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TMI Blog2015 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... y it. Prohibition has to be inferred in the absence of express authorization For the reasons aforesaid, the petitioners challenge restricted to the threat of publication of their photographs is upheld. Publication of photographs in newspapers, magazines etc. neither being permissible in terms of the SARFAESI Act or the rules framed thereunder nor under any other rule/notification/guideline having binding effect, I further hold that the threat to publish photographs borders on extra-legal means to recover the dues. The secured creditors are, accordingly, restrained by a prohibitory order from taking such recourse. - Decided in favour of appellants. - W.P. 10315 (W) of 2013 With W.P. 9850 (W) of 2013 - - - Dated:- 3-5-2013 - Dipankar Datta, J. For the Appellant : Mr. Suddhasatva Banerjee, Advocate, Mr. Deboki Nandan Maity, Advocate, Mr. M.S. Tiwari, Advocate, Mr. Sailendra Tiwari, Advocate, Mr. Dharmendra Tiwari, Advocate, Mr. R.K. Pandey, Advocate For the Respondent : Mr. Subrata Kumar Sinha, Advocate, Mr. Sudip Pal Chowdhury, Advocate, Mr. O.N. Rai, Advocate, Mr. P.K. Roy, Advocate, Mr. D.K. Singh, Advocate JUDGEMENT 1) Whether or not a secured credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned action. 7) Additionally, he contended that the first ground on which the impugned act of threatening to publish photographs, names and addresses of the defaulting borrowers in the newspapers could be faulted is that it is coercive. Referring to Section 15 of the Contract Act, 1872 defining coercion, he contended that the act complained has to fall within any of the mischief mentioned therein. The expression any act forbidden by the Indian Penal Code (hereafter the IPC) would require consideration of the provisions thereof and the only forbidden act that could be relevant for the present case or could be complained of as having been committed by the secured creditor in the given fact situation is defamation . One has therefore to look to Section 499 of the IPC. According to him, publication of photograph clearly falls within the first exception provided in Section 499 of the IPC and, therefore, it cannot be said to be a defamatory act. The petitioners having borrowed money from the secured creditor and they having defaulted in repayment thereof leading to classification of their loan account (cash credit) as non-performing asset, the publication, if made, would therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onomy in conformity with national priorities. This very objective, according to him, is frustrated if public sector banks are compelled to have a stock pile of non-performing assets. He referred to the decision of the Supreme Court reported in AIR 2007 SC 712 : Transcore v. Union of India, wherein it was observed that non-performing asset is cost to the economy. It is, therefore, the duty of the public sector banks to reduce such cost by resorting to every possible legal means. The SARFAESI Act is one of such means, which provides effective and quicker procedure for recovery of the dues of the secured creditor in cases where the borrower s account has been classified as non-performing asset. 8) It was further submitted by Mr. Rai that the other means to reduce such cost is dissemination of information as regards willfully defaulting borrowers to other banks and financial Institutions so that they may get alert and refrain from extending credit facilities to the defaulting borrowers. The RBI has already felt and recognized the need for such dissemination of information as regards willfully defaulting borrowers to other banks and financial institutions and has put in place a mecha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerting the citizens not only about those who are defaulting on repayments but also about the fact that a willful defaulter would be similarly treated. It could thus lead to safeguarding economic and moral interests of the nation. The benefits accruing to the economic and moral fibre of the country far outweighs any damage to the fiduciary relationship of bankers and their customers. 13) The writ petition, Mr. Rai urged, should therefore be dismissed. 14) I have heard the parties and perused the decisions cited at the bar. 15) The reasons assigned by the learned Judges of the Madhya Pradesh and the Madras High Courts ought to be noticed at this stage, for, if I agree therewith, the writ petitions would merit dismissal in limine. 16) In Archana Chauhan (supra), the learned Judge observed as follows: 2. With respect to the photographs, in the opinion of this Court publication of photographs of the borrowers cannot be said to be impermissible mode. Action cannot be said to be arbitrary or illegal in any manner. It cannot be said to be defamatory publication made, hence I find no ground to quash the publication (P-3). 17) The learned Judge of the Madra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the Bank to publish the photograph of the borrower and the surety, is also authorized by the statutory rules. 31. Lastly, with the advent of the Right to Information Act, 2005, the Bank has become obliged to disclose information to the public. Section 3 of the said Act entitles all citizens to a right to information. Section 4(2) of the said Act provides as follows: 2. It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of Clause (b) of Sub-section (1) to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. Public Authority is defined under Section 2(h) of the Act to include anybody owned, controlled or substantially financed . Therefore, the respondent Bank is a Public Authority within the meaning of the Act and they owe a duty to disseminate information even suo moto. Certain exemptions are listed out under Section 8 of the Right to Information Act, 2005, two of which are of significance and they read as follows: 8. Exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Judge deciding Archana Chauhan (supra) was of the opinion that publication of photographs is not an impermissible mode. It is neither arbitrary or illegal nor defamatory. 20) In my humble view, the opinions recorded in the paragraph extracted supra are neither backed by any reason nor can be supported with reference to any provision of the SARFAESI Act or the rules framed thereunder. It is settled law that broadly, every judgment of a superior courts has three segments, viz. (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The principle on the basis whereof a legal issue is answered forms the ratio decidendi of a judgment. It is the ratio decidendi of a judgment and not the conclusion that operates as a precedent. The principle, on the basis of which His Lordship reached the opinions as recorded, is conspicuous by its absence. Opinions, without anything more, cannot be of much persuasive value and hence I am left with no other option but to decline to be ad idem with the same. 21) The learned Judge while deciding K. J. Doraisamy (supra) was of the view that right to privacy is not absolute and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice unless such act is forbidden by law, for a public authority it is the other way round. It has no power to act in a particular manner unless it is authorized by law. The observation that the secured creditors are entitled to invent novel methods to recover their dues, because the borrowers are finding newer and newer methods to defraud the secured creditors, can never be countenanced. Should the Court allow the secured creditors to subvert the rule of law? If the observation is allowed to represent the correct position of law, a secured creditor on being resisted to take possession of the secured asset in terms of Section 13(4) of the SARFAESI Act read with Rule 8 of the Rules need not take recourse to Section 14 thereof and would be encouraged to use musclemen to overpower the borrower and take possession. 24) Law is well settled that the State or its executive officers cannot interfere with the rights of its subjects unless they could point to some specific rule of law authorizing the act of interference. It is also well settled principle of law that when a stature requires a thing to be done in a particular manner, it should be done in that manner alone or not at all. I p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettered power to act in such manner. If it were accepted that the secured creditor enjoys the unfettered power of publishing the photograph of a defaulting borrower/guarantor and does so even before the Tribunal under Section 17 of the SARFAESI Act could be approached, and quite some time thereafter the Tribunal under sub-section (3) of Section 17 holds that the secured creditor had acted contrary to the other provisions thereof while enforcing the security interest under sub-section (4) of Section 13 and ultimately directs restoration of possession, the damage that could be caused to the reputation and dignity of an honest borrower/guarantor by reason of publication of his photograph in the interregnum would be irretrievable. It may not be possible to compensate such damage by money, if a borrower/guarantor, who has been proceeded against contrary to law by the secured creditor and whose photograph is published, is unable to bear the ignominy and takes a drastic step. Since publication of photograph of a defaulting borrower/guarantor has the potential of exposing him to irreparable loss, injury and prejudice, publication of photograph cannot be resorted to in the absence of an exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues are outstanding and as a matter of routine. 4. It may be added that the SARFAESI Act, 2002 does not mention about publication of photographs of defaulters. The Possession Notice provides for description of the immovable property more as a caution to the public at large not to deal with the property and any such dealings with the property will be subject to the charge of the Secured Creditor. 5. We, therefore, concur with the views of IBA in the matter that publishing of photographs of defaulters should not be resorted to as a matter of routine and utmost care is to be exercised while dealing with this sensitive issue. You are requested to take necessary action in this regard. 30) The RBI was conscious, despite the decisions in Archana Chauhan (supra) and K. J. Doraisamy (supra), that the SARFAESI Act does not permit publication of photograph of a defaulting borrower. The letter at best can be regarded as an advice rather than expressing any direction or order, having the force of law. In fact, what the letter observes is to deal with the sensitive issue with utmost care. The same thus cannot also come to the rescue of Mr. Sinha. 31) Turn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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