Supreme Court: Dealing with the existing ambiguity as to the acceptability of definition of “non-performing assets” in SARFAESI Act, 2002, a bench of Chelameswar and S.A. Bobde JJ. clarified that looking at the modern scenario where the NPA can be classified depending upon the nature of credit facilities extended by various creditors to different category of borrowers and on different terms and conditions, the definition of the “non-performing assets” as amended in 2004 is held constitutionally valid.
In the instant case, the Court dealt with an ambiguous situation where in Mardia Chemicals Ltd. v. UOI (2004) 4 SCC 311, the Court held the amended definition of “NPA” as constitutionally valid, as the guidelines laid down by the RBI for classifying the account of the borrower as NPA would eliminate the possibility of the Secured Creditor arbitrarily declaring the account of the borrower as NPA, whereas the Gujarat High Court, by a common judgment dated 24.4.2014 held that the amended Section 2(1)(o) of the Act is unconstitutional.
The Court observed that prior to the amendment, only RBI has the authority to classify an account of the borrower as NPA as per the directions and guidelines issued by it, however after the amendment, the expression “NPA” created two classes of borrowers – one class of borrowers are governed by the guidelines issued by RBI, and the other class of borrowers are governed by the guidelines issued by the authority/body/regulator of the creditor.
Learned Counsel appearing for the borrowers contended that amended Section 2(1)(o) is unconstitutional as it provides possibility for the creditors to arbitrarily or whimsically classify the account of any borrower as a NPA, which is violative of Article 14 of the Constitution and is excessive delegation of power. The Court agreed with the contention of the learned Counsel for the UOI, RBI and various creditors that the assessment of an account of borrower as NPA depends upon innumerable factors which constantly keeps changing, therefore the assessment be made in the light of guidelines made by either the RBI or various other regulators regulating the activities of various creditors. The Court noted that “the submission that the amended definition of the expression ”NPA” is bad on account of excessive delegation of legislative function, is untenable and is required to be rejected”, and “the amendment was necessary to cover the deficiencies noticed in the Act”. Accordingly, the Court upheld the Constitutionality of the amended definition of the expression “non-performing assets” under Section 2(1)(o) of the Act, and dismissed all the writ petitions either filed before this Court or filed before the Madras High Court and Gujarat High Court and the appeals of the borrowers. Keshavlal Khemchand and Sons Pvt. Ltd. v. UOI, 2015 SCC OnLine SC 68, decided on 28-01-2015.
