BASU HOUSE PRIVATE LIMITED v. INDIAN OVERSEAS BANK
2013-09-20
DIPANKAR DATTA
body2013
DigiLaw.ai
JUDGMENT 1. Respondents 1 and 2 in the writ petition are the Indian Overseas Bank and the General Manager, Regional Office (I) Kolkata of such bank, respectively whereas the Reserve Bank of India, and its Regional Director and Assistant General Manager are the respondents 1, 5 and 6, respectively. Relief claimed in the writ petition against the aforesaid respondents reads as follows:- "a) A writ of and/or in the nature of mandamus do issue commanding the respondent Nos. 4, 5 and 6 to revoke and/or cancel authorization/license being No. B.L. 5885/22.0.3.019/2010-2011 Dated October 14, 2011 for Mid Corporate Branch in favour of the respondent No. 1 to run branch and/or office from the said premises being Ground Floor together with basement at premises No. 3 Chowringhee Approach, Kolkata 700072; b) A writ of and/or in the nature of mandamus do issue commanding the respondent Nos. 4, 5 and 6 to consider the representation being memo No: BHPL/IOB/2011-12 dated December 30, 2011 in terms of the notification bearing No. RBI/'2008-09/132. DBOD: BL.BC. 32/22.01.03.2008-09 dated August 21, 2008 and pass a reasoned order accordingly; c) A writ of and/or in the nature of prohibition do issue restraining the respondent Nos. 1 and 3 from operating any Branch at premises No.3 Chowringhee Approach, Kolkata 700072;" 2. According to Mr. Basu, learned senior counsel representing the petitioner (a company within the meaning of the Companies Act, 1956), the lease agreement in pursuance whereof the respondent No.1 was allowed to operate its Chowringhee Branch from the premises owned by the petitioner has expired as far back as on September 30, 2002 and despite the same, the respondent No.1 has failed and neglected to hand over vacant and peaceful possession of the said premises to the petitioner and that it has been continuing to occupy the said premises in clear violation of circular/letter dated August 21, 2008 issued by the respondent No. 4. 3.
3. The Court's attention has been invited by him to a condition therein to the effect that it is incumbent upon an public sector banks to ensure that all their branches/offices operate from premises on the basis of a subsisting and valid lease agreement, free of any disputes between the bank and the landlords concerned, and an advice was given that head offices of the banks may immediately undertake a review in this regard to ensure that the branches/offices operate from premises, having a valid and subsisting lease agreement. Attention is also drawn to the concluding paragraph of the said circular/letter requiring the public sector banks to report immediately and in any case not later than September 30, 2008 the list of their branches/offices that are operating in premises in respect of which a dispute is pending with the landlord, as per the enclosed format to the officers specified, for enabling the respondent No.1 to take a view on the appropriateness or otherwise of continuing authorisation for the branch/office to function thereat. 4. By placing reliance on the decision of the Supreme Court reported in (2002) 1 SCC 367 (Central Bank of India vs. Ravindra) as well as decisions of learned Single Judges of this Court reported in AIR 2005 Calcutta 21 (Eastern Paper Mill Machinery Pvt. Ltd. vs. State Bank of India and in AIR 2007 Calcutta 241 (Ruia Cotex Ltd. vs. Corporation Bank), it is further contended by Mr. Basu that the guidelines issued by the respondent No. 1 are binding on all public sector banks and, therefore, the respondent No.1 has disentitled itself to continue with the authorisation granted in its favour by the respondent No.4 for operating its Chowringhee Branch from the said premises. 5. Prayer has accordingly been made for a direction on the respondent No.4 to cancel the authorization granted in favour of the respondent No. 1. 6. Having heard Mr. Basu, I do not consider it necessary to call upon the respondents to answer. Under cover of the said circular/letter dated August 21, 2008, the petitioner has made a veiled attempt to canvass a landlord-tenant dispute before the Court of Writ.
6. Having heard Mr. Basu, I do not consider it necessary to call upon the respondents to answer. Under cover of the said circular/letter dated August 21, 2008, the petitioner has made a veiled attempt to canvass a landlord-tenant dispute before the Court of Writ. In my view, if at all the allegations levelled by the petitioner against the respondents 1 and 2 are correct, nothing prevents the petitioner from pursuing the remedy available to it in law for securing the eviction of the respondent No.1 from the concerned premises. The contents of the circular/letter dated August 21, 2008 are mere guidelines for whose guidance the same has been issued. It contains advisories. The same do not confer any legally enforceable right on the petitioner, even if any advice is not translated into action. In a case of proved breach of the advisories, the respondent No.4 in its discretion may take such suitable action against the respondents Nos. 1 and 2 as it considers necessary on facts and in the circumstances. Therefore, while breach of any of the terms of the circular/letter might expose the public sector banks to appropriate action by the respondent No.4, the same not being in the nature of statutory rules having the force of law cannot be enforced in a Court of Law against the respondent No. 1. The guidelines have been issued with the object of ensuring that public sector banks carryon banking business from dispute free premises but the same cannot confer any right on a landlord like the petitioner to claim that since the lease agreement has lapsed, the respondent No. 4 ought to be mandated to revoke the authorisation granted in favour of the respondent No. 1. It would appear to me that although all guidelines/directives of the respondent No.4 are issued in public interest, it is only those guidelines/directives which cast an imperative duty on the public sector banks to adhere to a particular course of action together with the consequences that are likely to follow should such course of action be not adhered, are to be construed as mandatory. The others would be largely directory in nature and endeavour ought to be made to ensure substantial compliance. A legal duty, it must be remembered, must be distinguished from a moral imperative. 7. The decisions cited by Mr. Basu have been considered.
The others would be largely directory in nature and endeavour ought to be made to ensure substantial compliance. A legal duty, it must be remembered, must be distinguished from a moral imperative. 7. The decisions cited by Mr. Basu have been considered. Ravindra (supra) dealt with the law governing debtor-creditor relationship while considering a reference as to what meaning should be assigned to the phrases "the principal sum adjudged" and "such principal sum" in section 34 of the Civil Procedure Code. In Eastern Paper Mills (supra), question that arose for decision was whether the One Time Settlement Scheme (hereafter the OTS Scheme) of the respondent No.4 is mandatory and binding or not. The point was answered in the affirmative. Circulars/guidelines of the respondent No.4 on wilful defaulters' was considered in Ruia Cotex (supra). There again, the Learned Judge held that those bound by such circulars/guidelines had to follow the same or else its action would stand vitiated. No doubt the OTS Scheme and the circulars/guidelines on Svilful defaulters' contain provisions which are mandatory but the issue that this writ petition throws up is quite different, as discussed above. I am of the view that the ratio of the said decisions has no application on facts and in the circumstances of the present case. 8. The writ petition is misconceived and the same is dismissed. There shall be no order as to costs. 9. This order shall not preclude the petitioner to approach the appropriate forum, in accordance with law, for securing eviction of the respondent No.1 from its premises. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.