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2015 DIGILAW 92 (GAU)

State Bank of India, Mumbai v. Lalsangbera

2015-01-30

L.S.JAMIR

body2015
JUDGMENT : ” Heard Mr. Aldrin Lalla-wmzuala, learned counsel appearing for the appellants as well as Mr. B. Lalramenga, learned counsel appearing for the respondent. 2. The present respondent as plaintiff had filed a suit being Declaratory Suit No. 1/2012 before the learned Civil Judge-III, Aizawl against the respondent/present appellant for declaration that the appellants/defendant have no right to publish the photograph of the plaintiff/respondent in all leading newspapers. The learned trial Court, after taking evidence and hearing the parties had passed the judgment and order dated 21.8.2012 restraining the appellants from publishing the photograph of the plaintiff along with his name in any manner in connection with default of repayment of loan by the plaintiff even if they are to publish the name of the plaintiff for default of repayment of his loan. Being aggrieved, the appellants filed an appeal before the Appellate Court and the appeal was registered as RFA No. 29/2012. After hearing the parties, the first appellate Court passed a final order dated 11.2.2013 dismissing the appeal. Hence, the present second appeal before this Court. 3. Mr. Aldrin Lallawmzuala, learned counsel appearing for the appellants submits that before the learned trial Court, the plaintiff had prayed for a relief and a decree declaring that the defendant had no right to publish the photograph of the plaintiff in any newspapers. He, however, submits that the learned trial Court had gone beyond the prayer of the plaintiff to the extent that the name of the plaintiff should not be published in any newspapers even if the plaintiff/respondent had a default in repayment of loan. He also submits that the learned Appellate Court had erred in law in upholding the judgment and order dated 21-8-2012 passed by the learned trial Court without properly appreciating column 14(a) of the Agreement. The learned counsel appearing for the appellants also submits that the learned trial Court had failed to consider the implication of column 14 (a) of the Agreement and had failed to appreciate the fact that with the change of trend, the borrower(s) find newer and better method to avoid repayment of loan and therefore the appellants are also entitled to invent better method to recover their loan amount and the appellants have decided to publish the photo of the plaintiff/respondent. He also places reliance in the case of D.J. Exim (India) Pvt. Ltd. & Ors v. State Bank of India & Ors. decided by the Bombay High Court in WP(L) No. 2808/2013. 4. Mr. B. Lalramenga, learned counsel appearing for the respondent submits that the appellants” Bank cannot be allowed to proceed in the manner that they intend to do as indicated in the notice dated 21.1.2012. He submits that when the loan was taken, the respondent had signed an agreement with the appellants” Bank and therein at Term No. 14(a), it is clearly indicated that in the event of default in repayment of any monies or in the performance or breach of any terms or obligations, the Bank and/or the Reserve Bank of India or any other authorized agency will have an absolute discretion or unqualified right, power and authority to disclose or publish names of the borrower(s) and or its directors/partners/office bearers/constituents/members as DEFAULTER in such manner as they think fit. He, therefore, submits that it is not only the respondent but also the appellants” Bank that is bound by the said Term No. 14 when the loan was taken. Any contrary steps intended to be taken by the appellants” Bank would amount to violation of the terms and conditions when the loan was taken and further, the intention of the appellants” Bank to publish the photograph of the respondent would amount to infringement of the respondent” s fundamental right guaranteed under Article 21 of the Constitution of India. In his support, he has relied on the judgments passed by the Kerala High Court in W.P.(C) No. 10864 of 2013 in the case of Venu.P.R. v. The Assistant General Manager, State Bank of India and also in the case of Ujjal Kumar Das & Another v. State Bank of India & Others decided by the Kolkata High Court in W.P. No. 10315(W) of 2013. 5. I have heard the learned counsel appearing for the respective parties. 6. On 18.6.2013, the present appeal was admitted with the following substantial question of law:” ' Whether the finding of the Court views that publication of photograph of the respondent/ borrower/ defaulter for additional means of recovery of loan is illegal, is perverse?' Œ 7. 5. I have heard the learned counsel appearing for the respective parties. 6. On 18.6.2013, the present appeal was admitted with the following substantial question of law:” ' Whether the finding of the Court views that publication of photograph of the respondent/ borrower/ defaulter for additional means of recovery of loan is illegal, is perverse?' Œ 7. The plaintiff/respondent had availed Agricultural loan from the appellants under Loan Account No. 30138228642 by mortgaging his landed property located at Rangvamual, Aizawl, Mizoram as security for the said loan. The loan amount was Rs. 30 lakh. Thereafter, the plaintiff/respondent had received a notice dated 21.1.2012 from the appellants wherein it was stated that there is an irregularity of Rs.2,813,026.00 as on 20.1.2012. He was therefore informed to pay the irregular amount before 31.1.2012 and in the event of his inability to regularized the loan, action would be initiated by means of' œ 1) Publication of his photo in all leading newspapers. 2) SARFAESI Notice will be served for possession of landed properties. 3) Money suit will be filed against him and the guarantor to recover the remaining outstanding. The plaintiff/respondent had therefore instituted the declaratory suit before the learned trial Court praying for a decree as already aforementioned inasmuch as under the Agreement between the appellants and the respondent and there is no agreement for publication of the plaintiff/respondent” s photo in all leading newspaper. 8. The present appeal is confined to whether the publication of the photograph of the plaintiff/respondent is illegal and perverse for an additional means of recovery of loan. This being the limited question of law involved in this present case, it is pertinent to examine the Agreement between the appellants and the respondent when the Agricultural loan was given to the respondent. As regard, the publication of the photograph of the respondent, Agreement No. 14(a) is pertinent. This being the limited question of law involved in this present case, it is pertinent to examine the Agreement between the appellants and the respondent when the Agricultural loan was given to the respondent. As regard, the publication of the photograph of the respondent, Agreement No. 14(a) is pertinent. The same is quoted herein below:” ' The Borrower(s) agrees and gives consent without any demur or protestation that- (a) In the event of default in repayment of any monies or in the performance or breach of any terms or obligations, the Bank and / or the Reserve Bank of India or any other authorized agency will have an absolute discretion or unqualified right, power and authority to disclose or publish names of the borrower(s) and or its directors / partners / office bearers/ constituents / members as DEFAULTER in such manner as they think fit.' Œ 9. From a perusal of the terms of Agreement, more particularly at Agreement No. 14 (a), it is seen that in the event of default in repayment of any monies or in the performance or breach of any terms or obligations, the Bank and/or the Reserve Bank of India or any other authorized agency will have an absolute discretion or unqualified right, power and authority to disclose or publish the name of the borrower (herein the respondent). A plain reading of the said terms and conditions while the loan was given to the respondent would indicate that the appellants had reserved the absolute right to disclose or publish names of the borrower(s). Considering the language used under term 14(a), this Court is of the considered opinion that publication of photograph would not come within the meaning of disclosing or publishing name of the borrower. At best, the appellants are at liberty to publish the name of the borro-wer(s) or to disclose the names of the borro-wer(s) in any manner as they think fit. 10. I have also considered the citation cited by the learned counsel appearing for the appellants and on perusal of the same, this Court is constrained to observe that the fact and circumstances of the case referred therein is different from the present case in hand and therefore the same is not applicable. 11. 10. I have also considered the citation cited by the learned counsel appearing for the appellants and on perusal of the same, this Court is constrained to observe that the fact and circumstances of the case referred therein is different from the present case in hand and therefore the same is not applicable. 11. In the notice dated 21.1.2012, the appellants had informed the respondent that action would be initiated against him by way of publication of his photo in all leading newspapers besides the other two actions intended to be taken against him. From the notice, it is seen that the appellants have diluted the terms contained under 14(a) wherein it has been clearly mentioned that names of the borrower(s) would be disclosed and not the photo of the borrower(s). By publishing the photograph of the borrower/respondent, this Court is of the considered opinion that the same would expose the borrower to irreparable loss and injury more particularly when the publication of the photograph cannot be resorted to in the absence of any express condition under the terms while the loan was given to the borrower. In any case, apart from publishing the name of the borrower, the appellants have other means of securing the assets that has been mortgaged under the SARFAESI Act. Further, the appellants are not debarred from taking steps in accordance with the terms and conditions contained at paragraph 14 of the Agreement of Loan-cum-Hypothecation. 12. This being the view of this Court, I find no infirmity in the judgment and order dated 21.8.2012 passed by the learned trial Court and the order dated 11.2.2012 passed by the learned Appellate Court. 13. Accordingly, this second appeal is dismissed. No cost. Appeal dismissed.