Karnataka High Court
Rajesh Kumar Shetty vs T Subbaya Shetty on 1 December, 2023
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No.11940/2023(GM-RES)
BETWEEN:
RAJESH KUMAR SHETTY,
S/O GOPAL SHETTY,
AGED ABOUT 56 YEARS,
RESIDING AT NO.4-154
GOLLARA BETTU, KAVOOR POST,
MANGALORE 575015
...PETITIONER
(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
1. T. SUBBAYA SHETTY
S/O LATE KRISHNA SHETTY,
AGED ABOUT 74 YEARS,
R/AT 1505, PLANET,
SKS, KADRI HILLS,
MANGALORE-575004.
2. THE SENIOR MANAGER,
KARNATAKA BANK LTD.,
MANNAGUDDE,
MANGALORE 575003.
...RESPONDENTS
(BY SRI NATARAJA BALLAL, ADVOCATE FOR R1;
SRI A. GANESH, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED OFFICIAL LETTERS ISSUED BY R-2 BANK
LETTER DATED 28.11.2022 OFFICIAL REFERENCE BEARING NO.
PF:OR.NO./495/2022-23 AND DATED 24.04.2023 THROUGH
OFFICIAL LETTER BEARING NO.KBL:479/GF30/2023-24
WHEREIN R-2 AUTHORITY REFUSED TO WITHDRAW THE FIXED
DEPOSITS MADE BY THE PETITIONER IN TOTAL OF
Rs.1,34,37,826/- DEPOSITED ON DIFFERENT DATES PRODUCED
AT ANNEXURES-A AND B.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 03.11.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This writ petition has been preferred challenging the
letters dated 28.11.2022 bearing No.PF:OR.No.495/2022-
23 and dated 24.04.2023 bearing No.KBL:479/GF30/2023-
24 by the second respondent in refusing to permit the
petitioner withdrawing the fixed deposits of
Rs.1,34,37,826/-.
2. It is the case of the petitioner that the first
respondent - Sri T Subbaya Shetty filed O.S.No.302/2022
before the Court of Senior Civil Judge, Mangaluru, seeking
the following prayers;
a) For Decree of Declaration to the effect
that Plaintiff is sole Executor of the Wills
of Mrs. Geetha T. Punja and
Dr.P.Thimappa Punja.
b) For permanent prohibitory injunction
against the defendants from allowing any
operation of the Bank Accounts, Release
of Fixed Deposits, Government Bond or
any other Securities, Locker by anybody
claiming as Legal heirs of Mrs. Geetha T.
Punja and Dr. P. Thimappa Punja.
c) Such other and further reliefs, as this
Court deems fit to grant.
d) Costs of the suit.
3. In the said suit, petitioner was not made as a party.
The first respondent filed an application under Order
XXXIX, Rule 1 and 2 of CPC seeking temporary injunction
against the defendants/banks prohibiting defendants from
allowing any person to withdraw the amounts standing to
the credit of Smt. Geetha T. Punja and Dr. P. Thimappa
Punja, until disposal of the suit and grant such other
reliefs. The Trial Court passed an order of temporary
injunction on 19.11.2022 and the same was extended till
20.04.2023.
4. The temporary injunction granted by the Trial Court
was affecting the rights of the petitioner. As the fixed
deposits were standing in the name of the petitioner,
petitioner filed an application under Order I Rule 10(2)
read with Section 151 of CPC to implead himself as
defendant No.13. The Trial Court allowed the application
and permitted the petitioner to be arrayed as defendant
No.13. The petitioner being defendant No.13 filed an
application under Order XXXIX Rule 4 of CPC to vacate the
interim order. The Trial Court proceeded to record a
finding that the entire amount standing in the account of
Smt. Geetha T. Punja has been transferred during the
lifetime of Dr. P. Thimappa Punja based on the nomination
made by Smt. Geetha T. Punja. The plaintiff claiming
under the Will of Smt. Geetha T. Punja has no authority to
seek any relief in respect of the account of Dr. P.Thimappa
Punja. Hence, the Trial Court vacated the temporary
injunction.
5. The petitioner in view of vacation of temporary
injunction made representations to the second respondent-
Bank on 17.04.2023 and 21.04.2023 to release the fixed
deposit amounts for personal necessities. The second
respondent-Bank proceeded to issue letter dated
24.04.2023 to the petitioner stating that in view of the
fixed deposits being involved in a claim suit in
O.S.No.302/2022 pending before the Senior Civil Judge,
Mangaluru, though temporary injunction order is vacated
by order dated 20.04.2023, the Bank is unable to allow the
petitioner to withdraw the amounts without specific order
of the Court and suggested the petitioner to get
clarification from the Court to the effect that they can pay
the amount during pendency of the suit.
6. Sri H Pavana Chandra Shetty, learned counsel for the
petitioner would submit that the fixed deposits were
transferred in favour of the petitioner standing in the
account of Smt. Geetha T Punja during the lifetime of
Dr. P. Thimappa Punja based on the nomination made by
Smt. Geetha T. Punja. Hence, the deposits in the second
respondent-Bank are self-earned money of the petitioner.
In view of temporary injunction being vacated by the Trial
Court, the respondent-Bank is not justified in refusing to
allow the petitioner to encash the fixed deposits and
insisting a specific order from the Trial Court.
7. On the other hand, Sri Nataraja Ballal, learned
counsel appearing for the first respondent and
Sri A Ganesh, learned counsel for the second respondent
would contend that the subject matter of dispute before
the Civil Court is in relation to the Wills executed by
Smt. Geetha T. Punja wherein, the first respondent is the
sole executor. As a consequence of the said suit,
temporary injunction in relation to the properties of the
executors has been passed. The dispute involved is not
between the petitioner and the Bank, but it is between the
petitioner and the first respondent. The Bank has only
issued an advisory to the petitioner in view of the
pendency of the civil suit involving the very same fixed
deposits to seek clarification from the Trial Court. Hence,
writ petition under Article 226 of the Constitution of India
is not maintainable.
8. It is further submitted that in view of the second
respondent-Bank not being a "State" in terms of Article 12
of the Constitution of India, writ is not maintainable.
9. Learned counsel for the petitioner places reliance on
the judgment of the Hon'ble Supreme Court in
M/s.Godrej Sara Lee Ltd. vs. Excise and Taxation
Officer-cum-Assessing Authority and others 1.
10. The respondents placed reliance on the following
judgments to contend that writ petition against the second
respondent Bank is not maintainable;
i) Karnataka Bank Ltd. Vs. Sri M.Suresh2;
AIR 2023 SC 781.
ILR 2016 Kar. 5125.
ii) Karnataka Bank Ltd., vs. Smt. Rekha Rao
and others3;
iii) The Prestige Monte Carlo Apartment
Owner's Association and others vs. The
Reserve Bank of India, Mumbai and
others4;
iv) South Indian Bank Ltd. and others vs.
Naveen Mathew Philip and another 5; and
v) Phoenix Arc Private Limited vs. Vishwa
Bharati Vidya Mandir and others6.
11. Heard learned counsels for the petitioner and the
respondents. Perused the records.
12. Learned counsel for the respondents has raised
jurisdictional issue of maintainability of the writ petition
under Article 226 of the Constitution of India by
contending that the second respondent-Bank is not a
"State" in terms of Article 12 of the Constitution of India.
W.A.Nos.8541-8549/1996.
2015 SCC OnLine Kar 5773.
2023 SCC OnLine SC 435.
(2022) 5 SCC 345.
Hence, maintainability of the writ petition is considered as
a preliminary issue.
13. It is the specific contention of the respondents that
as no public duty or function is involved, the second
respondent-bank not being a "State" under Article 12 of
the Constitution of India, writ of mandamus cannot be
issued to the respondent-Bank.
14. Though the respondent-Bank is engaged in public
finance and regulated by Reserve Bank of India, it cannot
be termed as an Institution or Company carrying on any
statutory or public duty. A writ of mandamus cannot be
issued to the authorities not contemplated under Article 12
of the Constitution of India.
15. Article 12 of the Constitution of India is as under;
"12. Definition.--In this Part, unless the context
otherwise requires, "the State" includes the
Government and Parliament of India and the
Government and the Legislature of each of the
States and all local or other authorities within the
territory of India or under the control of the
Government of India."
16. It is settled position of law that writ petition under
Article 226 of the Constitution of India is maintainable
against (i) the State (Government); (ii) an authority; (iii) a
statutory body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and owned by the
State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or
positive obligation of public nature; and (viii) a person or a
body under liability to discharge any function under any
statute, to compel it to perform such a statutory function.
17. The Division Bench of this Hon'ble Court in
W.A.Nos.8541-8549/1996, dated 29.11.2001, wherein the
second respondent was appellant seeking remedy under
Article 226 of the Constitution of India, has held as under;
"14. As no public duty or public function is
involved, in regard to selection of persons by
the appellant to its clerical cadre, and as the
appellant is not a 'State' under Article 12 of the
Constitution, the only inescapable conclusion
is that the writ petitions filed by the private
respondents are not maintainable against the
appellant bank."
18. In the case of The Prestige Monte Carlo
Apartment Owner's Association (supra), this Hon'ble
Court while considering the maintainability of writ petition
under Article 226 of the Constitution of India against the
communication of freezing of bank account by ICICI Bank
has held as under;
"10. A writ petition under Article 226 of the
Constitution of India may be maintainable against
(i) the State (Govt.); (ii) Authority; (iii) a statutory
body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and owned
by the State; (vi) a private body run substantially
on State funding; (vii) a private body discharging
public duty or positive obligation of public nature
(viii) a person or a body under liability to discharge
any function under any Statute, to compel it to
perform such a statutory function.
11. In Federal Bank Ltd. v. Sagar Thomas
[(2003) 10 SCC 733 : AIR 2003 SC 4325] , the
Apex Court has held that a private company
carrying on banking business as a scheduled bank,
cannot be termed as an institution or company
carrying on any statutory or public duty. A private
body or a person may be amenable to writ
jurisdiction only where it may become necessary to
compel such body or association to enforce any
statutory obligations or such obligations of public
nature casting positive obligation upon it. Such
conditions are not fulfilled in respect of a private
company carrying on a commercial activity of
banking. Merely regulatory provisions to ensure
such activity carried on by private bodies work
within a discipline, do not confer any such status
upon the company nor puts any such obligation
upon it which may be enforced through issue of a
writ under Article 226 of the Constitution. A
company carrying on the profession of banking
cannot be said to be close to the Governmental
functions. Hence, a writ petition against such
banking company cannot be maintainable."
19. The Hon'ble Supreme Court in the case of Phoenix
Arc Private Limited (supra), has held as under;
"18. ..., it is required to be noted that a writ
petition against the private financial institution --
ARC -- the appellant herein under Article 226 of
the Constitution of India against the proposed
action/actions under Section 13(4) of
the SARFAESI Act can be said to be not
maintainable. In the present case, the ARC
proposed to take action/actions under
the SARFAESI Act to recover the borrowed amount
as a secured creditor. The ARC as such cannot be
said to be performing public functions which are
normally expected to be performed by the State
authorities. During the course of a commercial
transaction and under the contract, the bank/ARC
lent the money to the borrowers herein and
therefore the said activity of the bank/ARC cannot
be said to be as performing a public function which
is normally expected to be performed by the State
authorities. If proceedings are initiated under
the SARFAESI Act and/or any proposed action is to
be taken and the borrower is aggrieved by any of
the actions of the private bank/bank/ARC, borrower
has to avail the remedy under the SARFAESI Act
and no writ petition would lie and/or is
maintainable and/or entertainable. ..."
20. Learned counsel for the petitioner has relied on the
judgment of the Hon'ble Supreme Court in the case of
M/s. Godrej Sara Lee Ltd., (supra) to contend that mere
existence of alternative remedy is no bar to maintain writ
petition. The above judgment has no relevance or
application to the present case as maintainability of the
writ petition under Article 226 of the Constitution of India
is not due to availability of alternative remedy. However,
the second respondent-Bank against which a writ of
mandamus has been sought is not a "State" under Article
12 of the Constitution of India and also in view of the law
laid down by the Division Bench of this Court in the case of
Karnataka Bank Ltd., (supra).
21. The Hon'ble Supreme Court in the case of South
Indian Bank Ltd. (supra) has reiterated the principles laid
down in Radha Krishan Industries v. State of H.P. (2021)6
SCC 771 for exercising writ jurisdiction under Article 226 of
the Constitution of India, as under;
"16. xxx xxx xxx
27. The principles of law which emerge are that:
27.1. The power under Article 226 of
the Constitution to issue writs can be exercised not
only for the enforcement of fundamental rights, but
for any other purpose as well.
27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where an
effective alternate remedy is available to the
aggrieved person.
27.3. Exceptions to the rule of alternate remedy
arise where : (a) the writ petition has been filed for
the enforcement of a fundamental right protected
by Part III of the Constitution; (b) there has been a
violation of the principles of natural justice; (c) the
order or proceedings are wholly without
jurisdiction; or (d) the vires of a legislation is
challenged.
27.4. An alternate remedy by itself does not
divest the High Court of its powers under
Article 226 of the Constitution in an appropriate
case though ordinarily, a writ petition should not be
entertained when an efficacious alternate remedy is
provided by law.
27.5. When a right is created by a statute,
which itself prescribes the remedy or procedure for
enforcing the right or liability, resort must be had
to that particular statutory remedy before invoking
the discretionary remedy under Article 226 of
the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience
and discretion.
27.6. In cases where there are disputed
questions of fact, the High Court may decide to
decline jurisdiction in a writ petition. However, if
the High Court is objectively of the view that the
nature of the controversy requires the exercise of
its writ jurisdiction, such a view would not readily
be interfered with."
22. In view of the above discussion and law laid down by
the Hon'ble Supreme Court, writ petition is not
maintainable under Article 226 of the Constitution of India
and the same is liable to be rejected. In view of dismissal
of writ petition on the ground of maintainability, other
issues urged by the parties are kept open. Hence, the
following:
Order
i) Writ petition is rejected as the same is not
maintainable under Article 226 of the
Constitution of India as the second
respondent-Bank is not a "State" under Article
12 of the Constitution of India.
ii) The petitioner is at liberty to seek appropriate
remedy before the appropriate forum, in
accordance with law, if so advised.
iii) No order as to costs.
Sd/-
JUDGE
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