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2022 DIGILAW 2377 (MAD)

Anil Kumar Ojha v. Union of India, Department of Financial Services, Ministry of Finance, Rep. by its Secretary

2022-07-27

ABDUL QUDDHOSE

body2022
ORDER : Heard both. 2. The writ petition has been filed seeking to call for the records of the Publication dated March 31, 2020 and all further consequential publications thereto issued by respondents 4 to 7 classifying and publishing the names of the petitioners as willful defaulters and quash the same in so far as the petitioners are concerned as being arbitrary, illegal, void and in derogation of the RBI Circular and the law laid down by the Honourable Supreme court of India. 3. The writ petition has been filed challenging the willful defaulters' list published by the third respondent declaring the petitioners as willful defaulters. 4. The petitioners have challenged the publication on the ground that no notice was issued to them prior to declaring them as willful defaulters. It is contended by them that the company, which had borrowed the money from the bank is also under liquidation. It is also contended by them that the order passed by neither the Identification Committee nor the Review Committee as per the Master Circular of the Reserve Bank of India was served on the petitioners and no opportunity of personal hearing was granted to them. In such circumstances, they have filed the writ petition. 5. A counter affidavit has been filed by the third respondent bank, at whose instance, the petitioners have been declared as willful defaulters. In paragraph 6 of the counter affidavit, it has been stated as follows : “I submit that the only ground of attack in the present writ petition is that this petitioners have not been served with individual notice for personal hearing and the copy of the proceedings declaring the petitioner as a willful defaulter. This respondent submits it is an admitted position that the petitioners have received the show cause notice dated 05.5.2018 and the petitioner sought time for filing a detailed reply by letter dated 19.5.2018. However, no reply was filed. Therefore, the bank proceeded further and offered a personal hearing to the borrower company by notice dated 24.9.2019 fixing the personal hearing on 25.11.2019. In response to which the first petitioner herein by letter dated 19.11.2019 informed as under : 'As a suspended managing director of SLO Industries Ltd., I am sending this reply to you in regard to your letter dated 24.10.2019. In response to which the first petitioner herein by letter dated 19.11.2019 informed as under : 'As a suspended managing director of SLO Industries Ltd., I am sending this reply to you in regard to your letter dated 24.10.2019. In response to the request made by the company on 08.5.2018 with regard to the declaration of willful defaulter, you have sent a much belated response after 18 months. You are aware that based on the petition C.P.No.1264 of 2018 filed by Corporation Bank before NCLT, Chennai and the learned NCLT has admitted the petition on 03.11.2019 and CIRP process has been initiated. Therefore, any representation with regard to the company can be now done only by the insolvency resolution professional/resolution professional, as the case may be. Therefore, request you to invite the IRP/RP for considering the issue of whether the company should be declared as willful defaulter'.” 6. As seen from the aforementioned paragraph in the counter affidavit filed by the third respondent, the notice was served only on the borrower company and not on the petitioners. 7. The third respondent also has not filed any document/ evidence to prove that any show cause notice was served on the petitioners calling upon them to submit an explanation before declaring them as willful defaulters. Since the petitioners have not been served with any notice by the third respondent before declaring them as willful defaulters, this Court is of the considered view that principles of natural justice have been violated. It is settled law that when a person is declared as a willful defaulter, it affects his fundamental right to carry on his business and gives rise to serious civil consequences. The orders of the Identification Committee as well as the Review Committee reflected in the counter affidavit filed by the third respondent have also not been served on the petitioners, who were directors of the defaulting borrower company. No evidence has also been placed before this Court by the third respondent, except for filing their counter affidavit, with regard to service of orders passed by the Identification Committee and the Review Committee as per the Master Circular of the Reserve Bank of India. Therefore, principles of natural justice have been violated by the third respondent before declaring the petitioners as willful defaulters. 8. Therefore, principles of natural justice have been violated by the third respondent before declaring the petitioners as willful defaulters. 8. For the foregoing reasons, the writ petition is allowed and the impugned publication declaring the petitioners as willful defaulters is hereby quashed. However, liberty is granted to the third respondent to initiate fresh action against the petitioners for declaring them as willful defaulters in accordance with the Master Circular of the Reserve Bank of India. Consequently, the connected WMPs are closed.