Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW NOTICE OF MOTION NO.3242 OF 2019
IN
STAMP NO.9158 OF 2019
Ratnakar Gutte & Ors. … Plaintiffs
V/s.
Kotak Mahindra Bank Limited … Defendant
Appearances :
Ld. Adv. Bhosale a/w Adv. Priyanka Dubey a/w Adv. Megha Gupta
for plaintiff.
Ld. Adv. Vinay Deshpande a/w Adv. Shobha Chavan for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 01st NOVEMBER, 2019
ORDER
Plaintiff's have taken out this notice of motion for
temporary injunction restraining the defendant from acting upon its
declaration of plaintiffs account as fraud.
2. Plaintiffs are the promoter, director and personal guarantor
of suspended board of borrower Company namely Sunil Hitech
Engineers Limited (hereinafter referred as SHEL Company). The
defendant is the lender of said Company. Plaintiffs are in default of
repayment of loan. Initially Plaintiffs account is classified as NPA.
Thereafter defendant has declared said account as “Red Flagged
Account” (hereinafter referred as RFA) and subsequently it was
MHCC01008854 2019
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declared as fraud. Plaintiffs have challenged the very declaration as
fraud being without following the procedure given in master circular
and against rule of natural justice.
3. It is their case that in the year 1984 Company is
incorporated by Gutte family. The Company has very good track of
record. They have successfully completed various big projects across
the country. In the year 2008 plaintiff entered into business of
construction of Civil works in power sector. The Company has base of
more than 500 members. Now it is a major engineering, procurement &
construction Company in India. The defendant is the banker of
plaintiff. It has sanctioned credit facilities after due diligence and by
accepting sufficient securities.
4. That the Companies operation has been under strain and
the liquidity suffered on account of various external reasons which were
beyond the control of management. Therefore the Companies account
became irregular due to losses and ultimately has been classified as
NPA. Even some other established Companies dealing in same business
also facing same set back. From April 2018 the defendant has restricted
the stock and discontinued the issuance of bank guarantee for the
project undertaken by plaintiff and plaintiff and its joint venture
Companies. Similarly plaintiff Could not recover dues from their
customers for various reasons.
5. There is master circular issued by R.B.I. for declaring any
account as fraud by following certain procedure. Here, defendant has
not followed the procedure given in master circular and declared
plaintiffs account as fraud. Even it has not followed the rule of natural
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justice by not giving opportunity of hearing to plaintiffs. There are very
serious consequences of declaration of any account as fraud.
Considering said serious nature of consequences it was mandatory for
defendant to follow the procedure given in master circular. On said
submission plaintiff prayed for injunction restraining defendant from
acting on declaration of plaintiffs account as fraud.
6. Defendant bank has filed reply and thereby contested the
application. At the outset it is the contention of defendant that
application is premature one. Plaintiffs are challenging their
declaration as willful defaulter. However till this time defendant has
not declared plaintiffs as willful defaulter and therefore the relief
claimed is premature one. Furthermore under I & B Code plaintiffs
being directors of suspended board are not entitled to file suit. By an
order dated 25.06.2019 passed under I & B Code the borrower
Company is went into liquidation and liquidator is appointed. As such
all the powers now vest in liquidator. Therefore suspended directors
are not entitled to file suit. Therefore suit is not maintainable.
Furthermore plaintiffs are claiming relief against the account of
Company. However said Company is not made party to this suit. On
that count also suit is not maintainable.
7. It is further submitted that defendant has sanctioned and
disbursed various loans and credit facilities to plaintiff to the tune of
Rs.89 crores. However plaintiffs have failed and neglected to make the
repayment of principal, interest and other charges. Therefore
defendant bank has declared plaintiffs account as NPA on 12.07.2018.
There are guidelines issued by R.B.I. for declaring any account as “Red
Flagged Account” (RFA) as well as fraud. Defendant bank has followed
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the procedure laid down in said master circular and thereby initially
declared the account as RFA on 30.10.2018 and within six months i.e.
on 28.04.2019 it is declared as fraud. As on date an amount of Rs.85
crores is due towards plaintiffs. Plaintiffs have admitted committing
default in discharging the debt under said credit facility and declaration
their account as NPA. Therefore plaintiffs are now estopped from
challenging the legality of the action taken by defendant. Filing of this
application is an attempt to create hurdle in the recovery proceeding as
well as avoiding attempt of the consequences of declaration as fraud.
As such defendant bank prayed for dismissal of the application.
8. Heard Ld. Counsel appearing on behalf of plaintiff and
defendant and also gone through the plaint and reply.
9. Here, it is the contention of defendant bank that plaintiff
has diverted and siphoned off the loan amount and not kept the
obligations of repayment of amount in time. Therefore, based on
Forensic Audit report plaintiffs accounts is declared as fraud. As against
this it is the grievance of plaintiff that defendant has not followed due
procedure laid down in master circular while declaring them as fraud.
Defendant has not given opportunity of hearing and thereby not
followed the rule of natural justice. Before going towards the factual
aspect it will be better to deal with the legal objections raised by
defendant bank.
10. Defendant came with a preliminary objection that suit is
not maintainable in view of declaration by NCLT about liquidation of
borrower Company and appointment of liquidator. It is argued that
NCLT has passed liquidation order and appointed the official liquidator.
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Therefore in view of section 17 of I & B Code as well as as per section
231 of I & B Code suit is not maintainable. As against this the Ld.
Counsel for plaintiff relied on judgment of our High Court (Nagpur
bench) in the case of Bank of India V/s. Gupta Coal Company (Civil
Revision 97/2017 decide on 04.09.2018) about maintainability of suit
before Civil Court.
11. I have gone through section 17 of the I & B Code 2016.
Said chapter is regarding Corporate Insolvency Resolution Process
(CIRP). As per said section after appointment of Interim Resolution
Professional (IRP) the management of affairs of corporate debtor vest in
(IRP). So also the powers of directors, partners and guarantors stand
suspended. So also as per section 231 of said Code no Civil Court have
jurisdiction in respect of any matter in which the adjudicating authority
is empowered by or under, this Court to pass any order and no
injunction shall be granted by Court in respect of any action taken in
pursuance of order passed by adjudicating authority. So on going
through above sections and more particularly section 231 of IB Code
there is bar in respect of matter within the jurisdiction of adjudicating
authority i.e. NCLT. So also there is bar to pass injunction order in
respect of any action taken by said authority.
12. It is an admitted position on record that defendant has
approached before NCLT, DRT and also started recovery proceeding
under the SARFAESI and other available Acts. Since beginning it is
made clear by Ld. Counsel for plaintiff that plaintiff is not against the
recover proceedings nor by way of this suit plaintiff is challenging or
restraining the recover proceeding. No doubt plaintiff is not challenging
the recovery proceedings nor challenging the proceedings which is
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pending before NCLT. Here, plaintiff being suspended directors are
challenging their declaration as fraud as without following the
procedure given in master circular. Therefore, in my opinion the bar as
contemplated under section 231 of IB Code will not apply here.
13. Moreover Ld. Counsel for plaintiff invited my attention
towards the decision of Hon'ble High Court in the case of Bank of
India V/s. Gupta Coal (Nagpur bench) decided on 04.09.2018. As
per facts of said case the company accounts declared as fraud and said
action of bank is challenged before the Court. Bank has raised the
objection that, Civil Court has no jurisdiction to entertain the suit. It is
observed that the relief sought is a declaration that the action of
defendant bank in declaring plaintiffs account as fraud is illegal and
without following due process of law. It is further observed that in the
light of challenge as raised, it would be the Civil Court that would
retain jurisdiction to entertain the suit. So on considering both the
citations as above, I am of the opinion that the ratio in citation relied on
by plaintiff of Nagpur bench (Supra) is much more applicable here.
Here also plaintiff is seeking declaration against the action of defendant
declaring them as fraud under the master circular issued by R.B.I.
Therefore, such suit of declaration is maintainable before Civil Court.
14. it is further argued by Ld. Counsel for defendant that
plaintiffs are asking for injunction against action of defendant on
declaring their account as fraud. It is the right accrued to defendant by
way of master circular. Therefor in view of provisions of Section 41(d)
of the Specific Relief Act injunction cannot be granted. I have gone
through section 41 of Specific Relief Act. It is regarding “injunction
when refused”. As per sub section(d) injunction cannot be granted to
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restrain any person from instituting or prosecuting any proceeding any
Criminal matter. No doubt in such case injunction cannot be granted.
However here the circumstances are some what different. Plaintiff is
making grievance that declaration of fraud is not as per procedure laid
down in master circular. Plaintiff is challenging the virus of the action
taken by defendant. In such circumstances if said decision is not taken
in accordance with the procedure laid down, then the aggrieved party
has every right to ask for injunction. So the bar as mentioned in section
41(d) of Specific Relief Act is not applicable here.
15. It is argued on behalf of defendant that plaintiffs are
seeking relief against account of borrower Company. However said
Company is not made party to this litigation and therefore in absence of
company as party plaintiffs have no locus to file the suit. As against this
it is argued by Ld. Counsel for plaintiff that though the account of
Company is declared as RFA and fraud, consequences on declaration as
fraud are personally applicable against the promoters and director of
suspended borrower Company. Therefore plaintiffs can very well seek
relief before Civil Court in absence of Company as a party. Admittedly
plaintiffs have challenged the declaration of Companies account as
fraud. However it is made clear that plaintiffs are not seeking any relief
against recovery proceeding. As per rule 8.12 of the master circular the
penal majors on declaration of account as fraud are directly applicable
against the directors and promoters. They cannot be director of any
Company nor can avail loan from any financial institutions. So also
there is every apprehension of criminal proceeding against them. As
such consequences are directly affecting the personal rights of directors
and promoters. Therefore in my opinion suit is maintainable without
adding Company as party.
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16. Another objection raised by Ld. Counsel for defendant that
the suit is premature one. It is argued that till this time plaintiffs are
not declared as willful defaulter. Therefore any relief against
declaration as willful defaulter is premature one. As against this it is
argued by Ld. Counsel for plaintiff that herein is a case of fraud and not
willful defaulter. Plaintiffs are already declared as fraud. Therefore the
objection raised by defendant about premature of suit is not sustainable.
17. I have gone through the copy of notice of motion as well as
plaint. Plaintiffs are seeking relief against declaration of fraud. No
where it is mentioned that they are challenging their declaration as
willful defaulter. As such it is not a case of willful defaulter but it is a
case of fraud. Admittedly plaintiffs account is declared as fraud on
28.04.2019. Therefore there is no question of any premature relief.
Record goes to show that on declaration as fraud plaintiffs have
approached this Court. So also it is not a case of declaration as willful
defaulter. Therefore the objection raised by defendant about premature
suit is not sustainable.
18. So far as factual aspect is concerned it is the grievance of
plaintiff that, defendant bank has not followed the guidelines and
procedure as given in master circular and therefore the declaration of
plaintiff as fraud is not proper. As against this it is the defence of
defendant bank that before declaring plaintiff as fraud bank has
followed the guidelines and procedure given in master circular by giving
fair opportunity to plaintiff to place their case. So the nature of dispute
is that it is the contention of plaintiff that defendant has not followed
proper procedure before declaring them as fraud while it is the defence
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of defendant bank that plaintiff are declared as fraud by following due
procedure laid down in master circular. It is settled legal position that,
Court will not expect nor anyone can bring the negative evidence.
Court will expect positive evidence and in case of failure to bring it,
negative inference has to be drawn. So little more burden is on
defendant to show that it has followed due procedure before declaring
plaintiff as fraud.
19. It is the grievance of plaintiff that in master circular certain
procedure is given for declaring any account as fraud. Here defendant
bank has not followed said procedure and thereby declared plaintiffs
account as fraud. Considering the nature of consequences on
declaration as fraud the procedure given in master circular is mandatory
in nature. As against this it is the submission of Ld. Counsel for
defendant that defendant bank has followed every procedure given in
master circular before declaring plaintiffs account as fraud. The
account was declared as RFA on 30.10.2018 while it was declared as
fraud on 28.04.2019. It goes to show that bank has followed the time
limit of six months in declaring account as fraud from the date of
declaration as RFA.
20. I have gone through the master circular dated 01.07.2016.
It is master circular on fraud. Rule 8.8 of said master circular deals
with the bank who is the sole lender. Here it is not disputed that
defendant came with the case of sole lender. As per said rule after
noticing any irregularity in the account it should be declared as RFA
and by use of external auditors and Forensic experts it should be
investigated and if fraud is noticed then it be declared as fraud. In any
case from declaration of RFA the further procedure has to be completed
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within six months. Here it is the matter of record that RFA was
declared on 30.10.2018 while fraud is declared on 28.04.2019. It goes
to show that defendant bank has observed the time limit of six months
given in master circular.
21. However only time limit is not the sole criteria to declare as
fraud. Rule 2.2 of master circular deals with classification of fraud. It
says that fraud have been classified as under based mainly on the
provisions of the Indian Penal Code.
a) Misappropriation and Criminal breach of trust.
b) Fraudulent encashment through forged instruments,
manipulation of books of account or through fictitious
accounts and conversion of property.
c) Unauthorized credit facilities extended for reward or for
illegal gratification.
d) Cash shortages.
e) Cheating and forgery.
f) Fraudulent transactions involving foreign exchange.
g) Any other type of fraud not coming under the specific
heads as above.
22. Here it is alleged by defendant that plaintiffs have
committed the instances of irregularities given in above rule and
therefore it is declared as fraud. In the entire R & P there is only one
document on record. It is the letter of defendant addressed to plaintiff
wherein it is mentioned that RFA is declared on 31.10.2018 and fraud is
declared on 28.04.2019. Except this one line order there is nothing on
record to show that what types of irregularities plaintiffs have
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committed as mentioned in rule 2.2 of master circular. As per said rule
for declaration of any account as fraud there must be misappropriation
or Criminal breach of trust or fraudulent encashment or manipulation of
books of accounts or diversion of funds or cash storage or cheating and
forgery. Here in the reply of defendant bank no details or clarifications
are given at what type of irregularity plaintiffs have committed as
shown in rule 2.2 of master circular. The reply is totally silent whether
plaintiff has committed misappropriation or Criminal breach of trust or
manipulation of books of accounts or cheating and forgery. In absence
of it mere submission that plaintiffs have committed fraud as mentioned
as rule 2.2 of master circular is not sustainable.
23. As per master circular liberty is given to the financial
institution to take help of auditors or Forensic Audit to declare any
account as fraud. Here no where clear statement is made by bank
whether such Forensic Audit was conducted or not. For sake of
argument it is accepted that it is the discretion of the banks to conduct
Forensic Audit or not. However in absence of it defendant bank is duty
bound to show that plaintiff has committed irregularities mentioned in
rule 2.2 of master circular so as to declare their account as fraud. As
discussed earlier there is nothing on record to shows that certain
investigation or procedure is followed by defendant bank which shows
that there is diversion of fund or manipulation of accounts. Mere
contention of defendant bank will not take place of proof.
24. Here the Ld. Counsel for defendant mostly harped on
default of plaintiffs in repaying the loan amount. It is argued that
plaintiffs have admitted being defaulter and classification of their
account as NPA. Therefore there are estopped from challenging the
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decision based on declaration of NPA. As against this it is argued by Ld.
Counsel for plaintiff that mere default in repayment of loan will not
attract the ingredients given in the rule 2.2 a master circular regarding
fraud. No doubt mere default in repayment will not ipsofacto attract
the fraud. For declaration of fraud there must be instances as given in
rule 2.2 of master circular. The Ld. Counsel for plaintiff invited my
attention towards citation of Hon'ble Apex Court reported in 2019
SCC Online Supreme Court page 196. It is observed that “mere
inability to return the loan amount cannot give rise to a Criminal
prosecution for cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction, as it is this mens rea
which is the crux of the offence.”
25. Admittedly in order to show fraudulent intention some
more or additional must be shown besides mere default in repayment of
loan. Here as discussed above there is no material on record to show
that how and on what basis defendant reached to the conclusion of
fraud. As observed earlier mere default in repayment of loan will not
attract fraud.
26. Now next question is of following rule of natural justice i.e.
opportunity of hearing to the aggrieved party. As per master circular no
where it is mentioned that before taking such decision bank should give
the opportunity of hearing to the defaulter/borrower. It is argued by
Ld. Counsel for plaintiff that the master circular is a part of
administrative procedure. However considering the serious
consequences on declaration as fraud it is quite but natural and it is
explicit that the chance of hearing should have been given to plaintiff.
It is inbuilt in the administrative procedure to follow the rule of natural
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justice. Here neither bank has given the documents and Forensic Audit
Report to plaintiffs nor has given the chance of hearing. Therefore the
decision has to be quashed on the rule of natural justice.
27. On the point of opportunity of hearing and rule of natural
justice the Learned Counsel for plaintiff has relied on following
citations...
(I) Writ Petition (Lodg.) No.345/2011 Finolex Industries
Limited & Anr. V/s. Reserve Bank of India & Ors. Bombay
High Court dated 23/24 August, 2011.
(II) Writ Petition No.2483/2016 Parekh Aluminex Limited
V/s. Allahabad Bank & Ors. with Writ Petition No.2485/2016
Devanshu Praveen Desai V/s. Allahabad Bank & Ors. with
Writ Petition No.2487/2016 Deepen Arun Parekh V/s.
Allahabad Bank & Ors. Bombay High Court dated 27.06.2017.
(III) Civil Writ Petition No.3307/2016 M/s. Oswal Apparels
Pvt. Ltd, Ludhiana & Ors. V/s. State Bank of India, Ludhiana
& Anr. Punjab & Haryana High Court dated 14.02.2017.
(IV) S.B. Civil Writ Petition No.7488/2016 Moserbaer India Ltd.
V/s. State Bank of Bikaner & Jaipur & Anr. Rajasthan at
Jaipur Bench Jaipur dated 07.09.2016.
I have gone through all the citations. The ratio is that a
determination in regard to an entity being a fraud can only be made
after compliance with the procedure laid down in master circular.
Absent compliance with the procedural norms and upon a breech of
principals of natural justice, the decision would stand vitiated. It is
further observed that it is settled principle of law that the documents
that are relied upon by any authority in arriving at a conclusion must be
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made available to the affected party to conform to the principles of
natural justice. So also the party ought to have been afforded adequate
opportunity to present their case. So considering above ratio I am of
the opinion that opportunity of hearing ought to have been given to
plaintiff's before taking decision of fraud. Therefore the balance of
convenience lies in favour of plaintiff.
28. In citations at serial no.4 (supra) in the case of Moserbaer
India Limited it is observed that “An opportunity of hearing ought to be
effective hearing. Fair play demand that the documents/evidence on
which identification Committee relied before issuing a show cause
notice, must be shared or shown to the petitioner/borrower company so
that they can put forward their defence and explain purport of the
documents.” Similarly in another citation of M/s. Oswal Apparels
Private Limited (supra) it is observed that “it is also settled principle of
law that the documents that are relied upon by any authority in arriving
at a conclusion must be made available to the affected party to conform
to the principles of natural justice. That apart, the petitioners ought to
have been afforded adequate opportunity to present their case in its
correct perspective.” So considering above ratio I am of opinion that
before taking decision the defendant bank ought to have given
opportunity of hearing to plaintiff/borrower. In absence of it balance of
convenience lies in favour of plaintiff.
29. Besides above citations the Ld. Counsel for plaintiff has
relied on following citations on the point of natural justice..
(I) 1985 (Supp) Supreme Court Cases 476 “Audi Alteram
Partem”.
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(II) (2015) 8 Supreme Court Cases 519 Dharampal Satyapal
Limited V/s. Deputy Commissioner of Central Excise Gauhati
& Ors.
(III) (1996) 3 Supreme Court Cases 364 State Bank of Patiala V/s.
S.K. Sharma
I have gone through the citations. It is observed that as a rule of
natural justice a person against whom an order to his prejudice may be
passed should be informed of the allegations and charges against him,
be given an opportunity to explain and has right to know the evidence
alongwith the inspection of documents relied on for passing such order.
It is further observed that said principle is applicable to judicial, quasi
judicial and administrative authorities even if not provided for in
statute. Further it is observed that “where however, there are no
rules/regulations/incorporating the principles of natural justice, but
those principles are implicit in the very nature of the action/order, if
there is total violation of those principles i.e. no opportunity/hearing
was given, then the action/order would be invalid. But if there is
violation of only a facet of the principles i.e. no adequate
opportunity/hearing was given, test of prejudice should be applied and
if no prejudice caused, no interference would be called for”.
30. Admittedly defendant bank has not given opportunity of
hearing to plaintiffs nor given the documents and material relied on by
bank for passing the order of declaration as fraud. Here the
consequences of declaration as fraud are serious in nature including
penal consequences. Therefore it cannot be said that no prejudice will
cause to plaintiff. Therefore considering above ratio it was incumbent
on the part of defendant bank to give opportunity of hearing to plaintiff
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before passing the order of fraud.
31. It is settled legal principle that rule of natural justice
includes show cause notice, calling explanation, giving inspection of
documents and considering the material reasoned order has to be
passed. Here plaintiff have produced one letter dated 31.05.2019
issued by defendant to them. It is just one line order informing that
company account was tagged as RFA on 30.10.2018 and reported as
fraud on 28.04.2019. As against this nothing more is brought by
defendant on record to show that before such declaration defendant has
passed reasoned order to that effect. Therefore the points of prima
facie case and balance of convenience are lies in favour of plaintiffs.
32. Here, plaintiff is not claiming the relief against the recover
proceedings initiated by lenders Bank. The Ld. Counsel for plaintiff
fairly submitted that plaintiff is not making any grievance here against
the recovery proceeding initiated by defendant under various forums.
As per Ld. Counsel plaintiff is only seeking relief against declaration of
fraud being without following due procedure. As per consequences of
declaration as fraud there is no bar for taking steps for recovery of loan
amount. It goes to show that defendant Bank can go ahead with
recovery proceedings. However, considering above discussion I am of
the opinion that primafacie there is material on record to show that
defendant has not followed due procedure before declaring plaintiffs
account as fraud. Therefore balance of convenience is in favour of
plaintiff.
33. It is a matter of record that the consequences of declaration
of fraud are much serious in nature inclusive of penal consequences.
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Therefore, without giving opportunity and without following the
procedure given in master circular it is not expected to take such
decision. If it is allowed to go ahead, then it will cause irreparable loss
to plaintiff. As such plaintiff has made out primafacie case to grant
relief in his favour. So with this discussion I proceed to pass the order.
ORDER
1. NM No.3242/19 in Stamp No.9158/19 is hereby made
absolute in terms of prayer clause (a).
2. Defendants, their agents, servants or any person claiming
through them are hereby restrained from acting on
their declaration of plaintiffs account as fraud and from
taking any coercive action against plaintiffs on such
declaration pending the hearing and till final disposal of
the suit.
3. It is needless to say that defendant bank is at liberty to
proceed against plaintiff regarding recovery proceeding,
attachment, sale of attached property to recover the
defaulted loan.
4. Cost as in cause.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 01/11/2019 City Civil Court, Gr. Mumbai
Dictated on : 01.11.2019
Transcribed on : 02.11.2019
Signed on : 04.11.2019
sbk/
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
05.11.2019 05.40 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
01.11.2019.
Judgement/order signed by P.O on 04.11.2019.
Judgement/order uploaded on 05.11.2019.
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