Calcutta High Court: In a petition challenging the show-cause notices issued by the banks by the petitioner on the ground of inadequate opportunity, lack of specific allegations, and reliance on an incomplete Forensic Audit Report, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., set aside the respondent bank’s decision to declare the petitioner as “fraud” due to procedural shortcomings. The Court did not set aside the show-cause notices but directed the petitioner to furnish replies within a fortnight, indicating required documents for inspection. The Court also provided a detailed procedure for handling future cases involving show-cause notices under the RBI Master Directions on fraud.
Factual Matrix
In the instant matter, the petitioner, a shareholder and director of SREI Infrastructure and Finance Limited and a director of SREI Equipment Finance Limited, was part of a consortium of lenders including Bank of India (BOI), Bank of Baroda (BOB), and Union Bank of India (UBI). The consortium commissioned KPMG to audit the accounts of the two companies in a Joint Lender’s Forum (JLF) meeting on 24-03-2021. On 01-10-2021, the Reserve Bank of India (RBI) ordered the supersession of the boards of the two companies, appointing an administrator under Section 45IE of the Reserve Bank of India Act, 1934 (RBI Act). Following the Forensic Audit Report by KPMG, BOI, BOB, and UBI declared the accounts of the borrower-companies as ‘fraud’ under the RBI Master Directions on fraud. The Delhi High Court vide order dated 12-05-2023 set aside these declarations.
On 11-08-2023, the resolution plans for the two companies were approved under the Insolvency and Bankruptcy Code, 2016 (IBC), and a resolution applicant took over both companies. BOI, BOB, and UBI issued fresh show-cause notices for fraud, relying on the same Forensic Audit Report after the change in management. BOI and BOB declared the petitioner individually as “fraud” on 02-01-2024, and 29-12-2023, respectively.
Aggrieved by the BOI, BOB, and UBI decision, the petitioner preferred the present petition challenging the show-cause notices issued by BOI, BOB, and UBI, arguing that they were specific to declaring the accounts of the borrower-companies as fraud, not the petitioner individually.
Petitioner’s Contentions
The petitioner contended that the show-cause notices are insufficiently founded, lacked specific allegations against the petitioner, and failed to distinguish actions against the borrower-companies from the individual petitioner. The petitioner alleged the lack of independent application of mind on part of the banks, as they relied solely on the Forensic Audit Report for issuing the show-cause notices, which did not contain specific allegations against the petitioner. The petitioner contended the violation of principles of natural justice due to inadequate opportunity for the petitioner to respond, non-supply of documents, and a short response time. The petitioner contended that the declarations of the petitioner as “fraud” by BOI and BOB are beyond the scope of show-cause notices and RBI Master Directions.
Respondents’ Contentions
The respondents contended that the petitioner was a key figure in the management of borrower-companies during the forensic audit period and was aware of the audit being conducted. It was contended that the respondents acted in compliance with legal obligations, following Master Directions on fraud, and were duty-bound to report and audit fraud. It was contended that the petitioner was given an effective opportunity to respond, with access to the Forensic Audit Report. It was argued that the writ petitions are premature, urging the petitioners to reply to the show-cause notices before seeking court interference. The respondents argued that the petitioner’s conduct indicated an attempt to evade the legal process and abuse the judicial system with multiple litigations.
Court’s Assessment
Prematurity of Writ Petitions
The Court noted that the respondents argued that objections were premature, and the principles of natural justice could be addressed in responses to show-cause notices. The Court recognised limited judicial review at this stage and stated that the Court has the power of judicial review to ascertain adherence to the principles of natural justice by the respondents while issuing show-cause notices.
Specific Allegations against the Petitioner
The Court rejected the argument that specific allegations against the petitioner were necessary and stated that show-cause notices are analogous to a First Information Report (FIR) and specific allegations against the petitioner were not necessary at the show-cause stage, as implicit in the Forensic Audit Report were allegations against those in control and management of borrower-companies. The Court emphasised that the probative value of the Forensic Audit Report is not required at the show-cause stage and can be ascertained at the final decision stage. The Court opined that even if no specific allegations are made against the petitioner, implicit liability for the company’s actions exists for Directors.
Service of Documents
The Court emphasised the need for a streamlined process, ensuring compliance with the Master Directions while upholding principles of natural justice and referred to the Neptune Overseas Limited case, emphasising that specific documents should be provided when serious allegations are involved. While acknowledging the challenge of serving voluminous records at the show-cause stage, the Court stressed the need for a balance between the petitioner’s interest and principles of natural justice.
The Court held that, at the show-cause stage, detailed procedures akin to a civil suit were not required. The Court analysed the purpose of the Master Directions and stressed the importance of early reporting of frauds. The Court noted the summary nature of the process and the need for a balance between technicalities and speed.
Procedure for Effective Opportunity and Compliance
The Court proposed a procedural framework for effective compliance with the Master Directions and principles of natural justice. This included issuing a detailed show-cause notice, allowing the borrower/Director to specify required documents, document inspection, additional replies, and a final hearing.
“1. The petitioner to furnish his reply to the show-cause notices within a fortnight from date, indicating the documents which are required to be inspected by / furnished to the petitioner to effectively rebut the allegations made therein.
2. Upon such reply being given, the respondent-Bank in each of the writ petitions shall fix a date for giving inspection of the documents, if extremely voluminous; alternatively, the Banks shall furnish copies of the relevant documents to the petitioner within a further fortnight thereafter.
3. Upon being so served/given inspection, the petitioner shall, if necessary, give an additional reply in the light of such documents. Such additional reply shall be given within an outer limit of a fortnight from such inspection/furnishing of copies of documents.
4. The respondent-Bank in each of the cases shall thereafter fix an early date for hearing the petitioner. Upon such hearing being concluded, the respondent-Bank in each of the cases shall take a reasoned decision as to whether or not to declare the petitioner as “fraud” or “perpetrator of fraud”. In the event the petitioner is declared to be fraud/perpetrator of fraud, the same shall be intimated in due course of law to the RBI and appropriate consequential steps under the Master Directions of the RBI shall be taken by the respondent-Bank in each of the cases.”
Court’s Decision
The Court upheld the issuance of show-cause notices as the first step in the fraud declaration process. The Court directed the petitioner to reply within a fortnight, specifying necessary documents for inspection and the respondent banks must provide inspection or furnish copies of documents within a reasonable time. The Court stated that the petitioner may submit an additional reply, and a hearing will be conducted by the respondent banks. The Court stated that after the hearing, a reasoned decision had to be made within a total period of 8 weeks.
The Court set aside the respondent bank’s decisions to declare the petitioner as “fraud” due to procedural shortcomings, and specific directions were given for one case where the show-cause notice lacked the audit report.
[Hemant Kanoria v. Bank of India, 2024 SCC OnLine Cal 1012, order dated 02-02-2024]
*Judgment by Justice Sabyasachi Bhattacharyya
Advocates who appeared in this case:
Mr. S.N. Mookherjee, Mr. Ratnanko Banerji, Mr. Jishnu Chowdhury, Mr. Deepan Kumar Sarkar, Mr. Soumalya Ganguli, Mr. Shubhrojyoti Mookherjee, Counsel for the Petitioner
Mr. Tushar Mehta, Learned Solicitor General Mr. Anoop Rawat, Mr. Saurav Panda, Ms. Arushi Chandra, Mr. Deepanjan Dutta Roy, Ms. Rashi Sharma, Ms. Sanjana Jha, Counsel for the Respondent in WPA 28980 of 2023
Mr. Dhruv Dewan, Mr. Anoop Rawat, Mr. Saurav Panda, Ms. Arushi Chandra, Mr. Deepanjan Dutta Roy, Ms. Rashi Sharma, Ms. Sanjukta Roy, Ms. Sanjana Jha, Counsel for the Respondent in W.P.A. 28329 of 2023, W.P.A. 29027 of 2023 and W.P.A. 236 of 2024
