{"id":22534,"date":"2002-09-12T00:00:00","date_gmt":"2002-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajay-kumar-gupta-vs-the-syndicate-bank-on-12-september-2002"},"modified":"2016-08-28T13:45:54","modified_gmt":"2016-08-28T08:15:54","slug":"ajay-kumar-gupta-vs-the-syndicate-bank-on-12-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajay-kumar-gupta-vs-the-syndicate-bank-on-12-september-2002","title":{"rendered":"Ajay Kumar Gupta vs The Syndicate Bank on 12 September, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Ajay Kumar Gupta vs The Syndicate Bank on 12 September, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 12\/09\/2002\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE E.PADMANABHAN\n\nWRIT PETITION No.  20288 of 2002\nAND\nWMP.Nos. 28096 OF 2002\n\n\nAjay Kumar Gupta                       ..Petitioner\n\n-Vs-\n\n1. The Syndicate Bank,\n   rep. by its General Manager\n   Recoveries & Rehabilitation Dept.,\n   Corporate Office,\n   Bangalore\n\n2. The Syndicate bank\n   Royapettah Branch,\n   Chennai-14                                   ..Respondents\n\n\nFor petitioner:  Party-in-person\n\nFor respondents:  Representative of the Bank\n\n        Petition filed under Article 226 of The Constitution of India  praying\nfor the issue of a writ of certiorarified mandamus, as stated therein.\n\n:O R D E R\n<\/pre>\n
        The  writ  petitioner  prays for the issue of a writ of certiorarified
\nmandamus calling for the  records  of  the  first  respondent  in  his  office
\nreference   No.4815\/2913\/COMP\/C\/SR,   dated  28.8.2001,  quash  the  same  and
\nconsequently direct the second respondent Bank to settle the loan accounts  of
\nShantivihar  group  and  M\/s.Atomos  Exports  Private Ltd., under Reserve Bank
\nIndia’s guidelines applicable to non performing assets and pass  such  further
\nor consequential order.\n<\/p>\n
        2.   With  the  consent  of  either side, the writ petition itself was
\ntaken up for the final disposal.\n<\/p>\n
        3.  The counsel for  the  petitioner  and  the  respondents  were  not
\npresent consecutively.   But the petitioner submitted his arguments in person.
\nSo also the officer of the respondent Bank made his submissions.   This  court
\ncalled upon  either  parties  to submit their written arguments.  Accordingly,
\nthe writ petition as well as the respondent submitted written arguments, which
\nis being considered.\n<\/p>\n
        4.  The  present  writ  petition  has  been  filed  aggrieved  by  the
\ncommunication  dated  28.8.2001  whereby  the  respondent  bank  rejected  the
\npetitioner’s proposal for one  time  settlement  of  the  debts  of  his  late
\nfather’s company  in terms of RBI guidelines for non performing assets.  It is
\npointed out by the petitioner that while rejecting the request, the respondent
\nhad assigned two reasons which are unsustainable.  The  first  of  the  reason
\nbeing  that  the  offer  of Rs.40.51 lakhs is too low compared to the value of
\nsecurities available.  The second of  the  reason  which  prevailed  with  the
\nsecond  respondent  bank being the proposal has been received after 30.6.2001,
\nwhichis the last date fixed by RBI guidelines.\n<\/p>\n
        5.  While challenging the two reasons assigned by the respondents, the
\npetitioner also  contended  that  the  contentions\/objections  raised  in  the
\ncounter  that the petitioner is not entitled to invoke the scheme for one time
\nsettlement as the borrower has committed fraud and willful default.  According
\nto the petitioner such an objection cannot be raised by way of  an  answer  to
\nthe  petitioner’s claim when the same has not been set out in the objection or
\nrelied upon as a reason to decline the petitioner’s request.   It  is  further
\npointed  out  by  the  petitioner  that  he  has  come  forward with bona fide
\nintention to  settle  his  late  father’s  debts  under  the  scheme  and  the
\nrespondent’s refusal to apply the RBI guidelines is arbitrary.  That apart, it
\nis  further  contended that no opportunity has been afforded to the petitioner
\nto explain his position before the respondent as  to  the  stand  taken  which
\ndisentitle the  petitioner  from  claiming  the  benefit  of  the scheme.  The
\npetitioner also relied upon the pronouncement of the  Apex  Court  in  Central
\nBank of India Vs.  Ravindran reported in 2002 (2) CTC 3 54.  While elaborating
\nthe said  contention.    It is contended that without affording an opportunity
\nthe petitioner’s father ha been stigmatized and the petitioner had been denied
\nof a valuable right of availing the benefit and hence the respondent should be
\ndirected to apply the RBI guidelines for one time settlement of  his  father’s
\ndebt.\n<\/p>\n
        6.   Per  contra,  the  respondent bank contended that the request was
\nmade beyond the time prescribed in the RBI Guidelines which was operative only
\nupto 31.1.2001 and extended up to 31.6.2001 on which date the scheme  came  to
\nan end.    The  petitioner  made  a request only on 21.7 .2001 and it has been
\nrightly rejected summarily.  According  to  the  respondent  the  petitioner’s
\nfather  late Sudharshanlal Guptha borrowed monies from the respondent bank for
\nhis business of Shanti Vihar,  Automas  Exports  and  Sampath  &  Co.,  Group.
\nSudharshanlal  Guptha  made  default  in  three  accounts  and even during his
\nlifetime various proceedings were initiated by the respondent bank.  The  suit
\ninstituted  on  the  original  side  of this court was transferred to the Debt
\nRecovery Tribunal, Chennai and a recovery certificate has already been issued.
\nThe said Certificate has also reached finality.  The recovery proceedings  has
\nreached the  advanced  stage of sale.  The petitioner was resorting to various
\nproceedings  to  stall  the  sale  of  the  mortgaged  properties  by   filing
\nW.P.No.3575 of  1999.  By order dated 8.3.1999, the petitioner was directed to
\ndeposit 1\/3rd of the decree amount within six weeks from that date,  which  he
\nfailed to  comply.   The petitioner thereafter instituted C.S.No.8 of 2000 and
\nsought for stay of sale in O.A.No.20 of 2000.    The  suit  was  dismissed  on
\n6.9.2000,  while  recording  a  finding  that  the  petitioner  even alienated
\nsubstantial properties to 3rd parties without securing the  consent  from  the
\nbank for  all  the  alienation.    The petitioner also moved the Debt Recovery
\nTribunal IN I.A.No.837 of 2001 to direct the respondent  Bank  to  settle  the
\ndues in  accordance  with RBI Guidelines.  Thereafter the petitioner has filed
\nthe W.P.No.12043 of 2001 and sought for stay  of  sale  under  the  very  same
\ncontext.  The said writ petition was also dismissed on 1.7.200 1.  The present
\nwrit petition is third of the series of writ petition filed by the petitioner.
\nThe petitioner  has not approached the court with clean hands.  The petitioner
\nhas not made a request for settlement in accordance  with  RBI  guidelines  on
\n21.7.2001.   The  petitioner  claimed a settlement under the RBI guidelines as
\nearly as 2.2.2001 when the guidelines were not operative.\n<\/p>\n
        7.  It is contended by the respondent that  guidelines  do  not  cover
\ncases of  willful default, fraud and malfeasance.  In case of willful default,
\nfraud and malfeasance, the bank has to initiate prompt  action  for  recovery.
\nThe  petitioner’s  case  squarely falls under the category of willful default,
\nfraud and malfeasance.  According to the respondent  after  the  mortgage  and
\nfiling  of  the suit by the respondent bank, late Sudharshanlal Gupta sold the
\nmortgaged properties under various sale deeds as undivided shares and  one  of
\nthem has been included in the typed set of papers.  AS seen from the sale deed
\nthe  vendor  Sudharshanlal  Guptha  has  covenanted  the purchaser that he and
\nShanti Vihar Hotel have good, valid,  full  and  unimpeachable  title  to  the
\nproperty and  that  it is not encumbered.  Such a stipulation in the sale deed<\/p>\n
is a false statement.   Therefore  no  further  investigation  or  enquiry  is
\nrequired in  this behalf.  The order passed by this court on the original side
\nspeaks volumes against the petitioner and his conduct.\n<\/p>\n
        8.  On 8.10.1996 late Sudharshanlal Gupta came forward with  an  offer
\nfor  settlement  with  the  Bank  for  a  sum of Rs.125 lakhs as seen from the
\ndocument filed by the  respondent  bank.    On  31.10.1997,  the  petitioner’s
\nbrother offered to pay Rs.170.08 lakhs as one time settlement.  The respondent
\nbank  accepted the offer of 170.08 lakhs on 24.1.19 98 though the total amount
\ndue as on 24.1.1998 was in the range of Rs.375.79 lakhs.  This approach of the
\npetitioner is clear from  the  document  produced  by  the  respondent.    The
\npetitioner’s  brother  ought  to  have made payments within two months, but he
\nsought for extension of time by two months by letter  dated  26.7.1998.    The
\ncondition has not been complied.\n<\/p>\n
        9.  Before the Civil Court, the petitioner produced list containing 54
\npurchasers  and  claimed  that they have retained a sum of Rs.38,0 4,004\/= for
\nbeing paid to the respondent bank.  But those purchasers when  served  with  a
\nnotice  by  the recovery officer of the DRT, appeared before the said Tribunal
\nand claimed that they have  paid  the  entire  amount  to  late  Sudharshanlal
\nGupta\/Shanti Vihar  and  no  money has been retained by them.  In the light of
\nthe said conduct the respondent contends that the petitioner is  not  entitled
\nto  any  relief  as such a conduct is fraudulent act and deliberate attempt to
\nscreen.  The respondent further contends that when an identical application is
\npending before the  DRT,  the  present  writ  petition  is  not  maintainable.
\nFurther,  the order in W.P.No.12043 of 2001 and pendency of I.A.No.837 of 2001
\nbefore the DRT is a bar to  the  present  writ  petition  and  it  has  to  be
\ndismissed in limini as not maintainable.\n<\/p>\n
        10.  The point that arise for consideration are:\n<\/p>\n
        (i)     Whether the impugned order of rejection by the respondent bank
\nis illegal and liable to be quashed?\n<\/p>\n
        (ii)    Whether  the  petitioner could compel the respondent to accept
\nhis proposal for one time settlement in terms of  RBI  Guidelines  dated  27th
\nJuly 2000 as extended?\n<\/p>\n
        (iii)To what relief if any?<\/p>\n
        All the above points could be considered together.<\/p><\/blockquote>\n
        11.  This court has to necessarily refer to certain material facts for
\nappreciation of  facts.  The deceased Sudharshanlal Gupta during his life time
\non 8.10.1996 approached the respondent  bank,  submitted  a  proposal  to  pay
\nRs.125  lakhs  to  settle  the  entire  dues  of his Group of Companies to the
\nSyndicate Bank’s Branches of Royapettah, Nandanam and Madras Main  Branch  and
\nproposed  to pay the entire amount within five months from the date of receipt
\nof approval,  besides  expressed  that  he  is  agreeable  to  pay  a  sum  of
\nRs.50,000\/=   in   total   towards   legal  expenses  incurred  by  the  Bank.
\nSudharshanlal Gupta passed away on 7 .6.1997 and his son Sampathlal  Gupta  on
\n31.10.1997 came forward with a proposal to pay Rs.170.08 lakhs.  On 24.1.1998,
\nthe  respondent  bank  sent a reply to the effect that the competent authority
\nhas permitted the petitioner to settle the dues amounting to  Rs.375.79  lakhs
\nby  accepting  Rs.170.08  lakhs  and  agreed  to  waive  Rs.205.71 lakhs as on
\n31.12.1997, subject to the condition that within two months the entire sum  is
\npaid, besides  several  other  conditions.    The petitioner’s brother Sampath
\nGuptha by reply dated 26.3.1998 requested for extension of time by two  months
\nwhile  referring  to  the  bank’s letter dated 27.1.1998, besides representing
\nthat he has arranged for funds.  On 3rd April, 1998, the  respondent  Bank  by
\nreply  with  respect to the extension sought for, informed that the petitioner
\nhas to make a cash down payment of Rs.50% of the original compromise offer  of
\nfunds and the petitioner should pay overdue interest at 18%.  The same has not
\nbeen complied with.\n<\/p>\n
        12.  The writ petitioner herein filed W.P.No.3575 of 1999 and by order
\ndated  8.3.1999,  this  court granted stay subject to payment of 1\/3 rd of the
\ndemand within six weeks from 8.3.1999, besides making it clear that failure to
\ncomply with the conditions,  the  interim  order  will  stand  vacated.    The
\ncondition was  not  complied  with.  The respondent bank with reference to the
\npetitioner’s request by its letter dated 7.8.2000 intimated the petitioner hat
\nthe offer of Rs.75 lakhs for one time settlement is too low to accept and  the
\noffer is  not  acceptable  to  the  respondent.    Such  an  offer was made on
\n27.7.2000 for the first time.  The petitioner  followed  the  said  letter  by
\nanother  letter  dated  23.1.2001  requesting the respondent to inform him the
\namount payable for settlement in terms of the guidelines issued by RBI.    The
\nrespondent  by  letter dated 13.3.2001 drew the attention of the petitioner to
\nits letter dated 27.1.1998 wherein  it  was  agreed  to  settle  the  dues  by
\naccepting the payment of Rs.170.08 lakhs and the petitioner was called upon to
\ncome to the Bank for negotiations.  The petitioner followed it with his letter
\ndated  18th  June  2001 taking a stand that in terms of RBI circular the total
\namount payable is only Rs.40,50,956.30 which he  is  prepared  to  settle  for
\nvarious accounts  which  his  late  father was connected.  The above facts are
\nclear from the correspondence exchanged between the parties.\n<\/p>\n
        13.   The  Debt  Recovery  Tribunal,  Chennai  after  contest  of  the
\nproceedings  issued  a  recovery certificate in favour of the respondent bank.
\nThe Bank preferred an appeal in so far as it was  aggrieved  by  the  rate  of
\ninterest and  the appellate tribunal awarded interest at the rate of 15%.  The
\npetitioner’s application on the original side of this court pending  the  suit
\nhas  been dismissed and also the earlier WMP filed by him in the writ petition
\nhas been dismissed for non compliance of the conditions.   The  Debt  Recovery
\nTribunal  has  also  issued  a  recovery  certificate and the recovery officer
\ninitiated action.  At that stage, the petitioner moved I.A.837 of 2001 seeking
\nfor a direction directing the respondent bank to calculate the amounts due  in
\naccordance with  the  guidelines  issued  by the RBI.  The said application is
\nbeing opposed and pending with DRT.  At that stage, the impugned communication
\nhas been sent to the petitioner by the respondent  bank  intimating  that  his
\noffer of 40.51 lakhs is not acceptable and it is very low when compared to the
\nRs.480.41 lakhs  and  the  value of securities available.  The above facts are
\nclear from the material papers filed by either side.\n<\/p>\n
        14.  Admittedly an  identical  application  filed  by  the  petitioner
\nbefore  the  DRT in I.A.No.837 of 2001 filed earlier in point of time is still
\npending.  The said Tribunal is  competent  to  decide  the  said  application.
\nHaving  invoked  the jurisdiction of the Debt Recovery Tribunal the petitioner
\nhas rushed to this court.\n<\/p>\n
        15.  The Reserve Bank of India framed a scheme and  issued  guidelines
\non  27th  July, 2000 for recovery of dues relating to non performing assets of
\npublic sector Banks.  Clause 3 of the guidelines reads thus:-\n<\/p>\n
“The guidelines will not, however, cover cases of willful default,  fraud  and
\nmalfeasance.   The  bank  should  identify cases of willful default, fraud and
\nmalfeasance and initiate prompt action against them.”\n<\/p>\n
        16.  The guidelines also prescribes that  it  shall  remain  operative
\ntill 31st  March 2001.  The guidelines also prescribes the standard formula to
\nbe followed by the sanctioning authority and the rate at which the  settlement
\ncould be arrived at.  Assuming that the petitioner has made a request in time,
\nthe  amount offered by the petitioner is far below the amount as prescribed by
\nstandard formula of settlement prescribed by the  RBI  guidelines.    The  RBI
\nguidelines  has  been  issued on 27\/7\/2000 and it was in force till 30.6.2001.
\nThus the respondent is  under  an  obligation  to  consider  the  petitioner’s
\nrequest  and  to apply the RBI guidelines for settlement if the petitioner has
\napproached the bank at least before  30.6.2001  and  not  at  any  time  later
\nthereof.   But,  admittedly, the petitioner has approached the respondent bank
\nonly on 21.7.2001 and offered a very low sum as  one  time  settlement.    The
\nrequest  of  the  petitioner  being belated and too low, the respondent has no
\nobligation to consider.\n<\/p>\n
        17.  The petitioner cannot compel the respondents  to  apply  the  RBI
\nguidelines  to  settle  the dues as the obligation, if any, on the part of the
\nrespondent-bank ceases on and after 30.6.2001 and the  RBI  Guidelines  is  no
\nlonger effective  and cannot be enforced.  That apart, the petitioner has been
\nadopting dilatory tactics by instituting either  suit  or  writ  petitions  or
\nother proceedings  one  after  the  other.    As  seen from the correspondence
\nexchanged, it is clear that the petitioner’s father, the  petitioner  and  his
\nbrother  have  been  approaching the respondent bank by offering to settle the
\ndues by making one time payment from time to time and avoiding to pay the same
\nwhen the Bank agreed to receive a particular sum and thereafter went back from
\ntheir offer.\n<\/p>\n
        18.  That apart, the conduct of the borrower in the  present  case  as
\nhas  been  rightly  pointed  out  by  the  respondent bank would show that the
\npetitioner’s case will fall under the category of “willful default, fraud  and
\nmalfeasance”.   As  detailed by the respondent, for the past six years and odd
\nthe petitioner, his father and brother have  been  proposing  settlement,  but
\nthey  were  never bona fide, nor they were serious, but they always determined
\nto delay the recovery proceedings.  As rightly  contended  by  the  respondent
\nfraud,   willful  default  and  malfeasance  has  been  established  when  the
\nsecurities furnished to the Bank namely undivided shares of substantial  value
\nhas  been  alienated  to  third  parties  while  representing that the secured
\nproperty is free from encumbrance.  It was represented in the suit proceedings
\nthat there was no fraud or malfeasance, but, demonstrably, the respondent  has
\nestablished  that  the  affidavit  filed  by  the defaulter is false, in that,
\namount has been realised from the third party-purchasers by sale of  undivided
\nshares  while  in the affidavit it has been stated that substantial sum is due
\nfrom third parties in respect of the hypotheca.  Therefore the scheme will not
\ncover the case of the petitioner who is guilty of fraud, willful  default  and
\nmalfeasance.  That apart, the amount offered by the petitioner is nowhere near
\nthe  amount  required or prescribed as per the standard formula for settlement
\nunder the Scheme.\n<\/p>\n
        19.  For the above reasons, this court is of the considered view  that
\nthe  respondent  cannot  be  compelled  to accept the petitioner’s offer or to
\nsettle the petitioner’s due in terms of the RBI Guidelines.   The  rights,  if
\nany,  the  petitioner  has  lost not only by filing a belated application, but
\nalso being a willful defaulter who is guilty  of  fraud  and  malfeasance  and
\ntrying  to  defeat  the  claims  of  the  respondent  Bank  by  alienating the
\nhypotheca.  When the application filed by the petitioner is pending before the
\nDRT, the petitioner has  approached  this  court  and  wanted  this  court  to
\nadjudicate the  present  claim  in  this  writ  petition as well.  The various
\nfindings recorded in the application for injunction on the  original  side  of
\nthis court speaks the conduct of the petitioner in volume.\n<\/p>\n
        20.   In  the light of the above discussion, this court holds that all
\nthe  points  are  answered  against  the  petitioner  and  in  favour  of  the
\nrespondent.   The  contention  that the respondent cannot give a new reason in
\nthe counter is unsustainable since the relief sought for is not only a writ of
\ncertiorari, but also mandamus.  Further, there is no duty or obligation on the
\npart of the respondent-Bank to receive the payment offered by  the  petitioner
\nbelatedly to  settle  the  dues.    The  petitioner  is  not entitled to claim
\nbenefits as per the guidelines of the RBI also.\n<\/p>\n
        21.  In the result, the writ petition fails and it is dismissed.    No
\ncosts.  Consequently, connected WPMP is also dismissed.\n<\/p>\n
Index:Yes
\nInternet:Yes
\ngkv
\n12-09-2002<\/p>\n
copy to:-\n<\/p>\n
1.  The Syndicate Bank,
\nrep.  by its General Manager
\nRecoveries & Rehabilitation Dept.,
\nCorporate Office,
\nBangalore<\/p>\n
2.  The Syndicate bank
\nRoyapettah Branch,
\nChennai-14<\/p>\n
E.PADMANABHAN.J.,<\/p>\n
Order in
\nW.P.No:  20288 of 2002<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ajay Kumar Gupta vs The Syndicate Bank on 12 September, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12\/09\/2002 CORAM THE HON’BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION No. 20288 of 2002 AND WMP.Nos. 28096 OF 2002 Ajay Kumar Gupta ..Petitioner -Vs- 1. The Syndicate Bank, rep. by its General Manager Recoveries […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-22534","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAjay Kumar Gupta vs The Syndicate Bank on 12 September, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajay-kumar-gupta-vs-the-syndicate-bank-on-12-september-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajay Kumar Gupta vs The Syndicate Bank on 12 September, 2002 - 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