Ram Surat Shaw vs The Union Of India And Others
2022 Latest Caselaw 6344 Cal

7th September, 2022
  (D/L No.18)
     (SKB)

                                      W.P.A. 18833 of 2022

                                         Ram Surat Shaw
                                             -Versus-
                                   The Union of India and others

                             Md. Karim Warsi,
                             Mr. Riaz Abedin,
                             Sk. Saiful Hossain,
                             Ms. Arpita Mondal,
                             Md. Rahim Waris
                                                      ... for the petitioner.

                             Mr. Shaswat nayak,
                             Mr. Santosh K. Ray,
                             Ms. Sannoyee Chakravorty
                                                    ... for the Bank.

                             Mr. Shaunak Ghosh
                                          ... for the respondent no.1.

The petitioner prays for a direction on the

respondent Bank to refund an amount of

Rs.13,20,000/- to the petitioner along with interest.

Since the point of maintainability has been taken

on behalf of the respondent Bank, this needs to be

discussed first.

The respondent, Kotak Mahindra Bank Ltd., is

admittedly a private Bank. No facts have been adduced

to show that the respondent Bank has any of the

characteristics which would change the private status of

the respondent Bank to a public authority or entity.

It is well settled that a writ petition under Article

226(1) of the Constitution of India cannot lie against a

private entity. There are several decisions to this effect

including a recent decision of the Division Bench of this

court in Vedica Computer Private Limited and another

Vs. Kotak Mahindra Bank (incidentally, the same Bank

as in the present writ petition). The said decision relies

on Federal bank Ltd. Vs. Sagar Thomas and others

reported in (2003) 10 SCC 733. In the said judgment,

the Supreme Court held that a writ petition can only lie

against certain entities, namely, the State (Government),

or authority, a statutory body, an instrumentality or

agency of the State, a company which is financed and

owned by the State, a private body run substantially on

the State funding, a private body discharging public

duty or positive obligation of public nature, and a

person or a body under liability to discharge any

function under any statute.

The tests on whether the Bank which was before

the Division Bench would be held to be a government or

receiving financial assistance providing by the State was

also discussed by the Supreme Court in that decision.

The same determinative factors would apply to the

present case.

The petitioner has not raised any issue of

challenging a circular of the Reserve Bank of India nor

is it the case that the dispute between the parties is not

a private dispute for recovery of certain amounts of

money.

AIR 1989 SC 1607 (Anadi Mukta Sadguru Shree

Mukta Vs. V.R. Rudani and others) is also not applicable

to the present case, since the petitioner has an adequate

alternative efficacious remedy in the form of a civil

remedy for pursuing the refund of money.

W.P.A.18833 of 2022 is accordingly found not to

be maintainable and is dismissed for the reasons stated

above.

There will be no order as to costs.

(Moushumi Bhattacharya, J.)