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2011 DIGILAW 1473 (CAL)

Manoj Kumar Mukherjee v. Icici Bank Limited

2011-12-02

J.K.BISWAS

body2011
JUDGMENT: 1. THE petitioner in this WP under Article 226 dated November 16, 2011 is seeking the following principal relief: "a) A Writ of or in the nature of Mandamus do issue commanding the respondent authorities to send the dispute between petitioner and ICICI Bank Limited Respondent No. 1 to the Learned Lok Adalat at the Hon'ble High Court at Calcutta forthwith." 2. THE petitioner took a home loan from ICICI Bank Limited, a private bank and as such not amenable to the writ jurisdiction of the High Court. Since he was in default on the loan, proceedings have been initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. THE authorised officer took measures under section 13(4) of the Act issuing a possession notice dated August 2011. 3. STATING his "financial hardships" the petitioner sent a lawyer's notice seeking time to repay the loan. Now he has filed this WP alleging that his case has not been considered fairly and reasonably, and asserting that this Court has jurisdiction to transfer the case to the Lok Adalat, organised for the High Court at Calcutta, for amicable settlement under section 20 of the Legal Services Authorities Act, 1987. 4. COUNSEL for the petitioner has strenuously argued that in view of the provisions of section 20 of the Legal Services Authorities Act, 1987 the petitioner is entitled to file this WP seeking a mandamus commanding the respondents to refer the disputes to a Lok Aualat for amicable settlement. 5. COUNSEL for the bank has submitted that there is absolutely no reason to say that anything concerning the loan and measures taken by the authorised officer is to be referred to a Lok Adalat or can be amicably settled before a Lok Adalat. 6. THE question is whether the petitioner is entitled to file the WP seeking a mandamus commanding the respondents to refer the case to a Lok Adalat. 7. THE Legal Services Authorities Act, 1987 has been enacted "to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of the economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity." 8. THE expression "Lok Adalat" defined in clause (d) of sub-section (1) of section 2 of the Act means a Lok Adalat organised under Chapter VI of the Act. And Chapter VI of the Act contains sections 19-22 of the Act. While section 19 deals with organisation of Lok Adalats; sections 20, 21 and 22 deal with cognizance of cases by Lok Adalats, award of Lok Adalat and powers of Lok Adalat or permanent Lok Adalat respectively. 9. SECTION 19 provides that every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. 10. SUB-section (5) of section 19, being relevant for this case, is quoted below: "(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of- (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any Court for which the Lok Adalat is organised: Provided that the lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law." 11. SUB-section (2) of section 20 to which counsel's attention was drawn is quoted below: "(2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under subsection (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party." 12. THE expression "Court" used in the Act has been defined in clause (aaa) of sub-section (1) of section 2 to mean a Civil, Criminal or Revenue Court and includes any Tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi judicial functions. THE expression "Court" used in the Act has been defined in clause (aaa) of sub-section (1) of section 2 to mean a Civil, Criminal or Revenue Court and includes any Tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi judicial functions. It does not mean or include a High Court exercising its power under Article 226. 13. A High Court exercising power under Article 226 is neither a Civil Court, nor a Criminal Court, nor a Revenue Court. Hence no case pending before a High Court under Article 226 can be referred by the High Court to a Lok Adalat organized under section 19 of the Act for the High Court. It is only in exercise of its jurisdiction as a Civil, Criminal or Revenue Court that it can transfer a case pending before it to a Lok Adalat organized for it. 14. THEREFORE, no one can approach a High Court for referring a WP under Article 226 pending before it to a Lok Adalat organised for it. The public law disputes, to be adjudicated by a High Court under Article 226 qua a Constitutional Court, cannot be referred to a Lok Adalat that is to determine the referred matters, essentially private law disputes, through the process of compromise or settlement between the parties. 15. AS noted hereinbefore this WP has been filed seeking a mandamus commanding the respondents to refer the petitioner's loan case to a Lok Adalat. The petitioner did not have a statutory right to call upon the respondents, especially the bank, to refer his loan case to a Lok Adalat. Hence even if he requested the bank for referring the case to a Lok Adalat, the bank did not incur a statutory obligation to consider the request. Therefore, its silence, if any, could not give him a cause of action to move the Writ Court. 16. EVEN otherwise, I am of the view that this is a totally misconceived WP. Under sub-clause (b) of clause (i) of sub-section (1) of section 20 of the Act an application can be made to a Court only by a party to a case referred to in clause (i) of sub-section (5) of section 19 of the Act; and this clause says about a case pending before the Court for which the Lok Adalat is organised. 17. 17. IN view of clause (i) sub-section (5) of section 19 a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before any Court for which the Lok Adalat is organised. The Lok Adalat shall, however, . have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. 18. IT is, therefore, evident that in exercise of a right conferred by subclause (b) of clause (i) of sub-section (1) of section 20 of the Act a party to a case pending before any Court for which the Lok Adalat is organised can apply to the Court for referring the case to the Lok Adalat for settlement; and that if such Court is, prima facie, satisfied that there are chances of settlement, the Court shall refer the case to the Lok Adalat. 19. IN view of the above-noted provisions of sub-section (5) of section 19 and sub-section (1) of section 20, I am unable to see how the petitioner can file this WP for referring it to a Lok Adalat organised for this Court. A Lok Adalat orgaiused for this Court may mean a Lok Adalat for the Civil, Criminal and Revenue jurisdictions of this Court, but not for its Constitutional Writ Jurisdiction. Matters to be decided by a Constitutional Court cannot be determined by a Lok Adalat. 20. I am unable to accept the argument that since the petitioner, believing that the disputes between him and the respondents can be amicably settled by a Lok Adalat organized for the High Court at Calcutta, is unable to approach a Lok Adalat, because the respondents of their own accord will not refer the loan case to a Lok Adalat, his only remedy is to approach the Writ Court. 21. 21. THE provisions of sub-section (2) of section 20 of the Legal Services Authorities Act, 1987 are clear, and they provide that notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination. 22. AND clause (ii) of sub-section (5) of section 19 confers jurisdiction on a Lok Adalat organised for any Court to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any matter which is falling within the jurisdiction of, and is not brought before, the Court for which the Lok Adalat is organised. 23. THE petitioner was free to apply to the Authority or Committee organising the Lok Adalat for the High Court at Calcutta to refer the matter to the Lok Adalat organised for the Court. It is another matter whether the Authority or Committee would have referred the matter to the Lok Adalat or whether a Lok Adalat organised for the High Court at Calcutta would have entertained the case. But it is wrong to say -that he was unable to approach any Lok Adalat. For these reasons, the WP is dismissed. No costs. Certified xerox. Writ petition dismissed.