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2018 DIGILAW 72 (CAL)

SARVOPARI IMPEX PVT. LTD. v. UNION OF INDIA

2018-01-10

DEBANGSU BASAK

body2018
JUDGMENT : 1. The petitioner seeks a direction upon the second respondent to supply a copy of the survey report. 2. Learned Advocate for the petitioner submits that, the petitioner had entered into a contract of insurance and an incident covered under such insurance having happened, a claim was lodged. A survey was conducted. The petitioner is entitled to the survey report. He submits that, the survey report is governed by the provisions of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002. Regulation 9(5) thereof requires an insurance to make over a copy of the survey report. The second respondent having failed to provide such survey report, the petitioner has approached the Writ Court. The writ petition is maintainable to enforce a statutory obligation. The second respondent has failed to discharge its statutory obligation. In support of his contention that, a writ petition is maintainable against the second respondent, he relies upon (2008) 10 SCC 404 (United India Insurance Company Limited Versus Manu Bhai Dharmasinhbhai Gajera & Ors.) and AIR 2005 Supreme Court 3202 (Binny Ltd.-Versus-V. Sadasivan & Ors.). 3. Learned Advocate appearing for the second respondent submits that, the present writ petition is not maintainable. The second respondent is a private insurance company. The mere fact that, the second respondent is guided or governed by the Regulations of 2002 will not make it amenable to the writ jurisdiction under Article 226 of the Constitution of India. In support of his contention, he relies upon (2003) 10 SCC 733 (Federal Bank Ltd.-Versus-Sagar Thomas & Ors.). Referring to the conduct of the petitioner, he submits that, the petitioner is guilty of suppression of material facts. The petitioner had invoked the provisions for arbitration by a writing prior to the filing of the writ petition. This fact has been suppressed in the writ petition. The letter invoking the arbitration clause has, however, been annexed to the affidavit-in-reply filed by the petitioner. Moreover, even if the Regulations of 2002 is applied, then also, the petitioner has statutory alternative remedy. Therefore, the writ petition should not be entertained. 4. In reply to the learned Advocate for the petitioner submits that, the petitioner did not state about the invocation of the arbitration clause inadvertently. It, however, has disclosed the letter invoking the arbitration clause in the affidavit-in-reply. 5. Therefore, the writ petition should not be entertained. 4. In reply to the learned Advocate for the petitioner submits that, the petitioner did not state about the invocation of the arbitration clause inadvertently. It, however, has disclosed the letter invoking the arbitration clause in the affidavit-in-reply. 5. I have considered the rival contentions of the parties and the materials made available on record. 6. As noted above, the petitioner seeks a copy of the survey report from an insurance company. The second respondent is the insurance company involved. The second respondent cannot be said to be an authority within the meaning of Article 12 of the Constitution of India. It is neither a state owned nor state controlled entity. Binny Ltd (supra) recognizes that judicial review under Article 226 is available even against a private authority. However, such private authority must be discharging a public function. In the present case, the petitioner contends that, the second respondent has failed to discharge a public function enjoined upon it under Regulations of 2002 in failing to supply the survey report. 7. In Sagar Thomas & Ors. (supra) an order of dismissal from employment of bank employee was assailed before the Writ Court. Initially it was held up to the Division Bench of the High Court that, the writ petition was maintainable against Federal Bank as it was discharging a public duty by carrying on banking business. In the Supreme Court, however, it was held the jurisdiction under Article 226 could not have been invoked in such factual matrix. The bank was a private company carrying on banking business as a scheduled bank. It could not be termed as an institution or a company carrying on any statutory or public duty. 8. In Binny Ltd (supra) also the Supreme Court has held that, there was no public element involved in the termination of the employees of the appellant and, therefore, a writ under Article 226 was not maintainable. 9. In United India Insurance Company Limited (supra) the insurance company involved was a subsidiary of General Insurance Company established under the provisions of the General Insurance Business (Nationalization) Act, 1972. The insurance companies were, therefore, considered as statutory authorities. The same cannot be said about the second respondent. 10. Obligation to adhere to statute by itself will not make a private authority discharge public function if it is otherwise not doing so. The insurance companies were, therefore, considered as statutory authorities. The same cannot be said about the second respondent. 10. Obligation to adhere to statute by itself will not make a private authority discharge public function if it is otherwise not doing so. If the logic is to be accepted then every company incorporated under the provisions of the Indian Companies Act, 1913 or the Companies Act, 1956 or the Companies Act, 2013 would, therefore, have a public law element involved as it is required to adhere to various statutory obligations under the provisions of the statute. A company carrying on share broking business would also then become amenable to the writ jurisdiction, ipso facto, as it is required to adhere to the regulations issued by the Securities and Exchange Board of India (SEBI). It is this misadventure that Binny Ltd (supra) and Sagar Thomas & Ors. (supra) cautions the High Courts against. 11. In the facts of the present case, the second respondent cannot be said to be discharging a public function by carrying on insurance business. The alleged failure of the second respondent to give a survey report to the petitioner does not involve a public law element calling for interference by a Writ Court under Article 226 of the Constitution of India. 12. There is one more aspect in the instant matter. There is an allegation of suppression of material fact. Invocation of the arbitration clause by the petitioner is a material fact, which ought to have been stated and pleaded in the writ petition itself. Such fact is material for the purpose of adjudicating as to whether a Writ Court would assume jurisdiction or not. In a given case where the Writ Court finds that, the parties have availed of statutory alternative remedy or have invoked the arbitration clause existing between the parties, the Writ Court would chose not to intervene in such a case. Therefore, the invocation of an arbitration clause by the petitioner is a fact which is material and ought to have been disclosed at the inception. It is no gain to say that, the petitioner had forgotten to state such material fact inadvertently. It is a deliberate omission to make an unlawful gain, if possible. 13. In the conspectus of such conduct of the petitioner mere dismissal the writ petition will not suffice. The writ petitioner should be put on terms. 14. It is no gain to say that, the petitioner had forgotten to state such material fact inadvertently. It is a deliberate omission to make an unlawful gain, if possible. 13. In the conspectus of such conduct of the petitioner mere dismissal the writ petition will not suffice. The writ petitioner should be put on terms. 14. WP No. 669 of 2015 is dismissed with costs assessed at Rs.20,000/- to be paid by the petitioner to the West Bengal State Legal Services Authority, Kolkata, within seven days from date. 15. The petitioner will submit documentary evidence of payment of such costs with the Registrar of Companies, West Bengal within a fortnight from date. 16. The Registrar of Companies, West Bengal, is directed to realize the costs in the event of non-furnishing of the documentary evidence of payment of such costs within the time stipulated as arrears of land revenue. It is at liberty to proceedings against the petitioner, if so required. It is also at liberty to realize the expenses incurred for realization of the costs involved in the writ petition. It will pay the costs so realized to the designated authority as early as possible. The second respondent will communicate this order to the Registrar of Companies, West Bengal, within seven days from date for compliance.