M/S. Gatik Tea And Co. Private ... vs Bank Of Baroda & Ors
2023 Latest Caselaw 1875 Cal/2

                  IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Original Side


Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                                WPO 515 of 2023
                       M/s. Gatik Tea and Co. Private Limited & Anr.
                                              vs
                                  Bank of Baroda & Ors.


For the petitioners                       :   Mr. Suddhasatva Banerjee, Adv.
                                              Mr. Aasish Choudhury, Adv.
                                              Ms. Uma Bagree, Adv.
                                              Ms. Muskan Bengani, Adv.


For the Bank of Baroda                :       Mr. Dipanjan Datta, Adv.
                                              Mr. Subhajit Chowdhury, Adv.


For the respondent no. 3              :       Mr. Ranajit Chatterjee, Adv.
                                              Mr. Priyabrata Batabyal, Adv.


For the respondent no. 4              :       Mr. Sutanu Karmakar, Adv.
                                              Mr. Souvik Das, Adv.



Last Heard on                             :   26.07.2023.



Delivered on                              :   04.08.2023.
                                        2




Moushumi Bhattacharya, J.

1. The writ petitioners have challenged the conduct of the Bank of

Baroda in handing over collateral securities to the private respondent no. 4

on a notice, which the writ petitioners say, was issued under section 91 of

The Code of Criminal Procedure (Cr.P.C), 1973. The notice dated 11th

November, 2022 was issued by the police authorities; the Investigating

Officer, Bhaktinagar, Police Station, Siliguri who is the respondent no. 3 in

the writ petition. The petitioners seek setting aside of this notice dated 11th

November, 2022 and all steps in pursuance thereof.

2. According to learned counsel appearing for the writ petitioners, the

petitioners filed a police complaint on 16th February, 2022 for an

investigation against the private respondent which led the police to file a

charge-sheet under several sections of the Indian Penal Code, 1860. The

petitioners also instituted a suit being CS No. 305 of 2022 before this Court

claiming various reliefs against the private respondent. Counsel places the

challenge on the Notice dated 11th November, 2022 which was apparently

issued under section 91 of the Cr.P.C. to the Bank for release of collateral

securities in favour of the private respondent.

3. Counsel submits that section 91 of the Cr. P.C. does not authorise the

police to direct release of the concerned document in favour of the de facto

complainant, who in this case is a private respondent. It is submitted that

the Bank issued letter dated 18th November, 2022 upon receiving Notice

dated 11th November, 2022 and proceeded to release the collateral securities

in favour of the private respondent. According to counsel, the Notice dated

11th November, 2022 is wholly without jurisdiction. The investigating

authority and the police did not have authority to request the Bank to hand

over the documents to the private respondent. Counsel submits that the

Bank's reliance on the Code of Bank's Commitment to Customers is

misplaced since the duty envisaged therein lies in favour of the petitioner

no. 1 and not the private respondent.

4. Learned counsel appearing for the Bank of Baroda submits that the

Bank had no option but to hand over the collateral securities to the private

respondent upon receiving Notice dated 11th November, 2022. Counsel

places the Code of Commitment of the Bank to say that the Bank in any

event could not have held on to the collateral securities after the petitioner

closed its credit facilities with the Bank by transferring the entire portfolio to

another Bank namely, ICICI Bank Limited.

5. Learned counsel appearing for the private respondent no. 4 submits

that the writ petition is not maintainable since the dispute is essentially a

private dispute between the petitioners and the respondent no. 4. Counsel

submits that the petitioners have already filed a Civil Suit in this Court and

have been unable to secure the amount claimed in the said suit. It is

submitted that the writ petitioners are hence trying to get that amount in a

circuitous manner in the present writ petition. Counsel submits that the

action of the petitioners in directing the Bank to hold on to the collateral

securities is wrongful and that once the credit facilities provided by the

Bank was closed, it was the Bank's obligation to release the collateral

securities to the respondent no. 4. Counsel disputes that the Notice dated

11th November, 2022 is a Notice under section 91 of the Cr.P.C. and refers

to three earlier Notices dated 5th August, 2022, 10th October, 2022 and 2nd

November, 2022 in this context. Counsel submits that the police officers

have a duty to prevent commission of offences under section 23 of The Police

Act, 1861 and that the Notice dated 11th November, 2022 was issued in

exercise of this power. It is further submitted that the petitioners have the

option of taking out an application under section 482 of the Cr.P.C. for

challenging the Notice dated 11th November, 2022.

6. The facts and arguments put forth by the petitioners rest on the

legality of the Notice issued by the Bhaktinagar Police Station, Siliguri Police

Commissionerate to the Branch Manager, Bank of Baroda on 11th

November, 2022 and the return of the title deeds to the private respondent.

According to the petitioner, this Notice was issued under section 91 of the

Cr.P.C and hence it was outside the jurisdiction of the sender to request the

Bank for immediate release of the title-deeds mentioned in the said Notice to

the private respondent.

7. Section 91 of the Cr.P.C deals with summons to produce a document

and empowers the Officer-in-charge of a Police Station to issue a written

order to the person in whose possession the document is believed to be in

and require the person to produce the document at the time and place

stated in the order. The power of a police officer to issue such order will only

apply where the officer considers the production of the document to be

necessary for an investigation, enquiry, trial or any other proceeding before

the Officer or a Court.

8. The contention of the petitioners is that the respondent no. 3 /

Investigating Officer, Bhaktinagar Police Station could, at best, have issued

the notice to the Bank for production of the document before the Police but

could not have directed the Bank to release the document to the private

respondent.

9. The Court has carefully read the Notice dated 11th November, 2022 in

order to test the legality of the submissions made on behalf of the

petitioners.

10. The Notice refers to an earlier notice issued under section 91, Cr.P.C

with a request to furnish the requisite information to the Police. The

respondent Bank had however not furnished such information. The Notice

further states that the written complaint of the private respondent had been

investigated and the earlier notice under section 91 had been sent in the

course of such investigation. The Notice also refers to a further investigation

made by the Police pursuant to the complaint lodged by the private

respondent and that the investigation had revealed closure of the loan

account maintained by the Bank in the name of the petitioner no. 1. The

sender of the Notice proceeds to make a finding that despite the closure of

the account of the petitioner no. 1, the Bank had continued to hold on to the

collateral securities belonging to the private respondent.

11. The Police authorities hence requested the Bank to furnish any order

of Court or any other instruction received by the Bank to justify retaining

the assets belonging to the de facto complainant / private respondent. The

Bank was directed to release the assets mentioned in the Notice to the

private respondent in the absence of any such order. It appears that the

Police had issued three earlier notices on 5th August, 2022, 10th October,

2022 and 2nd November, 2022 before the impugned notice dated 11th

November, 2022. All the 3 notes were issued under section 91 of the Cr.P.C.

The notice dated 2nd November, 2022 specifically refers to the earlier 2

notices whereby the Manager of the Bank was requested to produce the

documents mentioned in the earlier notices.

12. Hence, it cannot be concluded that the impugned notice dated 11th

November, 2022 is a stand-alone notice under section 91 of the Cr.P.C. It

would also be correct to presume that the impugned Notice dated 11th

November, 2022 was issued in the course of investigation of the complaint

filed by the private respondent with regard to the Bank holding on to the

deeds and properties of the private respondent without any factual or legal

justification.

13. The three earlier notices will further have to be read with the

impugned Notice dated 11th November, 2022. The earlier notices issued

under section 91 of the Cr.P.C. being clearly stated in the impugned Notice

would dilute the legal submissions made on behalf of the petitioners. There

are other undisputed facts which would similarly affect the case sought to

be made out by the petitioners, which are as follows.

14. The private respondent had furnished securities in respect of the

credit facilities availed of by the petitioner no. 1 from the Bank of Baroda.

The private respondent had furnished the collateral deeds as a Director of

the petitioner no. 1 at the relevant point of time. All the securities are in the

form of title-deeds which are valuable properties of the private respondent.

On 29th January, 2020, several parties including the petitioners and the

private respondent entered into an agreement for sale and transfer of shares

subsequent to which the private respondent resigned as the Director of the

petitioner no. 1 and the petitioners issued a letter to the Bank on 5th April,

2021 informing the latter about the execution of the agreement and more

significantly, the facts that the existing collateral securities would be

replaced by a fresh collateral securities which would be provided by the new

Director of the petitioner no. 1. The petitioner no. 1 wrote a fresh letter to

the Bank on 18th December, 2021 reiterating its earlier contentions and

stating that all guarantees were to be replaced by guarantees provided by

the new Director of the petitioner no. 1. The credit facilities in the Bank were

thereafter closed by the petitioner no. 1 by transferring the entire port-folio

to ICICI Bank.

15. Significantly, however, the petitioners by a letter dated 6th April, 2022

directed the Bank not to release the collateral securities to the private

respondent. The direction was given on the allegation that the private

respondent had siphoned off a sum of Rs. 50 lakhs from the account after

resigning from the Directorship of the petitioner no. 1. This was followed by

a letter from the Bank to the petitioner no. 1 on 4th June, 2022 where the

petitioner no. 1 was informed that the private respondent has lodged several

complaints for release of the collateral securities.

16. The Bank in fact requested the petitioner no. 1 to advise the Bank

with regard to release of the securities to the private respondent. The

petitioners' reply dated 21st June, 2022 simply states that the required

intimation / Board Resolution will be provided when the matter is resolved

and that the collateral securities in the personal name of the private

respondent should be kept on hold till then.

17. It is undisputed that the collateral security furnished by the private

respondent was specifically in respect of the facility provided by the Bank

which was availed of by the petitioner no. 1. This was the sole purpose for

which the security was given by the private respondent. Therefore, once the

credit facilities provided by the Bank were closed and the parties had

entered into the agreement on 29th January, 2022 which provided for

replacement of the existing collateral securities by fresh securities, it was

the obligation of the Bank to release the collateral securities to the private

respondent. This is specifically mentioned under Clause 8.12.1.2 of the

Bank Code handed up on behalf of the Bank of Baroda. The position taken

by the Bank is also acceptable in that there was no prohibitory order from

any Court of law which debarred the Bank from releasing the title-deeds in

favour of the private respondent.

18. The dispute brought to the Court by way of the writ petition filed

under Article 226 of the Constitution is clearly in the nature of a private

dispute between the petitioners and the private respondent. Framing the

reliefs in the writ petition against the Bank of Baroda or the Police

Authorities is simply not enough. In matters of this nature the Writ Court

has to unravel the facts and get to the bottom of the intended effect of the

reliefs prayed for. In this case, the contentions raised make it evident that

the petitioners seek restraint on the private respondent from getting back

the title-deeds / collateral securities.

19. The real target, so to speak, of the present writ petition is the private

respondent and not the Bank or the Police Authorities. Thus, merely

because the first three respondents are authorities amenable to writ

jurisdiction, would not make the writ petition maintainable under Article

226 of the Constitution unless the petitioners are able to show the

acceptable ingredients of maintaining a writ petition. In the facts as urged,

the writ petitioners have not been able to succeed on that score.

20. The view of the Court is further strengthened by the fact that the

petitioners filed a Civil Suit in this Court - C.S. No. 305 of 2022 against the

private respondent with an interim application seeking injunction on the

defendant (private respondent) from selling or creating third party rights in

respect of the property, the title deeds of which were deposited as collateral

security by the private respondent to the Bank of Baroda.

21. The petitioners can hence take appropriate actions in the suit which

would enable the petitioners to restrain the private respondent from utilising

the title-deeds. There is nothing on record to show that such relief would be

outside the scope of the Civil Suit or the petitioners are prevented from

seeking such reliefs for other reasons. It is hence clear that the petitioners

are attempting to get a relief by invoking the writ jurisdiction of this Court

when the petitioners have not taken any such steps or brought an

appropriate action in the pending Civil Suit.

22. The above reasons persuade this Court to hold that the petitioners

have not been able to establish a case for recalling or setting aside the

impugned notice dated 11th November, 2022 or any steps taken consequent

thereto.

23. State of Punjab vs Davinder Pal Singh Bhullar; (2011) 14 SCC 770 has

been cited for the proposition that if the initial action is not in consonance

with the law, subsequent proceedings would fall through as illegality strikes

at the root of the order. Since this Court is of the view that no

circumstances exist to interfere or recall the impugned notice dated 11th

November, 2022, this decision does not apply to the facts of the case. The

celebrated case of Maniruddin Bepari vs. The Chairman of Municipal

Commissioners, Dacca was on the fundamental principle of law that a

natural person has the capacity to do all lawful things unless his capacity

has been curtailed by some rule of law and that corporation has no power to

do anything unless these powers are conferred on it by the statute which

creates it is a fundamental of law. The decision however does not assist the

petitioners.

24. Since the Court has not found any reason to interfere with the

impugned notice dated 11th November, 2022 or any of the consequent

actions taken by the respondent nos. 1 - 3, WPO 515 of 2023 is accordingly

dismissed. There shall be no order as to costs.

Urgent photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)