TMI Blog2015 (3) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... due to some other unavoidable reason which can enable the bank to infringe the right to privacy of loanees. There is no compelling public interest warranting the publishing of the photographs of the loanees in newspapers in which case only the right to privacy has perhaps to give way. Some of the loanees may even be driven to commit suicide for fear of ignominy on publishing their photographs in newspapers at the instance of the bank and it will remain a permanent taboo for their family. The publishing of the photographs in newspapers for the inability to clear the loan arrears to the bank in time is clearly an affront to the right to live with dignity and honour as well as the right to privacy of the loanees. I have no hesitation to hold that publishing the photographs by the bank under such circumstances is violative of the rights guaranteed to the loanees under Article 21 of the Constitution of India. A writ of prohibition is therefore issued restraining the bank from publishing the photographs of the petitioners in the leading newspapers for failure to repay the debt within a specified date. This will not however disable the bank from surging ahead with the proceedings alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court. 4. No doubt the bank is entitled to file a suit or initiate proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 for realisation of its dues. The bank can also resort to proceedings under the Kerala Revenue Recovery Act, 1968 for realisation of its dues in respect of certain categories of loans advanced. The decree obtained from the civil court can be put to execution or the security interest enforced under the SARFAESI Act or coercive revenue recovery steps initiated against the defaulter. But there is no provision in any of the enactments enabling the bank to threaten the loanees about its intention to publish their photographs in leading newspapers on failure to repay the debt within a specified date. It is to be noticed that publishing the photographs of loanees in newspapers is not a measure permitted under Section 13 (4) against which only an appeal would lie under Section 17 of the SARFAESI Act. The property could be restored possession of to the loanees depending on the outcome of the appeal against the decree in the suit or the appeal in the Debts Recovery Tribunal under the SARFAESI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs or directions can be traced to Sections 21(3) and 35-A of the Banking Regulation Act, 1949 as has been judicially noticed even recently. The Supreme Court in ICICI Bank Ltd. Vs. Official Liquidator of A.P.S. Star Industries Ltd. and others [(2010) 10 SCC 1 ] held as follows: Under Section 21 (3) every banking company is bound to comply with directions given by RBI at the peril of penalty being levied for non compliance. Section 35- A says that where RBI is satisfied that in the interest of banking policy, it is necessary to issue directions to banking companies, it may do so from time to time and the banking companies shall be bound to comply with such directions. Thus in exercise of the powers conferred by Sections 21 and 35-A of the said Act, RBI can issue directions having statutory force of law . Thus the circular issued by the Reserve Bank of India does not also clothe the bank with the power to publish photographs of loanees in newspapers though entitled to disseminate information in the website of Credit Information Companies. 6. It remains to be seen as to whether the publishing by the bank of the photographs of the loanees would infringe the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank in time is clearly an affront to the right to live with dignity and honour as well as the right to privacy of the loanees. I have no hesitation to hold that publishing the photographs by the bank under such circumstances is violative of the rights guaranteed to the loanees under Article 21 of the Constitution of India. 7. The bank desperately wants to justify its proposed step of publishing the photographs of loanees in newspapers by relying on the terms and conditions in the loan agreements which however do not advance its case. The relevant clause in the loan agreement entered into by the petitioner in WP(C) No. 10864/2013 with the bank is as follows: 13(a) The borrower (s) hereby further agree that as precondition of the loan advances given to me/us by the Bank, that in case of default to repayment of the loan/advance or in the repayment of the interest thereon or any of the agreed instalment of the loan on due date/s, the Bank and/or the Reserve Bank of India will have an unqualified right to disclose or publish my/our name(s) as defaulter in such manner and through such medium as the Bank or Reserve Bank of India in their absolute discretion m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hotographs in the newspapers even if there is such a permissive clause in the loan agreement. This is because estoppel is not a defence available to the bank when its action is challenged on the ground of violation of the fundamental rights of the loanees. A reference in this context to the dictum laid down by the Full Bench of this Court in Dr. Saurabh Jain and others Vs. State of Kerala and others [2011 (1) KLT 888] is very much apposite. 8. The High Court of Madras in K.J. Doraisamy Vs. State Bank of India [(2006) 4 MLJ 1877 ] held that the bank is entitled to invent novel methods to recover its dues if the loanees find newer methods to avoid repayment. The High Court of Madhya Pradesh in Archana Chowhan Vs. State Bank of India [AIR 2007 MP 45] held that publishing the photographs of loanees cannot be said to be an impermissible mode. The High Court of Kolkota in Ujjal Kumar Das and another Vs. State Bank of India held that publishing the photographs of loanees is not a mode contemplated under the SARFAESI Act. I respectfully disagree with the conclusion of the High Courts of Madras and Madhya Pradesh and prefer to follow the decision of the High Court of Kolkata although for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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