JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ.
1. Today we have dismissed the Habeas Corpus petition No. 58318 of 2005 Rakesh Mehta and Ors. v. State of U.P. and Ors. as infructuous.
2. From the averments made in the petition and supplementary affidavit filed by ICICI Bank Ltd., some questions of larger public importance have arisen. This court cannot lose sight of day to day happenings in the society. Therefore, we have taken suo motu cognizance of the matter on the facts that have been brought on record in the aforesaid Habeas Corpus Petition and Supplementary Affidavit.
3. The facts in brief are that Shri Someshwari Prasad, Advocate practising in this court had taken a loan from ICICI Bank Ltd., for purchasing a Santro Car, There was default in payment of instalments due to which the bank proceeded to recover the amount from the borrower. From the allegations made in the F.I.R., lodged by Shri Someshwari Prasad and by another Advocate Shri Ranjan Srivastava, it is borne out that on 25.8.2005 at 9.45 A.M. at Thornhill Road while coming to the High Court four persons came on motor cycles and stopped Shri Someshwari Prasad's car. One of the four persons was Collection Officer, Shri Abhinav Verma. They put a country made Pistal on Shri Someshwari Prasad and took him by force to ICICI Bank, Civil Lines Branch where he was beaten by the Branch Manager and others who had kidnapped Shri Someshwari Prasad. An F.I.R. was lodged by Shri Someshwari Prasad which is extracted below :-
^^eqdnek v- la- [email protected] /kkjk 395 @ 307 @ 364 IPC, Fkkuk fofoy ykbUl] ftyk bykgkckn ?kVuk dk fnukad o le;
% 25&08&05 le; yxHkx 9%45 fjiksVZ dk fnukad o le;
% 25&08&05 le; 12%30 ?kVuk LFky] fn'kk vkSj iqfyl LVs'ku ls nwjh % fgUnq gkLVy pkSjkgk ds dqN igys FkkuZfgy o Qklyk 3 K.M. iqoksZRrj A oknh dk uke o irk % Jh lkses'ojh izlkn ,MoksdsV gkbZdksVZ S/O fl)s'oj izlkn lhuh;j ,MoksdsV R/O 42 ck?kEcjh gkmflax Ldhe vYykiqj tktZ Vkmu bykgkckn A vfHk;qDrx.k dk uke irk % vfHkuo oekZ cSad dysD'ku eSustj ICICI cSad ljnkj iVsy ekxZ byk- o pkj vU; A udy rgjhj fgUnh oknh lsok esa Fkkuk/;{k fofoy ykbZUl bykgkckn egksn; eSa lkses'ojh izlkn ,MoksdsV vkt fnukad 25&08&05 lqcg yxHkx 9%45 cts ?kj ls gkbZ dksVZ tksus ds fy;s fudyk eSa vdsys viuh xkMh lsUVªks ftax ua0------------ ls tk jgk Fkk A rHkh FkkuZfgy jksM ij fgUnw gkLVy ds dqN igys pkj eksVj lkbZfdy okys ,dk,d esjh xkMh ds vkxs vk x;s] vkSj eSaus ,dk,d czsd yxk;k esjh xkMh :drs gh caSad ds dysD'ku vQlj vfHkuo oekZ rhu pkj yMds ftydks eSa 'kDy ls igpku ldrk gwa eq>s Mªkbfoax lhV ls dV~Vk lVkdj ckgj [khap fy;s vkSj eq>s ihNs dh lhV ij cSBk dj eq>s dgha ys tkus yxs rHkh ihNs ls vk jgs odhyksa us tksj tcjnLrh cs[kV mUgksaus xkMh jksduh pkgh rHkh ,d dkj vk tkus ij ihNs ls vk jgs vf/koDrk jatu JhokLro jktho JhokLro ds- ds-
jko jkts'k mQZ dkSf'kd vkfn us xkMh :dokuh pkgh ijUrq xkMh ugha :dh vkSj eq>s flfoy ykbUl ICICI czkUp esa ykdj cUn dj fy;k eSaus tc eSustj ls iwNk rks eSustj us nks rekpkk yxk fn;k vkSj vfHkuo oekZ vkSj mlds lkFkh vigj.kdrkZvksa us eq>s ekjuk ihVuk 'kq: dj fn;k A vkSj dgk ,sls gh iSlk olwyk tkrk gS vkSj vigj.kdrkZvksa us lksus dh psu ,oa 2000 :i;s fudky fy;s rHkh ihNs ls jatu JhokLro] ds- ds- jko] jkts'k dkSf'kd vk;s rks jatu JhokLro dks Hkh ls yksx ykr ?kwlksa ls ekjus yxs vkSj eq>s vkSj jatu dks cUn dj fn;k A dey Ñ".k jke Hkkx dj gkbZdksVZ x;s tc lHkh vf/koDrk igqaps rks gesa NksM fn;s eq>s ,oa jatu dks ykr ?kawls ,oa dV~Vs dh cV ls ekjk x;k A jatu dks bykt ds fy;s vLirky ds fy;s ys tk;k x;k gS A mijksDr vfHk;qDrx.kksa ds f[kykQ fjiksVZ fy[kdj mfpr dk;Zokgh djs A Sd/-
vaxzsth lksus'ojh izlkn ,MoksdsV gkbZdksVZ S/O fl)s'ojh izlkn lhfu;j ,MoksdsV gkbZdksVZ R/O 42 ck?kEcjh gkmflax Ldhe vYykiqj bykgkckn A fnukad 25&08&05 uksV vuqdj.k lR; gS A**
4. Another F.I.R was lodged by Shri Ranjan Srivastava who reached the bank on the same day to save Shri Someshwari Prasad but he was also beaten by the bank employees in the bank very severely. The F.I.R is extracted below:-
^^eqdnek v-la- 184&A05 /kkjk 395 @ 307 @ 364 IPC, Fkkuk flfoy ykbUl] ftyk bykgkckn ?kVuk dk fnukad o le;
% 25&08&05 le; yxHkx 9%45 fjiksVZ dk fnukad o le;
% 25&08&05 le; 12%35 ?kVuk LFky] fn'kk vkSj iqfyl LVs'ku % ICICI cSad o Qklyk 2 K.M ls nwjh % iwoksZRrj oknh dk uke o irk % Jh jatu JhokLro ,MoksdsV gkbZdksVZ S/O ch-ds- yky R/O 42 vYykiqj tktZ Vkmu bykgkckn vfHk;qDrx.k dk uke irk % 1- chjsUnz 'kadj JhokLro dysD'ku eSaustj ICICI cSad 2- jkds'k esgrk ICICI cSaad 3- vEcjh'k 'kqDyk ICICI cSad 4- vuqHko oekZ ICICI cSad 5- 'kSysUnz ik.Ms;
ICICI cSad 6- jktho fuxe o xkMZ ICICI cSad udy rgjhj fgUnh oknh lsok esa izHkkjh fujh{kd Fkkuk flfoy ykbZUl bykgkckn lsok esa lknj fuosnu gS fd izkFkhZ jatu JhokLro ,MoksdsV gkbZdksVZ i= Jh th- ds- yky fuoklh vYykiqj Fkkuk tktZ Vkmu bykgkckn dk gS A izkFkhZ U;kf;d dk;Z ls mPp U;k;ky; le; djhc 9%45 cts fd jkLrs esa lkses'ojh izlkn ,MoksdsV dh ICICI cSad ds deZpkjhx.k chjsUnz 'kadj JhokLro] jkds'k esgrk] vEcjh'k 'kqDyk] vuqHko oekZ 'kSysUnz ik.Ms; o jktw fuxe dV~Vk yxkdj mudks fdMuSi dj ICICI cSad ys tk jgs Fks A vkSj ogha dqN vf/koDrk dks ns[kdj izkFkhZ ogka igqapk rks czkUp eSaustj jkds'k esgrk chjsUnz JhokLro] dysD'ku eSaustj vEcjh'k 'kqDyk] 'kSysUnz ik.Ms; o jktho fuxe us xkMh ls ge yksxksa dks ,d dejs esa cUn djds cUnqd dh cV o yksgs dh jkM ls flj] iSj o xnZu ij xEHkhj pksVsa igqapkbZ izkFkhZ csgks'k gks x;k o vU; vf/koDrk ds- ds- jko lkses'ojh izlkn] jkds'k izrki flag Hkh cqjh rjg ls ?kk;y gks x;s gks'k vkus ij tc izkFkhZ us njoktk [kksyus dks rks chjsUnz 'kadj JhokLro o jkds'k esgrk us vU;
deZpkfj;ksa ls dgk fd bl lkys odhyksa dks tku ls ekj nks vkSj budh gkbZdksVZ budh xkWM esa ?kqlk nks A lat; lj gSa lc ns[k ysxsa A izkFkh± us vius eksckby ls vius vU; vf/koDrk lkfFk;ksa dks Qksu djds cqyk;k rc rd mDr yksxksa us izkFkh± dh tsc ls 40][email protected]& :i;k Nhu fy;k A vkSj izkFkh± dk eksckbZy iVd dj rksM fn;k A izkFkh± dh fLFkfr bUlisDVj flfoy ykbZUl ds igqapus ij cgqr [kjkc gks pqdh Fkh A izkFkh± dks rqjUr bykt ds fy;s vf/koDrk lkfFk;ksa ds lkFk Hkst fn;k izkFkhZ bykt djokdj fjiksVZ djus vk;k gS A vr% Jheku th ls fouez izkFkZuk gS fd izkFkh± dh fjiksVZ ntZ dj mfpr dk;Zokgh djus dh Ñik djsa A Sd/- vaxszth jatu JhokLro iq= ch- ds- yky vYykiqj Fkkuk tktZ Vkmu bykgkckn fnukad 25&08&05 ys[kd vpy flag ,MoksdsV gkbZdksVZ bykgkckn A uksV%& vuqdj.k lR; gS A g- viBuh;
5. In pursuance of F.I.R. lodged by the aforesaid two persons the police arrested the bank employees. They challenged their detention by police and filed Habeas Corpus Petition. During the pendency of the petition the petitioners had been granted bail on 1.9.2005 by District & Sessions Judge, Allahabad.
6. From the facts stated in the F.I.R. lodged by Shri Someshwari Prasad, Shri Ranjan Srivastava and affidavit filed by Shri Dhananjay Kumar and the supplementary affidavit filed by the ICICI Bank some glaring and serious facts have appeared before us.
7. The ICICI Bank Ltd., is registered under the Banking Regulations Act, 1949. It carries on the business of banking, under the guidelines issued by Reserve Bank of India from time to time. It advances loans under an agreement with the borrowers. In the supplementary affidavit the bank had explained the procedure adopted by it for recovering the amount from the defaulters. It has also been stated that M/s Shiv Shakti Constancy through its proprietor Shri Anubhav Prakash Verma s/o. A.L. Verma r/o. L.I.G. 50, Katju Bagh Colony, Chandpur Salori, Allahabad had been given a contract by the bank for recovering the amount of loans, advanced by the Bank, from the borrowers. The agreement entered into between the ICICI Bank and Shiv Shakti Consultancy has been filed as Annexure-3 to the supplementary affidavit to Habeas Corpus petition. Some clauses of the agreement are relevant, therefore, they are extracted below :-
"ICICI BANK is inter- alia engaged in the business of providing Consumer Finance/Auto Finance/ Home Loan Finance/Credit Cards and other Finance Products under its Retail Finance Business. The Repayments under the Retail business are by way of installments.
For its retail finance business, ICICI Bank requires the specialised service of agencies to collect the dues from the Borrower and also to take the possession of assets from the Borrower as per the terms of the loan agreement entered into with the Borrower.
The Collection Agent has represented to ICICI BANK that it has the requisite skills, knowledge, experience, expertise, infrastructure and capability to act Collection Agent and has trained and experienced persons having requisite skills, knowledge to perform the functions in terms of this agreement and the Collection Agent has offered ICICI BANK its services relying on the offer letter dated of the Collection Agent and his representations ICICI BANK has agreed to accept the offer of the Collection Agent on the terms and conditions contained in this agreement."
8. It provides that the collection agency must have the requisite skills, knowledge, experience, expertise, infrastructure and capability to act as collection agent and should be trained and experienced persons to perform the functions in terms of the agreement. It further states that the offer of Shiv Shakti Consultancy, given to the bank had been accepted by the Bank. However, when we directed that the copy of offer and its acceptance by the bank be produced before us so that we may understand that what skills or experience or expertise or knowledge or infrastructure or capability the collection agencies must possess and how the ICICI Bank was satisfied, and on what material the bank was convinced to engage Shiv Shakti Consultancy as collection agent, then Shri Sushil Shukla, learned counsel for the petitioners informed us that it is not available at Allahabad but it is at their head office, at Mumbai.
9. The Clause 4.4 and 5.5 of the agreement are extracted below as under :-
"4.4 Has complied with and obtained necessary permissions/licenses/authorisations under the Central, State and Local authorities and obtained in required permissions/licenses for carrying out its obligation under this agreement."
"5.5 The Collection Agent shall obtain all the requisite license/permission/authorisations under all the applicable laws and keep the same valid by renewing from time to time as required under the various Acts/Laws."
10. From the combined reading of the aforesaid clauses it is clear that one of the essential condition was that the collection agency must have obtained necessary permissions/licenses/ authorisations under Central, State and local authorities for carrying out its obligation under the agreement and they shall get these permissions/licenses/authorisations renewed from time to time. When we directed that the permissions/licenses/authorisations be placed before us we received the same answer from the counsel for the ICICI Bank that the same are lying with the ICICI Bank at their head office, at Mumbai.
11. The agreement further provides in paragraph 5.4 as under :
"5.4 The Collection Agent shall ensure that its employees/ personnel shall at all times conduct themselves within the parameters of laws and shall not commit, abet or permit the commission of any illegal act while working in the course of this Agreement and in the event of any illegal act being committed or abetted, the Collection Agent shall be liable for all consequences thereof and ICICI BANK shall not be liable either directly or indirectly."
12. The aforesaid clause states that the collection agency shall work within the framework of law and shall not abet or permit the commission of any illegal act while performing their duties or functions under the agreement and if any illegal act is committed by the collection agent then the collection agency is liable for all the consequences and the ICICI Bank shall not be liable for any act done by the collection agency either directly or indirectly.
13. Shri Dhananjay Kumar has filed an affidavit stating that he had taken loan from ICICI Bank to purchase MIG Flat. It has been further stated that since the entire amount which was sanctioned to him was not disbursed by the bank, he could not repay the amount advanced to him. Thereupon he was threatened on telephone and Goondas hired by ICICI bank came to his residence and had beaten him mercilessly.
14. Shri V.P. Srivastava, learned counsel for the respondents has vehemently urged that this court may direct for CBI enquiry and then it would be revealed that in State of U.P. collection agency has been granted by ICICI Bank only to muscle men and bullies who are nothing but mafias and all the borrowers of the State of Uttar Pradesh, who have taken loan from the ICICI Bank are under constant threat of the mafias who are also criminally assaulting them. However, we were not issuing any such direction for holding a CBI enquiry at this stage.
15. From the facts stated above, in our opinion the following questions of public importance arise for consideration :-
(1) Whether license granted to ICICI Bank under the Banking Regulations Act, 1949 or guidelines issued by the Reserve Bank of India permit the ICICI Bank to recover its dues from the borrowers through collection agents who are bullies who recover the loan by taking law in their own hands?
(2) Whether the contract entered into between the ICICI Bank and Shiv Shakti Consultancy is a legal contract and, if so, its effect? Whether the contract entered into between the ICICI Bank and Shiv Shakti Consultancy absolves the ICICI Bank from all criminal and civil liabilities?
(3) Whether Shiv Shakti Consultancy is an agent of ICICI Bank and whether the bank is liable for all actions of its collection agent or agencies who violate criminal and civil laws.
(4) Whether ICICI Bank is under a legal obligation to follow due process of law for carrying out its banking business of advancement of loans and recovery of its dues? Whether it can disturb the rule of law by engaging collection agent that recovers the dues from the borrowers by using muscle power?
(5) Whether the ICICI Bank can recover its dues only in accordance with law by filing a civil suit?
(6) Whether the ICICI bank or its collection agency can take coercive action against the borrower by snatching the vehicles or taking possession of the property without following the procedure established by law and take further coercive action by locking the individual borrower in the bank or at some other place?
(7) Whether any recovery charges are paid by the bank to its collection agents and whether it is recoverable by the bank from the borrower or not and, what is the percentage of recovery charges paid by the ICICI bank to the collection agent?
(8) Whether ICICI bank can ignore the provisions of Section 138 of the Negotiable Instrument Act, 1881 in case of bounced cheques and proceed to recover the amount of the bounced cheques through their collection agent by force?
(9) Whether the Nationalised Banks which recovers its dues from the borrowers in accordance with law could be permitted to adopt the same procedure for recovery of its dues from the borrowers as adopted by the private banks like ICICI Bank through collection agents who take law in their own hands?
(10) Whether for recovery of any amount from a borrower two different parallel systems could exist, one in accordance with law followed by the Nationalised Banks and the other followed by the private banks who recover their dues through collection agents in violation of law?
16. Since this is a matter of vital public importance, interest of justice demands that this matter should be heard by a larger bench.
17. The Registrar General is directed to register a Public Interest Litigation and place the records along with our order before the Hon'ble the Chief Justice for nominating an appropriate larger bench for hearing this public interest matter expeditiously.
18. Office is directed to issue certified copy of this order to counsel for the parties on payment of the usual charges today.