Banks have the statutory right to approach the National Company Law Tribunal under the provisions of the Insolvency and Bankruptcy Code, 2016, and the Reserve Bank of India's guidelines do not prevent them from doing so.

DEBANGSU BASAK, J.

1. There are two-fold prayers in the writ petition. One prayer relates to a direction upon the bank to act in terms of the Guidelines dated February 12, 2018 particularly clause 12 thereof issued by the Reserve Bank of India in exercise of powers under Sections 35A, 35AA and 35AB of the Banking Regulation Act, 1949 and Section 45(L) of the Reserve Bank of India Act, 1934. The other prayer is that, the bank should not be allowed to proceed with C.P. (IB) No. 1068/KB/2018 pending before the National Company Law Tribunal, Kolkata, since the proceedings were filed in violation of the Guidelines dated February 12, 2018.

2. Learned Advocate appearing for the petitioners submits that, after the Insolvency and Bankruptcy Code, 2016 came into effect, the provisions of the Banking Regulation Act, 1949 underwent amendments. Section 35AA and Section 35AB were introduced to the Act of 1949. The two new provisions introduced to the Act of 1949 empower the Reserve Bank of India to issue guidelines for the purpose of implementing the provisions of the Code of 2016. He refers to the Action Plan to implement the provisions of Sections 35AA and 35AB of the Act of 1949 as formulated by the Reserve Bank of India on May 22, 2017. He draws the attention of the Court to a writing dated June 13, 2017 issued by the Reserve Bank of India. He submits that, by such writing, the Reserve Bank of India at Internal Advisory Committee level was of the view that, an objective, non-discretionary criterion for referring accounts for resolution under the Code of 2016 was yet to fructify. He refers to the Guidelines dated February 12, 2018 and particularly to clause 12 thereof and submits that, Reserve Bank of India is yet to formulate a reference date for implementing the resolution plan to ensure calibrated, time-bound resolution of accounts falling between Rs.20 billion and, at or above Rs.1 billion. The accounts of the petitioner come within such bank. Reserve Bank of India being yet to announce such reference date for implementation of the resolution plan, the bank acted prematurely and in fact in violation of the Guidelines dated February 12, 2018 in filing the proceedings before NCLT. He submits that, the Guidelines dated February 12, 2018 are binding upon the bank. He relies upon (Sudhir Shantilal Mehta v. Central Bureau of Investigation, (2009) 8 SCC 1) and submits that, directions issued by the Reserve Bank of India are binding upon the bank. The bank having failed to adhere to clause 12 of the Guidelines dated February 12, 2018, it should not be allowed to proceed with the company petition pending before NCLT. He refers to an Order dated July 3, 2018 passed by the National Company Law Tribunal (NCLT), Kolkata Bench in C.P. (IB) No. 176/KB/2018 (State Bank of India v. Impex Metal & Ferro Alloys Limited) and submits that, when similar issues were raised NCLT was of the view that, the same may be raised at an appropriate forum.

3. Learned Senior Advocate appearing for the bank submits that, the bank has statutory right to approach NCLT under the provisions of the Code of 2016. He submits that, clause 12 of the Guidelines dated February 12, 2018 cannot be read to mean that, no bank can approach NCLT for the purpose of filing insolvency proceeding for accounts involving claims between Rs.1 billion and Rs.20 billion. The petitioner is not entitled to any relief.

4. The provisions of the Code of 2018 came into effect on and from December 2016. The Act of 1949 underwent an amendment by virtue of the Bank Regulation (Amendment) Ordinance, 2017. Section 35AA and Section 35AB were introduced to the Act of 1949. Such sections are as follows:-

"35-AA. Power of Central Government to authorize Reserve bank for issuing directions to banking companies to initiate insolvency resolution process.- The Central Government may by order authorize the Reserve Bank to issue directions to any banking company or banking companies to initiate insolvency resol