- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4234 OF 2010 M/s D.M.Nangia, Engineers & Contractors .. Petitioners vs Bank of Maharashtra & anr ..Respondents Mr.Anurag Jain for Petitioners Mr.R.K.Singh for Respondent nos.1 & 2 Mr.S.N.Patil AGP for State ... CORAM: D.D.SINHA & MRS.MRIDULA BHATKAR,JJ DATE: 6th August, 2010 P.C. 1. Heard learned counsel for the petitioners and for the respondents. 2. The writ petition is directed against the order passed by D.R.T. And D.R.A.T. whereby original application filed, came to be dismissed and confirmed by the lower appellate authority. Learned counsel for the petitioners have contended that the respondent-bank is under an - 2 - obligation to consider the guidelines issued by the Reserve Bank of India pertaining to one-time settlement of the outstanding dues. It is therefore, contended that in the instant case, the respondent-bank ought to have considered the claim of the petitioners in respect of the outstanding dues for one-time settlement as per these guidelines. It is further contended that action of the respondent-bank not undertaking process of one time settlement based on Reserve Bank of India guidelines is bad-in-law and cannot be sustainable in law and therefore, appropriate directions in this regard be given to the respondent -bank. The learned counsel for the petitioners submitted that in the instant case neither D.R.T. nor D.R.A.T. has taken into consideration valid issues/grounds raised by the petitioners based on the guidelines and therefore both the orders are bad-in-law. 3. Learned counsel for the respondent-bank on the other hand submitted that as per new guidelines dated 3.9.2005 the case of the - 3 - petitioner does not fall within any of the clauses of the said guidelines particularly clause A (a) (b) and (c). It is therefore, contended that issue raised by the petitioners is misconceived and devoid of substance and cannot be sustained in law. 4. We have considered the contentions canvassed by the respective counsel. In the instant case, it is not in dispute that the petitioner is the principal borrower and defaulted in payment. It is also not in dispute that the respondent-bank has issued notice under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the petitioners whereby the petitioner is called upon to give reply within a stipulated period mentioned in the said notice. Learned counsel for the petitioner has not disputed that the grounds which are canvassed before this court were not raised or mentioned by the petitioners in their reply submitted to the bank pursuant to the notice under section 13 (2) of - 4 - the Securitisation Act. Since the petitioners have not raised any objection in his reply to the show cause notice under section 13 (2) of the Act, it will not be possible for us to permit the petitioners to raise those issues for the first time before this court or before any other authority. 5. So far as the guidelines issued by the Reserve Bank of India dated 3.9.2005 are concerned, the petitioners has placed reliance on sub-clause (c) of clause A of the said guidelines which deals with one time settlement of chronic NPA up to Rs.10 crores. The said guidelines reads thus : (A) Guidelines for one-time settlement of chronic NPS up to Rs.10 crores. (c) These guidelines will cover cases on which the banks have initiated action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 and also cases pending before Courts/DRTs/BIFR, subject to consent decree being obtained from the Courts/DRTs/BIFR. - 5 - 6. On perusal of the said guideline show that it will cover cases on which the banks have initiated action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and also cases pending before the courts/ DRTs/BIFR, subject to consent decree being obtained from the courts/DRTs/BIFR. In the instant case, the petitioners in fact gave an offer before the D.R.T. and also issued a cheque for Rs. 15,00,000/- and another cheque of Rs.86,00,000/- subject to approval by the Bank. It is not disputed that at a later point of time, the bank disapproved the proposal submitted by the petitioners for One- time settlement. It is therefore, evident that apart from the issue about applicability of the guidelines it is evident that one-time settlement could not be arrived at since the bank disapproved the same. 7. In the instant case, there is no consent decree obtained in respect of the proceedings - 6 - pending before this court or before D.R.A.T or B.I.F.R. and therefore, in that view of the matter, we are afraid that the petitioners in the facts and circumstances of the present case, would not be entitled to derive any benefits in this regard. 8. Learned counsel for the petitioners has cited a decision of the Apex court in M/S.SARDAR ASSOCIATES ORS VS.PUNJAB SIND BANK & Ors, in order to subtantiate their contentions reliance was placed on observations made by the apex court in para 29. 29. It may be that no specific prayer was made but the same, in our opinion keeping in view the provisions of the 2002 Act, did not preclude the Appellate Tribunal; to consider the offer of the appellants. The Appellate Tribunal in terms of the provisions of the Act like the original Tribunal is interested only in recovery of the amount. While doing so, it in our considered opinion has the requisite jurisdiction to consider the prayer made by a debtor for one time settlement particularly in view of the fact that the same is within the purview of One Time Settlement Scheme of the Reserve Bank of India. If a public sector bank is otherwise bound by any guidelines issued by the - 7 - Reserve Bank of India, we see no reason as to why the same cannot be enforced in terms of the provisions of the Act by the Tribunal and consequently by the Appellate Tribunal. It is not a case here the appellants had prayed for quashing of a policy decision taken by the respondent bank. The question which arose for consideration before the Appellate Tribunal as also before the High Court was as to whether offer having been made by the bank to the appellants herein it could have turned around and contend that only because the appellants had furnished security to the extent of Rs.11 crores, the same by itself would entitle it to take recourse to a discriminatory treatment. The answer to the said question must be rendered in the negative. 9. In our view, considering the facts and circumstances involved in the present case, the observations made by the apex court in the said para does not further the case of the petitioners. For the reasons stated herein above, the petition suffers from lack of merit. Writ Petition is dismissed. D.D.Sinha, J Mrs Mridula Bhatkar,J - 8 -