Dismissed

Y.Sleebachan v. the State of Kerala

Kerala HC11 Aug 2020WA/1018/2020

Case brief

AI extract

What is this about?

Appeal by a government works contractor against dismissal of his writ petition challenging the bank's refusal to issue a solvency certificate required for renewal of his contractor's licence and the classification of his account as NPA. The Division Bench held the bank performs no public duty and is not amenable to Article 226; the writ petition was not maintainable. Appeal dismissed.

What the court decided

AI extract

Y.Sleebachan Vs the State of Kerala — Banking and Recovery | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942

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WA.No.1018 OF 2020

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AGAINST THE JUDGMENT IN WP(C)12774/2020(V) OF HIGH COURT OF KERALA DATED 23.7.2020

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APPELLANTS:

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Y.SLEEBACHAN, AGED 57 YEARS CHARUVILA VEEDU, CHENGAMANAD P.O., KOTTARAKKARA-691 557.

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BY ADV. SRI.B.J.JOHN PRAKASH

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RESPONDENTS:

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1 THE STATE OF KERALA

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REPRESENTED BY THE SECRETARY TO GOVERNMENT, PWD DEPARTMENT, SOUTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE FEDERAL BANK, REPRESENTED BY THE BRANCH MANAGER, EDAMON BRANCH, EDAMON P.O., PUNALUR (VIA), KOLLAM-691 307.

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SR.G.P.SURIN GEORGE IPE FOR R1 SRI.K.P.SUJESH KUMAR, SC FOR R2

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

Dated this the 11^th day of August 2020

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S.MANIKUMAR, C.J.

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Brief facts leading to this appeal are that the appellant is an Engineering Contractor and duly registered as a MSME service provider. The appellant is also a partnership firm. The appellant in his individual capacity is engaged in carrying out contract works for Public Works and Irrigation Departments, in the States of Kerala and Tamil Nadu.

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Brief facts involved in this case are as follows:

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The appellant was granted a credit facility to Rs.100 lakhs and the partnership firm was granted a credit facility of Rs.150 lakhs. The partnership firm, in which the appellant was a partner was classified as NPA, on account of some error in the communications made between the appellant and the respondent bank. The said partnership firm approached this court vide W.P.(C)No.26060/2019 challenging the entire proceedings initiated by the respondent bank, consequent to the classification of the appellant's account as NPA. While the above writ petition was pending consideration, the said partnership firm entered into a settlement with the respondent bank assuring them payment of a minimum of Rs.100 lakhs before the end of November, 2019 and

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further undertook to close the account before 31^st March, 2020. The said writ petition was therefore withdrawn, based on the said agreement between the parties vide Ext.P2 judgment. In accordance with the undertakings made, the appellant made a payment of Rs.100 lakhs to the account of the partnership firm. The appellant also sought renewal of cash credit limits and complete waiver of the overdues/penal interest, as well as the reduction of interest in the accounts.

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The respondent bank, however, failed to reply to Ext.P3 letter despite several reminders send by the appellant. In the meanwhile, the mandatory renewal of license of all government works contractors were to be made prior to 31.3.2020, as per G.O.(MS)No.22/2020/PWD issued by the State Government. The appellant therefore, requested the respondent bank to issue a Solvency Certificate of 100 lakhs for complying with the mandate for renewal of his license. The license was to be renewed as per the Rules and conditions for registration of contractors issued by the Public Works Department. The appellant sent a email enclosing the application forms for issuance of Solvency Certificate. The appellant, on the very same day submitted all the requisite documents, as demanded by the respondent bank. Vide G.O. (Rt)No.402/2020/PWD dated 7.4.2020, the time limit for renewal of the license was subsequently revised upto 15.4.2020 and thereafter, upto

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30.6.2020 vide G.O.(Rt)No.510/2020/PWD dated 8.6.2020, due to the lockdown imposed by Central Government, in order to combat COVID 19 pandemic.

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However, despite repeated requests made by the appellant, the respondent bank though initially agreed to issue the Solvency Certificate, later issued Ext.P6 letter, declining to issue the Solvency Certificate, alleging that the appellant's account was classified as NPA. It is submitted by the appellant that the respondent bank has acted in an arbitrary manner and without any application of mind, refused to issue the solvency certificate, despite incurring no liability by the appellant.

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It is submitted that the appellant being a Government works contractor is entitled to his livelihood, which could be secured only through renewal of his license, as mandated by the State Government. Non issue of the Solvency Certificate is clearly, a means to stifle the very livelihood of the appellant and hundreds of employees working under him. A Solvency Certificate in the financial world is a proof of solvency, which only means that the person's assets are more than his liabilities. A bank may issue Solvency Certificate to the individuals, stating that the total assets held by an individual, especially, when the assets of the said person are duly mortgaged/hypothecated with the bank. In the instant case, a Power of Attorney in several receivables

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have also been executed in favour of the bank. It is also submitted that the issuance of a Solvency Certificate is normally a function of the State and not falling within the purview of commecial banking operations. However, in the instant case, when the public works department of the Kerala Government mandates a Solvency Certificate to be obtained from a bank, the said function to be discharged by the bank, parttakes the colour of an executive function of the State Government upon which the livelihood of the appellant and his employees hinge.

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The appellant being a Government contractor is yet to receive over Rs.8 crores towards realisation of various bill submitted to both Kerala and Tamil Nadu Governments. The appellant has obtained arbitration awards and judgments from various Civil Courts determining the dues payable to the appellant, by both the Governments towards the works carryout by the appellant, as evidenced from Exts.P7 to P9.

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Suffice to state that all the details of the receivables of the appellant, were duly informed to the respondent bank, who had also verified the same with the concerned Departments and obtained assurances of payment. It is no fault of the appellant that payments due from the State Governments of both Kerala and Tamil Nadu are delayed. The factors contributing to such delay is clearly beyond the

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control of the appellant. According to the appellant, his entire business would fail, due to the non issuance of this Solvency Certificate.

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The appellant is solvent and fully capable of repaying entire dues to the respondent bank provided a breathing time is granted to him for realizing the amount receivable for various works due by him. The respondent bank being the sole entity empowered to issue a Solvency Certificate to the appellant, as the appellant carries out the entire financial transactions through the respondent bank, for the purpose of securing his sole livelihood Bank is expected to exercise its administrative functions, bonafide with a fair mind.

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There has been several other instances where banks have issued Solvency Certificates to accounts which have been classified as NPA. In the instant case, appellant had been regularly paying interest due and carrying out the transactions, through his account till January, 2020. The account of the appellant is active, and dues are being regularly paid by the appellant, which according to the petitioner is seen from Ext.P10 statement.

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As per the directions contained in the Master Circular dated 1.7.2015 on income recognition, asset classification etc. issued by the Reserve Bank of India, classification of the appellant's account as NPA is erroneous. Ext.P11 clearly defines assets that are to be classified as NPA. It is the contention of the learned counsel for the appellant, that

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the appellant's account as seen from Ext.P10 does not qualify to be classified as NPA. Hence, the entire action of the respondent bank is discriminatory. The issue of a solvency certificate is a discretion that is vested in the respondent bank.

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It is the case of the appellant that the account of the partnership firm, in which the appellant is a partner has been classified as NPA pursuant to which, the appellant's account has been arbitrarily classified as NPA. The appellant has entered into a settlement with the respondent bank with respect to the default in the partnership account and paid Rs.100 lakhs on 27.1.2020 as agreed and had also undertaken to close the said account by March 2020.

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Due to the unexpected lock down, on account of COVID 19 pandemic, the appellant was prevented from making the said payment. However, contrary to the assurances made by the bank, credit facilities of the appellant has been refused to be renewed and retained the classification as NPA despite there being no dues in the appellant's account on January 2020.

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The respondent bank even refused to issue a solvency certificate to the appellant, which is mandated for renewal of the appellant's license, as a Government Works Contractor. Appellant has contended that classification of the appellant's account as NPA is erroneous, and refusal to issue solvency certificate, Ext.P6 is arbitrary,

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and violative of the fundamental rights of the appellant guaranteed under Articles 14 & 19 (1)(g) of the Constitution of India.

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Challenging the action of the bank, the appellant therefore filed W.P.(C) No.12774/2020 for the following reliefs:

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i. issue a writ in the nature of certiorari or any other appropriate writ, order, direction to the respondent bank quashing the decision leading to Ext.P6 and direct the first petitioner to consider the application for issue of solvency certificate made by the petitioner afresh and pass appropriate orders therein within a reasonable time so as to enable the petitioner duly complete the formalities mandated for renewal of his license as seen from Ext.P5.

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ii. issue a writ in the nature of mandamus or any other appropriate writ, order, direction to the respondent bank directing them to reclassify the petitioner's account as per the guidelines issued by the Reserve Bank of India from time to time and not to arbitrarily classify the account of the petitioner as non-performing asset despite there being no default by the petitioner as seen from Ext.P10.

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Iii. Issue a writ in the nature of mandamus or any other appropriate writ, order, direction to the second respondent directing them to grant further time to the petitioner for submission of application for renewal of license as contemplated in Ext.P5, in the event of any delay caused by the respondent bank in issuing the solvency certificate.

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Being aggrieved, instant writ appeal is filed.

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Adverting to the pleadings and submissions, writ court, vide judgment in W.P.(C)No.12774 of 2020 dated 23.7.2020 dismissed the writ petition thus:

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“5. The learned counsel for the petitioner places reliance on the decisions of the Apex Court in Binny Ltd. & Anr. v. V. Sadasivan & Ors. [(2005) 6 SCC 657], in Central Bank of India v. Ravindra and Ors. [(2002) 1 SCC 367] and of the Madhya Pradesh High Court in Pt. Girija Shankar Sharma v. Collector,

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Hoshangabad [AIR 1974 MP 83]. It is contended that the decision in Sagar Thomas's case was issued in the factual backdrop where a service dispute was sought to be raised in a writ petition by an employee of the Federal Bank and it was in the said circumstances that the Apex Court held that a private company carrying on banking business as a scheduled bank cannot be termed to be an institution carrying on any statutory or public duty and that as such a writ petition is not maintainable. It is contended that the rules and conditions for registration of contractors as contained in the Government Order dated 17.7.2013 makes it incumbent on contractors who require registration to produce a solvency certificate from any nationalised or scheduled bank. It is stated that the rejection of the solvency certificate would entail the inability of the petitioner to renew his licence and would thus be to the detriment of the petitioner. It is contended that a Division Bench of this Court in similar situations has held that the refusal to issue solvency certificate in violation of the guidelines issued by the Reserve Bank of India for classification of NPAs is illegal and that financial institutions cannot be permitted to classify assets as NPAs at their whims and fancies without following the guidelines. It is further contended that the petitioner would have no remedy as against the refusal of solvency certificate and that as such, this Court is duty bound to issue a writ as sought for.

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I have considered the contentions advanced. The Apex Court in Sagar Thomas's case has specifically held that a private company carrying on banking business as a scheduled bank is not carrying out any statutory or public

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duty and that it cannot be compelled to perform its commercial obligations through the issue of a writ under Article 226 of the Constitution of India. The Madhya Pradesh High Court in Pt. Girija Shankar Sharma's case was considering the refusal of a solvency certificate by the District Collector and it was held that though the issuance of solvency certificate is not regulated by any statutory provision, a government officer, who is entrusted with the duty of considering applications for solvency certificates has to exercise his administrative functions bona fide and with a fair mind. On a finding that the decision to refuse solvency certificate taken by the District Collector was vitiated by malafidies , the High Court interfered and directed the issuance of the certificate. The decision relied on by the learned counsel for the petitioner with regard to the classification of accounts as NPA was also issued in the backdrop of the fact that the financial institution in question was a nationalised bank, which answers the definition of 'State' under Article 12 of the Constitution. Though it may be perfectly true that the master guidelines issued by the RBI in respect of classification of assets as NPA is liable to be followed by the 2nd respondent, it is equally true that the petitioner has not approached the RBI, the Banking Ombudsman or any other authority empowered to consider the factual aspects of such a complaint. The petitioner has directly approached this Court seeking the setting aside of a decision taken by the Bank not to issue the solvency certificate and seeks a reconsideration of the matter on the basis of the RBI guidelines.

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Having considered the contentions advanced and having

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given anxious consideration to the decisions relied on, I am of the opinion that the prayers as sought for cannot be granted since the 2^nd respondent is not 'State' under Article 12 and is not entrusted with any public duty in the matter of its commercial banking operations. The writ petition therefore fails and the same is accordingly, dismissed.”

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As argued before the writ court, Mr.John Prakash.B.J., learned counsel for the appellant, made an attempt to distinguish Federal Bank Ltd. v. Sagar Thomas and others reported in (2003) 10 SCC 733 and contended that in the said case was a service dispute between an employee and bank, and that the decision in Sagar Thomas's case cannot be applied to the case on hand, where the bank as per clause 1906.1 in G.O.(MS)No.59/2013/PWD dated 17.7.2013 is bound to follow as regards issuance of Solvency Certificate.

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According to the learned counsel for the appellant, issuance of Solvency Certificate is the function of the Revenue Department. But the Government of Kerala have issued G.O.(MS)No.59/2013/PWD dated 17.7.2013, obligating the bank to issue a Solvency Certificate. It is the case of the appellant that approaching RBI or Ombudsman or any other authority, at the time of lock down is not practically feasible and that the only remedy available to the appellant is to approach this court.

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In support of the contention that, bank is performing a public duty and therefore a writ petition is maintainable. Relying on the

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decisions in Pt. Girija Shankar Sharma vs. Collector, Hoshangabad reported in AIR 1974 MP 83 and the judgment of the Hon'ble Supreme Court in Binny Limited and another v. Sadasivan and others reported in (2005) 6 SCC 657, learned counsel for the appellant has prayed for reversal of the judgment in W.P.(C)No.12774 of 2020 dated 23.7.2020.

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Heard learned counsel for the appellant and perused the materials on record.

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Order impugned in the writ petition Ext.P6 dated 29.5.2020 reads thus:

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Shri.Sleebachen.Y Charuvila Veedu, Changamanadu P O Kottarakara, Kollam-691 557.

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Dear Sir,

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Sub: Your letter dated 26.5.2020

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Ref: Your NPA accounts with branch Edamon

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With regard to your letter dated 26.5.2020, we inform as follows:

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Bank is not in a position to issue Solvency Certificate at this juncture, as your accounts are continuing in NPA status since 2018. The same has already been conveyed to you in advance.

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However, considering your present financial difficulties, Bank may extend a helping hand by keeping stringent recovery measures in abeyance till 30.9.2020 provided you could close both OD/CC limits of M/S Valiyavilayil Constructions and in your personal name within that period.

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Regarding other loan accounts, you shall clear entire then arrears within 30.9.2020.

Yours faithfully,

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Assistant Vice President & BH (Authorised Officer)

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Government of Kerala have issued G.O.(MS)No.59/2013/ PWD dated 17.7.2013, setting out the rules and conditions in terms of Section 1901, for Registration of Contractors, as appended therein, and clause 1906 deals with financial capability.

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1906 Financial Capability

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1906.1 An individual or firm desirous of registering directly as a contractor in the Public Works Department to any category shall produce Solvency Certificate from a nationalized/ scheduled bank to prove his financial capability for investing money up to the limits detailed below. A Capability Certificate issued by a nationalized/scheduled bank for the same limits shall be produced for up gradation of category of registration or renewal of registration.

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Contention of the learned counsel for the appellant is that it is the Revenue Department which has to issue the Solvency Certificate. If the Government had relegated the power of issuance of Solvency Certificate to the banks, it is for the appellant to challenge the same, if he desirous to do so. But the facts remains that as per the G.O. (MS)No.59/2013/ PWD dated 17.7.2013 the appellant has to produce a Solvency Certificate from the bank, and accordingly, the request made has been rejected by the bank.

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Though learned counsel for the appellant has raised a contention that on the facts and circumstances of the case, whether the account of the appellant can be declared as NPA or not, we are not

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inclined to delve into the same, as the core question, raised and to be considered is, whether a bank is performing a sovereign function, similar to that of State? Whether a writ petition is maintainable against a bank?

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Argument advanced before this court that a bank is performing a public duty, and hence, writ is maintainable.

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Let us consider the decisions relied on by the learned counsel for the appellant.

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In Pt. Girija Shankar Sharma vs. Collector, Hoshangabad reported in AIR 1974 MP 83, the facts in a nutshell are as under:

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“2. The petitioner wanted to give a tender for construction of tube-wells, the last date for which was 6-121972. For giving tender, solvency certificate of Rs. 1,00,000/(One lac) was required by the petitioner. He, therefore, filed an application on 9-11-1972 accompanied by certain documents vide Annexures A, B, C to the Collector, Hoshangabad who was the competent authority to grant the certificate. The said application was rejected by the Collector on 7-12-1972 vide Annexure 'D'. The contention of the petitioner is that the rejection of his application was mala fide due to personal grudge against Shri Ramlal Sharma, the natural father of the petitioner and that it was wholly unjustified. He has, therefore, filed this petition, praying that the order of the Collector, Hoshangabad be quashed and an appropriate writ be Issued directing the respondent to issue a solvency certificate for Rs. 1,00,000/-(One Lac) to the petitioner.”

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Among other defence, learned counsel for the respondent

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therein, has raised a preliminary objection that the writ petition is not maintainable, because the grant of solvency certificate is regulated by

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Government instructions, which are non-statutory. In support of his contention learned counsel for the respondent therein has relied on two decisions of the Hon'ble Supreme Court, the State of Assam v. Ajit Kumar Sharma , reported in AIR 1965 SC 1196 and G.J. Fernandez v. State of Mysore , reported in AIR 1967 SC 1753 wherein, it was held mere administrative instructions do not confer any right on any member of the public, to ask for a writ against the Government to enforce the same.

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Question considered by the Hon'ble Madhyapradesh High Court was whether a public body enjoined with a public duty has to act fairly, and whether the discretion conferred on such public authority Collector therein, had discharged his duties, no matter, whether he has governed by administrative instructions or not. In Pt. Girija Shankar Sharma's case , the Hon'ble Madhya Pradesh High Court held thus:

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It is no doubt true that grant of a solvency certificate is not regulated by any statutory provision but a Government Officer is expected to exercise his administrative functions bona fide with a fair mind. If he acts arbitrarily and abuses his administrative powers to the prejudice of a party, his action is open to challenge by the party adversely affected on the ground that it is discriminatory. The discrimination in such cases arises out of malice or personal bias and as such it offends Article 14 of the Constitution of India.

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Whenever a discretion is vested in a public body or other authority, the discretion must be exercised fairly and honestly with due regard to the purpose for which it is vested and not arbitrarily with an ulterior purpose. In Susannah Sharp v. Wakefield, 1891 AC 173, Lord Halsbury L.C. observed as under while dealing with the exercise of discretion by Magistrates in

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the matter of grant of licences under the Licensing Act:

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"An extensive power is confided to the justices in their capacity as justices to be exercised judicially: and "discretion" means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case 5 Rep 100 a: according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. Wilson v. Rastall, (1792) 4 TR 753 at p. 757."

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The Government usually insist upon a solvency certificate before accepting a tender of a party. Thus a solvency certificate is essential for a party, who wants to engage in a contract or other business activity with the Government. An arbitrary refusal of the solvency certificate therefore infringes upon the fundamental right of the party to carry on trade or business guaranteed by Article 19 of the Constitution of India."

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Going through the judgment, it is evident that the exercise of power by the Collector was found to be erroneous and hence the court set aside the order impugned therein. There cannot be any doubt that Collector is exercising a public duty. Question as to whether bank is discharging public duty or not, was not a question raised therein. Said judgment is totally inapposite to the case on hand. It cannot be treated as a precedent to the instant writ petition.

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30. In Federal Bank Ltd. Vs. Sagar Thomas & others

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reported in (2003) 10 SCC 733 , termination of a bank manager was challenged in a writ petition. On the objection of the Federal Bank that

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it is a private bank, not a state or an instrumentality within the meaning of Article 12 of the Constitution of India and hence a writ petition is not maintainable, the High Court dismissed the writ petition and confirmed by the Bench. Correctness of the same was challenged before the Honb'le Apex Court. Ultimately, the Hon'ble Supreme Court decided the issue in favour of the Bank.

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Though Mr.John Prakash.B.J., learned counsel for the appellant made an attempt to distinguish Sagar Thomas's case , on the ground that, in the context of a challenge to the termination of services of an employee, the Hon'ble Apex Court dismissed the challenge and that therefore the said judgment is not applicable to the proposition that a writ against a bank is not maintainable and further contended that the bank is performing a public duty, we are not in agreement with the contentions that, as regards the nature of duty performed by the bank, the Hon'ble Supreme Court has categorically held that, the bank does not perform any sovereign function nor does it exercise any authority over a third person. Hon'ble Supreme Court further held that the nature of the activity of the bank is that of a commercial undertaking which receives deposits from the individuals and advances loans and performs other ancillary monetary transactions.

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In Binny Limited and another v. Sadasivan and others

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reported in (2005) 6 SCC 657, the challenge was to a clause 8 in an agreement read with the termination order challenged on the grounds that it is violative of Section 23 of the Indian Contracts Act, 1872 and Article 21 of the Constitution of India. Besides, employees therein sought for reinstatement, continuity of service and backwages. Maintainability of the writ petition was opposed. A Division Bench of the Madras High Court held in favour of the employees. Correctness of the said decision was challenged in the Hon'ble Supreme Court. After considering Federal Bank's case , and other decisions, the Hon'ble Supreme Court held thus:

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“Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to

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distinguish between public law and private law remedies. According to Halsbury's Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.”

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“Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.

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We are unable to perceive any public law element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matters. So also, in the civil appeal arising out of SLP(Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court. We see no merit in the contention advanced by the appellant therein. The High Court rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company.

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In the result, we set aside the declaration ordered by the High Court and allow Civil Appeal No. 1976 of 1998 to the extent indicated above. Civil Appeal arising out of SLP (Civil) No. 6016 of 2002 is dismissed leaving open the right of the appellant to seek redressal of his grievance before other appropriate forum.”

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The Hon'ble Apex Court laid down the broad principles as to when a writ of mandamus could be issued against a private body discharging public duty. Binny's case cannot be said to be precedent applicable to the case before us, where the declaration of NPA and the refusal to issue a Solvency Certificate were challenged. None of the decisions relied by the learned counsel for the appellant lend support to his proposition of law that a writ against a bank is maintainable.

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At this juncture, we deem it fit to consider what precedent means:

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In C.J.Thomas v. South Indian Bank Limited and others reported in [1987(1) KLT 101] , the appellants therein working in banks not included in the Schedule to the Reserve Bank of India Act, 1934 challenged their non-promotion and super session. Relevant portion of the judgment reads thus:

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“7. It was strenuously argued before us that these two banks are discharging public functions and that there is an effective and strict control by the Reserve Bank and that would be sufficient to bring these two banks within the definition of "State" in Article 12. It may be that these banks are discharging public functions or that the functions they discharge are sufficiently important to the public. It is true that the Reserve Bank of India has a hold and control over the functioning of all scheduled banks. These two features alone cannot make these two banks instrumentalities of the State. A mere statutory regulation or restriction in the conduct of the affairs of a company or society is not an imprint of "State" under Article 12. It is well within the province of a statute to impose reasonable restrictions. They have

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protection under Article 19(5) of the Constitution. The State can thus regulate and even prohibit the conduct of trade or business. As observed by Mathew J. in Sukhdev Singh's case [1975] 45 Comp Cas 285, 318 (SC).

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"A mere finding of State control also is not determinative of the question, since a State has considerable measure of control under its police power over all types of business operations ."

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When it is said that deep and pervasive control is one of the distinguishing features of "State" or "other authority" within the meaning of Article 12, what is meant is deep and pervasive financial control and not strict and severe statutory restriction.

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In the result, we agree with the learned single judge that the two scheduled banks, the Catholic Syrian Bank Ltd, and the South Indian Bank Ltd., are not amenable to the writ jurisdiction under Article 226 of the Constitution as they are not "other authorities" within the meaning of Article 12. The writ petitions are not maintainable and they were rightly dismissed.”

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35. In Mathew Ignitious C. v. Catholic Syrian Bank Limited

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reported in 2020 (1) KLJ 132 , an employee challenged the order of transfer, issued by the bank. Contention was raised that employees of the bank are dealing with public money and hence the duty discharged by them are public duties and therefore bank is amendable to writ jurisdiction. After considering various decisions, a Hon'ble Division Bench at paragraph 11 held thus:

¶150

The legal position emerging from the expositions in the aforementioned judgments lead to the irresistible conclusion that the Catholic Syrian Bank, which is a scheduled bank and registered as a Company under the

¶151

WA.No.1018 OF 2020

¶152

: 22 :

¶153

Companies Act does not fall within the definition of 'State' or 'other authorities' in Article 12 and the Bank cannot be termed as an institution or company performing any public function/duty, and the dispute arising out of the contract of personal service between the Bank and the appellant is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

¶154

In Rajbir Surajbhan Singh v. Chairman, Institute of Banking Personnel Selection, Mumbai reported in (2019) 14 SCC 189 = 2019 (&) SCALE 23 = 2019 (3) KHC 625 , after considering a catena of decisions, the Hon'ble Supreme Court held thus:

¶155

“8. It is true that the Governor of the Reserve Bank of India and the Chairmen of certain Public Sector Banks along with the Joint Secretary, Banking Division, Ministry of Finance are members of the governing body of the Respondent-Institute. There is no dispute that the Respondent is not constituted under a statute. It is also not disputed that the Respondent does not receive any funds from the Government. The Respondent is not controlled by the Government. The letter dated 20.09.2010 produced by the Appellant along with the rejoinder affidavit does not show deep and pervasive control by the Government of India. The question of whether the Council of Scientific and Industrial Research fell under ‘other authorities’ within the meaning of Article 12 was referred to a 7 Judge Bench of this Court. [See: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others. (supra)]. Resolving the dispute, the 7 Judge Bench in Pradeep Kumar Biswas (supra) held that the question as to whether a corporation/society would fall within the meaning of Article 12 should be decided after examining whether the body is financially, functionally and administratively dominated by or under the control of the Government. This Court observed that such control should be particular to the body in question and must be pervasive.

¶156

WA.No.1018 OF 2020

¶157

: 23 :

¶158

A control which is merely regulatory under the statute or otherwise would not make the body ‘State’ under Article 12. As there is no control by the Government over the Respondent in the manner mentioned above, we have no doubt in our mind that the Respondent cannot be said to be falling within the expression ‘State’ under Article 12 of the Constitution of India.

¶159

The question that remains to be answered is whether the Writ Petition is maintainable against the Respondent on the ground that it discharges public duty. This Court in Andi Mukta Sadguru S. M. V. S. S. J. M.S.T. and Ors. v. V.R. Rudani and Ors. (supra) held “The term ‘authority’ used in Article 226 of the Constitution of India, must receive a liberal meaning unlike the term “other authorities” in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue Writs for enforcement of fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or the authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.”

¶160

This Court in the said judgment also referred to what Professor S.A. de Smith stated in ‘Judicial Review of Administrative Action’, which is as follows:

¶161

“To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.”

¶162

In Regina v. Panel on Take-Overs and Mergers, Ex parte Datafin PLC and Another8, Lloyd L. J. speaking for the Court of Appeal held that if the duty is a public duty, then the body in question is subject to public law. The distinction must lie in the nature of the duty imposed, whether expressly or by implication. He referred to an earlier judgment in Reg. v. Criminal Injuries Compensation Board, Ex. Parte Lain9 where Diplock L.J. held that in addition to looking at the source of

¶163

WA.No.1018 OF 2020

¶164

: 24 :

¶165

power for the purpose of deciding the question [1987] 1 Q.B. 815 (C.A.) [1967] 2 Q.B. 864, D.C. pertaining to public law, nature of power is an important facet to decide whether a dispute pertains to public law or private law.

¶166

There is no manner of doubt that a Writ Petition under Article 226 is maintainable even against a private body provided it discharges public functions. While deciding the question as to whether ICRISAT is amenable to the writ jurisdiction under Article 226, this Court held that it is not easy to define what a public function or public duty is. It can reasonably be said that such functions as are similar to or closely related to those performable by the State in its sovereign capacity, are public functions. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture, purely on a voluntary basis which according to this Court, is not a public duty. A private company carrying on banking business as a scheduled commercial bank cannot be termed as an institution or a company carrying on any statutory or public duty.

¶167

G. Bassi Reddy v. International Corps Research Institute (2003) 4 SCC 225 Federal Bank v. Sagar Thomas (2003) 10 SCC 733 13. In K.K. Saksena (supra), this Court observed that the Respondent therein would not be amenable to Writ jurisdiction under Article 226 of the Constitution of India, as the activities were voluntarily undertaken by the Respondents and there was no obligation to discharge certain activities which were statutory or of public character. Reference was made to the Federal Bank case wherein it was held that the Writ Petition was not maintainable under Article 226 of the Constitution of India in spite of the regulatory regime of the Banking Regulation Act and the other statutes being in operation. The relevant questions, according to this Court in K. K. Saksena (supra), to be answered for the purpose of deciding whether a Writ Petition is maintainable under Article 226 are:

¶168

a) Whether a private body which is a non- governmental organization partakes the nature of public duty or State action?

¶169

b) Whether there is any public element in the discharge of its functions?

¶170

c) Whether there is any positive obligation of a public nature in the discharge of its functions?

¶171

WA.No.1018 OF 2020

¶172

: 25 :

¶173

d) Whether the activities undertaken by the body are voluntary, which many a non-governmental organization perform?

¶174

The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent.

¶175

This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression “public duty”. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India.”

¶176

While considering a case as to whether a church performing marriage, discharges a public duty and amenable to writ jurisdiction, in W.A.No.53 of 2020 dated 30.6.2020, this court held thus:

¶177

“18. Public duty generally said as a duty owed to the people, a duty attached to an office under a Statute. As per P. Ramanatha Aiyer's Dictionary III Edition, the phrase “public duty or public function” can readily be defined to mean, the functions which are similar to or closely related to those performable by the State in its sovereign capacity. In Blacks Law dictionary, 9th Edition, public function is considered thus;

¶178

WA.No.1018 OF 2020

¶179

: 26 :

¶180

“In a suit under 42 USCA Section 1983, the doctrine that a private person's action constitute State action if the private person performs functions that are traditionally reserved to the State.”

¶181

Functions which are similar or closely related to those performable by the State in its sovereign capacity alone can be said to be a public duty or public function.”

¶182

Giving due consideration to the submissions and in the light

¶183

of the decisions, considered we have no hesitation to hold that the bank is not performing any public duty and hence, writ petition is not maintainable.

¶184

In the light of the above discussion and decisions, reasoned judgments of the writ court does not call for any interference in this writ appeal. Consequently, writ appeal is dismissed. No costs.

¶185

Pending interlocutory applications, if any, shall stand closed.

¶186

sd/S.MANIKUMAR CHIEF JUSTICE

¶187

sd/SHAJI P. CHALY JUDGE

¶188

jes

Y.Sleebachan v. the State of Kerala

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Y.Sleebachan v. the State of Kerala

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