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2009 DIGILAW 1234 (KER)

Kuttiyanickal Rubbers Pvt. Ltd. v. Chief Manager, Federal Bank Ltd.

2009-12-22

C.K.ABDUL REHIM

body2009
JUDGMENT : 1. These writ petitions are filed seeking direction for consideration of the petitioners representations, Ext. P11 in WP (C) No:35887/09 and Ext.P9 in WP(C) No:35932/09, In both these cases the petitioners are establishments which availed loans from the respondent Bank and proceedings are pending under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESl Act), which are initiated consequent to default committed in repayment. It is evident that in both these cases the respondents have already issued notices under S. 13(2) of the SARFAESl Act. On a perusal of the representations mentioned above, it is revealed that the petitioners are seeking re-structuring of the loans/advances in view of guidelines issued by the Reserve Bank of India. 2. Heard, counsel for the petitioners and standing counsel appearing for the respondents. Learned standing counsel opposed the writ petitions on the ground that the respondent Bank is not amenable to jurisdiction under Article 226 in view of decision of the Hon’ble Supreme Court in Federal Bank Ltd. v. Sagar Thomas ( 2003 (3) KLT 876 (SC)). It is further contended that the guidelines issued by the Reserve Bank of India, upon which reliance is placed by the petitioners, is not having any statutory force and those are only in the nature of guidelines. The respondents relied on a decision of the Hon’ble Supreme Court in Oriental Bank of Commerce v. Sunder Laid Jain ( (2008) 2 SCC 280 ) in support of such contention. It is also contended that on considering the request for re-structuring the respondent Bank had already found that it is not feasible to have any re-scheduling of the loan accounts as demanded by the petitioners. Even a direction for consideration of the representation was opposed on the ground that there is no statutory right vested upon the petitioners to claim any such re-structuring, as requested. 3. Even a direction for consideration of the representation was opposed on the ground that there is no statutory right vested upon the petitioners to claim any such re-structuring, as requested. 3. Learned counsel appearing for the petitioners on the other hand pointed out that the Hon’ble Supreme Court in Sardar Associates v. Punjab and Sind Bank ( (2009) 8 SCC 257 ), held that (Reserve Bank of India is a statutory authority which exercises supervisory power in the matter of functioning of all the Scheduled Banks, and it is governed by the provisions of the Reserve Bank of India Act 1934, Referring to S. 21 of the Banking Regulation Act it is held that the RBI is entitled to formulate policies which the Banking Companies are bound to follow, and S. 21 mandates that every Banking Company shall be bound to comply with the directions given in terms thereof. The standing counsel for respondents on the other hand contended that the decision referred above is dealing only with matters pertaining to public sector Banks and the dictum contained therein is not applicable to the respondent Bank, which proposition was also opposed by the petitioners, 4. Considering the factual situations, I am not proposing to enter upon any findings regarding merits of the rival contentions. None of the action initiated under the provisions of the SARFAESI Act is under challenge before this court. The petitioners could not raise any such challenge also, in view of the provisions contained in S. 13(2) and also in view of the statutory remedy available under S. 17(1) of the SARFAESI Act, The limited direction which is sought for in these cases is for a consideration of the requests made for re-structuring of the loans. The contention as to whether the petitioners can claim benefit under the guidelines issued by RBI is seriously disputed by the respondents. Subject to such dispute, I am of the opinion that no prejudice will be caused to the respondent Baqis in considering such requests and in intimating the petitioner about result of such consideration, The Bank can intimate the petitioner about reasons, if they propose to reject such requests. It is also left to the respondents to consider feasibility regarding re-structuring sought for by the petitioners, and to take a decision thereof considering its merits. It is also left to the respondents to consider feasibility regarding re-structuring sought for by the petitioners, and to take a decision thereof considering its merits. Based on the principles of natural justice, I am of the opinion that the petitioners are entitled to know about fate of their requests, eventhough they may not be entitled to claim consideration of the requests, as a matter of any statutory right 5. Under the above mentioned circumstances the writ petitions are disposed of directing the respondents to take appropriate decision on the representations, Ext. P11 in WP(C). No.35887/09 and Ext.P9 in WP(C).No.35932/09 respectively, and to communicate such decisions to the petitioners, before proceeding, with further steps under the provisions of the SARFAESI Act.