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2024 Supreme(Online)(Kar) 40150
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.6037 OF 2023 (GM-RES)
BETWEEN:
GSTAAD HOTELS PVT. LTD., INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT 4TH FLOOR, RAHEJA CHAMBERS LINKING ROAD AND MAIN AVENUE SANTACRUZ WEST, MUMBAI – 400 054.
AND CARRYING ON ITS BUSINESS AT JW MARRIOTT HOTEL NO. 24/1, VITTAL MALLYA ROAD BENGALURU – 560 001.
THROUGH ITS DIRECTOR MR. ADITYA RAHEJA ... PETITIONER (BY SRI. AJESH KUMAR S., ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH THE SECRETARY DEPARTMENT OF FINANCIAL SERVICES MINISTRY OF FINANCE GOVERNMENT OF INDIA HAVING OFFICE AT 3RD FLOOR JEEVAN DEEP BUILDING SANSAD MARG NEW DELHI – 110 001.
2 . RESERVE BANK OF INDIA HAVING ITS REGIONAL OFFICE AT
10/3/8, NRUPATHUNGA ROAD AMBEDKAR VEEDHI BENGALURU – 560 001.
REP. BY ITS REGIONAL DIRECTOR
3 . NATIONAL CREDIT GUARANTEE TRUSTEE COMPANY LTD., INCORPORATED UNDER THE COMPANIES ACT, 2013 BY THE DEPARTMENT OF FINANCIAL SERVICES MINISTRY OF FINANCE GOVERNMENT OF INDIA HAVING ITS REGISTERED OFFICE AT MSME DEVELOPMENT CENTRE C-11, G-BLOCK, BANDRA KURLA COMPLEX BANDRA(EAST), MUMBAI – 400 051.
REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR
4 . PHL FININVEST PVT. LTD., INCORPORATED UNDER THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 4TH FLOOR, PIRAMAL TOWER PENINSULA CORPORATE PARK GANPATRAO KADAM MARG LOWER PAREL, MUMBAI – 400 013 REP. BY ITS AUTHORISED OFFICER (MERGED WITH RESPONDENT-5 PIRAMAL ENTERPRISES LIMITED FROM 18/08/2022)
5 . PIRAMAL ENTERPRISES LIMITED INCORPORATED UNDER THE COMPANIES ACT, 2013 CIN: L24110MH1947LC005719 PIRAMAL ANANTA AGASTYA CORPORATE PARK OPPOSITE FIRE BRIGADE KAMANI JUNCTION LBS MARG, KURLA (WEST)
MUMBAI – 400 070.
REP. BY ITS AUTHORIZED OFFICER
6 . PIRAMAL CAPITAL AND HOUSING FINANCE LTD (PIRAMAL FINANCE), FORMERLY KNOWN AS DEWAN HOUSING FINANCE LTD., INCORPORATED UNDER THE COMPANIES ACT, 2013 CIN: U65910MH1984PLC032639 REGISTERED ADDRESS:
601, 6TH FLOOR, AMITI BUILDING AGASTYA CORPORATE PARK KAMANI JUNCTION OPPOSITE FIRE STATION LBS MARG, KURLA (W)
MUMBAI, MAHARASTRA – 400 070. REP. BY ITS AUTHORIZED OFFICER
7 . OMKARA ASSETS RECONSTRUCTION PRIVATE LIMITED INCORPORATED UNDER THE COMPANIES ACT, 2013 HAVING ITS CORPORATE OFFICE C/515, KANAKIA ZILLION JUNCTION OF L.B.S ROAD AND C.S.T ROAD B.K.C ANNEXE KURLA (WEST)
MUMBAI – 400 070.
HAVING ITS REGISTERED OFFICE AT NO. 9, M.P NAGAR FIRST STREET KONGU NAGAR EXTENSION TIRUPUR – 641 607.
REP. BY AUTHORIZED OFFICER
8 . IDBI TRUSTEESHIP SERVICES LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 CIN: 55102MH2004PTC187649 HAVING ITS REGISTERED OFFICE ASIAN BLDG., GROUND FLOOR
17, R.KAMANI MARG, BALLARD ESTATE MUMBAI – 400 001.
ALSO AT, UNIVERSAL INSURANCE BUILDING GROUND FLOOR, SIR P.M. ROAD FORT MUMBAI MAHARASHTRA – 400 001.
ALSO AT, C/O IDBI BANK LTD., 2ND FLOOR, IDBI HOUSE
58, MISSION ROAD BENGALURU, KARNATAKA – 560 027.
REP. BY ITS AUTHORISED OFFICER ... RESPONDENTS (BY SMT. ANASUYA DEVI K.S., CGC FOR R1;
SRI. PRASHANT N.HEGDE, ADVOCATE FOR R3;
SRI. PRAMOD NAIR, SENIOR ADVOCATE FOR SRI. SRINIVAS B.R., ADVOCATE FOR R4 TO R6;
SRI. UDAYA HOLLA, SENIOR ADVOCATE A/W., MS. KRUTIKA RAGHAVAN, ADVOCATE FOR R7; SRI. BHAIRAV KUTTAIAH, ADVOCATE FOR R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE LOAN ACCOUNT HAVING FACILITY ID ECLGS-20- 21/T/PHL/022, ECLGS-21-22/T/PHL/028, IC-18-18-00542/T/001, IC-17-18-00542/N/003 AND IC-17-18-00542/N/002 OF THE PETITIONER WITH THE RESPONDENT NO.4-6-PIRAMAL ENTERPRISES LIMITED AND PIRAMAL CAPITAL AND HOUSING FINANCE LTD WAS NOT DECLARED AS A NON-PERFORMING ASSET OR A STRESSED ACCOUNT IN ACCORDANCE WITH THE LAW/RULES/POLICY/GUIDELINES/NORMS PROMULGATED BY THE R-2 RESERVE BANK OF INDIA AND THEREFORE THE R-4-6 PIRAMAL ENTEREPRISES LIMITED AND PIRAMAL CAPITAL AND HOUSING FINANCE LTD., COULD NOT HAVE ASSIGNED THE LOAN ACCOUNT OF THE PETITIONER TO THE R-7 OMKARA ASSETS RECONSTRUCTION PRIVATE LIMITED UNDER OMKARA ASSETS RECONSTRUCTION PRIVATE LIMITED UNDER SECTION 5 OF THE SECURITIZATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTERESTS ACT, 2002 AND CONSEQUENTLY DECLARE THAT ALL ACTIONS TAKEN PURSUANCE THEREOF INCLUDING THE RECALL NOTICE DTD 15.02.2023 APPENDED AT ANNX-A AND (REF:- OMKARA/MUM/RO957/2022-23) AND THE NOTICES DTD 20.02.2023 APPENDED AT ANNX-B (REF:- OMKARA/MUM/RO971/2022-23) AND C (REF:- OMKARA/MUM/ RO973/2022-23) INVOKING THE PERSONAL AND CORPORATE GUARANTEE TO BE NULL VOID AND NON-EST; IN SO FAR AS THE PETITIONER HEREIN THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court seeking the following prayer:
(i) Issue a suitable writ, order or direction to declare that the Loan Account having facility of ID ECLGS-20- 21/T/PHL/022, ECLGS-21-22/T/PHL/28, IC-18-18- 00542/T/001.IC-17-18-00542/N/003 and IC-17-18- 00542/N/002 of the petitioner with the respondent No.4 – 6 – Piramal Enterprises Limited and Piramal Capital & Housing Finance Limited was not declared as a Non-Performing Asset or a Stressed Account in accordance with the Law/Rules/Policy/ Guidelines/Norms promulgated by the respondent No.2 – Reserve Bank of India and therefore, the respondent No.4 – 6 - Piramal Enterprises Limited and Piramal Capital & Housing Finance Limited could not have assigned the Loan Account of the petitioner to the respondent No.7 – Omkara Assets Reconstruction Private Limited under Section 5 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 and consequently declare that all actions taken pursuance thereof, including the Recall Notice dated 15-02-2023 appended at Annexure-A (Ref:- Omkara/Mum/ RO957/2022-23) and the Notices dated 20-02-2023 appended at Annexure-B (Ref:- Omkara/Mum/ RO971/2022-23) and C (Ref:- Omkara/Mum/ RO973/ 2022-23) invoking the Personal and Corporate Guarantee to be null, void and non est insofar as the petitioner herein;
(ii) Issue a suitable Writ, Order or Direction to the respondent No.4 – 6 - Piramal Enterprises Limited and Piramal Capital & Housing Finance Limited to consider the eligibility of the petitioner under the ECLGS 3.0/ECLGS3.0 Extension Scheme and sanction /disburse a sum of INR 37 Crores, without any further condition other than what is specified in the Operational Guidelines and FAQ’s of the Scheme appended at Annexure N & P;
(iii) Issue a suitable Writ, Order or Directing the respondent No.1 and 2 i.e., the Union of India and the Reserve Bank of India to take appropriate action as against the respondent No.4 – 6 - Piramal Enterprises Limited and Piramal Capital & Housing Finance Limited and against the respondent No.7 – Omkara Assets Reconstruction Private Limited for their aforesaid acts being in contravention to the various laws of the land and the Law/ Guidelines/Norms/Policies promulgated by the respondent No.2 – Reserve Bank of India.
2. Heard Sri Ajesh Kumar S, learned counsel appearing for the petitioner, Smt. Anasuya Devi K.S., learned Central Government Counsel appearing for respondent No.1, Sri Prashant N. Hegde, learned counsel appearing for respondent No.3, Sri Pramod Nair, learned senior counsel appearing for respondents 4 to 6, Sri Udaya Holla, learned senior counsel appearing for respondent No.7 and Sri Bhairav Kuttaiah, learned counsel appearing for respondent No.8.
3. Facts, in brief adumbrated are as follows:-
The petitioner claims to be in the hospitality business and owns land and building at No. 24/1, Kasturba Road and its Marriott Hotels India Private Limited operates a 5-Star Hotel known as JW Marriott. Respondent No.5 – Piramal Enterprises Limited sanctions a loan of `450/- crores to the petitioner in addition to a revolving credit facility of `50 crores for the purpose of repayment of its existing dues to Yes Bank and general corporate purposes. In furtherance of the said transaction a loan agreement was executed on 26-12-2017. Respondent No.5 further enters into a cash management agreement with the petitioner. It is the averment in the petition that between December 2017 and up to March 2020 the account of the petitioner was regular and was servicing the loan to the 5th respondent/Piramal Enterprises Limited and the interest thereon was duly paid through the mechanism agreed upon in the cash management agreement. It is the further averment that approximately `115.25 crores towards the loan excluding a sum of `7/- crores towards securing credit facilities was paid at regular intervals. The petitioner claims that its account was regular and standard at all times
