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JHARKHAND HIGH COURT
Shree Chandrashekhar, J.
Paritran Trust through its Secretary, Jasidih, Deoghar, Jharkhand —Petitioner
versus
Punjab National Bank, through its Chairman & Ors. —Respondents
W.P.(C) No. 3710 of 2012
Decided on 14.10.2014
Counsel for the Parties:
For the Petitioner:Mr. A. K. Sinha, Sr. Advocate and Mr. Prashant Pallav, Advocate.
For the Respondent No. 1 & 2:Mr. Rajesh Kumar, Advocate.
For the Respondent No. 3 & 4:Mr. P.A.S. Pati, Advocate.
For the Respondent No. 5 & 6:Mr. Ravi Kumar Singh, Advocate.
IMPORTANT POINT
There is no prohibition in Section 13(2) of SARFAESI Act, 2002 against issuing a composite order both declaring account of borrower NPA and requiring borrower to discharge its liability simultaneously.
Headnote:Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Section 13(2)—Recovery of debt—Demand notice—Secured creditor is empowered to issue notice in writing requiring borrower to discharge its liability if borrower has defaulted in repayment of secured debt or its account has been classified as NPA—In Section 13(2) of SARFAESI Act, 2002 there is no bar for resorting to Section 13(2), after account of borrower has been declared NPA—Borrower has defaulted in repayment of loan and before its account became NPA it was cautioned and directed to regularize loan account—There is no prohibition in Section 13(2) of Act against issuing a composite order both declaring account of borrower NPA and requiring borrower to discharge its liability simultaneously—In scheme of SARFAESI Act, 2002, there is no provision which requires opportunity of hearing to be afforded to borrower—Petitioner has defaulted in making payment of installments—Petitioner has made representations to respondent-Banks and such representations have been rejected by respondents—No violation of principles of natural justice in declaring petitioner’s account as NPA—RBI guidelines on which petitioner has placed reliance cannot be construed in a manner prejudicial to financial interest of Bank—Writ Petition dismissed. (Paras 11, 12, 13, 17 and 18)
Result : Writ Petition dismissed.
Shree Chandrashekhar, J.—Seeking quashing of notice dated 09.12.2011 issued under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and for issuance of a writ of mandamus directing the respondent/Banks to immediately reschedule the term loan sanctioned in favour of the petitioner Trust and for disbursement of loan of Rs. 21.44 crores, the petitioner has approached this Court by filing the present writ petition.
2. The facts narrated in the writ petition are briefly summarized thus;
The petitionerTrust was established to provide health education and health care services to all class of society. The petitioner was granted Essentiality Certificate for establishing a medical college in the name of Paritran Medical College and Hospital with intake capacity of 150 students in the college and 750 beds in the hospital. The petitioner submitted a detailed project report for taking loan from the respondent/Banks. Originally the project cost was assessed at Rs. 165.92 crores. A consortium of banks, the Punjab National Bank being the lead bank decided to provide finance, the details of which are as under:
(a) Punjab National Bank (Lead Bank) Rs. 46.5 crores
(b) Union Bank of India (Member) Rs. 23.25 crores
(c) Oriental Bank of Commerce (Member) Rs. 23.25 crores
When the Trust was at the verge of completion of the project the Medical Council of India, vide notification dated 13.11.2009 notified the revised guidelines relating to establishment of medical college which drastically effected the project initially conceived by the petitioner Trust for establishing the Paritran Medical College and Hospital. As a consequence, the project cost escalated and not only a huge part of construction was to be demolished, the project itself got delayed. The repayment of the term loan was to start from August, 2010 and as per the original plan/project report the Medical College was expected to start from academic session 2010-11 however, due to the change in the MCI guidelines the project could not be completed in time and therefore, the affiliation from MCI could not be obtained for commencing academic session 201011. In the changed circumstance the petitioner/Trust approached the consortium of banks for reschedulement of the loan account. Meetings between the consortium of banks and the representative of the petitionerTrust were held on 29.06.2010 and 28.08.2010 and finally the lead bank Punjab National Bank agreed for reschedulment of the loan and accorded its sanction for the same which was communicated to the petitioner/Trust vide letter dated 14.12.2010. The Punjab National Bank had infact sanctioned an additional loan on 26.03.2010 which was subsequently cancelled because the other members of the consortium did not sanction their share, that is, 50% of the additional loan. In the meantime, the petitioner/Trust applied for approval of MCI for academic session 201213 and the MCI vide letter dated 16.03.2012 sought proof of loan sanctioned for the project. The project now is complete and only some corrective measures are to be taken. A site inspection has also been conducted by the team of the State Government however, in the meantime the account of the petitioner was declared NPA and notice dated 09.12.2011 was issued under Section 13 (2) of the SARFAESI Act, 2002. The petitioner submitted its representation dated 21.01.2012 under Section 13(3A) which was rejected by the respondent/Banks by non-speaking orders.
The petitioner/Trust made several representations to the respondent/Banks however, in a most arbitrary manner the respondent/Banks initiated proceeding under the SARFAESI Act, 2002 and therefore, the petitioner/Trust was constrained to approach this Court by filing the present writ petition.
3. A counter-affidavit has been filed on behalf of the respondent nos. 1 and 2, the lead bank, taking an objection to the maintainability of the writ petition stating that in
