The bank has the exclusive discretion to determine a borrower's eligibility under an OTS Scheme, and the grant of benefit is subject to the eligibility criteria mentioned under the Scheme and the guidelines issued from time to time.

JUDGMENT

1. The writ petitioner seeks intervention of this Court under Article 226 of the Constitution of India, to compel the State Bank of India to allow him to participate in an OTS Scheme of 2021 dated January 13, 2022.

2. The facts relevant for the instant petition are that the petitioner has outstanding dues to the extent of Rs. 7 crores to the State Bank of India.

3. Two earlier OTS Schemes/settlements, compromises have failed. The petitioner, under the first settlement dated October 15, 2018, did not make any payment. The second settlement, recorded in an order of the Debt Recovery Tribunal at Siliguri on June 12, 2019 entitled 'consent decree' was also not honoured.

4. The bank invoked the terms of the 'consent decree' and applied for the original application being revived. On the bank's application, the Debt Recovery Tribunal recording that a 'consent decree' was passed on 12.06.2021, directed issuance of recovery certificate. The said order is pending challenge before the DRT itself.

5. Mr. Joy Saha, learned Senior Counsel appearing for the petitioner, by reference to the said OTS Scheme, particularly, Clauses 1(ii) to iv and v and 2.1 (a.ii) would argue before this Court that the petitioner was indeed eligible under the said Scheme and the bank at least ought to have invited him to participate thereunder.

6. The bank has discriminated in refusing the petitioner's request. Urgency is pleaded in that time frame under Clause 1 (ii), is fast approaching.

7. Mr. Saha relies upon a decision of the Hon'ble Supreme Court in the case of Sardar Associates and others vs. Punjab & Sind Bank and others reported in (2009) 8 SCC 257, particularly, paragraphs 19, 33 and 36 thereof.

8. Mr. Om Narayan Rai, learned counsel for the State Bank of India relies upon Clause 2.1(a.v) to indicate that the petitioner is not eligible under the Scheme since a decree of consent has already been passed by the DRT.

9. Mr. Rai relies upon a decision of the Hon'ble Supreme Court in the case of Bijnor Urban Cooperative Bank Limited, Bijnor and others vs. Meenal Agarwal and others reported in 2021 SCC Online SC 1255.

This Court has carefully considered the rival contentions advanced by the parties.

10. The question is whether a OTS Scheme offered by a bank nationalized or otherwise to its borrower, can be enforced against the bank.

11. The observations of the Hon'ble Supreme Court in the Sardar Associates case (supra), were in the context of a Scheme of the Reserve Bank of India. The constituent of the bank was allowed to participate in the Scheme and was thereafter refused benefit thereunder. At no place in the said judgment has the Supreme Court laid down that every constituent of a bank is entitled, as a matter of right, to enforce any Scheme floated by the bank against it. General eligibility under a Scheme, can normally be ascertained from the text of the Scheme itself. The actual entitlement thereof would depend on the facts and circumstances of each case. The conduct of a borrower, the reliability and viability of the offer made and the commercial aspects thereof are in the exclusive domain of the lender bank.

12. Unlike a service benefit or any other like benefit against the State or its instrumentality where a person is eligible at least to compete and participate in the same, in an OTS Scheme of a banker for its customer, a right to participate cannot be claimed as a matter of right. An OTS Scheme is an invitation to offer albeit strictly on its terms. It is for the bank to decide as to whether a customer/defaulter is eligible or not. After all a loan agreement is a private contract between a bank and its constituent.

13. The observations made in the Sardar Associates case (supra) must be deemed as those in the context and special facts and circumstances of the said case. They do not lay down any universal law that rights accrue to a borrower defaulting or otherwise, under every OTS Scheme against the bank. The case is otherwise distinguishable on facts.