Tapabrata Chakraborty JUDGMENT
Tapabrata Chakraborty, J.
1. The present writ petition has been preferred primarily praying for following relief:
"A writ of or in the nature of Mandamus do issue directing the respondents to forthwith recall, rescind, withdraw and/or cancel the order dated 20th November, 2018 passed by the Review Committee of the respondent No. 2 bank declaring the petitioner to be a willful defaulter under the Master Circular published by the Reserve Bank of India on 1st July, 2015;"
2. Records reveal that the petitioner is one of the promoters of Pro Mineral Pvt. Ltd. (in short, PMPL) and he claims that his association with PMPL was in the capacity of an investor. For implementation of a project, PMPL availed financial assistance from a consortium of banks. Thereafter a decision was taken towards installation of a captive power plant (in short, CPP) and further credit facilities were obtained. Alleging non-repayment of the loan, a notice was issued on 5th July, 2016 on behalf of the respondent No. 2 for recalling the credit facilities sanctioned in favour of PMPL. Thereafter a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act) was also issued on 3rd August, 2016. The petitioner replied to the same. Subsequent thereto, a show cause notice was issued on 23rd August, 2016 and alleging non consideration of the reply and violation of the principles of natural justice, PMPL preferred a writ petition, being W.P. No. 1035 of 2016, which was disposed of by an order dated 30th November, 2016 directing inter alia that the committee of the respondent No. 2 shall decide the matter impartially after taking into consideration the relevant circulars and upon giving a reasonable opportunity of hearing to the writ petitioners. The order passed by the concerned committee was challenged subsequently by preferring two writ petitions, being W.P. No. 173 of 2017 and W.P. No. 174 of 2017, which were disposed of by a common order dated 16th April, 2017. However, aggrieved by certain observations made in the said order, two appeals were preferred and the same were disposed of by an order dated 12th June, 2017 leaving the appellants free to approach the review committee. Subsequent thereto, the review committee passed an order on 20th November, 2018, which has been impugned in the present writ petition.
3. Mr. Saha, learned senior counsel appearing for the petitioner submits that the impugned decision of the review committee is not in consonance with the guidelines contained in the "Master Circular on Willful Defaulters" issued by the Reserve Bank of India (in short, RBI). Placing reliance upon 2.1.3 of the said guidelines he contends that a "willful default" would be deemed to have occurred when the unit has defaulted in making its payment/repayment to the lender even when it has the capacity to honour the said obligations. It is not a case that the finance from the lender was not utilized for the specific purposes for which the finance was availed of. The petitioners have been identified as willful defaulters on the basis of isolated transactions/incidents. It was by reason of cost escalation, PMPL was left with no choice but to opt for alternative supply of power and the amount saved on the CPP was naturally used to fund the cost escalation towards mechanised raw material handling system in line with discussion with consortium members from time to time and in view thereof the allegation of diversion of fund is not sustainable.
4. He further argues that it would be evident from the order dated 20th November, 2018 passed by the review committee that there was no decision taken qua the petitioners nor the order is supported with requisite evidence. The consequences of a person being levelled as willful........