SUNIL DUTH H vs KARNATAKA BANK LTD
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 8 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.2550 OF 2024 (GM-DRT)
BETWEEN:
1. SUNIL DUTH H
S/O PANDURANGA H
AGED ABOUT 48 YEARS
R/AT NO.10-171/18,
PARVATHI, NEAR POLICE QUARTERS,
SHAKTHINAGAR, MANGALORE,
DAKSHINA KANNADA DISTRICT-575 016.
…PETITIONER
(BY SRI. KETHAN KUMAR, ADVOCATE)
AND:
1. KARNATAKA BANK LTD.
ASSET RECOVERY MANAGEMENT BRANCH
KARNATAKA BANK LIMITED
3RD FLOOR, KARNATAKA BANK BUILDING
KODIALBAIL
MANGALORE-575 003
REP. BY ITS CHIEF MANAGER/AUTHORISED OFFICER
SHRI SHIVARAM BHAT E
S/O LATE E. VENKATESHWARA BHAT
RESPONDENT BANK REGISTERED UNDER THE
INDIAN COMPANIES ACT, 1913 AND
GOVERNED BY RESERVE BANK.
…RESPONDENT
(BY SRI. SUDESH KUMAR ACHARYA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
Digitally signed by
MAHALAKSHMI B M
Location: High Court
of Karnataka
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IMPUGNED ORDER DATED 15.12.2023 PASSED IN CRIMINAL MIS
CASE NO.413/2023 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM., MANGALURU, D.K. VIDE ANNEXURE-A, ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL ORDER
1. The petitioner has filed the present petition impugning the
order dated 15.12.2023 passed in Criminal Miscellaneous No.413
of 2023 on the file of the Principal Senior Civil Judge and CJM,
Mangalore, D.K., wherein the application filed by the respondent-
Bank under Section 14 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
came to be allowed.
2. This Court, on 31.01.2024, has passed an interim order
staying the impugned order, subject to the petitioner depositing
30% of the amount due to the respondent-Bank within nine weeks,
in the manner described in the order dated 31.01.2024.
3. The learned counsel for the petitioner fairly submits that the
interim order dated 31.01.2024 has not been complied with.
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4. Learned counsel appearing for the respondent-Bank submits
that this petition has been filed against the Karnataka Bank
Limited, which is a private bank and the writ petition filed against a
private bank is not maintainable. In support of his contention, he
relies upon the decision of the Coordinate Bench of this Court in
the case of Gowtham v. Karnataka Bank Limited in
W.P.No.11869/2017 connected with W.P.No.27352/2016 dated
04.03.2020 wherein, the Coordinate Bench of this Court,
considering the judgments of the Supreme Court in the case of
1
M.P.Singh vs. Union of India and others and in the case of
2
Federal Bank Ltd. vs. Sagar Thomas and Others and the
judgment of the Division Bench of this Court in the case of
Karnataka Bank Limited v. Smt. Rekha Rao and others in Writ
Appeal Nos.8541 to 8549/1996, has held that the writ petition filed
against a private bank is not maintainable, as no public duty or
public function is involved. The relevant extract in Gowtham's
case is as under:
"3. Learned counsel for the respondent would place
reliance on the ruling of this court rendered in Karnataka
Bank Limited Vs. Smt. Rekha Rao and Others in W.A.
1
2013 AIR SCW 2545
2
(2003)10 SCC 733
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Nos.8541 to 8549/1996 wherein, the Division Bench after
considering the issue in total has held in paragraphs No.9
and 10 as follows:-
“9. The writ petitioners in filing the writ
petitions, wrongly assumed that (a) the appellant
is an authority; (b) that the suggested guidelines
by Reserve Bank to private sector banks are
binding statutory directions; and (c) that the
fundamental rights guaranteed under Articles 14
to 16 of the Constitution Of India is available to
them as against the appellant-Bank. The first two
assumptions have been negatived by the learned
Single Judge and they are not re-agitated in these
appeals. The correctness of the third assumption
was not specifically considered by the learned
Single Judge. But he has recorded a finding that
the appellant-Bank discharges a public duty in
making recruitment, without any discussion. Thus
we have to infer that he has also assumed, if we
may say so with respect, wrongly, that the writ
Petitioners can enforce the fundamental rights
enshrined in Articles 14 to 16 against the
appellant. The fundamental rights enshrined in the
conditions are of two kinds. The first kind is the
natural fundamental rights which are recognized in
any civilized society (e.g., right to life, personal
liberty and freedoms) which if infringed, can be
enforced against the State in a writ proceedings,
and against private persons, in the Civil Courts.
The second kind is the special fundamental rights
conferred by the Constitution which are available
and enforceable only against the ‘State’ as
defined in Article 12 (for e.g., rights in matters of
public employment). The learned Single Judge
has overlooked the fact that fundamental rights
conferred by Articles 14 to 16 are not enforceable
against a private person and body and
discrimination is prohibited only in State action
and not in actions of private citizens. Therefore,
even if there is any irregularity in selection by the
appellant, the remedy of writ Petitioners is not by
a writ proceedings alleging discrimination, but by
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action in a Civil Court based on contract, statute
or the principles of estoppel, if available.
10. As no public duty or public function is
involved, in regard to selection of persons by the
appellant to its clerical cadre, and as the appellant
is not a ‘State’ under Article 12 of the Constitution
Of India, the only inescapable conclusion is that
the writ petitions filed by the private Respondents
are not maintainable against the appellant-bank.
In view of our answer to the first and second
questions, the third question does not survive for
consideration. These appeals are allowed. The order
dated 23.8.1996 in Writ Petition
Nos. 23935-941 of 1995, 16490/1995 and 25386 of
1991 is set aside. The said petitions are dismissed as
not maintainable. Parties to bear their respective
costs.”
4. Learned counsel would also place reliance on the
ruling of the Hon’ble Apex Court in the case of Federal Bank
Ltd. Vs. Sagar Thomas and Others, reported in (2003) 10
SCC 733 to further fortifies his contention that the writ
petition against the private entity is not maintainable. The
Hon’ble Apex Court in the citation stated supra has been
pleased to observe and hold in paragraphs No.18 and 31
which reads as under:-
“18. From the decisions referred to above, the
position that emerges is that a writ petition under
Article 226 of the Constitution of India may be
maintainable against (i) the State (Government);
(ii) an authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a
company which is financed and owned by the
State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public
duty or positive obligation of public nature; and
(viii) a person or a body under liability to discharge
any function under any statute, to compel it to
perform such a statutory function.
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31. The other case which has been heavily relied
upon is Andi Mukta. It is no doubt held that a
mandamus can be issued to any person or
authority performing public duty, owing positive
obligation to the affected party. The writ petition
was held to be maintainable since the teacher
whose services were terminated by the institution
was affiliated to the university and was governed
by the ordinances, casting certain obligations
which it owed to that petitioner. But it is not the
case here. Our attention has been drawn by the
learned counsel for the appellant to paras 12, 13
and 21 of the decision (Andi Mukta) to indicate
that even according to this case no writ would lie
against the private body except where it has some
obligation to discharge which is statutory or of
public character.”
5. Learned counsel would further submit that the Hon’ble
Apex Court in the case of M.P. Singh Vs. Union of India and
Others and connected appeals reported in 2013 AIR SCW
2545, was pleased to reiterate the law laid down in the case
of Federal Bank (stated supra). The Hon’ble Apex Court has
been pleased to observe in paragraph Nos.47, 48 and 49
which are as follows:-
“47. Merely because TATA Communication Limited
is performing the functions
@page-SCW2558
which were initially performed by OCS would not
be sufficient to hold that it is performing a public
function. It has been categorically held in the case
of Ramana Dayaram Shetty (AIR 1979 SC 1628)
(supra) if only the functions of the Corporation are
of public importance and closely related to
Government functions, it would be a relevant factor
in classifying the Corporation as an instrumentality
or agency of the Government.
48. As noticed above, the functions performed by
VSNL/TCL are not of such nature which could be
said to be a public functions. Undoubtedly, these
operators provide a service to the subscribers. The
service is available upon payment of commercial
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charges. The learned counsel for the appellants
had placed strong reliance on the judgment of this
Court in Air India Statutory Corporation (AIR 1997
SC 645: 1997 AIR SCC 430) (Supra). However,
the aforesaid judgment is of no assistance to the
appellants as it was subsequently overruled by a
Constitution Bench in Steel Authority of India Ltd.
And Ors. V. v. National Union Waterfront Workers
and Ors. Dr. K.S. Chauhan had also relied on the
Human Rights Act, 1998 (Meaning of Public
Function) Bill which sets out the factors to be taken
into account in determining whether a particular
function is a public function for the purpose of sub-
section (3)(b) of Section 6 of the aforesaid Act.
Section 1 enumerates the following factors which
may be taken into account for determining the
question as to whether a function is a function of
public nature:
“(a) the extent to which the State has
assumed responsibility for the function in
question;
(b) the role and responsibility of the State in
relation to the subject-matter in question;
(c) the nature and extent of the public
interest in the function in question;
(d) the nature and extent of any statutory
power or duty in relation to the function in
question;
(e) the extent to which the State, directly or
indirectly, regulates, supervises or inspects
the performance of the function in question;
(f) the extent to which the State makes
payment for the function in question;
(g) whether the function involves or may
involve the use of statutory coercive powers;
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(h) the extent of the risk that improper
performance of the function might violate an
individual's convention right.”
Performance of public function by private
provider -18. (2001 (7) SCC 1): (AIR
2001 SC 3527 : 2001 AIR SCW 3574).
49. For the avoidance of doubt, for the
purposes of Section 6(3)(b) of the Human Rights
Act, 1998, a function of a public nature includes a
function which is required or enabled to be
performed wholly or partially at public expense,
irrespective of -
“(a) the legal status of the person who performs
the function, or
(b) whether the person performs the function by
reason of a contractual or other agreement or
arrangement.”
Proceeded further in paragraph Nos.50 and 52 held as
under:-
“50. In our opinion, the functions performed by
VSNL/TCL examined on the touchstone of the
aforesaid factors cannot be declared to be the
performance of a public function. The State has
divested its control by transferring the functions
performed by OCS prior to 1986 on VSNL/TCL. Dr
Chauhan had also relied on Binny Ltd.
@ page – SCW 2559
(supra) wherein this Court reiterated the
observations made by this Court in
Dwarkanath v. Incom-tax Officer, Spcial Circle, D-
ward, Kanpur and Anr., it was observed that :
“It is difficult to draw a line between the public
functions and private functions when it is being
discharged by a purely private authority. A body is
performing a “public function” when it seeks to
achieve some collective benefit for the public or a
section of the public and is accepted by the public
or that section of the public as having authority to
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do so. Bodies therefore exercise public functions
when they intervene or participate in social or
economic affairs in the public interest.
52. These observations make it abundantly clear
that in order for it to be held that the body is
performing a public function, the appellant would
have to prove that the body seeks to achieve some
collective benefit for the public or a section of
public and accepted by the public as having
authority to do so. In the present case, as noticed
earlier, all telecom operators are providing
commercial service for commercial considerations.
Such an activity in substance is no different from
the activities of a bookshop selling books. It would
be no different from any other amenity which
facilitates the dissemination of information or DATA
through any medium. We are unable to appreciate
the submission of the learned counsel for the
appellants that the activities of TCL are in aid of
enforcing the fundamental rights under Article
21(1)(a) of the Constitution. The recipients of the
service of the telecom service voluntarily enter into
a commercial agreement for receipt and
transmission of information. The function
performed by VSNL/TCL cannot be put on the
same pedestal as the function performed by private
institution in imparting education to children. It has
been repeatedly held by this Court that private
education service is in the nature of sovereign
function which is required to be performed by the
Union of India. Right to education is a fundamental
right for children upto the age of 14 as provided in
Article 21-A. Therefore, reliance placed by the
learned counsel for the appellants on the judgment
of this Court in Andi Mukta (AIR 1989 SC 1607)
(supra) would be of no avail. In any event, in the
aforesaid case, this Court was concerned with the
non-payment of salary to the teachers by Andi
Mukta Trust. In those circumstances, it was held
that the Trust is duty-bound to make the payment
and, therefore, a writ in the nature of mandamus
was issued. Mr C.U. Singh, Senior Counsel relied
on Binny Ltd. (AIR 2005 SC 3205 : 2005 AIR SCW
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3774) (supra) in support of the submissions that
VSNL/TCL is not performing a public function. In
our opinion, the observations made by this Court in
the aforesaid judgment are fully applicable in the
facts and circumstances of this case."
6. xxx
7. In the light of the pronouncement of the Hon’ble Apex
Court as stated above, since the respondent bank is
similarly situated, the instant writ petition requires to be
rejected as not being maintainable. Accordingly, the writ
petition is rejected as not maintainable. The rejection of the
writ petition will not prevent the petitioner from seeking
remedy before the competent forum/authority/court.
The time spent in prosecuting this writ petition shall be
considered for the purpose of calculating the limitation."
5. The Supreme Court in the case of S. Shobha vs Muthoot
Finance Limited (2025 INSC 117) has held as under :
“ 9. We may sum up thus:
(1) For issuing writ against a legal entity, it would have to
be an instrumentality or agency of a State or should have
been entrusted with such functions as are Governmental or
closely associated therewith by being of public importance
or being fundamental to the life of the people and hence
Governmental.
(2) A writ petition under Article 226 of the Constitution of
India may be maintainable against (i) the State
Government; (ii) Authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a company which
is financed and owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body
discharging public duty or positive obligation of public
nature; and (viii) a person or a body under liability to
discharge any function under any Statute, to compel it to
perform such a statutory function.
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(3) Although a non-banking finance company like the
Muthoot Finance Ltd. with which we are concerned is duty
bound to follow and abide by the guidelines provided by the
Reserve Bank of India for smooth conduct of its affairs in
carrying on its business, yet those are of regulatory
measures to keep a check and provide guideline and not a
participatory dominance or control over the affairs of the
company.
(4) A private company carrying on banking business as
a Scheduled bank cannot be termed as a company carrying
on any public function or public duty.
(5) Normally, mandamus is issued to a public body or
authority to compel it to perform some public duty cast upon
it by some statute or statutory rule. In exceptional cases a
writ of mandamus or a writ in the nature of mandamus may
issue to a private body, but only where a public duty is cast
upon such private body by a statute or statutory rule and
only to compel such body to perform its public duty.
(6) Merely because a statue or a rule having the force of
a statute requires a company or some other body to do a
particular thing, it does not possess the attribute of a
statutory body.
(7) If a private body is discharging a public function and
the denial of any rights is in connection with the public duty
imposed on such body, the public law remedy can be
enforced. The duty cast on the public body may be either
statutory or otherwise and the source of such power is
immaterial but, nevertheless, there must be the public law
element in such action.
(8) According to Halsbury’s Laws of England, 3rd Ed.
Vol.30, p.682, “a public authority is a body not necessarily a
county council, municipal corporation or other local authority
which has public statutory duties to perform, and which
perform the duties and carries out its transactions for the
benefit of the public and not for private profit”. There cannot
be any general definition of public authority or public action.
The facts of each case decide the point.”
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6. The Supreme Court held that a private company carrying on
banking business as a Scheduled bank cannot be termed as a
company carrying on any public function or public duty.
7. In this case, the respondent is Karnataka Bank Limited and
this court in Gowtham (supra) has held that writ petition filed
against the bank is not maintainable.
8. In view of the above, the writ petition is not maintainable
against the respondent-Bank. Accordingly, the writ petition is
dismissed as not maintainable . Liberty is reserved to the
petitioner to seek appropriate remedy before the competent forum.
Time spent before this Court shall be available to the petitioner
under Section 14 of the Limitation, 1963.
Sd/-
_______________________
JUSTICE K.S. HEMALEKHA
hkh.
List No.: 1 Sl No.: 10