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2000 DIGILAW 609 (AP)

Sri Gayathri Finance Corporation, Rayavaram etc v. Union of India

2000-08-14

B.SUBHASHAN REDDY, D.S.R.VERMA

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B. SUBHASHAN REDDY, J. ( 1 ) AT issue, in this batch of writ petitions is the constitutional validity of the amended S. 45-S of the Reserve Bank of India Act, 1934 (hereinafter referred to as the Act ) incorporated by S. 9 of the Reserve Bank of India (Amendment) Act, 1997. ( 2 ) THE petitioners in all the cases deal in the business relating to finance. They are mostly the firms and are in some cases individuals. Petitioner No. 1 in W. P. No. 17081 of 1997 is Nellore District Auto Financiers Welfare Association, while the rest of the petitioners are its members. In W. P. No. 29426 of 1997 the Krishna District Auto Financiers Association, Vijayawada, represented by its President is the petitioner. It leads on behalf of all its members, who deal in the business of finance, which includes hire-purchase etc. ( 3 ) SECTION 45-S of the R. B. I. Act was enacted to regulate the deposits made by the persons either an individual or a firm or an unincorporated association of individuals. Maximum ceiling was imposed on the above persons, be it natural or artificial. It is apt to extract sub-section (1) of S. 45-S as it stood before 1997 amending Act. "45-S. Deposits not to be accepted in certain cases- (1) No person, being an individual or a firm or an unincorporated association of individuals shall, at any time, have deposits from more than the number of depositors specified against each, in the table below :-TABLE (i) Individual : Not more than twenty-five depositors, excluding depositors who are relatives of the individual. (ii) Firm : Not more than twenty-five depositors per partner and not more than two hundred and fifty depositors in all, excluding, in either case, depositors who are relatives of any of the partners. (iii) Unincorporated association of individuals Not more than twenty-five depositors per individual and not more than two hundred and fifty depositors in all, excluding, in either case, depositors who are relatives of any of the individuals constituting the association. This provision stood the test of legal scrutiny. (iii) Unincorporated association of individuals Not more than twenty-five depositors per individual and not more than two hundred and fifty depositors in all, excluding, in either case, depositors who are relatives of any of the individuals constituting the association. This provision stood the test of legal scrutiny. But the experience has shown that the provision of limiting the number of depositors had no desired effect as there was no limit on the quantum of the amounts deposited and the maximum number prescribed as against the above natural or artificial persons has been made redundant by creating various sister concerns. Experience has also shown that several gullible depositors were allured by high interest rates and gifts offered by the greedy concerns and that there has been a gross abuse of the said provision resulting in shattering the lives and aspirations of several depositors. Then the Parliament has thought of amending the said provision making it compulsory for any concern accepting the deposits from public, to incorporate itself either under the Companies Act or a statute or a co-operative society and then to obtain licences by the said incorporated bodies from the Reserve Bank of India. After 1997 Amendment the provision S. 45-S of R. B. I. Act reads as hereunder :"45-S. Deposits not to be accepted in certain cases : (1) No person, being an individual or a firm or an unincorporated association of individuals shall, accept any deposit- (i) if his or its business wholly or partly includes any of the activities specified in Cl. (c) of S. 45-I; or (ii) if his or its principal business is that of receiving of deposits under any scheme or arrangement or in any other manner, or lending in any manner :provided that nothing contained in this sub-section shall apply to the receipt of money by an individual by way of loan from any of his relatives or to the receipt of money by a firm by way of loan from the relative or relatives of any of the partners. (2) Where any person referred to in sub-section (1) holds any deposit on the 1st day of April, 1997 which is not in accordance with sub-section (1), such deposit shall be repaid by that person immediately after such deposit becomes due for repayment or within three years from the date of such commencement, whichever is earlier :provided that if the bank is satisfied on an application made by any person to the bank that such person is unable to pay a part of the deposits for reasons beyond his control or such repayment shall cause extreme hardship to him, it may, by an order in writing, extend such period by a period not exceeding one year subject to such conditions as may be specified in the order. (3) On and from the 1st day of April, 1997, no person referred to in sub-section (1) shall issue or cause to be issued any advertisement in any form for soliciting deposit. Explanation : For the purposes of this section, a person shall be deemed to be a relative of another if, and only if- (i) they are members of a Hindu undivided family; or (ii) they are husband and wife; or (iii) the one is related to the other in the manner indicated in the list of relatives below. List of relatives1. Father, 2. Mother (including step-mother), 3. Son (including step-son), 4. Son s wife, 5. Daughter (including step-daughter), 6. Father s father, 7. Father s mother, 8. Mother s mother, 9. Mother s father, 10. Son s son, 11. Son s son s wife, 12. Son s daughter, 13. Son s daughter s husband, 14. Daughter s husband, 15. Daughter s son, 16. Daughter s son s wife, 17. Daughter s daughter, 18. Daughter s daughter s husband, 19. Brother (including step-brother), 20. Brother s wife, 21. Sister (including step-sister), 22. Sister s husband. ( 4 ) THE above amended provision is assailed on the ground of violation of fundamental rights enshrined in Arts. 14, 19 and 21 of Indian Constitution and in one case even the violation of Art. 300-A is alleged. Article 300-A of the Constitution has got no application. Even Art. 21 is not attracted. Coming to Arts. Sister s husband. ( 4 ) THE above amended provision is assailed on the ground of violation of fundamental rights enshrined in Arts. 14, 19 and 21 of Indian Constitution and in one case even the violation of Art. 300-A is alleged. Article 300-A of the Constitution has got no application. Even Art. 21 is not attracted. Coming to Arts. 14 and 19 (1) (g) of Constitution if the restrictions imposed are reasonable, then Art. 14 does not come into play and then solely the plea of the petitioners has to be considered in the context of Art. 19 (1) (g) and as to whether the restrictions imposed are reasonable or not. In fact, this issue is no moreres integra the reason that the Supreme Court has very comprehensively dealt with this in Bhavesh D. Parish v. Union of India, 2000 AIR SCW 1965 : ( AIR 2000 SC 2047 ) and authoritatively held that the impugned provision has been validly enacted and that is in public interest and it is only a regulation in the business of accepting the deposits from the public and that Parliament was right in imposing that only incorporated bodies should be permitted to accept deposits so as to regulate the said business effectively and the same is in larger public interest. It is apt to extract the concluding portion in the above judgment. "examining the validity of the amended S. 45-S of the Act by applying the principles enunciated over the years by this Court, and as encapsuled in the passage quoted in the earlier part of this judgment from this Court s decision in Papnasan Labour Unions case, 1995 AIR SCW 1593 : AIR 1995 SC 2200 (supra) we find that the said section is in no way illegal or bad in law. Section 45-S no doubt prohibits the conduct of banking business by an unincorporated non-banking entity like a shroff, but this prohibition has come about, inter alia, in the interest of unwary depositors and borrowers (from shroffs) and with a view to prevent them from committing financial suicide. Section 45-S no doubt prohibits the conduct of banking business by an unincorporated non-banking entity like a shroff, but this prohibition has come about, inter alia, in the interest of unwary depositors and borrowers (from shroffs) and with a view to prevent them from committing financial suicide. Earlier attempts to adequately regulate the non-banking institutions not having achieved the desired result of protecting large number of depositors from unincorporated financial institutions which would suddenly mushroom overnight and then vanish without a trace, but taking with it depositors money, left the RBI with no alternative but to prohibit such unincorporated entities from conducting financial business which was more than akin to banking. The restrictions imposed against acceptance of deposits by unincorporated bodies carrying on financial activity or the business of deposit acceptance or lending in any manner are in the larger interest of general public vis-a-vis few persons accepting such deposits. The need for such restrictions had become acute and imperative in view of large scale mismanagement of public funds by such unincorporated bodies. Accordingly, we hold that the provisions of S. 45-S of the Act are valid. " ( 5 ) IN view of the above, these writ petitions fail and are accordingly dismissed; but without any order as to costs. Petitions dismissed.