TMI Blog2021 (1) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... ught for by the petitioner in the PCR is for the RBI to take action against the Respondents 2 to 7 on the basis of the allegation that the Respondents 2 to 7 have violated Section 45-IA of the RBI Act, the RBI having already considered the said request and passed an order according to RBI dated 05.09.2017, the reliefs sought for in the PCR cannot be granted, as such the question of issuance of a certiorari to quash the order dismissing the PCR, restoring the PCR and issuing directions to the RBI to consider the alleged offence would also not arise. The RBI having contended that the letter dated 05.09.2017 is an order, the Petitioner would be at liberty to challenge the same in accordance with law. The present writ petition is not maintainable in view of the orders passed by the Hon ble Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court as also the order passed by the RBI dated 05.09.2017. Whether the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would amount to rejudicata? - HELD THAT:- The order of the Delhi High Court was only a direction to the RBI to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the competent Court as per law; c) Issue such other writs, pass such other orders and grant such other reliefs as deemed fit in the circumstances of the case in the interest of justice and equity. 2. FACTS: 2.1. The petitioner claims to be a not for profit company registered under Section 8 of the Companies Act 2013 ( Act of 2013 for short) with the object of working in the areas of governance and in transparency. 2.2. It is contended that the petition arises in respect of the order dated 28.07.2020 passed by the 41st ACMM, Bangalore dismissing the private complaint No.7111/2020 filed by the petitioner seeking directions under Section 156(3) of the Cr.P.C. to the respondent No.1- Reserve Bank of India (RBI) to register the information of alleged cognizable offences committed under the Reserve Bank of India Act ( RBI Act) by respondent No.2 to 7 herein. It is further contended that dehors the private complaint, the respondent No.1 is bound to be directed by a writ of mandamus by this Court to prosecute the offences against respondents No.2 to 7 in respect of the allegations set out in the petition. 2.3. It is alleged that the RBI Act was amended with effect fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent for hearing the said preliminary issues, the same are taken up. 5. Sri. S Ganesh, learned Senior counsel instructed by Sri.Sandeep Huligol appearing for respondents No.2 to 7 submitted that: 5.1. The above writ petition is not tenable, that the issue raised in the private complaint has already been decided by the Delhi High Court in W.P.No.4905/2017. 5.2. The petitioner having filed PIL before this Court and having withdrawn the same unconditionally without reserving any liberty the present writ petition is not maintainable and as such, the writ petition is to be dismissed. 5.3. In support of the above contentions Sri. S. Ganesh, learned Senior counsel would submit that the petitioner had filed Writ Petition before the Hon ble Delhi High Court in W.P.(C) No.4905/2017 wherein the petitioner has sought for a mandamus directing the Union of India, Department of Financial Services, Ministry of Corporate Affairs, as also RBI who have been arraigned as respondents No.1, 2 and 3 respectively to take action as required under law in respect of the complaints dated 1.11.2016, 14.3.2017 and 28.4.2017 filed by the petitioner and intimate the result thereof to the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and as such by such instruction legitimised the existing NBFC business being carried on in violation of law without registration. The Petitioner states that the 3rd Respondent is merely bound to implement the law and has no right under the law to waive the same or relax the same and as such the instruction to the said companies to continue NBFC business without making fresh investments is a gross illegality effected evidently to favour the said companies. True copies of the Directors and Audit Reports of the 3 companies for 2014-15 seting out the direction of 3rd Respondent is annexed herewith and marked as Annexure-P17. 5.5. He therefore submitted that the relief which had been sought for in the proceedings in PCR being identical to that sought for in the writ petition before the Hon'ble Delhi High Court, the PCR itself was not maintainable, therefore, the question of the present Writ Petition being maintainable would not at all arise. 5.6. The Hon ble Delhi High Court by way of its order dated 29.5.2017 had disposed the writ petition with a direction to respondents No.1 and 2 therein to examine the complaints made by the petitioner and to pass orders on the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the matter sought for withdrawal of the same during the proceedings on 1.10.2020 and as such, the petition was disposed of as unconditionally withdrawn. 5.9. Relying upon the same Sri. S Ganesh, learned Senior counsel would submit that once the proceeding had been filed making allegations before this Court as a PIL or otherwise and the same had been withdrawn, the filing of the present writ petition is barred by relying on the decision of the Apex Court in Sarguja Transport Service v- State Transport Appellate Tribunal and others [1987(1) SCC 5] more particularly para 9 thereof which is reproduced hereunder for easy reference. 9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administra- tion of justice to cases of withdrawal of writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Delhi High Court has an effect of resjudicata, the petitioner cannot once again reagitate the same except by way of an appeal. 6.3. On these grounds he submitted that the above writ petition is to be dismissed. 7. Sri.R.Subraminian, learned counsel for the petitioner submitted that: 7.1. the proceedings which had been filed before the Hon ble Delhi High Court were different from that which had been filed before the Magistrate by way of above PCR No.7111/2020. 7.2. Before the Hon ble Delhi High Court, the relief which had been sought for was for a mandamus to decide on the representations given by the petitioner, whereas the proceedings in PCR had been filed to register a complaint against respondents No.2 to 7. 7.3. The Hon ble Delhi High Court by way of its order dated 29.5.2017 had directed respondents No.1 and 2 therein i.e. Union of India to examine the aforesaid complaints and pass orders. 7.4. The letter dated 5.9.2017 of RBI cannot be said to be an order passed by the RBI inasmuch as there is no judicial or quasi judicial proceedings which took place. The said letter has been issued on the basis of the documents available, no hearing was conducted and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed in July 2020 and the PIL was withdrawn on 1.10.2020, the present writ petition having been filed on 12.10.2020, the principles of Sarguja would apply, the subject matter of the PIL and the PCR being one and the same. 8.2. In this regard he relies upon para 14 of the decision in Vimlesh Kumari Kulshrestha vSambhajirao and Another [(2008)5 SCC 58] which is reproduced hereunder for easy reference: 14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. Respondent, therefore was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned Trial Court. Respondent even accepted the costs as directed by the Court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the Order passed by the Court. It is trite that even a presumption of implied grant can be drawn. 9. Sri.R.Subramanian contending that the said decision in Vimalesh Kumari's case had not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt which was taken up first whereunder there have been allegations made as regards respondents No.2 to 7 having violated the provisions of 45IA of the RBI Act and requiring for action to be taken by the RBI. Though the action is stated to be to consider the representations made by the petitioner vide its complaints dt. 1.11.2016, 14.3.2017 and 28.4.2017, it is seen on a reading of the said complaints that essentially the action which is to be taken by the RBI is as regards the alleged violation by respondents No.2 to 7 of Section 45 IA punishable under Section 58B(4C) of the RBI Act. 12.2. Juxtaposing the same to what was sought for in the PIL before this Court, it is seen that there was a multi disciplinary enquiry Committee which was requested to be formed for the purpose of investigating into various allegations including that made under para 26- A of the said PIL which has been reproduced hereinabove. Essentially the allegations made therein is also of conducting business as nonbanking financial company without mandatory registration i.e. an alleged offence under Section 45-IA of the RBI Act. 12.3. Now coming to the private complaint in PCR No.711/2020, the prayer sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having approached the jurisdictional Court, even that aspect cannot be considered by the Magistrate. 12.9. In view of the above, though it has been contended by Shri R.Subramanian that the present writ petition is more in the nature of an appeal from the order passed by the trial Court in PCR No.7111/2020 having regard to the aforesaid facts and the aforesaid proceedings, I am of the considered opinion that the said PCR No.7111/2020 is one more proceedings filed by the petitioner in furtherance of the proceedings before the Hon ble Delhi High Court, PIL filed before this Court, the proceedings before the Company Court, etc. 12.10. The allegations and/or complaints of the petitioner having already been considered by the RBI and a detailed order dated 5.9.2017 having been passed by the RBI, I am of the considered opinion applying the principles laid down by the Apex Court in Sarguja s case that when the petitioner unconditionally withdraws a particular matter, the said subject matter could not be re-agitated in any other proceedings. 12.11. The principles laid down by the Apex Court in Sarguja s case was on the basis of public policy and to prevent abuse of the process of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would amount to rejudicata? 13.1. Though it is sought to be contended by Sri.R.V.S.Naik, learned Senior counsel that the order passed by the Delhi High Court would operate as resjudicata, I am of the considered opinion that the order of the Delhi High Court was only a direction to the RBI to consider the complaints and pass an order. Such a direction not being one on merits cannot be termed to operate as resjudicata. For an order to operate as resjudicata it has to be passed on merits between the same parties. 13.2. The order of the Hon'ble Delhi High Court would not qualify to be that passed between the same parties since the parties in the present matter are different and as such, I am of the considered opinion that the said order would not operate as rejudicata. 13.3. Hence I answer point No.2 by holding that the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would not amount to rejudicata. 14. POINT No.3: What order ? 14.1. In view of the above discussion, I am of the considered opinion that the writ petition filed is an abuse of process of law and of this Court, the same is not maintainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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