The main legal point established is that the duty of the bank to maintain secrecy is superseded by larger public interest and the bank's own interest under certain circumstances, and the right to privacy fades out in front of the right to information and larger public interest.

S. MANIKUMAR, J.

1. Borrower, who could not repay and stated to have been affected due to ‘Thane’ cyclone, has sought for a writ of mandamus, forbearing respondents from publishing the loan Nos.910030023562861, 798010600004992, 912060042286888 and 798010600004985 through newspapers, news media, posters, boards under SARFAESI Act.

2. The issue as to whether Banks are empowered to publish the photographs of the borrowers/guarantors, who have defaulted in making payments, in dailies and electronic media, is no longer res integra.

3. After considering a catena of judgments relating to right to privacy, constitutional provisions, Universal Declaration of Human rights, dealing with privacy, the bankers obligation to maintain secrecy qua its customer, decided in Shankarlal Agarwalla Vs. State bank of India (AIR 1987 Calcutta 29) and other decisions, in K.J.Doraisamy Vs. The Assistant General Manager, State Bank of India, Erode branch and another {2006 (5) CTC - 829}, a learned Single Judge of this Court, at paragraph Nos.25 to 32, held as follows:-

“25. Once it is seen that the right to privacy is not an absolute or inviolable right, then the next question that falls for consideration is as to whether the Bank, with whom the customer has a fiduciary relationship, is entitled to disclose or publicise the information in their possession, resulting in a breach of the duty of secrecy and confidentiality. Dealing with the duty of the Bank to maintain secrecy qua its customer, it was held in Shankarlal Agarwalla -vs.- State Bank of India (AIR 1987 Calcutta 29), as follows:-

“10. The Banker is under an obligation to secrecy. According to Lord Halsbury’s Laws of England 4th Edn. Vol.3 p.72 Article 97.

"It is an implied term of the contract between a banker and his customer that the banker will not divulge to third person without the express or implied consent of the customer either the state of the customer’s account or any of his transactions with the bank or any information s relating to the customer acquired through the keeping of his account unless the banker is compelled to do so by order of a Court or the circumstances give rise to a public duty of disclosure or protection of the banker’s own interest requires it."

"11. In the case reported in (1924) 1 KB 461 at 472 Tournier vs. National Provincial and Union Bank of England it was held that under four heads the bank could disclose such informations namely - (a) where the disclosure was under compulsion by law, (b) where there was a duty to the public to disclosure, (c) where the interest of the bank require disclosure and (d) where the disclosure was made by express or implied consent of the customer. It was held:-

"An instance of the first class is the duty to obey an order under the Banker’s Books Evidence Act. Many instances of the second class might by given. They may be summed up in the language of Lord Finlay in Weld-Blundell vs. Stephens where he speaks of cases where a higher duty than the private duty is involved, as where "danger to the State or public duty may supersede the duty of the agent to his principal". A simple instance of the third class is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. The familiar instance of the last class is where the customer authorises a reference to his banker."

26. Thus even the English law recognized that the “duty of the Bank to disclose information to the public” or the “interest of the Bank requiring disclosure” supercedes the duty of secrecy.

27. The extent of liability of a Bank to maintain secrecy towards its customers, fell for consideration in Kattabomman Transport Corporation Ltd., -vs.- State Bank of Travancore (AIR 1992 Kerala 351), which arose out of the dismissal of an employee of a public sector undertaking, set aside by the High court. The High court directed reinstatement with back wages subject to the condition that the employee was not gainfully employe