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IN THE HON’BLE HIGH COURT OF JUDICATURE AT

HARIT PRADESH

Case Title: Civil Misc. Writ Petition No. _____________ of 2015(Under Article 226 of the
Constitution of India)

IN THE MATTER OF:

Mr.Rohit Sharma – Petitioner

Versus

Harit Pradesh Bank – Respondent no.1

Sompo Insurance Company- Respondent no.2

MEMORANDUM FOR THE PETITIONER

DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER

IM:136

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TABLE OF CONTENTS:

 List of abbreviations ………………………………………………… 3

 Index of Authorities ………………………………………………… 4

 Statement of Jurisdiction ………………………………………………… 6

 Synopsis of Facts ………………………………………………… 7

 Statement of Issues ………………………………………………… 8

 Summary of Arguments ………………………………………………… 9

 Arguments Advanced ……………………………………………… 11

 Whether there has been an


infringement of fundamental
rights of Mr. Sharma as 12
enshrined in the constitution
of Harit Pradesh

 Whether Mr. Sharma has


been put to mental torture
and distress by the bank and
the insurance company and
is liable to get
compensation.

 Whether the bank and the


insurance company can be

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jointly held liable for the


payment of the entire claim
amount

.
 Prayer ………………………………………………… 21

TABLE OF ABBREVIATIONS:

A.I.R. : All India Reporter


AP : Andhra Pradesh
Art : Article
COI : Constitution of India
Corpn. : Corporation
CPC : Civil Procedure Code
Crl : Criminal
Del. : Delhi
Esc : Escape
Govt. : Government
HC : High Court
HP : Himachal Pradesh
JT : Judgment Today
LR : Law Reporter
No. : Number
Para : Paragraph
Punj. : Punjab
Resp. : Respondent
SC : Supreme Court
SCC : Supreme Court Cases
Sec : Section
SLR : Supreme Court Law Reporter
St. : State
UOI : Union Of India
Vs. : Versus
WP : Writ Petition

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INDEX OF AUTHORITIES

1. CASE CITED:

S. NO. NAME OF THE CASE CITATION

AIR 1961 SC 1621,1963


1 Smt. Ujjam Bai vs. State of Uttar pradesh
SCR(1)778.
AIR SC 2068 : 1971(3)
2 State of Rajasthan vs. Vyas Mohan Lal
SCC 705
MCVS, Arinanchal Nadar, etc vs. The State of AIR 1959 SC 300 (1959)
3
Madras SUPP 1 SCR 92.

4 Rustom Cavasjee Cooper vs. Union of India. AIR 1970 SCR 447.

Fattuji Dajiba Gedam vs.Superintendent of


5 AIR(2003) ACC434.
Police and Ors.

6 R. Karrupaiah vs. Superintendent of Police AIR

AIR 1986 SC 180 (para-


7 Olga Tellis vs.Bombay corporation .
33-34)
Francis Coraile Mulin vs.Administration
8 AIR 1981 SC 746.
Union territory of Delhi.
AIR 1983 SC 313, 1983Cr.
9 Fazal Rab Chaudhary vs. State of Bihar.
Li. 632.
Manager ICICI bank Ltd. vs.Prakash Kaur
10 AIR 2007 SC 1349.
and Ors.
SCC, Criminal Misc Pet
HDFC bank Ltd. vs. State of Rajasthan and
11 no.2078/2009.
Ors.

AIR (2007) SCC 2 CTC


12 A.Moses vs. The Branch Manager.
334.
AIR (2005) SCC 188:SC
13 Chairman LIC vs.Rajeev KumarBhaskar
3087.
Saraj Agarwal vs. Life insurance Corporation AIR (2004) 4 CLT 490
14
of India (LIC). (Jhar).

15

16

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2. Books:
D.D Basu ,Shorter Constitution of India 13th edition Rep,(2006),Wadhwa and
company Nagpur.
Dr. J. N. Pandey, The Constitutional Law of India, 49th Edition 2012, Central Law
Agency Allahabad.
Dr. J. N. Pandey, Law of Torts, 9th Edition 2012, Central Law Publications Allahabad.

Akhileswar Pathak, Special Contracts 2nd edition, 2015.

R.K Bangia, law of Tort 12th edition.

3. Dictionary Referred
Bryan A. Garner, Editor, Black’s Law Dictionary, 6th Edition 1990, Westlaw blacks
.
P Ramatntha’Concise Law dictionary 3rd edition Rep 2006, Wadhwa nagpur

4. Electronic Media
www.Indiankanoon.com
www.lexisnexis.com
www.legalcrystal.com

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STATEMENT OF JURISDICTION

It is most humbly submitted that the petitioner has approached the Hon’ble High Court of
Judicature at Harit Pradesh under Article 2261of the constitution of India with for the
violation of fundamental rights and other legal rights guaranted under the constitution of
Harit Pradesh by filing a writ petition.

The petititoner most humbly and respectfully submits before the jurisdiction of the present
court and accepts that it has the power and authority to preside over the present case.

1
Article 226: power of High Courts to issue writs –clause (1). Notwithstanding anything in
article 32 every High Court shall have power, throughout the territories in relation to which
exercises jurisdiction to issue any person or authority, including in appropriate cases, any
Government, within those territories gives direction, orders or writs including [writs in the
nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any other purpose].

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SYNOPSIS OF FACTS

Mr. Rohit sharma – Petitioner

Harit pradesh bank – Respondent no.1

Sompo insurance company Ltd.-Respondent no. 2

 Mr.Rohit Sharma started his shop in 2008 in M/S Vidhya Niketan’s name and
sanctioned a loan of Rs.60,000 by Harit Pradesh Bank in 2011 in the name of M/S
Vidhya Niketan.This loan was increased to Rs 2,00,000 in 2012 and Rs.3,00,000 in
2015 for the purpose of stationary and mobile shop.

 The bank acted as intermediary and itself opted Sompo insurance Company Ltd.
for the above sanctioned loan which was regularly renewed by the bank itself and
initimated to M/S Vidhya Niketan.

 Unfortunately a fire broke into the shop on date 10.07.2015 at about 00:10 hrs then
Mr. Sharma immediately lodged an F.I.R and communicated other necessary
information to the concerned authority.

 Mr. Sharma claimed a fire claim of Rs.4,60,000/- under the shop keeper policy for
burnt and damaged stocks of stationary items ,mobile,accessories and other assets
damaged in the fire.

 Company informed Mr. Sharma that only salable items of stationary items are found
coverage as per policy and as such after calculation a sum of Rs.1,70,000/- has been
considered by the insurance company and the company denied for further help.

 Mr. Sharma reported the matter to the bank and allege that there has been an error in
the policy which the bank did not care and all went into futile.

-HENCE THE PETITION-

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STATEMENT OF ISSUES.

I. WHETHER THERE HAS BEEN AN INFRINGEMENT OF FUNDAMENTAL


RIGHT OF MR.SHARMA AS ENSHRINED IN THE CONSTITUTION OF HARIT
PRADESH.

II. WHETHER MR.SHARMA HAS BEEN PUT TO MENTAL TORTURE AND


DISTRESS BY THE BANK AND THE INSURANCE COMPANY AND IS
LIABLE TO GET COMPENSTION.

III. WHETHER THE BANK AND THE INSURANCE COMPANY CAN BE JOINTLY
HELD LIABLE FOR THE PAYMENT OF ENTIRE CLAIM AMOUNT BY M/S
VIDHYA NIKETAN.

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SUMMARY OF ARGUMENTS

ISSUE I: Whether there has been an infringement of fundamental rights of Mr. Sharma
as enshrined in the constitution of Harit Pradesh.

It is submitted that not providing the complete and reasonable fire claim demanded by
Mr.Sharma from the Sompo Insurance Company Ltd. under shop keeper policy because of
the bank’s negligence, infringes of right to Freedom of business ,trade and profession
under Article 19(1)(g) of the constitution of Harit Pradesh. Besides this bank’s fault has led
to the infringement of Mr. Sharma’s Right to live with human dignity within the definition
of life under Article 21 in the constitution of Harit Pradesh. Right to livelihood under the
Article 21 of the constitution of Harit Pradesh has also been infringed as the mobile shop and
stationary shop was the primary source of income for Mr. Sharma. Unreasonable conflict
created by the insurance company due to bank’s fault and negligence violates the Freedom of
contract hiddenly enshrined under Article 19(1)(f-g) of the Constitution of Harit Pradesh,as
till the time of 2 months of the decision of dispute Mr. Sharma can’t enter into any contract
regarding to that shop.

ISSUE II: Whether Mr. Sharma has been put to mental torture and distress by the
bank and the insurance company and is liable to get compensation.

Mr. Sharma confessed the bank to opt Sompo insurance company for his future security,
safety and uncertainty but due to bank’s negligence and fault in considering the rules and
ingredients of the policy,the huge economic loss is being suffered by Mr. Sharma and then
after the denial of the bank and the insurance company to help further comes within the
enclosure of mental torture.As shop being the primary source of income for Mr.
Sharma,thus this huge unbearable loss and then flaw by the bank creates a mental distress to
Mr. Rohit Sharma.

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ISSUE III: Whether the bank and the insurance company can be jointly held liable for
the payment of entire claim amount by M/S Vidhya Niketan:

The bank opted the Sompo Insurance company for the Safety and profit purpose ,it’s primary
moto was not to insure the sanctioned loan for Mr.Sharma but to make the sanctioned money
secure so that it(bank) may get the money from the insurance company if any incident
happens with Mr. Sharma’s Shop.Both the insurance company and Mr. sharma are
interdependent faulters for their wrongful acts ,as the bank has comitted the negligence and
thus the insurance company has got the chance to alter the ingredients of the policy ,Mr
Sharma is alleging that there is a flaw in the policy which the bank did not care, and being an
intermediary this was the duty of the bank to check and consider the ingredients
carefully.Along with this there was Ubberium Fide Relation i.e the relationship of utmost
trust between the insurance company and the Bank was there.

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ARGUMENTS ADVANCED

1)THERE HAS BEEN AN INFRINGEMENT OF FUNDAMENTAL RIGHTS OF MR.


SHARMA AS ENSHRINED IN THE CONSTITUTION OF HARIT PRADESH

 The right to freedom of business,trade and profession of Mr. Sharma under


Article 19(1)(g) is being infringed.

The insurance company did not provide the appropriate and reasonable fire claim
asked by Mr. sharma,voilates the Freedom of Business,Trade and profession under
Article 19(1)(g) of the constiution of Harit pradesh.As Harit Pradesh bank was the
intermediary,he bears the duty to keep the policy ingredients in proper consideration
and check the tranparency of the policy rules and regulations.

 The apex court has held in (1) Smt. Ujjam Bai v/s State of Uttar Pradesh 2- “ the
negligence and arbitrariness by the state authority is liable to compensate the affected
person and further the assesment and collection of taxes cannot be arbitrarory and
therefore the state must confer upon the taxing authority the powerful such duties.”the
judjement with the same reference was also held in State of Rajasthan vs Vyas
Mohan Lal 3and MCVS Arunachal nadar etc vs.The state of Madras and Ors.4

 In Rustom Cavasjee cooper vs Union of India5 the Hon’ble Supreme Court held
that “In the consequence of hostile discrimination, arbitrariness practiced

2
Smt.Ujjam Bai vs State of U.P,AIR 1962,1963 SCR(1)778.
3
State of Rajasthan vs Vyas Mohan Lal.AIR 1971 SC 2068:1971 (3) SCC 705.
4
MCVS Arunchal nadar vs. State of of Madras ,AIR1959 SC300 (1959) SUPP 1 SCR 92)
5
Rustom Cavasjee Cooper vs. Union ofIindia,AIR 1970 SCR 446
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by the state, the value of his investment has ceased and he had suffered a greatfinancial loss,
he is deprived of the right as shareholder to carry on business.”

 There is an infringement of right to live with human dignity of Mr. Sharma under
Article 21 of the constitution of Harit pradesh.

Bank’s negligence has made Mr Sharma unable to pay the sanctioned loan as the
insurance company has unreasonably considered only Rs.1,70,000/- for the fire claim
and Mr.Sharma has to pay Rs.3,00,000/- along with the intrest.Mr.Sharma had made his
sanctioned loan insured by the Sompo insurance company in hope that it might provide
relief in future uncertainity and accidents but all went into futile by bank’s fault.

The person who can’t even earn Rs. 60,000/- to improve his business and he need to
sanction this small amount of money through a loan from bank, then how can that
person will pay such a big loan. Besides all these things he has to pay fees to his lawyers
and legal advisers.these things presents a big picture of Mr. Sharma’s eonomic downfall
.Such a pathetic condition shows a threat to Mr. Sharma’s dignity.

 It was held by the Bombay Highcourt in Fattuji Dajiba Gedam vs Superintendent


of Police and Ors.—“The expression ‘life’ and ‘personal liberty’ includes in
right to live with human dignity and thus it would also include within itself a
guarantee against torture and assault by the state and its functionaries and
authorities.”
 Madras High court held in R.Karuppaiah vs. The Superintendent of police.—
“Human rights by their very nature constitute the minimum that is necessary to
live in a civilized society as a freeperson with dignity and respect in that society.

 Mr. Sharma’s right to livlihood under Article 21 of the constitution of Harit


Pradesh is also being infringed.

As the shop was the primary source of income of Mr. Sharma but after the fire
incident and then after bank’s negligence in considering and caring the insurance
ingredients caused a big and unbearable economic loss to Mr. Sharma which tends to
infringe his right to livlihood.Such an unbearable loss to a common man or a man
with middle class type economic potential shall be deprived of his right to livlihood.

It is extreamly difficult for Mr. Sharma to pay his sanctioned loan along with the
intrest rates to the bank as he his deprived of the primary source of his income by

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which he runs his family and fulfils his other basic needs and lives a life to maintain
atleast the minimum dignity in the society.

 The Hon’ble supreme court held in Olga Tellis vs. Bombay Corporation6-
“An equally important Fact of the right to life is the right to livlihood
because no person can live without the means of living i.e the means of
livlihood .if the right to livlihood is not treated as a part of the constitunal
right to life, the easiest way to depriving a person of his right to life would
be to deprive him of his means of livlihood.Such a deprivation would not
only denude the life of its effective content and meaningless but it would
make life impossible to live.” The judjement with the same reference was
also held in Francis Coraile Mulin vs Adminstrator Union Territory of
Delhi7

 It was held by the Hon’ble Supreme Court in Fazal Rab Chaudhary vs


State of Bihar8 –“It has been held to embrass within the right to livlihood
which are not illegal,immoral or opposed to public policy.but to hold that
not revision of pay scale or to eradicate or restrict their source of income
by illegal means or contrary to process established by law amounts to
violation of fundamental rights guaranteed under Article 21 would be
stretching it too far and cannot be countenanced.”

6
Olga Tellis vs.Bombay Corporation,AIR 1986 SC 180 (para.33-34).
7Francis Coraile Mulin vs.Administrator Union Territory of Delhi, AIR 1981 SC 746.
8Fazal Rab Chaudhary vs State of Bihar ,AIR 1983 SC 323 ,1983 Cri.Lj. 632.

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 THERE HAS BEEN AN INFRINGEMENT OF RIGHT TO FREEDOM TO


ENTER INTO A CONTRANT UNDER ARTICLE 19(1)(f-g) OF MR. SHARMA
AS ENSHRINED IN THE CONSTITUTION OF HARIT PRADESH :

Due to the the banks flaw,the dispute for the claim arises between Mr. Sharma and the
insurance company and thus the Insurance company kept the damaged shop under
question .therefore till the time,the surveyors verify again and again and unless the
hon’ble court decides the case ,Mr, Sharma can’t enter into any contract regarding to
that shop as the hon’ble court will probably send surveyors to enquire about the fire
cause.besides this the insurance company had also been sending its fire claim
surveyors regularly to enquire further.

Thus there is an infringement ofMr Sharma’s Freedom to enter into contract under
Article 19(1)(f-g)

 CONCLUSION FOR THE FIRST ISSUE :

In the light of the aforementioned contentions it is firmly established that Harit


Pradesh bank has negligently violated the fundamental rights of Mr. Sharma
guaranteed under the constitution of Harit pradesh.Article 19(1)(g),Article 19(1)(f-g)
and Article 21 .Thus Mr.Sharma is entitiled to get the copensation along with the
claim.

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2) MR. SHARMA HAS BEN PUT TO MENTAL TORTURE BY HARIT


PRADESH BANK AND THE INSURANCE COMPANY :

 Because of being an intermediary it is the duty of the bank to let Mr. sharma aware of
all the terms and ingredients of the policy with complete transparency.But inspite of
owing this duty the bank did not care.and it is point blank clear from the fact that
Mr.Sharma was known to all the terms and conditions which the bank had told him
but not the flaw which the bank did not care and did negligently.

 Hon’ble Supreme Court held in Manager ICICI bank Ltd vs.Prakash


Kaur and Ors9.—“The first mistake here is most definitely on the part of
the bank who does not believe in educating masses regarding
promises,hidden facts.Once the loan is taken or contract is made and
there appears a default then the witch hunt begins.”

 Besides these ,the Bank further refused to help him inspite of owing such duty,
which paves the way to lit the fire of mental distress to Mr. Rohit Sharma.Therefore
this mental distress ,because of eminent economic downfall of Mr. Sharma wears the
coat of Mental Torture because of the bank’s negligence.

The bank has and shall be trying to mentally torture Mr. Sharma through their
recovery agents in order to force Mr. sharma to pay sanctioned loans .It is the matter
of fact that the huge and brutal economic loss has made him distressed and
tensed.Regular phone calls, embarrassment abusive attitudes etc are practiced by these
agents who are nothing more than a buyed goons.

 In the same case i.e.Manager,ICICI Bank Ltd vs.Prakash kaur and


Ors.10
The hon’ble judge of the apex court Altamas Kabir held –“When a
harrased man approaches the court or the police station, mostly he is not
armed with the recording phone and finds it difficult to give evidence of
the abuse he has suffered by these recovery agents.Young and old family
members of the complainant are threatened on streets,institutions and also
at home at godforsaken hours by these agents who have full support of
their contractor bank.”The judjement with same reference was also held
in HDFC Bank Ltd. vs.State of Rajasthan and Ors.11

10
Manager,ICICI Bank Ltd. vs.Prakash Kaur and Ors,AIR 2007 SC 1349.
11
HDFC Bank Ltd vs State of Rajasthan and Ors,Criminal MISC Pet.no.2078/2009.

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 The abusive Language and torture methods used by these recovery agents also
degrades the dinity of a person.

 It was held by the Madras High Court in A. Moses vs The Branch


Manager12 –“Using of the abusive language for recovery is the norm of
the day for most nationalised or multinationalised banksor non-
nationalised banks. Though some are smart enough to record the abuse
and proceed to establish the same through the court of law, most of them
are unfortunate not to have recourse of it.again the bank escape liability
since these agents are not salaried employees of the bank and hence not
directly liable for anything.”

 According to the Blacks Law dictionary—“Distress or Mental Torture


may be defined as the taking either with legal process or extra judiciary
subject to the performance of some necessary condition precedent by a
private individualor by an officer by the court ,of a personnel chattel, out
of the possesion of the wrong doer or defaulter into the custody of the law
to be imponnded as pledge in order to bring pressure upon the owner of the
chattel , to redress an injury , to perform a duty or or to satisfy a lawful
demand, subject however to the right of the owner , to have the chattel
returned to him on the injury being redressed. Or the duty peformed ,or the
demand satisfied or on security being given to do so.”

 But here in the present case the bank is taking neither any judicial
process nor any legal process. In fact the bank is committing illegaly.

12A.Moses vs. The Branch Manager,W.P.No.1773 (2009).

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3) THE BANK AND THE INSURANCE COMPANY ARE JOINTLY


LIABLE FOR THE ENTIRE CAIM AMOUNT BY M/S VIDHYA
NIKETAN :

 By taking the conduct of the bank into consideration ,it is point blank clear that inspite
of being an intermediary ,The Harit Pradesh Bank acted as an agent of the
insurance company and very smartly opted the Sompo Insurance company for the
sanctioned loan and the motto behind it was to ensure the safety of the lended loan
and for profit purpose.

 “In the case of Chairman LIC vs. Rajeev Kumar Bhaskar13 where there
was a tripartite argeement between LIC, an employer and its employees
for purchase of life insurance policy by employees with employer
ostensibly acted as agent for employees,but as per terms and modalities of
agreement infact acting as though the agent for LIC. When the employer
failed to pay the premiums after deducing the same from the salaries of the
employees .there was an obligation on the insurance company to inform
the same to the employees and it failed to do so . Hence the insurance
company was liable to pay out on the policies to the employees of the
company.”

 By the Principle- Agent relationship between the insurance company and the Bank .
The company got the chance to alter the ingredients of the policy and the Bank being
negligent did not care it.Besides this ,the bank bears the responsibility to make Mr.
Sharma aware completely and with absolute transparency about the policy and its
terms but the Bank failed to do so .

13 Chairman LIC vs. Rajeev Kumar Bhaskar (2005) 6 SCC 188 : AIR 2005 SC 3087.

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 Therefore the Bank and the insurance Company,they both bears the responsibility
towards Mr. Rohit Sharma. Because of its negligence the bank remained silent when
ie owes the duty to speak and this further tends to misrepresentation because of
negligence.

 The same was held by the Highcourt of Jharkhand in the case of Saroj Agarwal vs.
Life Insurance Corporation of India(LIC)14 , the hon’ble court court held that—“the
insurance company owes the duty to present all the facts an terms of the policy to the
insured with eminent clearity and reason and with no hidden or translucent facts.”

 The aforementioned contentions makes it clear that the bank and the insurance
company are jointly liable to provide the complete amount of the fire claim and
Compensate Mr. Rohit Sharma.

 Thus it has been established in argument advanced that The Harit Pradesh Bank and
the Sompo insurance company both are at fault . On one part where the Bank is at
negligence in clearly considering and to care the terms and complete contents of the
policy and on the other part the insurance company fails to do his duty to make Mr.
Sharma aware of the all the ingredients of the policy with no opaqueness or disguise.

--HENCE, THIS PETITION--

14 Saroj Agarwal vs. Life Insurance Corporation (LIC).

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PRAYER

Wherefore in the light of facts stated ,issues raised,argument advanced and authorities
cited,it is most humbly prayed before this Hon’ble Court tha it may graciously be pleased
to:-

 Hold that the Harit Pradesh Bank is guilty for the infringement of freedom
of business,right to livlihood of Mr. Rohit Sharma.

 Hold that both the Bank and the Insurance company are liable for the
mental distress and torture caused to Mr. Sharma.

 Issue an order of Mandamus to Harit Pradesh Bank in order to


compensate Mr. Sharma for the damaged caused by the negligence of the
bank.

 And pass any other order in favour of Mr. Rohit Sharma which this
Hon’ble court may deem fit and proper in this circumstances of the case.

All of which is most humbly and respectfully submitted.

Sd/-
Counsel for the petitioner.

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