TaxTMI 
TaxTMI 
2017 (10) TMI 1233
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....d 24.06.2016 and cancelling the One Time Settlement (OTS) granted vide proceedings dated 19.01.2016, as arbitrary and illegal. The petitioners seek a direction to the respondents to adhere to the OTS granted by them to the petitioners vide proceedings dated 19.01.2016, and to co-operate with them by partially releasing the secured assets proportionate to the payment made by them. The petitioners are carrying on business in the manufacture and export of buffalo and ox horn button blanks ever since 2001. The petitioner in W.P.No.28071 of 2016 obtained an Export Packing Credit and Rupee Advance against bills sent for collection, from the 1st respondent-bank, through the 2nd respondent for various limits which stood at Rs. 7.10 Crores as on 09.04.2008. The debt, secured by creating equitable mortgage of 12 items of immovable property owned by the proprietor of the petitioner and his family members, was declared a Non-Performing Asset on 31.03.2012. The 2nd respondent issued a notice, under Section13(2) of the SARFAESI Act on 07.07.2012, demanding payment of Rs. 7,27,93,768.64 ps. Thereafter, the 2nd respondent issued a demand notice dated 08.01.2013 calling upon the petitioners to pay....
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....n 04.11.2015 seeking to settle the amounts due, both by it and by its sister concern, on a one time payment of Rs. 1205 Lakhs, and to have informed that 10% thereof i.e Rs. 120 Lakhs would be paid upfront after receiving consent for the OTS. The petitioner's request was rejected by the 2nd respondent by their letter dated 06.11.2015 on the ground that the upfront amount of 10% was not paid along with the offer letter dated 04.11.2015. By its order in S.A.No.252 of 2015 dated 18.11.2015, the DRT directed the petitioner to deposit Rs. 60 Lakhs on or before 03.12.2015 and a further sum of Rs. 60 Lakhs on or before 14.12.2015 (totalling to Rs. 120 lakhs representing 10% of the OTS offer). Upon such deposit, the respondent-bank was directed to defer the proposed sale, consider the OTS proposal, and convey their decision on or before 17.12.2015. As the petitioner had expressed its willingness to make payment of the entire OTS offer of Rs. 1205 lakhs on or before 31.03.2016, the respondent-bank was directed to grant them time and consider the OTS proposal. The DRT made it clear that, in the event of failure of the petitioner to deposit the upfront amount of Rs. 120 Lakhs, the respondents....
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....recover its dues directly from the petitioner which, in turn, would get more value for their properties. The petitioner was directed to pay Rs. 10 Lakhs within one week from the date of the order, the respondent-bank was directed to allow inspection of the original title deeds to the probable buyers brought by the petitioner, accept the amount paid by the petitioner or by the probable buyers, and to co-operate with the petitioner in the sale of the secured assets to the buyers arranged by them. The OTS amount of Rs. 12.71 Crores was directed to be accepted on payment of interest thereon upto 30.06.2016. The petitioners were directed to arrange buyers, and pay the OTS amount along with interest upto 30.06.2016. The DRT directed that, on payment of Rs. 10 Lakhs within one week, the respondent-bank should defer the sale to be held on 18.05.2016, and allow time to the applicants to clear the dues upto 30.06.2016 by sale of the properties themselves; and, if the petitioner failed to pay Rs. 10 Lakhs within one week and in case the OTS amount along with interest, even after showing the original title deeds to the petitioners and their probable buyers, was not paid, the respondent-bank wa....
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....hedules to the Income Tax Act, 1961, and the Rules made thereunder. Thereafter the second respondent-bank issued a notice on 05.11.2015, under Section 13(4) of the SARFAESI Act, read with Section 8(6) of the Rules in respect of six items of immoveable property, proposing to conduct a sale on 14.12.2015. In the sale notice, the second respondent-bank stated that the amount due was as decreed by the DRT in O.A. No.50 of 2013 which was the subject matter of recovery in R.P. No.107 of 2014. The second respondent-bank fixed the reserve price as Rs. 161.64 lakhs for the six items of immoveable property. The second respondent-bank again issued E-auction sale notice, under Section 8(6) of the Rules, on 09.11.2015. The petitioner claims that a representation was submitted by their sister concern to the second respondent-bank on 04.11.2015 to settle the amounts due by them, and for a one time payment of Rs. 12.5 crores, and that 10% upfront amount of Rs. 120 lakhs would be paid after receiving consent for OTS. The petitioners' OTS request was rejected by the second respondentbank, by its letter dated 06.11.2015, on the ground that the upfront amount of 10% had not been paid along with the o....
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.... bank would be able to recover its dues directly from the petitioners, and the applicants would also be able to get more value for their property. The DRT directed the petitioner to pay Rs. 10 lakhs within one week from the date of the order, and directed the respondent bank to allow inspection of the original title deeds to the probable buyers brought by the petitioners, and to accept the amount paid by the petitioners or paid by the probable buyers. The respondent bank was also directed to cooperate with the petitioner in the sale of the secured assets to the buyers arranged by them. The OTS amount of 1270 lakhs was directed to be accepted on payment of interest thereon upto 30.06.2016. The petitioners were directed to arrange buyers, and to pay the OTS amount along with interest upto 30.06.2016. On payment of Rs. 10 lakhs within one week from the date of the order, the DRT directed the respondent-bank to defer the sale to be held on 18.05.2016, and to allow time to the petitioners to clear off the dues upto 30.06.2016, by sale of property themselves. The DRT made it clear that, in case the petitioners failed to pay Rs. 10 lakhs within one week and in case the OTS amount along wi....
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....ct; and since it did not contain a specific prayer and was vague, the Writ Petition as filed was not maintainable. The respondents contend that granting or rejecting OTS fell within the credit decision and discretionary power of the respondent-bank, for which a writ of mandamus cannot be issued; the bank cannot be compelled to accept the OTS proposal of the petitioner; granting of OTS may fall within the purview of contractual obligations, and rejection of OTS may mean breach of the contract; contractual obligations are not, ordinarily, enforced in proceedings under Article 226 of the Constitution of India; the petitioner's loan account was classified as an NPA on 29.07.2011 because of nonpayment of the dues; notices under Sections 13(2) and 13(4) were issued; the respondent-bank had filed O.A.Nos.46 and 50 of 2013, and had obtained recovery certificates dated 02.05.2014 and 23.07.2014 for Rs. 9,17,41,263.37ps. and Rs. 18,59,29,683/- respectively under Section 19 of the RDDB Act; the process of execution was pending before the Recovery Officer, DRT, Visakhapatnam; the respondent-bank was entitled to proceed under the SARFAESI Act without giving up the O.A or the recovery proceeding....
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.... bounced for want of funds; the respondent-bank was constrained to file criminal complaint Nos.816 of 2016 and 2340 of 2016 on 06.04.2016 and 27.05.2016 respectively; the petitioner had suppressed the fact that the cheques were dishonoured, only in order to secure an order from this Court; after issuing letter dated 25.02.2016, the respondent-bank had initiated proceedings under Rule 8(6) of the Rules to conduct eauction; the petitioners had filed W.P. No.16234 of 2016 and W.P.No.16243 of 2016, both of which were dismissed as withdrawn; the petitioner filed I.A.No.206 of 2016 in S.A.No.252 of 2015 requesting the DRT to restore the OTS proposal; the DRT passed an order dated 12.05.2016 directing the petitioner to pay Rs. 10 Lakhs within one week, and allow inspection of the title deeds to the probable buyers brought by the petitioner, without noticing that the original documents were marked as exhibits during the course of evidence of the respondent-bank, and were in the custody of the DRT; such orders were not enforceable against the bank; while deferring the sale, the DRT directed the petitioner to pay the OTS amount along with interest upto 30.06.2016; the petitioner never brough....
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....ed them either from withdrawing the applications filed in O.A. Nos.46 and 50 of 2013, or from seeking to recover the very same amount under the SARFAESI Act; the remedy available to the respondent-bank is only to pursue their applications under the RDDB Act, and not to continue with the action initiated by them earlier under the SARFAESI Act; the directions issued by the RBI, in its circular dated 21.07.2016, are referable to Section 21 of the Banking Regulation Act; these guidelines are binding on the respondentbank which should have given wide publicity for the One Time Settlement scheme offered by them; the respondent-bank has not furnished details, of the OTS scheme prevalent in its bank, even in the counter-affidavit filed by them before this Court; despite the directions of the DRT, the respondent-bank has also failed to cooperate with the petitioners in extending them the benefit of the OTS scheme; the respondent-bank ought to have permitted the petitioners to sell the properties by private treaty, and repay the entire amount due to the bank from the proceeds received on the sale of these immovable properties; the respondent bank had put these properties to sale at an abysma....
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....he SARFAESI Act stipulates that, where the dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application, in the form and manner as may be prescribed, to the Debts Recovery Tribunal ("DRT" for short) having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower. Section 13(11) provides that, without prejudice to the rights conferred under or by Section 13, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measured specifies in Section 13(4) in relation to the secured assets under the SARFAESI Act. Section 37 of the SARFAESI Act stipulates that the provisions of the SARFAESI Act, and the Rules made thereunder, shall be in addition and not in derogation of, among others, the RDDB Act. The RDDB Act is an Act to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions. Section 19 of the RDDB Act relates to the application to be filed before the DRT and, under sub-section (1) thereof, where a bank....
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.... the bank or financial institution for the purpose of taking action under the SARFAESI Act, if it had not taken any such action earlier under the SARFAESI Act. In case it desires to take action under the SARFAESI Act, a bank/financial institution may, instead of prosecuting the application made by it earlier under Section 19(1) of the RDDB Act, withdraw the said application. The words "that Act", as used in the first proviso to Section 19(1) of the RDDB Act, refer to the SARFAESI Act. The words "such action", used in the first proviso, mean the action taken earlier under the SARFAESI Act. In cases where action was not taken by a bank/financial institution under the SARFAESI Act, before the first proviso was inserted to Section 19(1) of the RDDB Act with effect from 11.11.2004, and they had only filed an application under Section 19(1) of the RDDB Act for recovery of their dues, the first proviso enables them to seek permission of the DRT to withdraw the application made earlier under Section 19(1) of the RDDB Act, and take action, for recovery of its dues, by the sale of the secured assets under the SARFAESI Act. Permission being granted by the DRT to withdraw the application mad....
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.... is an enabling provision, which may deal with myriad circumstances. It is not as if the bank/financial institution is precluded from instituting proceedings either under the SARFAESI Act or the RDDB Act merely because they had invoked the provisions of the other enactment earlier. There are three elements to the doctrine of election, namely, existence of two or more remedies; inconsistencies between such remedies; and a choice of one of them. If any one of the three elements does not exist, the doctrine will not apply. The doctrine of election of remedies is applicable only when there are two or more co-existent remedies, available to the litigants at the time of election, which are repugnant and inconsistent. As there is neither repugnancy nor inconsistency between the two remedies under the SARFAESI Act and the RDDB Act, the doctrine of election has no application. (Transcore1; Snell's Principles of Equity (31st Edn., p. 119). The RDDB and the SARFAESI Acts do not provide parallel remedies. The SARFAESI Act is treated as an additional remedy (Section 37) which is not inconsistent with the RDDB Act. Together they constitute one remedy and, therefore, the doctrine of election do....
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....sdiction under the SARFAESI Act, merely because a secured creditor has instituted proceedings under the RDDB Act after having initiated proceedings under the SARFAESI Act earlier, does not merit acceptance. II. HAS THE RESPONDENT-BANK VIOLATED RBI GUIDELINES REGARDING EXTENSION OF THE ONE-TIME SETTLEMENT SCHEME TO ITS BORROWERS? Section 21 of the Banking Regulation Act, 1949 confers power on the Reserve Bank of India ("RBI" for short) to control advances by banking companies. Under sub-section (1) thereof, where the RBI is satisfied, that it is necessary or expedient in the public interest or in the interests of depositors or banking policy so to do, it may determine the policy in relation to advances to be followed by banking companies generally, or by any banking company in particular, and when the policy has been so determined all banking companies or the banking company concerned, as the case may be, shall be bound to follow the policy so determined. The RBI is a statutory authority, and exercises supervisory power over the functioning of the scheduled banks. RBI is entitled to issue guidelines, from time to time, in matters relating to supervision of scheduled banks. (Sard....
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....re applicable both to them and the respondentbank. Clause 4.7 of the 2016 RBI directions relates to the debt restructuring mechanism for MSMEs, and clause 4.7(ii) refers to the earlier circular of the RBI dated 04.05.2009 which put in place loan policies governing extension of credit facilities, restructuring/rehabilitation policy for revival of potentially viable sick unit/enterprises, and a non-discretionary One Time Settlement Scheme for recovery of non-performing loans for the MSE sector, with the approval of the Board of Directors. Under clause 4.7 (iii) banks were advised to give wide publicity to the One Time Settlement Scheme implemented by them, placing it on the bank's website and through other possible modes of dissemination. In order to extend the benefits of the scheme to eligible borrowers, RBI directed the banks to allow reasonable time to the borrowers to submit the application, and to make payment of the dues. Sri P.S. Rajasekhar, Learned Counsel for the petitioner, would submit that the respondent bank has not given adequate publicity to its One Time Settlement Scheme. While Smt.T.Vidya Rani, Learned Standing Counsel for the respondent bank, would submit that th....
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..... It is unnecessary for us to dwell on this aspect any further as the OTS benefit, extended to the petitioners vide proceedings dated 19.01.2016, has been withdrawn by the 2nd respondent bank vide its proceedings dated 08.08.2016. On a specific query from this Court regarding the amount repaid by the petitioners till date, in discharge of their debt to the 2nd respondent-bank, Sri P.S.Rajasekhar, Learned Counsel for the petitioners, stated that, as against the principal loan amount of Rs. 19.10 Crores, the petitioners have paid Rs. 3.8 Crores so far. This means that Rs. 15.3 Crores, representing the principal amount due, remains unpaid till date. As against the principal amount then due of Rs. 16.50 Crores, the petitioner made an an OTS offer for Rs. 12.70 crores i.e. they wanted waiver of Rs. 3.80 Crores towards the principal debt itself, besides the entire interest due on the loan extended to them, by the 2nd respondent-bank in the years 2008-2009, more than 8 years ago. The 2nd respondent-bank, by its e-mail dated 19.01.2016, informed the petitioner that their OTS had been considered under the terms and conditions specified in the said letter. While the manner in which a one-t....
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....borrower and capitalised of which debits the borrower may not even be aware. If the practice of charging interest on quarterly rests is upheld and given a judicial recognition, unscrupulous banks may resort to charging interest even on monthly rests and capitalising the same. Statements of accounts supplied by banks to borrowers many a times do not contain particulars or details of debit entries and when written in hand are worse than medical prescriptions putting to test the eyes and wits of the borrowers. Instances of unscrupulous, unfair and unhealthy dealings can be multiplied though they cannot be generalised. Suffice it to observe that such issues shall have to be left open to be adjudicated upon in appropriate cases as and when actually arising for decision and we cannot venture into laying down law on such issues as do not arise for determination before us. However, we propose to place on record a few incidental observations, without which, we feel, our answer will not be complete and that we do as under: (1) "............ (2) ............... (3) ............... (4) .............. (5) The power conferred by Sections 21 and 35-A of the Banking Regulation Act, 1949 is ....
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....utions, to ensure safety and security of their deposits, even if the interest offered thereon is far lower than in other forms of investment. We wish to say no more, as the petitioners have failed even to adhere to the OTS offered by the 2nd respondent-bank which is now seeking to recover the entire amount due to it from the petitioners herein. III. IS FAILURE OF THE 2ND RESPONDENT-BANK TO SHOW THE TITLE DEEDS TO THE PETITIONER-BORROWER, ON THE GROUND THAT THEY ARE IN THE CUSTODY OF THE RECOVERY OFFICER OF THE DRT, FATAL? It is not in dispute that the title deeds, deposited by the petitioners with the 2nd respondent-Bank as security for the loan, are in the custody of the DRT. Rule 23 of the Debt Recovery Tribunal (Procedure) Rules, 1993 relates to the additional powers and duties of the Registrar of the DRT. It stipulates that, in addition to the powers conferred elsewhere in the Rules, the Registrar shall have the powers and duties, subject to any general or special order of the Presiding Officer, as are specified in clauses (i) to (vii) thereunder which, under clause (vii) and (viii), include the power to order grant of copies of documents to the parties to the proceedings; a....
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....mission to inspect the title deeds. Having chosen not to do so, the petitioners cannot now be heard to contend that the 2nd respondent bank has not showed them or the prospective buyers the title documents. The petitioners have neither disclosed the identity of the prospective buyer nor have they furnished his details in the Writ affidavit. The order of the DRT, in I.A.Nos.206 and 207 of 2016 in S.A. No.252 of 2015 dated 12.05.2016, merely required the respondentbank to allow inspection, of the original title deeds, by the probable buyers brought by the petitioners; and accept the amount paid by the petitioners or the probable buyers. By their letter dated 31.05.2016, the respondent-bank informed the petitioner that the original documents, in both the accounts, were lying with the DRT, Visakhapatnam in RP Nos.60 and 107 of 2014; the petitioner had xerox copies of the title deeds, and they could negotiate with the prospective buyers; the petitioner could arrange for inspection of the original documents, by the prospective buyers, with the DRT, Visakhapatnam on payment of the examination fee; and the original documents could not be withdrawn at this juncture, since the Suits were de....
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....ull and final payment of the entire OTS amount, and on a full satisfaction memo being filed before the DRT; and, at the time of conveying the bank's approval, they should give post dated cheques for the amounts payable as per the payment schedule. The petitioners were asked to confirm having accepted these terms and conditions. By their letter dated 20.01.2016, the petitioners informed the respondent-bank that they would endeavour to meet the commitments as per the conditions stipulated therein. Contending that there was very little time for mobilisation of the amount during January, 2016, the petitioners requested the respondentbank to permit them to pay Rs. 700 lakhs on or before 25.02.2016, the balance Rs. 451 Lakhs on or before 25.03.2016, and assured that the entire OTS amount would be cleared before 31.03.2016. They requested the respondent-bank to release the securities, at least to the extent of 45% of the partial amounts deposited, to enable them to realise the necessary amounts to facilitate further payments in the agreed manner. They requested the respondentbank to consider the following: (1) approval for payment of OTS dues in two instalments i.e. Rs. 700 Lakhs by 25.0....
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....08.08.2016, cancelled the OTS offer extended to the petitioners earlier on 19.01.2016. The petitioners filed the present Writ Petitions, and an interim order directing the respondent-bank not to take coercive steps for recovery of the balance amount due from the petitioners was passed on 23.08.2016. Consequently the petitioners have not paid a single rupee to the 2nd respondent-bank for the past one year and four months ever since 15.05.2016. Even after these Writ Petitions were filed before this Court on 19.08.2016, the petitioners have been in correspondence with the respondent-bank. Sri P.S. Rajasekhar, Learned Counsel for the petitioners, has placed before us copies of the letter addressed by the petitioners on 03.05.2017, and the reply of the respondentbank thereto on the very same day. In their letter dated 03.05.2017, the petitioners informed the respondent-bank that they were improving their OTS offer to Rs. 10.50 Crores, to close the NPA accounts, from their present OTS offer of Rs. 9.25 Crores. They requested the respondent-bank to consider and accept Rs. 10.50 Crores as the OTS towards full and final settlement of all their NPA accounts. They referred to the terms and co....
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....ank. Even otherwise, the petitioners have chosen not to pursue this request for, in their letter dated 03.05.2017, they have sought for release of the mortgaged securities only on payment of the OTS amount of Rs. 10.50 Crores, and have not requested proportionate release of their properties on part payment of the OTS amount. Despite the respondent-bank's request that they should deposit Rs. 10.50 Crores in a third party no lien account to show their bonafides, (for the said amount to be appropriated towards their loan in case their proposal was accepted and, in case the proposal was not accepted, for return of the said sum of Rs. 10.50 Crores to them), the petitioners have not taken up the offer of the respondent-bank to pay the said amount; and, under the protection of the interim order dated 23.08.2016, (which precluded the respondent-bank from taking coercive steps for recovery of the balance amount due from the petitioners account), have chosen not to pay even a single rupee towards the amounts due from them to the respondent bank. It is evident, therefore, that there are no bonafides in these Writ Petitions, and the petitioners are merely seeking to drag on proceedings and th....
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....reaty, even for receipt of the OTS amount which is far less than the total amount due from the petitioners. Even otherwise, the petitioners have not been able to show that any person was willing to purchase the subject immoveable properties by private treaty, and to pay a price which would enable the respondent bank to recover its dues, along with interest thereon, in its entirety. While Section 13(8) of the SARFAESI Act acknowledges the power of the bank/financial institution to tender the secured asset, for sale by private treaty, it does not obligate the bank to release the property piecemeal as and when proportionate payment is made by the borrower. In any event, the petitioners have not been able to show that they found a buyer, who was willing to pay a price far higher than the reserve price, for purchase of the subject properties, which would enable repayment of the entire amount due to the respondent-bank. The contention that the respondent-bank had put the subject properties to auction for an abysmally low price does not also merit acceptance. If, as is contended by the petitioners, the price at which the subject properties are sought to be sold are so abysmally low, noth....
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....cember, 2015, the petitioners were asked to pay the balance Rs. 1151 lakhs (Rs.11.51 Crores) in three monthly instalments in the months of January, February and March, 2016. After the OTS offer was made by the respondent-bank on 19.01.2016, the petitioners have paid only Rs. 10 Lakhs on 15.05.2016, in compliance with the order of the DRT in I.A.Nos.206 and 207 of 2016 in S.A.No.252 of 2015 dated 12.05.2016. As they have not paid the OTS offer amount of Rs. 12.71 Crores, within the time stipulated i.e., by 31st March, 2016, or even by the extended time granted by the DRT till 30.06.2016, the respondent-bank was justified in cancelling the OTS offer by its letter dated 08.08.2016. As against the OTS offer of Rs. 12.71 Crores, the petitioners have paid only Rs. 1.30 Crores and, even in terms of the said OTS offer, they were still due Rs. 11.41 Crores to the respondent-bank. The repeated indulgence shown to them by the DRT has, evidently, emboldened the petitioners to reduce the OTS offer to Rs. 9.35 Crores, and to subsequently marginally increase it to Rs. 10.50 Crores as is evident from their letter dated 03.05.2017, though the balance amount due, even in terms of the earlier OTS o....