Allahabad High Court
Meenal Agarwal vs State Of U.P. And 5 Others on 16 August, 2021
Bench: Naheed Ara Moonis, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 Case :- WRIT - C No. - 15194 of 2021 Petitioner :- Meenal Agarwal Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Gaurav Singh Counsel for Respondent :- C.S.C.,Ramanand Gupta Hon'ble Naheed Ara Moonis,J.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Gaurav Singh, learned counsel for the petitioner, Sri Ramanand Gupta, learned counsel for the respondent-bank and learned Standing Counsel for the State-respondents.
2. Present petitioner seeks quashing of the communications dated 08.01.2021 and 25.02.2021, both issued by the Chief Secretary/Chief Executive Officer, Bijnor Urban Cooperative Bank Ltd. Also, under challenge is the resolution of the Board of the aforesaid bank dated 28.12.2020.
3. In short, it is undisputed between the parties that the petitioner had obtained credit facility from the respondent-bank of about Rs.1 crore. It is also undisputed that on 01.09.2017, the respondent-bank issued a registered notice to the petitioner wherein, by means of paragraph no.8, it was clearly communicated to the petitioner that her loan account no.001600000376, with the respondent-bank had been categorized Non Performing Asset (in short 'NPA').
4. In response to the writ petition, a counter affidavit has been filed by the bank, today. By means of paragraph no.5 thereof, issuance of the notice dated 01.09.2017 has been admitted by the respondent-bank. Further, it has been clearly stated, the respondent-bank has initiated proceeding against the petitioner under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act'). Those proceedings are stated to be pending. Nowhere in the counter affidavit or even otherwise by way of submission, it has been stated by the respondent-bank that the aforesaid loan account of the petitioner stood regularized at any later stage, after being categorized NPA w.e.f. 29.12.2014.
5. On the other hand, the respondent-bank would contend, after the loan amount was categorized NPA, the petitioner deposited Rs.96,04,000/- against the default. Further, it has been stated that there are two other loan accounts of the petitioner that are being regularly serviced by the petitioner. Therefore, relying on Clause 6(3)(d) of the circular letter dated 18.12.2014, it has been submitted that the petitioner is not entitled to the benefit of One Time Settlement (in short 'OTS') and there is every hope that the bank would be able to recover the defaulted amount. The petitioner is therefore ineligible to the benefit of OTS. Accordingly, the Board of the Bank resolved to reject the OTS application filed by the petitioner. Accordingly the Secretary of the Bank has communicated the same to the petitioner.
6. Having heard learned counsel for the parties and having perused the record, the OTS scheme has been offered by the respondent-bank. It is not disputed that the petitioner falls within the 'coverage' as it fulfills the basic eligibility to the benefit of that scheme, as provided under Clause 2 of the aforesaid circular. The restrictive clause being relied upon by learned counsel for the respondents appears in Clause 6. It pertains to procedure to be adopted by the Settlement Advisory Committee (in short 'SAC'). It reads as under:
"6. समझौता समिति (सेटिलमेन्ट एडवाईजरी कमेटी), जो प्राप्त प्रकरणों को परीक्षण कर पात्र प्रकरणों को सक्षम अथारिटी के समक्ष निणर्याथ प्रस्तुत करेगी, निम्न प्रकार होगीः-
1. बैंक के सभापति - अध्यक्ष
2. सचिव/कार्यकारी अधिकारी सम्बन्धित - सदस्य/संयोजक
3. निदेशक मण्डल द्वारा नामित एक निदेशक - सदस्य व एक अन्य व्यक्ति अथवा बैंक अधिकारी जो बैंकिग/प्रबन्ध या विधि के क्षेत्र में पर्याप्त अनुभव रखता हो।
गण पूर्ति हेतु तीन सदस्य होंगे।
ऋणी सदस्य से प्राप्त प्रार्थना-पत्र का परीक्षण सेटिलमेन्ट एडवाईजरी कमेटी (एस.ए.सी.) करेगी तथा अपनी स्पष्ट संस्तुति करके संचालक मण्डल के समक्ष प्रस्तुत करेगी। संस्तुति करते समय निम्न बिन्दुओं पर विचार करेगी- अ) राईट ऑफ की संस्तुति करने वाले अधिकारी ने स्वयं व्यक्तिगत रूप से ऋण स्वीकृत न किया हो। ब) ऋण की स्वीकृति रिज़र्व बैंक द्वारा निर्धारित शर्तों के अनुसार दी गयी हो।
स) ऋण वितरण के पश्चात पर्याप्त देख-रेख की गयी हो।
द) ऋण की वसूली में यथा सम्भव प्रयास किया गया हो और वसूली की आशंका क्षीण हो गयी हो।
संचालक मण्डल सम्यक विचार करके एक मुश्त भुगतान की स्वीकृति देगी। संचालक मण्डल द्वारा समिति (एस.ए.सी.) के निर्णय की प्रत्येक माह समीक्षा की जायेगी एवं निर्धारित समय सीमा के अन्तर्गत समझौता कार्यवाही पूर्ण करायी जायेगी।"
7. Clearly, if there were material on record and a satisfaction is found to have been reached by the SAC based on the appraisal of that material, that, either no effort had been made by the bank to recover the amount from the petitioner or that the hope to recover the same survives, the SAC may upon over all consideration of other factors as specified in Clause 2 of the scheme turn down an application for OTS.
8. However, the primary eligibility of an OTS application that may have arisen under Clause 2 of the circular cannot be overridden or ignored by the SAC relying on the procedure contained in Clause 6 of the circular. That is for the internal procedure of the SAC. Thus, while considering an OTS application, the SAC is required to observe certain rules of practice being : (a) in case of write off, the person approving the write off should not be himself a debtor; (b) the loan itself should have been granted in accordance with the terms and conditions prescribed by the Reserve Bank of India; (c) the due monitoring may have been done over the loan after its disbursement and; (d) due efforts may have been made to recover the loan but there does not exist any realistic hope of recovery.
9. The aforesaid conditions contained in paragraph no.6 do not create an eligibility under the Scheme, but are conditions to be observed by the SAC while dealing such application/s. They prescribe the rule of due diligence to be complied by the SAC so as to prevent fraudulent or wrongful settlement being made in favour of an unscrupulous debtor. The basic eligibility under the scheme arises under Clause 2 Sub-Clause (1) to (8). It reads as under:
"1- जानबूझ कर ऋण अदायगी में चूककर्ता (जिस व्यक्ति या संस्था ने ऋण लेने के बाद एक बार/एक किश्त का भी भुगतान न किया हो, उन्हें जानबूझ कर ऋण अदा न करने वाले बकायेदार की श्रेणी में माना जायेगा)। 2- धोखाधड़ी एवं जालसाजी के ऋण मामले।
3- वेतनभोगी कर्मचारियों द्वारा लिया गया ऋण।
4- ऐसा कालातीत ऋण जिसका उपभोग बैंक सचिव/संचालक द्वारा किया गया हो अथवा जिसकी गारण्टी बैंक के किसी संचालक या संचालक के नजदीकी रिश्तेदार या कोई संस्था जिसमें वर्तमान या भूतपूर्व संचालक का हित निहित हो द्वारा ली गयी हो। 5- ऐसा कालातीत ऋण जिसकी गारण्टी शासन द्वारा दी गयी हो।
6- शासकीय विभागों/शासन द्वारा अनुसंशोधित संस्थाओं द्वारा लिये गये ऋण।
समझौता योग्य एन०पी०ए०/बकाया ऋण की सीमा-
किसी संस्था/व्यक्तिगत सदस्य के समस्त प्रकार के ऋण खातों को मिलाकर लगे हुए ऋण ही धनराशि, जिसके लिए एकमुश्त समझौता किया जा सकता है कि ऋण की सीमा निम्नवत होगी -
7. व्यक्तिगत ऋणी - 10.00 लाख रू०
8. संस्थागत ऋणी - 50.00 लाख रू० उक्त सीमा से अधिक के मामलों में एक मुश्त समझौता हेतु संबंधित बैंक के संचालक मण्डल द्वारा पृथक से योजना बनाकर निबन्धक सहकारी समितियाँ उ०प्र० से पूर्वानुमोदन प्राप्त करना होगा।"
Undisputedly, the petitioner's case does not fall in any of the exclusions provided under Clause 2.
10. It then emerges that the petitioner being eligible, it was for the SAC to consider the matter in light of Clause 6 of the circular. It is undisputed to the bank that the account of the petitioner was rendered NPA on 29.12.2014 and that it led to initiation of proceedings under the SARFAESI Act that have remained pending for seven years. Prima facie, there is material that despite making efforts, the bank has been unable to recover its dues from the petitioner. Therefore, the first part of sub-clause D(3) of Clause 6 of the circular is satisfied in favour of the petitioner.
11. Insofar as the second part of the said sub-clause is concerned, though, pleading has been made in the counter affidavit of hope of recovery being possible, we do not find any material on the basis of such hope is stated to have arisen. Thus, by merely stating that the petitioner has two other loan accounts that are being regularly serviced, the respondents cannot find an excuse to reject the present OTS application. Neither the basic details of those loan accounts has been given nor there is any other detail disclosed with respect thereto nor any factor has been considered in either of the communication dated 08.01.2021 and 25.02.2021 as may lead this Court to believe in the truthfulness or the correctness of that fact statement made in the counter affidavit.
12. In any case, as laid down by the Supreme Court in Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851, an order passed by an authority once challenged in writ proceeding must be tested on its own strength but not on the strength of the counter affidavit or the submissions advanced at the stage of hearing.
13. In view of the above, we find that there is no material on the basis of which respondents have acted to reject the petitioner's OTS application. The material being non-existent, the observations or finding recorded in the impugned communication is wholly perverse. While, we may have been persuaded to remand the matter to the respondent-authority, in the instant case, we find that earlier the respondent-bank had passed the order dated 08.01.2021. At that stage, though the petitioner was not aware of that order, she filed Writ C No.18221 of 2020. It was disposed of on 25.01.2021 on the following terms:
"Considering the facts and circumstances of the case, but without entering into the merits of the case, the respondent no.4 bank is directed to consider the grievance of the petitioner and to decide the representation of the petitioner dated 22.7.2019 annexed as Annexure-9 to the writ petition in accordance with law after affording due opportunity of hearing to the petitioner as expeditiously as possible, preferably within a period of four weeks from the date of presentation of copy of this order. The writ petition is accordingly disposed of."
14. Thereafter the respondents have passed the fresh order dated 25.02.2021. That order also does not appear to have been passed strictly in accordance with direction issued, inasmuch as, no hearing appears to have taken place. There is no consideration and there is no material found as may suggest any requirement for fresh hearing now. The fact that the loan account was rendered NPA in December, 2014 and the further fact that almost seven years have passed since then and the loan account continues to stand in that status, itself is evidence that despite recoveries being attempted, the loan amount could not be recovered. Therefore, in that fact coupled with the basic eligibility of the petitioner under the settlement scheme implemented by the bank, no useful purpose would be served in remitting the matter for fresh consideration.
15. Accordingly, we allow the writ petition with a positive direction to the respondent no.5 to consider the petitioner's application for OTS within a period of one month and to communicate the petitioner the exact amount, if any, that is payable by her for finalization of that settlement. Upon communication of that amount (in writing), the petitioner shall deposit the same within a further period of fifteen days therefrom.
16. Subject to such compliance being made, the respondent no.5 would issue the necessary certificate within a period of two weeks therefrom.
17. Accordingly, the present petition is allowed. The orders dated 08.01.2021 and 25.02.2021 are hereby set aside.
Order Date :- 16.8.2021 S.Chaurasia