Ajoy Nath Ray, C.J. - (1.) This is a reference made by an order of an Hon'ble Division Bench passed on the 9th of September, 2005.
(2.) The reference was made in a Habeas Corpus Writ Petition No. 58318 of 2005. In the first two paragraphs of the referring judgment, their Lordships said as follows: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. 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.) In the concluding portion where the reference was ordered, their Lordships said as follows:- 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. 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 lClCl 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 nay 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? Since this is a matter of vital public importance, interest of justice demands that this matter should be heard by a larger bench. 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.;