2021 (3) TMI 485 - HC - Indian Laws

Private financial institution - petitioner's grievance is against M/s. Citi Bank which is a private financial institution and it would not fall under definition of article 12 of Constitution - HELD THAT - The hon'ble apex court hold that the writ petition is not maintainable in so far as remedy under the SARFAESI Act, 2002, in the case of UNITED BANK OF INDIA VERSUS SATYAWATI TONDON AND OTHERS 2010 (7) TMI 829 - SUPREME COURT where it was held that It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc., and the particular legislation contains a detailed mechanism for redressal of his grievance. The apex court in the case of RADHEY SHYAM ANR JAGDISH PRASAD VERSUS CHHABI NATH ORS IQBAL KAUR ORS 2015 (7) TMI 376 - SUPREME COURT held writ does not lie against a private person not discharging any public duty. Even on this principle writ is not maintainable. The writ petition stands dismissed reserving liberty to the petitioner to approach appropriate forum - petition dismissed.

Issues Involved:
1. Maintainability of the writ petition against a private financial institution.
2. Availability of an alternative remedy under the SARFAESI Act, 2002.
3. Applicability of Article 12 of the Constitution to the respondent.
4. Whether the possession notice issued by the respondents was in accordance with the law.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition Against a Private Financial Institution:
The court examined whether the writ petition filed against M/s. Citi Bank, a private financial institution, was maintainable. It was determined that the writ petition is not maintainable against the respondent as it does not fall under the definition of 'State' under Article 12 of the Constitution. This conclusion was supported by the precedent set in the Full Bench decision of K. V. Panduranga Rao v. Karnataka Dairy Development Corporation, where the criteria for an entity to be considered an instrumentality or agency of the State were elaborately discussed.

2. Availability of an Alternative Remedy Under the SARFAESI Act, 2002:
The court emphasized that the petitioner has an effective alternative remedy under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The court referred to several decisions of the Supreme Court, including United Bank of India v. Satyawati Tondon, Authorized Officer, State Bank of Travancore v. K. C. Mathew, and ICICI Bank Ltd. v. Umakanta Mohapatra, which held that writ petitions should not be entertained when an alternative statutory remedy is available. The court noted that the SARFAESI Act provides a comprehensive mechanism for redressal of grievances, including applications, appeals, and revisions.

3. Applicability of Article 12 of the Constitution to the Respondent:
The court discussed the applicability of Article 12 of the Constitution, which defines 'State' for the purposes of Part III and IV of the Constitution. The court referred to various tests laid down by the Supreme Court to determine whether an entity is an instrumentality or agency of the State. These tests include factors such as government control, funding, monopoly status, and public functions. It was concluded that M/s. Citi Bank does not meet these criteria and, therefore, cannot be considered 'State' under Article 12.

4. Whether the Possession Notice Issued by the Respondents Was in Accordance with the Law:
The petitioner sought to quash the possession notice dated February 28, 2015, issued by the respondents, claiming it was not in accordance with the law. However, the court did not delve into the merits of this issue due to the preliminary findings on the maintainability of the writ petition and the availability of an alternative remedy under the SARFAESI Act.

Conclusion:
The court dismissed the writ petition on the grounds that it is not maintainable against a private financial institution and that the petitioner has an effective alternative remedy under the SARFAESI Act. The court also noted that a writ does not lie against a private person not discharging any public duty, as held in Radhey Sham v. Chhabi Nath. The petitioner was given liberty to approach the appropriate forum, and the time spent in the present petition would be considered for the purposes of condonation of delay in approaching the forum.

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