SBI to SC: Sharing complete forensic auditor report with borrowers would hamper probe

The State Bank of India has moved the Supreme Court seeking exemption from sharing complete forensic audit reports with borrowers in connection with the March 27, judgment of the apex court.

On March 27, the Supreme Court ruled that the banks should give a personal hearing to borrowers before classifying their account as fraudulent, in accordance with RBI's Master Circular of July 1, 2016, and had noted that the action of classifying an account as fraud not only affects the business and goodwill of the borrower, but also the right to reputation.

In an application, moved on April 13, seeking clarification on March 27 judgment, the SBI said on a purposeful reading of the judgment, the apex court has not read any personal hearing, however, it is likely to be misconstrued and spate of litigation is apprehended on this ground by those defaulters, whose default has substantially contributed to the weakening of the financial position of the banks, thereby affecting the economy of the nation.

"It is respectfully submitted that on right construction and interpretation of the judgment of this Hon'ble Court has merely required that an opportunity of hearing to be given before an account is declared as fraud. This Hon'ble Court, very rightly, did not read personal hearing into the said circular," said the plea.

The bank's application further added: "It is humbly submitted that handing over the complete Forensic Auditor Report would hamper the investigation by law enforcement agencies as it would result in forewarning the perpetrators by way of disclosure of confidential/critical information. The disclosure of the entire material against the borrower, at this stage, would give an opportunity to the borrower to delay the investigation, destroy the evidence and abscond the country."

The SBI emphasized that supplying relevant extract of the forensic auditor report would meet the ends of justice.

In its March 27 judgment, the top court had said: "The principles of natural justice demand that the borrowers must be served a notice, given an opportunity to explain the conclusions of the forensic audit report, and be allowed to represent by the banks/ JLF (joint lenders' forum) before their account is classified as fraud under the Master Directions on Frauds. In addition, the decision classifying the borrower's account as fraudulent must be made by a reasoned order."

In its application, the SBI urged the top court to clarify that the March 27 judgment is to be prospective in operation. "Clarify that the hearing contemplated in the judgment dated 27.03.2023...is not understood to be personal hearing and that the banks can decide the time frame of adjudication depending upon the urgency of the matter," said the plea, in one of its prayers before the apex court.

On March 27, the top court refused to entertain appeals filed by both RBI and the SBI-led consortium of lenders and upheld the Telangana High Court's December 10, 2020 judgment which directed lenders to include principles of natural justice into the RBI's 'Master Direction on Frauds - Classification and Reporting by Commercial banks and select FIs' so as to afford opportunity to the affected party/person to present their case.