M/S. Mansarovar Pearlsindia ... vs Reserve Bank Of India
2021 Latest Caselaw 778 Tel

    HONOURABLE SRI JUSTICE A. RAJASHEKER REDDY
                       AND
      HONOURABLE Dr.JUSTICE SHAMEEM AKTHER

                       WRIT PETITION No.760 of 2021

ORDER: (Per Hon'ble Sri Justice A. Rajasheker Redddy)

        This writ petition is filed for the following relief:

                  "...to issue a Writ or order or direction more particularly one in the
          nature of Writ of Mandamus declaring the action of the Respondent No.2

Bank in classifying the Petitioner account as NPA on 31/12/2019 without following the RBI and CGTMSE guidelines for MSME loan facilities and the high handed action of the Respondent No.2 and other bank officials in coming to the premises of the petitioner at 12.PM and forcibly trying to seizing the premises despite resistance / opposition from the petitioners without there being any orders from the competent court under Section 14 of the SARFAESI Act as illegal, arbitrary, capricious, high handed and violative of the judgment of this Hon'ble court in Balaji Centrifugal Vs ICICI Bank, apart from being violative of Article 14, 19 and 300 A of Constitution of India with a consequent prayer to set aside all SARFAESI actions initiated by the Respondent including the Demand Notice dt.11/02/2020 and Possession notice 24/09/2020 and pass...."

2. Heard learned counsel for the petitioners and the learned

counsel for the respondents.

3. Sri S. Ravi, learned Senior Counsel, representing the learned

counsel for the petitioners, submits that the petitioners have paid an

amount of Rs.4.65 crores on 30.12.2019 and also paid certain amounts

in October, 2020 and inspite of the same, the petitioners' account was

declared as NPA on 31.12.2019, which is in violation of circulars

issued by the Government of India and Reserve Bank of India vide

Circular DOR No.BP.BC.71/21.04.048/2019-20 and Circular DOR

No.BP.BC.71/21.04.048/2019-20 dated 23.05.2020. He further

submits that the respondent Bank has not come forward with any OTS

and as it is a non-discretionary scheme and a uniform policy should be

applied in respect of all the borrowers. He also submits that though

the demand notice was issued on 11.02.2020, the petitioners made a

representation on 07.08.2020, but the bank has passed order under

Section 13(4) of the Act without considering the representation of the

petitioners and also without considering the payment of Rs.4.65 crores

and the other payments made by the petitioners. Learned Senior

Counsel tried to point out that the declaration of the petitioners'

account as NPA and non-consideration of the application for grant of

OTS is not in accordance with the Circular issued by the Reserve

Bank of India.

4. On the other hand, Sri Deepak Bhattacharjee, learned Senior

Counsel appearing for the respondents vehemently opposing the

contentions of the petitioners and submitted that the bank has passed

the order on 24.09.2020 under Section 13(4) of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for short 'SARFAESI Act') and the payment of

Rs.4.65 crores made by the petitioner is only for release of the

property. He also tried to justify the action of the bank by referring

various averments made in the counter affidavit, which are seriously

disputed by the learned Senior Counsel for the petitioners.

5. The averments in the writ petition and the counter affidavit

and also the contentions of the learned counsel made us to perform the

job of an Accountant and the Auditor while verifying the bank

statements of the petitioners. The fact of payment of Rs.4.65 by the

petitioners crores is not in dispute and it is stated by the counsel for

the respondents that it is for the release of the property. When an

amount is made by the petitioners, it is not known as to how the same

cannot be counted for discharging the loan. But, any how, we are not

expressing any opinion on the same. On the facts and circumstances

of the case, we find that the matter has to be decided by the Banking

Ombudsman Referral Forum, provided for such matters.

6. In view of the same, liberty is granted to the petitioners to

make an application before the Banking Ombudsman Scheme, 2006,

notified vide notification dated 16.06.2017, within a period of one

week from today and on such application, the Ombudsman to consider

the rival contentions of the parties and pass a reasoned order within a

period of two (2) weeks thereafter. Since there is already an interim

order passed by this Court on 08.01.2021, the same will continue till

the Ombudsman decides the issue. However, this order will not

preclude the respondents from taking inventory on the movables of the

petitioners.

7. Accordingly, the writ petition is disposed of with the above

observations. No order as to costs.

Miscellaneous applications, if any pending, shall stand

dismissed.

__________________________ A. RAJASHEKER REDDY, J

__________________________ Dr. SHAMEEM AKTHER, J

March 16, 2021 KTL