Madhya Pradesh High Court
M/S Sargodha Flour Mills vs The Union Of India & Ors. on 26 April, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Petition No.5022/1996
1. M/s. Sargodha Floor Mills,
a Partnership Firm, duly registered
under the Indian Partnership Act,
having its registered office at
365, Napier Town, Jabalpur (M.P.)
2. M/s. Sargodha Soap Works,
a Partnership Firm, duly registered
under the Indian Partnership Act,
having its registered office at
365, Napier Town, Jabalpur (M.P.)
3. M/s. Sargodha Industries,
a Partnership Firm, duly registered
under the Indian Partnership Act,
having its registered office at
365, Napier Town, Jabalpur (M.P.)
4. M/s. Sachdeva Silicate Industries,
a Partnership Firm, duly registered
under the Indian Partnership Act,
having its registered office at
365, Napier Town, Jabalpur (M.P.)
All the petitioner-firms are represented
through its Partner Shri Yash Kumar Sachdeva,
S/o. Shri B.N. Sachdeva, aged about 56 years,
R/o. 365, Napier Town, Jabalpur (M.P.)
..PETITIONERS
Versus
1. Union of India,
through Secretary, Ministry of Finance,
Department of Economic Affairs
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W.P.No.5022/1996
(Banking Division),
2nd Floor, Jeevan Deep Building,
Parliament Street, New Delhi.
2. Reserve Bank of India,
Through its Joint Chief Officer,
Rural Planning Credit Department,
13th Floor, Sonal Office,
Bombay.
3. State Bank of India,
through the Chairman cum
Managing Director, Head Office,
Bombay.
4. The General Manager (Operation)
State Bank of India,
Local Head Office,
Bhopal (M.P.)
5. Deputy General Manager (SI&SB)
Banking Department,
Zonal Office, State Bank of India,
Jabalpur (M.P.)
6. The Branch Manager,
State Bank of India, Civil Lines,
Jabalpur (M.P.)
...RESPONDENTS
Date of Order 26.04.2022
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for
reporting
Name of counsel for parties For Petitioners : Shri Satish Agrawal,
Advocate.
None for Respondent No.1.
For Respondent No.2: Shri Sanjay
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W.P.No.5022/1996
Agrawal, Senior Advocate with Shri
Anuj Agrawal, Advocate.
For Respondents No.3 to 6: Shri
Ashish Shroti, Advocate
Reserved on : 18.11.2021
Delivered on : 26.04.2022
(O R D E R)
(26.04.2022)
This writ petition has been filed by the petitioners under Article 226/227 of the Constitution of India claiming that they are the Partnership Firms and entitled to get the benefit of Scheme sponsored by the Government of India for providing subsidy to the riots affected borrowers suffered loss in 1984 riots broke out after the assassination of then Prime Minister Ms Indira Gandhi. As per the petitioners, the respondent-State Bank of India by not adhering to the instructions of Reserve Bank of India, is not granting the benefit of Scheme i.e. known as "Central Interest Subsidy Scheme for 1984 Riots Affected Borrowers". The Scheme came into effect w.e.f. 17.09.1990. Thereafter, the said Scheme has been revised w.e.f. 01.09.1993 and known as "Central Interest Subsidy Scheme (Revised) for November, 1984 Riot Affected Borrowers" (hereafter shall be referred to as "Scheme").
2. Aggrieved with the disavowal to grant the benefit of said Scheme, the petitioner-firms have filed this petition seeking the following reliefs:-
"(i) The Hon'ble Court be pleased to declare by issuing appropriate writ, order or direction that the action on the
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part of the State Bank of India authorities in not crediting the amount of interest subsidy and in not adjusting the write off amount in the bank accounts of the petitioners is per se arbitrary and illegal.
(ii) The Hon'ble Court be pleased to direct the respondents by issuing an appropriate writ of mandamus to credit the amount of interest subsidy and write of amount in the bank accounts of the petitioner firms.
(iii) The Hon'ble Court be further pleased to direct the respondents to give all the benefits of the interest subsidy scheme for 1994 riot affected borrowers to the petitioner firms.
(iv) The Hon'ble Court be pleased to direct the respondents to recover the balance amount in accordance with the Scheme of 1993 after adjusting the interest subsidy and the write off amount in the bank accounts of the petitioners in easy installments during the period of 5 years, from the date of crediting of amount in the bank accounts of the petitioners.
(v) The Hon'ble Court be pleased to declare by issuing an appropriate writ, order or direction that the respondents cannot initiate any proceedings including legal proceedings for recovery against the petitioner firms till the benefit for 1994 Riot Affected Borrowers (Revised) is extended to the petitioner firms.
(vi) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may also be passed in the facts and circumstances of the case.
(vii) Cost of the petition may also be awarded to the petitioners."
3. The respondents have contradicted the submissions of the petitioners by filing their reply and submitted that no direction as sought
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W.P.No.5022/1996for in the petition can be given inasmuch as the petitioner-firms are not falling within the span of 'borrowers' who are eligible to get the benefit of said Scheme. As per the respondents-Bank, until and unless it is substantiated by the petitioners that they are entitled to get the benefit of the Scheme, no such direction can be issued by this Court. According to them, the petition being frivolous and misconceived, deserves surefire dismissal.
4. The encapsulated facts are that the petitioner- firms are partnership firms, duly registered under the provisions of Indian Partnership Act and are being represented through its Partner namely Yash Kumar Sachdeva.
All four petitioner-firms received financial assistance from the State Bank of India, Civil Lines Branch, Jabalpur and have their separate accounts in the said branch.
According to the petitioners, in the year 1984, their firms sustained a severe setback because in the wake of assassination of then Prime Minister Indira Gandhi, large scale riots broke out in almost every part of the country and Jabalpur city was no exception. Several incidents of loot reported in the town. As per the petitioners, their firms could not remain untouched with the victimization of such riots and loots. It is averred in the petition that on 01.11.1984 rampant mob pushed through the gate into the factory premises of petitioner No.1 situated at Industrial Estate, Adhartal and looted the raw-material and finished products stocked in the godown of the factory. The plant and machinery were not only vandalized, but also incinerated.
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W.P.No.5022/1996A colossal devastation made one of the partners to report the incident to police station Adhartal on 13.11.1984. The matter was also reported to the Branch Manager of the State Bank of India on 08.11.1984 furnishing the details about damage caused to the industrial unit. Quite apart, the matter of suffering loss was also brought to the General Manager, District Industries Centre, Jabalpur. The local administration had also effectuated an enquiry to know about the unit of existing industries, which fell prey to riots. The General Manager has also issued a certificate on the basis of documents submitted by the petitioner-firms that the industry situated at Adhartal, Jabalpur was also afflicted by 1984 mayhem.
The Central Government also announced a special Scheme for the victim of 1984 affray in pursuance to the direction of the Supreme Court of India with a view to provide timely assistance to riot victims in the form of interest subsidy on loans borrowed by them. The scheme is available on record as Annexure-P/16. The petitioner-firms according to them made multifarious communications to the respondents for granting them the benefit of subsidy under the Scheme of interest, but despite leaving no stone unturned, the benefit was not proffered to them. As per the petitioners, albeit, the Reserve Bank of India has disbursed the amount of subsidy and write-off for the petitioner-firms, however, the State Bank of India is illegitimately keeping hold of said amount by not crediting it in the bank accounts of the petitioners nor even adjusting it against their outstanding dues. As per the petitioners, umpteen representations were made by them claiming the underlying benefit of the Scheme, but all ended in fiasco.
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W.P.No.5022/1996Therefore, this petition has been filed seeking direction for the respondents to extend the benefit of Scheme to the petitioners by depositing the amount in their accounts or adjusting it against their outstanding dues.
5. To reinforce the claim of the petitioners, the learned counsel for the petitioners has relied upon the decisions of the Supreme Court in re Harjit Singh and others v. Union of India and others AIR 1994 SC 1433 and Central Bank of India v. Ravindra and Others (2002) 1 SCC 367.
6. The respondents have filed their reply and refuted the claim of the petitioners. It is averred in the reply that the Scheme was sponsored by the Central Government for the borrowers who fell within the specific category classified in the Scheme itself and then only the benefit was to be provided to those borrowers. According to the respondents, the petitioner-firms do not come within the required category and as such the benefit was rightly not granted to them. The respondents have come with a stand that the petitioner-firms neither came under the definition of 'borrowers' to whom benefit was to be granted, nor the loans which were taken by the petitioner-firms fell within the definition of 'eligible loans' to which subsidy on interest was to be provided. The respondents have also taken a stand that as per the instructions issued by the Reserve Bank of India, there must be an audit certificate issued in favour of the borrower and then only benefit could be provided, but no such certificate has been issued by the auditor in favour of the petitioners. They have also claimed that the accounts of the petitioners were never rephased/rescheduled. The respondents
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W.P.No.5022/1996have also taken a stand that the petitioner-firms never intimated the bank about any loss suffered by them out of 1984 riots. The respondents have tried to establish that in view of the documents produced and available on record, the situation was otherwise and infact after 1984 riots, the petitioner-firms' business was flourished and earned more profit, their sale got augmented and as such they implored the bank for enhancing their credit facility limit so as to provide them additional financial assistance. The respondents have categorically opposed the submissions of the petitioners by demonstrating that the petitioner-firms did not suffer any loss because of 1984 riots as was evident from their account status, which was substantially escalating the profit after 1984 riots and precisely their business was skyrocketed. The petitioner-firms did not fulfill the required criteria laid down in the Scheme to grant benefit to the borrowers and therefore nothing illegal has been done by the respondents by not according the benefit to the petitioners under the Scheme as they were not eligible for the same. The petition, according to the respondents, being chimerical as based on figment of imagination, is liable to be dismissed.
7. I have heard the rival contentions of the learned counsel for the parties and perused the documents available on record.
8. For reaching to a firm conclusion whether the claim of petitioners, in the existing facts and circumstances, is justifiable or not, it is imperative to juxtapose the contentions of rival parties, which would not only ease to separate the wheat from the chaff, but would also aid in attaining an impartial shore of justice.
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W.P.No.5022/19969. The sole claim of the petitioners is that they are entitled to get the benefit of Scheme. According to them, with alacrity the Reserve Bank of India had disbursed the amount of subsidy, but it became the eyesore for respondent-bank, who dissuaded to provide the benefit of Scheme by not crediting the amount in petitioner-firms' accounts. Conversely, the petitioner-firms do not fall within the category of 'borrower' submitted by the respondents in repartee.
10. To unravel the complexities, I feel it paramount to traverse the integral provisions of the Scheme and to evade any aberration, I profitably quote the definition clause of 'borrower' as under;-
"2(a) "borrower" means an individual, proprietary concern, partnership firm, Hindu Undivided Family, or any other legal entity identified by the State Government/Union Territory Administration for providing relief/ rehabilitation assistance after the November 1984 riots from a bank and/or such borrowers of the banks who in the opinion of the concerned bank were affected by November 1984 riots."
To avoid losing the thread of consideration, I recapitulate the disavowal of respondents about the loan taken by the petitioner-firms did not come within the radius of 'eligible loans'. For ready reference, the definition of 'eligible loans' is quoted as under;-
"2(e) "eligible loans" means -
i)Fresh loans/credit limits granted as principal on 1 November 1984 or afterwards to borrowers for continuing/re-establishing production, business and occupation or for acquiring/repairing household effects, dwelling places.
ii) Short term loans/credit limits converted into term loans on 1 November 1984 or afterwards to borrowers as
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the short term loans/credit limits became irregular as a result of loss of stocks/assets due to riots.
Iii) Rephased/rescheduled term loans of the
borrowers."
Simultaneously, the argument of respondents that the benefit of Scheme was to be provided by the bank in deserving cases, is also required to be kept in mind. As such, the definition of 'deserving cases' is also significant to quote hereinunder.
"2(f) "deserving cases" means - eligible loans granted to a borrower who, in the opinion of the authority which has sanctioned the loan does not have, on the effective date, capacity to pay interest at the rates prescribed by instructions/Interest Rate Directives on Advances issued by the Reserve Bank of India in this regard."
Now, cogitation is to be proceeded by juxtaposing the above- quoted definitions, that, whether the petitioner-firms do fall within the purview of definition of 'borrower'; does the loan taken by them fall within the definition of 'eligible loans' and does the claim of the petitioner-firms come within the parameters of the definition of 'deserving cases'. If all these factors go affirmative, do the petitioner- firms become entitled to receive the benefit of Scheme, or not?
Albeit, the documents filed by the petitioners depict that some police reports were made by them about loss caused to their Unit in 1984 riots as unbridled mob barged into the factory premises and destroyed the property, but none of the letters available on record reveal that the petitioner-firms have ever informed the bank or clamoured for any help to their 1984 riot affected units. Indeed, one of the letters dated 30.11.1987 (Annexure-P/7) is available on record wherein the State
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W.P.No.5022/1996Bank of India, Jabalpur Branch has certified the fact that M/s. Sargodha Flour Mill, Jabalpur (petitioner No.1) was in imbroglio and therefore it was categorized as 'sick', however, it runs out of any reason about categorizing the unit as 'sick'. Paradoxically, the respondents have lifted the curtain by taking an infallible stand in their reply that the firm was categorized as 'sick' for their obvious inter se family dispute. There is also an annexation of letter (Annexure-R/5) to the reply which engenders peril in continuing extension of petitioner-firms, in the event they fail to bridge their personal differences. Another letter dated 13.06.1989 (Annexure-R/5A) bespeaks about the admission of the petitioner-firms and seeking time to resolve the dispute till 15.07.1989.
There are other letters on record, which show that the petitioner-firms informed bank seeking time to avoid any coercive action of bank and also show that the bank asked the partners of the petitioner-firms to resolve their dispute. Finally, a letter dated 14.09.1990 is on record, which contains information given by the petitioner-firms to the bank that the dispute between the partners has been amicably settled. This letter does indicate that a registered notice was sent to the petitioner-firms by the bank for terminating their cash credit limit and further indicates that a request was made for not calling off cash credit limit in view of the settlement took place as the dispute got resolved among the partners and they also requested for renewal of cash credit limit. In the absence of any rebuttal to the aforesaid fact, it becomes crystal clear that petitioner No.1 firm has been declared 'sick' not because of 1984 riots, but because of their inter se discord.
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W.P.No.5022/199611. Indubitably, the conceptuality behind forming the Scheme was to extend its underlying benefits to the borrowers, who were eligible under the Scheme. The above-quoted definition of 'borrower' stipulates the partnership firm for providing relief/rehabilitation assistance after the November, 1984 riots from a bank and such borrowers of the bank, who in the opinion of concerned bank were affected by the November 1984 riots.
12. After getting acquainted with the aforesaid definition, now it is to be determined whether in the opinion of concerned bank, the petitioner-firms fall under the definition of 'borrower' or not as defined in Clause 2(a) of the Scheme. In that pursuit, a letter (Annexure-R/9) was written by the State Bank of India seeking clarification from the Zonal Office as to whether the petitioner-firms were entitled to get the benefit of Scheme. In turn, the Zonal Office sought further clarification from the Local Head Office, Bhopal vide letter dated 06.12.1994 (Annexure-
R/9A) apprising therein that some compensation was awarded to the firms due to loss suffered by them in 1984 riots and also apprised that the petitioner-firms' account was continued w.e.f. 13.11.1982, but after 1984 riots, no further loan was sanctioned and therefore in the list of borrowers, the name of petitioner-firms did not find place. The said letter broaches about a Circular dated 18.10.1993 in which 'eligible loans' have been defined, according to which, the loan of the petitioner-firms does not find place because after the November, 1984, no loan was sanctioned in their favour. The respondents have expounded the definition of 'borrower' which elucidates the 'borrowers' who had taken any financial assistance after the November, 1984 riots from a bank.
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W.P.No.5022/1996Obviously, in the case at hand, the petitioner-firms failed to demonstrate as to what financial assistance had been taken by them after 1984 riots. Likewise, the definition of 'eligible loans' defined in Clause 2(e) stipulates that fresh loans/credit limits granted as principal on 01.11.1984 or otherwise to borrower for continuing or rescheduling production, business or occupation. However, here the petitioner-firms since did not fulfill the criteria, nor did their loan got rephased/ rescheduled, therefore, their loan does not fall within the definition of 'eligible loans'. Quite apart, the petitioner-firms' case should come under the definition of 'deserving case' as defined in Clause 2(f) of the Scheme and the 'deserving case' means "eligible loan granted to borrower". Although as per the respondents, neither the petitioner-firms are borrowers nor their loans are eligible loans and also their case does not fall within the category of deserving cases. On careful consideration of the provisions of Scheme wherein 'eligible loans' are defined in Clause 2(e)(i)(ii) & (iii), I firmly find that the loan of the petitioner-firms does not fall under the said categories and accordingly their loan is declared to be 'no eligible loan'.
13. Although the petitioners have tried to justify that the amount of subsidy and write-off released by the Reserve Bank of India so as to credit it in the account of petitioner-firms, but despite that, said amount has not been credited in their account. To substantiate this aspect, the petitioners filed a memo dated 09.01.1995 (Annexure-P/14) with a listicle chart of firms affected in 1984 riots, wherein, the petitioner- firms were identified and amount of subsidy to the tune of Rs.33,20,933/- and write-off claim amounting to Rs.26,67,990/- have been shown and that
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W.P.No.5022/1996claim was further forwarded vide letter dated 27.03.1995 (Annexure- P/15) to Bhopal Circle in which total amount of Rs.56,59,771.09 was claimed by Bhopal Circle from the Reserve Bank of India and according to the petitioners, this amount has been received by the respondent- bank from RBI, but wittingly not disbursed in the account of the petitioners and as such they made representation on 14.06.1995 (Annexure-P/16). That apart, the petitioner-firms also sent a letter to the Ministry of Finance informing them despite releasing the amount by RBI, the State Bank of India, Jabalpur Branch is not accepting that the said amount has been reimbursed in their favour and they also sent reminder to that effect. However, in reprisal, the respondents have clarified the situation in their reply by stating that RBI has not settled any individual claim and filed a letter of RBI (Annexure-R/13) in which the Local Head Office was asked to submit the present position relating to the petitioner-firms about their Court cases and also clarified that till then they had not received any audit certificate in respect of the claim of the petitioner-firms. It is also referred in the letter that the Local Head Office, Bhopal has opined that when the petitioner-firms were not affected in 1984 riots then it was asked as to why they had lodged the claim of interest subsidy of the petitioner-firms. By another letter dated 29.03.1996 (Annexure-R/14) the RBI further emphasized to provide the requisite audit certificate and the payment of amount so released shall be subject to submission of necessary audit certificate. According to the respondents, no audit certificate was produced by the petitioner-firms. It clarifies from letter dated 17.08.1996 (Annexure-P/15A) in which with regard to Jabalpur town, no claim was settled under the Scheme as no
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audit certificate was submitted. Therefore, the Central Office, Mumbai withheld the amount of subsidy for Jabalpur town as no audit certificate had been submitted. As per the respondents, in audit of financial year ending on 31.03.1996, the statutory Auditors noticed the advances to petitioners group suggested to pursue the civil suits effectively, but did not grant requisite certificate required under the Scheme. Annexure- R/16 is the extract of the Auditor's report indicating that the required certificate as per the Scheme was not issued. It is also stated by the respondents that document (Annexure-R/17) written by the petitioner- firms to the State Bank of India, Branch Jabalpur is concocted because its dispatch number is same as of letter contained in Annexure-P/3 sent by the petitioner-firms to the bank by mentioning same reference number. The principal contention of the respondents that the petitioner- firms is otherwise not entitled to get the benefit of Scheme as they were not 1984 riots affected borrowers nor suffered any loss in their business, but on the contrary even after riots of 1984, there was exponential progress in their business and they were requesting to increase their credit limits. A letter dated 05.09.1986 (Annexure-R/1-A) written by the petitioner-firms to the Branch Manager, SBI, Jabalpur in which the petitioner-firms were asking additional bill facility and further asking that the bill limit may be permanently enhanced as showing progress in their business, but did not specify in the said letter that because of riots of 1984 their business was affected or they were suffering any loss in their business. Likewise, in letter dated 23.08.1986 (Annexure-R/1-C) again written by the petitioner-firms to SBI Jabalpur mentioning therein that the demand of their product was continually
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increasing in the market and they required more working capital and as such they were seeking additional bill limit of Rs.6 lac, but again in the said letter, there was no reference of any loss suffered by the petitioner- firms due to 1984 riots. It is also clear from the letters that they were demanding additional adhoc limit or enhancing of limit but were never granted any loan for rescheduling the production nor the loans were rescheduled and as such their case does not fall within the definition of 'eligible loans' as defined in the Scheme.
14. Considering the overall circumstances and perusal of the record containing documents and the discussion made hereinabove, it is clear that the basis object of the Scheme was to provide subsidy on interest rate to the borrowers who had suffered loss in their business and affected by 1984 riots. But here in this case, the petitioner-firms failed to substantiate that they have suffered any loss in their business due to 1984 riots, but on the contrary the documents available on record indicate that after 1984 riots, there was acceleration in the business of the petitioner-firms and as such they demanded additional limit so as to give strength to their business and to maintain their progress as they were noticing in their business. The very purpose of Scheme is frustrated if subsidy in the rate of interest on a revised or reassessed loan is not granted, but here in this case, the case of the petitioner-firms was not falling within the ambit of scope of Scheme so as to provide subsidy to the borrowers in the rate of interest of rescheduled loan. The petitioner-firms' business was not declared to be affected from riots of 1984 by any of the competent authorities. The bank or its auditor in terms of paragraph 6 of the Scheme has never issued any auditor
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W.P.No.5022/1996certificate to RBI so as to assess the eligible loan of the petitioner-firms to provide them benefit of the Scheme. As per the Scheme, it was mandatory requirement to submit the auditor certificate then only amount of subsidy can be released in favour of 1984 riots affected borrowers, otherwise amount if at all as claimed by the petitioner-firms has been released by the RBI to the concerning bank, will be returned to the RBI and it does not mean that the said amount will be paid and deposited in the account of borrowers for whom proposal was forwarded for granting them subsidy under the Scheme. It can only be done, when the requirement of Scheme is fulfilled, but as has been discussed hereinabove, the petitioner-firms neither come under the definition of 'borrower' as defined in the Scheme, nor their loan is considered to be 'eligible loan' for the reason that their loan was never rephased or rescheduled after effective date of Scheme. The ultimate authority is the bank, who is competent to determine the 'eligible loan' and 'deserving cases' to which the relief of subsidy on interest shall be provided. The petitioner-firms' case was never considered to be deserving case by the SBI and therefore claiming benefit under the Scheme by the petitioner-firms is nothing but a misconceived attempt.
15. Over and above, I may not miss to delve on the decisions relied upon by the learned counsel for the petitioner-firms. Thus, on going through those decisions, I find that they are relatable to the fact that RBI's Circular has statutory force and that has to be followed. In the fact-situation of case at hand, much has been discussed hereinabove that the petitioner-firms do not fall within the ambit of definition of 'borrowers' for whom the Scheme was introduced. Precisely, the
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W.P.No.5022/1996question of not adhering to the Circular of RBI does not arise here inasmuch as the present is the case based purely on factual aspect for considering 'whether the petitioner-firms were entitled to get the benefit under the Scheme or not'.
16. In view of the above discourse, I find no substance in the petition. It is accordingly dismissed.
17. In the facts and circumstances of the case, the parties shall bear their own costs.
(Sanjay Dwivedi) Judge SUDESH Digitally signed by SUDESH KUMAR SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, KUMAR 2.5.4.20=1d5e479f08e68eda8f9271dbbe2c4bc391626 4aec736f7c5f5885257f5eeaeb7, sudesh pseudonym=70EE703D36E97ABB20BA3C79C921929E 09400A16, SHUKLA serialNumber=7D462390C18350EF7C40811B12AB45D 82AF1259878762BAC356DCFA877F02654, cn=SUDESH KUMAR SHUKLA Date: 2022.04.27 11:16:21 +05'30'