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Sudhir Kumar Patodia v/s Union Bank of India

Company & Directors' Information:- BANK OF INDIA LIMITED [Active] CIN = U99999MH1906PLC000243

Company & Directors' Information:- UNION COMPANY LTD. [Active] CIN = U36900WB1927PLC005621

Company & Directors' Information:- N BANK LTD [Strike Off] CIN = U65191WB1924PLC000442

Company & Directors' Information:- PATODIA CO PVT LTD [Active] CIN = U65993RJ1952PTC000909

Company & Directors' Information:- P N N BANK LIMITED [Strike Off] CIN = U65921TZ1948PLC000153

Company & Directors' Information:- UNION COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999KA1942PTC000292

Company & Directors' Information:- CORPORATION BANK LIMITED [Strike Off] CIN = U99999KA1972PLC001067

Company & Directors' Information:- K AND C BANK LIMITED [Dissolved] CIN = U65191KL1928PLC000529

Company & Directors' Information:- CORPORATION BANK LIMITED [Not available for efiling] CIN = U99999MH1936PTC002552

    RVW. No. 62 of 2020 & CAN. Nos. 3440 & 3441 of 2020

    Decided On, 19 August 2020

    At, High Court of Judicature at Calcutta


    For the Petitioner: Ratnanko Banerjee, Siddhartha Banerjee, Advocates. For the Respondent: Pankaj Kumar Mukherjee, Advocate.

Judgment Text

The applicant has filed the Memorandum of Review along with stay application against the judgment and order dated 28th February, 2020 passed in CAN 5340 of 2019, MAT No.787 of 2019.

Mr. Ratnanko Banerjee, learned senior Advocate appearing in support of the review application submits that in the supplementary affidavit some documents were disclosed first time by the Appellant Bank before the Hon'ble Division Bench. Accordingly, the Hon'ble Division Bench set aside the order passed by the learned Single Judge. Though before the learned Single Judge those documents were not disclosed by the appellant/Bank. Therefore, the writ petitioner, applicant herein has no scope to counter the same. It is further contended by Mr. Banerjee that the writ petition was allowed only on the ground that the impugned show-cause-notice was not issued by the competent authority. Assailing the order passed by the learned Single Judge, the respondent, Bank preferred the appeal. The Hon'ble Division Bench allowed the appeal on the basis of the documents disclosed for the first time before the appeal court without considering the fact that no show-cause-notice was issued separately to the Directors. Therefore, Mr. Banerjee submits that the order dated 28th February, 2020 should be reviewed and appeal should be heard afresh. In support of his contention Mr. Banerjee relied on one Hon'ble Apex Court decision reported in 1993 Sup(4) SCC 595, paragraph 18 and 19. Reliance is also placed by Mr. Banerjee in an unreported decision in Review Petition (Crl.) No.46 of 2019. Per contra, Mr. Mukherjee, learned Advocate appearing for the Bank submits that it is evident that written reply was given by the petitioner against the show- cause-notice. The same is quoted below:

"To The Assistant General Manager Union Bank of India Overseas Branch 9, India Exchange Place, 2nd Floor, Kolkata-700001, West Bengal, India.

Re:- The proceeding initiated for the alleged purpose of classifying me as willful defaulter.

Dear Sir, This is in relation to the proceeding initiated at your instance for classifying me as willful defaulter, in connection wherewith, a meeting has been convened on 27th September, 2018.

Without prejudice to my specific contention that no incident of "willful default" has ever occurred, that could have warranted initiation of such proceeding, I would like to most humbly submit that you have apparently acted exceeding your jurisdiction in seeking to classify me as willful defaulter.

The proceeding to classify me as willful defaulter has been initiated also in clear contravention of the mandates stipulated in the relevant circular issued by Reserve Bank of India.

As it further appears from the notices so far served upon me, you unlawfully arrogated to yourselves powers not vested in you by law while initiating and continuing with such proceeding.

In the present case, unfortunately, it, however, appears that the idea to classify me as willful defaulter has been conceived without scrutiny of any record. Documents lying in my custody also suggest that the purported proceeding to classify as the willful defaulters has been initiated mechanically and with a preconceived mind.

The contents of the notices served upon me also indicate improper constitution of the purported identification committee.

There are other grave and incurable procedural lapses on your part. In such circumstances, I do hereby call upon you not to proceed any further to classify me as willful defaulter in any manner and not to hold or convene any further meeting in that regard, as proposed or otherwise, failing which, I shall be constrained to initiate appropriate legal proceedings against each one of you, which shall be at your costs, consequences and paril".

Mr. Mukherjee also draws our attention to paragraphs 3 and 4 of the Division Bench order dated 28th February, 2020 and further emphasizes that on the one hand the writ petition is contending that no show-cause-notice was issued separately to the Directors but record says (as appears in page 75) that they have given written reply to the show-cause-notice on 25th September, 2018. Mr. Mukherjee also draws our attention to paragraph 4 of the Division Bench order dated 28th February, 2020. Paragraph 4 of the judgment is quoted below:

"The writ petitioners by separate responses dated 25th September, 2018 informed the Asstt. General Manager, appellant no. 3, that the show-cause notice dated 15th July, 2017 as well as the notices dated 10th September, 2018 had been issued without jurisdiction and in clear contravention of the provisions of the Master Circular on Willful Defaulters (hereafter the master circular) issued by the Reserve Bank of India on 1st July, 2015. Alleging that the appellant no. 3 had unlawfully arrogated to himself power not vested in him by law while initiating proceedings to classify the borrowers/directions of the company as willful defaulters, it was also highlighted that documents in the custody of the writ petitioners suggested initiation of proceedings by the appellants mechanically and with preconceived mind. There was also an allegation that the notices served upon the writ petitioners indicated improper constitution of the identification committee. According to the writ petitioners, these were grave, illegal and incurable procedural lapses on the part of the appellants for which requests were made by them not to proceed further, failing which they would be constrained to initiate appropriate legal proceedings".

Mr. Mukherjee further submits that review does not lie against the judgment passed by the Hon'ble appeal court. At best the applicant can prefer regular appeal before the Hon'ble Apex Court. It is also contended that the citation as relied on by Mr. Banerjee has no manner of application on the case in hand. Before parting with his submission, Mr. Mukhjerjee submits that Court should dismiss the review application with costs for wasting the Court's time. Considering the submissions as advanced by the learned Advocate appearing for the parties and after perusing the records, we find that the Hon'ble Division Bench has granted liberty to the appellant, Bank to disclose some documents by way of filing supplementary affidavit. Accordingly, the appellant, Bank filed the supplementary affidavit. We find that under Order 41, Rule 27(b) of the Code of Civil Procedure, the appellate court has the power to direct the parties to file any document for proper adjudication of the appeal. Order 41, Rule 27(b) is quoted below:

"(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause".

Pursuant to that authority as granted by the Code itself, the Hon'ble Division Bench granted liberty to the appellant, Bank to file supplementary affidavit to disclose some documents. It is evident from the record that the supplementary affidavit was served upon the review petitioner well in advance. Unfortunately, the review petitioner never prayed for time to counter that supplementary affidavit by filing rejoinder or opposition against that supplementary affidavit. We considered the order 47 of the Code of Civil Procedure should be narrated. Accordingly, the order 47 of the Code of Civil Procedure is quoted below:

"1. Application for review of judgment.-(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review or judgment to the Court which passed the decree or made the order".

Considering the ingredients as envisaged under order 47 of the Code of Civil Procedure as referred above, in our considered view the review petitioner, applicant failed to satisfy those conditions. Accordingly, considering the above discussion and considering the orders, rules as referred above, we opined that the review petition does not lie against the judgment and order dated 28th February, 2020. It is not out of place to refer paragraph 37 of the Division Bench judgment dated 28th February, 2020 where liberty was granted to the petitioner to file representation before the authority thereby ventilating their grievances excepting the point of jurisdiction of the appellant No.2 to issue show-cause- notice which has been decided by the Hon'ble Division Bench. Paragraph 37 is quoted below:

"The writ petitioners are granted time till 31st March, 2020 to submit a comprehensive representation/objection for bein

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g placed before the identification committee constituted under paragraph 3(a) of the master circular. Needless to observe, the writ petitioners shall be entitled to take all points that are available to them in law in such representation/objection for the identification committee to consider except the point of jurisdiction of the appellant no. 2 to issue the show-cause notice. As and when the identification committee receives the representation/objection from the writ petitioners, law shall take its own course in the manner ordained by the master circular". In this upshot, reference may be made in the Hon'ble Apex Court's decision reported in AIR 2000(SC) 1650 (Lilly Thomas -vs- Union of India), paragraphs 52, 55 and 57. We have also considered the citation referred by Mr. Banerjee, in our view both the citations have no manner of application in the present case. Accordingly, the Memorandum of Review Appeal and the stay application are both dismissed. However, without any order as to costs.