Uco Bank Vs. Saumyendra Roy Chaudhury and ors. - Court Judgment

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side Present: The Hon’ble Justice Mr.Ashim Kumar Banerjee And The Hon’ble Justice Mr.Arijit Banerjee APO360of 2013 CS212of 2013 UCO Bank -Vs.Saumyendra Roy Chaudhury & ORS.For the appellant : Mr.Anindya Kr.

Mitra, Sr.Adv.Mr.Debdutta Sen, Adv.Mr.Utpal Bose, Adv.For respondents 5, 6, 7 : Mr.Bimal Chatterjee, Ld Adv.Gen.

For respondent No.1 Mr.S.N.

Mookherjee, Sr.Adv.: Mr.Ratnanko Banerji, Adv.Mr.Shaunak Mitra, Adv.Mr.Siddhartha Sharma, Adv.Mr.Tarun Aich, Adv.Ms.Urmila Chakraborty, Adv.10th, 12th, 13th, 14th, 18th, 19th and 20th March, Heard on : 2014 Judgment On : 15/05/2014 Arijit Banerjee, J.

The rules and regulations of UCO Bank, the appellant herein provided for representation of the share-holders on the Board of Directors of the Bank in the form of share-holder directORS.The decision of the Nomination Committee rejecting the nomination of the respondent No.1 for election to the Board of the Bank in the category of a share-holder director is the subject-matter of challenge in the suit.

The plaintiff (respondent No.1 herein) filed an earlier suit being CS No.159 of 2011 challenging the Bank’s notice dated 6th July, 2011 to withdraw Agenda No.3 from the Annual General Meeting that was proposed to be held on 14th July, 2011.

The Agenda No.3 was for election of a Director by the share-holders of the Bank other than the Central Government.

There is a provision for such election in the acts and statutory instruments mentioned in the agenda itself.

The plaintiff approached the Court with the grievance that although his nomination was validly tendered, yet, the defendant-Bank had wrongfully rejected such nomination.

The public share-holding of the Bank at the relevant time was below 32 per cent.

The Bank could have two Directors from amongst the share-holdeRs.There was one Director-shareholder who was continuing.

Hence, there was one vacancy to be filled up from amongst the share-holdeRs.The Learned Single Judge found that proper reason was not given for rejecting the said nomination and accordingly His Lordship was prima facie of the opinion that the Bank should not have withdrawn the said agenda from its Annual General Meeting held on 14th July, 2011.

However, on a concession of the Bank, a direction was given to the Board of Directors to convene a fresh General Meeting to consider Agenda No.3 of the Annual General Meeting and the Nomination Committee of the Board was given liberty to invite other nominations and also to consider them in accordance with law.

The Division Bench modified the said order holding that once the nominations were filed in accordance with the provisions of the rules, it was mandatory for the Bank to scrutinize those nominations and as such the question of filing fresh nomination would not arise.

The Bank was directed to examine all the three nominations through its Nomination Committee and in case of rejection, the Nomination Committee was directed to assign reasons.

Such exercise was directed to be completed before the Annual General Meeting which was to be held in July, 2013.

It was observed that the Bank would take up such agenda in a meeting to be held prior to holding of the Annual General Meeting.

The Nomination Committee rejected all the three nominations and that resulted in the present suit being filed by one of the candidates.

The reliefs claimed in the plaint are set out hereunder:“The plaintiff prays for leave under Order 1 Rule 8 of the Code of Civil Procedure, 1908 and Clause 12 of the Letters Patent and claiMs.a) Decree for declaration that the notice dated 28th May, 2013 as published being Annexure “J” is illegal, null and void; b) Decree for declaration that the notice dated 28th May, 2013 as published on 5th June, 2013 be adjudged void and the same be delivered up for cancellation; c) Decree for declaration that the purported decision of the defendant communicated by electronic mail dated 24th June, 2013 being Annexure “M” is illegal, null and void; d) Decree for declaration that the purported decision communicated by the electronic mail dated 24th June, 2013 should be adjudged void and delivered up for cancellation; e) Decree for declaration that the plaintiff is deemed to be elected as a shareholder director of the defendant No.1; f) Decree for perpetual injunction restraining the defendants from interfering with the right of the plaintiff; g) Decree for declaration that the defendant Nos.11 and 12 are not fit and proper person and are disqualified to participate in the election as shareholder director of defendant No.1; h) Decree for perpetual injunction restraining the defendant No.1 from giving any effect or further effect to the notice dated 28th May, 2013 published on 5th June, 2013; i) Decree for perpetual injunction restraining the defendant No.1 from holding the Annual General Meeting on 28th June, 2013; j) Perpetual injunction restraining the defendants and each one of them from electing or appointing any person other than the plaintiff as a Director elected by the shareholders other than the Union of India of the defendant No.1; k) Perpetual injunction restraining the defendant from giving effect to any resolution if passed at the Annual General Meeting of Defendant No.1 convened for 28th June, 2013; l) Perpetual injunction restraining the defendant from contending or holding out that the nomination of the plaintiff to be elected as director of the Defendant was rejected in any manner whatsoever; m) Perpetual injunction restraining the defendants from giving any effect to the alleged rejection of the nomination of plaintiff for election as a Director of the defendant No.1; n) A decree for perpetual injunction restraining the defendants from giving any effect or any further effect to the purported decision of the Nomination Committee as communicated by the electronic mail dated 24th June, 2013; o) Receiver; p) Injunction; q) Costs; r) Further or other reliefs;” Arguments were advanced at length before the learned Judge.

After considering the rival contentions of the parties, the relevant rules and regulations and guidelines as also the relevant law, the learned Judge delivered a 67 pages judgment coming to the following conclusion:“Apart from the three well-known tests of illegality, arbitrariness and procedural impropriety, the other facts of challenge to such action is arbitrariness.

The petitioner should have been allowed to contest the election in 2011 itself.

The respondent authorities are citing different reasons at different times to prevent the petitioner from contesting the election.

The decision of the Nomination Committee is based on extraneous consideration and suffers from perversity.

Mr.Mitra would remind this Court that a mandatory injunction is, however, seldom granted before the hearing, though when the case is clear and free from doubt it may be had upon interlocutory application.

Prompt action is essential if a mandatory injunction is the desired remedy.

I think it is one of those cases which is clear and one which the Court thinks ought to be decided at once since there is no necessity to prolong the said proceeding.

The tenure of the shareholder director would expire in the middle of 2014.

The plaintiff was prevented from contesting the said election in 2011 would be again deprived to seek the election if a prolonged trial takes place.

Since the issues involved can be conveniently decided at this interlocutory stage without having the luxury of a ritualistic trial which in the instant case is wholly unnecessary, in my view, the plaintiff who had already suffered in the hands of the defendant authorities should not be made to suffer any further.

The law cannot be a lame duck and would not allow its power and jurisdiction to be fettered on a perception that the Court should not grant a mandatory injunction.

The Court can issue temporary injunctions in a mandatory form.

All that the Court is required to ensure that the plaintiff is able to make out a case for mandatory injunction.

It all depends upon the facts of each case.

If the Court is satisfied on the basis of the materials on record that the issue involved in the interlocutory application can be finally and conclusively decided without going through the rigmarole of a trial and the plaintiff has been able to satisfy the Court that the case is clear and free from doubt and does not require any further trial on the said issue.

The Court is not precluded from passing a temporary injunction in a mandatory form.

In the instant case, as discussed above, the legality and validity of the order passed by the Nomination Committee can be decided on the basis of the available record and it ex facie shows that the Nomination Committee has completely misdirected its mind and has arrived at a conclusion which is perverse.

In deciding the said issue, no witness action is required.

In considering the totality of the situation and having arrived at a definite finding that the impugned decision is illegal, there shall be an order in terms of prayer (h) and (i) of the petition.

In my view no oral evidence is called for to decide the aforesaid issue.

However, in so far as the prayer (e) is concerned on the basis of the deeming provision that if there is only one valid nomination for the vacancy to be filled in by the election, the candidate so nominated shall be deemed to be elected forthwith, the Nomination Committee shall scrutinize if after the impugned decision was passed during the interregnum period, the petitioner has incurred any disqualification under the fit and proper status in terms of the Reserve Bank guideline and in the event it is found that he has not incurred any disqualification during such period the petitioner shall be deemed to be elected under the category of shareholder director.

The Nomination Committee shall scrutinize the same within a period of two weeks from date and shall communicate its decision to the petitioner within a week thereafter.

G.A.No.1862 is accordingly allowed.

However, there shall be no order as to costs.” Appellant’s contention:One post of share-holder/Director is vacant.

Three candidates filed nomination.

The Nomination Committee found all three persons were not eligible as they did not conform to the criteria fixed by the Nomination Committee i.e., all of them were more than 65 years old and all of them served on the Board for more than six yeaRs.Fixing of criteria is an administrative action and the Courts should not interfere.

Further, the learned Judge should not have passed a mandatory injunction in an interlocutory application which effectively disposed of the suit.

This is done only in very exceptional cases.

The plaintiff’s case is not so clear and the defendant’s case is not so hopeless that an interlocutory order of mandatory injunction should have been passed.

For such an order to be passed, the Court has to arrive at a final conclusion and not only a prima facie conclusion.

Share-holder/Directors are elected by the minority shareholdeRs.The Government share-holders do not vote and the Government share-holders are the vast majority in all nationalized Banks.

Share-holder/Directors are different from other Directors who are elected by the majority share-holdeRs.Nothing prevents fixation of certain criteria for election of share-holder/DirectORS.Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 is the key provision of law.

Section 9 is set out hereunder:“Power of Central Government to make scheme.-(1) The Central Government may, after consultation with the Reserve Bank, make a scheme for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, the said scheme may provide for all or any of the following matteRs.namely:(a) the capital structure of the corresponding new bank; (b) the constitution of the Board of DirectORS.by whatever name called, of the corresponding new bank and all such matters in connection therewith or incidental thereto as the Central Government may consider to be necessary or expedient; (c) the reconstitution of any corresponding new bank into two or more corporations, the amalgamation of any corresponding new bank with any other corresponding new bank or with another banking institution, the transfer of the whole or any part of the undertaking of a [corresponding new bank to any other corresponding new bank or banking institution].or the transfer of the whole or any part of the undertaking of any other banking institution to a corresponding new bank; [(ca) the manner in which the excess number of directors shall retire under second proviso to clause (i) of sub-section (3);].(d) such incidental, consequential and supplemental matters as may be necessary to carry out the provisions of this Act.

[(3) Every Board of Directors of a corresponding new bank, constituted under any scheme made under sub-section (1).shall include(a) [not more than four whole-time directors].to be appointed by the Central Government after consultation with the Reserve Bank; (b) one director who is an official of the Central Government to be nominated by the Central Government: Provided that no such Director shall be a Director of any other corresponding new bank.

Explanation.-For the purposes of this clause, the expression “corresponding new bank” shall include a corresponding new bank within the meaning of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980).[(c) one director, possessing necessary expertise and experience in matters relating to regulation or supervision of commercial banks, to be nominated by the Central Government on the recommendation of the Reserve Bank;].(e) one Director, from among such of the employees of the corresponding new bank who are workmen under clause (s) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947).to be nominated by the Central Government in such manner as may be specified in a scheme made under this section; (f) one Director, from among the Employees of the corresponding new bank who are not workmen under clause (s) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947).to be nominated by the Central Government after consultation with the Reserve Bank; (g) one Director who has been a Chartered Accountant for not less than fifteen years to be nominated by the Central Government after consultation with the Reserve Bank; (h) subject to the provisions of clause (i).not more than six Directors to be nominated by the Central Government; [(i) where the capital issued under clause (c) of sub-section (2B) of Section 3 is_ (I) not more than sixteen per cent of the total paid-up capital, one directORS.(II) more than sixteen per cent but not more than thirtytwo per cent of the total paid-up capital, two directORS.(III) more than thirty-two per cent of the total paid-up capital, three directORS.to be elected by the shareholdeRs.other than the Central Government, from amongst themselves: Provided that on the assumption of charge after election of any such director under this clause, equal number of directors nominated under clause (h) shall retire in such manner as may be specified in the scheme: Provided further that in case the number of directors elected, on or before the commencement of the Banking Companies (Acquisition and Transfer of Undertakings) and Financial Institutions Laws (Amendment) Act, 2006, in a corresponding new bank exceed the number of directors specified in sub-clause (I) or sub-clause (II) or sub-clause (III).as the case may be, such excess number of directors elected before such commencement shall retire in such manner as may be specified in the scheme and such directors shall not be entitled to claim any compensation for the premature retirement of their term of office.].(3A) The Directors to be nominated under clause (h) or to be elected under clause (i) of sus-section (3) shall_ (A) Have special knowledge or practical experience in respect of one or more of the following matteRs.namely:(i) agricultural and rural economy, (ii) banking, (iii) co-operation, (iv) economics, (v) finance, (vi) law, (vii) small-scale industry, (viii) any other matter the special knowledge of, and practical experience in, which would, in the opinion of the Reserve Bank, be useful to the corresponding new bank; (B) represent the interests of depositORS.or (C) represent the interests of farmeRs.workers and artisans.

[(3AA) without prejudice to the provisions of sub-section (3A) and notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, no person shall be eligible to be elected as director under clause (i) of sub-section (3) unless he is a person having fir and proper status based upon track record, integrity and such other criteria as the Reserve Bank may notify from time to time in this regard.

(3AB) the Reserve Bank may also specify in the notification issued under sub-section (3AA).the authority to determine the fit and proper status, the manner of such determination, the procedure to be followed for such determination and such other matters as may be considered necessary or incidental thereto;].(3B) Where the Reserve Bank is of the opinion that any Director of a corresponding new bank elected under clause (i) of sub-section (3) does not fulfil the requirements of [sub-section (3A) and (3AA)]., it may, after giving to such Director and the bank a reasonable opportunity of being heard, by order, remove such Director and on such removal, the Board of Directors shall co-opt any other person fulfilling the requirements of [sub-sections (3A) and (3AA)].as a Director in place of the person so removed till a Director is duly elected by the shareholders of the corresponding new bank in the next annual general meeting and the person so co-opted shall be deemed to have been duly elected by the shareholders of the corresponding new bank as a Director.].(4) The Central Government may, after consultation with the Reserve Bank, make a scheme to amend or vary any scheme made under subsection (1).(5) On and from the date of coming into operation of a scheme made under this section with respect to any of the matters referred to in clause (c) of sub-section (2) or any matters incidental, consequential and supplemental thereto,_ (a) the scheme shall be binding on the corresponding new bank or corporations or banking institutions, and also on the MembeRs.if any, the depositORS.and other creditors and Employees of each of them and on any other persons having any right or liability in relation to any of them including the trustees or other persons, managing or in any other manner connected with, any provident fund or other fund maintained by any of them; (b) the properties and assets of the corresponding new bank, or as the case may be, of the banking institution shall, by virtue of and to the extent provided in the scheme, stand transferred to, and vested in, and the liabilities of the corresponding new bank, or, as the case may be, of the banking institution shall, by virtue of, and to the extent provided in the scheme, stand transferred to, and become the liabilities of, the corporation or corporations brought into existence by reconstitution of the banking institution or the corresponding new bank, as the case may be.

Explanation [I].._In this Section, “banking institution” means a banking company and includes the State Bank of India or a subsidiary bank.].Explanation [II].._For the purposes of this section, the expression “corresponding new bank” shall include a corresponding new bank within the meaning of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980).].(6) Every scheme made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days [which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid]., both Houses agree in making any modification in the scheme or both Houses agree that the scheme should not be made, the scheme shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that scheme.” Section 9 (3) (i) of the 1970 Act gives right to the share-holders to file for candidature for election to the Board of DirectORS.Section 9 (3AA) and Section 9 (3AB) of the 1970 Act refers to an ‘Authority’.

This is the Nomination Committee.

By a notification dated November 1, 2007 the Reserve Bank of India directed all nationalized Banks to constitute a Nomination Committee consisting of a minimum of three Directors (all independent Directors/non-Executive DirectORS.from amongst the Board of DirectORS.The Nomination Committee should undertake a process of due diligence to determine the ‘fit and proper’ status of the existing elected Directors/person to be elected as a Director under Section 9 (3) (i) of the 1970 Act.

The Nomination Committee should determine the ‘fit and proper’ status of the existing elected Directors/proposed candidates based on a broad criteria like educational qualification, experience and field of expertise and track record and integrity.

However, these are only illustrative guidelines and not exhaustive criteria.

The Nomination Committee can add to this criteria.

There is no prayer in the plaint for striking down the criteria as being bad.

Hence the question of validity of the criteria should not be gone into in the suit.

In exercise of powers conferred by Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the Central Government after consultation with the Reserve Bank framed the Nationalized Banks (Management and Miscellaneous Provisions) Scheme, 1970.

Clause 9 (4) of the said Scheme provides that an elected Director shall hold office for three years and, thereafter, only till his successor shall have been duly elected and shall be eligible for re-election, provided that, no such Director shall hold office continuously for a period exceeding six yeaRs.Six years is the limit – whether continuous or not.

This provision has been incorporated to avoid monopolisation on the Board of DirectORS.The aforesaid RBI notification stipulates that it is the duty of the Nomination Committee to ‘determine’ the ‘fit and proper’ status of a candidate.

So the Nomination Committee has discretion to add to and/or alter the criteria mentioned in the RBI notification by way of illustration.

Illustrations cannot control or narrow down the scope of a statute.

The RBI has by statute empowered the Nomination Committee to determine the fitness of candidate.

challenge to the same.

There is no RBI could have given detailed criteria and could have directed the Nomination Committee to adhere to the same strictly.

But RBI chose to give only three broad guidelines as illustrative and not exhaustive.

Therefore, it is open to the Nomination Committee to fix the criteria.

There was no basis for the learned Single Judge to hold that only the three criteria mentioned in the RBI notification should be considered.

The notification clearly states that the guidelines are illustrative and not exhaustive.

It also does not prohibit the Nomination Committee from fixing other criteria to determine the ‘fit and proper’ status of the candidates.

The decision of the Nomination Committee disqualifying all the three candidates including the plaintiff/respondent is based on age factor and the fact that they had a prior tenure on the Board of Directors for more than six yeaRs.The anonymous letters questioning integrity of the plaintiff were not relied upon for declaring the plaintiff as not a ‘fit and proper’ candidate.

If an Authority comes to a conclusion relying on certain reasons, the Courts will be slow to interfere with the reasons unless and until they are perverse.

In the case of Dalpat Abasaheb Solunke-vs.-Dr.B.S.

Mahajan reported in (1990) 1 SCC305the Hon’ble Supreme Court held that there are limited grounds for the Court to interfere with the decision of the Selection Committee.

In paragraph 12 of the said judgment the Supreme Court observed as follows:- “It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates.

It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates.

Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject.

The court has no such expertise.

The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc.It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes.

The Committee consisted of experts and it selected the candidates after going through all the relevant material before it.

In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.” In the present case, three experienced Directors formed the Nomination Committee and discharged administrative functions.

No case of mala fide has been made out against any of them.

Hence, the decision of the Nomination Committee does not warrant interference.

The Department of Financial Service, Ministry of Finance, Government of India under the Letter dated 13 October, 2011 issued service guidelines for selection of part-time non-official directors on the Boards of public sector banks.

The guidelines provide, inter alia, that the age of the director as on the date of recommendation by Appointments Boards should be between 35 years and 65 yeaRs.However, the upper age limit may be relaxed only with the approval of the Appointments Committee of the Cabinet and for reasons to be recorded by the Ministry.

The guidelines further provide that no person may be re-nominated as a non-official director on the Board of a Bank on which he has served as director in the past under any category for two terms or six years which ever is longer.

Clause 67 of the UCO Bank General Regulations, 1998 provides that if there is any doubt or dispute as to the qualification or disqualification of a person deemed or declared to be elected or as to the validity of the election of a director, any person interested, being a candidate or share-holder entitled to vote at such election, may within seven days of the date of declaration of the result of such election, give intimation in writing thereof to the Chairman and Managing Director of the Bank and shall in the said intimation give full particulars of the grounds upon which he doubts or disputes the validity of the election.

On receipt of an intimation, the Chairman and Managing Director or in his absence, the Executive Director of the bank shall forthwith refer such doubt or dispute for the decision of a Committee consisting of the Chairman and Managing Director or in his absence, the Executive Director and any two of the Directors nominated under Clause (b) and (c) of sub-Section (3) of Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.

The Committee shall make such enquiry as it deems necessary and if it finds that the election was a valid election, it shall confirm the declaration result of the election or, if it finds that the election was not a valid election, it shall, within 30 days of the commencement of the enquiry, make such order and give such directions including the holding of a fresh election as in the circumstances appeared to the Committee to be fit.

An order and direction of such Committee shall be conclusive.

In view of the aforesaid provision in the UCO Bank General Regulations, 1998, the plaintiff/respondent should have followed the procedure laid down in Clause 67 of the Regulations.

In the plaint, there is no prayer for mandatory injunction directing appointment of the plaintiff as Director.

The decrees prayed for are declaratory in nature and are as such not executable.

The order impugned is beyond the scope of the suit.

The Reserve Bank of India guidelines provide that the Nomination Committee should see whether the non-adherence to any of the illustrative criteria would hamper the existing elected director/proposed candidate from discharging the duties as a director on the Board of the Bank.

This shows that the Nomination Committee could relax the broad criteria.

In this connection, reliance is placed on the decision of the Supreme Court in the case of Sant Ram Sharma-vs.-State of Rajasthan reported in AIR1967SC1910in support of the contention that the Government can issue administrative instructions to fill up the gap in the statutory rules governing promotion to selected grade posts.

In paragraph 7 of the said judgment, it was observed as follows:“We proceed to consider the next contention of Mr.N.C.

Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed.

We are unable to accept this argument as correct.

It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts.

But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts.

It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the Rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” In the present case, the Government instructions are not contrary to the broad criteria mentioned in the RBI guidelines.

Hence, they are quite valid and there is no conflict.

The Trial Judge has held that the decision of the Nomination Committee was arbitrary and perverse.

However, there is no pleading to support this case.

In the case of The III Income-tax Officer-vs.-M.

Damodar Bhat reported in AIR1969SC408 the Hon’ble Apex Court held that if particulars of alleged arbitrariness are not furnished, the Court cannot go into that question.

In paragraph 6 of the said judgment the Supreme Court observed as follows:“We proceed to consider the next question arising in this appeal, viz., whether the High Court was right in taking the view that the Income-tax Officer did not properly exercise the statutory discretion in issuing the impugned notice with regard to the fiRs.item, viz., tax for the assessment year 1960-61 amounting to Rs.7,056.15.

It was argued on behalf of the respondent that there was an appeal pending with the Appellate Assistant Commissioner against the order of assessment and therefore it was incumbent upon the Income-tax Officer to exercise the statutory discretion properly under Section 220 (6) of the new Act in treating the assesse as being in default.

The finding of the High Court is that the Income-tax Officer ‘was not shown to have applied his mind to any of the facts relevant to the proper exercise of his discretion’.

In our opinion, the finding of the High Court cannot be upheld, because the respondent has not alleged in his writ petition any specific particulars in support of his case that the Income-tax Officer has exercised his discretion in an arbitrary manner.

In paragraph 12 (b) of the writ petition the respondent had merely said that ‘the order of the Income-tax Officer made under Section 220 was arbitrary and capricious’.

No other particulars were given by the respondent in his writ petition to show in what way the order was arbitrary or capricious.

In the counter-affidavit the allegations of the respondent have been denied in this respect.

We are of opinion that in the absence of specific particulars by the respondent in his writ petition it is not open to the High Court to go into the question whether the Income-tax Officer has arbitrarily exercised his discretion.

In the result we hold that the respondent is unable to substantiate his case that the impugned notice is in any way defective with regard to item No.1, i.

e., tax for the assessment year 1960-61 amounting to Rs.7,056.15.” In the case of UP Financcial Corporation-vs.-M/S.Gem Cap (India) PVT.LTD.reported in AIR1993SC1435 the Hon’ble Apex Court has held that the power of the High Court while reviewing administrative action is not of an Appellate Court and the power should be used carefully.

In paragraph 12 of the judgment the Hon’ble Supreme Court observed as follows:“While this is not the occasion to examine the content and contours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the High Court while reviewing the administrative action is not that of an appellate court.

The judgment under appeal precisely does that and for that reason is liable to be and is herewith set aside.” The Court should not substitute its decision in the place of decision of an expert body unless it is perverse.

In the case of Ganesh Bank of Kurundwad Ltd.-vs.-Union of India reported in (2006) 10 SCC645 in paragraphs 36, 49 and 50 the Supreme Court observed as follows:“The ultimate question is whether the inference drawn by RBI is a possible inference or is something which can be said to be a perveRs.one.

Even if two views are possible since the regulating body has arrived at a conclusion on the basis of the facts and figures before it, and it has pointed out that it has been warning the appellant Bank for the last over 3 yeaRs.it will not be proper for the courts to substitute their judgment for that of RBI.

In the circumstances, it cannot hold that the decision of RBI to impose the moratorium was unjustified or against the provisions of Section 45 (1) or such that one can call it a perveRs.one and interfere with it.

RBI is an expert body to regulate the banking activities.

The moratorium has been challenged on the ground of mala fides also.

This challenge along with the challenge to amalgamation also on the basis of mala fides needs to be considered.

The scope of judicial review in administrative matters has been the subject-matter of consideration before this Court in several cases.

There should be judicial restraint while making judicial review in administrative matteRs.Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference.

The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its poweRs.(c) committed an error of law; (d) committed breach of the rules of natural justice; (e) reached a decision which no reasonable tribunal would have reached; or (f) abused its poweRs.Administrative action is subject to control by judicial review in the following manner: (i) Illegality._This means the decision-maker must understand correctly the law that regulates his decisionmaking power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.” In support of the contention that illustrations exhaustive, reliance is placed on two decisions.

are not In the case of Anirudha Mitra-vs.-Administrator General of Bengal reported in AIR1949P.C.244, in paragraphs 38 and 39 the Privy Council, inter alia, observed as follows: “Gentle J., with whom Ormond J.

agreed, did not accept the interpretation put upon the section by the learned Judge, for the reason that the words of S.

115 of the Act are general, that though the illustrations may be looked into, in order to understand the meaning of the section, they do not exhaust its meaning, and that illus.

(i) referred to by the learned Judge, when correctly understood, does not support his view.

Their Lordships agree with the above view.

It is perfectly clear that the words of S.

115 of the Act are sufficiently wide and do not in any manner limit its application to members of a class who are in existence at the date of the testator’s death.

The learned Judge, Das J., would have certainly accepted this view of the section, but for what he considered the light thrown upon its meaning by the illustrations.

The words of the section are not ambiguous………..“Illustrations appended to sections of a statute should be accepted, if that can be done as being of relevance and value in construing the text….” It is well settled that just as illustrations should not be read as extending the meaning of a section, they should also not be read as restricting its operation, especially so, when the effect would be to curtail a right which the plain words of the section would confer…………..” In the case of Shambhu Nath Mehra-vs.-State of Azmer reported in AIR1956SC404 in paragraph 13 the Supreme Court observed, inter alia, as follows:“We recognize that an illustration does not exhaust the full contention of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused.” Mandatory injunction is granted to restore status quo prevailing before the wrongful act and no to create a new situation.

For example mandatory injunction may be issued to correct wrongful dispossession.

It is rarely granted at an interlocutory stage.

In the case of Metro Marins-vs.-Bonus Watch Co.(P) LTD.Reported in (2004) 7 SCC478in paragraphs 3 to 10 the Supreme Court held as follows:“The appellant herein questions the correctness of an order made by the Appellate Bench of the High Court at Calcutta which by the impugned order set aside the order made by a learned Single Judge on the original civil jurisdiction of that Court in GA No.682 of 1999 in CS No.99 of 1999.

Brief facts necessary for the disposal of this appeal are as follows: The respondent herein filed a suit for possession alleging the appellant herein to be a licensee and the period of licence having expired he was entitled to a decree for khas possession of the suit schedule property as also for certain other ancillary reliefs.

In the said suit he filed an interlocutory application, firstly praying for a judgment on admission and in the alternative, for an injunction directing the appellant herein to immediately hand over vacant and peaceful possession of the suit schedule property premises to the respondentplaintiff.

The learned Single Judge who heard the said application came to the conclusion that he did not find any reason to pass a decree on admission or to grant interim mandatory injunction directing the appellant-defendant to hand over possession of the flat in view of the fact that the suit was still pending in the court and granting of such relief would tantamount to a decree before trial for which the respondent has not made out a case.

It is against the said dismissal of the plaintiff’s application, an appeal was filed confining the appeal only to the reliefs by way of injunction seeking interim possession of the suit schedule property during the pendency of the suit.

The Appellate Bench after noticing the arguments of the parties and the documents produced came to the conclusion that prima facie the relationship between the parties was that of licensee and licensor.

It also came to the conclusion that at one point of time in 1998 the appellants were willing to voluntarily surrender the possession but did not do so because the respondent did not agree to repay the security amount.

It also came to the conclusion that for about 4 years the property in question has been under a caretaker and the said property was not used for any commercial purpose.

In the said background, the appellate court came to the conclusion that it is not proper that the property (flat) should be kept in a disused condition.

The Appellate Bench also considered the litigation to be a luxury litigation and on this philosophical background it directed the Receiver who was earlier appointed as an interim Receiver to make an inventory of the movables in the property, to take symbolic possession of the suit property and put the respondent-plaintiff in possession of the property under the authority of that Receiver subject to final adjudication in the original suit.

It is due to the above mandatory interim order of directing the interim possession being handed over to the plaintiffs in a suit for possession, the appellants are before us.

Shri, Jaideep Gupta, learned Senior Counsel appearing for the appellants submitted that it is an admitted fact that the appellants were in possession of the suit property and the suit itself was for eviction and for possession.

He contended that there was a tribal issue as to the nature of possession hence a decision to hand over possession or not could have been taken only after deciding this issue and on the basis of law applicable to such relationship.

Learned Counsel pointed out that the trial court has for good reasons rejected the interim application of the plaintiff holding that allowing such application would amount to grant of a decree even before trial which normally is not permissible in law.

He submitted that there are no extraordinary circumstances on facts of the present case which could have permitted the appellate court to exercise its extraordinary jurisdiction of granting the interim possession in favour of the plaintiff in a suit for possession.

He placed reliance on a judgment of this Court in the case of Dobar Cawasji Warden v.

Coomi Sorab Warden wherein this court held:(SCC p.

118, para

16) ‘16.

The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controveRs.until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.

But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm…’ The learned counsel for the appellant submitted that in the present case, it is an admitted fact that the appellant is in possession of the property and the suit itself is for eviction and possession and there is a contested issue in regard to the nature of relationship between the parties.

In such a situation issuance of mandatory injunction directing the handing over of the possession in favour of the plaintiff would be unsustainable in law and is contrary to the law laid down by this Court in the case of Dorab Cawasji Warden v.

Coomi Sorab Warden.

Learned counsel also pointed out that the fact that the property in question is not used for commercial purposes or is in the possession of a caretaker are irrelevant facts for the purpose of deciding whether in interim mandatory injunction to hand over possession should be granted or not.

Shri Raju Ramachandran, learned Senior Counsel appearing for the respondent submitted that this appeal is liable to be dismissed at the preliminary stage itself since from the document produced by the appellant himself.

It is clear that in 1998 he was ready and willing to hand over possession of the property and he has backed out from the same, hence in equity the appellant is not entitled to any relief under Article 136 being a discretionary jurisdiction of this Court.

On merits the learned Counsel submitted that as found by the appellate Court it is ex facie clear that the relationship between the parties is that of licensor and licensee and period of the licence having come to an end the appellant continued to be in possession as trespasser.

Therefore, the High Court was justified in granting the mandatory injunction to hand over possession of the property.

He submitted that the appellant has not paid any rent for the last so many years which is also a good ground for rejection of this appeal i.e.assuming he is a tenant, he could not continue to be in possession of the property without paying any rent.

Having considered the arguments of the learned counsel for the parties and having perused the documents produced, we are satisfied that the impugned order of the appellate court cannot be sustained either on facts or in law.

As noticed by this Court, in the case of Dorab Cawasji Warden v.

Coomi Sarab Warden it has held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgment.

In our opinion, the case of the respondent herein does not come under any one of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent.

As observed by the learned Single Judge the issue whether the plaintiff is entitled to possession is yet to be decided in the trial court and granting of any interim order directing handing over of possession would only mean decreeing the suit even before trial.

Once the possession of the appellant either directly or through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for commercial purpose or not using the same for any beneficial purpose or the appellant has to pay huge amount by way of damages in the event of he losing the case or the fact that the litigation between the parties is a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit.

For the foregoing reasons, we are of the considered opinion that the appellate court erred in reversing the order of the learned Single Judge and granting a mandatory order of injunction.

In view of our above findings, we think it appropriate that even the appointment of a Receiver, be it an interim order or otherwise, to supervise the possession of the property in question is also unnecessary, hence the said appointment of Receiver is also set aside.” The plaintiff should have filed a writ petition so that the entire controveRs.could have been decided on affidavits.

Having filed a suit with open eyes, the plaintiff must wait for a final decree.

He cannot get the suit decreed at an interlocutory stage by obtaining interim mandatory injunction.

In the case of Dorab Cawasji Warden-vs.- Coomi Sorab Warden reported in (1990) SCC117in paragraphs 16 and 17, the Supreme Court observed as follows:“The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controveRs.until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.

But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines.

Generally stated these guidelines are: (1) The plaintiff has a strong case for trial.

That is, shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case.

Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” In view of the aforesaid, the learned Trial Judge should not have passed the order impugned herein.

Appearing for the respondent Nos.5, 6 and 7, the Learned Advocate General primarily adopted the submission made by Mr.A.K.Mitra.

He added that the Nomination Committee did not adopt the Government notification as a whole but only adopted certain criteria mentioned in the Government guidelines.

The plaintiff did not object to the adoption of the criteria but he contended that such criteria are not applicable to elected directORS.The plaintiff might have had a legitimate case if the Government of India notification was adopted as a whole.

But only two of the criteria were adopted by the Nomination Committee in exercise of its discretion.

The Nomination Committee was absolutely transparent and did not take any criteria from any alien place.

Submission on behalf of the respondent no.1: The restriction of being a Director for maximum period of six years has no basis.

The respondent No.1 was a Director continuously for six years between November, 1991 and November, 1997.

However, his nomination for Directorship was accepted again in February, 2002 and nobody objected to the same.

This is because there was a break after six years and hence the appointment was quite in order.

The word ‘continuously’ in proviso to Clause 9 (4) of the Nationalized Banks (Management and Miscellaneous Provisions) Scheme, 1970 has to be given a meaning.

If there is a break after six yeaRs.then the candidate is eligible for re-election.

In any event, Clause 9 (4) of the said scheme would have no application since the respondent No.1 was previously inducted as an elected Director.

The parties also understood this is to be the case as otherwise the respondent No.1 would not have been nominated again after six yeaRs.The 2007 guidelines issued by the Central Government state that the age of the Director on the date of the recommendation by the Appointment Board should not be less than 40 years and preferably below 60 yeaRs.In 2010 when the respondent No.1 contested and lost, he was 67 years old having been born in 1943.

However, nobody objected to his candidature.

The Central Government cannot dictate which share-holder will be on the Board of DirectORS.Assuming for the sake of argument that all the share-holders are aged more than 65 yeaRs.none of them will be ‘fit and proper’ going by the Central Government guidelines.

This would be absurd.

The 2011 guidelines issued by the Central Government which stipulates that the age of the Director should be between 35 years and 65 yeaRs.apply only to nomination of part-time non-official Directors and not to elected DirectORS.The guidelines apply in the case of Directors who are appointed on recommendation of the Government and not to Directors who are elected from amongst the share-holdeRs.The list of criteria provided in the RBI circular dated 1st November, 2007 may not be exhaustive but that does not mean that the Nomination Committee can add to the criteria.

It is only the RBI who has such power.

Age is not a criteria mentioned in the RBI circular.

The Nomination Committee has no power to introduce new criteria.

In any event, no case has been made out in the minutes of meeting of the Nomination Committee dated 24th May, 2013 or anywhere else that his age being more than 65 years or his tenure being more than six years will be hamper the working of the Bank or that those two criteria are related to the broad criteria mentioned in the RBI notification.

Share-holder/Directors are elected by non-Government shareholdeRs.They stand on a separate footing.

The Government cannot have any say regarding their election.

The Nomination Committee owes its existence to a statutory notification.

It has no power to find gaps in the broad criteria stipulated by the RBI or to add to it.

Nomination Committees are different for all banks.

If such Committees are allowed to add to the criteria, there will be no uniformity.

This could not have been the intention of the statute or the notification.

The 1970 Act provides that RBI is the only authority empowered to formulate the criteria for ‘fit and proper’ status of a candidate.

The Hon’ble Apex Court has observed in the case of Namit Sharma-vs.-Union of India reported in (2013) 1 SCC745para 54 that the rule of disqualification has to be construed strictly.

None of the criteria in the Government guidelines which are sought to be adopted is related to the criteria enumerated in the RBI notification.

Hence, the respondent No.1 has been sought to be disqualified on the basis of extraneous factORS.There is also not a whisper as to how and when the Government criteria were adopted.

The RBI could not have delegated to the Nomination Committee the power to formulate guidelines/criteria – delegatus non-potest delegare.

In this connection reliance is placed on the Apex Court decision in the case of Marathwada University-vs.-Seshrao Balwant Rao Chavan reported in (1989) 3 SCC132 In paragraph 20 of the said judgment it is observed as follows:“Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officeRs.We are unable to agree with this contention.

Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal.

Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove.

This power is located under sec.

24(1) (xxix) of the Act.

It is, therefore, futile to contend that the Vice-Chancellor can exercise that power which is conferred on the Executive Council.

It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body.

It cannot be exercised by others unless it is delegated.

The law must also provide for such delegation.

Halsbury's Laws of England (Vol.14th Ed.

para

32) summarises these principles as follows: 32.

Sub-delegation of powers._In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless subdelegation of the power is authorised by express words or necessary implication.

There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind." There is no rule of law which prevents the Court from granting relief on an interlocutory application although the same might amount to granting the final relief claimed in the suit.

A mandatory injunction may be granted even at an interlocutory stage if the situation so demands.

In the Case of Woodford-vs.-Smith reported in (1970) 1 WLR806Megarry, J.

observed as follows: “Mr.Hames also read me a passage on p.

427 of the Supreme Court Practice, 1970, which runs as follows: ‘It is not the practice of the court (except by consent) to grant on an interlocutory application an injunction which will have the practical effect of granting the sole relief claimed (Dodd v.

Marine Worker’s Union (1923) 93 LJ.

Ch.

65).This does not deter the court from granting such interlocutory injunction as may be necessary to preserve property or prevent irreparable damage.’ When I ventured to assert that this did not represent the Law, Mr.Hames accepted that as being the case.

I do not think that there is anything to prevent the court in a proper case from granting on motion substantially all the relief claimed in the action.

It is true that in Dodd v.

Amalgamated Marine Worker’s Union, 93, L.J.Ch.

65, 66 it was said in the Court of Appeal that it was not the “usual practice” or the “general rule of practice” to grant on motion all the relief claimed in the action.

But this language is general rather than absolute, the judgments are very brief, no reasons are given, and there have been later decisions.

Thus in Bailey (Malta) Ltd.v.Bailey (1963) 1 Lloyd’s Rep.

595, 598 Lord Denning M.R.flatly said that it seemed to him that there was “no such rule”.

In this, he based himself on what Sargeant L.J.had said in Attorney-General v.

Stockton-on-Tees Corporation (1927) 91 J.P.172, 174, where there is what I may call a reasoned demolition of the supposed rule, the basis of which seems to have been an objection to trying the same point twice over.

In Bailey (Malta) Ltd.v.Bailey (1963) 1 Lloyd’s Rep.

595, 600 Harman L.J.referred to the supposed rule as a theory which had in his view “long been exploded” see also Heywood v.

B.D.C.Properties LTD.(1963) 1 W.L.R.975, and Booker v.

Hames (1968) 19 P & C.R.525.

I have briefly referred to these authorities (which were not discussed before me, since there was no need) because it is time that the passage in the Supreme Court Practice which I have read received the firm touch of a revising hand.

Plainly in the present case the objection which Mr.Hames raised but did not press is no obstacle to granting the injunction sought.

In my judgment, looking at the case as a whole, there are no grounds upon which the court should refuse to grant an injunction.” In the case of Acrow (Automation Ltd.-vs.-Rex Chainbelt Inc.

reported in (1971) 1 WLR1676 the English Court of Appeal passed an order of mandatory injunction on an interlocutory application.

In doing, Lord Denning M.R.observed as follows:“I know that this means that on this interlocutory application we are virtually deciding the action, but that often happens.” In the case of Heywood-vs.-B.D.C.Properties LTD.reported in (1963) 2 of England reports 1063, it was held, inter alia as follows:- “Finally, another objection is taken that to vacate the land charge in this case is equivalent to giving judgment on an interlocutory application in the action in favour of exactly the relief which the plaintiffs would obtain at the eventual hearing of the action in the ordinary way.

It seems to me, however, that that is largely a matter which depends on the circumstances, and partly a matter of convenience.

The position is stated very clearly by SIR L.

SHADWELL, V.C.in the comparatively old case of Bailey v.

Ford (3).decided in 1843.

In his short judgment he says (4).‘Although the general rule is that the court will not grant, on motion, that relief which ought to be granted at the hearing, yet it will do so in some cases.’ That was a partnership case, in which it was desired to obtain the sale of the partnership property.

The Vice-Chancellor continued (4).‘It appears that the affairs of the partnership are daily growing worse, and there is no reason to infer, from what is stated in the defendant’s answer, that they will improve.

Under those circumstances, I shall make an order in the terms of the notice of motion.’ The same sort of position arose in the recent case of Bailey (Malta).Ltd.v.Bailey (5).where an application was made for the delivery of documents which it was essential for the company to have in order to continue the business which was under consideration.

In that case that Court of Appeal upheld the order of PENNYCUICK, J., granting the relief, though the objection was taken that it was the same relief as was to be given at the hearing of the action.

Therefore, so it seems to me, this is not a fatal objection and it all depends on the circumstances and the convenience of the matter.

The objection, in my view, fails.

In my view, the judge was correct in the couRs.which he took, and I think that the appeal should be dismissed.” In the case of Indian Cable Co.Ltd.-vs.-Smt.

Sumitra Chakraborty reported in 1989 CWN559 in paragraphs 9 and 14 a Division Bench of this Court held as follows: “So far as the second reason assigned by the learned Subordinate Judge is concerned, I feel that it is necessary to clarify the legal position with regard to a prayer for injunction as made in the present case.

The learned Subordinate Judge appears to have taken the view that since recovery of possession is the principal relief claimed in the suit, the plaintiff cannot claim restoration of possession on an interlocutory application because that would mean in a manner decreeing the suit even before its trial.

Reliance has been placed upon an earlier decision of this court in the case of Rameswar Lath (1936 (40) Cal WN1201 (supra).But in my opinion the said decision is no authority for an absolute proposition that no relief on an interlocutory application can be granted under any circumstances which may amount to granting of the main relief prayed for in the suit.

Mcnair, J in the said decision merely pointed out that as a general rule such a relief is not granted in the absence of apparent urgency and injury to the applicant.

When I refer to the decision I find that Mcnair, J.

did take note of and approve of the principle as enunciated in English cases which acknowledged the existence of a power in a court to give such a relief on an interlocutory application as may also be the substantial prayer in the suit.

The learned Judge took pains to consider whether on the facts of the particular case any such ground had been made out for grant of such a relief and observed; "There is no statement for pleading as to the injury which would be suffered by the applicant if he does not get the injunction which he now prays for and I am not satisfied that there is any urgency in the matter".

If the bar to the granting of such a relief had been considered to be absolute by the learned Judge, it would not have been necessary for him to go into the question of urgency or the injury to be suffered by the plaintiff.

Granting of such a relief was upheld by the court of appeal in the case of Heywood v.B.D.C.Properties Ltd., (1963) 2 All ER1063(1067).Reviewing the earlier authority it was observed: "Those cases, I think, do show that it is only in unusual circumstances that the court ought to take the step of granting substantially the whole relief claimed in the action on an interlocutory application.

But they equally show that that is a procedure which, in a proper case, is available.

In my judgment, having regard to the admitted fact that the alleged contract registered, was not contract at all this is one of those cases in which it is proper and appropriate to grant by way of an interlocutory application the relief which the Judge has granted".

"The same view was expressed by the court of appeal in the case of Acrow Limited v.

Rex Chain Belt, (1971) 3 All ER1175 when the appeal court allowed the appeal and granted an interim relief though it took note of the fact that granting such an injunction meant virtually deciding the action and it was observed that: "that often happens".

Mr.Kapoor has rightly drawn our attention to an unreported Bench decision of this court in the case of Lachmandas Daswani v.

MessRs.Philis Berry D Cruz (A.F.O.O.No.243/72, O.S.decided on May 17, 1974).In this decision, the Division Bench distinguished the decision in (1936) 40 Cal WN1201by taking the same view as I have taken in the present case.

In my opinion, the principle on the point as it emerges on review of the authorities thereon is that if a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting any such prayer.

It is indeed true that such a relief should be granted only in exceptional cases.

Though exercise of such a discretion should be limited to rare and exceptional cases, still at the same time no court should think, as has been the view taken by the learned Subordinate Judge, that in law there is any absolute bar to the court granting such a relief.

In deserving cases, the court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief.

I am, therefore, of the opinion that the learned Subordinate Judge went wrong in reading the decision in (1936) 40 Cal WN1201as an authority for a proposition that in law there is an absolute bar to the granting of an interlocutory relief as claimed in the present case and, therefore, not deciding on the merits whether the plaintiff had made out any exceptional case in support of his claim.

Review of those decisions, therefore, leads to the conclusion that there is no bar to the courts granting interlocutory relief in mandatory form though in exercising the courts' discretion in this regard the court should act with greatest circumspection.

Such a relief can be granted only in rare and exceptional cases and what that rare and exceptional case is must be left to the court to adjudge in the facts and circumstances of each case………………...” In the case of Hindusthan Development Corporation-vs.- Modiluft LTD.reported in (2007) 139 Company Case 122, in paragraph 40 of the judgment, a Division Bench of this Court held as follows:- “The other point on the basis of which the learned Judge has dismissed the application is that the orders sought for was in the nature of main relief by way of an interlocutory application.

It is wellsettled that in given circumstances Court can always pass interim relief in the nature of final relief though such a power is required to be used sparingly and with utmost caution but it cannot be contended that the Court is precluded from passing an order in an interlocutory application which would result in granting a final relief.” In support of the above contention reliance was also placed in the case of Chanda Jhunjhunwala-vs.-State of West Bengal reported in 1989 CWN924on paragraph 35.

Dealing with the case reported in (1990) 1 SCC305it is submitted that this case does not lay down that even if an administrative decision is illegal and suffers from material irregularity in its procedure, such decision cannot be interfered with by the Court.

In the instant case, the Nomination Committee adopted extraneous guidelines and as such its decision is illegal and irregular warranting interference.

Dealing with the case reported in AIR1993SC1435it is submitted that there is no quarrel with the proposition of law laid down in that case.

However, patent illegality in an administrative decision can be interfered with and the said case does not lay down in proposition to the contrary.

The decision reported in 2006 10 SCC645involved a case where two views were possible.

Under those circumstances the Hon’ble Supreme Court held that if a view of the Authority taking the administrative decision is a plausible view, the same should not be interfered with.

In the instant case, there are no two plausible views.

The Nomination Committee’s view is perverse.

Irrelevant aspects have been taken into consideration and the Nomination Committee has exceeded it power.

After stating in Court that integrity of the candidate was the only issue which will be gone into, the respondent No.1 was disqualified on extraneous grounds.

Referring to the case reported in 1969 SC408 it was submitted that the plaint in the instant suit contains adequate particulars of arbitrariness as would appear from paragraphs 14 and 19 of the plaint.

Referring to the cases reported in AIR1949P.C.244 and AIR1956SC404it was submitted that these two cases were concerned with illustrations with respect to statutory provisions and not notifications.

As such these two cases have no application in the present case.

Appellant’s Contention in reply: The moot question is whether rejection of the respondent No.1 as a candidate was wrong.

If it was wrong, was it an error within jurisdiction or an error outside the jurisdiction of the Nomination Committee warranting interference by Court.

There is no prohibition on the Nomination Committee following criteria other than those laid down in the RBI guidelines.

The point that RBI had no power to delegate has not been taken in the plaint.

On the question as to whether or not interim mandatory order can be passed, several judgments have been cited on behalf of the respondent No.1.

It is not the appellant’s contention that such order can never be passed.

However, such order can be passed only in very rare cases depending on the facts and to restore status quo ante.

Further, the respondent No.1 has not indicated as to how he will be irreparably prejudiced which cannot be reversed if mandatory order was not passed at the interlocutory stage.

Dealing with the case reported in 89 CWN924it was submitted that in that case the Appeal Court disposed of the writ petition along with the appeal.

Hence it was not a case of interim mandatory order.

Referring to the case reported in (1970) 1 WLR806it was submitted that the orders passed therein were all in the nature of prohibitory injunctions and not mandatory injunctions.

Dealing with the case reported in (1971) 1 WLR1676it was submitted that in that case the plaintiff’s business was being affected very badly and there was grave urgency in the matter.

As such in the facts of that case the Court passed an order of mandatory injunction at the interlocutory stage.

The case reported in (1963) 2 All England Reports 1063 was distinguished on the ground that negotiations were going on between the parties in that case but there was no binding agreement.

This was a clear cut case.

And hence the land charge was vacated at the interlocutory stage.

The instant case is not such a clear case.

There is no quarrel with the proposition of law laid down in the case reported in 139 Company Cases 122.

However, that case does not help the respondent No.1 in the instant case.

In the case reported in 89 CWN559 the tenant had been illegally dispossessed of the premises behind his back.

Hence, a mandatory injunction was granted putting him back in possession at the interlocutory stage.

Referring to the case reported in (1989) 3SCC132it was submitted that the point of delegatus non-potest delegare was not taken in the plaint and in any event RBI is statutorily allowed to delegate the determination of ‘fit and proper’ status of a candidate.

Our Decision We have considered the rival contentions of the parties and have carefully gone through the Judgment of the Hon’ble FiRs.Court.

Broadly, two questions fall for adjudication.

Firstly, whether the rejection of the respondent no.1/plaintiff as a candidate for election to the Board of Directors of the appellant Bank was legal and proper.

Secondly, if the answer is in the negative, was the Hon’ble FiRs.Court right in passing the impugned order at the interlocutory stage.

Admittedly the respondent no.1 is a shareholder of the appellant Bank (“the Bank”).Pursuant to direction issued by the RBI in exercise of its statutory poweRs.all nationalized banks were required to form Nomination Committees for determining the ‘fit and proper’ status of the existing directors as also prospective candidates.

These Committees are in the nature of quasi-statutory bodies having a duty to act fairly and impartially.

The Bank has also constituted a Nomination Committee (“the NC”).Out of the three posts of shareholder directors on the BOD of the Bank, one is vacant.

Three candidates including the respondent no.1 filed their candidature.The NC at a meeting held on 24 May, 2013, rejected all the three nominations.

The NC recorded in the minutes of the said meeting that pursuant to the direction of the High Court the NC has scrutinized the nomination of three candidates along with relevant documents/papers and examined the ‘fit and proper’ status of the candidates.

The NC further recorded as follows: “It is seen that the RBI guidelines are broad and illustrative in nature and not exhaustive.

The Committee therefore is of the view that the criteria prescribed by the Govt.

of India vide their notification16/17/2010-BOI dated 13.10.2011 which is effective from 01.06.2011 and earlier guidelines dated 10/12/2007 for nominating directors on public sector banks which includes age and certain other disqualifications shall also be adopted along with the broader criteria fixed by the Reserve Bank of India Age over 65 years is one of the disqualification as per the said Govt.

of India guidelines to determine “Fit and Proper Status” of the candidate to be elected as shareholder director, and other disqualifications are: a) the Director already on a Bank/FI, under any category may not be considered for nomination b) persons connected with hire purchase, financing, leasing and other para banking activities, MPs, MLAs, MLCs and stock brokers will not be appointed as Director on the Board of the Bank.

c) No person may be renominated as director on the Board of the Bank if such Director has already served the Bank as Director in the past under any category for two terms or six years whichever is longer.

d) A candidate wouldnot be considered for nomination as a director on the Board of the Bank if such candidate is already been on the Board of the Bank or any other Bank/FIs for six years whether continuously or intermittently.” As regards the respondent no.1 the NC observed that he was 69 years old and as such did not pass the test of maximum age of 65 yeaRs.Further, he was nominated two times as Officer Director on the Board of the Bank for a period of over six yeaRs.viz., from 14.11.1991 to 14.11.1997 (two terMs.and from 18.02.2002 to 30.11.2003.

Thus going by both the criteria of age and earlier tenure on the Board of the Bank, he was disqualified.

Now the question arises, as to whether or not the NC was right in applying the Government guidelines for determining the fit and proper status of the respondent no.1?.

Learned Senior Counsel for the Bank strenuously argued that the NC was well justified in doing so and there was nothing irregular about it.

The RBI guidelines being illustrative and not exhaustive, the NC was well within the limits of its power to add to the criteria suggested by the RBI.

On the contrary, Learned Senior Counsel for the respondent no.1 vociferously urged that the NC having been constituted as per the statutory direction of the RBI, it could not travel beyond the criteria prescribed by the RBI or related criteria.

It is the RBI which alone can add to the criteria not the Central Government far less the NC.

Otherwise, the result will be chaotic and there will be no uniformity amongst the nationalized banks.

This could not have been the intention of the applicable statutes.

Age is not a criterion mentioned in the RBI notification and the NC on its own had no power to introduce such criterion.

We are inclined to accept the submission made on behalf of the respondent no.1.

The shareholder directors are elected by the nongovt.

shareholders of the Bank.

The Govt.

should not be having any say in the same.

As such the Govt.

criteria should not have been made parameters for judging the fit and proper status of the respondent no.1 or for that matter any of the candidates nominated for the post of shareholder director.

What is also significant is that earlier in 2010 when the respondent no.1 filed his candidature, he was more than 60 years old and as per the then prevailing Govt.

guidelines which prescribed a maximum age of 60 yeaRs.he should have been disqualified.

But nobody objected and his candidature was accepted.

It is an entirely different matter that he lost on contest.

Still further, what if all the shareholders of the Bank at any given point of time are more than 65 years old?.

It would be grossly unfair and indeed preposterous to suggest that in that case there would be no shareholder director on the Board of the Bank.

For the aforesaid reasons as also the reasons given by the Hon’ble FiRs.Court with which we completely agree, we hold that the rejection of the nomination of the respondent no.1 on the ground of age is bad and not sustainable.

For the same reasons as above which we refrain from repeating to avoid prolixity, we hold that the rejection of the candidature of the respondent no.1 on the ground of he having had a tenure on the Board of the Bank for more than six yeaRs.is bad and cannot be sustained.

The Government guidelines for appointment of Non Official Directors would not apply in the case of the respondent no.1 as he is seeking election as a shareholder director.

His past tenure on the Board has been as an Officer Director and neither as Non Official Director nor as shareholder director.

He was never on the Board of the Bank for a continuous period of more than six yeaRs.No objection to his candidature was taken on this ground when he filed nomination in 2010.

Thus we are of the view that the rejection of the nomination of the respondent no.1 was based on extraneous considerations, unjust and illegal and cannot stand scrutiny of the court of law.

This is of couRs.our prima facie view and this should not affect the final decision in the suit.

Now we come to the second issue as to whether or not the Hon’ble FiRs.Court was justified in passing the impugned order in terms of prayers (h) and (i) of the petition as also in terms of prayer (e) suitably modified by the Hon’ble FiRs.Court.

We are fully conscious that when a Court is reviewing administrative action, it does not sit as a court of appeal.

It is slow to interfere and does so only when it finds glaring lack of fair play or patent procedural illegalities or breach of natural justice.

These grounds are by no means exhaustive.

It is the duty of the Court to interfere when the action or omission complained of shocks judicial conscience.

We feel that in the instant case, grave injustice has been meted out to the respondent no.1 and the Hon’ble FiRs.Court rightly interfered.

Numerous decisions have been cited before us as to whether or not an order in the nature of mandatory injunction can be passed by the Court at an interlocutory stage or an order can be passed at an interim stage which amounts to granting final relief in the suit to the plaintiff.

We have noted all such decisions hereinabove.

There does not seem to be any confusion in the legal position in this regard.

There is no absolute proposition of law that a mandatory order can not be passed at the interim stage.

Normally such an order is passed sparingly.

However, if the facts of the case so warrant, the Court will not hesitate to pass such an order and will be well within its jurisdiction to do so.

Similarly, if the facts of a case demand a drastic order at an interlocutory stage which may amount to granting the final relief in the action to the plaintiff, the Courts will not be reluctant to do so.

There is no absolute bar in law in this regard.

We feel that the respondent no.1 had a just and legitimate grievance and justice has been done by the Hon’ble FiRs.Court.

In fine, we are in complete agreement with the judgment and order passed by the Hon’ble FiRs.Court.

As such this appeal fails and is hereby dismissed.

However, in the facts and circumstances of the case there will be no order as to costs.

We find from the records that a Cross Objection was filed by the respondent no.1, but the same was not pressed.

As such the same is also dismissed without any order as to costs.

I agree.

(Ashim Kumar Banerjee, J.) (Ashim Kumar Banerjee, J.) (Arijit Banerjee, J.)