Hon'ble Om Prakash-VII, J.
(Per: Tarun Agarwala, J.) The petitioners' have established an education institution and, for this purpose, the petitioner no.1 has availed certain credit facilities from the respondent-banks through multiple banking arrangement, namely, from Punjab and Sind Bank, Allahabad Bank, Oriental Bank of Commerce and Dena Bank. Credit facilities was sanctioned by the respondent-banks by way of hypothecation charge on the current assets, other fixed assets in favour of the banks. Credit facilities so granted was also secured by way of equitable mortgage of immovable properties. The credit facilities so sanctioned by the banks have been utilized for the development of the University and other colleges. On account of expansion of their project, certain cash flow problems arose for petitioner no.1 presumably on account of expenses incurred towards infrastructure development. The petitioner no.1, accordingly, could not repay the loan amount as per the schedule of payments. The Reserve Bank of India (RBI) framed certain guidelines to protect the interest of the banks where a loan has been taken by a person from various banks. The RBI has issued certain guidelines permitting financial institutions, namely, that the lenders should come together and formulate and sign an agreement incorporating the broad rules for the functioning of the Joint Lenders Forum (JLF). This forum would work for the interest of all the banks. As per the RBI guidelines dated 26th February, 2014, before a loan account could turn into an NPA, the banks were required to identify incipient stress in the account by creating three sub-categories under the Special Mention Account (SMA), namely:-
SMA Sub-Categories Basis for classification SMA-0 Principal or interest payment not overdue for more than 30 days but account showing signs of incipient stress (Please see Annx) SMA-1 Principal or interest payment overdue between 31-60 days.
SMA-2 Principal or interest payment overdue between 61-90 days.
The banks were advised that as soon as account is reported in any of the categories they should mandatorily form a Committee to be called Joint Lenders Forum and this forum would explore various options to resolve the stress in the account. The forum was required to rectify the stress and if it found that the existing promoters were not in a position to bring in any additional money or to take any measures to regularise the account, would explore the possibility of getting other equity/strategic investors to the company in consultation with the borrower or the forum would also consider the possibility of restructuring the account if a prima facie viable case was made out and where there was no diversion of funds, fraud or malfeasance on the part of the borrower. Paragraph 3(c) of the guidelines of 26th February, 2014 further indicated that the aforesaid two options of rectification and restructuring was not possible or feasible only then due recovery process would be resorted to.
Based on this guidelines, a Joint Lenders Forum meeting was held on 11th June, 2014 and the forum resolved that since the account of Punjab and Sind Bank was identified as a potential NPA due to non-payment of interest and installments, the forum directed the petitioner no.1 to pay the critical amount towards interest between 15th June, 2014 to 25th June, 2014 and the critical amount of installment by 29th June, 2014 before considering the request for rescheduling the payment structure. It is alleged that the said critical amount towards interest and installement was paid by the petitioner no.1.
According to the petitioner, one of the reasons for the short fall in cash flow was that the petitioner was not being able to realize the enhanced fee from the students, which would come to approximately Rs.100 crores and from this amount the installments could have been cleared by the petitioner. The appellate authority by an order dated 22nd May, 2014 permitted the petitioner to realize the enhanced fee but the Technical University is not permitting the petitioner to realize this enhanced fee. This resulted in the short fall in the cash flow. The forum again met on 9th September, 2014 and without considering this aspect directed the petitioner to pay the critical amount before the end of September, 2014 and only then the restructuring proposal would be considered. Since the critical amount could not be deposited, the Punjab and Sind Bank issued a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 11th October, 2014 and, thereafter, by the impugned order dated 25th October, 2014 declared the petitioners' account as NPA. The petitioners', being aggrieved by this order, has filed the present writ petition.
Having heard Sri Shashi Nandan, the learned Senior Counsel assisted by Sri Manu Khare, the learned counsel for the petitioner and Sri N. Das, the learned counsel for Punjab and Sind Bank, Sri Tarun Verma, the learned counsel for Allahabad Bank and Oriental Bank of Commerce and Sri Amrish Sahai, the learned counsel for Dena Bank, we find that after the meeting of the Joint Lenders Forum on 9th September, 2014 directing the petitioner to pay the critical amount before restructuring of the loan, the Allahabad Bank, Oriental Bank of Commerce and Dena Bank have all restructured their loan with the petitioner, which fact does not find place in the minutes of the Joint Lenders Forum meeting held on 24th October, 2014.
We are of the view that when three other banks have restructured their loan, there is no reason why Punjab and Sind Bank should not consider restructuring of their accounts as per the guidelines of the RBI dated 26th February, 2014. The Joint Lenders Forum are required to identify incipient stress and as per clause 3 of the said guidelines the forum has to explore various options to resolve the stress in that account and provide rectification or restructuring and when the two options fail, recovery process should be resorted thereafter.
We find that the petitioner paid the critical amount pursuant to the meeting of the forum held on 12th June, 2014, inspite of which the bank did not restructure the account. There is also this fact, which has been stated that the petitioners' are unable to realize the enhanced amount of fees, which has led to crunch in the cash flow. We also find that three other banks have reconstructed their loan and, consequently, we are of the opinion that the Punjab and Sind Bank should reconsider their decision for declaring the petitioners' account with them as NPA.
For the reasons stated aforesaid, this writ petition is disposed of with the following directions:-
1. The Punjab and Sind Bank will call a meeting of all the banks, who have given the loan within three weeks from today.
2 The Punjab and Sind Bank will reconsider its decision of declaring its account as NPA in the light of the fact that other lender banks have restructured their loan account.
3. The joint meeting will also consider the grievance of the petitioner in failing to realize the enhanced fee from the students and will proceed from there onwards in the light of the guidelines framed by the Reserve Bank of India.