Ambience Developers & Infrastructure Pvt Ltd v. Punjab National Bank

2. The impugned order dismissed the above captioned writ petition filed by the appellant challenging communication dated 30th September, 2016, issued by the respondent-Punjab National Bank, calling upon them to remit pre-payment charges of Rs.9,06,64,095/plus applicable service tax in respect of term loans prepaid. 2018:DHC:4759-DB

3. Impugned order in paragraph 15 correctly records that the disputes raised by the appellant were essentially contractual and the writ petition should not have been entertained to decide commercial disputes. The writ petition should have been dismissed and not entertained in consonance with the decision of the Supreme Court in Joshi Technologies International Inc. v. UOI, (2015) 7 SCC 728.

4. It is however apparent that the appellant had insisted that the writ petition should be heard on merits. In terms of the interim order, the appellant had even deposited pre-payment charge. Thus, it was on the persistence of the appellant that the learned single Judge had examined the issue of waiver of pre-payment charges predicated on the communication written by the respondent bank dated 24th March,

2015. We are therefore not inclined to permit the appellant to plead that notwithstanding the decision, they should be permitted to file a civil suit. We would curtail unnecessary litigation and not allow the appellant to forum shop and pray for a second chance after it has squarely failed.

5. Communication dated 24th March, 2015 was written on behalf of the respondent bank pursuant to the decision taken by the competent authority approving review of term loan of Rs.1280 crore (outstanding amount of Rs.1117.81 crore) against future lease rentals; renewal of existing guarantee limit of Rs.8.71 crore; specific bank guarantee of Rs.54.75 crores; continuation of existing rate of interest till next review date i.e. 24th June, 2015 and permission for allowing takeover of the outstanding amount, either in part or in full, without pre-payment charges and on sharing of security on first pari passu basis with the prospective lenders. It was stated that NOC for ceding pari passu charges in favour of prospective lenders would be restricted to the amount actually prepaid.

6. Appellant pleads and submits that this letter had permitted swapping in part or full the term loan liability without pre-payment charges.

7. The finding of the single Judge is that the appellant herein did not sign the said letter as a mark of acceptance. This is accepted. Thus, the offer made vide this letter dated 24th March, 2015 was never accepted to fructify into a binding and legally enforceable agreement.

8. The appellant instead of accepting the terms, had pursued its case for reduction of rate of interest. The appellant did not accept the condition in the letter/communication dated 24th March, 2015 that there would be continuation of existing rate of interest till next review date i.e. 24th June, 2015. The appellant had written a long letter dated 22nd May, 2015 requesting for reduction of rate of interest and to review the earlier decision communicated vide letter dated 24th March, 2015. Paragraph 14 and the next paragraph of the letter dated 22nd May, 2015 for the sake of convenience and completeness are reproduced below:-

9. Pursuant to the said request made by the appellant, the respondent bank had written letter dated 29th May, 2015, which reads:- “Ref No:PNB/LCB/Ambience 29.05.2015 M/s Ambience Developers & Infrastructure Pvt. Ltd., L-4, Green Park Extension, New Delhi 110016 Dear Sir, Reg: Your Term Loan with us. Please refer to your request for reduction in Rate of Interest, we are pleased to inform you that Competent Authority in its meeting held on 25.05.2015 has approved as under: Reduction and rest of ROI in the term loan to BR+TP+0.50% i.e. 11% p.a. from existing BR+TP+1.50% (fixed) i.e. 12% p.a. on deposit of crores to be deposited within 90 days failing which the ROI shall be restored to present level. Benefit of subsequent reduction in base rate from present level i.e. 10.00% will require poor approval of competent authority. All other terms and conditions of existing sanction shall remain unchanged. You are therefore requested to return the duplicate copy of this letter, duly signed by the authorized official(s) of the company as a mark of acceptance of the sanction. You are requested to pay Rs.5,00,000/- + Applicable Service Tax towards prepayment charges. Sr Relationship Manager Accepted Ambience Developers & Infrastructure Pvt. Ltd. S/d Authorised Signatory” The said letter while partly accepting the appellant’s request on interest had stated that terms and conditions of the existing sanction shall remain unchanged. The appellant had signed the said letter as a mark of acceptance. The appellant cannot, therefore, fallback and per-sue the claim predicated on the earlier offer terms in the letter dated 24th March, 2015, which terms were not accepted by the appellant. The respondent bank on the other hand rightly pleaded that they had never agreed to grant double benefit of reduction of rate of interest by one percent and also waive pre-payment charges of one percent payable in terms of the sanction letter dated 14th June,2011 and loan agreement dated 25th June, 2011. The unequivocal and categorical stand of the respondent bank is that the competent authority had only approved reduction and had reset rate of interest in the term loan to BR+TP+0.50(floating) i.e. 11% per annum from existing BR+TP+1.50%(fixed) i.e. 12% per annum. Accordingly, an amount of Rs.51.78 crores was to be deposited by the appellant within 90 days failing which the existing rate of interest and not the reduced rate was to continue. The letter dated 29th May, 2015 had, therefore, appropriately communicated that all other terms of the existing sanction shall remain unchanged. Consequently, terms of the sanction vide letter dated 14th June, 2011 including pre-payment clause were never abrogated and modified. Appellant cannot partly rely on the letter dated 24th March, 2015, which terms were not accepted by it and partly rely on the terms of the letter dated 29th May, 2015, which terms of offer were accepted by it. Thus, the claim double benefit was not intended and agreed.

10. This position and clear stand of the respondent bank gets affirmation from the subsequent exchange of mails/ correspondence between the parties and IDBI Bank Ltd. On this aspect the learned single Judge, has held:-

22. The trailing mails produced by the respondent indicate that the said mails were also forwarded to the IDBI Bank Ltd. on the next date. The chain of emails also indicate that no protest with regard to prepayment charges was made by the petitioner at the material time and the IDBI Bank Ltd. remitted the sum of ₹9,14,21,45,779/- to the respondent bank on 28.09.2016, as indicated by the respondent in its email dated 27.09.2016, to the petitioner.”