State Bank of India & Ors Versus Rajesh Agarwal & Ors

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

Civil Appeal No. 7300 of 2022

State Bank of India & Ors ... Appellants

Versus

Rajesh Agarwal & Ors …Respondents

With

Civil Appeal No. 7301 of 2022

With

Civil Appeal No. 7302 of 2022

With

Civil Appeal No. 7303 of 2022

With

Civil Appeal No. 7304 of 2022

With

Civil Appeal No. 7305 of 2022

With

Civil Appeal No. 7306 of 2022

With

Civil Appeal No. 7307 of 2022

And With

Writ Petition No. 138 of 2022

J U D G M E N T

Dr Dhananjaya Y Chandrachud, CJI

A. Background .............................................................................................................. 4

B. Facts......................................................................................................................... 5

C. Submissions............................................................................................................ 10

D. Analysis.................................................................................................................. 15

D.1 Regulatory Framework..................................................................................................... 15

D.2 Audi Alteram Partem ....................................................................................................... 25

D.3 No implied exclusion of audi alteram partem ................................................................... 39

D.4 Challenge to constitutional validity .................................................................................. 48

E. Conclusion .............................................................................................................. 57

A. Background

1. The civil appeals arise out of a challenge to the Reserve Bank of India

(Frauds Classification and Reporting by Commercial Banks and Select FIs)

Directions 2016.

1 Issued by the Reserve Bank of India2

, these directions

were challenged before different High Courts primarily on the ground that

no opportunity of being heard is envisaged to borrowers before classifying

their accounts as fraudulent. The High Court of Telangana has held in the

impugned judgment3 that the principles of natural justice must be read into

the provisions of the Master Directions on Frauds. The decision has been

assailed by the RBI and lender banks through these civil appeals.

2. In this background the court has to consider whether the principles of

natural justice should be read into the provisions of the Master Directions

on Frauds. For the reasons to follow, we hold that the principles of natural

justice, particularly the rule of audi alteram partem, has to be necessarily

read into the Master Directions on Frauds to save it from the vice of

arbitrariness. Since the classification of an account as fraud entails serious

civil consequences for the borrower, the directions must be construed

reasonably by reading into them the requirement of observing the

principles of natural justice.

1 “Master Directions on Frauds”

2 “RBI”

3 Writ Petition No. 19102 of 2019

B. Facts

I. SLP (C) No. 3931 of 2021; SLP (C) No. 4922 of 2021; SLP (C) No. 5056

of 2021

3. B S Limited is a company engaged in the business of power transmission

and distribution, passive telecom infrastructure, renewable energy, and

mineral resources. It availed loans amounting to Rs. 1406 crores from

various banks. The company failed to meet its payment obligations to

lender banks, thereby defaulting in repayment of credit facilities. In

accordance with the Master Directions on Frauds, all the lender banks

formed a Joint Lenders Forum4 with State Bank of India as the lead bank.

4. The JLF declared the company’s assets as Non-Performing Assets5 on 29

August 2016. The lender banks decided to adopt the Sustainable

Structuring of Stressed Assets Scheme6 and suggested a forensic audit

report and Techno Economic Viability7 study in its meeting held on 11 July

2016. Based on the conclusions of the forensic audit report, the JLF closed

the issue stating that there were no irregularities. However, based on the

TEV study it was concluded that the company was not eligible for the S4A

scheme and requested it to submit an alternative plan for regularization of

its account. In the meanwhile, IDBI Bank - one of the lender banks - redflagged the account of the company. Additionally, proceedings under the

4 “JLF”

5 “NPA”

6 “S4A Scheme”

7 “TEV”

Insolvency and Bankruptcy Code, 2016 were also initiated against the

company. On 15 February 2019, the JLF declared the account of the

company as fraud by invoking Clause 2.2.1(g) of the Master Directions on

Frauds. Subsequently, the Fraud Identification Committee8 passed a

resolution on 31 July 2019 identifying the company’s account as fraud. The

company filed a writ petition challenging both the decision of the JLF dated

15 February 2019 and the resolution of the FIC dated 31 July 2019 before

the High Court of Telangana.

5. By a judgment dated 10 December 2020, a Division Bench of the High

Court allowed the writ petition by holding that the principle of audi alteram

partem ought to be read into Clauses 8.9.4 and 8.9.5 of the Master

Directions on Frauds. The High Court further directed the lender banks: (i)

to give an opportunity of a hearing to the borrowers after furnishing a copy

of the forensic audit report; and (ii) to provide an opportunity of a personal

hearing to the borrower before classifying their account as fraud. The

judgment of the High Court was challenged in SLP (C) No. 3931 of 2021.

On 15 April 2021, this Court, while issuing notice, partially stayed the

directions issued by the Telangana High Court in the following terms:

“Meanwhile, the Minutes/Order dated 15.02.2019 passed by the

Joint Lenders Meeting is not to be acted upon. The High Court

insofar as it observed that a personal hearing be given is stayed.”

II. SLP (C) No. 762 of 2022; SLP (C) No. 873 of 2022; and SLP (C) No.

1514 of 2022

8 “FIC”

6. The appellant is a company involved in the manufacture of edible oils, fats,

rice and semolina products in the State of Telangana. From 2003 to 2015,

the appellant availed of credit facilities to the tune of Rs. 675 crores from a

consortium of banks led by the Andhra Bank (now merged with the Union

Bank of India). The appellant was declared as an NPA on 14 May 2018

with effect from 31 March 2018. Thereafter, the consortium of lenders in a

meeting of the JLF decided to conduct a forensic audit of the appellant for

the period till 31 March 2019. The appellant participated in the audit

process and submitted all the information required by the auditor from time

to time. In September 2019, the appellant learnt that its account has been

declared as fraud by the Union Bank of India (erstwhile Andhra Bank).

Aggrieved by that classification, the appellant filed a writ petition before the

High Court of Telangana. The High Court declined to deal with the issues

pertaining to the principles of natural justice and fair play considering the

fact that they were pending before this Court in SLP (C) No. 3931 of 2021.

By its judgment dated 22 December 2021, the High court dismissed the

writ petitions. The court held that the appellant’s account was rightly

classified as fraud because the forensic audit report contained adverse

findings against the appellant.

7. On 24 January 2022, this Court, while issuing notice in SLP (C) No. 762 of

2022, directed that the matter may not be reported to the Central Bureau of

Investigation9 for the time being. On 28 March 2022, this Court passed a

9 “CBI”

similar ad-interim order in SLP (C) No. 873 of 2022 and SLP (C) No. 1514

of 2022.

III. SLP (C) No. 2980 of 2022

8. The appellant is a promoter and director of Golden Jubilee Hotels Pvt

Ltd.10 GJHPL availed financial assistance from the respondent banks for

the construction and development of a hotel in Hyderabad. GJHPL’s

account was declared as NPA from 31 December 2015 because of its

inability to service its debts to the respondent banks. At its meeting on 21

April 2016, the JLF decided to carry out a special audit of the appellant’s

company. Thereafter, the appellant participated in a series of meetings

between the JLF and was consulted by the forensic auditor during the

preparation of the audit report. Bank of Baroda red-flagged the appellant’s

account on 03 May 2019 based on the observations in the forensic audit

report. The appellant’s account was classified as fraud on 14 August 2019.

A criminal complaint was also lodged with the CBI. The appellant came to

know about the classification of their account as fraud in 2021, when they

received a copy of the FIR. The appellant filed a writ petition before the

High Court of Telangana challenging the validity of the Master Directions

on Frauds. The High Court by its judgment dated 31 December 2021 held

that no relief could be granted to the appellant on the issue of personal

hearing since SLP (C) No. 3931 of 2021 was pending before this Court.

The High Court also held that the appellant’s account was rightly classified

as fraudulent in view of the adverse findings in the forensic audit report.

10 “GJHPL”

IV. Writ Petition (C) No. 138 of 2022 and SLP (C) No. 3388 of 2022

9. The appellant is one of the directors of a company called M/s Vimal Oil &

Foods Limited. The said company availed of loan facilities from various

financial institutions over a period of time. In 2015, the auditor of the

respondent bank flagged certain irregularities in the accounts of the

company. Based on a special audit, the respondent bank declared the

account of the company as NPA on 30 September 2015. Thereafter, on 05

July 2016, the company’s account was red-flagged by the respondent

bank. In the meantime, the Corporate Insolvency Resolution Process11

was initiated against the company on 19 December 2017 and the appellant

was suspended as Managing Director of the company. Upon suspension,

the appellant was not invited to attend the meetings of the JLF. The

appellant allegedly learnt that the respondent bank had classified their

account as fraud on 21 February 2018 though without any intimation.

Further, based on a letter addressed by the respondent bank to the CBI,

an FIR came to be registered against the appellant. The appellant alleges

that they acquired knowledge about their account being classified as fraud

and registration of the FIR only when a search was carried out at their

residential premises in pursuance of the FIR. The appellant filed a Special

Civil Application challenging the actions of the respondent bank, which was

dismissed by the Single Judge of the High Court of Gujarat. The Division

Bench partly allowed a Letters Patent Appeal by its judgment dated 23

December 2021 by permitting the appellant to address a representation to

11 “CIRP”

the respondent bank but declined to allow a personal hearing. The

appellant/ petitioner has also invoked the writ jurisdiction of this Court by

challenging the validity of the Master Directions on Frauds.

C. Submissions

10.On behalf of the borrowers, we have heard Dr Abhishek Manu Singhvi, Mr

Ranjit Kumar, Mr Dhruv Mehta, Mr Arunabh Chowdhury, Mr Navin Pahwa,

Senior Advocates and Mr Suraj Prakash, learned counsel. The counsel

submit that the procedure for classification of an account as fraud under

the Master Directions on Frauds suffers from illegalities because:

a. Under Clauses 8.9.4 and 8.9.5 of the Master Directions on

Frauds, no notice is given to the borrowing company or its

promoters, and directors including whole-time directors. They are

not given an opportunity to present a defense and even a copy of

the final decision is not provided to them.

b. The classification of the borrower’s bank accounts as fraud under

the Master Directions on Frauds carries serious civil

consequences. The penal provisions under Clause 8.12 of the

Master Directions on Frauds are also applicable to the promoters,

directors, and other whole-time directors. Once a bank account is

classified as fraudulent, it carries significant consequences

according to the Master Directions on Frauds such as filing of a

complaint with the CBI and debarment of the promoters and

directors from accessing institutional finance. Further, the action

of the banks of classifying an account as ‘fraud’ is stigmatic, akin

to blacklisting the borrower, which affects their right to reputation.

Thus, there is a direct impact on the fundamental rights of the

individuals concerned, as a consequence of the classification of

an account as fraud.

c. The Master Directions on Frauds are violative of Articles 14, 19,

and 21 of the Constitution of India as they debar a company and

its promoters and directors from accessing financial and credit

markets for a period of five years without even providing a show

cause notice or opportunity of being heard.

d. There are other facets to the principle of audi alteram partem

apart from a personal hearing. The Master Directions on Frauds

does not stand good on other facets of audi alteram partem such

as notice of allegations levelled and evidence collected, notice of

the penalty proposed, among others. According to the procedure

laid down under the Master Directions on Frauds, a company or

its promoters and directors are not even informed that they have

been classified as fraud and that a penalty has been imposed

upon them.

e. The Master Directions on Frauds are silent on whether or not the

borrower is entitled to an opportunity of being heard after the

receipt of forensic audit report and before deciding whether the

borrower’s account should be classified as fraud. Since the

decision to classify the account as fraud entails significant civil

consequences, principles of natural justice ought to be read into

the Master Directions on Frauds.

f. Clause 8.12.5 of the Master Directions on Frauds expressly

stipulates that an opportunity of hearing be provided to third

parties. The directions are manifestly arbitrary since on the one

hand they provide an opportunity of hearing to third parties, but

such an opportunity is denied to borrowers.

g. Although the purpose and object of the Master Directions on

Frauds is speedy detection and reporting of fraud to law

enforcement agencies, such exigencies cannot be a valid ground

to exclude the applicability of the principles of natural justice.

h. The decision of this Court in State Bank of India v. Jah

Developers12 read in the requirement of natural justice for the

purposes of declaring a borrower as a willful defaulter. The

principles laid down in Jah Developers (supra) would be squarely

applicable to the present matters.

i. The participation of the borrower during the preparation of the

forensic audit report does not in itself fulfil the requirement of the

principles of natural justice under the Master Directions on

Frauds. Those directions do not expressly provide for the

participation or inputs from a borrower during the preparation of

12 (2019) 6 SCC 787

the forensic audit report, giving rise to the possibility that in some

cases, the borrower is completely excluded from the forensic audit

process.

11.On behalf of the RBI and lender banks, we have heard Mr Tushar Mehta,

Solicitor General of India, Mr Gopal Jain, Senior Counsel and Mr Ramesh

Babu M R and Mr G N Reddy, learned counsel. Counsel submitted that

the challenge to the classification of a loan account as fraudulent on the

ground of a violation of the principles of natural justice is devoid of merit for

the following reasons:

a. The Master Directions on Frauds were necessitated to protect the

interests of depositors and banks from the growing instances of

frauds. RBI is duly empowered to take pre-emptive measures in

public interest to ensure that fraudulent borrowers are brought to

justice and loss caused to the banks is mitigated. The clauses of

the Master Directions on Frauds, therefore, must be interpreted in

light of their purpose and objective, that is, timely detection and

dissemination of information and reporting about the fraud.

b. The provisions of the Master Directions on Frauds must be

construed keeping in mind the following thresholds: (i) justness; (ii)

fairness towards the parties aggrieved; (iii) reasonability; and (iv)

proportionality between the mischief and the corrective measure.

Considering that the Master Directions on Frauds is an economic

policy decision, this Court must exercise greater latitude while

construing its provisions.

c. The procedure for classifying an account as fraud under the

Master Directions on Frauds is not arbitrary. The classification is

done only for reporting the matter to law enforcement agencies.

The banks already have in place a structured organizational setup

to identify and investigate fraudulent activities in bank accounts.

Banks file complaints before law enforcement agencies, who

conduct an investigation. The ultimate decision on fraud is

rendered by a competent court of law.

d. Principles of natural justice are not applicable at the stage of

setting the process of criminal law in motion. Since the lender

bank is an injured party in case of fraudulent accounts, it has the

right to report the crime to the law enforcement agencies without

giving an opportunity of being heard to the fraudulent borrower.

Issuing of a show cause notice to fraudulent borrowers may

forewarn them and hamper the investigation by law enforcement

agencies.

e. Debarring fraudulent borrowers from availing bank finances is a

preventive measure without which the Master Directions on

Frauds will be rendered toothless. Such a measure is necessary to

prevent a fraudulent borrower from committing frauds in other

banks.

f. The requirement of notice or prior hearing could be excluded if it

impedes the taking of prompt action. Further, it is not an inviolable

rule that personal hearing ought to be given in all cases.

g. The process for classification of a borrower as a willful defaulter

under the Master Circular on Willful Defaulters13 significantly

differs from the process of classification of an account as fraud

under the Master Directions on Frauds. Therefore, the decision of

this Court in Jah Developers (supra) will not be applicable to the

facts of the present appeal.

D. Analysis

D.1 Regulatory Framework

12.RBI is a statutory body constituted under Section 3 of the Reserve Bank of

India Act, 1934. The RBI has been constituted for the purpose of taking

over the management of currency from the Central Government, regulating

the issue of bank notes, keeping of reserves with a view to securing

monetary stability, and operating the currency and credit system of India.

RBI is entrusted with the statutory obligation of administering the

provisions of the Banking Regulation Act, 194914. The BR Act vests RBI

with various powers with respect to banking companies such as granting

licenses, conducting inspections and giving directions.

13 Master Circular on Wilful Defaulters, 2015

14 “BR Act”

13.Section 35A of the BR Act empowers RBI to issue directions to banking

companies. Such directions are statutory in nature. Section 35A is

extracted below:

“35A. Power of the Reserve Bank to give directions – (1)

Where the Reserve Bank is satisfied that –

(a) in the public interest; or

(aa) in the interest of banking policy; or

(b) to prevent the affairs of any banking company being conducted

in a manner detrimental to the interests of the depositors or in

a manner prejudicial to the interests of the banking company;

generally,

it is necessary to issue directions to banking companies generally

or to any banking company in particular, it may, from time to time,

issue such directions as it deems fit, and the banking companies or

the banking company, as the case may be, shall be bound to

comply with such directions.

(2) The Reserve Bank may, on representation made to it or on its

own motion, modify or cancel any direction issued under subsection (1), and in so modifying or cancelling any direction may

impose such conditions as it thinks fit, subject to which

modifications or cancellation shall have effect.”

14.RBI has been issuing ‘master directions’ on diverse issues since 2016.

These directions encompass the instructions on that particular subject. The

master directions are updated whenever there is a change in policy, and

such changes get reflected on RBI’s website. In exercise of the power

conferred by Section 35A, RBI issued the Master Directions on Frauds on

01 July 2016 to consolidate and update seven earlier circulars on

classification of fraud, reporting and monitoring issued between June 2009

and January 2016. The Master Directions on Frauds were updated on 03

July 2017. The purpose of the Master Directions is extracted below:

“1.3 Purpose

These directions are issued with a view to providing a framework

to banks to enable them to detect and report frauds early and

taking timely consequent actions like reporting to the Investigative

agencies so that fraudsters are brought to book early, examining

staff accountability and do effective fraud risk management. These

directions also aim to enable faster dissemination of information by

the Reserve Bank of India (RBI) to banks on the details of frauds,

unscrupulous borrowers and related parties, based on the banks’

reporting so that necessary safeguards / preventive measures by

way of appropriate procedures and internal checks may be

introduced and caution exercised while dealing with such parties

by banks.”

15.The above directions were issued to achieve specific purposes: (i) early

and timely detection and reporting of fraud; (ii) early and timely reporting of

fraud to investigative agencies; (iii) quicker dissemination of information

pertaining to details of fraud and fraudulent borrowers to banks; and (iv) to

facilitate the adoption of preventive measures by banks. These purposes

are reflected in Clause 2.1.1 of the Master Directions on Frauds:

“Clause 2.1.1 The Chairmen and Managing Directors/Chief

Executive Officers (CMD/CEOs) of banks must provide focus on

the “Fraud Prevention and Management Function” to enable,

among others, effective investigation of fraud cases and

prompt as well as accurate reporting to appropriate regulatory

and law enforcement authorities including Reserve Bank of

India.”

(emphasis supplied)

16. Clause 2.2.1 classifies frauds based on the provisions of the Indian Penal

Code, 1860:

“Clause 2.2.1 In order to have uniformity in reporting, frauds have

been classified as under, based mainly on the provisions of the

Indian Penal Code:

a. Misappropriation and criminal breach of trust

b. Fraudulent encashment through forged instruments,

manipulation of books of account or through fictitious accounts

and conversion of property.

c. Unauthorised credit facilities extended for reward or for illegal

gratification

d. Cash shortages.

e. Cheating and forgery

f. Fraudulent transactions involving foreign exchange

g. Any other type of fraud not coming under the specific heads as

above.”

17.Clause 3 advises banks to make full use of the Central Fraud Registry15 (a

database created by RBI to enable banks to share information on

fraudulent accounts) for timely identification, control, reporting, and

mitigation of risks associated with fraud. Clause 3.3 of the said directions

emphasizes the need to provide timely information on frauds and penalizes

banks for non-adherence to timelines:

“3.3.1 Banks should ensure that the reporting system is suitably

streamlines so that delays in reporting of frauds, submission of

delayed and incomplete fraud reports are avoided. Banks must fix

staff accountability in respect of delays in reporting fraud cases to

RBI.

3.3.2. Delay in reporting of frauds and the consequent delay in

alerting other banks about the modus operandi and

dissemination of information through Caution Advice/ CFR

against unscrupulous borrowers could result in similar frauds

being perpetrated elsewhere. Banks should therefore, strictly

adhere to the timeframe fixed in this circular for reporting of fraud

cases to RBI failing which they would be liable for penal action

prescribed under Section 47(A) of the Banking Regulation Act,

1949.”

(emphasis supplied)

18.The Master Directions on Frauds provides a regulatory framework for four

types of frauds: (i) Chapter IV deals with attempted fraud; (ii) Chapter VII

deals with cheque related frauds; (iii) Chapter VIII deals with loan frauds;

and (iv) Chapter X deals with cases relating to theft, burglary, dacoity, and

bank robberies. The dispute in the present batch of cases is concerned

with Chapter VIII dealing with loan frauds.

15 “CFR”

19.Chapter VI states that as a general rule, cases involving fraud/

embezzlement should invariably be referred to the state police or CBI.

Chapter VIII provides for more robust safeguards which ensure that banks

report frauds to investigating agencies after forming an informed opinion.

The framework for dealing with loan frauds was put in place by a circular

dated 07 May 2015. The objective of the framework has been enumerated

in Clause 8.2:

“8.2 Objective of the framework

The objective of the framework is to direct the focus of banks on

the aspects relating to prevention, early detection, prompt reporting

to the RBI (for system level aggregation, monitoring &

dissemination) and the investigative agencies (for instituting

criminal proceedings against fraudulent borrowers) and timely

initiation of the staff accountability proceedings (for determining

negligence or connivance, if any) while ensuring that the normal

conduct of business of the banks and their risk taking ability is not

adversely impacted and no new and onerous responsibilities are

placed on the banks. In order to achieve this objective, the

framework has stipulated time lines with the action incumbent on a

bank. The time lines / stage wise actions in the loan life-cycle are

expected to compress the total time taken by a bank to identify a

fraud and aid more effective action by the law enforcement

agencies. The early detection of Fraud and the necessary

corrective action are important to reduce the quantum of loss

which the continuance of the Fraud may entail.”

20.Clause 8.3 deals with Early Warning Signals16 and Red Flagged

Accounts.17 Under Clause 8.3.1, a RFA is one where a suspicion of

fraudulent activity is thrown up by the presence of one or more EWS. EWS

which should alert bank officials about wrongdoings in a loan account are

set out in Annexure II. Some of those enumerated are set out below:

16 “EWS”

17 “RFA”

i. a. Default in undisputed payment to statutory bodies as declared

in the annual report;

b. Dishonour of high value cheques;

ii. Delay in payment of outstanding dues;

iii. Funds coming from other banks to liquidate the outstanding loan

amount except in the normal course;

iv. Exclusive collateral charged to a number of lenders without NOCs

of existing charge holders;

v. Dispute on title to collateral securities; and

vi. Critical issues in the stock audit report.

21.EWS provide indications of wrongdoing which may later turn out to be

frauds. A bank is put on alert by the presence of EWS and must use them

to trigger a detailed investigation into the concerned bank account.

According to Clause 8.3.5, the officer responsible for operations in the

account should promptly report any manifestation of EWS to the Fraud

Monitoring Group18 constituted by the bank. The clause directs banks to

take cognizance of EWS and launch a detailed investigation into an RFA.

22.Clause 8.8 deals with situations where a bank is the sole lender. In such

situations, the FMG is entrusted with the responsibility to take a call on

whether a bank account in which EWS are observed should be classified

18 “FMG”

as RFA. The bank is permitted to use external auditors before taking a final

call on RFA status. However, within six months the bank is required to

either lift the RFA status or classify the account as fraud in accordance

with the investigation or forensic audits.

23.Clause 8.9 deals with lending under consortium or multiple banking

arrangements19. Clause 8.9.2 provides that all banks which have financed

a borrower under an MBA should take coordinated action based on a

commonly agreed strategy for subsequent legal actions, follow-ups,

exchange of details and information on a consistent basis. Clauses 8.9.4

and 8.9.5 provide the procedure for classification of a borrower’s account

as fraud:

“8.9.4 The initial decision to classify any standard account or NPA

account as RFA or Fraud will be at the individual level and it would

be the responsibility of this bank to report the RFA or Fraud status

of the account on the CRILC platform so that other banks are

alerted. In case it is decided at the individual bank level to classify

the account as fraud straightaway at this stage itself, the bank shall

then report the fraud to RBI within 21 days of detection and also

report the case to CBI/Police, as it is being done hitherto. Further,

within 15 days of RFA/Fraud classification, the bank which has red

flagged the account or detected the fraud would ask the

consortium leader or the largest lender under MBA to convene a

meeting of the JLF to discuss the issue. The meeting of the JLF

so requisitioned must be convened within 15 days of such a

request being received. In case there is a broad agreement,

the account should be classified as fraud; else based on the

majority rule of agreement amongst bank with at least 60%

share in the total lending, the account should be red flagged

by all the banks and subjected to a forensic audit

commissioned or initiated by the consortium leader or the

largest lender under MBA. All banks, as part of the consortium of

multiple-banking arrangement, shall share the costs and provide

the necessary support for such an investigation.

19 “MBA”

8.9.5 The forensic audit must be completed within a maximum

period of three months from the date of the JLF meeting

authorizing the audit. Within 15 days of the completion of the

forensic audit, the JLF shall reconvene and decide on the status of

the account, either by consensus or the majority rule as specified

above. In case the decision is to classify the account as a

fraud, the RFA status shall be changed to Fraud in all banks

and reported to RBI and on the CRILC platform within a week

of the said decision. Besides, within 30 days of the RBI

reporting, the bank commissioning/ initiating the forensic

audit should lodge a complaint with the CBI on behalf of all

banks in the consortium/MBA. For this purpose, if the bank

initiating the forensic audit is a private sector bank, the

complaint shall be lodged with the CBI by the PSU bank with

the largest exposure to the account in the consortium/MBA. If

there is no PSU bank in the consortium/MBA or it is a solo

bank lending by a private sector bank/ foreign bank, the

private bank/foreign bank shall report to the Police as per

extant instructions. This would be in addition to the complaint

already lodged by the first bank which had detected the fraud and

informed the consortium/MBA.”

(emphasis supplied)

24. Clause 8.9.4 stipulates that the initial decision to classify an account as

RFA or fraud vests with the individual bank. Once the bank classifies the

account as fraud, it is the responsibility of that bank to report the RFA or

fraud status on the account on the Central Repository of Information on

Large Credits20 platform to alert other banks. In case the individual bank

decides to straightaway classify the account as fraud, it is obligated to

report the fraud to RBI within 21 days of detection and also report the case

to CBI/Police. Further, within 15 days the individual bank could ask the

consortium leader or the largest lender under the MBA to convene a

meeting of the JLF to discuss the issue. The meeting of the JLF has to be

convened within 15 days of the request being received. The JLF can

classify an account as fraud in case there is a broad consensus.

20 “CRILC”

Otherwise, the clause indicates that based on an agreement amongst

banks with at least a 60 percent share in total lending, the account should

be red-flagged by all banks and subjected to forensic audit commissioned

or initiated by the consortium leader or the largest lender under MBA.

25.Clause 8.9.5 states that the forensic audit has to be completed within 3

months from the date of the JLF meeting authorizing the audit. Within 15

days of the completion of the audit, the JLF has to decide to classify the

account as fraud and report it to the RBI. The clause also requires the

bank commissioning the audit to lodge a complaint with CBI on behalf of all

banks in the consortium within 30 days of reporting to RBI.

26.Clause 8.11 deals with the filing of complaints to law enforcement

agencies. Clause 8.11.1 requires banks to lodge complaints with law

enforcement agencies immediately on detecting fraud. The clause enjoins

banks to avoid delay in filing a complaint as it may result in loss of

documents, unavailability of witnesses, absconding borrowers, loss of

money trail and asset tripping by fraudulent borrowers.

27.The penal measures for fraudulent borrowers are set out in Clause 8.12

which reads as follows:

8.12 Penal measures for fraudulent borrowers

8.12.1 In general, the penal provisions as applicable to wilful

defaulters would apply to the fraudulent borrowers including

the promoter director(s) and other whole time directors of the

company insofar as raising of funds from the banking system

or from capital markets by companies with which they are

associated is concerned, etc. In particular, borrowers who

have defaulted and have also committed a fraud in the

account would be debarred from availing bank finance from

Scheduled Commercial Banks, Development Financial

Institutions, Government owned NBFCs, Investment

Institutions, etc., for a period of five years from the date of full

payment of the defrauded amount. After this period, it is for

individual institutions to take a call on whether to lend to such a

borrower. The penal provisions would apply to non-whole time

directors (like nominee directors and independent directors) only in

rarest of cases based on conclusive proof of their complicity.

8.12.2 No restructuring or grant of additional facilities may be

made in the case of RFA or fraud accounts. However, in cases

of fraud/malfeasance where the existing promoters are replaced by

new promoters and the borrower company is totally delinked from

such erstwhile promoters/management, banks and JLF may take a

view on restructuring of such accounts based on their viability,

without prejudice to the continuance of the criminal actions against

the erstwhile promoters/management.

8.12.3 No compromise settlement involving a fraudulent borrower

is allowed unless the conditions stipulate that the criminal

complaint will be continued.

8.12.4 In addition to above borrower – fraudsters, third parties

such as builders, warehouse/ cold storage owners, motor vehicle/

tractor dealers, travel agents, etc. and professionals such as

architects, valuers, chartered accountants, advocates, etc. are also

held accountable if they play a vital role in credit sanction/

disbursement or facilitated the perpetration of frauds. Banks are

advisable to report to Indian Banks Association (IBA) the details of

such parties involved in frauds.

8.12.5 Before reporting to IBA, banks have to satisfy themselves of

the involvement of third parties concerned and also provide them

with an opportunity of being heard. In this regard the banks should

follow normal procedures and the processes followed should be

suitably recorded. On the basis of such information, IBA would, in

turn, prepare caution lists of such third parties for circulation

among the banks.”

(emphasis supplied)

28. Clause 8.12.1 provides that the penal provisions as applicable to willful

defaulters would apply to fraudulent borrowers as regards the raising of

funds from the banking system and financial institutions. Importantly, under

the clause, fraudulent borrowers include promoters, directors, and other

whole-time directors of the borrowing company. It debars fraudulent

borrowers from availing banking finance from scheduled commercial

banks, development financial institutions, government owned NBFCs,

investment institutions, etc. for a period of five years from the date of full

payment of the defrauded amount. Even after the completion of the fiveyear period, it is for the individual financial institutions to decide whether to

lend to fraudulent borrowers, including directors and promoters of the

borrowing company. Additionally, under Clause 8.12.2, fraudulent

borrowers are denied restructuring or grant of additional facilities by banks

and other such financial institutions.

D.2 Audi Alteram Partem

29.We need to bear in mind that the principles of natural justice are not mere

legal formalities. They constitute substantive obligations that need to be

followed by decision-making and adjudicating authorities. The principles of

natural justice act as a guarantee against arbitrary action, both in terms of

procedure and substance, by judicial, quasi-judicial, and administrative

authorities. Two fundamental principles of natural justice are entrenched in

Indian jurisprudence: (i) nemo judex in causa sua, which means that no

person should be a judge in their own cause; and (ii) audi alteram partem,

which means that a person affected by administrative, judicial or quasijudicial action must be heard before a decision is taken. The courts

generally favor interpretation of a statutory provision consistent with the

principles of natural justice because it is presumed that the statutory

authorities do not intend to contravene fundamental rights. Application of

the said principles depends on the facts and circumstances of the case,

express language and basic scheme of the statute under which the

administrative power is exercised, the nature and purpose for which the

power is conferred, and the final effect of the exercise of that power.21

30.While the borrowers argue that the actions of banks in classifying borrower

accounts as fraud according to the procedure laid down under the Master

Directions on Frauds is in violation of the principles of natural justice, the

RBI and lender banks argue that these principles cannot be applied at the

stage of reporting a criminal offence to investigating agencies. At the

outset, we clarify that principles of natural justice are not applicable at the

stage of reporting a criminal offence, which is a consistent position of law

adopted by this Court. In Union of India v. W N Chadha, a two-judge

bench of this Court held that that providing an opportunity of hearing to the

accused in every criminal case before taking any action against them

would “frustrate the proceedings, obstruct the taking of prompt action as

law demands, defeat the ends of justice and make the provisions of law

relating to the investigation lifeless, absurd, and self-defeating.”22 Again, a

two-judge bench of this Court in Anju Chaudhary v. State of UP23 has

reiterated that the Code of Criminal Procedure, 1973 does not provide for

right of hearing before the registration of an FIR.

31.Chapter VIII of the Master Directions on Fraud provides detailed

procedures to be followed by the banks before forming an opinion to

21 Union of India v. Col. J N Sinha, (1970) 2 SCC 458

22 1993 Supp (4) SCC 260

23 (2013) 6 SCC 384

proceed with a criminal complaint against the borrowers. Under the said

chapter, the lender banks have to report a borrower to the CBI after

classifying the borrower’s account as fraudulent. However, the

classification of the borrower’s account does not simpliciter lead to

reporting of criminal complaint with the enforcement authorities; it also

entails penal consequences for the borrowers as laid down under Clause

8.12.

32.The process of forming an informed opinion under the Master Directions

on Frauds is administrative in nature. This has also been acceded to by

RBI and lender banks in their written submissions. It is now a settled

principle of law that the rule of audi alteram partem applies to

administrative actions, apart from judicial and quasi-judicial functions.

24 It is

also a settled position in administrative law that it is mandatory to provide

for an opportunity of being heard when an administrative action results in

civil consequences to a person or entity.

33.In State of Orissa v. Dr (Miss) Binapani Dei25, a two-judge bench of this

Court held that every authority which has the power to take punitive or

damaging action has a duty to give a reasonable opportunity to be heard.

This Court further held that an administrative action which involves civil

consequences must be made consistent with the rules of natural justice:

“9. […] The rule that a party to whose prejudice an order is

intended to be passed is entitled to a hearing applies alike to

24 A K Kraipak v. Union of India, (1969) 2 SCC 262; Governing Body, St Anthony’s College, Shillong

and Ors v. Rev. Fr. Paul Petta of Shillong, (1988) Supp SCC 676; Uma Nath Pandey and Ors v. State

of Uttar Pradesh, (2009) 12 SCC 40.

25 AIR 1967 SC 1269

judicial tribunals and bodies of persons invested with authority to

adjudicate upon matters involving civil consequences. It is one of

the fundamental rules of our constitutional set-up that every citizen

is protected against exercise of arbitrary authority by the State or

its officers. Duty to act judicially would therefore arise from the very

nature of the function intended to be performed: it need not be

shown to be super-added. If there is power to decide and

determine to the prejudice of a person, duty to act judicially is

implicit in the exercise of such power. If the essentials of justice be

ignored and an order to the prejudice of a person is made, the

order is a nullity. That is a basic concept of the rule of law and

importance thereof transcends the significance of a decision in any

particular case.”

34.In Maneka Gandhi v. Union of India26, a seven-judge bench of this court

held that any person prejudicially affected by a decision of the authority

entailing civil consequences must be given an opportunity of being heard.

This has been reiterated in a catena of decisions of this Court. In view of

the settled position of law, the next question that arises before us is the

scope and definition of the phrase ‘civil consequences’.

35.In Mohinder Singh Gill v. Chief Election Commissioner, New Delhi27, a

Constitution Bench of this Court held that ‘civil consequences’ cover

infraction of not merely property or personal rights but of civil liberties,

material deprivations, and non-pecuniary damages. In that case, the Court

held that denial of a democratic right to cast a vote inflicts civil

consequences. In D K Yadav v. J M A Industries28, a three-judge bench

of this Court observed that “everything that affects a citizen in his civil life

inflicts a civil consequence.”

26 (1978) 1 SCC 248

27 (1978) 1 SCC 405

28 (1993) 3 SCC 259

36.In Canara Bank v. V K Awasthy29, a two-judge bench of this Court

succinctly summarized the history, scope, and application of the principles

of natural justice to administrative actions involving civil consequences in

the following terms:

14. Concept of natural justice has undergone a great deal of

change in recent years. Rules of natural justice are not rules

embodied always expressly in a statute or in rules framed

thereunder. They may be implied from the nature of the duty to be

performed under a statute. What particular rule of natural justice

should be implied and what its context should be in a given case

must depend to a great extent on the fact and circumstances of

that case, the framework of the statute under which the enquiry is

held. The old distinction between a judicial act and an

administrative act has withered away. Even an administrative

order which involves civil consequences must be consistent

with the rules of natural justice. The expression “civil

consequences” encompasses infraction of not merely

property or personal rights but of civil liberties, material

deprivations and non-pecuniary damages. In its wide umbrella

comes everything that affects a citizen in his civil life.

(emphasis supplied)

There is a consistent pattern of judicial thought that civil consequences

entail infractions not merely of property or personal rights, but also of civil

liberties, material deprivations, and non-pecuniary damages. Every order

or proceeding which involves civil consequences or adversely affects a

citizen should be in accordance with the principles of natural justice.

37.The next question that requires our consideration is whether the

classification of a borrower’s account as fraudulent under the Master

Directions on Frauds entails civil consequences to borrowers.

29 (2005) 6 SCC 321

38.The RBI and lender banks have argued that the civil consequences

contemplated in Clause 8.12.1 of the Master Directions on Frauds are

reasonable. Under the said clause, the borrower, including the promoters

and directors of the company, are barred from availing credit from financial

markets and credit markets for a period of five years, and possibly even

beyond. According to RBI and lender banks, such a restriction has to be

perceived from the perspective of public interest. While acknowledging that

the procedure which has been laid down in the Master Directions on

Frauds is conceived in public interest, to protect the banking system, we

cannot ignore the serious civil consequences which emanate to the

borrowers.

39.Clause 8.12 of the Master Directions on Frauds deals with the penal

measures for borrowers. Clause 8.12.1 provides that penal provisions as

applicable to wilful defaulters would apply to fraudulent borrowers,

including the promoters and directors of the borrower company. The

consequences that apply to a wilful defaulter under the Master Circular on

Wilful Defaulters have been culled out in Jah Developers (supra):

“9. […] serious consequences follow after a person has been

classified as a wilful defaulter. These consequences are as follows:

(a) No additional facilities to be granted by any bank/financial

institution [para 2.5(a)].

(b) Entrepreneurs/Promoters would be barred from institutional

finance for a period of 5 years [para 2.5(a)].

complaints [para 2.5(b)].

(d) Banks and financial institutions to adopt proactive approach in

changing the management of the wilful defaulter [para 2.5(c)].

(e) Promoter/Director of wilful defaulter shall not be inducted by

another borrowing company [para 2.5(d)].

(f) As per Section 29-A of the Insolvency and Bankruptcy Code,

2016, a wilful defaulter cannot be a resolution applicant.”

40.In addition to the above consequences, borrowers are also liable to suffer

the following consequences under the Master Directions on Frauds:

a) No restructuring may be made in the case of an RFA or fraud accounts

(clause 8.12.2)

b) No compromise on settlement involving a fraudulent borrower is

allowed unless the conditions stipulate that the criminal complaint will

be continued (clause 8.12.3)

The above consequences show that the classification of a borrower’s

account as fraud under the Master Directions on Frauds has difficult civil

consequences for the borrower. The classification of an account as fraud

not only results in reporting the fact to investigating agencies, but has other

penal and civil consequences as specified in Clauses 8.12.1 and 8.12.3.

The borrowers have placed reliance on Jah Developers (supra) to submit

that debarring them from accessing institutional finance under Clause

8.12.1 of the Master Directions affects the fundamental right of the

borrower to carry on business. On the other hand, the RBI and lender

banks have argued that reliance on the observations in Jah Developers

(supra) is misplaced because the decision dealt with the classification of a

borrower as wilful defaulter, whereas the present batch of appeals deal

with the classification of a borrower’s account as fraud.

41.The question in Jah Developers (supra) was whether a person who is

declared to be a wilful defaulter according to the procedure laid down in

the Master Circular on Wilful Defaulters is entitled to be represented by a

lawyer of their choice before such a declaration is made. The Court held

that a borrower does not have the right to be represented by a lawyer in

the course of in-house proceedings envisaged in Paragraph 3 of the

Master Circular on Wilful Defaulters. Paragraph 3 of the Master Circular on

Wilful Defaulters provides a two-tier process for identification of a wilful

defaulter. At the first stage, a First Committee headed by an Executive

Director or equivalent and consisting of two other senior officers of the

bank must, after examining the evidence of wilful default and concluding

that wilful default has occurred, issue a show-cause notice to the

concerned borrowers and promoters/ whole-time directors calling for their

submissions. The First Committee has to consider the submissions before

recording the fact of wilful default with reasons. If the Committee deems it

necessary, it could also provide a personal hearing to the borrower and the

promoter/ whole-time director of the borrowing company. The second

stage is that the order of the First Committee is reviewed by another

Committee, known as the Review Committee. Thus, it is clear that the

procedure for declaration of a borrower as a wilful defaulter is different

from the procedure envisaged under the Master Directions on Frauds for

classifying a borrower’s account as fraud. However, by virtue of Clause

8.12.1 of the Master Directions on Frauds, the penal provisions applicable

to wilful defaulters also apply to fraudulent borrowers. Thus, although the

procedure adopted for declaration of a wilful defaulter is different from that

envisaged for classifying the borrower’s account as fraud, they will face

similar consequences. In fact, as mentioned above, the borrowers’

accounts classified as fraud under the Master Directions on Frauds will

face certain additional consequences which have been laid down in

Clauses 8.12.2 and 8.12.3. Since the consequences flowing from the two

circulars are similar, the observations in Jah Developers (supra) on the

effect of declaring a borrower as wilful defaulter will be squarely applicable

to the present case. The observations of the Court are extracted below:

24. However, we are of the view that Article 19(1)(g) is

attracted in the facts of the present case as the moment a

person is declared to be a wilful defaulter, the impact on its

fundamental right to carry on business is direct and

immediate. This is for the reason that no additional facilities

can be granted by any bank/financial institutions, and

entrepreneurs/promoters would be barred from institutional

finance for five years. Banks/financial institutions can even

change the management of the wilful defaulter, and a

promoter/director of a wilful defaulter cannot be made

promoter or director of any other borrower company. Equally,

under Section 29-A of the Insolvency and Bankruptcy Code, 2016,

a wilful defaulter cannot even apply to be a resolution applicant.

Given these drastic consequences, it is clear that the Revised

Circular, being in public interest, must be construed

reasonably.

(emphasis supplied)

In Jah Developers (supra), this Court construed the Master Circular on

Wilful Defaulters by harmonizing it with the principles of natural justice.

Particularly, it was directed that: (i) the First Committee must give its order

to the borrower as soon as possible; (ii) the Borrower, thereafter, can file a

written representation against the order of First Committee to the Review

Committee; and (iii) the Review Committee must pass a reasoned order

which must be provided to the borrower.

42.Classification of the borrower’s account as fraud under the Master

Directions on Frauds virtually leads to a credit freeze for the borrower, who

is debarred from raising finance from financial markets and capital

markets. The bar from raising finances could be fatal for the borrower

leading to its ‘civil death’ in addition to the infraction of their rights under

Article 19(1)(g) of the Constitution. Since debarring disentitles a person or

entity from exercising their rights and/or privileges, it is elementary that the

principles of natural justice should be made applicable and the person

against whom an action of debarment is sought should be given an

opportunity of being heard. Indeed, debarment is akin to blacklisting a

borrower from availing credit. Black’s Law Dictionary30 explains the term

‘blacklist’ has been defined in the following terms:

“A list of persons marked out for special avoidance, antagonism, or

enmity on the part of those who prepare the list or those among

whom it is intended to circulate; as where a trades-union

“blacklists” workmen who refuse to conform to its rules, or where a

list of insolvent or untrustworthy persons is published by a

commercial agency or mercantile association.”

(emphasis supplied)

Similarly, P Ramanatha Aiyar’s Law Lexicon31 defines the term “blacklist”

as follows:

“Black List is a list of persons or firms against whom its compiler

would warn the public, or some section of the public; a list of

persons unworthy of credit, or with whom it is not advisable

30 Black’s Law Dictionary, 5th edn (1979)

31 P Ramanatha Aiyar, ‘The Law Lexicon: The Encyclopedic Law Dictionary’ (1997 edn)

to make contracts. Thus the official list of defaulters on the Stock

Exchange is a black list. To put a man’s name on such a black list

without lawful cause is actionable; and the further publication of

such a list will be restrained by injunction.”

(emphasis supplied)

43.A blacklist is: (i) a list of insolvent or untrustworthy persons published by a

commercial agency or mercantile association; and (ii) a list of persons

unworthy of credit, or with whom it is not advisable to make contracts.

Before this Court, the RBI and lender banks have submitted that debarring

borrowers from accessing institutional finance is necessary to not only

prevent the same persons from committing frauds in other banks, but also

to proscribe banks from dealing with unscrupulous borrowers in public

interest. Debarring a borrower under Clause 8.12.1 of the Master

Directions on Frauds is akin to blacklisting the borrower for being

untrustworthy and unworthy of credit by the banks. This Court has

consistently held that an opportunity of a hearing ought to be provided

before a person is put on a blacklist.

44.In Erusian Equipment & Chemicals Ltd v. State of West Bengal32, the

issue before this Court was whether a person is entitled to a notice to be

heard before being blacklisted by the government. This Court held that

since blacklisting affects the privileges of the blacklisted person,

fundamentals of fair play require that such a person be provided an

opportunity of being heard:

“20. Blacklisting has the effect of preventing a person from the

privilege and advantage of entering into lawful relationship with the

32 (1975) 1 SCC 70

Government for purposes of gains. The fact that a disability is

created by the order of blacklisting indicates that the relevant

authority is to have an objective satisfaction. Fundamentals of fair

play require that the person concerned should be given an

opportunity to represent his case before he is put on the blacklist.”

45.In Joseph Vilangandan v. Executive Engineer33, the issue before the

two-judge pertained to debarment of a government contractor from seeking

any further contract with the government without providing an opportunity

of being heard. The material sentence of the notice there read as follows:

“You are therefore requested to show cause ... why the work may

not be arranged otherwise at your risk and loss, through other

agencies after debarring you as a defaulter....”

(emphasis original)

This Court applied the position of law in Erusian Equipment & Chemicals

Ltd (supra) to hold that the Executive Engineer ought to have given the

contractor adequate opportunity to represent against the proposed action

of debarment.

46.In Raghunath Thakur v. State of Bihar34, a two-judge bench of this Court

held that since blacklisting entails civil consequences an order of

blacklisting should be issued only after following the principles of natural

justice:

“4. […] Insofar as the contention that there is no requirement

specifically of giving any notice is concerned, the respondent is

right. But it is an implied principle of the rule of law that any order

having civil consequence should be passed only after following the

principles of natural justice. It has to be realised that blacklisting

any person in respect of business ventures has civil consequence

for the future business of the person concerned in any event. Even

if the rules do not express so, it is an elementary principle of

33 (1978) 3 SCC 36

34 (1989) 1 SCC 229

natural justice that parties affected by any order should have right

of being heard and making representations against the order. […]”

47. In Gorkha Security Services v. Govt (NCT of Delhi)35, the issue before

this Court pertained to the form and content of a show-cause notice that is

required to be served before blacklisting the noticee. A two-judge bench of

this Court observed that that an order blacklisting a person is stigmatic.

The relevant observation is extracted below:

16. It is a common case of the parties that the blacklisting has to

be preceded by a show-cause notice. Law in this regard is firmly

grounded and does not even demand much amplification. The

necessity of compliance with the principles of natural justice by

giving the opportunity to the person against whom action of

blacklisting is sought to be taken has a valid and solid rationale

behind it. With blacklisting, many civil and/or evil

consequences follow. It is described as “civil death” of a

person who is foisted with the order of blacklisting. Such an

order is stigmatic in nature and debars such a person from

participating in government tenders which means precluding

him from the award of government contracts.

(emphasis supplied)

48.Classification of a borrower’s account as fraud has the effect of preventing

the borrower from accessing institutional finance for the purpose of

business. It also entails significant civil consequences as it jeopardizes the

future of the business of the borrower. Therefore, the principles of natural

justice necessitate giving an opportunity of a hearing before debarring the

borrower from accessing institutional finance under Clause 8.12.1 of the

Master Directions on Frauds. The action of classifying an account as fraud

not only affects the business and goodwill of the borrower, but also the

right to reputation.

35 (2014) 9 SCC 105

49.In State of Maharashtra v. Public Concern for Governance Trust36, a

two-judge bench of this Court held that a decision taken by any authority

affecting the right to reputation of an individual has civil consequences.

Therefore, in such situations the principles of natural justice would come

into play. The Court held that any order or decision of the authority

adversely affecting the personal reputation of an individual must be taken

after following the principles of natural justice:

“41. It is thus amply clear that one is entitled to have and preserve

one's reputation and one also has a right to protect it. In case any

authority in discharge of its duties fastened upon it under the law,

travels into the realm of personal reputation adversely affecting

him, it must provide a chance to him to have his say in the matter.

In such circumstances, right of an individual to have the safeguard

of the principles of natural justice before being adversely

commented upon is statutorily recognised and violation of the

same will have to bear the scrutiny of judicial review.”

50.The RBI and lender banks have relied on Peerless General Finance and

Investment Co. Ltd v. Reserve Bank of India37, Joseph Kuruvilla

Vellukunnel v. Reserve Bank of India38, and Internet and Mobile

Association of India v. Reserve Bank of India39 to submit that the

Master Directions on Frauds are akin to a statutory regulation and a

decision on economic policy, which must be accorded a level of deference.

51. The competence of the RBI to issue the Master Directions on Frauds is

not a bone of contention in these appeals. The RBI, in its estimation, has

the power to determine and frame economic measures in the public

interest to ensure the proper management of banking companies. The

36 (2007) 3 SCC 587

37 (1992) 2 SCC 343

38 AIR 1962 SC 1371

39 (2020) 10 SCC 274

point however is that the implementation of a decision to secure the health

of banking companies must comport with the due process of law. The civil

consequences which follow upon a classification of a borrower’s account

as fraud are serious and prejudicial to the interests of a borrower.

Principles of fair play require that borrower ought to be given an

opportunity of being heard before classifying the account as fraud in

accordance with the procedure laid down under the Master Directions on

Frauds.

D.3 No implied exclusion of audi alteram partem

52. The RBI and the lender banks have contended that the Master Directions

on Frauds impliedly exclude the right to be heard. The objective of the

Master Directions on Frauds is to ensure timely detection and reporting of

cases of fraud to alert other banks and initiate criminal proceedings. The

Directions contemplate an opportunity of hearing to a third party who is

involved in the commission of fraudulent activity, but do not explicitly

provide for hearing to a borrower. Thus, it is urged that hearing to the

borrowers is excluded by necessary implication.

53.The Master Directions on Frauds do not expressly exclude a right of

hearing to the borrowers before action to class their account as frauds is

initiated. The principles of natural justice can be read into a statute or a

notification where it is silent on granting an opportunity of a hearing to a

party whose rights and interests are likely to be affected by the orders that

may be passed.

54.In a decision of a three-judge bench of this Court in Swadeshi Cotton

Mills v. Union of India40, the issue was whether the Central government

was required to comply with the requirements of audi alteram partem

before it took over the management of an industrial undertaking under

Section 18-AA(1)(a) of the Industries (Development and Regulation) Act,

195141. R S Sarkaria, J speaking for the majority consisting of himself and

D A Desai, J laid down the following principles of law:

44. In short, the general principle — as distinguished from an

absolute rule of uniform application — seems to be that where a

statute does not, in terms, exclude this rule of prior hearing but

contemplates a post-decisional hearing amounting to a full review

of the original order on merits, then such a statute would be

construed as excluding the audi alteram partem rule at the predecisional stage. Conversely, if the statute conferring the

power is silent with regard to the giving of a pre-decisional

hearing to the person affected and the administrative decision

taken by the authority involves civil consequences of a grave

nature, and no full review or appeal on merits against that

decision is provided, courts will be extremely reluctant to

construe such a statute as excluding the duty of affording

even a minimal hearing shorn of all its formal trappings and

dilatory features at the pre-decisional stage, unless, viewed

pragmatically, it would paralyse the administrative progress or

frustrate the need for utmost promptitude. In short, this rule of

fair play “must not be jettisoned save in very exceptional

circumstances where compulsive necessity so demands”.

The court must make every effort to salvage this cardinal rule

to the maximum extent possible, with situational

modifications. But, to recall the words of Bhagwati, J., the core of

it must, however, remain, namely, that the person affected must

have reasonable opportunity of being heard and the hearing must

be a genuine hearing and not an empty public relations exercise.

(emphasis supplied)

55.The main point for consideration before this Court in Swadeshi Cotton

Mills (supra) was whether the use of the phrase “immediate action is

40 (1981) 1 SCC 664

41 “IDR Act, 1951”

necessary” under Section 18-AA(1)(a) of the IDR Act impliedly excluded

the application of the audi alteram partem rule. Sarkaria, J held that the

expression “immediate action”, construed in light of the overall context,

object and reasons of the legislation, did not necessarily indicate an

intention to exclude the requirement of prior hearing. The Court held that

the use of the phrase does not exclude the duty to comply with the audi

alteram partem rule:

“77. The second reason — which is more or less a facet of the first

— for holding that the mere use of the word “immediate” in the

phrase “immediate action is necessary”, does not necessarily

and absolutely exclude the prior application of the audi

alteram partem rule, is that immediacy or urgency requiring

swift action is a situational fact having a direct nexus with the

likelihood of adverse effect on fall in production. And, such

likelihood and the urgency of action to prevent it, may vary

greatly in degree. The words “likely to affect. . .production”

used in Section 18-AA(1)(a) are flexible enough to

comprehend a wide spectrum of situations ranging from the

one where the likelihood of the happening of the apprehended

event is imminent to that where it may be reasonably

anticipated to happen sometime in the near future. Cases of

extreme urgency where action under Section 18-AA(1)(a) to

prevent fall in production and consequent injury to public interest,

brooks absolutely no delay, would be rare. In most cases, where

the urgency is not so extreme, it is practicable to adjust and strike

a balance between the competing claims of hurry and hearing.”

(emphasis supplied)

Sarkaria, J observed that that the owner of an undertaking is entitled to a

fair hearing at the pre-decisional stage because the power of the Central

government under Section 18AA-(1)(a) to take over is far-reaching and

adversely affects the rights and interests of owners.

56.In Mangilal v. State of Madhya Pradesh42, a two-judge bench of this

Court held that the principles of natural justice need to be observed even if

the statute is silent in that regard. In other words, a statutory silence should

be taken to imply the need to observe the principles of natural justice

where substantial rights of parties are affected:

10. Even if a statute is silent and there are no positive words

in the Act or the Rules made thereunder, there could be

nothing wrong in spelling out the need to hear the parties

whose rights and interest are likely to be affected by the

orders that may be passed, and making it a requirement to

follow a fair procedure before taking a decision, unless the

statute provides otherwise. The principles of natural justice

must be read into unoccupied interstices of the statute,

unless there is a clear mandate to the contrary. No form or

procedure should ever be permitted to exclude the

presentation of a litigant's defence or stand. Even in the

absence of a provision in procedural laws, power inheres in every

tribunal/court of a judicial or quasi-judicial character, to adopt

modalities necessary to achieve requirements of natural justice

and fair play to ensure better and proper discharge of their duties.

Procedure is mainly grounded on the principles of natural justice

irrespective of the extent of its application by express provision in

that regard in a given situation. It has always been a cherished

principle. Where the statute is silent about the observance of

the principles of natural justice, such statutory silence is

taken to imply compliance with the principles of natural

justice where substantial rights of parties are considerably

affected. The application of natural justice becomes

presumptive, unless found excluded by express words of

statute or necessary intendment. Its aim is to secure justice or

to prevent miscarriage of justice. Principles of natural justice

do not supplant the law, but supplement it. These rules operate

only in areas not covered by any law validly made. They are a

means to an end and not an end in themselves. […]

(emphasis supplied)

57.As a counter to the above legal position, the RBI and lender banks have

contended that the principles of natural justice could be excluded in cases

where there is a requirement of promptitude or exigent action. In support of

42 (2004) 2 SCC 447

the submission, the RBI and banks have relied upon Ajit Kumar Nag v.

General Manager (PJ), Indian Oil Corp. Ltd43, which in turn relied on the

Constitution Bench decision of this Court in Union of India v. Tulsiram

Patel.

44 In Tulsiram Patel (supra), this Court observed that a right to a

prior notice and an opportunity to be heard could be excluded if allowing

for such a right would obstruct the taking of prompt action:

101. […] So far as the audi alteram partem rule is concerned, both

in England and in India, it is well established that where a right to a

prior notice and an opportunity to be heard before an order is

passed would obstruct the taking of prompt action, such a right can

be excluded. This right can also be excluded where the nature of

the action to be taken, its object and purpose and the scheme of

the relevant statutory provisions warrant its exclusion; nor can the

audi alteram partem rule be invoked if importing it would have the

effect of paralysing the administrative process or where the need

for promptitude or the urgency of taking action so demands, […]

58. The borrowers have dwelt on Clause 8.9.6 of the Master Directions on

Frauds according to which the entire exercise commencing from the

detection of fraud by an individual bank upto the declaration of fraud by the

JLF is to be completed within six months. Clause 8.9.6 provides thus:

“8.9.6 It may be noted that the overall time allowed for the entire

exercise to be completed is six months from the date when the first

member bank reported the account as RFA or Fraud on the CRILC

platform.”

59.In K I Shephard v. Union of India45, this Court was called upon to decide

the validity of amalgamation schemes drawn by the RBI, whereunder three

private banks were amalgamated with nationalized banks. At the time of

merger, some employees of the private banks were excluded from

43 (2005) 7 SCC 764

44 (1985) 3 SCC 398

45 (1987) 4 SCC 431

employment as their services were not taken over by the transferee banks

in view of allegations of misconduct against them. While noting the fact

that the entire process of amalgamation was statutorily required to be

completed within 6 months, this Court held that the said time frame

provides scope for granting an opportunity of hearing to the affected

employees:

15. […] We do not think in the facts of the case there is any

justification to hold that rules of natural justice have been ousted

by necessary implication on account of the time frame. On the

other hand we are of the view that the time limited by statute

provides scope for an opportunity to be extended to the intended

excluded employees before the scheme is finalised so that a

hearing commensurate to the situation is afforded before a section

of the employees is thrown out of employment.

60.The decision of this Court in Swadeshi Cotton Mills (supra) and K I

Shephard (supra) demonstrates that the exigency of a situation is

contextual. The Court must lean in favour of reading in the principles of

natural justice when faced with a regulatory silence. Any exclusion must be

confined to the narrowest possible limits. The application of the

requirement of a prior hearing could be excluded only in situations where

importing it would have the effect of paralyzing the entire process. As

mentioned above, Clause 8.9.6 of the Master Directions on Frauds

contemplates that the procedure for the classification of an account as

fraud has to be completed within six months. The procedure adopted

under the Master Directions on Frauds provides enough time to the banks

to deliberate before classifying an account as fraud. During this interval,

the banks can serve a notice to the borrowers, and give them an

opportunity to submit their reply and representation regarding the findings

of the forensic audit report. Given the wide time frames contemplated

under the Master Directions on Frauds as well as the nature of the

procedure adopted, it is reasonably practicable for banks to provide an

adequate opportunity of a hearing to the borrowers before classifying their

account as fraud. The exclusion contemplated in the decision of this Court

in Tulsiram Patel (supra) would not be applicable because giving an

opportunity of a hearing to the borrowers will not obstruct the taking of

prompt action under the Master Directions on Frauds.

61.The RBI and lender banks have further submitted that the requirement of

natural justice is already fulfilled under the Master Directions on Frauds as

the borrower is allowed to participate during the preparation of the forensic

audit report. On the other hand, the borrowers have submitted that the

Master Directions do not expressly provide for participation of the

borrowers during forensic audit report. It was also submitted that merely

seeking inputs of borrowers during the preparation of the forensic audit

report does not satisfy the requirements of the principles of natural justice

as the borrowers should also be heard before classifying them as fraud.

62.In Keshav Mills Co. Ltd. v. Union of India46, this Court was dealing with

the issue of a takeover of a company by the government under the IDR

Act, 1951 after completion of a full investigation into the affairs of the

company. The issue was whether the report of an investigating body

appointed by an administrative authority should be made available to the

person concerned before the authority takes a decision upon that report.

46 (1973) 1 SCC 380

While deciding to lay down a general principle, this Court observed that

there may be certain situations where an investigation report is required to

be furnished to the concerned party to make an effective representation

about the proposed action:

21. In our opinion it is not possible to lay down any general

principle on the question as to whether the report of an

investigating body or of an inspector appointed by an

administrative authority should be made available to the persons

concerned in any given case before the authority takes a decision

upon that report. The answer to this question also must always

depend on the facts and circumstances of the case. It is not at

all unlikely that there may be certain cases where unless the

report is given the party concerned cannot make any effective

representation about the action that Government takes or

proposes to take on the basis of that report. Whether the

report should be furnished or not must therefore depend in

every individual case on the merits of that case. We have no

doubt that in the instant case non-disclosure of the report of the

Investigating Committee has not caused any prejudice whatsoever

to the appellants.

(emphasis supplied)

63.In Swadeshi Cotton Mills (supra), this Court held that a company is

entitled to an opportunity to explain the evidence collected against it and

represent why the proposed action should not be taken:

85. The contention does not appear to be well founded. Firstly, this

documentary evidence, at best, shows that the Company was in

debt and the assets of some of its “units” had been hypothecated

or mortgaged as security for those debts. Given an opportunity the

Company might have explained that as a result of this

indebtedness there was no likelihood of fall in production, which is

one of the essential conditions in regard to which the Government

must be satisfied before taking action under Section 18A-A(1)(a).

Secondly, what the rule of natural justice required in the

circumstances of this case, was not only that the Company

should have been given an opportunity to explain the

evidence against it, but also an opportunity to be informed of

the proposed action of take over and to represent why it be

not taken.

(emphasis supplied)

64.Audi alteram partem has several facets, including the service of a notice to

any person against whom a prejudicial order may be passed and providing

an opportunity to explain the evidence collected. In Tulsiram Patel

(supra), this Court explained the wide amplitude of audi alteram partem:

96. The rule of natural justice with which we are concerned in

these appeals and writ petitions, namely, the audi alteram

partem rule, in its fullest amplitude means that a person

against whom an order to his prejudice may be passed should

be informed of the allegations and charges against him, be

given an opportunity of submitting his explanation thereto,

have the right to know the evidence, both oral or

documentary, by which the matter is proposed to be decided

against him, and to inspect the documents which are relied

upon for the purpose of being used against him, to have the

witnesses who are to give evidence against him examined in

his presence and have the right to cross-examine them, and

to lead his own evidence, both oral and documentary, in his

defence. The process of a fair hearing need not, however,

conform to the judicial process in a Court of law, because judicial

adjudication of causes involves a number of technical rules of

procedure and evidence which are unnecessary and not required

for the purpose of a fair hearing within the meaning of audi alteram

partem rule in a quasi-judicial or administrative inquiry. […]

(emphasis supplied)

65.Audi alteram partem, therefore, entails that an entity against whom

evidence is collected must: (i) be provided an opportunity to explain the

evidence against it; (ii) be informed of the proposed action, and (iii) be

allowed to represent why the proposed action should not be taken. Hence,

the mere participation of the borrower during the course of the preparation

of a forensic audit report would not fulfil the requirements of natural justice.

The decision to classify an account as fraud involves due application of

mind to the facts and law by the lender banks. The lender banks, either

individually or through a JLF, have to decide whether a borrower has

breached the terms and conditions of a loan agreement, and based upon

such determination the lender banks can seek appropriate remedies.

Therefore, principles of natural justice demand that the borrowers must be

served a notice, given an opportunity to explain the findings in the forensic

audit report, and to represent before the account is classified as fraud

under the Master Directions on Frauds.

D.4 Challenge to constitutional validity

66.The borrowers have argued that the Master Directions on Frauds will have

to be struck down as arbitrary and unconstitutional for conferring unguided

and unbridled powers on banks. To counter the submission, the RBI and

lender banks have relied upon the decision in Delhi Cloth Mills & General

Mills v. Union of India47 to submit that the provisions of the Master

Directions on Frauds are not arbitrary as they have a reasonable nexus to

the object sought to be achieved. It was further argued that the Courts

should not interfere with and supplant their wisdom in an economic policy

decision unless there is blatant perversity, arbitrariness, or mala fides.

67.The RBI has the right to take all such measures as are necessary to

protect the health of the banking system. Hence, the Master Directions on

Frauds lay down the procedure for banks, who in case of a breach of loan

agreements by borrowers, can seek appropriate remedies by approaching

law enforcement agencies and debarring borrowers from accessing further

47 (1983) 4 SCC 166

institutional finance. However, any policy decision which contemplates

serious civil consequences for any person will be open to challenge for

being arbitrary if the principles of natural justice are not applied during the

process.

68.In E P Royappa v. State of Tamil Nadu48, this Court held that an arbitrary

state action is violative of Article 14 of the Constitution. Again, in Maneka

Gandhi (supra) this court reiterated that the principle of non-arbitrariness

pervades Article 14. An administrative action can be tested for

constitutional infirmities under Article 14 on four grounds: (i)

unreasonableness or irrationality; (ii) illegality; (iii) procedural impropriety;

and (iv) proportionality. However, the scope of such judicial review is

limited to ascertaining the deficiency in the decision-making process, and

not the correctness of the choice made by the administrator.50

69.Fairness in action requires that procedures which permit impairment of

fundamental rights ought to be just, fair, and reasonable. The principles of

natural justice have a universal application and constitute an important

facet of procedural propriety envisaged under Article 14. The rule of audi

alteram partem is recognized as being a part of the guarantee contained in

Article 14. A Constitution Bench of this Court in Tulsiram Patel (supra)

has categorically held that violation of the principles of natural justice is a

violation of Article 14. The court held that any state action in breach of

natural justice implicates a violation of Article 14:

48 (1974) 4 SCC 3

49 State of AP v. McDowell, (1996) 3 SCC 709; Om Kumar v. Union of India, (2001) 2 SCC 386

50 Chairman and Managing Director, United Commercial Bank v. P C Kakkar, (2003) 4 SCC 364

“95. The principles of natural justice have thus come to be

recognized as being a part of the guarantee contained in Article 14

because of the new and dynamic interpretation given by this Court

to the concept of equality which is the subject-matter of that article.

Shortly put, the syllogism runs thus: violation of a rule of natural

justice results in arbitrariness which is the same as discrimination;

where discrimination is the result of State action, it is a violation of

Article 14: therefore, a violation of a principle of natural justice

by a State action is a violation of Article 14. Article 14,

however, is not the sole repository of the principles of natural

justice. What it does is to guarantee that any law or State

action violating them will be struck down. The principles of

natural justice, however, apply not only to legislation and

State action but also where any tribunal, authority or body of

men, not coming within the definition of State in Article 12, is

charged with the duty of deciding a matter. In such a case, the

principles of natural justice require that it must decide such matter

fairly and impartially.”

(emphasis supplied)

70.In Cantonment Board v. Taramani Devi51, a two-judge bench of this

Court held that the rule of audi alteram partem is a part of Article 14.

Similarly, in Delhi Transport Corporation v. DTC Mazdoor Congress52,

this Court observed that the rule of audi alteram partem enforces the

equality clause in Article 14. Therefore, any administrative action which

violates the rule of audi alteram partem is arbitrary and violative of Article

14.

71.Administrative proceedings which entail significant civil consequences

must be read consistent with the principles of natural justice to meet the

requirement of Article 14. Where possible, the rule of audi alteram partem

ought to be read into a statutory rule to render it compliant with the

principles of equality and non-arbitrariness envisaged under Article 14. The

Master Directions on Frauds do not expressly provide the borrowers an

51 1992 Supp (2) SCC 501

52 1991 Supp (1) SCC 600

opportunity of being heard before classifying the borrower’s account as

fraud. Audi alteram partem must then be read into the provisions of the

Master Directions on Frauds.

72.In Olga Tellis v. Bombay Municipal Corporation53, a Constitution Bench

of this Court was called upon to adjudge the validity of Section 314 of the

Bombay Municipal Corporation Act, 1888. The provision enabled the

Municipal Commissioner to remove, without notice, any object, structure or

fixture which was set up in or upon any street. Chief Justice Y V

Chandrachud delivering the judgment of the Constitution Bench held that

the impugned provision must be construed to ensure that the procedure

contemplated is fair and reasonable. It was further held:

44. […] What Section 314 provides is that the Commissioner may,

without notice, cause an encroachment to be removed. It does not

command that the Commissioner shall, without notice, cause an

encroachment to be removed. Putting it differently, Section 314

confers on the Commissioner the discretion to cause an

encroachment to be removed with or without notice. That

discretion has to be exercised in a reasonable manner so as

to comply with the constitutional mandate that the procedure

accompanying the performance of a public act must be fair

and reasonable. We must lean in favour of this interpretation

because it helps sustain the validity of the law. Reading

Section 314 as containing a command not to issue notice

before the removal of an encroachment will make the law

invalid.

(emphasis supplied)

53 (1985) 3 SCC 545

73.In Union of India v. Col. J N Sinha54, a two-judge bench of this Court held

that an endeavor must be made to interpret a statutory provision consistent

with the principles of natural justice:

8. […] It is true that if a statutory provision can be read

consistently with the principles of natural justice, the courts

should do so because it must be presumed that the

Legislatures and the statutory authorities intend to act in

accordance with the principles of natural justice. But if on the

other hand a statutory provision either specifically or by necessary

implication excludes the application of any or all the principles of

natural justice then the court cannot ignore the mandate of the

Legislature or the statutory authority and read into the concerned

provision the principles of natural justice. Whether the exercise of a

power conferred should be made in accordance with any of the

principles of natural justice or not depends upon the express words

of the provision conferring the power, the nature of the power

conferred, the purpose for which it is conferred and the effect of

the exercise of that power.

(emphasis supplied)

74.In C B Gautam v. Union of India55, the question before a Constitution Bench

of this Court was whether a show cause notice must be issued to an intending

purchaser and seller of property before making a compulsory purchase under

Section 269-UD(1) of Chapter XX-C of the Income Tax Act, 1961. Chief

Justice M H Kania speaking for the Constitution Bench held that where the

validity of a provision would be open to serious challenge for want of an

opportunity of being heard, Courts have read such a requirement into the

provision. In C B Gautam (supra), this Court read the principles of natural

justice into the provisions of Chapter XX-C to save them from the vice of

arbitrariness. The Constitution Bench held:

54 (1970) 2 SCC 458

55 (1993) 1 SCC 78

30. […] Again, there is no express provision in Chapter XX-C

barring the giving of a show-cause notice or reasonable

opportunity to show cause nor is there anything in the language of

Chapter XX-C which could lead to such an implication. The

observance of principles of natural justice is the pragmatic

requirement of fair play in action. In our view, therefore, the

requirement of an opportunity to show cause being given before an

order for purchase by the Central Government is made by an

appropriate authority under Section 269-UD must be read into the

provisions of Chapter XX-C. There is nothing in the language of

Section 269-UD or any other provision in the said Chapter

which would negate such an opportunity being given.

Moreover, if such a requirement were not read into the

provisions of the said Chapter, they would be seriously open

to challenge on the ground of violations of the provisions of

Article 14 on the ground of non-compliance with principles of

natural justice. The provision that when an order for purchase is

made under Section 269-UD — reasons must be recorded in

writing is no substitute for a provision requiring a reasonable

opportunity of being heard before such an order is made.

(emphasis supplied)

75.In Sahara India (Firm), Lucknow v. Commissioner of Income Tax,

Central-I

56, a two-judge bench of this Court was called upon to decide

whether an opportunity of being heard has to be granted to an assesee

before any direction could be issued under section 142(2-A) of the Income

Tax Act, 1961 for special audit of the accounts of the assessee. This Court

held that since the exercise of power under section 142(2-A) of the Income

Tax Act leads to serious civil consequences for the assesee, the

requirement of observing the principles of natural justice is to be read into

the said provision.

76. In Kesar Enterprises Ltd v. State of Uttar Pradesh57, the Court dealt

with a challenge to the validity of Rule 633(7) of the Uttar Pradesh Excise

Manual which allowed the imposition of a penalty for breach of the

56 (2008) 14 SCC 151

57 (2011) 13 SCC 733

conditions of a bond without expressly issuing a show-cause notice. D K

Jain, J speaking on behalf of the two-judge bench held that a show-cause

notice should be issued and an opportunity of being heard should be

afforded before an order under Rule 633(7) is made. The Court held that

the rule would be open to challenge for being violative of Article 14 of the

Constitution unless the requirement of an opportunity to show cause is

read into it. The Court observed:

30. Having considered the issue, framed in para 16, on the

touchstone of the aforenoted legal principles in regard to the

applicability of the principles of natural justice, we are of the

opinion that keeping in view the nature, scope and

consequences of direction under sub-rule (7) of Rule 633 of

the Excise Manual, the principles of natural justice demand

that a show-cause notice should be issued and an opportunity

of hearing should be afforded to the person concerned before

an order under the said Rule is made, notwithstanding the fact

that the said Rule does not contain any express provision for

the affected party being given an opportunity of being heard.

[…]

32. In our view, therefore, if the requirement of an opportunity

to show cause is not read into the said Rule, an action

thereunder would be open to challenge as violative of Article

14 of the Constitution of India on the ground that the power

conferred on the competent authority under the provision is

arbitrary.

(emphasis supplied)

77.It has been elucidated in the preceding paragraphs that the classification of

a borrower’s account as fraud in accordance with the procedure laid down

in the Master Directions on Frauds entails significant civil consequences

for the borrower. Since the Master Directions on Frauds do not expressly

provide an opportunity of being heard to the borrower before classifying an

account as fraud, the rule of audi alteram partem has to be read into the

provisions of the said directions to save them from the vice of arbitrariness.

78.Before concluding, we also want to address the argument by the borrowers

that the requirement of passing a reasoned order must be read into the

Master Directions on Frauds. The borrowers also relied on Jah

Developers (supra) where it was held that a final decision of the Review

Committee declaring the borrower as a ‘wilful defaulter’ must be made by a

reasoned order. We agree with this contention of the borrowers because:

(i) a reasoned order allows an aggrieved party to demonstrate that the

reasons which persuaded the authority to pass an adverse order against

the interests of the aggrieved party are extraneous or perverse; and (ii) the

obligation to record reasons acts as a check on the arbitrary exercise of

the powers.

58 The reasons to be recorded need not be placed on the same

pedestal as a judgment of a court. The reasons may be brief but they must

comport with fairness by indicating a due application of mind

79.In light of the legal position noted above, we hold that the rule of audi

alteram partem ought to be read in Clauses 8.9.4 and 8.9.5 of the Master

Directions on Fraud. Consistent with the principles of natural justice, the

lender banks should provide an opportunity to a borrower by furnishing a

copy of the audit reports and allow the borrower a reasonable opportunity

to submit a representation before classifying the account as fraud. A

reasoned order has to be issued on the objections addressed by the

borrower. On perusal of the facts, it is indubitable that the lender banks did

58 Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496

not provide an opportunity of hearing to the borrowers before classifying

their accounts as fraud. Therefore, the impugned decision to classify the

borrower account as fraud is vitiated by the failure to observe the rule of

audi alteram partem. In the present batch of appeals, this Court passed an

ad-interim order restraining the lender banks from taking any precipitate

action against the borrowers for the time being. In pursuance of our

aforesaid reasoning, we hold that the decision by the lender banks to

classify the borrower accounts as fraud, is violative of the principles of

natural justice. The banks would be at liberty to take fresh steps in

accordance with this decision.

80.Lastly, the borrowers have argued that the Master Directions on Frauds

suffer from manifest arbitrariness because they stipulate an opportunity of

a hearing to third parties, while denying the same to borrowers, who face

significant civil consequences. Clause 8.12.5 of the Master Directions on

Frauds provides that banks have to satisfy themselves of the involvement

of third parties and provide them with an opportunity of being heard before

reporting them to Indian Banks’ Association. We are unable to accept this

argument of the borrowers in light of the fact that the borrowers and the

third parties stand on a different footing because: (i) the borrowers are the

main perpetrators of fraud, while the third parties are merely facilitators;

and (ii) it is the borrowers who face the significant civil consequences

stipulated under clauses 8.12.1 and 8.12.2, while the third party service

providers are merely referred to the Indian Banks’ Association which

maintains a caution list of such service providers. However, this view does

not affect our conclusions in view of the discussion in the preceding

paragraphs.

E. Conclusion

81.The conclusions are summarized below:

i. No opportunity of being heard is required before an FIR is lodged

and registered;

ii. Classification of an account as fraud not only results in reporting

the crime to investigating agencies, but also has other penal and

civil consequences against the borrowers;

iii. Debarring the borrowers from accessing institutional finance under

Clause 8.12.1 of the Master Directions on Frauds results in

serious civil consequences for the borrower;

iv. Such a debarment under Clause 8.12.1 of the Master Directions

on Frauds is akin to blacklisting the borrowers for being

untrustworthy and unworthy of credit by banks. This Court has

consistently held that an opportunity of hearing ought to be

provided before a person is blacklisted;

v. The application of audi alteram partem cannot be impliedly

excluded under the Master Directions on Frauds. In view of the

time frame contemplated under the Master Directions on Frauds

as well as the nature of the procedure adopted, it is reasonably

practicable for the lender banks to provide an opportunity of a

hearing to the borrowers before classifying their account as fraud;

vi. The principles of natural justice demand that the borrowers must

be served a notice, given an opportunity to explain the conclusions

of the forensic audit report, and be allowed to represent by the

banks/ JLF before their account is classified as fraud under the

Master Directions on Frauds. In addition, the decision classifying

the borrower’s account as fraudulent must be made by a reasoned

order; and

vii. Since the Master Directions on Frauds do not expressly provide an

opportunity of hearing to the borrowers before classifying their

account as fraud, audi alteram partem has to be read into the

provisions of the directions to save them from the vice of

arbitrariness.

82.In the result, the judgment of the Division Bench of the High Court of

Telangana dated 10 December 2020 is upheld. The judgments of the High

Court of Telangana dated 22 December 2021 and 31 December 2021, and

of the High Court of Gujarat dated 23 December 2021 are accordingly set

aside. The Civil Appeals are disposed of. Writ Petition (C) No. 138 of 2022

is also disposed of in above terms. There shall be no order as to costs.

83.Pending application(s), if any, shall stand disposed of.

…………………………………………CJI

[Dr Dhananjaya Y Chandrachud]

….…………………………………………J

[Hima Kohli]

New Delhi;

March 27, 2023

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