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2019 DIGILAW 325 (CAL)

Prithvi Ferro Alloys Pvt. Limited v. Bank of Baroda

2019-03-07

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : Biswanath Somadder, J. 1. Leave granted to the learned advocate-on-record of the appellants to correct certain mistakes that have crept inadvertently in the cause-title as printed in the Memorandum of Appeal with regard to description of the respondent no. 2. 2. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the connected application. 3. The instant appeal arises out of a judgment and order dated 18th December, 2018, passed by a learned Single Judge in W. P. 24577 (W) 2018 (Prithvi Ferro Alloys Pvt. Ltd & Ors. vs. Bank of Baroda & Ors.). By the impugned judgment and order, the writ petition was dismissed by the learned Single Judge for such reasons as stated therein. 4. The instant appeal has been preferred by the writ petitioners. 5. The short point involved in the writ petition was whether the respondent-Bank was right in refusing the writ petitioners' prayer to be represented by a lawyer or a chartered accountant or a consultant in a proceeding drawn up by the Bank for identification and declaration of a borrower as a wilful defaulter. After hearing the learned advocates for the parties, the learned Single Judge proceeded to consider the relevant circulars issued by the Reserved Bank of India, including the Master Circular dated 1st July, 2014, as updated on 7th January, 2015, read with the Master Circular dated 1st July, 2015, which consolidates instructions on the matter upto June, 2015. The learned Single Judge also took into consideration the fact that a show cause notice was issued to the appellants/writ petitioners on 1st June, 2018. 6. It is evident from the records that the appellants/writ petitioner had submitted a reply to the said show cause notice dated 1st June, 2018 and a date of hearing was fixed on 13th August, 2018. The learned Single Judge has taken into consideration the fact that the representations submitted thereafter by the appellants/writ petitioners were considered and an opportunity of hearing was granted to the appellants/writ petitioners to appear on 12th September, 2018 and again on 26th October, 2018, but the appellants/writ petitioners chose to remain absent. The learned Single Judge has taken into consideration the fact that the representations submitted thereafter by the appellants/writ petitioners were considered and an opportunity of hearing was granted to the appellants/writ petitioners to appear on 12th September, 2018 and again on 26th October, 2018, but the appellants/writ petitioners chose to remain absent. The following reasons for dismissal of the writ petition appear in the impugned judgment and order: "The evident purpose of the hearing of the borrower is to ensure that the lender does not commit a mistake in identifying and classifying a borrower as a wilful defaulter. The petitioners cannot claim to be represented by a chartered accountant as a matter of right. There is no provision in the master circular towards grant of any opportunity to the borrower to be represented by a chartered accountant. The COE is required only to take a view on the petitioner's representation against proposal of the bank, based on its records related to the petitioners' loan account and the issue can be decided, upon grant of opportunity of hearing to the concerned company and its directors. For the reasons discussed, this Court is unable to grant the reliefs as prayed for by the petitioners and the writ petition, is accordingly, dismissed." 7. In the facts of the instant case, the learned Single Judge has proceeded to consider the relevant issue which was brought to the writ Court's notice. The Master Circulars issued by the Reserve Bank of India do not provide for the appellants/writ petitioners to be represented by a lawyer or a chartered accountant or a consultant as a matter of right. The respondent-Bank did not deny the appellants/writ petitioners an opportunity of hearing, which is evident from the show cause notice issued against them dated 1st June, 2018, which was replied to by the appellants/writ petitioners consequent upon which, the date of hearing was fixed on 13th August, 2018. Thereafter, representations were submitted by the appellants/writ petitioners, which were considered and an opportunity was granted to the appellants/writ petitioners to appear on 12th September, 2018 and again on 26th October, 2018, but they failed to do so. 8. In an Intra-Court Mandamus Appeal, interference is usually warranted only when palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. 8. In an Intra-Court Mandamus Appeal, interference is usually warranted only when palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts of the instant case - on a plain reading of the impugned judgment and order - we do not notice any such palpable infirmity or perversity. That apart and in any event, the impugned order is supported with cogent and justifiable reasons. 9. In such circumstances, the appeal and the connected application are liable to be dismissed and stand accordingly dismissed. Arindam Mukherjee, J. - I agree.