the Bank in appropriating

the amount in question towards its NPA Account and whereas in the

considered opinion of this Court, the petitioner cannot now be permitted to

turn around and question the said decision. It would also appear that lot of

water has flown after the decision of the Bank to appropriate the amount in

question and whereas the said aspects, more particularly with regard to the

measures taken by the Bank against the petitioner has not been explained

fully in the petition. It is also required to be mentioned here that the petition

also does not make out a case from the averments contained therein as to

what was the change in circumstances which required the petitioner to

exercise the liberty given by the learned Co-ordinate Bench of this Court in

the first round of litigation. Be that as it may, even in the draft amendment

which is sought to be incorporated, this Court does not find any averment

as regards why the petitioner did not challenge the decision of the Bank of

appropriating the application amount as far as back on 02.04.2020.

10. Considering the above aspects, in the opinion of this Court, the

petitioner having acquiesced to the position of the Bank having

appropriated its application money, it is too late in the day for the petitioner

now to turn around and question the said decision, more particularly the

petitioner not having questioned the decision in its earlier petition. The

C/SCA/9677/2023 ORDER DATED: 28/06/2023

petition being barred by delay and laches, this Court would not exercise its

discretionary jurisdiction in favour of an indolent litigant.

11. At this stage, this Court seeks to refer to and rely upon decision of

the Hon'ble Apex Court in case of Chairman/Managing Director Uttar

Pradesh Power Corporation Limited and Others Vs. Ram Gopal, reported

in (2021) 13 SCC 225, Para No.11 being relevant for the present purpose is

quoted hereinbelow for benefit.

"11. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and the writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In S.S. Balu v. State of Kerala, this Court observed thus:

"17. It is also well-settled principle of law that "delay defeats equity". ...It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment." (emphasis supplied)"

12. Considering the law laid down by the Hon'ble Apex Court, since the

petition seeks to challenge a decision of appropriating the amount against

C/SCA/9677/2023 ORDER DATED: 28/06/2023

the loan account of the petitioner after three years, this Court is not inclined

to interfere.

13. In this view of the matter, in the considered opinion of this Court,

the petition being absolutely merit-less is required to be rejected. Hence,

rejected.

14. It is clarified that while there is an aspect of serious suppression as

noted hereinabove, but since this Court is rejecting the petition on the

ground of delay and laches, this Court restrains itself from making any

observations as regards the aspect of suppression.

(NIKHIL S. KARIEL,J) BDSONGARA