Morion Chemicals Limited vs United Commercial Bank Limited and Another

M.M. Kumar, J.—This petition filed under Article 226 of the Constitution prays for issuance of a writ of mandamus declaring the action of the Bank-respondent No. 1 in Holding Term Loan Account No. 7201/9408 and CC/Bank Debt Account No. 3414/3422 of the petitioner-company as Non-Performing Asset to be illegal. The aforementioned declaration was made on 30.6.2006. It has been further prayed that all proceedings taken thereafter under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(for brevity ''the Act'') including the notice for possession published on 25.8.2007 in ''The Tribune'' be declared nonest. Still further prayer for quashing the order dated 19.9.2007 passed by the Debt Recovery Appellate Tribunal, New Delhi (Annexure P-17) has also been made.

A perusal of the averments made in the writ petition shows that one Director has been levelling allegations of unauthorised withdrawal against the other in connivance with the Bank-respondent No. 1. The allegations also are that Director Sh. Sunil Dutt Bansal had without any authorisation inducted some of his relatives as Director in the petitioner-company. It has been stated that after the declaration of the Non-Performing Asset on 30.6.2006, the petitioner-company has no remedy because the remedy before the Debts Recovery Tribunal has become time barred as the same could have been availed within 45 days from the date of publication of notice for possession which was published on 29.11.2006. It is undisputed that two of the guarantors namely, Ms. Achal Bansal and Yogesh Bansal have already filed an application u/s 17 of the Act before the Debts Recovery Tribunal in respect of their own property known as SCO No. 44, Sector-30-C, Chandigarh and the order dated 19.9.2007 Annexure P-17 passed by the Debts Recovery Appellate Tribunal, Delhi has been passed after dismissal of the application filed by the petitioner against the order of the Debts Recovery Tribunal in its capacity as respondent. It is also undisputed that the petitioner has also approached this Court by filing CWP No. 7618 of 2007 which was dismissed as infructuous on 29.5.2007.

Mr. Akshay Bhan, learned Counsel for the petitioner has urged this Court to go into various facits of controversy which has led to the declaration of the assets as Non-Performing Asset. According to the learned Counsel, the clue with regard to the aforementioned controversy is available from order dated 17.4.2007 passed by the State Consumer Disputes Redressal Commission, Chandigarh (P-15) where Commission has noticed in the last para that the bank-respondent No. 1 is trying to raise proxy war on behalf of Sunil Dutt Bansal and that it was not the function of the bank-respondent No. 1 to plead the case of one of the Directors against another Director. The Commission has prima facie held that the complaint has been filed by the appropriate authorised person and was maintainable. The application of the bank-respondent No. 1 was dismissed with extraordinary costs of Rs. 20,000/-because it has unnecessary taken the cause of Sunil Dutt Bansal without caring that bank-respondent No. 1 had to act independently and not to absolve itself into the dispute of Jai Bhagwan Bansal and Sunil Dutt Bansal.

After hearing learned Counsel for the petitioner, we are of the considered view that the aforesaid controversy cannot be gone into in a writ jurisdiction under Article 226 of the Constitution. If one of the Director has allowed to induct his relation as Directors without any authorisation, intimation in that regard might or might not have been sent to the Registrar of the Company under the Companies Act. Therefore, a remedy in accordance with the provisions of Companies Act might have been available to the petitioner. It is not clear as to whether such remedy had been availed by the petitioner-company. Moreover, it is not the individual Director who has filed the petition before us but it is the company which has filed the petition. The controversy with regard to the transfers of cash by one of the Directors namely Sunil Dutt Bansal can also not be gone into because it is within the four corners of the jurisdiction of the Debts Recovery Tribunal. It is not possible for us to hold that the petitioner did not have any notice of publications and if it has led limitation to lapse which has been done at its own risk and responsibility. The order of the State Consumer Disputes Redressal Commission on which reliance has been placed cannot constitute basis for us to proceed against one of the Directors or the bank-respondent No. 1 because firm finding of fact has to be recorded by some Court of competent jurisdiction. Therefore, there is no merit in this petition and the same is accordingly dismissed.