Karnataka High Court
Dr Vijay Mallya vs State Bank Of India on 5 October, 2018
Equivalent citations: AIR 2019 KARNATAKA 23, AIRONLINE 2018 KAR 1228
Bench: Chief Justice, Krishna S Dixit
W.P.No.22111/2018
-1- c/w W.P.No.16351/2018.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF OCTOBER, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE KRISHNA S. DIXIT
WRIT PETITION NO. 22111 OF 2018 (GM - DRT)
C/W
WRIT PETITION NO. 16351 OF 2018 (GM - DRT)
IN W.P. NO.22111/2018:
BETWEEN:
DR. VIJAY MALLYA
S/O LATE SRI. VITTAL MALLYA
AGED 62 YEARS,
RESIDING AT 18-19 CORNWALL
TERRACE
REGENTS PARK
LONDON NW1 4QP
REPRESENTED BY HIS CONSTITUTED
ATTORNEY
MRS.TUSHITA PATEL ... PETITIONER
(BY SRI. K.G. RAGHAVAN, SR. COUNSEL, FOR
SRI.VENKATESH MURTHY G R, ADVOCATE)
AND
1. STATE BANK OF INDIA
A BANKING CORPORATION
CONSTITUTED UNDER THE
STATE BANK OF INDIA ACT, 1955, (23 OF 1955),
W.P.No.22111/2018
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HAVING ITS CORPORATE CENTRE AT
STATE BANK BHAVAN,
MADAME CAMA ROAD,
NARIMAN POINT,
MUMBAI- 400 021.
AND HAVING ITS INDUSTRIAL
FINANCE BRANCH AT 61,
RESIDENCY PLAZA,
RESIDENCY ROAD,
BENGALURU - 560 025.
REPRESENTED BY ITS MANAGER.
2. BANK OF BARODA
A BODY CORPORATE UNDER
THE BANKING COMPANIES
(ACQUISITION AND TRANSFER
OF UNDERTAKING) ACT, 1970 (5 OF 1970),
HAVING ITS HEAD OFFICE AT BARODA HOUSE,
P.B.NO. 506,
MANDAVI,
VADODARA - 396 006.
ACTING THROUGH ITS BRANCH OFFICE
AT P.O. BOX 11745,
SAMATA BUILDING,
GENERAL BHOSALE MARG,
NARIMAN POINT,
MUMBAI - 400 021.
REPRESENTED BY ITS MANAGER
3. CORPORATION BANK
A BODY CORPORATE CONSTITUTED
UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKINGS) ACT,
1980 (40 OF 1980) AND HAVING ITS CORPORATE OFFICE
AT MANGALADEVI TEMPLE ROAD,
PANDESHWAR,
MANGALORE 575 001.
AND HAVING ITS INDUSTRIAL FINANCE BRANCH AT
RALLARAM MEMORIAL BUILDING,
1ST FLOOR, CSI COMPOUND,
MISSION ROAD,
BENGALURU - 560 027.
REPRESENTED BY ITS MANAGER.
W.P.No.22111/2018
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4. THE FEDERAL BANK LIMITED
A COMPANY WITHIN THE MEANING OF
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
FEDERAL TOWERS,
ALUVA 683 101, KERALA.
AND HAVING ITS BRANCH
OFFICE AT ST. MARKS ROAD,
9, HALCYON COMPLEX,
ST. MARKS ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS MANAGER.
5. IDBI BANK LIMITED
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956 AND
A BANKING COMPANY WITHIN THE MEANING OF THE
BANKING REGULATION ACT, 1949,
HAVING ITS HEAD OFFICE AT IDBI TOWER,
WTC COMPLEX,
CUFFE PARADE, MUMBAI - 400 005.
MAHARASHTRA, INDIA,
AND ACTING THROUGH ITS BRANCH OFFICE AT
CORPORATE BANKING GROUP-FAMG,
9TH FLOOR, IDBI TOWER,
WTC COMPLEX, CUFFE PARADE,
COLABA, MUMBAI 400 005.
REPRESENTED BY ITS MANAGER.
6. INDIAN OVERSEAS BANK
A BODY CORPORATE UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING) ACT,
1970,
HAVING ITS CENTRAL OFFICE AT 763,
ANNA SALAI,
CHENNAI 600 002.
AND ITS BRANCH OFFICE AT
'HARIKRIPA', 26-A, S.V. ROAD,
SANTACRUZ (W),
MUMBAI 400 054.
REPRESENTED BY ITS MANAGER.
W.P.No.22111/2018
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7. JAMMU & KASHMIR BANK LIMITED
A BANKING COMPANY INCORPORATED UNDER
THE JAMMU & KASHMIR
COMPANIES ACT NO.XI OF 1977
(SAMVAT),
HAVING ITS REGISTERED OFFICE AT CORPORATE
HEADQUARTER, MAULANA AZAD ROAD,
SRINAGAR, KASHMIR 190 001.
AND ITS BRANCH OFFICE AT SYED HOUSE,
124,,S.V. SAVARKAR MARG,
MAHIM (WEST),
MUMBAI-400 016.
REPRESENTED BY ITS MANAGER.
8. PUNJAB & SIND BANK
A BODY CORPORATE UNDER BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING) ACT,
1980 HAVING ITS HEAD OFFICE AT 21,
RAJENDRA PLACE,
NEW DELHI - 110 008.
AND HAVING AMONGST OTHERS,
A BRANCH OFFICE AT J.K. SOMANI BUILDING,
BRITISH HOTEL LANE, FORT,
MUMBAI - 400 023.
REPRESENTED BY ITS MANAGER
9. PUNJAB NATIONAL BANK
A BODY CORPORATE UNDER BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING) ACT,
1970 (5 OF 1970)
HAVING ITS HEAD OFFICE AT 7,
BHIKAJICAMA PLACE,
NEW DELHI - 110 607.
ACTING THROUGH ITS LARGE CORPORATE
BRANCH AT CENTENARY BUILDING,
28, M.G. ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS MANAGER.
10. STATE BANK OF MYSORE
A BODY CORPORATE CONSTITUTED UNDER THE STATE
BANK OF INDIA (SUBSIDIARY BANKS) ACT, 1959,
W.P.No.22111/2018
-5- c/w W.P.No.16351/2018.
HAVING ITS HEAD OFFICE AT
KEMPE GOWDA ROAD,
BENGLAURU - 560 009.
AND ITS CORPORATE
ACCOUNTS BRANCH AT NO.18,
RAMANASHREE ARCADE, MG. RAOD,
BENGALURU - 560 001.
REPRESENTED BY ITS MANAGER.
11. UCO BANK
A BODY CORPORATE CONSTITUTED UNDER THE
BANKING COMPANIES (ACQUISITION & TRANSFER OF
UNDERTAKINGS) ACT, 1970
AND HAVING ITS HEAD OFFICE AT 10,
BTM SARANI, KOLKATA - 700 001.
WEST BENGAL, INDIA,
AND ITS BRANCH OFFICE AT:
1ST FLOOR, 13/22, K.G. ROAD,
BENGALURU - 560 009.
REPRESENTED BY ITS MANAGER.
12. UNITED BANK OF INDIA
A BODY CORPORATE UNDER THE BANKING COMPANIES
(ACQUISITION & TRANSFER OF UNDERTAKINGS) ACT,
1970 (5 OF 1970)
AND HAVING ITS HEAD OFFICE AT 11,
HEMANATABASU SARANI,
KOLKATA - 700 001.
ACTING THROUGH ITS
BRANCH OFFICE AT 40, K.G. ROAD,
BENGALURU - 560 009.
REPRESENTED BY ITS MANAGER.
13. KINGFISHER AIRLINES LIMITED
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
UB TOWER, LEVEL 12, UB CITY,
24, VITTAL MALLYA ROAD,
BENGALURU - 560 001.
REPRESENTED BY OFFICIAL LIQUIDATOR,
REPRESENTED BY ITS MANAGER
W.P.No.22111/2018
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14. UNITED BREWERIES (HOLDINGS) LIMITED
(IN LIQUIDATION)
A PUBLIC COMPANY INCORPORATED
UNDER THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT,
UB TOWER, LEVEL 12, UB CITY,
24, VITTAL MALLYA ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS ERSTWHILE DIRECTOR
15. KINGFISHER FINVEST (INDIA) LIMITED
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
UB TOWER, LEVEL 12, UB CITY,
24, VITTAL MALLYA ROAD,
BENGALURU - 560 001.
16. SBICAP TRUSTEE COMPANY LIMITED
NO.8, 5TH FLOOR, KHETAN BHAVAN
198, JAMSHEDJI TATA ROAD, CHURCHGATE,
MUMBAI - 400 020.
REPRESENTED BY ITS MANAGER.
17. THE COMMISSIONER OF SERVICE TAX-I
CENTRAL EXCISE BUILDING,
M.K. ROAD,
CHURCHGATE, MUMBAI - 400 020.
18. DIAGEO HOLDING NETHERLANDS B.V.
MOLENWERF 12, 1014 BG,
AMSTERDAM THE NETHERLANDS,
REPRESENTED BY ITS DIRECTOR.
19. UNIT TRUST OF INDIA INVESTMENT
ADVISORY SERVICES LIMITED,
UNIT NO.2, BLOCK B, 1ST FLOOR,
JVPD SCHEME,
GULMOHAR CROSS ROAD NO.9,
ANDHERI (WEST),
MUMBAI - 400 049.
REPRESENTED BY ITS MANAGER,
W.P.No.22111/2018
-7- c/w W.P.No.16351/2018.
20. STANDARD CHARTERED BANK
I BASINGHALL AVENUE,
LONDON,
REPRESENTED BY ITS MANAGER.
21. JM FINANCIAL ASSET
RECONSTRUCTION CO. PVT. LTD.,
7TH FLOOR, CNERGY,
APPASAHAB MARATHE,
MARG, PRABHADEVI,
MUMBAI - 400 025.
REPRESENTED BY ITS DIRECTOR.
... RESPONDENTS
(BY SRI. S.S. NAGANAND, SR.COUNSEL, FOR
SRI. ANIKETH B.C., ADVOCATE )
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 25.04.2018 PASSED IN
A.I.R.No.605/2017 BY THE LD. DEBT RECOVERY APPELLATE
TRIBUNAL, CHENNAI (ANNEXURE A) AND ETC.,
IN W.P.No.16351/2018 :
BETWEEN
DR VIJAY MALLYA
S/O LATE SRI VITTAL MALLYA
RESIDING AT 18-19
CORNWALL TERRACE REGENTS PARK
LONDON NW1 4QP
REPRESENTED BY HIS CONSTITUTED ATTORNEY
MRS TUSHITA PATEL
... PETITIONER
(BY SRI. K.G. RAGHAVAN, ADV. FOR
SRI.VENKATESH MURTHY G R)
W.P.No.22111/2018
-8- c/w W.P.No.16351/2018.
AND
1. STATE BANK OF INDIA
A BANKING CORPORATION CONSTITUTED
UNDER THE STATE BANK OF INDIA ACT
1955 (23 OF 1955)
HAVING ITS CORPORATE CENTRE AT
STATE BANK BHAVAN
MADAME CAMA ROAD,
NARIMAN POINT
MUMBAI - 400 021
AND HAVING ITS INDUSTRIAL
FINANCE BRANCH AT 61 RESIDENCY PLAZA RESIDENCY
ROAD,
BENGALURU - 560025
REPRESENTED BY MANAGER.
2. BANK OF BARODA
A BODY CORPORATE UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING)
ACT,1970 ( 5 OF 1970)
HAVING ITS HEAD OFFICE AT
BARODA HOUSE,
P B NO 506
MANDAVI
VADODARA - 396 006
ACTING THROUGH ITS BRANCH
OFFICE AT P.O.BOX 11745
SAMATA BUILDING,
GENERAL BHOSALE MARG,
NARIMAN POINT,
MUMBAI - 400 021
REPRESENTED BY MANAGER.
3. CORPORATION BANK
A BODY CORPORATE CONSTITUTED UNDER THE
BANKING COMPANIES
(ACQUISITION & TRANSFER OF UNDERTAKINGS) ACT 1980
(40 OF 1980) AND
HAVING ITS CORPORATE OFFICE AT
MANGALADEVI TEMPLE ROAD,
PANDESHWAR MANGALORE - 575 001
W.P.No.22111/2018
-9- c/w W.P.No.16351/2018.
AND HAVING ITS INDUSTRIAL FINANCE BRANCH
AT RALLARAM MEMORIAL BUILDING, 1ST FLOOR,
CSI COMPOUND, MISSION ROAD,
BENGALURU - 560 027
REPRESENTED BY MANAGER.
4. THE FEDERAL BANK LIMITED
A COMPANY WITHIN THE MEANING
OF THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
FEDERAL TOWERS, ALUVA 683 101
KERALA .
AND HAVING ITS BRANCH OFFICE AT
ST MARKS ROAD, 9 HALCYON COMPLEX,
ST MARKS ROAD,
BENGALURU - 560 001
REPRESENTED BY MANAGER.
5. IDBI BANK LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956 AND
A BANKING COMPANY WITHIN THE MEANING
OF THE BANKING REGULATION ACT 1949
HAVING ITS HEAD OFFICE AT IDBI TOWER,
WTC COMPLEX, CUFFE PARADE, MUMBAI - 400 005
MAHARASHTRA, INDIA
AND ACTING THROUGH ITS BRANCH OFFICE AT
CORPORATE BANKING GROUP - FAMG
9TH FLOOR, IDBI TOWER, WTC COMPLEX,
CUFFE PARADE, COLABA
MUMBAI - 400 005
REPRESENTED BY MANAGER.
6. INDIAN OVERSEAS BANK
A BODY CORPORATE UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING ) ACT
1970 HAVING ITS CENTRAL OFFICE AT 763, ANNASALAI
CHENNAI - 600 002
AND ITS BRANCH OFFICE AT
'HARIKRIPA', 26-A, S.V. ROAD,
SANTACRUZ (W), MUMBAI - 400 054
W.P.No.22111/2018
- 10 - c/w W.P.No.16351/2018.
7. JAMMU & KASHMIR BANK LIMITED
A BANKING COMPANY INCORPORATED UNDER
THE JAMMU & KASHMIR
COMPANIES ACT NO.XI OF 1977 (SAMVAT),
HAVING ITS REGISTERED OFFICE AT CORPORATE
HEADQUARTER, MAULANA AZAD ROAD,
SRINAGAR, KASHIMIR 190 001.
AND ITS BRANCH OFFICE AT SYED HOUSE, 124,
S.V. SAVARKAR MARG, MAHIM (WEST),
MUMBAI-400 016.
REPRESENTED BY MANAGER.
8. PUNJAB & SIND BANK
A BODY CORPORATE UNDER BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING ) ACT,
1980, HAVING ITS HEAD OFFICE AT 21,
RAJENDRA PALCE,
NEW DELHI - 110 008
AND HAVING AMONGST OTHERS,
A BRANCH OFFICE AT J K SOMANI BUILDING,
BRITISH HOTEL LANE, FORT
MUMBAI - 400 023
REPRESENTED BY MANAGER.
9. PUNJAB NATIONAL BANK
A BODY CORPORATE UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKING) ACT
1970 (5 OF 1970)
HAVING ITS HEAD OFFICE AT 7,
BHIKAJI CAMA PLACE
NEW DELHI - 110 607
ACTING THROUGH ITS LARGE CORPORATE
BRANCH AT CENTENARY BUILDING,
28, M.G. ROAD
BENGALURU - 560 001.
REPRESENTED BY MANAGER.
10. STATE BANK OF MYSORE
A BODY CORPORATE CONSTITUTED
UNDER THE STATE BANK OF INDIA
(SUBSIDIARY BANKS) ACT, 1959,
HAVING ITS HEAD OFFICE AT KEMPE GOWDA ROAD,
BENGALURU - 560 009
W.P.No.22111/2018
- 11 - c/w W.P.No.16351/2018.
AND ITS CORPORATE ACCOUNTS BRANCH
AT NO 18,
CORPORATE ACCOUNTS BRANCH AT NO 18,
RAMANASHREE ARCADE, M. G. ROAD,
BENGALURU - 560 001.
REPRESENTED BY MANAGER.
11. UCO BANK
A BODY CORPORATE CONSTITUTED
UNDER THE BANKING COMPANIES
(ACQUISITION & TRANSFER OF
UNDERTAKINGS) ACT, 1970
AND HAVING ITS HEAD OFFICE AT 10,
BTM SARANI, KOLKATA -700 001
WEST BENGAL, INDIA
AND ITS BRANCH OFFICE AT : 1ST FLOOR,
13/22, K.G. ROAD,
BENGALURU - 560 009.
REPRESENTED BY MANAGER.
12. UNITED BANK OF INDIA
A BODY CORPORATE UNDER
THE BANKING COMPANIES
(ACQUISITION & TRANSFER OF
UNDERTAKINGS) ACT 1970
(5 OF 1970) AND HAVING ITS
HEAD OFFICE AT 11,
HEMANTA BASU SARANI,
KOLKATA - 700 001
ACTING THROUGH ITS
BRANCH OFFICE AT
40, K G ROAD,
BENGALURU - 560 009
REPRESENTED BY MANAGER.
13. KINGFISHER AIRLINES LIMITED,
A PUBLIC LIMITED COMPANY
INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
UB TOWER, LEVEL 12, UB CITY,
W.P.No.22111/2018
- 12 - c/w W.P.No.16351/2018.
24 , VITTAL MALLYA ROAD,
BENGALURU - 560 001
REPRESENTED BY OFFICIAL LIQUIDATOR
14. UNITED BREWERIES (HOLDINGS) LIMITED
(IN LIQUIDATION)
A PUBLIC LIMITED COMPANY
INCORPORATED UNDER
THE COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT UB TOWER,
LEVEL 12, UB CITY, 24 ,
VITTAL MALLYA ROAD,
BENGALURU - 560 001
REPRESENTED BY MANAGER.
15. KINGFISHER FINVEST (INDIA) LIMITED ,
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT UB TOWER,
LEVEL 12, UB CITY 24 , VITTAL MALLYA ROAD,
BENGALURU - 560 001.
REPRESENTED BY MANAGER.
16. SBICAP TRUSTEE COMPANY LIMITED
NO 8, 5TH FLOOR KHETAN BHAVAN
198, JAMSHEDJI TATA ROAD, CHURCH GATE,
MUMBAI - 400 020.
REPRESENTED BY MANAGER.
17. THE COMMISSIONER OF SERVICE TAX - I
CENTRAL EXCISE BUILDING
M K ROAD, CHURCH GATE,
MUMBAI - 400 020
REPRESENTED BY COMMISSIONER.
18. DIAGEO HOLDING NETHERLANDS B V
MOLENWERF 12, 1014, BG AMSTERDAM
THE NETHERLANDS
REPRESENTED BY MANAGER.
W.P.No.22111/2018
- 13 - c/w W.P.No.16351/2018.
19. UNIT TRUST OF INDIA INVESTMENT
ADVISORY SERVICES LIMITED
UNIT NO 2, BLOCK B, 1ST FLOOR, JVPD SCHEME
GULMOHAR CROSS ROAD, NO 9,
ANDHERI (WEST)
MUMBAI - 400 049
REPRESENTED BY MANAGER.
20. STANDARD CHARTERED BANK
I BASINGHALL AVENUE
LONDON.
REPRESENTED BY MANAGER.
21. J M FINANCIAL ASSET RECONSTRUCTION
CO. PVT. LTD.
7TH FLOOR, CNERGY,
APPASAHEB MARATHE MARG,
PRABHADEVI, MUMBAI - 400 025
REPRESENTED BY MANAGER.
... RESPONDENTS
(By Sri.S.S. NAGANAND, SENIOR ADVOCATE FOR
SRI.ANIKETH B C, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 28.03.2018 PASSED IN
A.I.R.NO.605/2017 BY THE LD. DEBT RECOVERY APPELLATE
TRIBUNAL AT ANNEXURE A TO THE EXTENT THAT IT DIRECTS
THE PETITIONER TO DEPOSIT A SUM OF RS.3101 CRORES AND
ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY, CHIEF JUSTICE,
PRONOUNCED THE FOLLOWING:
W.P.No.22111/2018
- 14 - c/w W.P.No.16351/2018.
ORDER
Preliminary:
1. These two petitions between the same parties and involving inter-related issues, have been considered together; and are taken up for disposal by this common order.
2. The petitioner-Dr.Vijay Mallya proposed to maintain an appeal before the Debt Recovery Appellate Tribunal, Chennai ('DRAT'), being AIR No.605/2017, against the order dated 19.01.2017, as passed by the Debt Recovery Tribunal, Karnataka, Bangalore ('DRT') in O.A.No.766/2013. The said appeal having been dismissed on 02.01.2018 for want of appearance and for non-
compliance of office objections, the petitioner filed an application seeking its restoration and another application for condonation of delay whereupon, the DRAT, by its order dated 28.03.2018, directed the petitioner to deposit a sum of Rs.3,101 Crore on or before 25.04.2018 and observed that in case of failure in compliance, the appeal will be liable to be dismissed automatically. This order dated 28.03.2018 has been challenged by the petitioner in W.P.No.16351/2018.
3. The petitioner filed another application before the DRAT, being I.A.No.430/2018, seeking enlargement of time for making the deposit as fixed by the order dated 28.03.2018 with the W.P.No.22111/2018
- 15 - c/w W.P.No.16351/2018.
submissions that the said order was under challenge in this Court. The DRAT, by its order dated 25.04.2018, dismissed the said application while observing that 'there remain no substance in prayers made in appeal or in restoration or delay condonation whatsoever'. This order dated 25.04.2018 has been challenged by the petitioner in W.P.No.22111/2018.
The relevant facts and background:
4. Shorn of unnecessary details, the relevant facts and background aspects of the matter could be taken in comprehension as follows:
(a) The respondent No.13-Kingfisher Airlines Ltd., a Public Limited Company incorporated under the Companies Act, 1956 and now under liquidation, (hereafter also referred to as 'Kingfisher Airlines') had availed Working Capital and Term Loan Facilities from the Consortium of respondent-Banks, way back in the year 2005. The said loan/credit facilities were re-structured pursuant to a MASTER DEBT RECAST AGREEMENT dated 21.12.2010, accompanied by various other Supplementary Agreements as its corollaries. In relation to the credit facilities aforesaid, the respondent No.14-United Breweries (Holdings) Ltd.
provided a Corporate Guarantee and the petitioner, being the Group Chairman of various Companies under the umbrella of the W.P.No.22111/2018
- 16 - c/w W.P.No.16351/2018.
Group called 'UB Group of Companies' furnished his Personal Guarantee.
(b) The borrower Kingfisher Airlines committed default in repayment against the credit facilities aforesaid, which resulted into classifying the Loan Account as the Non Performing Asset ('NPA') by various notices issued during the period between 02.11.2011 and 31.03.2013. The respondent No. 1-State Bank of India, in its capacity as the Lenders' Agent, issued a Loan Recall Notice dated 02.04.2013 to the Kingfisher Airlines and to the Guarantors. The Personal Guarantee furnished by the petitioner was also invoked by calling upon him to make payment of a sum of Rs. 6,493.29 Crore. By way of the reply dated 17.04.2013, the petitioner denied his liability, while alleging, inter alia, that the Contract of Guarantee was vitiated by coercion/undue influence.
(c) The Consortium of respondent-Banks with the respondent No. 1-State Bank of India as the Lenders Agent, in addition to invoking other modes of recovery, instituted O.A. No.766/2013 under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, ('the Act of 1993') in the Debt Recovery Tribunal, Karnataka, Bangalore for recovery of the dues of Rs.6203,35,03,879.42 (Rupees Six Thousand Two Hundred and Three Crore, Thirty Five Lakh, Three Thousand, W.P.No.22111/2018
- 17 - c/w W.P.No.16351/2018.
Eight Hundred and Seventy Nine and Paise Forty Two), as on 31.05.2013 with interest at the rate of 15.20 % per annum with monthly rests and for other consequential reliefs. This O.A. was resolutely opposed by the Borrower and Guarantors by filing the Written Statements.
(d) The DRT, after adverting to the pleadings of the parties and after appreciating the material placed on record, entered a judgment and order dated 19.01.2017 holding the respondent No.13-Kingfisher Airlines Ltd., respondent No.14- United Breweries (Holdings) Ltd., respondent No.15-Kingfisher Finvest (India) Ltd., and the petitioner-Dr.Vijay Mallya, jointly and severally liable for the recovery of the said sum of Rs.6203,35,03,879.42 with interest at the rate of 11.50% with yearly rests, from the date of Application until the date of complete realisation. Other consequential reliefs were also granted.
(e) The petitioner-Dr.Vijay Mallya, aggrieved by the aforesaid order of the DRT, preferred an appeal before the DRAT on 04.10.2017 under Section 20 of the Act of 1993 and the same was registered as AIR No.605/2017. After scrutiny, the registry of DRAT notified certain objections in the Memo of Appeal so filed by the petitioner. The objections having not W.P.No.22111/2018
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been complied with, the appeal came to be dismissed by the order dated 02.01.2018 for non-prosecution.
(f) On 05.03.2018, the petitioner filed an application seeking restoration of the appeal with another application for condonation of delay in filing the restoration application. The petitioner claims that thereafter, i.e., on 21.03.2018, he had complied with the office objections raised in the main Appeal.
(g) While dealing with the applications so moved by the petitioner, the DRAT, by its order dated 28.03.2018, directed him to deposit a sum of Rs.3,101 Crore, on or before 25.04.2018 as a condition precedent for entertaining the appeal as per the terms of Section 21 of the Act of 1993; and subject to the rider that in default, the appeal will stand dismissed automatically without reference to the Bench.
(h) The petitioner did not make any deposit in terms of the aforesaid peremptory order dated 28.03.2018 and consequently, the appeal stood dismissed. Thereafter, the petitioner filed an application seeking restoration of the dismissed appeal; and another application for condonation of delay was also filed. The DRAT, by its order dated 25.04.2018, dismissed both these applications.
W.P.No.22111/2018
- 19 - c/w W.P.No.16351/2018.
(i) Hence, and in the backdrop of the facts and events
aforesaid, the petitioner has preferred W.P.16351/2018
challenging the peremptory order dated 28.03.2018; and W.P.22111/2018 challenging the order dated 25.04.2018, whereby the DRAT has dismissed his application seeking restoration of the appeal.
Rival submissions:
5. The learned Senior Counsel Sri. K.G.Raghavan, appearing for the petitioner has assailed the impugned orders of the DRAT on the following contentions:
(a) That, the respondent-Banks had filed the O.A., inter alia, against the petitioner on 26.06.2013; the amendment to Section 21 of the Act of 1993, limiting the maximum waiver of the pre-deposit amount to 25% of the amount due under the DRT order impugned in appeal, being prospective in operation i.e., w.e.f. 01.09.2016, the DRAT could not have founded its orders on the said amendment inasmuch as the right of appeal accrues to the litigating party when the original proceedings are instituted, though it becomes exercisable only after an adverse order is made therein. According to the learned counsel, the right to seek waiver or reduction of pre-deposit for filing the appeal being a matter of substantive law, the 2016 Amendment W.P.No.22111/2018
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to Section 21 of the Act of 1993 is only prospective in operation and does not apply to the appeal in question that arises out of the proceedings originally instituted before the said Amendment. Therefore, the DRAT has acted illegally in proceeding as if the Amended provisions apply and hence, in refusing to waive the condition of pre-deposit. The learned counsel has relied upon the decision in Ramesh Singh & Another vs. Cinta Devi & Others: (1996) 3 SCC 142.
(b) The respondent Nos.14 & 15 having deposited a sum of about Rs.1,280 Crore under the very same loan transaction with the Registry of this Court in terms of various orders in various other proceedings initiated by the respondent- Banks, the DRAT is not justified in insisting upon the petitioner to deposit a sum of Rs.3,101 Crore and that too, when all the properties of the petitioner are under attachment by orders of the Courts in India and U.K. in connected/collateral proceedings. The DRAT ought to have evaluated both the elements of (a) prima facie, case and (b) of financial hardship, in view of the decision in Sterlite Technologies Limited vs. Union of India & Others: (2012) 2 Mh.L.J. 112.
(c) The DRAT having had the discretion to grant complete waiver of pre-deposit under the unamended Section W.P.No.22111/2018
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21 of the Act of 1993, ought to have granted such waiver in view of the fact that petitioner's all the properties in India and abroad, have been subject to freezing order by the Courts in India and U.K. The DRAT having not adverted to this important fact, has made the impugned orders, which amount to the DRAT's refusal to exercise discretion when the same was warranted by the factual matrix of this case. In fact, financial hardship pleaded by the petitioner has not been adverted to at all.
(d) The act of DRAT in mandating the deposit of a sum of Rs.3,101 Crore as a condition precedant for entertaining the appeal constitutes an onerous condition on the petitioner and unreasonably restricts his statutory right of appeal, particularly when his properties stand freezed under different orders passed by different Court/Authorities. Such an aspect, having not been adverted to by the DRAT, there is total non-application of mind and vitiates the order impugned.
(e) The DRAT could not have made the order for pre- deposit inasmuch only the applications for condonation of delay and for recall of the earlier order dated 02.01.2018 dismissing the appeal for non-prosecution were under consideration; and in view of the stage and nature of proceedings that were being treated by the DRAT, there was no justification in making the W.P.No.22111/2018
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order for pre-deposit and in rejecting the appeal for non- compliance of this unjustified order requiring pre-deposit.
6. Sri. S.S.Naganand, the learned Senior Counsel appearing for the Consortium of respondent-Banks has refuted the contentions aforesaid; and has made the following submissions in support of the orders impugned:
(a) The culpable conduct of the petitioner, which is self-
evident in the orders of the Courts in India and in U.K, disentitles him to the grant of discretionary remedy at the hands of this Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Learned counsel has relied upon the decision of the Supreme Court in the case of Prestige Lights Ltd., vs. State Bank of India: (2007) 8 SCC 449.
(b) Although it is true that the right of appeal, having accrued to a party when the original proceedings are instituted, becomes exercisable after suffering an adverse order later; and amendment of law relating to right of appeal is ordinarily prospective in operation unless otherwise indicated but then, the 2016 Amendment to Section 21 of the Act of 1993, limiting waiver of pre-deposit to the extent of 25%, is retrospective in operation since it does not impinge upon the substantive right of appeal as such, but touches only the condition of pre-deposit for W.P.No.22111/2018
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entertaining the Appeal and therefore, falls within the domain of procedural law. Learned counsel has relied upon the decision in Board of Control for Cricket in India Vs. Cochi Cricket Pvt. Ltd & Etc.: 2018 SCC Online SC 232.
(c) The contention that the Borrowers and the Guarantors have already deposited a considerable amount in the Registry of this Court in terms of various orders in various proceedings instituted by the respondent-Banks under the very same loan transactions, apart from being untrue, is legally untenable. The said argument is liable to be rejected for lacking in material particulars such as what sums of money, by which order of the Court, arising from which case and by whom are deposited in this Court. This apart, these contentions were not urged before the DRAT.
(d) The contention that the requirement of pre-deposit of 50% of the decreetal sum virtually amounts to unreasonably whittling down the petitioner's substantive right of appeal by the course of procedure adopted by the DRAT, is legally untenable; the Parliament in its legislative wisdom has granted the right of appeal subject to conditions and the DRAT has, in the sound exercise of its discretion, made the impugned order requiring the pre-deposit for entertaining the appeal. This apart, a little before W.P.No.22111/2018
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the DRT passed the impugned judgment and order on 19.01.2017, the petitioner had huge money and disposable properties both in India and abroad that were not subject of any freezer order at the relevant point of time. Moreover, petitioner had also received a huge sum of US$ 40 million; he had other huge monetary transactions but all these facts were withheld from Courts and the petitioner fraudulently transferred enormous amount of money to the Trusts created for the benefit of his children. These facts are mentioned in the orders passed by the Apex Court in relation to the petitioner. Therefore, the petitioner is not even entitled to suggest any ground of the alleged financial hardship.
(e) The contention that the DRAT could not have made the order for pre-deposit when it was considering the petitioner's application for recalling the order of dismissal of appeal is too technical and is without substance. The DRAT has made the said order not as a pre-condition for recalling the dismissal order but for entertaining the appeal itself. An argument to the contrary cannot be made without straining the intent and content of the order impugned in the writ petition.
7. Having heard learned counsel for the parties at length and having perused the material placed on record, W.P.No.22111/2018
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including the copies of the orders of the Courts in U.K., we are clearly of the view that these petitions remain bereft of substance and deserve to be dismissed.
Amendment of Section 21 of the Act of 1993 is retrospective:
8. Having regard to the subject matter and the submissions made, it is appropriate to take up for examination, in the first place, the fundamental question raised in these matters as regards the nature and effect of amendment to Section 21 of the Act of 1993 as brought about by the Amendment Act of the year 2016. Ordinarily, the amendment of substantive law is presumed to be prospective in operation and the amendment of procedural law is presumed to be retrospective in operation [vide Workmen vs. Firestone Tyre & Rubber Co., of India (P) Ltd., : (1973) 1 SCC 813]. The pre- amendment provisions of Section 21 of the Act 1993 required the appellant to deposit 75% of the decreetal sum which the DRAT had the discretion to waive or reduce, depending upon the facts and circumstances of the individual case. The said Section came to be amended by substitution of certain expressions by Act 44 of 2016 w.e.f. 01.09.2016. By such amendment, the quantum of the amount of pre-deposit has been W.P.No.22111/2018
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reduced to 50% in place of 75%; and the power of DRAT to waive has been restricted to the extent of 25%.
9. The provisions of Section 21 of the Act of 1993, before and after amendment, could be taken note of as follows:
Before amendment After amendment
21.Deposit of amount of 21. Deposit of amount of debt due, on filing appeal.- debt due, on filing appeal.- Where an appeal is preferred Where an appeal is preferred by any person from whom the by any person from whom the amount of debt is due to a amount of debt is due to a bank or a financial institution bank or a financial institution or a consortium of banks or or a consortium of banks or financial institutions, such financial institutions, such appeal shall not be appeal shall not be entertained by the Appellate entertained by the Appellate Tribunal unless such person Tribunal unless such person has deposited with the has deposited with the Appellate Tribunal seventy- Appellate Tribunal fifty per five per cent. of the amount of cent. of the amount of debt so debt so due from him as due from him as determined determined by the Tribunal by the Tribunal under section under section 19: 19:
Provided that the Appellate Provided that the Appellate Tribunal may, for reasons to Tribunal may, for reasons to be recorded in writing, waive be recorded in writing, reduce or reduce the amount to be the amount to be deposited deposited under this section. by such amount which shall not be less than twenty-five per cent. of the amount of such debt so due to be deposited under this section.
10. True it is that the right of appeal is a matter of substantive law; this right may be absolute or conditional, as W.P.No.22111/2018
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may be provided by law that creates the said right; it is also well settled that the right of appeal although accrues to a party when the litigation originally commences, the same becomes exercisable after an adverse order is made against him, but this aspect of the matter is beside the point.
11. The 2016 Amendment to the provisions of Section 21 of the Act of 1993, in substance, relates not to the right of appeal as such, but to the condition subject to which the said right becomes exercisable; ordinarily such conditions fall within the domain of procedure especially when the alteration of said conditions is not substantial, inasmuch as even after amendment, discretion is left with the DRAT to reduce the amount of pre-deposit, although not below 25% of the decreetal amount. Therefore, the law by which such conditions are varied cannot be construed to be substantive law but shall remain within the realm of procedural law. The Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others: (2003) 6 SCC 659 has observed (in paragraph 32):
"....No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation."W.P.No.22111/2018
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Therefore, the contention of the petitioner that the amendment is prospective in effect, is not acceptable.
12. Alternatively, for the sake of argument even if the Amendment Act 2016 that takes away the discretion of the DRAT to waive the condition of pre-deposit is assumed to be that of substantive law, the Amendment being by way of substitution, has to be construed as being of retrospective effect.
Substitution of a provision of law or the words in a provision of law results in replacement by the new provision when new words are substituted in place of existing ones; therefore, the amended provision should be read as if it existed from the inception of the enactment. The Supreme Court in the case of Shamrao Vs. Parulekar & Others : AIR 1952 SC 324 has expounded on these principles as under:-
".....the Rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity), as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amending Act at all......"
13. The question whether an amendment by way of substitution would have retrospective effect had fallen for W.P.No.22111/2018
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consideration of the Full Bench of this Court in the case of The Hassan Co-operative Milk Producers Societies Union Ltd., and Others vs. State of Karnataka, Department of Co- operative Societies and Others: ILR 2014 KAR 4257. The Court, after considering a catena of decisions, has ruled that such amendments are retrospective in operation in the following:-
"21. We would also like to examine the effect of amendment by way of substitution and to find out whether amendment by Act No.3 of 2013, by way of substitution would have retrospective operation. It is true that substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. When the Legislature amends the old provision by way of substitution it intends to keep alive the old provision. The Supreme Court in ZILE SINGH (supra), while dealing with such situation observed that having regard to the totality of the circumstances centered around the issue the Court can hold that the substitution has the effect of just deleting the old provision and making the new provision operative. The Supreme Court in STATE OF RAJASTHAN vs. MANGILAL PINDWAL, upheld the legislative practice of an amendment by substitution being incorporated in the text of a statue which had ceased to exist and held the substitution would have the effect of a amending operation of law during the period in which it was in force. Similarly, in KOTESWAR VITTAL KAMATH vs. K.RANGAPPA BALIGA, the three Judge Bench of the Supreme Court emphasized the distinction between supersession of rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Thus, what emerges from the aforesaid judgments of the Supreme Court is that an W.P.No.22111/2018
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amendment which has the effect of substitution of a provision has the effect of replacing the old provision by the substituted provision and in the absence of repugnancy, inconsistency and absurdity, must be construed as if it has been incorporated in the Act right from abinitio. In other words, an amendment by way of substitution has retrospective operation."
Therefore, the contention that the amendment in question is prospective in operation, is liable to be rejected.
14. Another aspect of the matter also needs consideration. It is not that prior to the 2016 amendment, the Act of 1993 had given to the appellant before the DRAT an absolute and unconditional right of appeal; the proviso to Section 21 of the Act of 1993 had vested the discretion in the DRAT to waive or limit the requirement of pre-deposit. The amendment has only restricted the discretion to reduce the requirement of pre- deposit not below 25% of the decreetal sum. Thus, admittedly, even after amendment, the substance of the proviso to Section 21 is retained and what is trimmed is the condition subject to which the right of appeal is to be exercised. The trimming of condition, in essence, relates to the law of procedure, which is normally retrospective in operation. Therefore, the contention of the petitioner that the amendment is prospective in effect, is not well founded.
W.P.No.22111/2018
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15. The decision in the case of Ramesh Singh (supra) concerning the change of Scheme of the Motor Vehicles Act, 1939 in the new Act of 1988, whereunder the condition of pre- deposit was inserted for the first time has no application to the questions involved in the present case, as therein, the condition of pre-deposit was not existing in the old enactment and the new Act did not expressly or by necessary implications make the relevant provisions retrospective; and further, Section 217(4) of the new Act preserved general application of Section 6 of the General Clauses Act. The said decision, in our view, would not apply to the different Scheme of the Act of 1993 and the nature of the amendment in question.
Justification in DRAT's approach:
16. The contention of the petitioner that the DRAT could not have directed the petitioner to deposit a huge sum of Rs.3,101 Crore as a pre-condition for allowing his application for restoration of the appeal that was dismissed for non-compliance of office objections and for non-prosecution appears to be too technical and without substance. The appeal was filed on 04.10.2017; the appeal was dismissed on 02.01.2018 for non- compliance of office objections and non-prosecution; the application for restoration was filed on 05.03.2018; the office W.P.No.22111/2018
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objections in the appeal were rectified on 21.03.2018. These admitted facts gave raise to a legitimate doubt as to the bona fide of the proceedings and seriousness of the petitioner in pursuing his remedies. Keeping these factors in view, the DRAT, in its discretion, had directed the petitioner to make the pre-deposit. This requirement cannot be construed as a pre- condition for restoring the appeal but has to be understood as the requirement of Section 21 of the Act for maintaining the appeal. An argument to the contrary would fall foul of law and justice. Noticeable it is that even before this Court, the petitioner did not come forward to deposit any amount to show his bona fide. Therefore, it cannot be said that the approach of the DRAT is flawsome. For the very same reason, the discretionary order subsequently made by the DRAT on 25.04.2018 dismissing petitioner's application in IA No.430/2018 for extension of time also cannot be faltered. In the given set of facts and circumstances, the observations in Sterlite Technologies Limited case (supra) do not enure to the benefit of the petitioner.
As to the conduct of the petitioner
17. The next contention of the petitioner that a considerable amount is lying in deposit in the Registry of this W.P.No.22111/2018
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Court in various proceedings arising out of the very same loan transaction, is liable to be rejected for want of material particulars thereof. The petitioner has not furnished the list of cases wherein there were directions to make deposit and of various sums of money allegedly deposited in compliance thereof and also the status of the said cases and the said deposits. In fact, even the DRT in its impugned order has provided for filing of memo of calculation which the petitioner had not chosen to file. This Court, in the absence of relevant material cannot form any opinion as to the effect of the deposits allegedly having been made in the Registry of this Court. Even assuming that the said contention is true, the same does not amount to compliance of the statutory condition of pre-deposit, regard being had to the whoppingly huge amount due under the impugned order of the DRT.
18. The next contention of the petitioner that all his properties and moneys have been under attachment/freezing orders of Courts in India and in U.K, does not avail to him. The DRT made the money decree on 19.01.2017. As per the material placed on record, in the meantime, the petitioner is said to have received US$ 40 million from Diageo (approximately above Rs.260 crores). The Commercial Court in U.K in its W.P.No.22111/2018
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freezing order dated 16/17.04.2018 has further mentioned that the petitioner had bought a Ferrari 246 GTS with an estimated value of GBP 4,80,000 (approximately Rs.4,17,60,000/-); he had entered into a Hire Purchase Agreement dated 12.08.2016 which records a payment of GBP 1,35,000 (approximately Rs.1,17,45,000/-). As on the date of passing of the order by the DRT, there was no Freezing Injunction Order by the Courts in U.K. This Freezing Order was first made only on 24.11.2017 i.e., about ten months after the DRT made its order. These facts prima facie discredit the petitioner's version that he does not have any money to deposit.
19. The learned Senior Counsel appearing for the Consortium of Banks has submitted that the Commercial Court in U.K. has made "Freezing Injunction" Order dated 24.11.2017 which is affirmed in appeal; the said Order mentions about questionable transactions involving transfer of huge sums of money made by the petitioner before and after the DRT Order; the said Order also mentions about the Supreme Court Order dated 09.05.2017 finding the petitioner guilty of contempt of Court. The Supreme Court in its order dated 26.04.2016 observed that the petitioner clandestinely did not disclose his assets abroad despite its direction dated 07.04.2016 and that W.P.No.22111/2018
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there was no bona fide in petitioner's offer for Settlement of the claim in question; and lastly, the Court vide order dated 20.10.2016 in a Contempt Case directed the petitioner's personal appearance but, the petitioner disobeyed this order also. We do not intend to deliberate much on this aspect of the matter.
Conclusion
20. In the above circumstances, these Writ Petitions being devoid of merits, stand dismissed.
No costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Snb/cbc