2014 (7) TMI 1210 - HC - Indian Laws

Bank account declared as non-performing asset - request of the petitioning company for legal representation has been refused on the ground that the guidelines of the RBI do not provide for the same - committee on identification of wilful defaulters had identified it as a wilful defaulter - Held that - The officers of the bank comprising the Committee are legally trained persons for which there could be a reasonable likelihood of a failure of justice, if the petitioning company were refused the permission to be represented by an advocate. Even if any or all the officers of the bank comprising the Committee are legally trained persons, the petitioning company does not stand at a disadvantage. It is inconceivable that the petitioning company does not have in its fleet an efficient and well versed company secretary and/or competent law officers. In the hearing to be conducted by the Committee, reasonably simple questions of fact as to by whom and how the finances of the petitioning company were handled and utilized, and where the funds have gone resulting in accumulation of dues, would fall for consideration, which a company secretary and/or law officers of fair intelligence and having knowledge of the conditions prevailing in the petitioning company would be able to disclose, for unearthing the truth. It is he/they who would be best suited to answer the queries of the Committee members or to raise effective defence and plead that the default has not been wilful and, therefore, question of declaring the petitioning company as a wilful defaulter does not and cannot arise. On the facts pleaded in the responses to the impugned notices forming part of the writ petition, the petitioning company can claim no right to be represented by an advocate at the hearing before the Committee. The writ petition is without merit and the same stands dismissed, without order for costs. Since the Committee adjourned the hearing scheduled on July 9, 2014 awaiting decision on this writ petition and it has now been dismissed, it shall be at liberty to fix a further date of hearing upon service of 72 hours advance notice on the petitioning company and its directors.Needless to observe, the Committee shall proceed to decide the issue before it in accordance with law and all other points are left open for being urged before it by the petitioning company.

Summary

Issues:
1. Legal representation before the Committee on identification of wilful defaulters.

Analysis:
The case involved a petitioning company challenging notices from a bank classifying its account as a non-performing asset and identifying it as a wilful defaulter. The company requested legal representation before the Grievance Redressal Committee, which was denied by the bank citing RBI guidelines. The main issue for decision was whether the petitioning company was entitled to legal representation before the Committee.

The court noted that while the request for legal representation was refused based on RBI guidelines, no consideration was given to whether a case for such representation had been made. The court referenced the J. K. Aggarwal case, stating that legal representation cannot be claimed as a right, but may be allowed based on the gravity of charges and complexity of issues. However, the court highlighted that the circumstances in this case, involving a borrower being declared a wilful defaulter, were different from a departmental enquiry.

The court emphasized that the bank officers on the Committee did not need to be legally trained, as the matter primarily involved factual questions about the company's financial handling. The court found that the company had competent personnel like a company secretary or law officers who could adequately represent it. The court concluded that based on the responses provided by the company, there was no right established for legal representation before the Committee, leading to the dismissal of the writ petition.

As the writ petition was dismissed, the Committee was directed to set a new hearing date. The court stressed that the Committee must proceed in accordance with the law, leaving all other points open for the petitioning company to raise. The judgment concluded without any order for costs, allowing for the provision of a certified copy of the order upon request.