State Bank Of India vs Three Aces Tiles Ceramics Pvt. Ltd.

Through a notice dated 3.4.2013, respondent No. 2 Bank had advanced a threat to the respondent to publish/display their photographs, name and address in the leading newspapers and other places.

The respondents herein filed two I.As. before the Tribunal below to challenge this notice on the ground that it was neither statutory nor contractually tenable and this notice only reflects the illegal demonstration of dominant position of the appellant Bank. Plea was that there was no authority either of law or contract under which photograph, name and address of the borrower can be published in the newspaper or to display it at other places. These I.As. were disposed of by directing the Bank to wait for proper stage. Aggrieved against this order, the State Bank of India has filed this appeal against the order passed. by the Tribunal below allowing the application filed by respondent herein seeking quashing and stay of the operation of the notice dated 3.4.2013.

The appellant Bank had filed response saying that huge public money was involved and the borrowers/guarantors were avoiding to pay the dues of the Bank. Plea was that right to privacy would fade in front of right to information which is in the larger public interest.

The Tribunal, after considering the grounds raised in the I.As., observed that the Bank has acted too fast and early as the adjudication of the debt was under process and the Bank had yet to prove its claim by leading evidence. Accordingly, the Tribunal was of the view that the Bank has to wait till the matter is adjudicated by the Tribunal and thus disposed of both the applications. Against this order, the appellant Bank has filed this appeal.

Filing of the appeal is delayed by 75 days. The Bank accordingly has filed application for condonation of delay. Notice was issued on this application seeking condonation of delay. The reason given in the application to explain the delay are that the impugned order was passed on 17.10.2013. The certified copy was applied on 23.10.2013. The same was prepared and supplied to the Counsel for the appellant on 11.12.2013. The Counsel for the appellant hereafter states to have given the copy of the impugned order to his clerk, who inadvertently placed the same in another file titled "SBI v. M/s. Gautam Budha Traders". It is only when the case of M/s. Gautam Budha Traders came up for hearing on 11.2.2014, that the certified copy of the order could be traced. Thereafter, the present appeal has been filed on 14.2.2014. As per the Counsel, this sufficient reason to explain the delay on their part in filing the present appeal.

Counsel appearing for the respondents has, however, contested the plea rather strongly. The respondents would allege that the appeal per se is mala fide. He would further submit that the appellant had accepted the impugned order and did not file any appeal within the period of limitation. As per the respondents, the appellant has filed this appeal after the expiry of the limitation period with a view to harass the respondents and to coerce them into illegal submissions. The institution of this appeal is termed as abuse of process of law. The respondents would also urge that the impugned order was pronounced in the open Court and appellant was well aware of the mandate thereof through its Counsel. If they were really aggrieved against the order, they could have instructed the Counsel to immediately prepare the appeal, and thereafter ought to have kept track of the case.

The Counsel would also contend that there is no mention in the application as to when the Counsel was instructed to file this appeal against the impugned order. As per the respondents, the appellant had miserably failed to explain the delay and so their appeal should be dismissed.

I have considered the submissions made before me. I am of the view that the appellant has failed to explain the delay of 75 days in filing the appeal. The application filed by the appellant seeking condonation of delay is supported by an affidavit filed by the Court clerk of the Counsel. He has simply stated that the facts stated in the accompanying application are true and correct to his knowledge and this may be read as part and parcel of his affidavit. Even if the explanation as offered of delay is accepted at its face value, no plea is made to show that effort was made to trace the order if it had got misplaced in any manner. It cannot be easily accepted that instructions were issued to the Counsel to file this appeal and he could not do so because the order got misplaced having been placed in another brief. If the appellant was serious to pursue this appeal, it could have easily obtained another copy or filed the appeal on the basis of free copy which apparently must have been received by the appellant. No mention is made to this fact that the appellant was not having free copy or the same was not sent to it. What all is stated by the respondents in the reply may even be correct, but the fact that the appellant had not shown any urgency to file the appeal and took it in leisure can clearly be made out. The appellant thus has not explained the delay in any satisfactory and sufficient manner. The prayer made in the application for condonation of delay is, therefore, declined.

Before parting with the order, I may wish to observe that the issue of publication of name of a borrower in the newspaper or other places is not that serious an issue which the Bank ought to have pursued in this manner and had brought in appeal before this Tribunal. No provision has been brought to my notice which will authorize such a mode by the Bank. Right to privacy is a constitutionally guaranteed right and can be read into Article 21 of the Constitution of India. This Article clearly provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Right to privacy has been recognized as a right guaranteed under Article 21 of the Constitution long ago in the case of Kharak Singh v. State of UP., AIR 1963 SC 1295. A visit by the police without authority of law was held to be violative of Article 21 of the Constitution, assuming that the right to privacy was fundamental right derived from freedom of movement guaranteed by Article 19(1)(d) as well as personal liberty guaranteed by Article 21. Right to privacy is an essential component of right to life but may not be absolute and may be restricted for prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others [See Mr. T' v, Hospital 'Z', IX (1998) SL T 418=(1998) 8 SCC 296]. I am at loss to find that as to what purpose such publication otherwise would achieve or how this will advance the cause of the appellant Bank to recover its dues if any. Except for creating an embarrassment and in a way infringement of the privacy of a person such publication would not achieve any tangible result. Surely, the Bank cannot claim that a person by borrowing money from the Bank is guilty of committing any crime for which he is shown to be and published before the public to be a history-sheeter. By publishing the name of the defaulter in this manner, aim is not to prevent any crime or disorder or it is meant to protect the morals or rights or freedom of others. What then is the achievement of such a mode? That apparently cannot be traced to any source under which such a procedure can be adopted. It is not for me to comment here that in case such an action lead to any defamation, then the person authorizing such publication may expose himself to a liability, if any, arising out of such exercise.

The provision made in the DRT (Procedure) Rules in the form of Rule 15- A which was inserted on 21.1.2003, gives the Tribunal a power and it may cause to notify the name of the defaulters in the newspaper or otherwise after the final order/recovery certificate has been passed by the Tribunal as it deem fit and proper. This provision also, therefore, would not leave an enabling power with the Bank to assume the role of a Tribunal, that too, at the very initial stage to publish the names etc., which power is given to the Tribunals only after final adjudication. It would be appropriate for the Banks to keep this aspect in view in order to avoid such uncalled for and unwarranted litigation.

The appeal is dismissed with the above observation.