Mr. Rajesh Agarwal vs Reserve Bank Of India

Between: Mr. Rajesh Agarwal, S/o. Late Satyanarayan Agarwal, Aged about 47 years, R/o. Signature One Block 3rd Floor, Road No.4, Banjara Hills, Hyderabad - 500 034. ... Petitioner AND Reserve Bank of India, Through Regional Director, 6 Sansad Marg, New Delhi, And others. ...Respondents

Counsel for the petitioner: Mr. Mukul Rohatgi, Senior Counsel

for Mr. Tarun G. Reddy

Counsel for the respondents: Mr. B. Nalin Kumar Mr. B. S. Prasad, Senior Counsel For Mr. K. Surender Mr. Namavarapu Rajeshwar Rao (ASSGI) Mr. Maheshwar Rao Kunchem Mr. M. V. Ramana Pearl Law Associates

< Gist:

> Head Note:

? CITATIONS: 1. (2019) 6 SCC 787 2. 1993 Supp. (4) SCC 260 3. (2005) 7 SCC 764 4. (2010) 10 SCC 744 5. (2007) 7 SCC 555 6. (2006) 5 SCC 167 7. (1992) 4 SCC 363 8. AIR 2015 SC 1523 9. (2007) 5 SCC 428 10. (1969) 2 SCC 262 11. (1978) 1 SCC 405 12. AIR 1967 SC 1269 13. (1981) 1 SCC 664 14. (2008) 14 SCC 151 15. (2011) 13 SCC 733 16. (1988) 3 SCC 416 2

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

WRIT PETITION No. 19102 OF 2019

JUDGMENT:

(Per Hon'ble the Chief Justice Sri Raghvendra Singh Chauhan)

Aggrieved by the non-inclusion of principles of natural justice in the

Master Directions on Fraud ('the Master Circular', for short), dated

01.07.2016, issued under Section 35-A of the Banking Regulation Act, 1949

by the Reserve Bank of India, aggrieved by the decision of the Joint Lenders

Forum ('the JLF', for short) dated 15-02-2019, and aggrieved by the

resolution of the Fraud Identification Committee ('FIC', for short) dated

31.07.2019, whereby both the JLF and the FIC have classified the account of

M/s. B. S. Limited, ('the Company', for short), of which the petitioner was

the former Chairman and Managing Director, as 'fraud' and 'willful

defaulter', the petitioner, Mr. Rajesh Agarwal, has approached this Court.

2. Briefly, the facts of the case are as under:

2.1. The petitioner was the Chairman and the Managing

Director of the Company--a Company incorporated and registered

under the Companies Act, 1956, having its registered office at

Hyderabad. The Company was engaged in the business of Power

Transmission & Distribution, Passive Telecom Infrastructure; it also

worked in the area of Renewable Energy, and Mineral Resources.

During the period 2006-2014, in the course of its business, the

Company approached several banks, including the respondent

Banks, and availed a loan of Rs.1406.00 Crores. In the year 2013,

the Madhya Pradesh Power Transmission Company Limited

('MPPTCL') awarded the work of construction of 220KVA and 132KVA

Sub-Stations, Transmission Lines, Augmentation Works and Feeder

Way works to the Company. However, according to the MPPTCL, as

there was delay in execution of the works, and shortage of working 3

capital, it terminated the contract with the Company. Consequently,

the MPPTCL also encashed the bank guarantees of Rs. 140.00

Crores. Due to the cancellation of contract, and the encashment of

the bank guarantee, the Company suffered huge financial losses.

Consequently, the Company was unable to repay the loan amount to

the Lender Banks. It, thus, committed default in repayment of the

loan amounts.

2.2. As per the Circular Guidelines of the Reserve Bank of India

('RBI'), respondent No. 1, all Lender Banks, with the State Bank of India

('SBI'), respondent No. 2 as the Lead Bank, formed the JLF (a Joint

Lenders Forum). On 29.06.2016 the JLF declared the Company's

accounts as Non-Performing Assets ('NPAs', for short). On the same day,

the JLF requested the Company to provide a Corrective Action Plan

towards regularization of its account. Moreover, in accordance with the

Scheme for Sustainable Structuring of Stressed Assets ('S4A', for short)--a

scheme announced by the RBI vide Circular dated 13.06.2016, the JLF

decided to adopt the said S4A scheme, and to conduct a Forensic Audit

and Techno-Economic Viability ('TEV') in its meeting held on 11.07.2016.

2.3. According to the petitioner, the Company submitted

clarifications to the Forensic Auditor. Basing on the Forensic Audit

Report, dated 29.08.2016, on 31.08.2016, the JLF closed the issue

observing that "there were no irregularities, with regard to fraudulent

transactions pointed out in the Forensic Audit Report".

2.4. However, basing on the TEV Report, dated 14.09.2016, in its

meeting, on 14.09.2016 itself, the JLF observed that the Company was

ineligible for S4A scheme as there were no minimum prescribed free cash

flows by the Company. Therefore, the JLF requested the Company to

submit an alternative plan for regularization of its account. Consequently,

the Company proposed a scheme under One Time Settlement ('OTS', for

short). However, the said proposal was rejected by the JLF in February, 4

2018. Thereafter, one of the lender Banks, i.e. IDBI Bank, the respondent

No. 9, declared the account of the Company as "Red Flagged Account"

('RFA', for short). Moreover, basing on the Second Forensic Audit Report,

dated 06.04.2018, on 21.04.2018, the IDBI Bank called for explanation

from the Company. Promptly, the Company submitted its reply on

24.04.2018. In its reply, the Company claimed that no irregular

transactions had taken place during the audit period. But still, on

10.05.2018, the IDBI Bank, the respondent No.9, sought for further

clarifications from the Company. The Company submitted its replies on

24.04.2018 and 10.05.2018.

2.5. Meanwhile, the SBI, the respondent No. 2, the Lead Bank,

filed a petition under Section 7 of the Insolvency and Bankruptcy Code,

2016 ('the Code', for short) before the National Company Law Tribunal,

Hyderabad Bench ('NCLT', for short). The petition was filed for declaring

the Company as insolvent. By order, dated 01.11.2018, the NCLT

admitted the application, and declared a moratorium against all

proceedings towards the Company till the completion of Corporate

Insolvency Resolution Process. Further, the NCLT appointed Dr. K.V.

Srinivas, as Interim Resolution Professional ('IRP', for short); it directed

the IRP to take charge of the management of the Company, and to issue

the necessary public announcement. The NCLT also directed the IRP to

discharge its functions under Section 20 of the Code. However, as the

resolution plan could not revive the Company, by order dated 04.11.2019

the NCLT directed the winding up of the Company and appointed an

Official Liquidator ('OL', for short).

2.6. While things stood thus, by invoking Clause 2.2.1(g) of the

Master Circular, on 15.02.2019, the JLF declared the account of the

Company as 'fraud'. Subsequently, on 31.07.2019, the FIC resolved to

identify the Company's account as 'fraud'. Both the decisions by the JLF 5

and the FIC were, thus, taken prior to the appointment of the OL on

04.11.2019 by the NCLT.

2.7. Initially, the petitioner challenged only the decision of the JLF

dated 15.02.2019 before this Court. The petitioner did not challenge the

Resolution, dated 31.07.2019, passed by the FIC before this Court.

However, when this lacuna was pointed out to the petitioner,

subsequently the petitioner amended the writ petition, and challenged the

same. The amendment application was allowed by this Court by order

dated 07.09.2020. Thus, the present writ petition, with the

aforementioned grievances, before this Court.

3. Mr. B.S. Prasad, the learned Senior Counsel for SBI Bank,

has raised a preliminary objection, with regard to the maintainability of

the writ petition before this Court. According to the learned Senior

Counsel, the SBI had already approached the NCLT for declaring the

Company as insolvent. By order, dated 01.11.2018, the NCLT had

appointed the IRP; by order, dated 29.04.2019, the NCLT had extended

the term of the IRP. Since the IRP could not resurrect the Company

despite his best efforts, by order, dated 04.11.2019, the NCLT had

appointed an OL. Once the OL had been appointed, the management of

the Company falls within the jurisdiction of the OL. Therefore, the

petitioner, who is a former Chairman and Managing Director of the

Company, has no relevant role to play in the affairs of the Company.

Hence, the petitioner lacks the locus standi to challenge the order, dated

15.02.2019 passed by the JLF, and the consequential resolution, dated

31.07.2019, passed by the FIC, and to challenge the legal validity of the

Master Circular issued by the RBI.

3.1. Secondly, once a company's account is declared as 'fraud', or

in other words, the company is declared as holder of fraudulent account,

the civil and criminal consequences will be faced by the Company, and not

by the petitioner. Therefore, the petitioner is unjustified in claiming that 6

his fundamental and civil rights are being adversely affected by the

impugned decision of the JLF, and the resolution of the FIC. Hence, the

writ petition is not maintainable before this Court.

3.2. On the other hand, Mr. Mukul Rohatgi, the learned Senior

Counsel for the petitioner, has argued that according to Clause 8.12.1 of

the Master Circular, the penal provisions would not only affect the

fraudulent borrower, i.e. the Company, but would also adversely affect the

Promoter, Directors and other Whole Time Directors of the Company, such

as the petitioner. For, these Directors would be debarred from availing

the bank finance from Scheduled Commercial Banks, Development

Financial Institutions, Government owned NBFCs, Investment

Institutions, etc., for a period of five years from the date of full payment of

the defrauded amount. Even after the lapse of five years, discretion is

given to the financial institutions to decide whether to lend money to the

Director(s) of the Company or not. Therefore, the petitioner would be

denied the right to borrow finances from financial institutions at least for

five years, and perhaps, for the rest of his life. Consequently, the

petitioner would be denied the fundamental right to carry on a trade, or a

business. Hence, the impugned decision of the JLF, and the resolution of

the FIC adversely affect the petitioner's fundamental right under Article

19(1)(g) of the Constitution of India. Further, since the right to livelihood

has been interpreted as part of the fundamental right to life, under Article

21 of the Constitution of India, the impugned decisions also adversely

affect the petitioner's fundamental right under Article 21 of the

Constitution of India. Therefore, the petitioner does have the right to

challenge the said decisions.

3.3. Secondly, the account of the Company has been declared as

'fraud' by the JLF and the FIC without giving either the Company, or the

petitioner an opportunity of hearing. The opportunity of hearing has been

denied to the petitioner and the Company ostensibly on the ground that 7

the Master Circular does not include the right of hearing in its scope and

ambit. Therefore, the petitioner has a right to challenge the

constitutionally validity of the Master Circular. Moreover, the petitioner

has raised seminal constitutional issue with regard to the interpretation

and legal validity of the Master Circular. Hence, the petition deserves to be

entertained and, indeed, allowed.

3.4. Thirdly, even if the NCLT has appointed the OL, even then it

does not preclude the petitioner from challenging the impugned decisions,

and from challenging the Master Circular before this Court. Since the

petitioner's fundamental rights are being adversely affected by the Master

Circular, and by the impugned decision of the JLF, and the resolution of

the FIC, the petitioner is legally entitled to challenge the same before this

Court under Article 226 of the Constitution of India.

4. Heard the learned counsel for the parties on the preliminary

objection.

5. Although this Court will deal with other clauses of the Master

Circular in the later part of the judgment, for the present, to decide the

preliminary objection, it is imperative to consider Clause 8.12.1 and

8.12.2 of the Master Circular.

6. Clause 8.12.1 and Clause 8.12.2 of the Master Circular are as

under:-

8.12.1. In general, the penal provisions as applicable to willful defaulters would apply to the fraudulent borrower including the promoter director(s) and other whole time directors of the company insofar as raising of funds from the banking system or from the capital markets by companies with which they are associated is concerned, etc. In particular, borrowers who have defaulted and have also committed a fraud in the account would be debarred from availing bank finance from Scheduled Commercial Banks, Development Financial Institutions, Government owned NBFCs, Investment Institutions, etc., for a period of five years from the date of full payment of the defrauded amount. After this period, it is for individual institutions to take a call on whether to lend to such a borrower. The penal provisions would apply to non-whole time directors (like nominee directors and independent directors) only in rarest of cases based on conclusive proof of their complicity.

8

8.12.2. No restructuring or grant of additional facilities may be made in the case of RFA or fraud accounts. However, in cases of fraud/malfeasance where the existing promoters are replaced by new promoters and the borrower company is totally delinked from such erstwhile promoters/management, banks and JLF may take a view on restructuring of such accounts based on their viability, without prejudice to the continuance of criminal action against the erstwhile promoters /management.

7. A bare perusal of Clause 8.12.1 of Master Circular clearly

reveals that once a company is declared to be a fraudulent borrower, "the

Promoter, Director(s) and other whole time Directors of the company" are

denied a right to avail the bank finance from the financial institutions for

a period of five years. Even after the period of five years, it is for the

financial institutions to decide whether to lend monies to the Director(s) of

the company or not? Moreover, under Clause 8.12.2 of the Master

Circular, "the Directors are denied restructuring or grant of additional

facilities by the financial institutions". Thus, obviously once a company is

declared as a fraudulent borrower, the Director's civil and fundamental

rights are adversely affected to a great extent. For, with the denial of

financial assistance from the banking/financial sector, that too for a

period of five years or more, the Director(s), such as the petitioner, cannot

easily carry on any business or trade. Moreover, they would also be

denied of additional facilities by the financial institutions. Considering the

fact that the Director(s) would be branded as a 'fraudster', the chances of

his/her being lent money, or finances, by a financial institution is rather

slim. Therefore, the learned Senior Counsel for the petitioner is well

justified in claiming that such a declaration by the JLF, and by the FIC

adversely affects, both the civil and fundamental rights of the petitioner.

Needless to say, once the civil or fundamental rights of a person are

affected, the person does have the right of access to justice under Article

226 of the Constitution of India.

9

8. In the case of SBI v. Jah Developers (P) Limited1 while

dealing with the case of willful defaulter, the Hon'ble Supreme Court has

opined that being declared as willful defaulter would adversely affect the

fundamental right of the Director(s) under Article 19 (1) (g) of the

Constitution of India. The same logic would apply with greater force in the

present case. For, the declaration of being holder of a fraudulent account

has far more serious consequences than being declared as a willful

defaulter. Hence, undoubtedly, the fundamental rights of the petitioner

would be adversely affected by the decision of the JLF, and by the

resolution of the FIC. Thus, the petitioner does have the right to file the

present writ petition before this Court.

9. Moreover, even if the OL has been appointed by NCLT, by its

order, dated 04.11.2019, it does not pre-empt the petitioner from

challenging the impugned decisions, and the legality of the Master

Circular. Furthermore, the impugned decisions were taken by the JLF on

15.02.2019, and by the FIC on 31.07.2019, whereas the OL was appointed

on 04.11.2019. Thus, the OL was appointed after the decisions were taken

by the JLF and the FIC. Further, mere appointment of an OL does not

dilute the impact of Clause 8.12.1 and Clause 8.12.2 of the Master

Circular. Therefore, the petitioner can still challenge the legality of the

Master Circular, and also the impugned decisions mentioned hereinabove.

Hence, this Court does not find any force in the preliminary objection

raised by Mr. B.S. Prasad, the learned Senior Counsel for the respondent

No. 2. Thus, the preliminary objection is, hereby, rejected.

10. Mr. Mukul Rohatgi, the learned Senior Counsel appearing for

the petitioner, has raised the following contentions before this Court:-

10.1. Firstly, the Master Circular issued on 01.07.2016 (updated on

03.07.2017) has been issued under Section 35-A of the Banking

Regulation Act, 1949. Thus, the Master Circular has statutory force.

1

(2019) 6 SCC 787 10

10.2. Secondly, the Master Circular is an elaborate one, which not

only reveals the purpose of the Circular, but also contains general and

specific guidelines to be followed by the banks. Furthermore, it contains

elaborate procedure for dealing with borrowers. Hence, it has prescribed

different steps to be taken, and different stages to be reached before

declaring an account as 'fraud', or the borrower as 'dealing with a

fraudulent account'. But despite the different stages prescribed, and the

elaborate procedure laid down, a crucial step is conspicuously missing:

giving an opportunity of hearing to the borrower before declaring the

account of the borrower as 'fraud' or declaring the borrower as 'a

fraudster', or 'a holder of a fraudulent account'.

10.3. Thirdly, upon declaration of a borrower as a fraudster, grave

criminal and civil consequences automatically follow. According to Clause

8.9.5, once the JLF decides, either by consensus, or by majority, to

classify the account as 'fraud', it must immediately report its decision to

the RBI, and within thirty days, a complaint should be lodged with the

CBI or other law enforcement agency. According to Clause 8.11.1, "the

banks are required to lodge the complaint with the law enforcement

agencies immediately on detection of fraud. There should ideally not be any

delay in filing of the complaints with the law enforcement agencies since

delays may result in the loss of relevant 'relied upon' documents, non-

availability of witnesses, absconding of borrowers and also the money trail

getting cold in addition to asset stripping by the fraudulent borrower".

Thus, there is a penal consequence as the borrower immediately gets

entangled in a criminal case. Such entanglement adversely affects both

the goodwill of the person in the market, and his reputation in the society.

Besides, the person is required to go through the rigors of a criminal trial.

10.4. Fourthly, likewise, there are civil consequences immediately

after a borrower is declared to be holder of a fraudulent account--

consequences mentioned hereinabove. Despite the fact that grave penal 11

and civil consequences immediately adversely affect the fundamental and

civil rights of the borrower, the Master Circular does not prescribe an

opportunity of hearing to be given to the borrower before the JLF.

10.5. Fifthly, ironically, while the borrower is not provided with an

opportunity of hearing, according to Clause 8.12.4, third parties, such as

builders, warehouse/cold storage owners, motor vehicle/tractor dealers,

travel agents etc., and professionals such as architects, valuers, chartered

accountants, advocates etc., who are also held to be accountable if they

played a vital role in credit sanction/disbursement, or facilitated the

preparation of frauds, such persons have to be provided with an

opportunity of hearing under Clause 8.12.5. Thus, while others who may

be remotely related to the alleged fraud are provided with an opportunity

of hearing, the same is denied to the borrower.

10.6. Sixthly, relying on the case of Jah Developers (P) Limited

(supra) the learned Senior Counsel has pleaded that the said case deals

with the case of willful defaulters. The case of willful defaulters is on a

lower rung than a case of borrower/holder of a fraudulent account. Yet,

in the Jah Developers (P) Limited (supra), while dealing with the case of

willful defaulters, the Hon'ble Supreme Court has opined that before the

borrower can be declared as a willful defaulter, an opportunity of hearing

necessarily has to be given to the borrower. Therefore, while an

opportunity of hearing is being given to a willful defaulter - a borrower

who allegedly has committed a lesser civil wrong, a fraudster who has

allegedly committed a graver civil wrong, is denied an opportunity of

hearing. Therefore, an opportunity of hearing would have to be

necessarily read into the Master Circular.

10.7. Lastly, if the principles of natural justice were not read into

the Master Circular, the Master Circular bestows the JLF and the FIC with

unbridled power. The decision of the JLF and of the FIC would suffer from 12

arbitrariness, unreasonableness and unfairness. Thus, such a decision

would be violative of Article 14 of the Constitution of India. Moreover,

since such a decision would adversely affect the right to carry on a trade

or business under Article 19 (1) (g) of the Constitution of India, and the

right of livelihood of the borrower, and since the procedure is an

unreasonable one, the Master Circular is violative of Article 21 of the

Constitution of India. Hence, in order to save the Master Circular from

being declared as constitutionally invalid, it is necessary that the

principles of natural justice must be read into it by this Court.

11. Dealing with the factual matrix of the case, the learned Senior

Counsel has raised the following contentions:-

11.1. Firstly, according to the JLF and the FIC, there were two

reports prepared, namely one by M/s. J. Singh & Associates, Mumbai

(Forensic Audit Report, dated 06.04.2018), and the other by Dr. K. V.

Srinivas, IRP (Transaction Audit Report, dated Nil). However, the copies of

these Reports were never furnished either to the petitioner, or the

Company. Therefore, neither the petitioner, nor the Company was given

an opportunity to explain, or to challenge the findings of these two

Reports.

11.2. Secondly, although the IDBI Bank has mentioned the

Forensic Audit Report, dated 06.04.2018, in its letter dated 21.04.2018,

but the Bank has merely paraphrased the abstracts of the Report. Since

the exact words of the Report, and the copy of the Report were not given to

the Company, or to the petitioner, neither of them could properly submit

their explanation to the findings of the Forensic Audit Report. Therefore,

the petitioner was denied a substantive opportunity of hearing, both by

the IDBI Bank, and by the JLF.

11.3. Thirdly, the minutes of the meeting held by the JLF on

15.02.2019 reveal interesting facts of the meeting : (i) on four different 13

points, (namely in item Nos.2, 4, 5 & 8) the JLF had perused the Report of

the Forensic Auditor, and had agreed to close these four different factors

which were initially read against the borrower. For, the JLF was satisfied

by the explanation given by the borrower Company to the Forensic

Auditor; (ii) on three different accounts (in item Nos. 1, 3 and 8) the JLF

had decided to call for further clarification from the Forensic Auditor.

However, the JLF was of the opinion that "if no clarification is sought from

the Forensic Auditor", the account will be classified as 'fraud'". According

to the learned Senior Counsel, 'fraud' cannot be presumed or alleged; it

must be established. Moreover, as pointed out above, on the basis of the

clarification submitted by the borrower, and on the basis of the finding of

the Forensic Auditor on four different accounts, the objections raised by

the JFL were closed. Therefore, according to the learned Senior Counsel,

before declaring the Company's account as 'fraud', in fact, the JLF should

have waited for further clarification by the Forensic Auditor. But instead

of doing so, the JLF jumped to the conclusion that the Company is not

only holder of a fraudulent account, but is also a 'willful defaulter'; (iii) as

far as the analysis dealing with the trading activity other than coal is

concerned, an inconclusive decision was reached. Despite an inconclusive

decision, the JLF has decided to declare the account held by the Company

as 'fraud' that too, 'for the above reasons'; (iv) on the one hand, the JLF

had ordered that further clarification be sought from the Forensic Auditor,

yet on the other hand, the JLF concluded that "hence, it was unanimously

decided that the account be treated as fraud for the above reasons". Once

the JLF is waiting for further clarification from the Forensic Auditor, it is

unjustified in declaring the account of the Company as 'fraud'. After all,

such a conclusion could not be reached conclusively till all the evidence

was available with the JLF; (v) if the Company were given an opportunity

of hearing, it could have easily explained the finding of the Forensic

Auditor. It could also have cleared the doubts in the mind of the JLF, 14

with regard to the specific aspects of the case. But without giving such an

opportunity of hearing, behind the back of the Company, the JLF has

jumped the gun; it has declared the Company's account as 'fraud'. As

pointed out hereinabove, both the penal and civil consequences have come

into effect immediately after such a declaration by the JLF.

11.4. Fourthly, the FIC has referred to a report submitted by

Dr. K.V. Srinivas, IRP. However, the said Report has neither seen the light

of the day, nor been referred to by the JLF. Thus, the Report is an

unknown piece of evidence which has been read against the Company.

11.5. Fifthly, even the resolution passed by the FIC is a mechanical

one. For, the FIC has not waited for any clarification to be offered by the

Forensic Auditor. Moreover, even the FIC has not given an opportunity of

hearing to the Company. Therefore, the principles of natural justice have

been violated. Hence, the impugned decision dated 15.02.2019, and the

resolution dated 31.07.2019, deserve to be set aside by this Court.

12. On the other hand, Mr. Nalin Kumar, the learned Standing

Counsel for RBI, and Mr. B.S. Prasad, the learned Senior Counsel for the

SBI, have vehemently raised the following counter-arguments:

12.1. Firstly, the purpose of the Master Circular is to detect frauds,

in the banking system, as expeditiously as possible, and to report the

fraud both to the RBI, and to the law enforcement agencies. The Master

Circular aims to enable "faster dissemination of information by the Reserve

Bank of India to banks on the details of frauds, unscrupulous borrowers

and related parties, based on banks' reporting so that necessary

safeguards / preventive measures by way of appropriate procedures and

internal checks may be introduced and caution exercised while dealing with

such parties by banks". Therefore, according to both the learned counsel,

it is imperative that a decision be taken by the JLF at the earliest to

declare the account as 'fraud', to report its decision to the RBI, and to

expeditiously initiate the criminal investigation. Moreover, in case the 15

decision is not taken expeditiously, and not reported to the RBI, or to the

investigating agency, fraudsters will continue to play fraud on other

banks. Such illegal actions on their part will endanger the stability of the

banking sector. Since the banking sector deals with the monies of the

public at large, it is in the interest of the public that the decision be taken

as quickly as possible without undue wastage of time. It is for these

reasons, that the Master Circular purposefully does not include an

opportunity of hearing being given to the borrower.

12.2. Secondly, the very title of the Master Circular i.e.

"Classification and Reporting...." clearly indicates that there are two

purposes of the Circular, namely (i) to classify an account as 'fraud', and

(ii) to report the decision both to the RBI and to the law enforcement

agencies. Since the decision and investigation needs to be fast paced, the

requirement of principles of natural justice should not be read into the

Circular.

12.3. Thirdly, the meeting of the JLF is not an adjudicatory process;

it is merely an administrative function. Therefore, the principles of

natural justice cannot be read as part and parcel of the procedure to be

adopted by the JLF. Hence, the principles of natural justice cannot be

read into the Master Circular. Therefore, there is no need to give an

opportunity of hearing to the borrower before declaring the borrower's

account as 'fraud'.

12.4. Fourthly, the purpose of reaching the conclusion is to set the

criminal law into motion by reporting the fraud to the investigating

agencies. According to Mr. B. Nalin, the lodging of a complaint with the

investigating agencies is akin to filing an F.I.R. under Section 154 of

Cr. P. C. Hence, there is no legal requirement of giving an opportunity of

hearing to the alleged accused. Therefore, the principles of natural justice

cannot and should not be read into the Master Circular. 16

12.5. Fifthly, the application of principles of natural justice is not a

universal one. Indeed, there are circumstances where the said principles

can be ignored. In order to support this plea, the learned counsel have

relied on Union of India v. W. N. Chadha2, Ajit Kumar Nag v. General

Manager (PJ), Indian Oil Corporation Limited3 and CCI v. SAIL4.

Therefore, the existence of principles of natural justice cannot be read in

every statute, or a circular. There are, indeed, certain circumstances,

such as dire urgency, where the principles of natural justice can be denied

to a person. Since the Company is a holder of a fraudulent account, the

Company need not be given an opportunity of hearing.

12.6. Lastly, as far as the decision of the Apex Court in the case of

Jah Developers (P) Limited (supra) is concerned, the learned counsel

have pleaded that the said case deals with 'willful defaulters', and not with

'fraudster'. Therefore, the opinion of the Hon'ble Supreme Court qua

willful defaulters cannot be applied, and should not be applied to the case

of a fraudster. Moreover, an obiter of the Apex Court is not binding on the

High Court. In order to support this contention, the learned counsel have

relied on Girnar Traders v. State of Maharashtra5, State of Haryana v.

Ranbir6, and C.I.T. v. Sun Engineering Works (P) Limited7.

13. While dealing with the factual matrix of the case, Mr. B.S.

Prasad, the learned Standing Counsel for SBI, has raised the following

counter-contentions:-

13.1. Firstly, the IDBI Bank had brought the Forensic Audit Report

to the notice of the borrower Company in its letter, dated 21.04.2018. In

fact, the Company had replied to the same. Therefore, the petitioner is

unjustified in claiming that the Company was not given an opportunity of

hearing by the JLF.

2

1993 Supp. (4) SCC 260 3 (2005) 7 SCC 764 4 (2010) 10 SCC 744 5 (2007) 7 SCC 555 6 (2006) 5 SCC 167 7 (1992) 4 SCC 363 17

13.2. Secondly, according to the Final Assessment Order, dated

29.11.2017, the Income Tax Department had also noticed that some sham

transactions were carried out by the Company. Therefore, the JLF was

justified in declaring the borrower as a holder of a fraudulent account.

Moreover, in its order dated 27.02.2018, the NCLT had noticed the fact

that the Company had huge trade receivables. Yet, it could not

release/recover any of the outstanding trade receivables. Therefore,

apparently, the Company had played fraud. Hence, the JLF was justified

in concluding that the Company is a holder of a fraud account. Therefore,

according to the learned counsel, the impugned order should not be set

aside by this Court.

13.3. Lastly, the FIC has considered the entire material which was

placed before it; it had legally concluded that the Company was holder of a

'fraud' account. Hence, the learned Senior Counsel has supported both

the impugned orders.

14. In rejoinder, Mr. Mukul Rohatgi, the learned Senior Counsel,

has submitted the following arguments:-

14.1. Firstly, the Master Circular is rather confusing, thus, vague.

For Clause 8.12.1 of the Master Circular, dealing with penal

consequences, firstly states that the procedure for declaring a borrower as

a willful defaulter should be followed. Moreover, according to the Hon'ble

Supreme Court in the case of Jah Developers (supra), before a borrower

can be declared as a 'willful defaulter', the borrower has to be given an

opportunity of hearing by the JLF. Yet, the Master Circular dealing with

fraud account denies such an opportunity of hearing to a borrower who

may be declared as holder of fraud account. But simultaneously, the

impugned Master Circular prescribes that the procedure for declaring the

borrower as 'willful defaulter' would have to be followed. Thus, it is

unclear whether an opportunity of hearing should be given under Clauses

8.9.4 and 8.9.5 of the Master Circular, or not? Relying on the case of 18 Shreya Singhal v. Union of India8, the learned Senior Counsel pleads

that the impugned Master Circular should be declared as legally invalid on

the ground of vagueness.

14.2. Secondly, relying on Oriental Insurance CO. LTD. V. Meena

Variyal9, the learned counsel has pleaded that even an obiter opinion of

the Apex Court is, indeed, binding on the High Courts. Therefore, the

opinion expressed by the Apex Court in the case of Jah Developers (P)

Limited (supra), even if considered to be an obiter, would equally be

binding on this Court. Moreover, in the impugned order, dated

15.02.2019, the JLF has not just declared the Company as holder of a

fraud account, but more so has declared the Company as a 'willful

defaulter'. Therefore, even before declaring the Company as a willful

defaulter, an opportunity of hearing had to be given in accordance with

the principles laid down by the Apex Court in the case of Jah Developers

(P) Limited (supra).

14.3. Thirdly, the contention raised on the basis of the Final

Assessment Order of the Income Tax Department, dated 29.11.2017, is

highly misplaced. For, the said Final Assessment Order was challenged

before the Income Tax Tribunal. By order, dated 29.11.2018, the Income

Tax Tribunal had set aside the Final Assessment Order. Therefore, by

relying upon the Final Assessment Order, the learned Standing Counsel

for the SBI is cleverly trying to mislead this Court.

14.4. Lastly, even the alleged finding given by the NCLT is

irrelevant. For, the said finding was given after the decision was taken by

the JLF on 15.02.2019. Most importantly, neither the Final Assessment

Order passed by the Assessing Authority, dated 29.11.2017, nor the

finding given by the NCLT form the basis of the decision reached by the

8 AIR 2015 SC 1523 9 (2007) 5 SCC 428 19

JLF in its meeting, dated 15.02.2019. Hence, the reliance on both these

documents is highly mischievous.

15. Heard the learned counsel for the parties, perused the

impugned Master Circular, examined the impugned orders, and

considered the record submitted by the respective parties.

16. The issues before this Court are:-

A) Whether the principles of natural justice, especially audi alteram

partem (giving opportunity of hearing to the other side) should be read into

the Master Circular or not?

B) Whether the JLF was justified in concluding in its meeting,

dated 15.02.2019 that the borrower Company is holder of fraudulent

account or not?

C) Whether the FIC was justified in concluding that the borrower

Company is a holder of fraudulent account or not? And

D) Relief.

17. However, the issue, with regard to declaring the Company as

a 'willful defaulter', has not been argued before this court. Therefore, the

said issue is left open in the present case.

18. The principles of natural justice are like a clear sunshine

which pervade and permeate into the deepest dark corners, and kill the

germs of injustice. The principles of natural justice rein in arbitrary,

discriminatory and irrational decisions. They protect an individual from

the might of the State, or its instrumentalities. They provide a succor to

the common man; they assure the common man that justice not only

appears to be done, but is being done to his/her cause. By assuring the

people that justice has, indeed, been done, the principles of natural justice

restore and strengthen the faith and belief of the people in the rule of law.

Not only the three branches of the State, but the State itself rests and

progresses on the faith of its people. For, when the faith of the people is

shaken, the people may demolish the very foundation of the State. Hence, 20

the principles of natural justice serve myriad purposes. These purposes

may not be explicit, but nonetheless, intrinsically they play a vital role in

maintaining the metabolism of the State.

19. In the case of A. K. Kraipak v. Union of India10, the Hon'ble

Supreme Court had clearly noticed that "the dividing line between an

administrative power and a quasi-judicial power is quite thin and is being

gradually obliterated". What was opined in the year 1969 was further

confirmed, a decade later, in the case of Mohinder Singh Gill v. Chief

Election Commissioner11. The Hon'ble Supreme Court had clearly

declared that "the distinction between administrative and quasi-judicial

functions are (sic) no longer relevant. The principles of natural justice are as

much applicable to an administrative action as they are to a quasi-judicial

one". Therefore, it is irrelevant whether the function of the JLF, or of the

FIC is an administrative one, or a quasi-judicial one. Even if JLF performs

an administrative function, the moot issue is whether the principles of

natural justice should still be read into its procedure, or not?

20. Lord Parker in the Queen's Bench decision in In re

H.K. (Infants) [(1963) 3 All ER 191] had opined that "as good administration

and an honest or bona fide decision require not merely impartiality or

merely bringing one's mind to bear on the problem, but acting fairly. Thus

irrespective of whether the power conferred on a statutory body or tribunal

is administrative or quasi-judicial, a duty to act fairly, that is, in consonance

with the fundamental principles of substantive justice is generally implied,

because the presumption is that in a democratic polity wedded to the rule of

law, the State or the legislature does not intend that in the exercise of their

statutory powers its functionaries should act unfairly or unjustly".

10

(1969) 2 SCC 262 11 (1978) 1 SCC 405 21

21. In the case of State of Orissa v. Binapani Dei12, the Apex

Court has observed as under:-

9. ... An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom in enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof.

The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

12. ... It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State.

22. In the case of Swadeshi Cotton Mills v. Union of India13, the

Apex Court posed two questions: what is natural justice? And what is the

extent of applicability of principles of natural justice? The Hon'ble

Supreme Court opined as under:-

12

AIR 1967 SC 1269 13 (1981) 1 SCC 664 22

26. Well then, what is "natural justice"? The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formula.

Historically, "natural justice" has been used in a way "which implies the existence of moral principles of self-evident and unarguable truth". [ Paul Jackson : Natural Justice, 2nd Edn., p 1] In course of time, Judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice". Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules.

27. But two fundamental maxims of natural justice have now become deeply and indelibly ingrained in the common consciousness of mankind, as pre-eminently necessary to ensure that the law is applied impartially, objectively and fairly. Described in the form of Latin tags these twin principles are: (i) audi alteram partem and (ii) nemo judex in re sua. For the purpose of the question posed above, we are primarily concerned with the first. This principle was well-recognised even in the ancient world. Seneca, the philosopher, is said to have referred in Medea that it is unjust to reach a decision without a full hearing. In Maneka Gandhi case [(1978) 1 SCC 405 : (1978) 2 SCR 272] , Bhagwati, J. emphasised that audi alteram partem is a highly effective rule devised by the courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. Hence its reach should not be narrowed and its applicability circumscribed.

(Emphasis added)

23. In the case of Mohinder Singh Gill (supra), Hon'ble Mr.

Justice V. R. Krishna Iyer had opined that "natural justice is now a

brooding omnipresence although varying in its play. ...Its essence is good

conscience in a given situation; nothing more - but nothing less".

24. In the case of Swadeshi Cotton Mills (supra), the Hon'ble

Supreme Court has further opined as under:-

31. The rules of natural justice can operate only in areas not covered by any law validly made. They can supplement the law but cannot supplant it (per Hedge, J. in A.K. Kraipak [supra]). If a statutory provision either specifically or by inevitable implication excludes the application of the rules of natural justice, then the court cannot ignore the mandate of the legislature. Whether or not the application of the principles of natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory power, depends upon the 23

language and basic scheme of the provision conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power. (see Union of India v. Col. J.N. Sinha [(1970) 2 SCC 458] )

32. The maxim audi alteram partem has many facets. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain. This rule is universally respected and duty to afford a fair hearing in Lord Lore-burn's oft-quoted language, is "a duty lying upon everyone who decides something", in the exercise of legal power. The rule cannot be sacrificed at the altar of administrative convenience or celerity; for, "convenience and justice" -- as Lord Atkin felicitously put it -- "are often not on speaking terms [General Medical Council v. Spackman, 1943 AC 627, 638] .

(Emphasis added)

25. The Hon'ble Supreme Court further summarized the position

as under:-

44. In short, the general principle -- as distinguished from an absolute rule of uniform application -- seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fair play "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands". The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagwati, J., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

(Emphasis added)

26. In a series of cases, dealing with Income Tax Act, dealing with

Excise Act, or Mines and Minerals Act, the Hon'ble Supreme Court was

faced with the issue whether to read the principles of natural justice in 24

these Acts when the Acts themselves are silent about importing the

principles of natural justice within its provisions?

27. In the case of Sahara India (Firm) v. Commissioner of

Income Tax, Central-I14, the Hon'ble Supreme Court was dealing with

the issue, with regard to reading the principles of natural justice within

Section 142(2-A) of Income Tax Act. Section 142(2-A) of Income Tax Act

prescribes that after seeking the approval of the Chief Commissioner, or

Commissioner of Income Tax, the Assessing Officer may direct the

assessee to get the accounts audited by an accountant (generally referred

to as 'the special accountant'). Since the Assessing Officer was required to

formulate an opinion, with regard to 'nature and complexity of the

accounts', and 'in the interest of the revenue', the issue before the Hon'ble

Supreme Court was whether prior to directing the assessee to have his

accounts audited by the special accountant, the assessee needs to be

given an opportunity of hearing or not? The Hon'ble Supreme Court

observed as under:-

6. A bare perusal of the provisions of sub-section (2-A) of the Act would show that the opinion of the assessing officer that it is necessary to get the accounts of the assessee audited by an accountant has to be formed only by having regard to: (i) the nature and complexity of the accounts of the assessee; and

(ii) the interests of the Revenue. The word "and" signifies conjunction and not disjunction. In other words, the twin conditions of "nature and complexity of the accounts" and "the interests of the Revenue" are the prerequisites for exercise of power under Section 142(2-A) of the Act. Undoubtedly, the object behind enacting the said provision is to assist the assessing officer in framing a correct and proper assessment based on the accounts maintained by the assessee and when he finds the accounts of the assessee to be complex, in order to protect the interests of the Revenue, recourse to the said provision can be had.

It further opined that "before dubbing the accounts to be complex or difficult

to understand, there has to be a genuine and honest attempt on the part of

the assessing officer to understand accounts maintained by the assessee;

appreciate the entries made therein and in the event of any doubt, seek

14 (2008) 14 SCC 151 25

explanation from the assessee. But, opinion required to be formed by the

assessing officer for exercise of power under the said provision must be

based on objective criteria and not on the basis of subjective satisfaction".

The Hon'ble Supreme Court also noted that "the question for adjudication

is whether in view of the fact that the said provision does not postulate the

requirement of a hearing before an order for special audit is passed, a pre-

decisional hearing is required to be given to the assessee or not?" The Apex

Court finally concluded that "the upshot of the entire discussion is that the

exercise of power under Section 142(2-A) of the Act leads to serious civil

consequences and, therefore, even in the absence of express provision for

affording an opportunity of pre-decisional hearing to an assessee and in the

absence of any express provision in Section 142(2-A) barring the giving of

reasonable opportunity to an assessee, the requirement of observance of

principles of natural justice is to be read into the said provision".

28. In the case of Kesar Enterprises Limited v. State of U.P.15,

the Hon'ble Supreme Court dealt with the interpretation of Rule 633 of the

U.P. Excise Manual. Rule 633 of the Excise Manual permitted any person

to export in bond foreign liquor manufactured at a distillery in Uttar

Pradesh to any place in India under a pass in form PD 25 granted by the

State under the provisions of Rule 633 of the Excise Manual. Rule 633(3)

of the U.P. Excise Manual required the exporter of the bond foreign liquor

to produce a certificate signed by the Collector, Deputy Commissioner or

other officer specially appointed in this behalf, of the importing district

certifying the due arrival or otherwise of the spirit at its destination. Rule

633(7) of the Excise Manual contained a penal provision, wherein if the

certificate is not received within time mentioned in the bond or pass, or if

on receipt of the certificate it appears that any of the conditions of the

bond have been infringed, the Collector of the exporting district or the

Excise Inspector who granted the pass, was empowered to take necessary

15 (2011) 13 SCC 733 26

steps to recover from the executant or his surety the penalty due under

the bond.

29. The issue before the Hon'ble Supreme Court was "whether the

principles of natural justice demand that an opportunity of hearing should

be afforded before an order under Rule 633(7) of the Excise Manual is

made?" The Hon'ble Supreme Court first dealt with the aspect of

principles of natural justice, which reads as under:-

24. Rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action.

30. Relying on its earlier decisions, rendered in A. K. Kraipak

(supra), Swadeshi Cotton Mills (supra), and Sahara India (Firm) (supra),

the Hon'ble Supreme Court concluded that "if the requirement of an

opportunity to show cause is not read into the said Rule, an action

thereunder would be open to challenge as violative of Article 14 of the

Constitution of India on the ground that the power conferred on the

competent authority under the provision is arbitrary".

31. In the case of State of Haryana v. Ram Kishan16, the

Hon'ble Supreme Court dealt with the scope and ambit of Section 4-A of

the Mines and Minerals (Regulation and Development) Act, 1957 ('the

Act', for short). Section 4-A of the Act permitted the State Government to

prematurely terminate a mining lease in respect of any mineral, after

consultation with the Central Government. The mining lease could be

terminated prematurely where the Central Government had consulted the

State Government or vice versa. However, Section 4-A of the Act did not

incorporate the principles of natural justice, i.e. an opportunity of hearing

to be given to the lease holder of the mining operations, prior to the

premature termination of the lease. Therefore, the question that arose

16 (1988) 3 SCC 416 27

before the Hon'ble Supreme Court was "whether the requirement of

principles of natural justice should be read into Section 4-A of the Act or

not?" The Hon'ble Supreme Court finally concluded that "the Section must

be interpreted to imply that the person who may be affected by such a

decision should be afforded an opportunity to prove that the proposed step

would not advance the interest of mines and mineral development. Not to

do so will be violative of the principles of natural justice. Since there is no

suggestion in the section to deny the right of the affected persons to be

heard, the provisions have to be interpreted as implying to preserve such a

right". Relying on the case of Baldev Singh v. State of Himachal

Pradesh [(1987) 2 SCC 510], the Apex Court further went on to observe

that "where exercise of a power results in civil consequences to citizens

unless the statute specifically rules out the application of natural justice,

such rule would apply".

32. In the case of Mohinder Singh Gill (supra), the Apex Court

had posed the question "what is civil consequence?" The Hon'ble Supreme

Court had answered the question by stating that "'civil consequence'

undoubtedly cover infraction of not merely property or personal rights but of

civil liberties, material deprivations and non-pecuniary damages. In its

comprehensive connotation, everything that affects a citizen in his civil life

inflicts a civil consequence".

33. The following principles can easily be deducted from the case

law mentioned hereinabove, as under:-

(i) Principles of natural justice have brooding omnipresence;

(ii) Although the principles of natural justice are not codified,

nonetheless, they are applicable both to administrative and

quasi-judicial decisions;

(iii) They do not supplant the law, but merely supplement the law;

(iv) Unless expressly ousted by a legislation, or by a circular,

invariably they will have to be read into the provisions of the 28

law, especially where a decision, administrative or otherwise,

would have civil consequence;

(v) In order to see whether the principles of natural justice are

impliedly ousted or not, certain factors would have to be kept

in mind, namely the language and the basic scheme of the

provision conferring the power, the nature of the power,

purpose for which it is conferred, and the effect of the exercise

of the power; and

(vi) Moreover, the principles of natural justice may be impliedly

ousted in cases of urgency where obligation to give notice and

an opportunity of personal hearing would obstruct the taking

of appropriate action, or a preventive, or remedial nature.

Thus, the purpose of provision would need to be examined.

But while seeing the existence of urgency, the Court is

required to balance between 'hurry' and 'hearing'. Since the

principles of natural justice are not contained in a straight-

jacket formula, they can be adapted to urgent situations. In

an urgent situation, it is not necessary to give an elaborate

hearing to the affected person. The hearing can be short but

substantive, prompt but effective. But it is imperative to bear

in mind that even the administrative bodies must act in a

just, fair and a reasonable manner. For, fair play in

administrative action is the heartbeat of good governance.

34. While interpreting the Master Circular these principles would

have to be borne in mind.

35. The Master Circular is entitled as "Reserve Bank of India

(Frauds Classification and Reporting by Commercial Banks and Select FIs)

Directions 2016"; the Master Circular was subsequently updated on

30.06.2017. Merely because the title of the Master Circular is "fraud 29

classification and reporting", it does not necessarily mean that the function

of the JLF, and of the FIC are limited merely to discovery of fraud, and its

reporting by the commercial banks. Therefore, it is imperative to delve

deeply into the relevant provisions of the Master Circular in order to fully

comprehend its total purport, scope and purpose.

36. The Master Circular has been issued by invoking the powers

conferred under Section 35-A of the Banking Regulation Act, 1946. Thus,

ipso facto, the Master Circular has a statutory force.

37. The purpose of the Master Circular is mentioned in Clause 1.3

as under:-

1.3. Purpose: These directions are issued with a view to providing a framework to banks enabling them to detect and report frauds early and taking timely consequent actions like reporting to the Investigative agencies so that fraudsters are brought to book early, examining staff accountability and do effective fraud risk management. These directions also aim to enable faster dissemination of information by the Reserve Bank of India (RBI) to banks on the details of frauds, unscrupulous borrowers and related parties, based on banks' reporting so that necessary safeguards / preventive measures by way of appropriate procedures and internal checks may be introduced and caution exercised while dealing with such parties by banks.

38. A bare perusal of Clause 1.3 clearly reveals that the Master

Circular has myriad purposes, namely to detect and report frauds early; to

take timely consequent actions by reporting to the investigating agency;

faster dissemination of information by RBI to banks on the details of the

fraud by unscrupulous borrowers and related parties so that necessary

safeguards/preventive measures, by way of appropriate procedures and

internal checks, may be introduced and caution exercised while dealing

with such parties by the banks. Thus, in short, the purpose seems to be

not just to discover a fraud being committed on a bank, but also to alert

the other banks to take necessary safeguards / preventive measures

against such parties who may be declared as 'fraudster'. Moreover, the

purpose is to initiate the investigation through investigating agencies. 30

39. Clause 2.2 of the Master Circular classifies frauds into

different categories based merely on the provisions of the Indian Penal

Code. Clause 2.2 of the Master Circular is as under:-

2. 2 Classification of Frauds

2.2.1 In order to have uniformity in reporting, frauds have been classified as under, based mainly on the provisions of the Indian Penal Code:

a. Misappropriation and criminal breach of trust. b. Fraudulent encashment through forged instruments,

manipulation of books of account or through fictitious accounts and conversion of property.

c. Unauthorised credit facilities extended for reward or for illegal gratification.

d. Cash shortages. e. Cheating and forgery. f. Fraudulent transactions involving foreign exchange g. Any other type of fraud not coming under the specific heads as above.

40. Clause 8.2 of the Master Circular deals with the objective of

the framework. Clause 8.2 is as under:-

8.2 Objective of the framework:

The objective of the framework is to direct the focus of banks on the aspects relating to prevention, early detection, prompt reporting to the RBI (for system level aggregation, monitoring & dissemination) and the investigative agencies (for instituting criminal proceedings against the fraudulent borrowers) and timely initiation of the staff accountability proceedings (for determining negligence or connivance, if any) while ensuring that the normal conduct of business of the banks and their risk taking ability is not adversely impacted and no new and onerous responsibilities are placed on the banks. In order to achieve this objective, the framework has stipulated time lines with the action incumbent on a bank. The time lines / stage wise actions in the loan life-cycle are expected to compress the total time taken by a bank to identify a fraud and aid more effective action by the law enforcement agencies. The early detection of Fraud and the necessary corrective action are important to reduce the quantum of loss which the continuance of the Fraud may entail.

41. Clause 8.3 of the Master Circular prescribes early warning

signals, and deals with Red Flag Accounts (RFA). Clause 8.3 and its Sub-

clauses are as under:-

31

8.3 Early Warning Signals (EWS) and Red Flagged Accounts (RFA) 8.3.1 A Red Flagged Account (RFA) is one where a suspicion of fraudulent activity is thrown up by the presence of one or more Early Warning Signals (EWS). These signals in a loan account should immediately put the bank on alert regarding a weakness or wrong doing which may ultimately turn out to be fraudulent. A bank cannot afford to ignore such EWS but must instead use them as a trigger to launch a detailed investigation into a RFA.

8.3.2 An illustrative list of some EWS is given for the guidance of banks in Annex II to this circular. Banks may choose to adopt or adapt the relevant signals from this list and also include other alerts/signals based on their experience, client profile and business models. The EWS so compiled by a bank would form the basis for classifying an account as a RFA.

8.3.3 The threshold for EWS and RFA is an exposure of 500 million or more at the level of a bank irrespective of the lending arrangement (whether solo banking, multiple banking or consortium). All accounts beyond 500 million classified as RFA or 'Frauds' must also be reported on the CRILC data platform together with the dates on which the accounts were classified as such. As of now, this requirement is in addition to the extant requirements of reporting to RBI as mentioned in Para 3.2 above.

8.3.4 The modalities for monitoring of loan frauds below 500 million threshold is left to the discretion of banks. However, banks shall continue to report all identified accounts to CFMC, RBI as per the existing cut-offs.

8.3.5 The tracking of EWS in loan accounts should not be seen as an additional task but must be integrated with the credit monitoring process in the bank so that it becomes a continuous activity and also acts as a trigger for any possible credit impairment in the loan accounts, given the interplay between credit risks and fraud risks. In respect of large accounts it is necessary that banks undertake a detailed study of the Annual Report as a whole and not merely of the financial statements, noting particularly the Board Report and the Managements' Discussion and Analysis Statement as also the details of related party transactions in the notes to accounts. The officer responsible for the operations in the account, by whatever designation called, should be sensitised to observe and report any manifestation of the EWS promptly to the Fraud Monitoring Group (FMG) or any other group constituted by the bank for the purpose immediately. To ensure that the exercise remains meaningful, such officers may be held responsible for non-reporting or delays in reporting.

8.3.6 The FMG or any such designated committee shall classify the account as RFA and the details of RFA accounts shall be put up to the CMD/CEO every month.

8.3.7 A report on the RFA accounts shall be put up to the Special Committee of the Board for monitoring and follow-up of Frauds (SCBF) providing, inter alia, a synopsis of the remedial action taken together with their current status.

32

42. A bare perusal of Clause 8.3.1 clearly reveals that as soon as

there is a suspicion of fraudulent activity, an early warning signal can be

issued. These early warning signals would put the bank / financial

institution on high alert, with regard to a weakness or wrongdoing by a

person / entity, which may ultimately turn out to be fraudulent.

According to Clause 8.3.6 of the Master Circular, the Fraud Monitoring

Group ('FMG'), or any designated committee, can classify the account as

RFA. Once the account is classified as RFA, the necessary information

would be put up to the CMD / CEO every month. Moreover, according to

Clause 8.3.7 of the Master Circular, the Report of the RFA accounts shall

be placed before the Special Committee of the Board for monitoring and

follow-up of frauds. Thus a complete warning system has been created to

put up the concerned banks, other banks, and financial institutions on

high alert.

43. In fact, Clause 8.4 of the Master Circular prescribes an

elaborate procedure for early detection and reporting of frauds. The said

procedure deals with checks and investigations during the different stages

of the loan life, i.e. from the stage of pre-sanction, to the stage of

disbursement, and to the stage of annual review. Therefore, even an

elaborate system has been created for early detection and reporting.

Moreover, in order to motivate the banks to report a suspicious fraudulent

account promptly, an incentive has been provided by Clause 8.7 of the

Master Circular.

44. While Clause 8.8 of the Master Circular deals with bank as a

sole lender, Clause 8.9 deals with a consortium of banks, who have lent

money to a given borrower, or with 'multiple banking' arrangements.

According to Clause 8.9.2, "all the banks, who have financed a borrower

under 'multiple banking' arrangement", should take coordinated action,

based on commonly agreed strategy, for legal / criminal actions, follow up

for recovery, exchange of details on modus operandi, achieving consistency 33

in data / information on frauds reported to Reserve Bank of India.

Therefore, the bank which detects a fraud is required to immediately share

the details with all other banks in the multiple banking arrangements.

45. According to Clause 8.9.4 of the Master Circular, "the initial

decision to classify any standard or Non-Performing Assets ('NPA') account

as RFA or Fraud would be at the individual bank level. It would be the

responsibility of this bank to report the RFA or Fraud status of the account

on the CRILC platform so that other banks are alerted. In case it is decided

at the individual bank level to classify the account as fraud straightaway at

this stage itself, the bank shall report the fraud to RBI within 21 days of

detection and also report the case to CBI/Police. Further within 15 days of

RFA/Fraud classification, the bank which has red flagged the account or

detected the fraud would ask the consortium leader or the largest lender

under MBA to convene a meeting of the JLF to discuss the issue".

46. Clause 8.9.4 of the Master Circular further prescribes that

"the meeting of the JLF so requisitioned must be convened within 15 days of

such a request being received. In case there is a broad agreement, the

account should be classified as a fraud; else based on the majority rule of

agreement amongst banks with at least 60% share in the total lending, the

account should be red flagged by all the banks and subjected to a forensic

audit commissioned or initiated by the consortium leader or the largest

lender under MBA".

47. Clause 8.9.5 of the Master Circular prescribes the procedure

as under:-

8.9.5 The forensic audit must be completed within a maximum period of three months from the date of the JLF meeting authorizing the audit.

Within 15 days of the completion of the forensic audit, the JLF shall reconvene and decide on the status of the account, either by consensus or the majority rule as specified above. In case the decision is to classify the account as a fraud, the RFA status shall be changed to Fraud in all banks and reported to RBI and on the CRILC platform within a week of the said decision. Besides, within 30 days of the RBI reporting, the bank commissioning/ initiating the forensic audit should lodge a complaint with the CBI on behalf of all banks in the consortium/MBA. For this purpose, if the bank initiating the forensic 34

audit is a private sector bank, the complaint shall be lodged with the CBI by the PSU bank with the largest exposure to the account in the consortium/MBA. If there is no PSU bank in the consortium / MBA or it is a solo bank lending by a private sector bank/foreign bank, the private bank/foreign bank shall report to the Police as per extant instructions. This would be in addition to the complaint already lodged by the first bank which had detected the fraud and informed the consortium/MBA.

48. A bare perusal of Clause 8.9.4 and 8.9.5 of the Master

Circular clearly reveal that while these provisions bestow a power upon

the JLF to classify an account as 'fraud', either by consensus, or by

majority rule of agreement, neither of these provisions import the

applicability of principles of natural justice before the JLF decides to

classify the account as 'fraud'. These provisions further impose a duty

upon the JLF to report to the RBI within thirty days of their decision

about classifying the account as 'fraud'. Moreover, the bank is duty

bound to lodge a complaint with the CBI on behalf of all the banks in the

consortium. Therefore, the moment an account is classified as 'fraud',

within thirty days the classification needs to be reported to the RBI, and to

the law enforcement agency in order to trigger off the criminal

investigation. Moreover, according to Clause 8.9.6 of the Master Circular,

"the overall time allowed for the entire exercise to be completed is six

months from the date when the first member bank reported the account as

RFA or Fraud on the CRILC platform".

49. Clause 8.11 of the Master Circular deals with filing of

complaints with Law Enforcement Agencies. It is as under:-

8.11 Filing Complaints with Law Enforcement Agencies 8.11.1 Banks are required to lodge the complaint with the law enforcement agencies immediately on detection of fraud. There should ideally not be any delay in filing of the complaints with the law enforcement agencies since delays may result in the loss of relevant 'relied upon' documents, non- availability of witnesses, absconding of borrowers and also the money trail getting cold in addition to asset stripping by the fraudulent borrower.

8.11.2 It is observed that banks do not have a focal point for filing CBI / Police complaints. This results in a non-uniform approach to complaint filing by banks and the investigative agency has to deal 35

with dispersed levels of authorities in banks. This is among the most important reasons for delay in conversion of complaints to FIRs. It is, therefore, enjoined on banks to establish a nodal point / officer for filing all complaints with the CBI on behalf of the bank and serve as the single point for coordination and redressal of infirmities in the complaints.

8.11.3 The complaint lodged by the bank with the law enforcement agencies should be drafted properly and invariably be vetted by a legal officer. It is also observed that banks sometimes file complaints with CBI / Police on the grounds of cheating, misappropriation of funds, diversion of funds etc., by borrowers without classifying the accounts as fraud and/or reporting the accounts as fraud to RBI.

Since such grounds automatically constitute the basis for classifying an account as a fraudulent one, banks should invariably classify such accounts as frauds and report the same to RBI.

50. Most importantly, Clause 8.12 prescribes the penal measures

for fraudulent borrowers. The entire Clause is as under:-

8.12 Penal measures for fraudulent borrowers 8.12.1 In general, the penal provisions as applicable to willful defaulters would apply to the fraudulent borrower including the promoter director(s) and other whole time directors of the company insofar as raising of funds from the banking system or from the capital markets by companies with which they are associated is concerned, etc. In particular, borrowers who have defaulted and have also committed a fraud in the account would be debarred from availing bank finance from Scheduled Commercial Banks, Development Financial Institutions, Government owned NBFCs, Investment Institutions, etc., for a period of five years from the date of full payment of the defrauded amount. After this period, it is for individual institutions to take a call on whether to lend to such a borrower. The penal provisions would apply to non-whole time directors (like nominee directors and independent directors) only in rarest of cases based on conclusive proof of their complicity.

8.12.2 No restructuring or grant of additional facilities may be made in the case of RFA or fraud accounts. However, in cases of fraud/malfeasance where the existing promoters are replaced by new promoters and the borrower company is totally delinked from such erstwhile promoters/management, banks and JLF may take a view on restructuring of such accounts based on their viability, without prejudice to the continuance of criminal action against the erstwhile promoters/management.

8.12.3 No compromise settlement involving a fraudulent borrower is allowed unless the conditions stipulate that the criminal complaint will be continued.

8.12.4 In addition to above borrower- fraudsters, third parties such as builders, warehouse/cold storage owners, motor vehicle/tractor dealers, travel agents, etc. and professionals such as architects, valuers, chartered accountants, advocates, etc. are also to be held accountable if they have played a vital role in credit sanction/disbursement or facilitated the perpetration of frauds. Banks are advised to report to Indian Banks Association (IBA) the details of 36

such third parties involved in frauds.

8.12.5 Before reporting to IBA, banks have to satisfy themselves of the involvement of third parties concerned and also provide them with an opportunity of being heard. In this regard the banks should follow normal procedures and the processes followed should be suitably recorded. On the basis of such information, IBA would, in turn, prepare caution lists of such third parties for circulation among the banks.

51. A holistic analysis of the Master Circular clearly reveals that

although it is important to report the discovery of a fraud to the RBI,

although it is essential to initiate the criminal investigation within a short

period, but nonetheless, a sufficient 'warning signal system' is built into

the system, so as to alert not only the banks forming the Consortium, not

only the RBI, but also the other banks. Therefore, the argument raised

by Mr. B. S. Prasad, and Mr. B. Nalin Kumar that, unless urgency is

shown in declaring a borrower as a fraudulent borrower, the entire

banking organization may be exposed to further fraud by a borrower, is

bereft of any merit. For, firstly, there is an inbuilt system for early

detection and reporting of possible fraud. There is a system for checks /

investigations during the different stages of loan life cycle - beginning with

the pre-sanction, disbursement and annual review. Secondly, once a

suspicion arises that there is some fraudulent activity, early warning

signals can be triggered off putting the rest of the banks on high alert,

while dealing with an alleged fraudulent borrower. Thirdly, an account

can be declared as RFA by the Fraud Monitoring Group. Therefore, a

complete safety system has been prescribed by the Master Circular.

Hence, the contention that urgency demands that principles of natural

justice should not be read into the Master Circular, is a fallacious

contention.

52. As mentioned hereinabove, even an administrative

functionary / body, like the JLF, would have to balance the twin aspects

of 'hurry' and 'hearing'. Therefore, the principles of natural justice can be

modified to an emergent situation. Instead of having an elaborate hearing 37

proceeding, the proceeding can be short but substantive, prompt but

effective. Undoubtedly, the JLF needs to form an opinion whether the

borrower is playing fraud on the bank or not? Obviously, evidence needs

to be placed before the JLF for it to formulate its opinion. Therefore, the

evidence to be read against a party needs to be furnished to the party. The

party has to be given an opportunity to explain, or to challenge the

evidence. Thus, the argument of urgency cannot be accepted for

jettisoning the applicability of principles of natural justice.

53. Even on factual matrix, the argument of urgency is belied by

the record. For, the Company's account was declared as NPA on

29.06.2016; the JLF declared the Company's account as fraud on

15.02.2019, yet the FIC did not declare the Company's account as fraud

till 31.07.2019. Thus, there is a gap of 4 ½ months between the decision

of the JLF and the FIC. Hence, obviously, the decision to declare the

account as fraud has not been taken on an 'urgent' basis.

54. Furthermore, if the requirement of principle of nature justice

is not read into the Master Circular, it would suffer from vagueness. For,

on the one hand, Clauses 8.9.4 and 8.9.5 of the Master Circular prima

facie seem to deny the opportunity of hearing to the borrower. Yet, Clause

8.12.1 of the Master Circular clearly states that the procedure for

declaring a borrower as a willful defaulter has to be followed. In the case

of Jah Developers (supra), the Hon'ble Supreme Court has already

declared that prior to declaring a borrower as a willful defaulter, an

opportunity of hearing has to be given. If the principle of audi alteram

partem were not read into Clauses 8.9.4 and 8.9.5 of the Master Circular,

there would be a contradiction between the procedure adopted for

declaring a borrower as 'a willful defaulter', and the procedure adopted for

declaring an account as 'fraud'. Obviously, the Master Circular could not

speak in self-contradictory terms. Therefore, to erase the self-contained

contradiction, and to save the Master Circular from the virus of 38

vagueness, the principles of natural justice perforce would have to be read

into Clauses 8.9.4 and 8.9.5 of the Master Circular.

55. According to the Apex Court, another factor to be applied is to

examine the consequences of the decision, in order to decipher if the

principles of natural justice are ousted by the law or not? Hence, this

Court is further required to examine the consequences of the decision of

the JLF. A bare perusal of the provisions mentioned above, clearly reveal

that according to Clause 8.12 of the Master Circular, both the fraudulent

borrower and the Promoter/Director(s), and other whole time Director(s)

would be debarred from raising funds from banking system for a period of

five years. Moreover, they will be debarred from restructuring, or from

seeking additional funds. Furthermore, they will be debarred from

entering into a compromise or settlement. Therefore, their access to

financial institutions, at least for a period of five years, would totally be

cut off. Even after five years, it is for the financial institutions to decide

whether to lend any finances, to such a person or entity or not? Thus,

once branded as 'a fraudster', or 'a fraudulent borrower', or 'holder of a

fraud account', the stigma will continue for a considerable time. Needless

to say, such a stigma would prevent the Promoter / Director from

establishing any other enterprise, or project, or business. Such a stigma

would, thus, adversely affect the fundamental rights of a Promoter /

Director to carry on a trade or a business, which is guaranteed under

Article 19(1)(g) of the Constitution of India. Therefore, such a classification

would have "grave civil consequences" for Promoter / Director of a

borrowing Company.

56. Further, since the right to livelihood is part and parcel of

fundamental right to life under Art. 21 of the Constitution of India, the

fundamental right can be deprived only by a reasonable procedure

established by law. However, to deny the said fundamental right without

giving an opportunity of hearing would be highly unreasonable, unfair and 39

unjust. Thus, the Master Circular, as interpreted by the RBI, would be in

violation of Article 21 of the Constitution of India. Therefore, to save

Clauses 8.9.4 and 8.9.5 of the Master Circular from being declared as

unconstitutional, it is essential to read the principle of natural justice into

the said Clauses.

57. Furthermore, since the Master Circular also imposes a duty

on the banks to lodge a complaint with the CBI / criminal investigating

agency within a short period, after detecting / declaring an account as

'fraud', obviously, the borrowing Company, its Promoter / Director would

quickly be embroiled in criminal investigation and in criminal proceedings.

Such involvement in criminal proceedings not only affects the social

standing of an individual and the goodwill of a Company, but also forces

an individual to spend money, to invest energy, and to go through the

rigmarole of a criminal trial. Therefore, the classification of an account as

'fraud' has devastating impact on the life of a person. Yet, Clauses 8.9.4

and 8.9.5 of the Master Circular, which deal with the decision-making

process of a JLF, which deal with the declaration of an entity or a person

as a holder of a fraudulent account, is absolutely silent about giving an

opportunity of hearing to the adversely affected party. Thus, considering

the grave consequences of the decision, considering the grave impact on

the fundamental rights of the Directors, the principles of natural justice

must be read into the said Clauses.

58. Moreover, if an opportunity of hearing were not to be read into

the Master Circular, then the power bestowed under Clauses 8.9.4 and

8.9.5 of the Master Circular is an unbridled power given to the JLF for

declaring a person / Company as 'a fraudulent borrower'. Such an

absolute power could not be intended by the RBI while promulgating the

Master Circular. For, absolute power corrupts absolutely. Therefore,

such unfettered power needs to be cribbed, cabined and confined within

known limits placed by law. The principles of natural justice are one of the 40

best known contours of law for limiting arbitrary power. Furthermore, in

case principles of natural justice were not read into Clauses 8.9.4 and

8.9.5 of the Master Circular, these provisions would be violative of Article

14 of Constitution of India. For, arbitrary action is an anathema to the

notion of fairness and reasonableness. Hence, perforce the principles of

natural justice, especially the principles of audi alteram partem would

have to be read into Clauses 8.9.4 and 8.9.5 of the Master Circular.

59. Ironically, the 'right to be heard' has been given to third

parties, such as builders, warehouse/cold storage owners, motor vehicle/

tractor dealers, travel agents, etc. and professionals such as architects,

valuers, chartered accountants, advocates, etc., if they have played a vital

role in sanction/disbursement, or facilitated for preparation of fraud.

Hence, while those who are allegedly the peripheral accomplices are

granted an opportunity of hearing, the main actor is denied the right to

speak and to defend his position. Considering the grave civil

consequences and penal action, which would be followed as a result of

classifying a borrower as 'a fraudulent borrower', or 'a holder of a

fraudulent account', it is imperative that principles of natural justice must

be read into Clauses 8.9.4 and 89.9.5 of the Master Circular.

60. Fair play in governance is the gravitational force which binds

the entire State. Therefore, before a person or entity is obliterated, or is

subjected to civil and penal consequences, the person or entity must be

given an opportunity of hearing. Without giving an opportunity of hearing,

without giving an opportunity to explain the intricacies of the accounts, or

of the business dealings, to denounce a person is to act unfairly, unjustly,

unreasonably, and arbitrarily. Even in an administrative action, justice

should not only be done, but also must appear to be done to the

satisfaction of all the parties. Therefore, the principles of audi alteram

partem, howsoever short, have to be applied before declaring a party as 'a

fraudulent borrower', or as 'a holder of fraudulent account'. Such an 41

interpretation is also inconsonance with the principles extracted above

from the relevant case law. Thus, this Court is of the opinion that the

principles of audi alteram partem will have to be incorporated into Clauses

8.9.4 and 8.9.5 of the Master Circular even if the said Clauses are silent.

Such an interpretation cannot be said to be farfetched. For, as mentioned

above, in a series of cases decided by the Apex Court, the Hon'ble

Supreme Court has read the requirements audi alteram partem even in

those provisions of law which did not expressly prescribed the observance

of audi alteram partem in their scope and ambit.

61. According to Mr. B. Nalin, the learned Standing Counsel for

the RBI, lodging of a complaint is similar to registration of an FIR.

Therefore, the need to hear the alleged accused prior to initiating the

criminal investigation cannot be read into the Master Circular. In our

view, the said argument is highly misplaced. For, the first step is for the

JLF to form an opinion whether the borrower is 'a fraudulent borrower' or

not, or whether the account is 'a fraud' or not? It is only after formulating

the said opinion, that the JLF is required to lodge a complaint with the

criminal investigating agency. Moreover, since the very formation of an

opinion would instantaneously trigger off civil and penal consequences,

the formation of an opinion cannot be equated with the lodging of an FIR.

Therefore, the contention raised by Mr. B. Nalin, is clearly unacceptable.

62. Coming to the factual aspects of the case, Mr. Mukul Rohatgi,

the learned Senior Counsel, has pleaded that prior to the meeting of the

JLF dated 15.02.2019, the Company was invited to all the earlier meetings

of the JLF. Yet, while taking the most crucial decision, the Company has

been kept at bay. This assertion of the petitioner has not been denied by

the respondents. Hence, the assertion is taken to be true. Since the

Company was invited and participated on the earlier occasion, then the

Company cannot be denied the opportunity of hearing on the spacious

plea that Clauses 8.9.4 and 8.9.5 of the Master Circular do not envisage 42

the giving of opportunity of hearing to the defaulting party. To raise such a

plea is to approbate and reprobate simultaneously. Hence, the denial of

opportunity of hearing to the petitioner or to the Company is legally

unsustainable.

63. A bare perusal of the decision taken by the JLF in its meeting

on 15.02.2019, and the resolution by the FIC on 31.07.2019 clearly reveal

that the JLF and the FIC have relied upon the Report of the Forensic

Auditor, dated 06.04.2018. Moreover, FIC has relied upon the Report

submitted by Dr. K.V. Srinivas, IRP, for concluding that the account of the

borrowing Company should be declared as 'fraud'. According to Mukul

Rohatgi, copies of these reports were never furnished, either to the

borrower Company, or to its Directors such as the petitioner. It is, indeed,

trite to state that a party must be informed about the evidence which is

likely to be used against it. For, a chance to meet out the evidence, to

challenge the same has to be given to the party. However, even this

rudimentary principle has been ignored by the JLF. Thus, the decision

dated 15.02.2019 of the JLF is legally unsustainable.

64. Mr. B.S. Prasad, the learned Senior Counsel, has of course

argued that the IDBI Bank in its letter, dated 21.04.2018, had furnished a

copy of the Forensic Auditor's Report. However, the said contention is

belied by the record. For, in its letter dated 21.04.2018 the IDBI Bank

had merely extracted and paraphrased the finding of the Forensic Auditor

Report. But the complete copy of the Forensic Auditor Report was never

submitted along with the said letter. Hence, the Company was denied the

opportunity to explain the finding of the Report, and the opportunity to

challenge the findings of the Report.

65. Moreover, the Report submitted by Dr. K.V. Srinivas, IRP,

relied on by the FIC was never brought to the notice of, either the

borrower Company, or to its Directors. Thus, neither the borrower

Company, nor the petitioner had any information, or knowledge about a 43

report which was going to be read against them. It is, indeed, trite to state

that a piece of evidence which would be read against a party must

necessarily be brought to the notice of the party. For, a full opportunity

needs to be given to the concerned party to explain, or to challenge the

evidence being read against him/it. However, this crucial step which is

part of audi alteram partem is conspicuously missing in the present case.

66. A bare perusal of the order, dated 15.02.2019, clearly reveals

that, according to Item No. 2, having considered the Report of the Forensic

Auditor, and on perusal of the clarification / information submitted by the

Company to the Forensic Auditor, the JLF had agreed to 'close the

observation'. Similarly, in Item No. 4, the Auditor's Report, with regard to

the Fund Flow Statement, the JLF had decided to 'close the observation'.

Likewise, according to Item No. 5, dealing with payment of advances to

M/s. Rohit Iron and Steel (I) Pvt. Ltd., the JLF had considered the

Forensic Auditor's Report and agreed to "close the observations". Thus,

the observations were closed not only on the basis of the Forensic

Auditor's Report, but also on the basis of clarification / information

submitted by the Company to the Forensic Auditor. Yet, the same

opportunity to explain to the JLF was not given to the Company, or to the

petitioner. Hence, the decision of the JLF dated 15.02.2019 is legally

invalid.

67. Moreover, according to Item No. 1, further clarification was

sought from the Forensic Auditor. Similarly, according to Item No. 3, a

further clarification was sought from the Forensic Auditor. Likewise,

according to Item No. 8, further clarification was to be obtained from

Forensic Auditor. Yet, the JLF did not wait for further clarification from

the Forensic Auditor. Instead, instantaneously the JLF, in its meeting,

unanimously decided that "the account be treated as fraud". Interestingly,

according to Item Nos. 1, 3 and 8, the JLF had also decided that "in case

no clarification is received from the Forensic Auditor, only then it will treat 44

the account as fraud". Yet, curiously, it had not waited to receive further

clarification from the Forensic Auditor, but has jumped to the conclusion

that "the account be treated as fraud". Hence, the JLF has drawn

conclusion in absence of the relevant evidence. Therefore, the conclusion

is legally unsustainable.

68. The final conclusion of the JLF reads as under:-

"Hence, it was unanimously decided that the account be treated as fraud for the above reasons".

(Emphasis added)

Once the JLF was of the opinion that further clarification is required from

the Forensic Auditor, once it is in the process of taking a decision, once it

has decided to wait till further clarification is submitted, the JLF is not

justified in concluding that "the account be treated as fraud". In fact, the

JLF was legally required to wait for further clarification, or non-

clarification from the Forensic Auditor. But till it had heard from the

Forensic Auditor, one way or the other, it could not have jumped the gun.

Moreover, the JLF is unjustified in claiming that 'the account is treated as

fraud for the above reasons". After all, the reasons themselves are

incomplete and inchoate as the JLF had already opined that 'further

clarification from the Forensic Auditor should be called for'. Therefore, the

use of the words "for the above reasons", are merely the use of a legalistic

language without any substantive content. Hence, the final conclusion of

the JLF has the veneer of a legal reasoning, but is deprived of legal

content. Therefore, the decision of the JLF is legally unsustainable.

69. A bare perusal of the resolution of FIC, dated 31.07.2019, also

reveals that the said resolution is based on the Report submitted by Dr.

K.V. Srinivas, IRP. However, there is no evidence available on record to

establish the fact that a copy of the said Report was furnished to the

borrower Company, or to the petitioner. Thus, neither the borrower

Company, nor the petitioner, nor any other Director was given a chance to

explain, or to challenge the finding of the said Report. A copy of the said 45

Report has not been placed even before this Court by the respondents.

Therefore, the decision taken by FIC is again based on a piece of evidence,

which was never brought to the notice of the borrower Company, or to the

notice of the petitioner. Therefore, a vital requirement of audi alteram

partem is conspicuously missing. Therefore, the resolution of the FIC,

dated 31.07.2019 is legally unsustainable.

70. For the reasons stated above, this Writ Petition is, hereby,

allowed with the following directions and in the following terms:-

70.1. Firstly, the principle of audi alteram partem, part of the

principles of natural justice, is to be read in Clause 8.9.4 and 8.9.5 of the

Master Circular.

70.2. Secondly, the decision, dated 15.02.2019, passed by the JLF,

and the resolution dated 31.07.2019, passed by the FIC are, hereby, set

aside.

70.3. Thirdly, the JLF is directed to give an opportunity of hearing

by furnishing copies of both the Reports, namely the Forensic Auditor

Report, dated 06.04.2018 and the subsequent Report submitted by Dr.

K.V. Srinivas, IRP, to the petitioner, and to the OL.

70.4. Fourthly, the JLF is directed to give an opportunity of

personal hearing both to the petitioner and to the OL before taking any

decision on the issue whether the account should be classified as 'fraud'

or not?

70.5. Fifthly, after the JLF has taken its decision, the FIC is

directed to pass its resolution whether the decision of the JLF should be

confirmed or not?

70.6. Lastly, the said exercise shall be carried out by the JLF within

a period of three months from the date of receipt of the certified copy of

this judgment. Furthermore, the subsequent exercise by FIC shall be

carried out within two months from the date of the decision of the JLF. 46

Miscellaneous Petitions, pending if any, shall stand closed. No

order as to costs.

_____________________________________ RAGHVENDRA SINGH CHAUHAN, CJ

_________________________ B. VIJAYSEN REDDY, J

December 10, 2020

Note:

L.R. Copy to be marked Tsr 47

THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN AND THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

WRIT PETITION NO.19102 OF 2019

(Per the Hon'ble the Chief Justice Raghvendra Singh Chauhan)

Date: 10-12-2020

Tsr