R.K. Timber and another vs ICICI Bank Ltd. and another

Alok Aradhe, J.

Heard on I.A. No. 2032/2011, an application for dismissal of the writ petition.

Facts leading to filing of the writ petition, briefly stated, are that the respondent-Bank had sanctioned an over draft facility of Rs. 1,94,90,000/- vide letter dated 21-9-2005. The respondent-Bank thereafter obtained an application for renewal of sanction on 2-2-2007 and required the petitioners to execute various documents including 12 crossed blank post dated cheques of United Bank of India towards payment of interest and 4 undated blank cheques of the same Bank. It is a case of the petitioners that instead of renewing the sanction, the Bank sent a notice through its lawyer on 11-8-2007 and threatened the petitioners that he may be prosecuted for an offence u/s 420 of the Indian Penal Code as well as action under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ''2002 Act'') may be taken against them. It is averred in the writ petition that Bank forged a blank undated cheque to show that it was issued on 1-1-2008 for a sum of Rs. 2,26,05,018/- and presented the same for encashment. However, when the cheque was dishonoured a notice u/s 138 of the Negotiable Instruments Act dated 28-1-2008 was issued to the petitioners. The respondents also issued a notice u/s 13(2) of the 2002 Act. In the aforesaid background the petitioners have prayed for the following reliefs:

(i) Notice u/s 13(2) (Annexure-5) be quashed;

(ii) Respondents be restrained from prosecuting the petitioners u/s 420 of the Indian Penal Code and u/s 138 of the Negotiable Instruments Act.

Shri. Anshuman Singh, learned Counsel for the respondents submitted that respondent No. 1 is a Private Company carrying on banking business as Scheduled Bank and, therefore, cannot be termed as an institution or a company carrying on any statutory or public duty and, therefore, such a company is not amenable to writ jurisdiction. In support of his submission learned Counsel has placed reliance on the decisions of Supreme Court in the cases of Federal Bank Ltd. Vs. Sagar Thomas and Others, , Binny Ltd. and Another Vs. V. Sadasivan and Others, and M.D., Bhadra Shahakari S.K. Niyamita Vs. President, Chitradurga Mazdoor Sangh and Others, Learned Counsel for the respondents has further placed reliance on the order dated 12-7-2010 passed in W.P. No. 3144/2010 (S), M/s Ramdev Ginning Factory v. The Chief Manager, ICICI Bank Ltd. as well as order dated 16-2-2010 passed in W.P. No. 10645/2006, G.P. Tiwari v. ICICI Bank Limited and Ors.

Shri. A.D. Deoras, learned Senior Counsel for the petitioners, on the other hand, has submitted that respondents may be directed to file return in which they may raise an objection with regard to maintainability of the writ petition. Learned Counsel for the petitioners submitted that the issue involved in Federal Bank Ltd. (supra), was with regard to termination of services of an employee of the Bank, who was employed as a Branch Manager. An objection was raised with regard to maintainability of the writ petition on the ground that Federal Bank is a Private Bank and is not a State or its instrumentality within the meaning of Article 12 of the Constitution of India and, therefore, a writ petition under Article 226 of the Constitution is not maintainable. In the aforesaid writ petition the employee had sought a writ of mandamus. In that context, the Supreme Court held that writ petition against a private company carrying on business as a Scheduled Bank is not maintainable. In the instant case, the petitioner is not seeking a writ of mandamus. It was further submitted that the scope and ambit under Article 226 of the Constitution is much wider and a writ can be issued against a person or an authority. Learned Senior Counsel has relied on the decision of Supreme Court in Tamil Nadu Electricity Board v. Sumathi and Ors. AIR 2000 SC 1603 , and submitted that when any citizen or a person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State a company or a Co-operative Society or association or body of individuals whether incorporated or not, or even an individual. Learned Senior Counsel while making reference to U.P. State Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and Others, , has submitted that the term authority used in Article 226 of the Constitution must receive a liberal meaning unlike Article 12. It was further submitted that Article 12 is relevant for the purpose of enforcement of fundamental rights under Article 32, whereas Article 226 confers powers on the High Court to issue writs for enforcement of fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 of the Constitution are, therefore, not to be confined only to Statutory Authority and instrumentalities of the State. Learned Senior Counsel has placed reliance on the decisions reported in Zee Telefilms Ltd. and Another Vs. Union of India (UOI) and Others, and Binny Ltd. and Another Vs. V. Sadasivan and Others, . Learned Counsel further submitted that order passed in W. P. No. 3144/2010, M/s Ramdev Ginning Factory v. The Chief Manager, ICICI Bank, was passed on concession whereas in W.P. No. 10645/2006, G.P. Tiwari v. ICICI Bank Ltd. and Ors. a writ of mandamus was sought and, therefore, the aforesaid decision are of no assistance to respondents.

I have considered the submissions made on both sides. In Chandra Bhan Dubey (supra), which has been relied on by learned Counsel for the petitioners, in Paragraph 24, it has been held as follows :--

The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty.

Similarly, in Tamil Nadu Electricity Board (supra), in Paragraph 9, the Supreme Court has held that the High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation.

In Federal Bank (supra), in Paragraph 26, it has been held by the Supreme Court that a company registered under the Companies Act for the purpose of carrying on any trade or business is a private enterprise to earn livelihood and to make profits out of such activities. Banking is also kind of profession and a commercial activity, the primary motive behind it can well be said to earn returns and profits. Similarly, in Paragraph 32, in categorical terms the Supreme Court has held that the private companies carrying on the business or commercial activity of banking, do not discharge any public function or public duty. In Binny Ltd. and another (supra), it has been held that a private body or a person would be amenable to jurisdiction under Article 226 provided that private body or the person is discharging public functions.

It is not disputed before me that respondent No. 1 is a private company carrying on banking business. Thus, in view of the aforesaid enunciation of law by the Supreme Court, since the respondent No. 1 does not perform any public duty, it is not amenable to writ jurisdiction under Article 226 of the Constitution.

For yet another reason, the writ petition preferred by the petitioners cannot be entertained. The petitioner has sought quashment of notice issued u/s 13(2) of the 2002 Act. The Supreme Court in United Bank of India Vs. Satyawati Tondon and Others, , has held that where an action is taken u/s 13(4) of the 2002 Act, the remedy available to an aggrieved person is to file an appeal u/s 17 of the 2002 Act and High Court in exercise of powers under Article 226 of the Constitution should not entertain the writ petition on the ground of availability of alternative remedy.

Similarly, another relief which has been claimed in the writ petition is with regard to restraining the respondents from prosecuting against the petitioners u/s 420, Indian Penal Code and u/s 138 of Negotiable Instruments Act. It is equally well settled legal proposition that High Court should not allow the constitutional jurisdiction for deciding the dispute for which remedies are available under general law, i.e., both civil and criminal [See : Mohan Pandey and Another Vs. Smt. Usha Rani Rajgaria and Others, and Tamil Nadu Electricity Board (supra)]. As and when the occasion so arises, the petitioners may avail of the remedies available to them under the Code of Criminal Procedure.

For the aforementioned reasons the-interlocutory application is allowed. In the result, the writ petition fails and is hereby dismissed.