High Court Kerala High Court

M/S.Krs Latex (India) Pvt.Ltd vs Chief Manager on 22 December, 2009

Kerala High Court
M/S.Krs Latex (India) Pvt.Ltd vs Chief Manager on 22 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35887 of 2009(E)


1. M/S.KRS LATEX (INDIA) PVT.LTD.
                      ...  Petitioner
2. M/S. KRS LATEX (INDIA) PVT LTD 31 IST

                        Vs



1. CHIEF MANAGER,
                       ...       Respondent

2. THE CHIARMAN & MANAGIN DIRECTOR

                For Petitioner  :SRI.PIUS C.MUNDADAN

                For Respondent  :SRI.MOHAN JACOB GEORGE

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :22/12/2009

 O R D E R
                    C.K.ABDUL REHIM, J.

                    ------------------------------
                   W.P.(C).No.35887 of 2009
                                and
                   W.P.(C).No.35932 of 2009
                    ------------------------------

         Dated this the 22nd day of December, 2009


                        J U D G M E N T

———————-

1. These writ petitions are filed seeking direction for

consideration of the petitioners representations, Ext.P11 in WP

(C).No:35887/09 and Ext.P9 in WP(C).No:35932/09. In both

these cases the petitioners are establishments which availed

loans from the respondent Bank, and proceedings are pending

under the provisions of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002

(SARFAESI Act), which are initiated consequent to default

committed in repayment. It is evident that in both these cases

the respondents have already issued notices under Section 13(2)

of the SARFAESI Act. On a perusal of the representations

mentioned above, it is revealed that the petitioners are seeking

re-structuring of the loans/advances in view of guidelines issued

by the Reserve Bank of India.

2. Heard, counsel for the petitioners and standing

counsel appearing for the respondents. Learned standing

counsel opposed the writ petitions on the ground that the

W.P.(C).35887 & 35932/09 2

respondent Bank is not amenable to jurisdiction under Article

226 in view of decision of the Hon’ble Supreme Court in Federal

Bank Ltd. v. Sagar Thomas (2003 (3) KLT 876). It is further

contended that the guidelines issued by the Reserve Bank of

India, upon which reliance is placed by the petitioners, is not

having any statutory force and those are only in the nature of

guidelines. The respondents relied on a decision of the Hon’ble

Supreme Court in Oriental Bank of Commerce v. Sunder Lal

Jain ((2008) 2 SCC 280) in support of such contention. It is

also contended that on considering the request for re-structuring

the respondent Bank had already found that it is not feasible to

have any re-scheduling of the loan accounts as demanded by the

petitioners. Even a direction for consideration of the

representation was opposed on the ground that there is no

statutory right vested upon the petitioners to claim any such re-

structuring, as requested.

3. Learned counsel appearing for the petitioners on the

other hand pointed out that the Hon’ble Supreme Court in

Sardar Associates v. Punjab and Sind Bank ((2009) 8 SCC

257), held that Reserve Bank of India is a statutory authority

which exercises supervisory power in the matter of functioning

of all the Scheduled Banks, and it is governed by the provisions

W.P.(C).35887 & 35932/09 3

of the Reserve Bank of India Act 1934. Referring to Section 21

of the Banking Regulation Act, it is held that the RBI is entitled

to formulate policies which the Banking Companies are bound to

follow, and Section 21 mandates that every Banking Company

shall be bound to comply with the directions given in terms

thereof. The standing counsel for respondents on the other hand

contended that the decision referred above is dealing only with

matters pertaining to public sector Banks and the dictum

contained therein is not applicable to the respondent Bank,

which proposition was also opposed by the petitioners.

4. Considering the factual situations, I am not proposing

to enter upon any findings regarding merits of the rival

contentions. None of the action initiated under the provisions of

the SARFAESI Act is under challenge before this court. The

petitioners could not raise any such challenge also, in view of the

provisions contained in Section 13(2) and also in view of the

statutory remedy available under Section 17(1) of the SARFAESI

Act. The limited direction which is sought for in these cases is

for a consideration of the requests made for re-structuring of the

loans. The contention as to whether the petitioners can claim

benefit under the guidelines issued by RBI is seriously disputed

by the respondents. Subject to such dispute, I am of the opinion

W.P.(C).35887 & 35932/09 4

that no prejudice will be caused to the respondent Bank in

considering such requests and in intimating the petitioner about

result of such consideration. The Bank can intimate the

petitioner about reasons, if they propose to reject such requests.

It is also left to the respondents to consider feasibility regarding

re-structuring sought for by the petitioners, and to take a

decision thereof considering its merits. Based on the principles

of natural justice, I am of the opinion that the petitioners are

entitled to know about fate of their requests, eventhough they

may not be entitled to claim consideration of the requests, as a

matter of any statutory right.

5. Under the above mentioned circumstances the writ

petitions are disposed of directing the respondents to take

appropriate decision on the representations, Ext.P11 in WP(C).

No.35887/09 and Ext.P9 in WP(C).No.35932/09 respectively, and

to communicate such decisions to the petitioners, before

proceeding with further steps under the provisions of the

SARFAESI Act.

C.K.ABDUL REHIM, JUDGE.

okb