Full Judgment Text
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CASE NO.:
Appeal (civil) 1389 of 2007
PETITIONER:
M/S DURGA HOTEL COMPLEX
RESPONDENT:
RESERVE BANK OF INDIA & ORS
DATE OF JUDGMENT: 15/03/2007
BENCH:
H.K. SEMA & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 10075-10076 of 2005)
P.K. BALASUBRAMANYAN, J.
Leave granted.
1. The appellant, a partnership firm, sought a loan
from the third respondent \026 Bank for putting up a hotel. In
April 1997, a loan of Rs. 15 lakhs was sanctioned by the
Bank. The Bank disbursed a sum of Rs. 11,58,750/-. The
appellant sought an additional advance. The proposal in that
behalf was not accepted by the Bank. The Bank recalled the
loan after crediting Rs. 3,41,250/- out of the original loan
sanctioned.
2. The appellant made a complaint before the Banking
Ombudsman for the State of Bihar at Patna under clause 16 of
the Banking Ombudsman Scheme, 1995. Clause 16 enabled
any person, who had a grievance against the Bank, to make a
complaint in writing to the Banking Ombudsman. The
complaint had to be in writing and it had to be accompanied
by supporting documents, if any, relied on by the
complainant. It had also to set out the nature and extent of
the loss caused to the complainant and the relief sought from
the Banking Ombudsman and a statement about the
compliance of the conditions referred to in that clause. The
appellant made the complaint about what it called the
unauthorised or fraudulent withdrawal from the account of
the appellant and the non credit of proceeds to the account of
the appellant. It was contended that the crediting of Rs.
3,41,250/- or withdrawal thereof from the account of the
appellant was unauthorised, and that the appellant had
suffered considerable loss because of the delay on the part of
the respondent \026 Bank in advancing the loan and in not
permitting the higher credit facility recommended in the
Technical Cell Report binding on the Bank. By way of relief it
was claimed that the Bank should further credit the remaining
sanctioned loan to the account of the appellant. The total
interest for the period should be exempted and there should
be a direction to pay towards loss of the appellant a sum of Rs.
16.9 lakhs. The respondent \026 Bank opposed the complaint.
The respondent \026 Bank questioned the jurisdiction of the
Banking Ombudsman to entertain such a complaint. It
contended that the jurisdiction of the Banking Ombudsman
was confined to certain matters specified in that behalf and
the claims of the appellant were not within the purview of the
Banking Ombudsman.
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3. On 1.11.2000, the respondent \026 Bank approached
the Debts Recovery Tribunal constituted under the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 (for
short, "the Recovery of Debts Act") for recovery of amounts
alleged to be due from the appellant. The complaint of the
Bank was numbered as O.A. No. 157 of 2000 and was being
dealt with by the Tribunal.
4. Before the Banking Ombudsman, the Bank, inter
alia, contended that the complaint of the appellant before him
had ceased to be maintainable in view of the pendency of the
proceedings before the Debts Recovery Tribunal and that, even
otherwise, the claims raised by the appellant did not come
within the purview of the Banking Ombudsman under the
Banking Ombudsman Scheme, 1995. It was contended that
the jurisdiction of the Banking Ombudsman was a limited one
and the claims of the appellant were not those that could be
entertained by him. The Banking Ombudsman brushed aside
these contentions. He found that his jurisdiction was invoked
by the appellant before the respondent \026 Bank approached the
Debts Recovery Tribunal with its claim and hence he was not
precluded from adjudicating on the complaint of the appellant
before him. He also brushed aside the objection of the
respondent regarding his jurisdiction to entertain the
complaint made by the appellant. The Banking Ombudsman
is seen to have made some suggestions or recommendations to
settle the dispute between the parties. They were not
acceptable to the Bank. The Banking Ombudsman thereupon
proceeded to pass an award directing disbursal of the sum of
Rs. 3,41,250/- to the complainant and directing the Bank to
make further advances in terms of the recommendations of
the concerned Cell of the State Bank of India maintaining
financing ratio of 75:25 between the Bank and the
complainant. The Banking Ombudsman further directed that
the period of repayment should be fixed as seven years
exclusive of one year of moratorium and in view of non-
disbursement of the loan, the period of moratorium had to be
enhanced according to the Rules and the interest be charged
strictly in accordance with the guidelines of the Reserve Bank
of India. This award was passed on 30.3.2002.
5. The respondent \026 Bank sought the permission of the
Reserve Bank of India to challenge the award passed by the
Banking Ombudsman in a court of law. Meanwhile, the
appellant found that the respondent \026 Bank was not
complying with the directions in the award of the Banking
Ombudsman. The appellant therefore filed C.W.J.C. No.
10756 of 2002 before the High Court of Patna under Article
226 of the Constitution of India praying for the issue of a writ
of mandamus directing the respondent \026 Bank to implement
the award of the Banking Ombudsman. The respondent \026
Bank, in its turn, filed C.W.J.C. 1882 of 2003 challenging the
award of the Banking Ombudsman essentially on the ground
that it was one without jurisdiction, both on the basis that the
matter was pending before the Debts Recovery Tribunal when
he rendered his award and on the further ground that the
subject matter of adjudication by him in the present case was
beyond his ken under the Banking Ombudsman Scheme,
1995. The learned single judge of the High Court upheld the
contentions of the respondent \026 Bank and held that on the
claim being filed by the respondent \026 Bank before the Debts
Recovery Tribunal as O.A. No. 157 of 2000, the jurisdiction of
the Banking Ombudsman to deal with the complaint of the
appellant had come to an end and on the further ground that
the Banking Ombudsman had exceeded his jurisdiction in
rendering the award since the disputes raised were beyond his
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purview. As a consequence, the learned single judge allowed
the Writ Petition filed by the respondent \026 Bank and quashed
the award passed by the Banking Ombudsman leaving the
appellant to raise all his claims before the Debts Recovery
Tribunal, by way of a counter-claim. Resultantly, the High
Court also dismissed the Writ Petition of the appellant seeking
enforcement of the award of the Banking Ombudsman. Being
aggrieved by the decision of the learned single judge, the
appellant filed two Letters Patent Appeals in the High Court as
L.P.A. Nos. 309 and 313 of 2004. The Division Bench of the
High Court agreed with the conclusions of the learned single
judge and dismissed the appeals filed by the appellant.
Feeling aggrieved thereby, the appellant filed these Petitions
for Special Leave to Appeal before this Court. On 10.5.2005,
this Court while not entertaining the Petition of the appellant
on the merits of its claim, issued notice confined to the
questions of law arising in the case, clarifying at the same time
that the proceedings before the Debts Recovery Tribunal could
proceed. Thus, what is involved in this appeal is only the
question of the jurisdiction of the Banking Ombudsman and
not the merits of the claims of the appellant in the case on
hand. Learned counsel also argued the appeal before us
consistent with the notice issued by this Court earlier.
6. Therefore, the two questions that arise are, whether
the subsequent filing of the claim by the Bank before the
Debts Recovery Tribunal would oust the jurisdiction of the
Banking Ombudsman in a complaint earlier instituted before
him and whether the claims put forward before the Banking
Ombudsman in its complaint by the appellant fell within the
jurisdiction of the Ombudsman under the Scheme and
consequently whether the directions issued by him were
within his province under the Scheme.
7. Before we proceed to deal with the arguments, we
will notice the relevant provisions. Under Section 35A of the
Banking Regulation Act, 1949, the Reserve Bank of India has
the power to issue directions to banking companies generally
or to any banking company in particular, as it deems fit, and
the banking companies shall be bound to comply with such
directions. The Reserve Bank of India could, on its own
motion or on representation made to it also modify or cancel
any direction it had earlier issued. In consonance with this
power, on 14.6.1995, the Reserve Bank of India notified the
Banking Ombudsman Scheme, 1995. We think it profitable to
extract the relevant Notification herein:
" NOTIFICATION
Ref. RCPC No. 1070/BOS-94-95
14th June, 1995
In exercise of the powers conferred by Section
35A of the Banking Regulation Act, 1949 (10 of
1949), Reserve Bank being satisfied that it is
necessary in public interest and in the interest
of banking policy to provide for a system of
Banking Ombudsman for redressal of
grievances against deficiency in banking
services, concerning loans and advances and
other specified matters hereby directs that all
commercial banks should comply with the
Banking Ombudsman Scheme, 1995 annexed
hereto.
Sd/-
(R.V. Gupta)
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Deputy Governor"
By a notification dated 15.6.1995, the Scheme was also
extended to Scheduled Primary Cooperative Banks.
Admittedly, the Scheme so notified, was in force at the
relevant time. As per clause 2, the object of the Scheme was
to enable resolution of complaints relating to provision of
banking services and to facilitate the satisfaction, or
settlement of such complaints. Under clause 4 of Chapter II,
the Reserve Bank of India could appoint a Banking
Ombudsman to carry out the functions entrusted to him by or
under the Scheme. The Banking Ombudsman was to hold
office during the pleasure of the Governor of the Reserve Bank
of India. Chapter III dealt with the jurisdiction, powers and
duties of the Banking Ombudsman. Clause 12 provided that
the Banking Ombudsman had the power and duty to receive
complaints relating to the provision of banking services and to
consider such complaints and facilitate their satisfaction, or
settlement by agreement, by making a recommendation, or
Award in accordance with the Scheme. Clause 13 specified
that as regards banking services, the authority of the Banking
Ombudsman would include all complaints concerning
deficiency in service such as, non-payment/inordinate delay in
the payment or collection of cheques, drafts/bills etc. The
other deficiencies that could be looked into on a complaint are
enumerated in clauses (ii) to (ix) to sub-clause (a) of Clause 13.
We are not concerned with them in the present case. Since we
are concerned with a complaint regarding loan and advances,
we may extract the Clause with particular reference to clause
13(b), which has relevance thereto:
"13. SPECIFIC AMBIT OF AUTHORITY
As regards banking services, the Banking
Ombudsman’s authority will include:-
(a) \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005
(b) Complaints concerning loans and
advances only insofar as they relate
to:-
i) non-observance of Reserve
Bank Directives on interest
rates,
ii) delays in sanction/non-
observance of prescribed time
schedule for disposal of loan
applications, and
iii) non-observance of any other
directions or instructions of
the Reserve Bank, as may be
specified for this purpose, from
time to time."
Under clause 14, the Banking Ombudsman had general
superintendence and control over his office and he had power
to incur expenditure on behalf of his office. Chapter IV dealt
with the procedure for redressal of grievance. Clause 16
provided for making a complaint. Since what is involved is an
interpretation of the scope of the power of the Ombudsman on
a complaint, we think it proper to extract Clause 16
hereunder:
"16. COMPLAINT
(1) Any person who has a grievance
against a bank, may himself or
through an authorised
representative make a complaint in
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writing to the Banking Ombudsman
within whose jurisdiction the
branch or office of the bank
complained against is located.
(2) The complaint shall be in writing
duly signed by the complainant or
his authorised representative and
shall state clearly the name and
address of the complainant, the
name and address of the branch or
officer of the bank against which the
complaint is made, the facts giving
rise to the complaint supported by
documents, if any, relied on by the
complainant, the nature and extent
of the loss caused to the
complainant and the relief sought
from the Banking Ombudsman and
a statement about the compliance of
the conditions referred to in sub-
clause (3) of this clause.
(3) No complaint to the Banking
Ombudsman shall lie unless,-
(a) The complainant had before
making a complaint to the
Banking Ombudsman made a
written representation to the
bank named in the complaint
and either the bank had
rejected the complaint or the
complainant had not received
any reply within a period of
two months after the bank
concerned received his
representation or the
complainant is not satisfied
with the reply given to him by
the bank;
(b) The complaint is made not
later than one year after the
bank had rejected the
representation or sent its final
reply on the representation of
the complainant;
(c) The complaint is not in respect
of the same subject matter
which was settled through the
office of the Banking
Ombudsman in any previous
proceedings whether received
from the same complainant or
any one or more of the parties
concerned with the subject
matter;
(d) The complaint is not the same
subject matter, for which any
proceedings before any Court,
Tribunal or Arbitrator or any
other forum is pending or a
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decree or Award or order of
dismissal has already been
passed by any such Court,
Tribunal, Arbitrator or forum;
(e) The complaint is not frivolous
or vexatious in nature."
8. As regards the first aspect as to whether the
Banking Ombudsman had lost his jurisdiction in view of the
approach made by the respondent \026 Bank to the Debts
Recovery Tribunal, what is relevant is clause 16(3)(d) quoted
above and as regards the question whether the Banking
Ombudsman had jurisdiction to entertain the claims made by
the appellant, what is involved is the understanding of the
scope of clause 13(b), quoted above.
9. It is clear that when the appellant invoked the
jurisdiction of the Banking Ombudsman, the respondent \026
Bank had not approached the Debts Recovery Tribunal with
its application for recovery of the amounts due under the loan
transaction. Therefore, this was a case where on the day the
complaint was filed, no proceeding before any Tribunal on the
subject matter was pending or in which a final order had been
passed or decision rendered. At the stage of initiation, there
was no impediment in the way of the Ombudsman in
entertaining the complaint or in proceeding with it. The
impediment, if any, was caused by the Bank’s subsequent
filing of O.A. No. 157 of 2000 before the Debts Recovery
Tribunal. The High Court has taken the view that since by the
time the Ombudsman rendered his award, the Bank had
already approached the Debts Recovery Tribunal with its claim
under the Recovery of Debts Act, the Banking Ombudsman
did not have jurisdiction to render the award, or has lost his
jurisdiction to render the award. Clause 16 of the Scheme in
sub-clause (1) speaks of a person making a complaint in
writing to the Banking Ombudsman. Clause (3) read in
conjunction with sub-clause (d) indicates that no complaint to
the Banking Ombudsman shall lie if on the subject matter
that is put forward before the Ombudsman, there is a
proceeding pending before a Court, Arbitrator, Tribunal or
forum or a decree or final adjudication had earlier been made
by any one of them. This would suggest that the bar is
attracted only when on the date of the filing of the complaint
before the Ombudsman, a claim on the subject matter is
pending before, say, the Debts Recovery Tribunal. Here
admittedly, on the day the jurisdiction of the Banking
Ombudsman was invoked, no such claim was pending before
any Court, Arbitrator, the Debts Recovery Tribunal or any
other forum. To that extent, prima facie, there is merit in the
contention that Clause 16(3) may not be attracted to the case
on hand.
10. Clause 16(3) of the Scheme says, "No complaint to
the Banking Ombudsman shall lie". According to Black’s Law
Dictionary "lie" means, "to have foundation in the law; to be
legally supportable, sustainable or proper". In the context of
the power conferred on the Ombudsman by the Scheme read
in the light of Section 35A of the Banking Regulation Act, it
would be appropriate to understand the expression as having
a foundation in law in the sense that the claim must have a
foundation in law. A Banking Ombudsman, though might
have initially jurisdiction to entertain a complaint on the basis
that it has a legal foundation, here in terms of the Scheme, he
may be divested of that jurisdiction or the foundation in law
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might be lost on either of the parties approaching the Court,
the Arbitrator or the Debts Recovery Tribunal in respect of the
same subject matter. Dealing with the expression ’entertain’
this Court held in LAKSHMI RATTAN ENGINEERING
WORKS LTD. VS. ASSTT. COMMR. SALES TAXN KANPUR &
ANR. [(1968) 1 S.C.R. 505] that it means to deal with or admit
to consideration. The Court approved the views expressed by
some of the High Courts that the word ’entertain’ meant not
’receive’ or ’accept’ but ’proceed to consider on merits’ or
adjudicate upon. The Court also accepted the Dictionary
meaning of the word as ’admit to consider’. This was also the
view that was subsequently taken by this Court in
Hindustan Commercial Bank Ltd. Vs. Punnu Sahu (Dead)
Through Legal Representatives [(1971) 3 S.C.C. 124]. It was
held therein that the expression "entertain" in Order XXI Rule
90 of the Code meant, to ’adjudicate upon’ or to ’proceed to
consider on merits’ and not ’initiation of proceeding’ alone.
Drawing an analogy, it is possible to say that the complaint
must continue to have a foundation in law at the time the
Ombudsman takes up the claim for his consideration and
renders his decision or award. The foundation would be lost
when a Court, Arbitrator, Tribunal or any other competent
forum is moved on the same subject matter. When the subject
matter of the complaint is taken to any other competent
forum, the complaint loses its foundation in law. In other
words, the subject matter of the complaint should not be
pending in any other Tribunal, or Court or before an Arbitrator
not merely when it is filed but also when it is taken up for
consideration and disposal.
11. There is a more fundamental aspect. The
Ombudsman, at best, is an Authority or Tribunal of limited
jurisdiction constituted under the Scheme. It is a jurisdiction
conferred by the Scheme. The exercise of jurisdiction or power
by the Ombudsman would depend on his having jurisdiction
not only to entertain a claim but also to bring it to an end.
The continued exercise of power by him would depend on his
continuing to have jurisdiction. Once he is deprived of his
jurisdiction or gets deprived of his jurisdiction over the subject
matter, he could no more proceed with a complaint which was
earlier filed. In other words, to render an Award valid in terms
of the Scheme, the Ombudsman must continue to retain
jurisdiction over the subject matter of the concerned
complaint. A complaint goes out of his purview when the
subject matter of it is taken to a Court, Arbitrator, Tribunal or
forum. The relief that can be granted by the Ombudsman are
limited and confined to the matters coming within clause 13 of
the Scheme. The intention behind incorporating clause
16(3)(d) appears to be to ensure that the relief an Ombudsman
may give, may not conflict with a more comprehensive
adjudication by a Court, Arbitrator, Tribunal or forum with
wider powers. When there is conferment of a power on an
authority or Tribunal with limited jurisdiction, that conferred
power must continue to exist, when the decision is rendered
by that authority or Tribunal. Once the conferred authority or
power is taken away or impeded, the Authority or Tribunal can
no more exercise it. This will be the position when one of the
parties in a complaint before the Ombudsman takes the
subject matter to a Court, Arbitrator, Tribunal or forum. In
other words, when ultimately he is about to pronounce his
Award, the Ombudsman finds that the subject matter of the
dispute has been taken to the Debts Recovery Tribunal or a
Civil Court or an Arbitrator or to any other competent forum,
he gets divested of his jurisdiction, on a harmonious reading of
clause 16(1) with clause 16(3)(d) of the Scheme. It is not, as if,
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a bar of jurisdiction can occur only at the stage of initially
entertaining a claim. It could also occur at a subsequent stage
either in view of the jurisdiction being taken away or in view of
any other impediment created by the very Legislation, Rule or
Scheme that conferred the initial jurisdiction. Thus, having
lost his jurisdiction over the complaint in view of clause
16(3)(d) of the Scheme, the Ombudsman will have to decline
jurisdiction to pass any order or award on the complaint.
This, we think would be the proper way of understanding the
bar created by clause 16(3)(d) of the Scheme.
12. Conceptually, an Ombudsman is only a non-
adversarial adjudicator of disputes. An Ombudsman by
definition is only an official appointed to receive, investigate,
and report on private citizen’s complaints about the
government; a similar appointee in a non-governmental
organisation (such as a company or university). (See Black’s
Law Dictionary). He serves as an alternative to the adversary
system for resolving disputes, especially between citizens and
government agencies. He is an independent and non-partisan
officer who deals with specific complaints from the public
against the administrative injustice and mal-administration.
(See 4 American Jurisprudence 2d). Therefore, by its very
nature, an Ombudsman is an alternative to an adversary
system for resolution of disputes. When the subject matter of
a complaint before the Ombudsman under the Scheme is
taken to a Court, Tribunal, Arbitrator or other competent
forum, the subject matter is takwn away from the purview of
the Ombudsman to an adjudicatory forum under an
adversarial system. It is therefore logical to understand clause
16 of the Scheme with particular reference to sub-clause 3(d)
thereof, that on one of the parties approaching an adjudicatory
forum on an adversarial system, the non-adversarial
adjudicator, the Ombudsman must lose his power or authority
to bring about a resolution of the complaint by way of a non
adversarial adjudication. An Ombudsman is not defined in
the Banking Regulation Act, 1949 or in the Banking
Ombudsman Scheme 1995 constituting him as adversarial
adjudicator. Clause 12 of the Scheme constitutes him a
facilitator to bring about a satisfaction of the complaint, in one
of the modes referred to therein. An adversarial adjudication
necessarily stands on a higher plane than a settlement of a
complaint at the instance of an Ombudsman. When such a
forum for adversarial adjudication of disputes takes seisin of
the subject matter of a complaint, it will be logical to
postulate, on an interpretation of clause 16 of the Scheme,
that the Ombudsman loses his jurisdiction over the subject
matter of the complaint and consequently the complaint itself.
13. Thus we are of the view that the High Court was
justified in interfering with the Award of the Banking
Ombudsman on the ground that he could not have passed the
Award in view of the divestiture of his jurisdiction.
14. After all, a complainant before the Ombudsman like
the appellant will not be prejudiced by this interpretation. It
has now been clarified in United Bank of India, Calcutta Vs.
Abhijit Tea Co. Pvt. Ltd. & ors. [(2000) Supp 3 S.C.R 153]
that the expression ’counter-claim’ in sub-Sections (8) to (11)
of Section 19 of the Recovery of Debts Act will take in even a
claim for damages based on the same transaction and would
include even an independent claim the respondent before the
Debts Recovery Tribunal may have against the claimant \026
Financial Institution. It has thus been held that a counter-
claim in a wide sense will lie before the Debts Recovery
Tribunal and the respondent will be entitled to raise a
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comprehensive counter-claim. This ratio has also been
accepted subsequently in State Bank of India Vs. Ranjan
Chemicals Ltd. & Anr. [(2007) 1 S.C.C. 97]. It is therefore
obvious that the appellant can make all his claims before the
Debts Recovery Tribunal while defending the claim of the
Bank, including the ones he has put forward before the
Banking Ombudsman.
15. Then the question is whether the subject matter of
the complaint came within the purview of the Banking
Ombudsman. Clause 13(b) of the Scheme indicates the
jurisdiction of the Ombudsman. Clause (b) provides that he
could entertain complaints concerning loans and advances
only insofar as they relate to non-observance of the directives
of the Reserve Bank of India on interest rates, delays in
sanction/non-observance of prescribed time schedule for
disposal of loan applications and non-observance of any other
directions or instructions of the Reserve Bank of India, as may
be specified for the purpose of the Scheme from time to time.
It is seen, as found by the High Court, that there was no claim
that the respondent \026 Bank was guilty of non-observance of
any directive of the Reserve Bank of India on interest rates.
There is also no case that any other direction or instruction of
the Reserve Bank of India made for the purpose of the Scheme
had not been observed by the respondent \026 Bank. At best, the
appellant can claim that it was complaining of delay in
sanction/non-observance of prescribed time schedule for
disposal of its loan application for additional finance. Even
here, the case of the respondent \026 Bank is that there was no
time schedule prescribed for enhancing the limit of the loan or
for granting additional loan to a hotel industry like the one for
which the appellant was claiming a loan from the Bank and
hence there was no question of any of the complaints of the
appellant coming within the purview of the Banking
Ombudsman. A reading of the Award of the Banking
Ombudsman shows that the directions issued by him
regarding the advancing of the balance amount of
Rs.3,41,250/- out of the original loan of Rs. 15 lakhs
sanctioned, his direction to the Bank to make available
additional finances merely on the basis of the recommendation
of the Committee in that behalf and his directing the
maintaining the financing ratio of 75:25 and his fixing a
repayment schedule as seven years exclusive of one year of
moratorium and the enhancement of the period of moratorium
consequent on non-disbursement of the loan amount by the
respondent \026 Bank, are all outside Clause 13(b) of the Scheme
and consequently outside the jurisdiction of the Banking
Ombudsman. The Banking Ombudsman has no authority to
compel the Bank to make further advances which as a
prudent banker it might not find feasible. Nor can the
Banking Ombudsman interfere with the agreement regarding
the repayment schedule fixed by the parties or the financing
ratio that may be maintained between the Bank and the
borrower. Nor can the Ombudsman direct the increase of the
period of moratorium or fix a schedule of repayment of the
loan. As we have indicated, there is no case that any of the
directives of the Reserve Bank of India in respect of any of
these matters had been violated by the respondent \026 Bank.
The High Court, in our view, was correct in finding that the
Banking Ombudsman had exceeded his jurisdiction in passing
the Award that he has passed. None of the directions come
within the purview of Clause 13(b) of the Scheme. The
jurisdiction of the Banking Ombudsman under the Scheme is
cribbed, confined and cabined by clause 13 of the Scheme.
Therefore, in any event, the directions issued by the Banking
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Ombudsman are outside his jurisdiction. In this context, we
do not think it necessary to consider whether there can be a
specific performance of an agreement to lend or the issuance
of a direction to lend more money than the Bank was willing to
lend considering the creditworthiness of the borrower and his
prior conduct in respect of the repayment of the loan which
the Bank had already granted.
16. We thus find that the High Court was justified in
interfering with the award of the Banking Ombudsman. We
therefore answer both the questions raised on behalf of the
appellant against the appellant and in favour of the
respondent \026 Bank. The questions of law thus stand
answered.
17. We dismiss the appeal.