Calcutta High Court (Appellete Side)
Sd3 Nillesh Parekh vs Reserve Bank Of India & Ors on 21 February, 2019
Author: Debangsu Basak
Bench: Debangsu Basak
z 1
324. 21.02. W.P. 21956 (W) of 2018
M.L. 2019
Sd3 Nillesh Parekh.
Versus
Reserve Bank of India & Ors.
Mr. Jishnu Chowdhury
Mr. P. Bag
Mr. A. Agarwalla
Ms. Farnaz Nasim
...for the petitioner.
Ms. Suchismita Ghosh Chatterjee
Mr. Abir Lal Ghosh
...for the respondent no.7
Mr. Alok Kr. Banerjee Mr. Arunabha Sarkar ...for the R.B.I. Mr. Suha Doshi ...for the respondent nos. 3 & 6 Mr. Ramesh Chandra Prusti Mr. Balaram Pandit ...for the respondent nos. 4, 8, 10 & 17 Mr. Subrata Kr. Sinha ...for the respondent nos.2, 16 & 19 Mr. Satarup Banerjee Ms. Riti Basu Mr. S.K. Singhi ...for the respondent no.5 Mr. Varun Kedia Mr. Kumardeep Majumder ...for the respondent no.14 An individual seeks a direction upon several banks to allow netting off/setting off of export and import made by the respondent no.20.
Learned advocate appearing for the petitioner submits that, the petitioner is a shareholder and a director of the respondent no.20. The petitioner is also a creditor of some of the credit facilities enjoyed by the respondent no.20 from the respondent nos. 2 to 19. He draws the attention of the Court to the fact that, there is an insolvency proceedings against the respondent no.20 which may have culminated into an order of winding up of the respondent no.20. He submits that, although, the application was made before the National Company Law z 2 Tribunal, Kolkata for the same prayer. Such application was not entertained and decided on merits. In the event, the petitioner has capacity as a creditor of the credit facilities is entitled to ask for the same relief before the writ Court. He draws the attention of the Court to the circulars of Reserve Bank of India dated July 1, 2014 and November 17, 2011 and submits that, Reserve Bank of India requires the banks to allow both netting off/setting off of exports. Those circulars are statutory in nature. Therefore, the banks are obliged to undertake such an exercise, notwithstanding the absence of an agreement to such effect between the bank and the borrower. The bank having defaulted in doing so, necessary directions are to be issued to the banks of such purpose.
Learned advocate appearing for the respondent no.2 submits that, there has to be an agreement between the borrower and the lender to undertake an exercise as spoken off by the petitioner. moreover, the respondent no.20 was directed to be wined up by an order passed by the N.C.L.T. Kolkata bench in C.A.(I.B.).No.839/KB/2018 connected with C.P.(I.B.) No.579/KB/2017 by an order dated September 14, 2018. The respondent no.20 thereafter applied before the N.C.L.T., Kolkata Bench for undertaking the same exercise which was dismissed. The claims of the respondent no.2 is huge. Since the respondent no.20 stands liquidated by virtue of the order of the liability. He submits that, no further interference is called for.
Learned advocate appearing for the respondent no.3, 4, 5, 6, 8, 9, 10, 12, 14, 15 and 16 adopts the z 3 submission made on behalf of the respondent no.2. learned advocate appearing for the respondent no.7, in addition to a submissions advanced on behalf of the respondent no.2 submits that, in view of the provisions of the Insolvency and Bankruptcy Code, 2016. The Court should not interfere.
Learned advocate appearing for the respondent no.17 submits that, Bank of India has since assigned its claim in favour of an Asset Reconstruction Company. As noted above, the petitioner is a natural person. He claims to be a shareholder and an erstwhile director of the respondent no.20. that the respondent no.20 being directed to be wind up, the petitioner cannot no longer claim himself to be the director of the respondent no.20. the jural relationship between the respondent no.20 and the respondent nos.2 to 19 are not disputed. The respondent no.20 obtained credit facilities from the respondent nos. 2 to 19. According to the respondent no.2, the respondent no.20 and the persons involved in the affairs of the respondent no.20 fraudulently misutilized the credit facilities by discounting forged bills and exchanged with the bank. The Court is informed that, several criminal proceedings executed and investigated by the Central Bureau of Investigation are pending with regard to such belongings and affairs.
The petitioner seeks to enforce a right of the respondent no.20. respondent no. 20 is in liquidation. The respondent no.20 is represented by a liquidator. The respondent nop.20 is not espousing his cause before this Court. The respondent no.20 has sought to raise this z 4 issue of netting off/setting off before the N.C.L.T., Kolkata. Such an application was not entertained. Be that as it may, the petitioner cannot be allowed to espouse the cause of the respondent no.20, that apart, the claim of the petitioner that, the petitioner as a creditor is equally liable and responsible as that of the respondent no.20 does not put the petitioner at a higher pedestal when it seeks to claim that, the banks should undertake the exercise of netting off/setting off in terms of the Reserve Bank of India circulars.
In such circumstances, I find no merit in the present writ petition.
W.P. No.21956(W) of 2018 is dismissed. No order as to costs.
Urgent certified Website copy of this order, if applied, be supplied to the parties, upon compliance of all requisite formalities.
(Debangsu Basak, J.)