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[2006(4) ADJ 106 (All)(FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : AJOY NATH RAY, C.J., SUNIL AMBWANI AND ASHOK BHUSHAN, JJ.
SUO MOTO ACTION TAKEN BY THE COURT .....Petitioner
Versus
I.C.I.C.I. BANK LTD., ALLAHABAD AND OTHERS .....Respondents
(Civil Misc. Writ Petition No. 61350 of 2005 (P.I.L.),
decided on 7th March, 2006)
(B) Allahabad High Court Rules, 1952—Chapter V, Rule 6—Jurisdiction of Division Bench—Reference by Division Bench to larger Bench for answer certain question of legal importance—If a question of law of whatever importance arises before Division Bench, ordinarily Division Bench should decide it itself—And not refer it to a larger Bench, unless there is a conflict of precedent, which makes it impossible for Division Bench to decide this way, or other—Even though there was a rule of High Court which, on a plain reading appeared to allow two Judges of a Division Bench to refer any question to a larger Bench merely on their Lordships agreement—As such, if writ petition before Division Bench is still alive, Division Bench fully at liberty, in its own wisdom, to decide all questions itself, and indeed all questions purportedly got referred to larger Bench—If petition is alive, question of law, are to be decided by D.B. itself—And C.B.I. enquiry in the case, might be ordered, or not, as D.B. might think fit—D.B. has jurisdiction to decide itself—And that jurisdiction has to be exercised. [Paras 13, 14, 15 and 16]
(C) Public Interest Litigation (P.I.L.)—Scope—Direction to have a case registered, as a Public Interest Litigation, merely because of public importance of question of law involved, was a direction not in accordance with law—And as such reference made on Administrative side by C.J., bringing matter before larger Bench, as a Public Interest Litigation, is also incorrect—And matter should never have been branded as a Public Interest litigation, either by D.B. judicially, or by C.J., acting in Administrative capacity. [Para 17]
(D) Public Interest Litigation (P.I.L.)—Jurisdiction of Court—Courts have jurisdiction to decide on points of law only when those arises in relation to, and are incidental to questions, raised by parties affecting their own rights, liabilities and interest—Court is all time deciding question of law—But it is a paradox that Court has no jurisdiction to decide a question of law, and a question of law only. [Para 26]
(E) Bank—I.C.I.C.I. Bank—Debt collecting contracts entered into by and between Commercial Banks and their debt collectors—Car loan taken by two Advocates from I.C.I.C.I. Bank—Their complaint was that they were criminally threatened, and that by criminal intimidation, the private debt collectors, engaged by Bank, had managed to obtain from them sums of money of order of Rs. 40,000/- and Rs. 60,000/- respectively—And also complaint was that Banks agents and ruffians and musclemen and bullies and mafias got into car, and forced him to drive to Bank premises—Division Bench referred certain questions to be decided by larger Bench, treating it to be a case of general public importance—Held, questions referred are all left open—And questions cannot be answered as a subject of Public Interest Litigation—Reference to Full Bench was not properly made—And it is annulled. [Para 27]
Hon’ble Ajoy Nath Ray, CJ.—This is a reference made by an order of an Hon’ble Division Bench passed on the 9th of September, 2005.
2. The reference was made in a Habeas Corpus Writ Petition No.58318 of 2005. In the first two paragraphs of the referring judgment, their Lordships said as follows :
“Today we have dismissed the Habeas Corpus Petition No.58318 of 2005: Rakesh Mehta and others v. State of U.P. and others as infructuous.
From the averments made in the petition and supplementary affidavit filed by ICICI Bank Ltd., some questions of larger public importance have arisen. This Court cannot lose sight of day to day happenings in the society. Therefore, we have taken suo motu cognizance of the matter on the facts that have been brought on record in the aforesaid Habeas Corpus Petition and Supplementary Affidavit”.
3. In the concluding portion where the reference was ordered, their Lordships said as follows :
“Shri V.P. Srivastava, learned counsel for the respondents has vehemently urged that this court may direct for CBI enquiry and then it would be revealed that in State of U.P. collection agency has been granted by ICICI Bank only to muscle men and bullies who are nothing but mafias and all the borrowers of the State of Uttar Pradesh, who have taken loan from the ICICI Bank are under constant threat of the mafias who are also criminally assaulting them. However, we were not issuing any such direction for holding a CBI enquiry at this stage.
From the facts stated above, in our opinion, the following questions of public importance arise for consideration.
(1) Whether licence granted to ICICI Bank under the Banking Regulations Act, 1949 or guidelines issued by the Reserve Bank of India permit the ICICI Bank to recover its dues from the borrowers through collection agents who are bullies who recover the loan by taking law in their own hands?
(2) Whether the contract entered into between the ICICI Bank and Shiv Shakti Consultancy is a legal contract and, if so, its effect? Whether the contract entered into between the ICICI Bank and Shiv Shakti Consultancy absolves the ICICI Bank from all criminal and civil liabilities?
(3) Whether Shiv Shakti Consultancy is an agent of ICICI Bank and whether the bank is liable for all actions of its collection agent or agencies who violate criminal and civil laws.
(4) Whether ICICI Bank is under a legal obligation to follow due process of law for carrying out its banking business of advancement of loans and recovery of its dues? Whether it can disturb the rule of law by engaging collection agent that recovers the dues from the borrowers by using muscle power?
(5) Whether the ICICI Bank can recover its dues only in accordance with law by filing a civil suit?
(6) Whether the ICICI bank or its collection agency can take coercive action against the borrower by snatching the vehicles or taking possession of the property without following the procedure established by law and take further coercive action by locking the individual borrower in the bank or at some other place?
(7) Whether any recovery charges are paid by the bank to its collection agents and whether it is recoverable by the bank from the borrower or not and, what is the percentage of recovery charges paid by the ICICI Bank to the collection agent.
(8) Whether ICICI Bank can ignore the provisions of Section 138 of the Negotiable Instruments Act, 1881 in case of bounced cheques and proceed to recover the amount of the bounced cheques through their collection agent by force?
(9) Whether the Nationalised Banks which recovers its dues from the borrowers in accordance with law could be permitted to adopt the same procedure for recovery of its dues from the borrowers as adopted by the private banks like ICICI Bank through collection agents who take law in their own hands?
(10) Whether for recovery of any amount from a borrower two different parallel systems could exist, one in accordance with law followed by the Nationalised Banks and the other foll
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