Delhi High Court: A petition was filed seeking issuance of appropriate writ, order or direction seeking to annul two Show Cause Notices issued by IDBI Bank (respondent) on 19-06-2024, on the ground that these notices are illegal, invalid, and void issued by the respondent-bank. Dharmesh Sharma, J., held that this is a fit case for issuance of notice and directed the respondent to place on record the complete report of the forensic audit conducted by Grant Thornton LLP.
The corporate borrower in question, EPC Constructions India Limited (formerly Essar Projects (India) Limited), had availed loan facilities from a consortium of eight banks, including the respondent-bank. The respondent-bank alleged financial irregularities amounting to fraud by the company from November 2014 to March 2017. A forensic audit was conducted by Grant Thornton LLP at the request of the respondent-bank. The audit led to the withdrawal of the ‘red flagging’ of the company’s account. The proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) were initiated against the corporate borrower due to defaults in repayment. The company was admitted to insolvency on 20-04-2018, and a Corporate Insolvency Resolution Process (CIRP) was initiated. The petitioners, who were independent directors of the company, received show cause notices from the respondent-bank alleging financial irregularities. The petitioners argue that they were not directors during the relevant period and that the show cause notices were issued in a mechanical and premeditated manner, ignoring the forensic audit report.
The petitioners, addressed as ‘Ex Independent Directors’ in the SCNs, assert that the allegations pertain to acts committed before their tenure or after their resignation. They argue that no fraud was found by the forensic audit, and the SCNs overlook this fact. They argue that the SCNs are without jurisdiction and not in accordance with the Master Directions on Frauds. They emphasize that penal provisions apply to non-whole-time directors only in exceptional cases and that no action was taken within six months of the fraud report being filed. The petitioners argue that the SCNs were issued without providing them an opportunity to be heard, violating principles of natural justice.
The respondent-bank contended that the petition is premature as a reply has been filed in response to the SCNs, and the petitioners did not appear for a personal hearing. The respondent relies on various decisions to argue that a writ petition challenging an SCN is not maintainable and that the petitioners must first exhaust available remedies.
The Court relied on State Bank of India v. Rajesh Agarwal, 2023 SCC OnLine SC 342 wherein the Supreme Court emphasized the need for providing an opportunity to be heard before classifying accounts as fraud, in line with principles of natural justice.
The Court further remarked that “despite a clean chit given by the forensic auditor and the fact that the CIRP proceedings had been initiated from 20-04-2018, coupled with the fact that the petitioner 1 is described as Ex. Independent Director, a prima-facie ground is made that the impugned show cause notice is vulnerable in law. The respondent is also duty bound to supply the report of the forensic audit conducted against it so as to consider what changes in the circumstances, if any, were brought out and in what manner if at all, the report was found to be not correct or unreliable.”
Thus, the Court held that that this is a fit case for issuance of notice which was apparently accepted by counsel for the respondent and directed the respondent to place on record the complete report of the forensic audit conducted by Grant Thornton LLP.
[Rajkumar Sukhdevsinghji v. IDBI Bank, 2024 SCC OnLine Del 4863, decided on 16-07-2024]
Advocates who appeared in this case :
Mr. Sandeep Sethi, Sr. Advocate with Mr. Rishi Aggarwala, Mr. Pranjit Bhattacharya and Mr. Tejasvi Chaudhary and Mr. Srikhar, Advocates for petitioners
Mr. Siddhartha Barua, Mr. Akash Mohan Srivastav and Mr. Nandlal Singh, Advocates for respondents
