Dinesh Puri Partner M/S Kuku Exports v. Punjab National Bank And Another

 
 

 

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+@,9-,--D0 "(i) Waiver of processing fee for the FY 202223 (ii) Upfront fee applicable in WCTL & FITL (iii) Waiver of penal charges to be levied on account of late closure of Current Account with SBI on 26.07.2021 for not adhering to terms & sanction of previous sanction. (iv) Restructuring was allowed a moratorium period of 24 months (interest during this period was to be paid as and when charged) and installments were to be paid w.e.f. July, 2024."

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, It cannot be gainsaid that the B **

%& 1949 basically seeks to regulate banking business and mandates a statutory comprehensive and formal structure of banking regulation and supervision in India. &   -+ and Section 35A of the said Act empower the Reserve Bank of India to frame the policy and give directions to the banking companies in relation to the advances to be followed by the banking companies. Such directions have got to be read as supplement to the provisions of the **

%& and accordingly are required to be construed as having statutory force and mandatory.

14.

As transpiring from the said Instructions/Directions, the entire exercise as contained in the "Framework for Revival and Rehabilitation of MSMEs" is required to be carried out by the banking companies before the accounts of MSMEs turn into NonPerforming Asset. It is true that the security interest created in favour of any Bank or secured creditor may be enforced by such creditor in accordance with the provisions contained in ChapterIII of the SARFAESI Act, and that as per Section 35 of the SARFAESI Act, the provisions of the said Act have the effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. However, pertinently the whole process of enforcement of security interest as contained in Chapter III of the SARFAESI Act, could be initiated only when the borrower makes    


 

   
 

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/ , in view of Section 13(2) of the said Act.

15.

xxx xxx xxx 16.

xxx xxx xxx The said Framework also enables the Micro, Small or Medium Enterprise to voluntarily initiate the proceedings under the said Framework, by filing an application along with the affidavit of an authorized person. 3

 

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/ , and therefore it would be incumbent on the part of the concerned MSME also to produce authenticated and verifiable documents/material for substantiating its claim of being MSME, before its account is classified as NPA. If that is not done, and 

 

 
 

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&     "27. The principles of law which emerge are that: xxx xxx xxx 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. xxx xxx xxx."

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