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2009 DIGILAW 65 (GUJ)

Chem Marine Products Limited v. Bank of Baroda

2009-02-05

RAVI R.TRIPATHI

body2009
JUDGMENT : Ravi R. Tripathi, J. The present petition is filed by the petitioner - Cham Ice and Cold Storage, a partnership firm incorporated on or around March 1976, engaged in the business of processing and export of frozen marine products. 1.1 The petitioner being aggrieved by communication dated 16.10.2003 (Annexure-P) has approached this Court by filing the present petition. The petitioner has prayed that:- "9. A. to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and quash and decision and/or action of the respondent-bank, contained in the communication dated 16.10.2003 (Annexure-P) and direct the respondent-bank to decide and accept the rehabilitation proposal submitted to the respondent-bank in pursuance of the meeting dated 27-01-2003." 1.2 The petition was filed on 20.12.2003. It came up for admission hearing on 22.12.2003. The Court issued notice returnable on 15.01.2004. Later on, by order dated 14.10.2004, the Court issued Rule returnable in the first week of December 2004. The Court also stayed the order of appointment of receiver passed by the Debts Recovery Tribunal on condition that the petitioner shall cooperate with the respondent bank in pursuance of the letter dated 12.10.2004 and the respondent bank shall consider the case of the petitioner as per the RBI guidelines dated 07.01.2003. 2. Mr. K.M. Parkih, learned advocate for the respondent bank vehemently submitted that the bank had advanced the financial assistance long back and it has not come back. Not only that, even as per TEV Report (Technical Evaluation Viability), the petitioner unit is not found to be viable. A copy of the report is also produced at Annexure-R1 along with an affidavit dated 01.12.2004. 3. Mr. Vakil, learned advocate for the petitioner requested that if the observation is made to the effect that the bank concerned may consider the case of the petitioner in light of the prevailing policy of the RBI, either on the pending proposal of the petitioner unit or else the petitioner unit be permitted to make a fresh proposal and the same may be considered, that will serve the ends of justice. 4. 4. The learned advocate for the petitioner submitted that it is not in dispute that at the relevant time, the petitioner unit was doing a good business and was paying the dues of the bank, but it is only on account of the circumstances beyond the control of anybody that the petitioner unit has crept into troubles, but its bonafides are clear and even today, the unit is trying to survive itself by undertaking job work. He requested that therefore matter be considered sympathetically and that will be even in the interest of the bank, as there will be a remote hope of the petitioner unit paying its dues, not in full then at least in part. 5. As against that, the learned advocate for the respondent bank submitted that the bank is not in receipt of any payment from the petitioner unit and therefore, the submission of the learned advocate for the petitioner does not warrant any consideration at the hands of this Court. Be that as it may, no prejudice is going to be caused to the respondent bank if the bank is directed to consider the case of the petitioner in light of the prevailing policy for the purpose of assessing once again the possibility of surviving the petitioner unit, may be with difficulties. 6. The learned advocate for the respondent bank invited attention of the Court to a decision of the Bombay High Court in the matter of M/s.Chemiequip Ltd. & Anr. v. Bank of Baroda & Ors. reported in AIR 1988 (Bombay) 29 and submitted that once there is a decision by a Financial Institution on the point of viability of a unit, unless the petitioner is able to satisfy the Court that the said decision is either with oblique motive or upon extraneous consideration, the said decision is not required to be interfered with by the Court. There cannot be any dispute about the aforesaid proposition of law, but then what is prayed for by the petitioner is only a sympathetic consideration at the hands of the bank, either of the old proposal or to the proposal which may be permitted to be made by the petitioner in accordance with law and in light of the prevailing policy. 7. 7. In view of above, it is directed that in the event the petitioner unit makes a fresh proposal to the respondent bank on or before 05.03.2009, the same shall be considered in accordance with law and in light of the prevailing policy by the bank and decide the same as expeditiously as possible, preferably within three weeks thereafter, i.e. 23.03.2009. The decision taken by the respondent bank shall be communicated to the petitioner by a Registered Post A.D. letter on the address from which a representation/proposal is received by the bank. 8. With the aforesaid observations, the petition is disposed of. Rule is discharged. No costs. Petition allowed.