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TMI Blog2022 (11) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referred to as 'OTS Scheme') dated 01.09.2017. OTS specifically provided for making payment as settled under the OTS scheme within six months from the date of sanction, else infructuous. The Bank sent OTS offer to the borrower for OTS and ledger outstanding as on 31.03.2017 was Rs.13,99,89,273.99. The amount payable under the OTS was Rs.10,53,75,069.74. The borrower accepted the OTS offer and deposited an amount of Rs.1.40 crores with the Bank on 31.10.2017. 2.2 The Bank sanctioned OTS and confirmed receipt of Rs.1.40 crores. Under the sanctioned OTS the borrower was required to deposit 25% of the OTS amount by 21.12.2017 and the balance amount to be deposited within six months from the date of letter upto 21.05.2018 with interest. The borrower was also informed that on non-payment of the aforesaid amount within the time stipulated under the OTS, the OTS will be rendered infructuous. The borrower deposited amounts of Rs.4,51,45,000/- on 31.12.2017/21.05.2018. The borrower agreed/committed to pay Rs.3.50 crores on 21.05.2018 and requested extension of 8 to 9 months for repayment of the balance amount of Rs.2.50 crores. The bank declined extension of 9 months and directed the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to fulfilling the eligibility criteria mentioned in the scheme. It is submitted that in the present case the borrower was required to fulfil the terms and conditions of the OTS and was required to make the payment as per the schedule mentioned in the sanctioned letter of OTS. It is submitted that any deviation from making the payment as per the sanctioned OTS Scheme would render the OTS sanction infructuous, as per the sanction letter dated 21.11.2017. It is submitted that therefore the High Court in exercise of powers under Article 226 of the Constitution of India ought not to have granted any further time de hors the sanctioned scheme and/or the sanction letter dated 21.11.2017 and that too in exercise of powers under Article 226 of the Constitution of India. 3.2 It is submitted by Shri Kapur, learned counsel appearing on behalf of the Bank that the Hon'ble High Court under Article 226 of the Constitution of India cannot direct rescheduling the payment under the OTS as it amounts to modification of the contract which can be done by mutual consent under Section 62 of the Indian Contract Act. 3.3 It is submitted that the Hon'ble High Court ought to have appreciated that the OT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly granted further six weeks' time to the borrower to make the payment of balance amount under the OTS Scheme. 4.4 It is submitted that even the action of the Bank is contrary to the spirit of the guidelines of the Reserve Bank of India. It is submitted that the Bank has not set any eligibility criteria under any policy or under any OTS Scheme under which it can or cannot grant extension. It is submitted that the same is contrary to the spirit of the guidelines of the Reserve Bank of India, especially since one of the Scheduled Banks have already set a criterion of such nature which has also been dealt with by the High Court in the case of Anu Bhalla and Another vs. District Magistrate, Pathankot and Another, (2020 SCC Online P&H 4387), the judgment which has been relied upon by the High Court. It is submitted that thus, in absence of any criterion and an arbitrary rejection by the Bank, the Hon'ble High Court has rightly allowed the prayer of the respondent borrower for extension of time. 4.5 Relying upon the decision of the High Court of Punjab and Haryana in Anu Bhalla (supra) and the decision of this Court in the case of Sardar Associates (supra), it is vehemently submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at length. 6. At the outset, it is required to be noted that by the impugned judgment and order the High Court has extended time by a further period of six weeks from 10.03.2022 in favour of the respondent borrower - original writ petitioner to make the payment of the balance amount which was due and payable under the sanctioned OTS Scheme which was sanctioned in the year 2017 in exercise of powers under Article 226 of the Constitution of India. 6.1 Therefore, the short question which is posed for consideration of this Hon'ble Court is whether in the facts and circumstances of the case the High Court is justified in extending the period to make the payment of balance amount under sanctioned OTS Scheme beyond the time granted under the sanctioned OTS Scheme, while exercising the powers under Article 226 of the Constitution of India? 6.2 While considering the aforesaid issue the recent decision of this Court in the case of Bijnor Urban Cooperative Bank Limited (supra) is required to be referred to. 6.3 In the case of Bijnor Urban Cooperative Bank Limited (supra) this Court answered the following two questions: "(i) Whether benefit under the OTS Scheme can be prayed as a matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned OTS Scheme on or before the date mentioned in the sanctioned letter. The prayer of the borrower for extension of nine months came to be rejected as far as back on 16.05.2018 and the borrower was directed to make the payment of Rs.2.52 crores by 21.05.2018, the borrower failed to make the payment. At this stage, it is required to be noted that during the pendency of the writ petition there were as many as three different OTS floated by the Bank and the Bank offered the respondent borrower to settle the outstanding payment under the OTS Scheme. However, the borrower did not opt for any of the scheme. By the impugned Judgment and Order the High Court has granted further six weeks' time from 10.03.2022 which would be beyond even the time prayed by the borrower in the year 2018. As observed above earlier period of 8 to 9 months was sought in the year 2018 and by the impugned judgment and order the borrower has got time upto May, 2022. Even otherwise as rightly submitted on behalf of the Bank directing the Bank to reschedule the payment under OTS would tantamount to modification of the contract which can be done by mutual consent under Section 62 of the Indian Contract Act. By the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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