Midex Global Private Limited vs Managing Director, State Bank of India and Others

Prakash Shrivastava, J.—THIS Writ Petition is directed against the decision of the respondents to include the name of the petitioner in the list of the willful defaulters and also against the communication of the said decision to the petitioner vide Annexure P/1 and P/5.

In brief, the case of the petitioner is that the petitioner is the borrower of the respondent bank and had availed various facilities for its trading operations. Initially, the petitioner''s account was rated as A Plus but later on the petitioner was lured by the officers of respondent bank to venture into Forex derivative transactions which was later found to be illegal by the RBI, consequently, petitioner had suffered huge losses. The respondents vide communication dated 25/6/2011 had informed the petitioner about sending of his name for inclusion in the list of willful defaulters, against which the petitioner had preferred the representation/objection dated 16/7/2011, but in violation of the principles of natural justice, the respondents had taken a decision and had communicated to the petitioner vide Annexure P/1 informing that the Grievance Redressal Committee has rejected the representation/appeal preferred by the petitioner and it has been decided to forward the name of the Company and its Directors for inclusion in the RBL/CIBIL list of will defaulters. Along with the reply, the respondents have filed the minutes of the meeting dated 13/9/2011 of the Grievance Redressal Committee rejecting the petitioner''s appeal as Annexure R/8 and the decision to include the petitioner''s and its Directors name in the list of willful defaulter as Annexure R/11.

Learned counsel for petitioner submits that the petitioner has been classified as willful defaulter without complying with the procedure prescribed in Clause 3 of the Circular of the RBI in respect of the classification of the willful defaulter and no reasons have been assigned for classifying the petitioner as willful defaulter and the petitioner has been classified as willful defaulter without opportunity of hearing. The petitioner has also raised the issue that the Committee which has held the petitioner to be a willful defaulter and which has decided the petitioner''s appeal was not constituted in accordance with the RBI guidelines.

Counsel for respondents has submitted that the due procedure as prescribed in the RBI guidelines has been followed and the petitioner has been classified as willful defaulter vide decision of the Committee contained in Annexure R/11 as approved by the decision of the Grievance Redressal Committee in appeal contained in Annexure R/8. He has also placed reliance upon the circular of the SBI dated 16/8/2011 Annexure R/10 relating to the constitution of the committee.

I have heard the learned counsel for parties and perused the record.

It is undisputed that the classification of the petitioner was required to be done in terms of the RBI guidelines contained in the master circular of willful defaulter filed as Annexure P/6. Clause 3 of the circular provides for the Grievance Redressal mechanism and contains the procedure to be followed for taking a decision to classify the borrower as willful defaulter and in deciding the representation against the decision by the Grievance Redressal Committee as also the constitution of the Committee. Clause 3 of the circular reads as under:-

Grievances Redressal Mechanism

Banks/FIs should take the following measures in identifying and reporting instances of willful default:

(i) With a view to imparting more objectivity in identifying cases of willful default, decisions to classify the borrower as willful defaulter should be entrusted to a Committee of higher functionaries headed by the Executive Director and consisting of two Gms/DGMS as decided by the Board of the concerned bank/FI.

(ii) The decision taken on classification of willful defaulters should be well documented and supported by requisite evidence. The decision should clearly spell out the reasons for which the borrower has been declared as willful defaulter vis-�-vis RBI guidelines.

(iii) The borrower should thereafter be suitably advised about the proposal to classify him as willful defaulter along with the reasons therefor. The concerned borrower should be provided reasonable time (say 15 days) for making representation against such decision, if he so desires, to a Grievance Redressal Committee headed by the Chairman and Managing Director and consisting of two other senior officials.

(iv) Further, the above Grievance Redressal Committee should also give a hearing to the borrower if he represents that he has been wrongly classified as willful defaulter.

(v) A final declaration as ''willful defaulter'' should be made after a view is taken by the Committee on the representation and the borrower should be suitably advised.

The Clause 3(ii) of the above circular provides that the decision on classification of willful defaulter should be well documented and supported by the requisite evidence and the decision should clearly spell out the reason for which the borrower has been declared as willful defaulter vis-�-vis guidelines. Annexure R/11 dated 22/6/2011 contains the decision of the respondents relating to inclusion of the name of the petitioner and its Directors in RBI list of willful defaulters. The said decision does not contain any reason whatsoever and it simply mentions that proposal in this regard is approved.

The counsel for respondents has placed reliance upon the letter dated 25th July, 2011 Annexure P/5 and submitted that it contains the reason for classifying the petitioner as willful defaulter, but as per the requirement of the Clause 3(ii) of the circular, it is the decision itself which should be well documented, supported by the requisite evidence, clearly spelling out the reasons for declaring a borrower as willful defaulter. Thus, at the time of taking a decision, there need to be an application of mind by the committee and the committee of higher functionaries constituted under Clause 3(i) of the guidelines has to fulfill the requirement as contained in Clause 3(ii). Giving of the reasons by a subsequent communication by the Dy. General Manager vide Annexure P/5 cannot be held to be the adequate compliance of requirement of Clause 3(ii).

It is also worth noting that the petitioner in the representation appeal dated 16/7/2011 Annexure P/7 filed against the inclusion of the name in the list of willful defaulter had made a prayer for giving an opportunity of personal hearing and such an opportunity is also provided in terms of Clause 3(iv) of the guidelines, but no such opportunity was given to the petitioner. The petitioner''s representation/appeal against the classification as willful defaulter has been decided by the Grievance Redressal Committee in its meeting dated 13/9/2011 filed as Annexure R/8 and the petitioner''s appeal/representation has been rejected in one word mentioning "rejected". No reason has been assigned by the Grievance Redressal Committee whereas with a view to maintain transparency and fair play in action, the Grievance Redressal Committee was required to apply its mind to the grounds raised in the representation/appeal and take an appropriate decision on the representation/appeal by passing a reasoned speaking order.

In view of the aforesaid analysis, the impugned decision as contained in Annexure P/1, P/5, R/8 and R/11 including the name of the petitioner and its Directors in RBI list of willful defaulters and rejecting the petitioner''s appeal/representation cannot be sustained and are hereby set aside with liberty to the respondents to take fresh decision if the need so arises by duly following the procedure prescribed in the guidelines issued by the RBI. It is made clear that this Court has left open the issue relating to the improper constitution of the Committee in terms of Clause 3 of the guidelines, therefore, respondents may keep in mind the requirement of Clause 3 of the circular while taking fresh decision, if any.

The Writ Petition is allowed to the extent indicated above. No costs.