Union of India (UOI) vs B.M. Kapoor

Sunil Ambwani, J.—Heard Shri Subodh Kumar learned Counsel for petitioner-Union of India. Shri Anoop Trivedi has entered appearance on behalf of respondent-Shri B.M. Kapoor, Resident of G/1, Shanti Nagar, Kanpur.

The proceedings have been initiated under Sections 45, 45H(2), 45L(4) of the Banking Regulation Act, 1949 read with Section 543 of Companies Act, 1956 for recovery of Rs. 44.56 lacs and Rs. 42.81 lacs along with interest from the respondent-B.M. Kapoor, the Ex-Chairman of the Kashinath Seth Bank (amalgamated with State Bank of India w.e.f 1.1.1996) for negligence, misfeasance and breach of trust causing mismanagement and losses to the bank leading to its winding up and amalgamated with the State Bank of India, under a scheme prepared by Reserve Bank of India w.e.f. 1.1.1996, with which the Kashinath Seth Bank Limited stood wound up, Two years prior to this date, a moratorium was declared and the competent authority was directed to scrutinize the matter. It was found that the Bank had suffered losses on account of several acts of misappropriation and misfeasance by the Board of Directors of the Bank leading to filing of this Company Petition. The matter is connected with 16 other Company Petitions with regard to misfeasance by the Ex-Directors for various periods beginning from 1984 to December 1994.

Shri Subodh Kumar, learned Counsel for Union of India states that respondent-B.M. Kapoor was Chairman of the Bank from 2.2.1985 to 24.11.1986. He along with members of Board of Directors is jointly and severally liable to the loss of Rs. 44.56 lacs and Rs. 42.81 lacs individually caused to the Government of India and or/to the State Bank of India due to negligence and misfeasance of the respondent, which the respondent must pay to the bank as damages along with interest @ 18% per annum.

In a supplementary affidavit filed in connected Company Petition No. 112 of 2000, the loss caused to the bank explained after investigations is stated as follows:

10-A That till 12th of September, 1993, the affairs of the Kashi Nath Seth Bank Ltd were in the hands of a Board which was being managed by the Board of Directors including Sri P.C. Seth, R.C. Seth, Ashok Kumar, Dwarika Nath, Umesh Tandon, P.K. Pandey etc.

10-B That no doubt, the Board of Directors, as per their balance sheet of the financial year 1991-92 (assessment year 1992-93) have shown profit of Rs. 5,955.48. However, in the financial year 1992-93 (assessment year 1993-94) ending on 31th March, 1993, they have shown a net loss of Rs. 7, 10, 47, 252.15. At the cost of repetition it is submitted that till 31.3,1993 the affairs of the Bank were being managed by the Board of Directors including the aforesaid persons. It is also important to mention here that while preparing and tendering the balance sheet of the Bank till 31.3.1993 there is a page showing highlights of different financial years i.e. 1988-89, 1989-90, 1990-91, 1991-92 and 1992-93. A chart of the highlights is filed herewith and is being reproduced hereinafter.

HIGHLIGHTS

SN 1988-89 1989-90 1990-91 1991-92 1992-93 1. Total No. Branches 29 29 29 30 30 2. Deposits 4,289.54 5,290.25 7,102.69 7,075.09 7,086.65 3. Advance 2,883.82 3,392.12 4,218.83 4,714.80 4608.16 4. Income 540.02 547.87 674.11 906.14 398.92 5. Expenditure 535.78 528.29 673.09 904.71 1109.45 6. Reserve 10.00 12.75 22.00 24.05 678.60 7. Investment 830.74 1085.23 1752.05 1761.30 1691.00 The reserves of the amount of different financial years is too much material specially regarding financial year 1992-93 which shown minus 678.60 Lacs. The form of balance sheet further shows that the advances made by the Bank to the borrowers is 46,08,16,180.00. The said advance including present amount in dispute is approximately 8.00 crore. Copy of the entire balance sheet and annual report of financial year 1992-93 is being annexed herewith and marked as Annexure No. 1 to this company petition.

10C That, on 13th September, 1993 the Reserve Bank of India imposed certain restrictions regarding withdrawal of amount from the accounts of the Bank. The Board of Directors was suspended w.e.f. 13th September, 1993. Thereafter powers u/s 35A of the Banking Regulation Act were invoked vide order dated 8.9.1993 which continued till 19.6.1994. During the restriction, the officers of the Reserve Bank of India found that the condition of the 24,08,47,285.82. To prove this fact a copy of the balance sheet and annual report dated 31.3.1994 is being annexed herewith and marked as Annexure No. 2 to this company petition. Ultimately while exercising the powers u/s 45(2) of the Banking Regulation Act, the Government of India passed an order of Moratorium on 20.6.1994 suspending the business of the Bank. The said Moratorium continued till 19.12.1994. The Bank was again placed under the Reserve Bank of India''s directions from 20.12.1994. Consequently second order of Moratorium was passed on 30.6.1995 which continued till the Bank was financially amalgamated with transferee bank.

10-D That in the year ending on 31.3.1995, (financial year 1994-95) (assessment year 1995-96), the Bank was found to be in loss of Rs. 35, 18, 82, 619,00. Copy of the Director''s Report and balance sheet is being annexed herewith and marked as Annexure No. 3 to this company petition.

10-E That, the financial condition of the Bank was so worse that the transaction of the Bank was not possible and, as such, total business of the Bank was restricted for a period of about 2 years till it was amalgamated on 1.1.1996. After amalgamation of Kashi Nath Seth Bank Ltd. in State Bank of India vide Gazette Notification dated 31.12.1995 effective from 1.1.1996, the business of the erstwhile Kashi Nath Seth Bank Ltd was transferred to the State Bank of India and State Bank of India started its smooth functioning as per the scheme of amalgamation. Copy of the gazette notification dated 31.12.1995 is being annexed herewith and marked as Annexure No. 4 to this company petition.

In the Company Petition, paragraph nos. 11 to 14 give the details of the fraudulent transactions of the Bank, in which the loans were sanctioned or extended with higher limits by the Board of Directors of which respondent-Shri B.M. Kapoor was the Chairman.

The first transaction relates to borrowing unit Seth Cold Storage, Village Atsaliya, Shahjahanpur. The firm was availing Cash Credit (Hyp.) from the bank which was renewed by the respondent on 12.3.1985 subject to approval of the Board which was not taken. One of the conditions of the renewal was equitable mortgage of land and building of the cold storage. The respondent vide his letter dated 16.3.1985 waived creation of equitable mortgage subject to approval of the board which again was not taken diluting the security available and rendered outstanding irrecoverable. The petition refers to chairman''s letter dated 12.3.1985 (Form No. 108), chairman''s letter; dated 16.3.1985 and cash credit ledger extract as evidence in support of the charge.

The second transaction refers to joint liability with the successor Chairman Shri C.G. Goel for the loss of Rs. 15.08 lacs on account of loan extended to Arora Cold Storage and Ice Factory Alamnagur, Lucknow. The term loan of Rs. 19 lacs was enhanced to Rs. 25 lacs on 11.8.1986 within a short span of 8 months. The proposal was not put before the Board of Directors for confirmation. The enhancement was totally unauthorized and was enhanced twice subsequently within one year. The need of the unit was not assessed realisticall and proper appraisal of credit proposals was not undertaken. The petition annexes chairman''s letter dated 31.3.1986, sanctioning term loan of Rs. 19 lacs, chairman''s letter dated 11.8.1986 enhancing term loan to Rs. 25 lacs and chairman''s letter dated 15.9.1989 of re-scheduling payment as evidence in support of the charges.

The third transaction makes the respondent liable to Rs. 5.99 lacs for loan extended to Shri Vinod Dal Mill, Hazipur, Bareilly; Rs. 2 lacs sanctioned on 27.5.1986. The unit was stated to be functioning since 1981. The respondent did not care to examine that the fixed assets in the balance sheet as on 31.3.1985 was shown to be ''nil'' which was false as the unit should atleast have had the machinery. The respondent did not take any precaution to ensure that the terms stipulated in the sanction were complied with by equitable mortgage of land and building, resulting into irrecoverable debt totaling Rs. 5.49 lacs. The petition cites chairman''s letter dated 27.5.1986, Form No. 181, provisional balance sheet upto 31.3.1986, ledger extract, and overdraft account ledger extract as evidence in support of the charge.

Both the transaction makes the chairman along with other members of the Board of Directors jointly and severally liable for loss of Rs. 29.48 lacs on account of credit extended to Seth Jewellers Oktenganj, Ballia. On the recommendation of Shri R.P. Misra, Branch Manager, a cash credit limit of Rs. 6 lacs was given without proper appraisal of the credit needs of the borrowers. The profitability, of the firm and cash flow were never considered, Shri Ajay Seth, the proprietor was nephew of Shri P.C. Seth, the Ex-Director of the bank and a member of Seth family, which owned the bank. The credit report and the guaranteed were supplied by Shri P.C. Seth. The petition cites cash credit ledger extract, the loan application form, chairman''s letter dated 26.11.1991; chairman''s letter dated 1.12.1989 and letter of lien as evidence in support of the charge.

Shri B.M. Kapoor has filed, his counter affidavit on 23.9.2002 stating that Reserve Bank of India was causing inspection every year. There was no complaint for more than ten years of any misfeasance or misconduct. The respondent left the bank after his superannuation in 1986 and is not aware of the fiscal condition of the bank which is stated to have deteriorated. The misfeasance proceedings cannot be filed after 14 years. With regard to the transactions it is stated by him that he never granted the loan and only renewed the cash credit limit, which in the case of Seth Cold Storage was secured by equally in the Cold Storage and equitable mortgage by land and building as well as guarantees of Shri S.K. Seth and Shri Ramjee Tandon. The cash credit ledger relied upon starts from 11.3.1991 is more than 4 and half years after superannuation of the respondent.

In the counter affidavit, it is further submitted that in respect of loan extended to Arora Cold Storage & Ice Factory, the chairman''s letter dated 31.3.1986 and 11.8.1986 enhancing the loan limit, which was sanctioned on the recommendation of the Branch Manager, is not signed by the answering respondent. He cannot be held responsible. If the Branch manager did not physically verify the veracity of the documents/facts on which the loan was given. In respect of Vinod Dal Mill, it is stated that the advance was made on the basis of 50% margin stipulated and security of pulses stocked and additional security of equitable mortgage of land and building and personal guarantees and Shri Ram Jee Mai and Shri S.P. Agarwal.

With regard to fourth transaction in respect of Seth Jewellers Oktenganj Ballia the loan was shown oh 30% margin stipulated after the firm was approved and recommended by Branch Manager as agent and was secured by hypothecation of gold and silver ornaments and by guarantee of Shri Sunil Mehrotra and Shri Shyam Kishore Tandon.

Shri Subhodh Kumar has relied upon judgments in Official Liquidator, Janhitkuri Alap Bachat Rindayutri Sansthan Pvt. Ltd. v. Vishnu Kumar Pradhan and Ors. 2001 CompCases 1026 (Rajasthan); K. Madhava Nayak and Others Vs. Popular Bank Ltd., and P.K. Nedungadi Vs. The Malayalee Bank Ltd. (In Liquidation) and Others, in support of his submission that even if directors have not misapplied or retained the properties and it is proved that he acted reckless manner without taking care of statutory requirement, and applying basic common sense in sanction of the amounts which could not be recovered, such director commits misfeasance, which is covered by Section 543(2) of the Companies Act 1956. According to Shri Subodh Kumar, apart from misapplication or retainer, the misfeasance and breach of trust also refer to something which the director or the officer of company has done by which the companies properties have been wasted and company credit is improperly pledged.

In K.N. Srinivasa Iyer Vs. The Joint Official Liquidators of Nurani Union Bank Ltd. (in liquidation) and Others, relied by Shri Subodh Kumar in support of his submission, the respondent had inspite of resolution passed Dy Board of Directors, to the effect that the advances shall not be made without sanction of Board of Directors, made huge advances without consulting other Directors. There are no such allegations in the present case. The applicant has not pleaded that the Board of Directors was not authorized to sanction these loans and advances or that there was any restriction put by the Board forgiving the advances.

In Ghaziabad Development Authority Vs. Balbir Singh, . the Supreme Court held:

In Official Liquidator, Supreme Bank Ltd. Vs. P.A. Tendolkar (Dead) by Lrs. and Others, , the question which arose for consideration was as to whether a director having regard to the provisions of Section 235 of the Companies Act, committed acts of misfeasance. The said decision ex facie has no application in the present case. Therein, this Court was concerned with a case where the director was held to be not merely cognizant of but guilty of commission of fraud in the conduct of the business of a company even through no specific act of dishonesty was proved against him personally. The duties of a Managing Director are provided for in the Companies Act as also Articles of Association of the Company, He, thus, holds a position of trust vis-a-vis the shareholders of the compans. In that case all the directors went found to have committed acts of fraud. The Court took recourse to the provisions of Section 45 of the Companies Act wherein special provisions for assessing damages against delinquent directors have been laid down. Even in England where award of exemplary or aggravated damages for insult etc. to a person has now been held to be punitive, exception has been carved out if the injury is due to ''oppressive, arbitrary or unconstitutional action by servants of the Government'' (Salmond and Heuston on the Law of Torts). Misfeasance in public office is explained by Wade in his book on Administrative Law thus:

Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is commuted, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. (p. 777).

The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell and Co. Ltd. v. Broome 1972 AC 1027 : (1972) 1 All ER 801 on the principle that, ''an award of exemplary damages can serve a useful purpose in vindicating the strength of law''. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard 1664 AC 1129 : (1964) 1 All ER 367, 410 it was observed by Lord Devlin, ''the servants of the government are also the servant of the people and the use of their power must always be subordinate to their duty of Service''. a public functionary if he acts maliciously or oppressively and the exercise of powers results in harassment and agony then it is not an exercise of power out its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies hint personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook. Wade in his book Administrative Law has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which apart, from other factors succeeded in keeping a salutary check on the functioning in the Government or semi-government offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarding damages against them. Various decisions rendered from time to time have been referred to by Wade on Misfeasance by Public Authorities. We shall refer to some of them to demonstrate how necessary it is for our society. In Ashby v. White (1703) 2 Ld R938 the House of Lords invoked the principle of ubi jus ibi remedium in favour of an elector who was wrongfully prevented from voting and decreed the claim of damages. The ratio of this decision has been applied and extended by English Courts in various situations. In Roncarelli v. Duplessis (1959) 16 DLR 2689 the Supreme Court of Canada awarded damages against the Prime Minister of Quebec personally for directing the cancellation of a restaurant-owner''s liquor licene solely because the licensee provided bail on many occasions for fellow members of the sect of Jehovah''s Witnesses, which was then unpopular with the authorities. It was observed that, ''what could be more malicious than to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Alcoholic Liquor Act? Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry. In Smith v. East Elbe Rural District Council 1956 AC 736 : (1956) 1 A ER 855 the House of Lords held that an action for damages might proceed against the clerk of a local authority personally on the ground that he had procured the compulsory purchase of the plaintiffs property wrongfully and in bad faith. In Farrington v. Thompson 1959 AIR 286 the Supreme Court of Victoria awarded damages for exercising a power the authorities knew they did not possess, a licensing Inspector and a police officer ordered the plaintiff to close his hotel and cease supplying liquor. He obeyed and tiled a suit for the resultant loss. The Court observed:

Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual an action may be maintained against such public officer.

On the other hand, Shri Anoop Trivedi, appearing for respondent in the connected petitions, submits that in none of these transaction, the respondent is alleged to have gained anything personally or retained to himself for the purposes of assessing or quantifying recovery or damages by him to the bank. According to him, the directors may not have exercised prudence for sanction of loans, which may be required by law, but that by itself cannot be treated to be misfeasance or breach of trust. The misfeasance has an element criminal liability. The proceedings are quasi criminal in name which may also ultimately make respondent liable to criminal acts. He submits that out of transactions detailed in the Company Petition, when the respondent was director of the bank upto 1992, the current status of loan accounts is as follows:

Lala Kashi Nath Seth Jewellers, Bahadurganj, Shahjahanpur.

Loss shown in the petitioncr-Rs, 489.40 lacs.

A compromise proposal dated 26.3.2001 pending consideration before the State Bank of India.

Dinesh Cold Storage, Shahjahanpur.

Loss shown in the Petition-Rs. 133.94 lacs.

Account settled with the State Bank of India under the One Time Settlement Scheme for Rs. 94 lacs, by its order dated 26.07.2006 of the said amount, Rs. 84 lacs have been paid and a sum of Rs. 10 lacs are to be deposited by 02.4.2007.

General and Motor Finance Company, Kapsenda.

Loss shown in the Petition-Rs. 15.67 lacs.

Present status is not known.

Viraj Cold Storage & Allied Industry, Misripur.

Loss shown in the petition-Rs. 65.05 lacs.

Account settled with the State Bank of India under the One Time Settlement Scheme for Rs. 115.50 lacs, by its order dated 8.8.2005. The said amount has been deposited and a no dues certificate has been issued to the said firm. A withdrawal application has been filed by the Bank before Debt Recovery Tribunal, Lucknow in terms of the compromise.

Lal Kashi Nath Seth Jewellers, Tundla, Agra.

Loss shown in the Petition-Rs. J8.87 lacs.

Account settled with the State Bank of India under the One Time Settlement Scheme for Rs. 38.77 lacs. The said amount has been deposited and the case pending before the Debt Recovery Tribunal, Allahabad was decided 24.7.2001 in ten/is of the compromise.

Seth Jewellers, Oktenganj, Balia.

Loss shown in the Petition-Rs. 29.48 lacs.

Accounted settled with the State Bank of India under the One Time Settlement Scheme for Rs. 30.48 lacs, by its order dated 30.3.2001. The said amount has been deposited and the suit pending before the Debt Recovery Tribunal Allahabad and has been dismissed in the full satisfaction of the compromise by the order dated 14.3.2002.

Seth Ice & Cold Storage, Harpur, Ballia.

Loss shown in the Petition-Rs. 19.80 lacs.

Account settled with the Slate Bank of India under the One Time Settlement Scheme for Rs. 72.61 lacs, by its order dated 31.3.2001. The said amount has been deposited and the suit pending before the Debt Recovery Tribunal, Allahabad and has been dismissed in terms of the compromise by the order dated 11.3.2002.

Vivek Mehrotra, Bhattha Enterprises, Shahjahanpur.

Loss shown in the petition- Rs. 8.13 lacs.

Present status is not known.

Uda Kashi Nath Seth Jewellers, Chowk, Shahjahanpur.

Loss shown in the Petition- Rs. 7.28 lacs.

Account settled with the State Bank of India under the one time Settlement Scheme for Rs. 6.61 lacs, by its order dated 30.3.2001. The said amount has been deposited and the suit pending before the Debt Recovery Tribunal, Allahabad and has been dismissed in terms of the compromise.

Saras wad Electricals Enterprises, Bareilly.

Loss shown in the Petition- Rs. 14.06 lacs

A compromise proposal dated 31.3.2001, after depositing Rs. 4.70 lacs is pending consideration before the State Bank of India. Present status is not known.

I have considered the facts and evidence given by the petitioner for taking action of misfeasance or breach of trust and for recovering of Rs. 44.56 lacs as damages along with interest @ 18% jointly and severally from the respondent either individually and Rs. 42.81 lacs individually along with interest @ 18% per annum. The respondent was Chairman of the Bank from 2.2.1985 to 24.11.1986. There is no allegation that he was a proprietor or partner in any of firms to which the loans were advanced. He may have participated in the meetings of tire Board of Directors, which regularized and sanctioned the grant of further loans or credit limits. There is however absolutely no allegation that he gained anything out of these transactions, except that he should have been more careful and should have considered the viability of the loans and advances which ultimately resulted into losses to the bank. The respondent may have been a party to the collective decisions of the Board of Directors and taken bad commercial decisions but that alone cannot be taken to have led to the fall of the bank, on account of which it was wound up. The status of these loan accounts shows that the loan given to Seth Jewellers Oktenganj, Ballia was settled with State Bank of India under one time settlement scheme of Rs. 33.48 lacs by order dated 30.3.2001. The amount has been deposited and suit pending with DRT Allahabad was dismissed in full satisfaction of the compromise by order dated 14.3.2002. The other three transactions were made almost ten years before the Reserve Bank of India made enquiry and formulated a scheme and thus transactions were made with the sanction of the Board of, Directors. The explanation given in respective of all these transactions regarding recommendation, satisfaction of board on the security made a vailable cannot be said to be so reckless, motivated and accentuated with any personal motive.

In all the judgments cited by the petitioner, the Directors or Chairmen were found to have misapplied and had retained the advances which ultimately led to the collapse of the bank. In the present case, the fact and evidence on record do not establish that the respondent-B.M. Kapoor had misapplied, misappropriated or committed any misfeasance and breach of trust and had gained individually in participating and sanctioning advances as Director of the bank leading to the losses, which were the cause of collapse of the Bank.

The object of proceeding u/s 543 of the Companies Act, 1956 is to assess damages against delinquent directors. u/s 543(1)(b) the Court can campel then Director manager Liquidator or Officer of the company, to repay or restore the money or the property or any part thereof respectively with interest at such rate as the court may deem fit or to contribute such sum to the asset of the company, by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust, as the court thinks fit. in the present case pleading and the evidence do not show that respondents had in any way benefited from the subject transactions or had gained and retained any pecuniary benefits and committed breach of trust to recover any amount from him. Further, there is nothing to show that the bank had taken any steps to recover the amount in the period of ten years. In the circumstances the State Bank of India may be justified in recovering the amount from the borrowers but the directors of the Bank who had regularised these accounts, or sanctioned additional or increased loans cannot be held responsible for damages in the misfeasance proceedings.

In the facts and circumstances the Company Petition against respondent-B.M. Kapoor is dismissed.