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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2011
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
Writ Petition No.7595 of 2010
M.P.Nos.1 and 2 of 2010
E.Ashok Kumar ... Petitioner
Vs.
1. HDFC Bank Ltd.,
117, Nelson Towers, NM Road,
Chennai 600 029,
rep. by its Manager,
Credit Card Division.
2. The Inspector of Police,
Law and Order,
B-1 North Beach Police Station,
North Beach Road,
Chennai 600 001.
3. The Commissioner of Police,
Office of the Commissioner of Police,
Egmore, Chennai 600 008. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus, forbearing and restraining the 1st respondent or their servants or their collection agents or their hired hooligans from harassing or threatening or violating the privacy and life and liberty of the petitioner and further direct the 1st respondent to pay adequate and appropriate compensation to the petitioner for their illegal acts directed against the petitioner.
For petitioners : Mr.G.Mohanakrishnan
For 1st Respondent: Mrs.S.Vidhya
For 2nd Respondent: Mrs.Lita Srinivasan, GA
O R D E R
One Mr.R.Sriram has borrowed money, using his credit card from HDFC Bank Limited, Chennai and according to the petitioner, there was a due of Rs.63,000/-. As some of the staff members from the legal department of the first respondent-Bank, have said to have called up the defaulter frequently, over phone and pressurized him to pay a sum of Rs.4,00,000/- towards dues, the petitioner was requested by the credit card holder to negotiate with the Bank. The petitioner informed his client that banking institutions would impose nominal interest for the dues and there would be a necessity to pay the same, for which, his client aggrieved. Thereafter, the petitioner advised his client to instruct the employees of the Bank, to speak to him. On 26.02.2010, about 6.30 P.M., 07.03 P.M., and 07.06 P.M., the petitioner received telephone calls in his mobile No.98406 91190 from 044-30987105, 044-30987124 and 044-30987220 from some people, who identified themselves as Mr.Karthick @ Sathish, Mr.Shyam, Mr.Rajesh and Mr.Suresh and asked the petitioner, regarding payment towards the dues from the said Mr.Sriram. When the petitioner told the Collection Personnel to collect the money from the concerned person, to whom, they have lent, the abovesaid persons abused the petitioner, using filthy and parliamentary language and degraded him. According to the petitioner, the words uttered are unworthy to be reproduced. Though the petitioner started to lose his temper, his colleague, one Mr.Solomon, Advocate, advised him to record the telephonic conversation and produce the same before the Inspector of Police, Law and Order, B-1 North Beach Police Station, Chennai, the second respondent herein. Accordingly, he recorded the conversation and made a complaint, dated 26.02.2010 to the second respondent. Though CSR number was assigned, no action was taken. According to the petitioner, the person, who spoke to him over phone, threatened him with dire consequences.
2. It is the further case of the petitioner that whenever, he went to the Police Station, one Mr.Selvaraj, Sub-Inspector of Police attached to the said Police Station, informed him that they tried to contact the concerned officials of the bank and though oral instructions were issued to them to appear for an enquiry, there was no response and that the Superintendent of Police was given a reply that the General Manager of the Bank would speak to the Deputy Commissioner in this regard. The Sub-Inspector of Police also informed that the petitioner need not call him again, in this regard. Subsequently, when he met the second respondent, one Mr.Sudhakar, Sub-Inspector of Police, was with him and when the petitioner enquired about the status of the complaint, the said Mr.Sudhakar curtly told him that the Police were not his servants and that the petitioner was trying to circumvent the law and thereby, evading payment from his client. He also warned the petitioner that if his client does not make any payments, as demanded by the officials of the first respondent-Bank, he would have to face the consequences.
3. The petitioner has further submitted that instead of initiating criminal action on the complaint, preferred by him, he was forced by the Police to withdraw the complaint preferred on 26.02.2010. He was also informed that already a retired Deputy Commissioner of Police had already spoken in this regard, with the second respondent and since the petitioner is an individual, he would not be able to face the brunt of wrath of the first respondent, an institution, which has got unlimited sources. In these circumstances, on 15.03.2010, the petitioner was informed that the officials of the Bank had come to the Police Station and he was asked to go outside. Some unknown persons, who were present in the Office of the second respondent, abused the petitioner in filthy language and asked him to give a letter in writing, withdrawing the complaint. At that time, the second respondent, remained a mute spectator, watching this incident.
4. It is also the further case of the petitioner that on 16.03.2010, when he was at George Town Court campus, he received a telephonic call from an unknown person from Telephone No.044-25391632, who had threatened him to withdraw the complaint or else, his life would be in danger. In these circumstances, left with no other alternative, the petitioner preferred a complaint to the Commissioner of Police, third respondent herein, through registered post. In this factual back ground, the petitioner has alleged violation of right of privacy, right of life and liberty and alleged that the action of the Bank is contrary to the directions of the Supreme Court in ICICI Bank v. Prakash Kaur reported in 2007 (2) CTC 334.
5. It is the further submission of the second respondent that the action of the second respondent in not registering a criminal case on the basis of his complaint is failure to exercise the duty conferred on the second respondent and against the provisions of Section 153 Cr.P.C. He also submitted that the action of the first respondent-Bank, engaging third parties and threatening the petitioner, withdrawing the complaint, lodged against the officials, is nothing but an illegal attempt, preventing him from acting on behalf of his client, in the course of discharging his profession, which is guaranteed under the Constitution and the provisions of the Advocates Act. As the right of the petitioner to prosecute his complaint, made against the persons, who threatened him with dire consequences and hurled filthy and unparlimentary words over phone and in person, in the Office of the second respondent, has affected his right to act on behalf of his client, the petitioner has sought for a Mandamus, forbearing and restraining the first respondent-Bank or their servants or their collection agents or their hired hooligans from harassing or threatening or violating the privacy, life and liberty of the petitioner and consequently, prayed for a direction to the first respondent-Bank to pay appropriate compensation.
6. The Inspector of Police, Law and Order, B-1 North Beach Police Station, Chennai, second respondent, in his counter affidavit, has submitted that the petitioner lodged a complaint on 01.03.2010 about 20.45 hours, stating that his client Mr.R.Sriram obtained a loan from the first respondent-bank and his client authorised him to have a talk with the bank in this regard and at this stage, he received call from Telephone Nos.044-30987105, 044-30987124 and 044-30987220 to his Mobile Phone No.9840691190 and that Mr.Karthik @ Sathish, Mr.Shyam, Mr.Rajesh and Mr.Suresh threatened and further asked him that the balance amount should be paid by Mr.Sriram, for which, the petitioner asked the abovesaid persons to come to George Town Court. At that time, one Mr.Karthik @ Sathish used unparliamentary words and threatened dire consequences to his life and to the defaulter. Therefore, the petitioner requested the Police to give protection to him and his family members. The complaint received was given CSR No.22/B1/2010. The case was taken for investigation and during investigation, the incoming and outgoing call list for the said Mobile Phone No.9840691190, was received from the Telecom Department and it was found that 11 incoming calls from Phone No.044-3987105, 39 incoming calls from Phone No.044-30987124, 31 incoming calls from Phone No.044-30987220 were received by the petitioner on 27.02.2010. On the basis of the abovesaid information received from the Telecom Department, the first respondent was summoned to be present for investigation on 02.03.2010 and a notice under Section 160 Cr.P.C., was also issued. On 08.03.2010, one Mr.P.Padmanabhan appeared on behalf of the Bank before the second respondent and sought for two days' time to submit his reply. Thereafter, on 15.03.2010, one Mr.A.Sivasankar, Manager of HDFC Bank, appeared before the second respondent and gave a statement that the bank employee, who misbehaved with the petitioner has been suspended from service. Further, one Mr.Kurram, who appeared on behalf of the Bank also gave a statement, tendering unconditional apology for the misbehavior and assured that in future, no such incident would occur. During the enquiry on 15.03.2010, with the abovesaid persons, conducted in the presence of the petitioner, the petitioner did not extend his co-operation to the enquiry and he left the station on his own accord and filed the present writ petition.
7. Denying the allegation that no action was taken on the complaint lodged by the petitioner, the second respondent has further submitted that suitable action has been taken and the officials were also summoned to appear for an enquiry and statements have been recorded from the Manager, HDFC Bank and from another person, Mr.Kurram. He further submitted that at no point of time, the Police had forced the petitioner to withdraw the complaint. The second respondent has further submitted that the Bank officials attended the enquiry and submitted written statement about the action taken on the persons, who threatened the petitioner over phone and a statement tendering apology was also recorded. The second respondent has further submitted that if the petitioner co-operates with the enquiry, it would be easier to register the case. As there was an order of injunction granted by this Court, he could not investigate further. He has therefore prayed for vacation of the order of injunction and dismiss the writ petition.
8. To sustain the prayer, Mr.G.Krishnamoorthy, learned counsel appearing for the petitioner submitted that in appropriate cases, where there is sufficient evidence to prove that the authority enjoined with a duty to act, on the basis of the complaint, supported with valid material evidence, failed to exercise his duties and in the case on hand, when the first respondent-Bank has indulged in unlawful ways to coerce the petitioner or his client to settle the alleged money due to the Bank, this Court enjoined with the constitutional functions to protect the right of privacy, life and liberty, have to step in and issue appropriate orders. He also submitted that the petitioner, being a lawyer, has every right to act in the best interest of his client and inasmuch as the Bankmen themselves have come forward to give a statement, before the second respondent-Police, admitting their misbehavior and also tendered unconditional apology, a direction may be issued for payment of appropriate compensation.
9. Though the first respondent-Bank has entered appearance through a counsel, no counter affidavit has been filed.
Heard the learned counsel for the parties and perused the materials available on record.
10. Admittedly, one Mr.R.Sriram has obtained a loan from the first respondent-bank. The fact that the petitioner has lodged a complaint before the second respondent on 01.03.2010, about the phone calls to his cell number and the threat, is not disputed by the Bank by filing any counter affidavit. The complaint which was received by the second respondent has been assigned CSR No.22/B1/2010. During investigation, the Police has found that there were 11 incoming calls from Phone No.044-3987105 and 39 incoming calls from Phone No.044-30987124, 31 incoming calls from Phone No.044-30987220, were received by the petitioner on 27.02.2010.
11. As per the counter affidavit, the officials of the first respondent Bank have been summoned to be present on 02.03.2010, for an enquiry and that a notice under Section 160 Cr.P.C., has also been issued. Section 160 Cr.P.C., states that any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case and such person shall attend as so required. The said provision is aimed at securing fair investigation into the facts and circumstances of a criminal case.
12. Pleadings disclose that one Mr.P.Padmanabhan, representing the Bank, has appeared before the second respondent on 08.03.2010 and took adjournment for two days to submit his reply. Subsequently, one Mr.A.Sivasankar, Manager of HDFC Bank, has appeared on 15.03.2010 before the second respondent and gave a statement that the concerned bank employee, who misbehaved with the petitioner has been suspended from service. It is the further case of the Investigating Officer that one Mr.Kurram, who appeared on behalf of the Bank also given a statement of unconditional apology for the misbehavior with the petitioner and further assured that in future, no such incident would occur.
13. From the above, it is evident that on receipt of the complaint from the petitioner, dated 01.03.2010, the Police have traced down the incoming calls to the petitioner's mobile phone number from various phones numbers through telecom department and accordingly, summoned the bank officials for an enquiry to ascertain the veracity of the complaint and that therefore, it cannot be said that there is a failure on the part of the second respondent-Police in acting on the basis of the complaint lodged by the petitioner.
14. Though the petitioner has alleged that one Mr.Sudhakar, Sub-Inspector of Police, had told him that the Police are not his servants and that he had also threatened to withdraw the complaint, he has not been made as party respondent in this writ petitioner. In the absence of impleading the said Mr.Sudhakar, Sub-Inspector of Police or Mr.Selvaraj, attached to the Office of the second respondent, this Court is not inclined to advert to the allegations of any threat, made to the petitioner.
15. As regards allegation that the second respondent threatened the petitioner to withdraw the complaint, there has been a specific denial by the said respondent. The petitioner has contended that Mr.Sudhakar, Sub-Inspector of Police, and four others, belonging to HDFC Bank, insisted the petitioner to withdraw the complaint and that the Inspector of Police, Mr.Murugesan, was also present. But when the said allegations have been denied by the second respondent, in his supporting affidavit, then it is a oath against oath. In such circumstance, this Court under Article 226 of the Constitution of India, cannot convert itself into an enquiry officer to ascertain the veracity of the truth or otherwise the allegations levelled against the second respondent and others. Disputed facts cannot be adjudicated in a petition under Article 226 of the Constitution of India and useful reference can be made to the following decisions,
(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Ors.) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court.
(b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows:
"19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Panda case (1994) 5 SCC 304 was essentially a question of fact...."
In paragraph 22, the Honourable Supreme Court further held as follows:
"22. ...a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1...."
(c) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Ors.), the Honourable Supreme Court held that 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'.
(d) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows:
"Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."
16. From the pleadings, it is evident that after 27.02.2010, there is no telephonic call from any employee of the Bank or any third party, alleged to have been engaged by the bank for recovery of amounts. Though the petitioner has averred that a petition, dated 16.03.2010, has been sent to the third respondent by registered post with Acknowledgment Due, no postal acknowledgment has been filed in this Court, but he has chosen to file this writ petition with the supporting affidavit on the next day itself, ie., on 17.03.2010.
17. However, even in the petition, dated 16.03.2010, addressed to the third respondent, there is no specific allegation levelled against the second respondent that he had coerced the petitioner to withdraw the complaint. The only allegation made against him was that when the Sub-Inspector of Police and four others, coerced the petitioner to withdraw the complaint, the Inspector of Police was also present. Even in the said petition, the petitioner has categorically admitted that B1 North Police had summoned the HDFC officials and conducted an investigation. Therefore, the contention of the petitioner that there was a failure on the part of the 2nd respondent in taking proper action on the complaint, cannot be countenanced.
18. As regards the allegations of infringment of the petitioner's right to privacy, life and property, the matter is under investigation by the Police. It is also evident from the pleadings that one Mr.A.Sivasankar, Manager of HDFC Bank, who appeared before the second respondent, has given a statement that the bank employee, who misbehaved with the petitioner has been suspended from service and further, one Mr.Kurram, who appeared before the Police on behalf of the Bank has also given a statement, tendering unconditional apology for the misbehavior and further assured that in future, no such incident would occur. Thus, it could be seen that the bank has regretted for the misbehavior of its employees.
19. However, the contention of the second respondent that on 15.03.2010, during enquiry, the petitioner did not extend his co-operation and left the place on his own accord shows that though there was some evidence of misbehavior with the petitioner, by some of the employees of the bank, resulting in suspension of the concerned and that there was also statement, tendering apology, no criminal case has been registered by the Police and according to the second respondent, the reason for not registering a case is due to non-co-operation of the petitioner for the enquiry.
20. Though the relief sought for in this writ petition is directed against the first respondent-bank, yet going through the materials on record, pleadings and after hearing the submissions of the parties, this Court is of the considered view that if any material evidence collected during the course of investigation, prima facie, indicate commission of any offence under the Penal laws, then there should not be any impediment in arriving at a decision to register a criminal case, under appropriate provisions of law, against those who have committed any offence, on the basis of the complaint and materials.
21. In the case on hand, if there is sufficient evidence to register a criminal case, the second respondent can issue appropriate directions to the Investigating Officer to take action in accordance with law. Subsequent to the filing of this writ petition, no fresh materials have been placed before this Court to substantiate that the bank employees or third parties have threatened or harassed the petitioner. As the second respondent had already taken appropriate action under the provisions of the Cr.P.C., as stated supra and when the Bank, through its employees, had tendered apology, the question of issuing a Mandamus, against the first respondent-bank, or its employees or their collection agents from harassing or threatening the petitioner, does not exist on the date of filing of the writ petition. Therefore, this Court is of the view that no Mandamus sought for against respondents 2 and 3 is rejected.
22. Record of proceedings shows that while entertaining the writ petition, this Court in M.P.No.1 of 2010, dated 15.04.2010, has granted an interim injunction against the bank and its employees in the same terms, as prayed for in the Miscellaneous Petition.
23. On the question of maintainability of the writ petition, against the first respondent-Bank, with reference to the relief sought for, it is necessary to consider the decisions relied on by the learned counsel for the petitioner.
24. In R.Jothilakshmi v. Branch Manager, ICICI Bank reported in CDJ 2010 MHC 604, the petitioner therein has sought for a Mandamus, directing the Bank to return the petitioner's vehicle, alleged to have been taken possession by the use of force. Facts deduced from the above reported judgment shows that there was default in payment of loan obtained from the Bank and as per the loan agreement, the vehicle was taken away by the bank, allegedly by using force with the help of hooligans. The order made in the abovesaid writ petition shows that the Bank's counsel had no serious objection for release of the vehicle in question, on condition that the petitioner therein remitted the amount due in two instalments, in addition to the outstanding amount for non-payment of seven instalments. During the hearing of the case, an affidavit of undertaking sought for to the effect that the petitioner would not default in future and failing which, the Bank would repossess the vehicle, was also agreed upon by the petitioner therein and in these circumstances, the writ petition came to be disposed of, releasing the vehicle, after fulfilling the conditions stipulated therein.
25. In M.Mahendrani v. The Branch Manager, Citicorp Finance India Ltd., Madurai reported in CDJ 2010 MHC 594, on the maintainability of the writ petition against the Bank, a learned single Judge of this Court, after extracting decisions in Tarun Bhargava v. State of Haryana reported in AIR 2003 Punjab and Haryana 98, Manager, ICICI Bank Ltd., v. Prakash Kaur reported in 2007 (2) CTC 334, ICICI Bank v. Shanti Devi Sharma reported in 2008 (3) CTC 522, S.Ovuraj v. Manager, SBI reported in 2007 (4) MLJ 127, The Managing Director, Orix Auto Finance (India) Ltd., v. Jagmander Singh reported in 2006 (1) CTC 670, Charanjit Singh Chadha & Ors. v. Sudhir Mehra reported in 2001 (4) CTC 102 and Dr.K.Sivasubramaniyam v. Madras Institute of Development Studies reported in 2006 (5) CTC 207, at Paragraph 11, observed that, "11. The petitioner had not been in a position to show that the writ petition filed by the petitioner is maintainable against the respondent, who is said to be a private party carrying on Non Banking Business.........
12. ..............It is also seen that Clause 16 of the loan agreement, dated 16.11.2006, provides for arbitration proceedings for all disputes, differences or claims arising out of the transaction to be settled, in accordance with the Arbitration and Conciliation Act, 1996. Further, the respondent had also stated that the arbitration proceedings have been initiated, in accordance with the said clause. In such circumstances, the writ petition is liable to fail. Hence, it is dismissed. It is made clear that the observations made in this order would have no bearing in the Arbitration proceedings said to be pending. However, it is made clear that the observations made in this order would have no bearing or influence in the arbitration proceedings said to be pending before the arbitrator concerned."
26. In Prema Devi v. Union of India reported in ADJ 1 (2008) 563, the Division Bench of Allahabad High Court entertained a writ petition against the ICICI Bank, Allahabad, wherein allegations were made that there was harassment to the writ petitioner, resulting in loss of business. Perusal of the judgment shows that the issue as to whether a writ petition is maintainable against a Bank or not, was not addressed by the Allahabad High Court and that there is no specific finding to the effect and therefore, the said judgment cannot be taken as a precedent.
27. In ICICI Bank Ltd., v. Prakash Kaur reported in 2007 (2) SCC 711, a writ petition was filed by the defaulter against the ICICI Bank to dispose of his representation, with a direction to the SSP, Allahabad, to ensure registration of a case on the basis of Annexure VII to the said writ petition and its investigation by a competent police officer. Facts of the above writ petition are that a loan has been obtained from ICICI Bank, Allahabad Branch, and for non-payment of the same, the bank through its authorised hooligans and employees, forcibly have taken possession of the truck from the petitioner. Since the petitioner's request to the Bank for release of the truck has failed, she has caused a notice to the bank. Subsequently, a complaint has also been lodged with the Police to register criminal cases under the provisions of Indian Penal Code and the Prevention of Corruption Act. The Allahabad High Court directed the SSP, Allahabad, to ensure registration of a case, on the basis of the complaint annexed to the writ petition. When the matter went upto the Supreme Court, it was contended inter alia that as the dispute involved was purely civil in nature, there was no case for issuing any directions. In addition to that, the Bank was inclined to release the vehicle, subject to payment of an initial sum of Rs.50,000/- and thereafter, negotiate the outstanding dues, if the petitioner had no doubt over the payment made by her and credited to her account, towards the outstanding amount of Rs.1,62,917/-. The bank agreed to forgo the interest also. The writ petitioner, owner of the truck, had agreed for the above proposals. In such circumstances, the Supreme Court allowed the appeal filed by the Bank and quashed the directions issued by the High Court. On the facts of the above case, the Apex Court further ordered that if any FIR had already been registered, in terms of the order impugned before the Supreme Court, the same shall also quashed along with the investigation commenced thereon. However, before parting with the matter, Their Lordships of the Supreme Court, expressed the dis-pleasure over the manner adopted by the Bank for realisation of the loan amount. In the judgment, The Hon'ble Mr.Justice Dr.AR.Lakshmanan, in his separate judgment, has given his views and suggestions in the matter of advancement of loan through credit cards and its realisation. Reading of the abovesaid judgment also shows that there was no specific issue, framed and answered, as to whether a writ petition against the Bank is maintainable or not. Even otherwise, in the abovesaid reported case, the directions issued by the Division Bench of the Allahabad High Court, for registration of a criminal case, have been set aside, in view of the agreement between the parties, regarding payment of outstanding loan amount.
28. Even in a decision relied on by the writ petitioner in M.Mahendrani v. The Branch Manager, Citicorp Finance India Ltd., Madurai reported in CDJ 2010 MHC 594, a learned Single Judge of this Court, after considering the arbitration clause in the agreement between the parties and the judgment reported in Dr.K.Sivasubramaniyam v. Madras Institute of Development Studies reported in 2006 (5) CTC 207 and having regard to the fact that the petitioner therein was not able to substantiate the maintainability of the writ petition, dismissed the writ petition. Therefore, the judgment relied on by the petitioner would not support his case.
29. The issue as to whether the writ petition is maintainable against the scheduled private bank, carrying on business on banking and not carrying on any statutory or public duty, came up for consideration before a Division Bench of this Court in ICICI Bank Limited, Corporate Office v. Lakshminarayanan reported in 2009 (1) CTC 22, where the issue was with reference to pension. After considering the rival submissions on the question of maintainability and the judgment of the Supreme Court in Federal Bank Ltd., v. Sagar Thomas reported in 2003 (4) CTC 418 (SC), the Division Bench, at Paragraph 17 of the judgment, held that, "17. In the present case also, as the appellant-Bank of Madura Ltd., is a private Company, carrying on private banking business and not carrying on any statutory or public duty, no "Writ Petition" under Article 226 of the Constitution of India is maintainable against the appellant-Bank of Madura Ltd. Merely because the Bank has made provisions to grant "pension" on VRS, under the relevant Pension Scheme, the same cannot be a ground to hold that the Bank is performing a public duty or public function. Hence, the first question is answered in the negative against the respondent-Writ Petitioner and in favour of the appellant-Bank of Madura Ltd. (now ICICI Bank Ltd.)."
30. In the case on hand, the first respondent is HDFC Bank, which is also a private company, carrying on banking business. The decision rendered in ICICI Bank Limited, Corporate Office v. Lakshminarayanan reported in 2009 (1) CTC 22, can be made applicable to the facts of this case. It is also worthwhile to reproduce few paragraphs in Federal Bank Ltd., v. Sagar Thomas reported in 2003 (4) CTC 418 (SC), as extracted in ICICI Bank's case, "18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.
27. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to.
32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for the acquiring authority.
33. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don't find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondent's service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed."
31. In Gobind v. State of Madhya Pradesh and Anr., reported in 1975 (2) SCC 148, the Supreme Court, after considering various US judgments and Articles, on the right of privacy, the views of the Hon'ble Mr. Justice Subba Rao, that there is no specific provision, in the Constitution of India, expressly declaring right to privacy as a Fundamental Right, and the observation that such right is an essential ingredient of personal liberty, within the ambit of Article 21 of the Constitution of India, was comprehensive enough to include the right of privacy and taking note of the Fundamental Right guaranteed under Article 19(1)(d) of the Constitution of India, at Paragraphs 24, 25, 27 and 28, held as follows:
"24. Any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.
25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. "Liberty against government" a phrase coined by Professor Corwin express this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.
27. There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might he engaging in such activities and that such 'harm' is not Constitutionally protective by the state. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures see 26 Standford Law Rev. 1161 at 1187.
28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute."
The Apex Court further observed that, privacy primarily concerns the individual. It relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confers that there are serious problems of defining the essence and scope of the right.
32. In the instant case, as per the version of the petitioner, his client had authorised him to interact and negotiate with the bankmen for repayment of loan, availed under the credit card by his client. No doubt, the frequent telephone calls to his mobile number, might have caused him agony, discomfort or even disturbed his normal professional work. Though there is evidence to the effect that, behavior of the employees of the first respondent-bank was not in accordance with the procedure to be followed in realising the dues to the Bank, as per the decisions of the Supreme Court in ICICI Bank's case, yet there is little doubt, as to whether, the frequent disturbance would amount to invasion of the petitioner's right to privacy or private affairs. In this context, it is worthwhile to refer to the definition of the word "Privacy". As per K.J.Aiyar's Judicial Dictionary (14th Edition), the word "privacy" comprises four distinct kinds of invasions, of four different interests of plaintiff as under:
(1)Intrusion upon the plaintiff's seclusion or solitude into his private affairs (eg. Eavesdropping and wire tapping);
(2)Public disclosure of embarrassing private facts about the plaintiff (eg. Use of plaintiff's name in a radio drama of a robbery, of which he had been a victim);
(3)Publicity which places the plaintiff in a false light in the public eye (eg. Attributing to a famous poet a spurious poem) [Lord Byron v. Johnson (1816) 35 Eng Rep 85] (4) Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. [Prosser, 'Privacy' (1960) 48 California Law Rev 383].
33. In Wharton's Law Lexicon (Fifteenth Edition), word, "privacy", is defined as "the state of being free from intrusion or disturbance in one's private life or affairs. Useful reference can be made to Sharada v. Dharmpal reported in 2003 (4) SCC 493. In Black's Law Dictionary [Ninth Edition], 'privacy' is defined as, "the condition or state of being free from public attention to intrusion into or interference with one's acts and decisions." The word 'private' is also defined as, "relating or belonging to an individual, as opposed to the public or the government.
34. In the case on hand, when the petitioner has undertaken to negotiate with the Bank on behalf of his client, he has begun to discharge his professional duties and the telephone calls are only with reference to repayment of loan amount, and there is no pleading and proof that the usage of unparliamentary or filthy language or threat, relate to personal intimacies of the petitioner, with reference to his family, marriage, etc. The averments in the supporting affidavit and the material on record, if examined with reference to the definition of the word "privacy", as defined and explained by the Apex Court, this Court is of the view that the abovesaid activities of the employees of the bank, would not amount to invasion or infringement into the right of privacy or private affairs of the petitioner. If due to frequent disturbance, through his mobile phone, the petitioner has suffered agony, harassment and threat and thereby, entitled to receive for compensation from the bank or the concerned employees, either jointly or severally, the extent of damage suffered by the writ petitioner, cannot be assessed on mere pleadings and damages, if any, can be quantified only by the competent civil Court.
35. In view of the above discussion and in the light of the decisions stated supra, this Court is of the considered view that a writ petition for a Mandamus, forbearing and restraining the 1st respondent or their servants or their collection agents or their hired hooligans from harassing or threatening or violating the privacy and life and liberty of the petitioner and for a consequential relief of payment of compensation, is not maintainable. If there is any deprivation or infringement of any right, as alleged, it is open to the petitioner to seek for appropriate remedy before the competent Civil Court, if he is so advised.
36. Yet another aspect to be considered is whether there is any infringement of Right of Privacy, as claimed. As the writ petition itself has been held as not maintainable, against the first respondent-Bank, in view of the abovesaid judgment, the prayer for compensation is also not maintainable.
37. In view of the above, the writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is not closed.
Sd/-
Asst. Registrar.
/true copy/ Sub Asst. Registrar.
skm To
1. The Inspector of Police, Law and Order, B-1 North Beach Police Station, North Beach Road, Chennai 600 001.
2. The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai 600 008.
+ 1 cc to Mr.G. Mohanakrishnan, SR.28274 W.P.No.7595 of 2010 MBS(CO) Eu 26.5.11