IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 14501 of 2004 SUJIT KUMAR & ANR Versus THE UNION OF INDIA & ORS W I T H CWJC No 14744 of 2004 GOPAL PRASAD & ANR Versus THE UNION OF INDIA & ORS W I T H CWJC No 3045 of 2005 ASHOK KUMAR & ORS Versus THE UNION OF INDIA & ORS ----------- 10 20.08.2008 In CWJC No 14501 of 2004, petitioners are Sujit Kumar and Subodh Kumar who had earlier moved this Court being parties in CWJC No 2497 of 1999 which was dismissed by order dated 24.07.2003 (Annexure-1 to this writ application). In CWJC No 14744 of 2004, the petitioners are Gopal Prasad and Ashok Kumar @ Ashok who were also parties to C.WJC No 2497 of 1999 which was dismissed on 24.07.2003 (Annexure-1 to this writ application). In CWJC No 3045 of 2005, the parties are Ashok Kumar, Arun Kumar and Smt Krishna Devi who were parties to C.WJC No 2497 of 1999 which was dismissed on 24.07.2003 (Annexure-1 to this writ application). Apart from them, petitioner No 4 is Rishav who had not moved this Court earlier in any matter. All these three writ applications involve the same question and are taken up, with consent of parties, together. State Bank of India had floated a Scheme known as Janta Deposit Scheme for poor, small investors to help them save money. 2 Under the Scheme, they were to open accounts in branches of State Bank of India. These were deposit accounts. They were then issued passbook and to help them deposit the money in small amounts, State Bank of India appointed collecting agent. It was the job of the collecting agent to go to house to house of the account holders and receive money in their account on behalf of the State Bank of India. On money being handed over to the agent, the agent was to grant receipts and make entry in the passbook maintained by the depositors at their residence itself. This way, the depositors did not have to go to the Bank each time they wanted to deposit any money in their account, thus, encouraging savings by this facility. It so happened that the petitioners opened such accounts with the State Bank of India, Nawada from time to time they made deposits through the agent of the Bank. Then after sometime, they heard rumours that there had been some bungling and then made enquiries from the Bank. Bank refused to acknowledge the deposits as shown in the passbook of the depositors as per receipts available with the depositors granted by the agent. The plea of the Bank was that even though the agent may have given receipts, made entries in the passbook, he defalcated the amounts and did not deposit in the Bank and, as such, Bank denied its liability in the matter. The petitioners then filed separate applications before the Banking Ombudsman under the Banking Ombudsman Scheme 1995. After due notice to the Bank and hearing the parties, the Banking Ombudsman held the Bank liable to honour the deposits as shown in the passbook of the depositors which were duly 3 covered by the receipts granted by the agent and directed the bank to pay the same with interest. When these orders were not being complied, the present writ petitioners filed the said writ application being CWJC No 2497 of 1999. In those proceedings, the Bank took a stand that Bank had filed various Title Suits against their agent for defalcation of the amount. In those Title Suits, petitioners were also made parties. This Court, in view of the matter being before Civil Court, dismissed the writ application by order as noticed above. It appears that one Smt Hira Mani Gupta had also filed a writ application in this Court being CWJC No 2531 of 2002 and in this case, this Court examined the matter. This Court found that in several cases, the same very branch of the same very Bank in respect of the same very incident had accepted the findings of the Ombudsman similarly rendered and settled the accounts in accordance with their recommendation contained therein. Considering those and then the stand of the Bank who agreed to pay the depositors on basis of the receipt and the entries in the passbook alongwith interest, the writ petition was allowed with a direction to the Bank to pay the amount if the amounts were duly covered by receipt, an entry in the passbook as made by the agent of the Bank alongwith interest due thereon on petitioner furnishing indemnity. These petitioners, whose writ petitions have been dismissed, on coming to know the said order of this Court being order dated 24.06.2004 passed in CWJC No 2531 of 2002, filed the present writ applications stating the aforesaid facts of dismissal of their earlier writ 4 applications, and annexing the said order and the allowing of the writ application of Smt Hira Mani Gupta (supra) which were annexed as Annexure-2 to these writ applications. Their prayer is that the Bank, branch and the transactions being similar bank which is an instrumentally of the State, cannot be permitted to take shifting/varying stands on the same set of facts. It is submitted that in case of some similar depositors, Bank did not choose to litigate at all and merely on the recommendation of the Ombudsman, settled the dues with interest. In other cases, even though they filed Title Suits, they agreed to settle the matter when they came to this Court and challenged the action of the Bank but in case of petitioners, on the same set of facts, the same Bank, the same branch took a totally opposite stand and got the writ petitions dismissed. This is not permissible for a State instrumentality. Bank, on the other hand, submits that once the writ application of the petitioners was dismissed, this second writ petition by them is not maintainable whatever may have been the stand of the Bank in different cases. Bank submits that as Title Suits are pending, the matter can be sorted out in the Title Suit. Heard the parties and with their consent, the writ application is being disposed of at the stage of admission itself. From the facts noted above, it is abundantly clear that there were several depositors under the Janta Deposit Scheme with the State Bank of India, Nawada Branch. That branch had appointed one agent for collection of money from depositors and issuing receipt to them and making entries in their passbook at their respective residence itself. In all 5 cases, the same very agent received money, granted receipts, made entries in the passbook but defalcated the amount. All depositors approached Banking Ombudsman which passed similar orders directing the Bank to honour the depositors as per the receipt and the entry in the passbook. Upto this stage, all petitioners were being equally treated but then started hostile discrimination at the behest of the State Bank of India, Nawada Branch. So far as some depositors were concerned, who were similarly situated, their claims were settled with interest immediately after Ombudsman’s order. In respect of some other, even though suits were filed, their claims were agreed to be settled before this Court but when it came to these unfortunate poor depositors, the Bank contested and got the writ petition dismissed. When these petitioners came to know of this unequal, arbitrary and hostile treatment, they brought this to the notice of this Court by filing this second writ application. In my view, these facts are eloquent enough to invoke the jurisdiction of this Court for the second time notwithstanding dismissal of the first time by the petitioners. It is well settled that State Bank of India is State within the meaning of Article 12 of the Constitution of India and that being so even in contractual spheres, its activities are fully covered by Article 14 of the Constitution of India. Article 14 of the Constitution of India is founded on the principles of fairness and reasonableness. Any action of the State instrumentality, may it be in contractual spheres, may it be dealing in money matters, if it is contra principles, as enshrined in Article 14 of the Constitution of India, such 6 action are liable to be struck down by this Court. Here, in the present case, it would be seen that the Bank has been taking a shifting stand at different stages and that too without any reason or rational. Apparently, it was only a plea of convenience at different stages first to settle the matter as per orders of the Ombudsman and then to get the writ petitions of the petitioners dismissed on plea of pendency of the suit and then to agree before this Court in another set of writ petition to settle the dues notwithstanding the pendency of the Title Suits. This is not fair nor reasonable on the part of the Bank. It had to be consistent in the same set of facts. Article 14 also enshrines the principle that all equals must be equally treated and if equals are unequally treated that itself is violative of the principles enshrined in Article 14 of the Constitution of India. This clearly renders the stand taken by the Bank to be clearly contra Article 14 of the Constitution of India and, thus, cannot be countenanced. The present set of writ petitions are, thus, founded on new facts with regard to the stand and attitude of the Bank and, thus, are maintainable and in view of the finding given above with regard to the arbitrary action on the part of the Bank, the writ petitions are held to be maintainable. I may usefully quote from the judgment of the Apex Court in the case of Mangalore Chemicals & Fertilizers Limited -Versus- Deputy Commissioner of Commercial Taxes & Others, AIR 1992 Supreme Court 152 that the State cannot be prevented from doing its duty but Courts can certainly prevent the State from taking technical 7 pleas to defeat legitimate claims of citizens. The relevant part of this judgment is quoted thus : The answer to this is in the words of Lord Denning : “Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality” (see Wells v. Minister of Housing and Local Government, (1967) 1 WLR 1000 at p. 1007). Francis Bennion in his “Statotory Interpretation”, 1984 edition, says at page 683 : “Unnecessary technicality : Modern courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfillment of the purposes of the legislation.” The same principle has been stated in the case of M/s Hindustan Sugar Mills -Versus- State of Rajasthan & Others since reported in AIR 1981 Supreme Court 1681 wherein the Apex Court held that the Central Government should honour its legal obligation arising out of contract and not drive the citizen to file a suit for recovery of the amount. In a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. In view of the aforesaid, the writ applications are allowed and the respondent-Bank is directed to honour the claims of the petitioners if the petitioners are able to produce original receipts granted by the said agent and corresponding entries in the passbook available to the petitioners. The payments would be made subject to indemnity granted to the petitioners alongwith interest thereon in terms similar to the case 8 of Smt Hira Mani Gupta (supra). M.E.H./ (Navaniti Prasad Singh)