TMI Blog2020 (5) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 1 and should have relegated the Respondent No. 1 to appropriate remedy for adjudication of all contentious issues between the parties. Appeal allowed. - Civil Appeal Nos. 2410-2411/2020 (Arising out of SLP (C) No. 11603/2017) - - - Dated:- 6-5-2020 - A.M. Khanwilkar and Dinesh Maheshwari, JJ. For Appellant: Dhruv Mehta, Sr. Adv., Rajesh Kumar-I, Anant Gautam, Sakshi Gaur, Sorabh Dahiya, Vibhu Sharma, Nipun Sharma and Anmol Mehta, Advs. For Respondents: J.S. Attri, Sr. Adv., Varinder Kumar Sharma, Chandra Nand Jha, Chandan Kumar, Devashish Bharuka, Ravi Bharuka, Sarvshree, Gestine George and Srishti Agarwal, Advs. JUDGMENT A.M. Khanwilkar, J. 1. Leave granted. 2. This appeal takes exception to the judgment and order dated 23.2.2017 passed by the Division Bench of the High Court of Judicature at Patna For short, the High Court in Letters Patent Appeal (LPA) No. 310/2009, whereby, the LPA filed by the Appellants came to be dismissed while affirming the decision of the learned single Judge, dated 10.2.2009 in allowing the Civil Writ Jurisdiction Case (CWJC) No. 867/1999. 3. The Division Bench took note of the relevant background facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ievance before the Branch Manager of the said branch and also filed representations before the Bank authorities. Thereafter, the writ Petitioner approached the District Magistrate, Sri Nanhe Prasad, who ordered the then Circle Officer, Haveli Kharagpur, District Munger, Sri Binod Kumar Singh to make a detailed enquiry into the matter and report. Accordingly, a Misc. Case No. 4 (DW 1) PNB/1989-90 was initiated and in those proceedings, various officials of the Punjab National Bank, including the then Branch Manager, District Coordination Officer of the Punjab National Bank and the Accountant of the Bank were examined from time to time and reports were submitted to the District Magistrate, Munger. Several witnesses were examined even by the District Magistrate, Munger. There were officers from the Regional Office of the Punjab National Bank, one of them being Sri Tej Narain Singh, the Regional Manager of the Punjab National Bank, Regional Office, Patna-B also deposed making reference of what had transpired to the Zonal Office of the Bank. On the basis of these statements, which were recorded by the Circle Officer and/or by the then District Magistrate-cum-Collector, Munger, Sri Gorel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licitly denied the genuineness and existence of the documents annexed to the writ petition and asserted that the same are forged, fabricated and manufactured documents. The Bank also placed on record that the Respondent No. 1 had filed similar writ petition against another bank, namely, the Munger Jamui Central Cooperative Bank Limited being CWJC No. 4353/1993, which was eventually dismissed on 7/3.7.1995, as the claim set up by the Respondent No. 1 herein in the said writ petition was stoutly disputed by the concerned Bank. 4. Be it noted that the learned single Judge, as well as, the Division Bench adverted to the stand taken by the Appellant-Bank, seriously disputing the existence of the stated agreement and asserting that the same was fabricated and fraudulent document, as can be discerned from the order of the learned single Judge, which records as follows: 11. Counter affidavit came to be filed by the Respondent bank where they decided to deny the claim of the Petitioner. They raised serious doubts with regard to the existence of the records of Misc. Case No. 4 (DW I) PNB/89-90. They took a stand that as per their knowledge no such records exist or is readily available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard as noted above, the Respondent Bank is hereby directed to take steps for payment of the money which had been quantified in terms of annexure-5B. It is clarified that order of payment is not for enforcement of agreement contained in annexure 5B but only a certification that the money of the Petitioner must accrue to his account and must be paid back to him with due interest thereon as proper book keeping and maintenance of accounts of a customer is a public duty of the bank. The Court expects the Respondent Bank to make payments within a period of three months from the date of communication/production of a copy of this order. The writ application stands allowed. 5. The Appellant-Bank carried the matter before the Division Bench by way of LPA No. 310/2009. During the pendency of the said appeal, the Bank filed affidavit of Mr. Tapan Kumar Palit (the then Accountant of Branch Office, Haveli Kharagpur) dated 3.3.2009, specifically denying each of these facts, namely, (a) the Respondent No. 1 had deposited an amount of ₹ 14,93,000/- (Rupees fourteen lakhs ninety-three thousand only) with the Appellant-Bank on 4.8.1989, (b) that the affiant participated in the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NB/1989-90 as well as the certified copy of the proceedings filed before this Court in appeal, which is a voluminous one with a plethora of documents, it could not have been a figment of imagination or a piece of fiction. Thus, the order of the learned Single Judge does not suffer from any infirmity and calls for no interference, which has further been fortified by affirmation of the officer and the office peon as well as the Head Clerk posted at the relevant time in the office of the Circle Officer, Haveli Kharagpur. 14. The order of the learned Single Judge passed in CWJC No. 867 of 1999 is affirmed and the appeal is dismissed. 7. Being aggrieved, the Bank is in appeal before this Court. While issuing notice on 21.4.2017, this Court had noted thus: Issue notice. As Respondent No. 1 is represented by Mr. Amrinder Sharan, learned senior Counsel being assisted by Mr. Awanish Sinha, learned Counsel no further notice shall be issued to him. As far as other Respondents are concerned, notice be issued to them fixing a returnable date within twelve weeks. Be it noted that Mr. Amrinder Sharan, learned senior Counsel has agreed that the Respondent No. 1 is prepared to fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Article 226 of the Constitution is very wide including it can cross-examine the concerned affiant(s) and enquire into all aspects of the matter. To buttress this submission, reliance is placed on Smt. Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors. (1969) 3 SCC 769, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors. (1974) 2 SCC 706, M/s. Hyderabad Commercials v. Indian Bank and Ors. 1991 Supp (2) SCC 340 and ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC 553. The Respondent No. 1 would additionally urge that the case set up by him in the writ petition is substantiated by the certified copies of the main docket alongwith that of the dispatch register regarding Misc. Case No. 04 (DW1) PNB/1989-90 and there is presumption about its genuineness. The Respondent No. 1 has placed reliance on the decisions of this Court in Bhinka and Ors. v. Charan Singh AIR 1959 SC 960 and Kaliya v. State of Madhya Pradesh (2013) 10 SCC 758. Further, the circumstances emanating from the records clearly substantiate the fact that the stated agreement was executed between the parties on 27.5.1990 and it is not open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Appellant-Bank on that basis. Moreover, from the narration of facts, it is more than clear that it would involve scrutiny of complex matters and issues including about the existence of the very agreement, which is the foundational evidence for seeking relief as prayed in the writ petition. In that, the genuineness and existence of the stated agreement has been put in issue by the Appellant-Bank and which is made good on the basis of affidavits of concerned Bank officials and even supported by the report of the District Magistrate referred to in his affidavit dated 5.5.2016. 12. Notably, the Respondent No. 1 had filed similar writ petition against another bank in the year 1995, which came to be rejected as the facts stated therein were also disputed by that bank. In the present case, however, the learned single Judge was impressed by the specious fact that the Respondent No. 1 had produced plethora of documents and thus assumed that the Appellant bank wanted to wriggle out of the ticklish situation by raising technical objection of maintainability of the writ application. This observation of the learned single Judge is nothing short of being based on surmises and conjectur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uineness of the document is debatable (triable) and is not a case of admitted position or indisputable fact, so as to proceed against the Appellant-Bank by directing payment of the amount claimed by the Respondent No. 1 (writ Petitioner), on the basis of such an agreement. 15. The judgment of the learned single Judge has completely glossed over these crucial aspects and the writ petition has been disposed of in a very casual manner. The Division Bench of the High Court committed the same error in upholding the decision of the learned single Judge. The Division Bench has not even analysed the efficacy of the affidavits filed in support of the stand taken by the Appellant-Bank during the pendency of the LPA. It merely reiterates the view taken by the learned single Judge in just two short paragraphs reproduced in paragraph 6 above. It has not analysed the efficacy of the proceedings in Misc. Case No. 04 (DW1) PNB/1989-90, as well as, the certified copy of the proceedings filed in appeal before it, in the context of affidavits of Bank officials and report of the District Magistrate. The Division Bench was also misled by the voluminous documents relied upon by the Respondent No. 1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect errors of fact, and does not by assuming jurisdiction Under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved Petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition Under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. Similarly, another Constitution Bench decision in Suganmal (supra) dealt with the scope of jurisdiction Under Article 226 of the Constitution. In paragraph 6 of the said decision, the Court observed thus: 6. On the first point, we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred Under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ Petitioner on its own merits in accordance with law. 18. In the next reported decision relied upon by the Respondent No. 1 in Babubhai (supra), no doubt this Court opined that if need be, it would be open to the High Court to cross-examine the affiants. We may usefully refer to paragraph 10 of the said decision, which reads thus: 10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions Under Article 226 of the Constitution. Section 141 of the Code, to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. This decision has noticed Smt. Gunwant Kaur (supra), which had unmistakably held that when the petition raises complex questions of facts, the High Court may decline to try a petition. It is further observed that if on consideration of the nature of the controversy, the High Court decides to go into the disputed questions of fact, it would be free to do so on sound judicial principles. Despite the factual matrix in the present case, the High Court not only ventured to entertain the writ petition, but dealt with the same in a casual manner without adjudicating the disputed questions of fact by taking into account all aspects of the matter. The manner in which the Court disposed of the writ petition, by no stretch of imagination, can qualify the test of discretion having been exercised on sound judicial principles. 19. In Hyderabad Commercials (supra), on which reliance has been placed, it is clear from paragraph 4 of the said decision that the Bank had admitted its mistake and liability, but took a specious plea about the manner in which the transfer was effected. On that stand, the Court proceeded to grant relief to the Appellant therein, the account holder. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, we are inclined to allow this appeal. As a consequence, the impugned decisions of the learned single Judge and the Division Bench are set aside and the writ petition filed by the Respondent No. 1 shall stand dismissed with liberty to Respondent No. 1 to take recourse to other alternative remedy as may be permissible in law. The same be decided on its own merits in accordance with law uninfluenced by the observations on factual matters made in the impugned judgment and order of the High Court or for that matter, this judgment. In other words, all contentions available to both parties are left open including to proceed against Respondent No. 1 as per law, if it is found by the concerned Court/forum that false and incorrect statement on oath has been made by the Respondent No. 1 and that the documents produced by him are forged and fabricated documents. 24. In view of the above, this appeal succeeds. The impugned decisions are set aside and the writ petition filed by the Respondent No. 1 being CWJC No. 867/1999 stands dismissed with liberty as aforesaid. There shall be no order as to costs. Pending interlocutory applications, if any, shall stand disposed of. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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