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Judgment
This application seeking modification/recalling of the order dated 29/9/2020 has been filed by the petitioners with the following prayers:
In light of the facts and circumstances mentioned above, it is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to
:
(a) Pass orders recalling the terms in order dated 29.09.2020 for disposal of the Writ Petition in the event of failure and restore the matter to its
original number, granting opportunity to the petitioner for hearing on merits; and/or
(b) Pass orders directing the respondents to permit the access to the premises withdrawing the declaration of NPA and settling the dispute in terms of
the order passed by this Hon'ble High Court on the basis of OTS charging 12% interest on the remaining OTS amount of Rs.13.05 Crores, &
(c) Pass any other order/s as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
By order dated 29/9/2020, this Court, after noticing the submissions made on behalf of the petitioners, inter alia passed the following order:
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It is no doubt true that the petition filed by the petitioners was dismissed by this Court when the petitioners approached on earlier occasion, however,
this is also a fact that a Coordinate Bench of this Court after showing disinclination on 26.11.2019 on account of change in circumstances, by order
dated 12.12.2019 in presence of learned counsel for the respondent - bank, passed the interim order. Though the petitioners did not comply with the
time limit as indicated in the interim order dated 12.12.2019, the bank did not proceed further and instead, accepted the OTS proposal made by the
petitioners. Subsequently, on account of the pandemic the time was extended on the condition of payment of interest on the balance OTS amount.
In view of the subsequent events since filing of the petition whereby, interim order was granted by this Court and the bank has agreed to enter into a
one time settlement, the plea sought to be raised pertaining to the maintainability of the petition, at this stage looses significance as now in the petition,
the only prayer which remains, is by way of application seeking a month's extension for making payment in terms of the OTS.
From the circumstances indicated in the application, it is apparent that the petitioners are attempting to comply with the requirements of the OTS and
are seeking another month's extension besides what has already been granted by the Bank till 30.09.2020.
Looking to the submissions made by learned counsel for the petitioners fixing 31.10.2020 as the date by which the petitioners would do the needful in
terms of OTS, and failure thereof would lead to consequences, looking to the overall circumstances prevailing, the application / prayer made by the
petitioners seeking extension of a month's time for making payment, in the peculiar circumstances of the present case appears to be justified.
In view thereof, the writ petition filed by the petitioners is disposed of. It would be required of the petitioners to make payment of the OTS obligation
by 31.10.2020 alongwith interest @ 12% p.a. from 01.07.2020 on the balance OTS amount as provided in the extension granted by the bank vide its
letter dated 26.06.2020.
In case, the petitioners fail to make the entire payment by 31.10.2020, the petition filed by the petitioners shall be deemed to have been dismissed by
this Court and 01.11.2020 onwards the Bank would be free to proceed with the matter.
A perusal of the above order indicates that the Court noticed the various circumstances including the subsequent events since filing of the writ petition,
whereby, the Bank had agreed to enter into one time settlement ('OTS'), based on which, the vehement objection raised by the Bank pertaining to
maintainability of the writ petition was held to have lost significance and on noticing that the only prayer which remained in the petition was in terms of
the application seeking a month's extension for making payment in terms of the OTS. Based on the said observations, the writ petition was disposed
of.
It was directed that the petitioners shall make payment of OTS obligation by 31/10/2020 along with interest @ 12% p.a. from 1/7/2020 on the balance
OTS amount as provided in the extension granted by the Bank vide its letter dated 26/6/2020. It was further observed that in case the petitioners fail to
make the entire payment by 31/10/2020, the petition filed by the petitioners shall be deemed to have been dismissed and 1/11/2020 onwards the Bank
would be free to proceed with the matter.
The present application has been filed on 5/2/2021 with the submissions that after passing of the order dated 29/9/2020 the Bank did not cooperate
with the petitioners inasmuch as access to the property to buyers/investors for evaluation of assets was denied, in absence thereof it was not possible
to get the proper valuation of the property done and procure funds.
Whereafter, averments have been made in the application seeking to re-agitate the issues, which were raised in the writ petition including the fact that
the Bank was not justified in declaring the account as NPA in light of the Circular dated 6/6/2018 issued in relation to MSME. It is also claimed that
the Bank, pursuant to the letter dated 31/10/2020 seeking further extension of two months time for payment of remaining dues of OTS, extended the
same for two months i.e. till 31/12/2020 vide Annex.13 to the application.
Further, allegations have been made that though the property in question is valuable, the Bank is deliberately taking over the property and causing loss
to the petitioners. Based on the said averments, prayers, as indicated hereinbefore, have been made.
Additional affidavit has been filed placing on record certain letters to buttress the submissions made in the application.
Learned counsel for the applicants vehemently reiterated the submissions made in the application, as noticed hereinbefore, essentially seeking to
contend that the Bank has been behaving unreasonably after the order dated 29/9/2020 was passed by this Court in not providing access to the
premises, resulting in potential buyers backing out and the applicants remain in default pursuant to the orders passed by this court.
Submissions were also made seeking to question the very fact of declaration of account as NPA being contrary to the RBI Circular dated 6/6/2018.
Reference was made to the judgment of Telangana High Court filed as Annex.11.
It was prayed that the application be allowed. The order dated 29/9/2020 may be recalled and the writ petition be heard on merits.
I have considered the submissions made by learned counsel for the applicants and have perused the material available on record.
A perusal of the application and the events indicated therein, as noticed hereinbefore, clearly reflect that the grievance has been raised by the
applicants essentially qua the conduct of the Bank after passing of the order dated 29/9/2020.
The prayer for recalling of the order can only be taken cognizance based on the events or facts as available on the date of passing of the order. Any
subsequent event, after the order was passed by the Court, if gives rise to any grievance to any party, the same essentially is a fresh cause of action
and the same cannot by any stretch of imagination be made the basis for seeking recall of the order passed by the Court and, therefore, the prayer
made in this regard is essentially not maintainable, the same is, therefore, rejected.
Further, it would be noticed that even after passing of the order dated 29/9/2020, the petitioners approached the Bank seeking extension of time
granted by the Court i.e. beyond 31/10/2020 and the Bank has accommodated by granting time till 31/12/2020 to comply with the directions indicated
in the order dated 29/9/2020 and as such the applicants-petitioners having acted on the order dated 29/9/2020 cannot now seek recalling of the order
on that count also.
So far as the prayer seeking modification of the order and seeking a direction to the Bank to withdraw the declaration of NPA is concerned, a perusal
of the order dated 29/9/2020 indicates that the petitioners themselves in pending writ petition, filed an application for compliance of the OTS proposal,
as the Bank had declined to extend the time beyond 30/9/2020 and the Court specifically by observing that the only prayer which remained in the
petition is by way of application seeking a month's extension for making payment in terms of the OTS, had passed the order dated 29/9/2020.
It is not the case of the petitioners that either the application of the nature seeking extension of OTS period was not made or that the submissions
were not confined to the extension of time for making payment in terms of OTS, which lead to passing of the order dated 29/9/2020 and, therefore,
apparently, falling back on the issues raised in the writ petition, regarding which there was a specific objection of the Bank pertaining to maintainability
on account of earlier petition having already been dismissed on account of availability of alternative remedy, is clearly by way of an afterthought,
which cannot be countenanced.
In view of the above discussion, no case for recalling / modification of the order dated 29/9/2020 is made out. The application in this regarding is,
therefore, dismissed.