Karnataka High Court

India Awake For Transparency vs Mr. Azim Hasham Premji on 18 January, 2021

Author: Suraj Govindaraj

                           1            W.P.No. 11482 OF 2020




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 18TH DAY OF JANUARY, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

     WRIT PETITION NO.11482 OF 2020 (GM-RES)



BETWEEN

INDIA AWAKE FOR TRANSPARENCY
SHRISHTI CRESCENDO,
24 DESIKA ROAD, MYLAPORE,
CHENNAI 600004.
                                        ...PETITIONER

(By Sri. SUBRAMANIAN R, ADVOCATE)

AND:

1.     MR. AZIM HASHAM PREMJI
       SURVEY NO.75,133,135/1,136/1
       NO.574 DODDAKANNELLI VILLAGE
       SARJAPUR ROAD BENGALURU-560035

2.     MR. AZIM HASHAM PREMJI
       SURVEY NO.75,133,135/1,136/1,
       NO.574 DODDAKANNELLI VILLAGE,
       SARJAPUR ROAD BENGALURU 560035

3.     MRS. YASEEM AZIM PREMJI
       SURVEY NO 574 DODDAKANNELLI VILLAGE
       SARJAPUR ROAD, BENGALURU-560035

4.     MR. PAGALTHIVARTHI SRINIVASAN
       NO.524 16TH CROSS,
       INDIRA NAGAR II STAGE
       BENGALURU-560038
                            2          W.P.No. 11482 OF 2020




5.   M/S PRAZIM INVESTMENT AND
     TRADING COMPANY PVT LTD
     NO.134 NEXT TO WIPRO CORPORATE OFFICE
     DODDAKANNELLI, SARJAPUR ROAD
     BENGALURU-560035

6.   M/S TARISH INVESTMENT AND
     TRADING COMPANY PVT LTD
     NO.134 NEXT TO WIPRO CORPORATE OFFICE
     DODDAKANNELLI, SARJAPUR ROAD
     BENGALURU-560035

7.   M/S HASHAM INVESTMENT AND
     TRADING COMPANY PVT LTD
     NO.134 NEXT TO WIPRO CORPORATE OFFICE
     DODDAKANNELLI, SARJAPUR ROAD
     BENGALURU-560035

                                      ... RESPONDENTS


(BY SRI.R.V.S. NAIK, SENIOR COUNSEL FOR
SRI.SURYANARAYANA, ADV. FOR R1-RBI; SRI.S.GANESH, SR.
COUNSEL FOR SRI.SANDEEP HULIGOL, ADV. FOR R2 TO R7)


      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C.
PRAYING TO ISSUE A WRIT OF CERTIORAI OR MANDAMUS OR
ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION,
SETTING ASIDE THE ORDER DATED 28.07.2020 OF THE 41 ST
ADDL. CMM, BENGALURU DISMISSING THE PETITIONER
PRIVATE COMPLAINT No.7111/2020 ON ITS FILE AND
CONSEQUENTLY DIRECT THE 1ST RESPONDENT TO REGISTER
THE OFFENCE SET OUT IN THE INFORMATION DATED
28.01.2020 OF THE PETITIONER IN RESPECT OF THE OFFENCES
OF THE 2ND TO L7TH RESPONDENTS AND FURTHER DIRECT 1ST
RESPONDENT TO ACT ON THE SAME AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING AND HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 23.12.2020 THIS DAY, THROUGH VIDEO
CONFERENCE, THE COURT PRONOUNCED THE FOLLOWING:
                              3           W.P.No. 11482 OF 2020




                          ORDER

1. The petitioner is before this Court seeking for the

following reliefs:

a) Issue a writ of certiorari or order of certioraried mandamus or any other appropriate writ, order or direction, setting aside the order dated 28.07.2020 of the Ld 41st Additional Chief Metropolitan Magistrate Bengaluru dismissing the Petitioner Private Complaint Number 7111 of 2020 on its file and consequently direct the 1st respondent to register the offence set out in the information dated 28.01.2020 of the Petitioner in respect of the offence of the 2nd to 7th Respondents and further direct the 1st Respondent to act on the same as per law so that the said offences are expeditiously prosecuted before the competent Court as per law;

b) and in the alternative issue a writ of mandamus directing the 1st Respondent to register the offence set out in the information dated 28.01.2020 of the Petitioner in respect of the offences of the 2nd to 7th Respondents and further direct the 1st Respondent to act on the same as per law so that the said offences are expeditiously prosecuted before the competent Court as per law;

c) Issue such other writs, pass such other orders and grant such other reliefs as deemed fit in the circumstances of the case in the interest of justice and equity.

2. FACTS:

2.1. The petitioner claims to be a not for profit

company registered under Section 8 of the

Companies Act 2013 ('Act of 2013' for short)

with the object of working in the areas of

governance and in transparency.

2.2. It is contended that the petition arises in

respect of the order dated 28.07.2020 passed

by the 41st ACMM, Bangalore dismissing the

private complaint No.7111/2020 filed by the

petitioner seeking directions under Section

156(3) of the Cr.P.C. to the respondent No.1-

Reserve Bank of India (RBI) to register the

information of alleged cognizable offences

committed under the Reserve Bank of India Act

('RBI' Act) by respondent No.2 to 7 herein. It

is further contended that dehors the private

complaint, the respondent No.1 is bound to be

directed by a writ of mandamus by this Court

to prosecute the offences against respondents

No.2 to 7 in respect of the allegations set out

in the petition.

2.3. It is alleged that the RBI Act was amended

with effect from 9.1.1997 to strengthen the

role of RBI in supervising Non Banking Finance

companies (NBFC). Section 45IA of the RBI

Act made it mandatory for all the NBFC to

obtain registration from RBI in the event of the

business being conducted without such

registration, such an entity could be

prosecuted under Section 58B(4A).

2.4. It is alleged that respondents No.2 to 3 being

directors of various companies were carrying

on non-banking financial business in the said

companies without registration and as such

had committed offences under Section 45IA of

the RBI Act and as such they were to be

prosecuted.

2.5. It is stated that it is in regard to this that a

private complaint in PCR No.711/2020 had

been filed by the petitioner against respondent

No.1-RBI seeking for a direction to the RBI to

initiate proceedings against the respondents

No.2 to 7 herein for offences under Section

45IA r/w 58B(4A) of the RBI Act.

2.6. After hearing the said matter, the Magistrate

by way of his detailed order dated 28.7.2020

dismissed the said PCR No.711/2020 holding

that what has been sought for in the complaint

is only a direction to the RBI to take

cognizance and investigate into the matter.

The court held that the representation earlier

submitted by the petitioner was still pending

with the Governor of the RBI for consideration.

The status of said representation was not

known. In the absence thereof, the Court was

of the opinion that no direction can be issued

to the Governor of the RBI.

2.7. It is stated that for this reason the petitioner is

before this Court seeking for the aforesaid

reliefs setting aside the order dated 28.7.2020,

restore the private complaint No.711/2020 on

the file and direct respondent No.1-RBI to

7 for offences under Section 45IA r/w 58B(4A)

and conduct investigation thereto.

3. Upon filing of the above petition, notice was issued

to the respondents, who entered appearance.

Though the respondents have not filed any

objections to the petition, both the set of

respondents raised certain preliminary issues and

have requested this Court to consider the said issues

which according to them would disentitle the

petitioner from filing of the above petition and/or

seeking for the reliefs stated therein leading upto the

dismissal of the petition.

4. Sri.R.Subramanian, learned counsel having

expressed his consent for hearing the said

preliminary issues, the same are taken up.

5. Sri. S Ganesh, learned Senior counsel instructed by

Sri.Sandeep Huligol appearing for respondents No.2

to 7 submitted that:

5.1. The above writ petition is not tenable, that the

issue raised in the private complaint has

already been decided by the Delhi High Court

in W.P.No.4905/2017.

5.2. The petitioner having filed PIL before this Court

and having withdrawn the same

unconditionally without reserving any liberty

the present writ petition is not maintainable

and as such, the writ petition is to be

dismissed.

5.3. In support of the above contentions Sri. S.

Ganesh, learned Senior counsel would submit

that the petitioner had filed Writ Petition before

the Hon'ble Delhi High Court in W.P.(C)

No.4905/2017 wherein the petitioner has

sought for a mandamus directing the Union of

India, Department of Financial Services,

Ministry of Corporate Affairs, as also RBI who

and 3 respectively to take action as required

under law in respect of the complaints dated

1.11.2016, 14.3.2017 and 28.4.2017 filed by

the petitioner and intimate the result thereof to

the petitioner, to initially conduct a preliminary

enquiry and thereafter a detailed investigation

in respect of the complaints filed by the

petitioner etc.,.

5.4. The complaints dated 1.11.2016, 14.3.2017

and 28.4.2017 contain allegations made

against respondents No.2 to 7 for violation of

Section 45IA of the RBI Act, in para 19, 35

and 37 of the said Writ Petition filed before the

Hon'ble Delhi High Court, it is contended as

under:

"19. The petitioner states that the 2nd Respondent meekly acquiesced with actions of the 3 NBFC's and the Acquirer and proceeded to consider the same without in any manner enforcing compliance with the directions issued. The Petitioner states that the acts of the 3 NBFC's and the Acquirer in violating the directions of the 2nd Respondent were serious offences punishable under Sec 58B(5aa) of the RBI Act and is punishable with 3 years imprisonment and the 2nd Respondent chose not only not to make any complaint for the offence but did not even seek compliance of the directions and acted as though the directions were not at all applicable to the 3 NBFC's and the Acquirer. True copy of letter of 3rd Respondent dated 18.09.2014 to Registrar of Companies Bengaluru evidencing that 3rd Respondent was considering the merger proposal forwarded to it by the said Registrar of Companies Bengaluru is annexed herewith and marked as Annexure P4.

35. The Petitioner states that as there was no response to the representation dated 01.11.2016 to the 3rd Respondent and in view of the apprehension that the same was being not acted upon as one of the Directors of the 3 NBFC's and Acquirer had been on the Central Board of the 3rd Respondent for many years till 2013 when many of the violations occurred

the Petitioner made a complaint dated 28.04.2017 on the same with the 1st Respondent as well. True copy of the Petitioner's complaint dated 28.04.2017 to 1st Respondent seeking action on the complaint filed with 3rd Respondent to revoke the merger is annexed herewith and marked as Annexure-P16.

37. The Petitioner states that it was further shocked to find that in respect of the 3 subsidiaries of the NBFC's, which were illegally acting as NBFC's without registration with full knowledge of the 3rd Respondent, the 3rd Respondent instead of shutting them down and prosecuting the companies and its officers had instructed them to not make fresh investments and as such by such instruction legitimised the existing NBFC business being carried on in violation of law without registration. The Petitioner states that the 3rd Respondent is merely bound to implement the law and has no right under the law to waive the same or relax the same and as such the instruction to the said companies to continue NBFC business without making fresh investments is a gross illegality effected evidently to favour the said companies. True copies of the Directors and Audit Reports of the 3 companies for 2014-15 seting out the direction of 3rd Respondent is annexed herewith and marked as Annexure-P17."

5.5. He therefore submitted that the relief which

had been sought for in the proceedings in PCR

being identical to that sought for in the writ

petition before the Hon'ble Delhi High Court,

the PCR itself was not maintainable, therefore,

the question of the present Writ Petition being

maintainable would not at all arise.

5.6. The Hon'ble Delhi High Court by way of its

order dated 29.5.2017 had disposed the writ

petition with a direction to respondents No.1

and 2 therein to examine the complaints made

by the petitioner and to pass orders on the

same. He however submits that reference to

respondent No.2 therein is to RBI inasmuch as

there is a typographical error which has crept

into the matter. A direction having been

issued to RBI, the RBI was required to look

into the matter which it has done and order

dated 5.9.2017 passed by the RBI regretting

RBI's inability to accede to the request of the

petitioner to approach the Court to annul the

merger or to pass any order. In this

background he submitted that these facts

having been suppressed in PCR No.7111/2020

and Hon'ble Delhi High Court having already

dealt with the matter, issued directions to RBI

and thereafter RBI having passed an order, the

same could not be re-agitated in the PCR.

5.7. The petitioner had also filed a PIL in

W.P.No.3635/2020 before this Court

whereunder the Governor of RBI and various

other entities had been arrayed as parties and

that in the said matter also allegations were

made as regards violation of RBI Act, more

particularly relating to registration of the NBFC.

The said allegations are detailed in para 26(a)

of the said PIL which is reproduced hereunder:

"a. RBI Act: The 11th Respondent was a Central Government appointee on the Central Board of Reserve Bank of India from 27.06.2006 to 20.09.2013. Companies controlled by the 11th Respondent, including the 3 companies and their subsidiaries, had a free run conducting business as Non Banking Finance Companies (NBFC's) without mandatory registration.

b. Even when some of them registered they were non compliant with the norms. RBI evidently could not act against its own Central Board Member and never took any action.

c. Even in respect of the merger RBI Regulations mandated that there should be a pre approval of RBI before a merger is filed at High Court. This was also violated.

d. Even post merger RBI allowed the companies to operate for many years as NBFC's without registration in direct contravention of law.

e) RBI refused to act in any manner even when the violations were [laced before it.

True Copy of the Petitioner's representations dated 14.03.2017 and 28.01.2020 to the Reserve Bank of India is annexed herewith and collectively marked as ANNEXURE-R."

5.8. The said PIL having been heard by the Division

Bench of this Court, upon the Division Bench of

this Court not being convinced with the said

matter, the petitioner after addressing

arguments in the matter sought for withdrawal

of the same during the proceedings on

1.10.2020 and as such, the petition was

disposed of as unconditionally withdrawn.

5.9. Relying upon the same Sri. S Ganesh, learned

Senior counsel would submit that once the

proceeding had been filed making allegations

before this Court as a PIL or otherwise and the

same had been withdrawn, the filing of the

present writ petition is barred by relying on the

decision of the Apex Court in Sarguja

Transport Service -v- State Transport

Appellate Tribunal and others [1987(1)

SCC 5] more particularly para 9 thereof which

is reproduced hereunder for easy reference.

"9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administra- tion of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in

bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open."

5.10. The withdrawal of the above PIL would amount

to abandonment by the petitioner of all his

claims and therefore, the present writ petition

could not have been filed by the petitioner and

is therefore required to be dismissed.

6. Sri.R.V.S. Naik, learned Senior counsel instructed by

Sri.V.V.Giri, learned counsel for respondent No.1

would submit that:

6.1. The claim of the petitioner is hit by the

principles of rejudicata inasmuch as the RBI

vide its order dated 5.9.2017 has rejected the

claims of the petitioner. If at all the petitioner

has any grievance, the petitioner ought to

have challenged the order dated 5.9.2017.

Same not having been challenged, a private

complaint could not have been filed by the

petitioner.

6.2. The said order of the RBI having been made in

pursuance of the order of the Hon'ble Delhi

High Court has an effect of resjudicata, the

petitioner cannot once again reagitate the

same except by way of an appeal.

6.3. On these grounds he submitted that the above

writ petition is to be dismissed.

7. Sri.R.Subraminian, learned counsel for the petitioner

submitted that:

7.1. the proceedings which had been filed before

the Hon'ble Delhi High Court were different

from that which had been filed before the

Magistrate by way of above PCR

No.7111/2020.

7.2. Before the Hon'ble Delhi High Court, the relief

which had been sought for was for a

mandamus to decide on the representations

given by the petitioner, whereas the

proceedings in PCR had been filed to register a

complaint against respondents No.2 to 7.

7.3. The Hon'ble Delhi High Court by way of its

order dated 29.5.2017 had directed

respondents No.1 and 2 therein i.e. Union of

India to examine the aforesaid complaints and

pass orders.

7.4. The letter dated 5.9.2017 of RBI cannot be

said to be an order passed by the RBI

inasmuch as there is no judicial or quasi

judicial proceedings which took place. The said

letter has been issued on the basis of the

documents available, no hearing was

conducted and therefore, the same is not in

compliance with the directions of the Hon'ble

Delhi High Court and as such, the said letter

dated 5.9.2017 cannot be said to be an order

passed by the RBI.

7.5. In the alternative, he submits that there is no

order passed by the Union of India as directed

by the Hon'ble Delhi High Court and as such,

the cause of the petitioner continues to be

subsisting and the petitioner could agitate the

same by filing PCR which has been so done.

7.6. He submits that PIL which had been filed

before this Court was also relating to a

completely different aspect inasmuch in the

said PIL, the petitioner had sought for the

constitution of a Multi Disciplinary Investigation

team to investigate and prosecute the 11th

respondent therein and his associates as set

out in the representation dated 30.01.2020

and 3.2.2020 of the petitioner which is

completely different from that which is sought

for before the Magistrate.

7.7. In this background, he submitted that there is

no order as such passed by the Hon'ble Delhi

High Court which can operate as resjudicata,

the reliefs which have been sought for before

the Hon'ble Delhi High Court, in the PIL before

this Court similar to that which has been

sought for in the PCR.

7.8. The principles laid in Sarguja's case would

not be applicable to the present facts for the

reason that in Sarguja, it is after the

withdrawal of the petition a new petition has

been filed, whereas in the present case, the

writ petition was withdrawn on 1.10.2020,

however, the PCR had been filed in March 2020

and the said PCR had been dismissed in July

2020, it is thereafter on 12.10.2020 that the

present writ petition was filed. Thus he

submits that the withdrawal of the PIL would

have no bearing to an already existing matter

before the trial Court and the present writ

petition is not one under Article 226 but is

more under Article 227 of the Constitution of

India seeking for exercise of supervisory

jurisdiction, as also one under Section 482 of

Cr.P.C. to exercise inherent power to set-aside

the order passed by the Magistrate. He

therefore submits that the withdrawal of the

PIL would not have any bearing to the present

petition.

8. In rejoinder, Sri.S.Ganesh, Learned Senior counsel

would submit that :

8.1. the PIL had been filed earlier in February 2020,

thereafter in March 2020 the PCR had been

filed which came to be dismissed in July 2020

and the PIL was withdrawn on 1.10.2020, the

present writ petition having been filed on

12.10.2020, the principles of Sarguja would

apply, the subject matter of the PIL and the

PCR being one and the same.

8.2. In this regard he relies upon para 14 of the

decision in Vimlesh Kumari Kulshrestha -v-

Sambhajirao and Another [(2008)5 SCC

58] which is reproduced hereunder for easy

reference:

"14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned Trial Court. Respondent even accepted the costs as directed by the Court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the Order passed by the Court. It is trite that even a presumption of implied grant can be drawn."

9. Sri.R.Subramanian contending that the said decision

in Vimalesh Kumari's case had not been referred

to by Sri.Ganesh in his initial argument, therefore,

he sought for permission to reply to the said

rejoinder. In his sur-rejoinder Sri.R.Subramanian

submitted that:

9.1. It is para 15 of Vimalesh Kumari's case

which is relevant, the said para is reproduced

hereunder for easy reference:

"15. In Hari Basudev Vs. State of Orissa and Others [AIR 2000 Orissa 125], a Division Bench of the Orissa High Court held; "7. As already indicated, the cause of action accrued to opposite party No. 4 to file the election dispute u/S. 30 of the Act only after publication of the result of the election. Opposite party No. 4 in his petition made out a case for grant of permission to withdraw M.J.C. No. 14 of 1997. He had also stated in the petition that he reserved his right to file a fresh case, if necessary. The learned Civil Judge having permitted him to withdraw the said case, we are inclined to hold that permission to institute a fresh case in the circumstances was impliedly granted."

9.2. By relying on the said para he submits that the

proceedings in PIL and that under Section 156

are independent proceedings. They are not

connected to each other and therefore, the

preliminary objections raised by Sri.Ganesh

and Sri.RVS Naik, Senior counsels are not

maintainable, those contentions are required to

be dismissed and the matter should be heard

on merits.

10. Heard Sri.S.Ganesh, learned Senior counsel

instructed by Sri.Sandeep Huligol for respondents

No.2 to 7, Sri.R.V.S. Naik, learned Senior counsel

instructed by Sri.V.V.Giri and Sri.R.Subramanian,

learned counsel for the petitioner. Perused papers.

11. The points which would arise for determination by

this Court in the present matter are:

i) Whether the present writ petition is maintainable in view of the orders passed by the Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court ?

ii) Whether the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would amount to rejudicata ?

iii) What order ?

12. ANSWER TO POINT No.1 - Whether the present writ petition is maintainable in view of the orders passed by the Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court?

12.1. Chronologically speaking it is the proceeding

before the Hon'ble Delhi High Court which was

taken up first whereunder there have been

allegations made as regards respondents No.2

to 7 having violated the provisions of 45IA of

the RBI Act and requiring for action to be

taken by the RBI. Though the action is stated

to be to consider the representations made by

the petitioner vide its complaints dt.

1.11.2016, 14.3.2017 and 28.4.2017, it is

seen on a reading of the said complaints that

essentially the action which is to be taken by

the RBI is as regards the alleged violation by

respondents No.2 to 7 of Section 45 IA

punishable under Section 58B(4C) of the RBI

Act.

12.2. Juxtaposing the same to what was sought for

in the PIL before this Court, it is seen that

there was a multi disciplinary enquiry

Committee which was requested to be formed

for the purpose of investigating into various

allegations including that made under para 26-

A of the said PIL which has been reproduced

hereinabove. Essentially the allegations made

therein is also of conducting business as non-

banking financial company without mandatory

registration i.e. an alleged offence under

Section 45-IA of the RBI Act.

12.3. Now coming to the private complaint in PCR

No.711/2020, the prayer sought for therein is

once again for a direction to the RBI to register

herein for offences under Section 45-IA r/w

58-B(4A) of the RBI Act. Thus it cannot be

disputed now by the petitioner that the relief

sought for before the Delhi High Court, in the

PIL before this Court, as also in the private

complaint filed before the Magistrate, are one

and the same though by legal and linguistic

gymnastics they have been worded differently.

What this court is required to look into and

appreciate is if the reliefs sought for on the

allegations made are one and the same. Clever

drafting and or subterfuge resorted to in such

drafting would not take away the fact that the

allegations made in all three proceedings are

one and the same.

12.4. The wording being different is only the careful

and ingenious drafting of the prayers and/or

the reliefs sought for since the Forums are

different but essentially in all the three matters

what has been sought is a direction to the RBI

for alleged violation of Section 45-IA of the RBI

Act.

12.5. Sri.R.V.S. Naik, learned Senior counsel has

submitted that it is in pursuance of the

directions of the Delhi High Court in

W.P.No.4905/2017 that the order dated

5.9.2017 has been passed by RBI. Though

Sri.R.Subramainan, learned counsel for the

petitioner would contend that the letter dated

5.09.2017 is not an order but according to RBI

it is an order.

12.6. Admittedly, the said order has not been

challenged by the petitioner till date. What

was sought for by the petitioner was for

consideration of the complaints filed by the

petitioner which has been so considered by the

RBI and rejected by order dt. 5.9.2017.

Whether said order is proper or not is is not a

matter which could be considered by this Court

since the said order is not under challenge

before this Court.

12.7. The RBI has categorically debunked the

allegations made by the petitioners against

respondents No.2 to 7, as also against RBI and

in that background, the RBI has categorically

stated that the merger cannot be annulled or

RBI cannot approach the Court for annulment

of such merger.

12.8. As regards the annulment of merger, it is

stated that the petitioner has filed a separate

Company Application in Co.P. No.182/2014.

Thus the RBI not having the jurisdiction to do

so and the petitioner having approached the

jurisdictional Court, even that aspect cannot be

considered by the Magistrate.

12.9. In view of the above, though it has been

contended by Shri R.Subramanian that the

present writ petition is more in the nature of

an appeal from the order passed by the trial

Court in PCR No.7111/2020 having regard to

the aforesaid facts and the aforesaid

proceedings, I am of the considered opinion

that the said PCR No.7111/2020 is one more

proceedings filed by the petitioner in

furtherance of the proceedings before the

Hon'ble Delhi High Court, PIL filed before this

Court, the proceedings before the Company

Court, etc.

12.10. The allegations and/or complaints of the

petitioner having already been considered by

the RBI and a detailed order dated 5.9.2017

having been passed by the RBI, I am of the

considered opinion applying the principles laid

down by the Apex Court in Sarguja's case

that when the petitioner unconditionally

withdraws a particular matter, the said subject

matter could not be re-agitated in any other

proceedings.

12.11. The principles laid down by the Apex Court in

Sarguja's case was on the basis of public

policy and to prevent abuse of the process of

the Court, as also to prevent bench hunting.

12.12. In the present case, the grievance of the

petitioner being the same in all the

proceedings, the action sought for by the

petitioner also being the same, in that for the

RBI to take necessary action against

respondents No.2 to 7. The petitioner having

failed before the Magistrate tried his luck by

addressing arguments in the PIL where also

the petitioner failed and had to withdraw the

same unconditionally without any liberty. The

petitioner cannot agitate the same ground

before this Court thereafter.

12.13. This is further reinforced by the contentions

taken up by the petitioner when the petitioner

has itself stated that dehors the proceedings

before the Magistrate this Court ought to issue

a mandamus directing 1st respondent to initiate

action. It is in pursuance thereof that an

alternative prayer seeking for a mandamus to

that effect is sought for i.e. to say that the

present proceedings are not strictly impugning

the order of the Magistrate in PCR

No.7111/2020 but are independent writ

proceedings which would attract the embargo

imposed by the Apex Court while developing

the principles relating thereto in Sarguja's

case.

12.14. Be that as it may even the releifs sought for by

the petitioner in the PCR is for the RBI to take

action against the Respondents 2 to 7 on the

basis of the allegation that the Respondents 2

to 7 have violated Section 45-IA of the RBI

Act, the RBI having already considered the said

request and passed an order according to RBI

dated 05.09.2017, the reliefs sought for in the

PCR cannot be granted, as such the question of

issuance of a certiorari to quash the order

dismissing the PCR, restoring the PCR and

issuing directions to the RBI to consider the

alleged offence would also not arise. The RBI

having contended that the letter dated

05.09.2017 is an order, the Petitioner would be

at liberty to challenge the same in accordance

with law.

12.15. In view of the above, I answer point No.1

holding that the present writ petition is

not maintainable in view of the orders

passed by the Hon'ble Delhi High Court, as

also withdrawal made by the petitioner of

the PIL filed before this Court as also the

order passed by the RBI dated

05.09.2017.

13. POINT No.2: Whether the orders passed by the

Delhi High Court, as also the order of

withdrawal passed by the Division Bench of this

Court would amount to rejudicata?

13.1. Though it is sought to be contended by

Sri.R.V.S.Naik, learned Senior counsel that the

order passed by the Delhi High Court would

operate as resjudicata, I am of the considered

opinion that the order of the Delhi High Court

was only a direction to the RBI to consider the

complaints and pass an order. Such a

direction not being one on merits cannot be

termed to operate as resjudicata. For an order

to operate as resjudicata it has to be passed

on merits between the same parties.

13.2. The order of the Hon'ble Delhi High Court

would not qualify to be that passed between

the same parties since the parties in the

present matter are different and as such, I am

of the considered opinion that the said order

would not operate as rejudicata.

13.3. Hence I answer point No.2 by holding that

the orders passed by the Delhi High Court,

as also the order of withdrawal passed by

the Division Bench of this Court would not

amount to rejudicata.

14. POINT No.3: What order ?

14.1. In view of the above discussion, I am of the

considered opinion that the writ petition filed is

an abuse of process of law and of this Court,

the same is not maintainable. The grievance

of the petitioner has already been addressed

by RBI by its order dated 5.09.2017 passed. If

at all the petitioner has any grievance as

regards the said order, the petitioner is

required to take adequate and necessary steps

not by filing of proceedings by way of a private

complaint before the Magistrate or by way of

writ petition before this Court.