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2018 (5) TMI 576
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....spondents No.4 to 20 - Banks be directed to realise and adjust the capitalized loss subsidy of Rs. 542 crores in the loan due amount of petitioner No.1-Company; (ii) the Bank-Consortium be directed to implement the Master Restructuring Agreement (MRA)/Corporate Debt Restructuring (CDR) Package dated 30.06.2014 in letter and spirit including to release working capital of Rs. 800 crore; (iii) the CDR (Empowered Group) or any other appropriate authority be directed to assess and the respondent-Banks be directed to compensate the petitioner No.1-Company for the loss or profits; (iv) the Ministry of Finance be directed to make the public sector Banks accountable; policy guidelines be formulated to prevent the borrowers from being prejudiced; (v) the Ministry of Textile and State of Madhya Pradesh be directed to grant the subsidy amount to first petitioner; (vi) the Insolvency Petition filed by respondent No.4 (SBI) before the National Company Law Tribunal, Chandigarh be declared to be frivolous, misconceived, vexatious and violative of guidelines dated 28.08.2017 issued by Reserve Bank of India; (vii) SBI and other lender-Banks be re....
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....16 (for short, 'the Code') before National Company Law Tribunal, Chandigarh Bench, Chandigarh (for short, 'the Tribunal') which is in complete violation of Reserve Bank of India (RBI) guidelines and the provisions of the Code. The Bank Consortium is bound to comply with the provisions of MRA dated 30.06.2014. As such, the action of the Bank Consortium is arbitrary, discriminatory and contrary to the RBI guidelines. The petitioner-company fulfilled all its obligations, but the Bank Consortium failed to verify legal and financial requirements of the RBI guidelines to sanction the Working Capital Loan. The petitioner-company successfully went through a forensic audit as directed by the Bank Consortium. The forensic auditors did not find any fault in the working of the petitioner-company. On the basis of forensic report, the bankers mandated for techno-economic viability study which was carried out by M/s Wazir Advisers, Gurgaon. In the meeting held on 27.03.2017, Wazir Advisers had confirmed that the petitioner-company is fully viable. The State Bank of India obtained the account through merger of State Bank of Patiala, State of Bank of Travancore, State Bank of Hydera....
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.... writ petition arises out of the contractual matters seeking specific performance and damages. The Tribunal has after long hearings passed the order dated 11.04.2018 after giving due consideration to each of the above objections. On facts, it is averred in the reply that the petitioner itself is in gross violation of MRA because the main condition in the MRA was that certain non-core assets such as properties in Gurugram and the hotel property in Agra were to be sold by the petitioners and the sale proceeds were to be used towards reduction of the Working Capital Term Loan but in utter disregard to the undertaking given by the petitioner, the amount received from sale of non-core assets was utilized by the petitioner-Company for the purpose other than the reduction of Working Capital Term Loan. This fact was also reflected in various meetings of Joint Lenders Forum (JLF) as per terms of MRA. The petitioner was required to close all accounts being maintained outside the Banks who form a part of the JLF and route all the money through the trust and retention account maintained but again in utter disregard to the same, the petitioner continued to maintain accounts with various banks o....
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.... the present case, the petitioner-Company had not given any details of the Terms Loans, like date of sanction of Term Loan and amount of term loan sanctioned and disbursed by each member of the Bank Consortium. It is difficult to locate the term loan accounts of the company as the petitioner-Company has many accounts with various banks under the Scheme. Therefore, the account will be eligible for subsidy only when all the conditions under the Scheme are fulfilled. It is not clear whether the petitioner has not received any subsidy at all or initially received subsidy and stopped receiving later due to its categorization as NPA due to restructuring. The details given by the petitioner are very old and are from quarter ending June, 2007. The beneficiaries are eligible under the TUF scheme only after fulfillment of all the conditions prescribed thereunder. Respondent No.2 too has prayed that the present writ petition deserves dismissal on this account. (7) Before adverting to the rival contentions, we deem it appropriate to very briefly refer to the statutory scheme of the Code of 2016. The Statute has been enacted for "reorganization and insolvency resolution of corporate persons,....
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....ct to the provisions of the Code and it says that "the provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law". (11) We have heard learned senior counsel for the parties at a considerable length and have gone through the record with their able assistance. (12) Mr. Mukul Rohtagi, learned senior counsel for the petitioners vehemently urged that the points raised in the present writ petition are on the issues, which cannot be decided by the Tribunal or under the Code. Consequently, the actions on the part of the respondents and Tribunal are without jurisdiction and in such circumstances, only this Court is competent to look into all these pleas. Learned senior counsel further contended that in the present case, the State Bank of India, respondent No.4, violated the RBI instructions. As per the provisions of Section 35AA of the Banking Regulation Act, the RBI can issue statutory instructions which are binding upon all the banks, including respondent No.4. During the restructuring proposal, initially a period of six months was given. ....
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....pletely without jurisdiction for which writ petition jurisdiction is the only appropriate remedy. (15) As regards to maintainability of the writ petition before this Court vis-a-vis right to file appeal under Section 61 of the Code, reliance has been placed upon the judgment of Hon'ble Supreme Court in Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta and Another, 1961 AIR (SC) 372, wherein the Larger Bench observed in para No. 27 as under:- "27 ....... The existence of such alternative remedy is not, however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action" (16) On the same issue, reliance has also been placed on the judgments of Hon'ble Supreme Court in Popcorn Entertainment and Another v. City Industrial Development Corpn. And Another, (2007) 9 Supreme Court Cases 593 and Verigamto Naveen v. Govt. of A.P. And Others, (2001) 8 Supreme Court Cases 344. (17) Learned senior counsel for the petitioners also urged that in identical matters, i.e. Jayaswal Neco Industries Limited and another Vs. Reserve Bank of India and others,....
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....ples of constructive res judicata to raise the same pleas and issues before this Court, which are the subject matter of adjudication before the Adjudicating Authority. On this point reliance has been placed on the Five Judge Bench judgment of Hon'ble Supreme Court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara and Ors. AIR 1964 SC 1013, laying down that:- "Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law." (21) On the same point, reliance was also placed on the judgment of this Court in Hope Plantations Ltd v. Taluk Land Board, Peermade and Anr., (1999) 5 SCC 590. (22) Learned senior counsel for respondent-Bank then urged that the petitioner-Company was itself in gross violation of terms of MRA and had be....
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....se all accounts being maintained by it outside the banks, who form a part of the JLF but in utter disregard to the same, the petitioner-Company continued to maintain accounts with various banks outside the JLF including ICICI Bank and thereby ensuring the diversion of funds from the lenders which was duly objected and recorded in various JLF meetings. All these points are primarily questions of facts, which can be effectively adjudicated by the Appellate Tribunal in appeal proceedings for which efficacious and effective remedy has been provided under Section 61 of the Code. (25) The petitioners cannot be heard to say that writ jurisdiction is the only remedy merely because they have chosen to add some new reliefs or the respondents in the writ petition. There is nothing on record to suggest that the petitioners have ever approached the State of Madhya Pradesh for the release of the due amount of alleged subsidy hence they cannot spring surprise on the Ministry of Textiles or State of Madhya Pradesh by seeking a writ of mandamus without even once agitating the matter before those agencies. Similarly, the question whether RBI guidelines have been followed or consciously violated b....
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....mplex nature and require oral evidence for their determination. d. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances." (28) It has been further held that the writ jurisdiction under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred and ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. (29) Taking the case from another angle, by now there is an order from learned Tribunal dated 11.4.2018 (Annexure P/24), wherein the facts and pleas taken by both the parties are said to have been considered, though the petitioner-Company is not satisfied with the said findings on the ground that the same have not been effectively redressed. On this account alone, the writ petition is surely not maintainable in the light of the view taken in Hope Plantations Ltd.'s case (supra). (30) So far as the issue regarding release of subsidy by the Ministry of Textiles is ....