“Even if the Bank is a public sector bank, demand for processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty”, the Kerala High Court made this observation on Wednesday, while dismissing a Writ Petition challenging the demand made by the respondents (IDBI) towards processing fee of an alleged credit facility and also relating to withholding of the title deeds of the properties which were mortgaged/given in security.
The Single Bench of Justice Justice P. V. Asha heard a petition filed by Unimoni Financial Services Ltd seeking to to declare that the demand made by the respondents to the petitioner for payment of an amount of Rs.11,00,000/- towards the alleged processing fee as per Exhibit P4 renewal offer, as a condition precedent inter alia for the return of original property documents belonging to the petitioner, is arbitrary and illegal.
Paulose, the counsel for the petitioner relying on the judgments in R.D.Shetty v. International Airport Authority [(1979) 3 SCC 489], Sukhdev Singh v. Bhagatram [(1975) 1 SCC 421 (Para.50, 61, 67), M/s.Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port [AIR 1989 SC 1642], Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111] etc. argued that till December, 2018 the Government of India held 50.12% shares and after 2018 the shares of Government of India has been W.P(C).No.17635/2020-D 5 reduced to 47.11%; whereas the LIC holds the share of 51%.
It was further argued that even as per the order passed by the RBI, the IDBI is treated as a private bank only for regulatory purposes; therefore, it would continue to be a public sector bank for all other purposes; the only difference is that LIC has got more shares. It was argued that LIC is a statutory establishment and therefore it cannot be said that no writ will lie. Relying on the judgment of this Court in Lonankutty Antony v. Joint Registrar of Co-operative Societies [2016 (2) KLT 281] and the judgment of the Calcutta High Court in W.P(C).No.29749 of 2008 against Bank of Bengal it was submitted that IDBI is one controlled by the Central Government and it is always under the watch of Central Vigilance Commission.
At the same time, the learned counsel for the respondent pointed out that the Writ Petition, which is filed as against the collection of processing charges arises out of a purely contractual transactions, for which the remedy lies before a civil court or Ombudsman and the relationship of the petitioner and the respondent is that of a banker and a customer.
“It is not disputed that the Bank was originally established under ‘The Industrial Development Bank of India Act, 1964’ or that the said Act is repealed by the Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003. As per Section 3 of the 2003 Act, undertaking of the Development Bank got vested in the Company. Reserve Bank has issued a letter dated 14.03.2019 to the effect that the Bank is categorised as a Private Sector bank for regulatory purposes with effect from 21.01.2019,” observed the High court.
While citing the Judgement in K.K. Saksena v. International Commission on Irrigation & Drainage: (2015) 4 SCC 670,in which the Apex Court found that in order to determine the maintainability of a Writ Petition under Article 226 of the Constitution of India as there was no obligation for it to discharge activities which were statutory or of public character and that the activities were undertaken by it voluntarily.
“In Girish G & another v. State of Kerala & others [2020 KHC 289: ILR 2020 (2) Ker 676], held that CIAL is not an authority under Article 12 of the Constitution of India and no writ will lie against it for enforcing personal contracts, while considering the validity of the orders terminating services of certain employees”, the court analysed.
It was held by the High Court that when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
“In the above circumstances, I am of the view that the Writ Petition is not maintainable under Article 226 of the Constitution of India. Writ Petition is accordingly dismissed.”, the Judgement reads.