Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO……………/2020
(Arising out of SLP(C) No. 11603/2017)
Punjab National Bank & Ors. …Appellant(s)
Versus
Atmanand Singh & Ors. ...Respondent(s)
J U D G M E N T
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
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of Judicature at Patna 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.
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2020.05.06
16:03:08 IST
Reason:
1 For short, “the High Court”
2
3. The Division Bench took note of the relevant background
facts necessitating filing of writ petition by the respondent No. 1
for a direction to the appellantBank to pay his lawful admitted
claims in terms of agreement dated 27.5.1990 (Annexure 5(b)
appended to the writ petition) and also to deposit the incometax
papers with immediate effect. The Division Bench has noted as
follows:
“4. The facts of the case is that the writ petitioner had
taken a term loan of Rs.10,000/ from the Bank by way of
financial assistance to run a business in the name of
“Sanjeev Readymade Store” from Haveli Kharagpur Branch
of Punjab National Bank in the district of Munger. The writ
petitioner was paid the said sum of Rs.10,000/ in two
instalments of Rs.4,000/ on 21.07.1984 and Rs.6,000/ on
01.10.1984. The writ petitioner had yet another savings
account in the same branch of the respondentsbank.
However, on 14.02.1990, the term loan with interest had
mounted upto a figure of Rs.13,386/. In 1989, the writ
petitioner, who is Respondent no. 2 in the appeal, was
granted two cheques of Rs.5,000/ each by the Circle Officer,
Haveli Kharagpur under the Earthquake Relief Fund. The
said two cheques were deposited with the Bank for
encashment in the other savings account, but instead, were
transferred to the loan account. This was done without any
authorization of the writ petitioner and without direction of
any competent authority. Some time thereafter, the writ
petitioner’s son was afflicted by cancer, which required
immediate treatment at All India Institute of Medical
Sciences, New Delhi. In order to meet the expenses of the
treatment, writ petitioner sold 406 bhars of gold jewellery of
his wife’s “stridhan” and received Rs.14,93,268/. He
approached the branch of the respondentsbank with a sum
of Rs.14,93,000/ on 04.08.1989 for issuance of two bank
drafts, one in his name and the another in the name of his
wife. The then Accountant, Mr. T.K. Palit showed his
inability to prepare the drafts on the ground of shortage of
staff on that day and requested the writ petitioner to deposit
the amount in the savings account No. 1020 in the said
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branch. The Accountant, after receipt of the money,
transferred total amount of Rs.15,03,000/ to the loan
account, whereas in the loan account upto 14.02.1990
outstanding dues of principal and interest was only
Rs.13,386/. The writ petition made grievance 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/198990 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, PatnaB 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
MagistratecumCollector, Munger, Sri Gorelal Prasad Yadav,
the matter proceeded. The basic assertion of the writ
petitioner having been found correct and the liability having
been accepted by the respondentsbank, it was reduced to
an agreement dated 27.05.1990, which is Annexure5B to
the writ application between the parties. The agreement was
signed by one and all in presence of the Circle Officer and
the overall supervision of the District Magistrate. It was duly
recorded in writing that the bank had received the deposit
amounting to Rs.15,03,000/ as per deposits made on
02.08.1989, 04.08.1989 and 04.10.1989. It was also
recorded that the total term loan and the liability of the writ
petitioner up to 14.02.1990 came to Rs.13,386/ only and
the amount of Rs. 14,89,614/ of the writ petitioner would
be kept in the Fixed Deposit of the bank and shall be paid
with interest by September, 1997. The writ application was
filed, when the bank refused to honour this agreement. In
support of the writ application, certified copies of the entire
proceedings, depositions as had been obtained by the writ
petitioner in the year 1990 were annexed.”
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The appellantBank contested the said writ petition and raised
objections regarding the maintainability of the writ petition and
disputed the money claim set up by the respondent No. 1 on the
basis of alleged contractual agreement dated 27.5.1990. The
appellantBank denied the allegation of transfer of proceeds of
two cheques of Rs.5,000/ (Rupees five thousand only) each,
allegedly received by the respondent No. 1 from the district
authorities, to the loan account. The Bank also denied the
allegation of deposit of Rs.14,93,000/ (Rupees fourteen lakhs
ninetythree thousand only) by the respondent No. 1 in his
Savings Fund Account No. 1020 or transfer of the said amount in
his loan account. Further, on receipt of complaint from the
respondent No. 1, the Regional Manager of the appellantBank
instituted an internal enquiry conducted by Mr. N.K. Singh,
Manager, Inspection and Complaints, E.M.O., Patna, who in his
report dated 23.11.1998 noted that the respondent No. 1 had
been paid the proceeds of two cheques of Rs.5,000/ (Rupees five
thousand only) each in cash and there is no record about the
deposit of Rs.14,93,000/ (Rupees fourteen lakhs ninety three
thousand only) in his account with the concerned Branch. The
appellantBank explicitly denied the genuineness and existence
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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/8990. They took a stand that as per their
knowledge no such records exist or is readily available
and therefore the claim of the petitioner cannot be
accepted or acted upon. The counter affidavit has tried to
cast serious 7 doubts about the socalled proceeding
having been conducted and even an agreement having
been entered into by the parties. It is also urged that the
writ application cannot be maintained because the Court
can not direct enforcement of an agreement. It is also
submitted that the District Magistrate had no power to
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adjudicate the matter and even if for the sake of
argument there was an agreement, the petitioner ought to
have sought its enforcement through common law and
not waited for filing the writ application after many a
years. It is also urged that these are disputed questions of
fact which cannot be decided in the writ application.”
Despite having noticed the objection regarding maintainability of
the writ petition taken by the appellantBank, the learned single
Judge, if we may say so, by a cryptic judgment and order,
allowed the writ petition filed by the respondent No. 1 by
observing as follows:
“13. The Court has gone through the plethora of
documents which have been brought on record in
support of the pleading of the petitioner. If the
documents which have been brought on record are
read as a whole this Court does get a feeling that the
respondent bank wants to wriggle out of a ticklish
situation by raising technical objections with regard
to the maintainability of the writ application. Such
voluminous documents cannot be created or
manufactured. Merely because the respondent bank is
suffering from selective amnesia the Court is not willing
to brush aside the materials which have been brought on
record in support of the writ application. No serious effort
has been made by the respondents to answer the
submissions and the arguments made in the writ
application. The annexures coupled with specific
pleadings point to the fact that there was a serious
grievance raised by the petitioner about misconduct or
wrong banking procedure having been adopted by the
employees of the Punjab National Bank in maintenance of
the accounts of the petitioner. The writ application of the
petitioner therefore cannot be dismissed on the technical
objection made by the respondent bank.
14. In the given facts and circumstances noted above,
the petitioner has succeeded in making out a case for
interference and keeping the settled principle in this
regard as noted above, the respondent Bank is hereby
directed to take steps for payment of the money which
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had been quantified in terms of annexure5B. 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.”
(emphasis supplied)
5. The appellantBank 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 Rs.14,93,000/
(Rupees fourteen lakhs ninetythree thousand only) with the
appellantBank on 4.8.1989, (b) that the affiant participated in
the enquiry alleged to have conducted under the orders of
District Magistrate, Munger and (c) the affiant was a signatory to
the alleged agreement dated 27.5.1990. Similar affidavit of
Mr. Krishna Deo Prasad (the then Manager, Branch Office, Haveli
Kharagpur) dated 4.9.2009 was filed, taking the same stand.
Another affidavit of Mr. Bishnu Deo Prasad Sah (the then District
Coordination Officer i.e. the D.C.O.) dated 5.9.2009 was filed,
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specifically denying the relevant facts and asserting that he was
never appointed as an enquiry officer by the District Magistrate,
Munger in terms of Misc. Case No. 04 (DW1) PNB/198990 and
that he was not signatory to the alleged agreement dated
27.5.1990. The Division Bench was also conscious of the express
stand taken by the appellantBank before the learned single
Judge, raising the issue of maintainability of the writ petition on
the assertion that the case involved complex factual matters
which cannot be adjudicated in exercise of writ jurisdiction. In
paragraph 8 of the impugned judgment, the Division Bench noted
thus:
“8. Before the learned Single Judge as is the stand in
this appeal, the Bank filed counter affidavit in the writ
application raising serious doubt with regard to existence
of any case registered as Misc. Case No. 4 (DW 1)
PNB/198990. They took the stand that no enquiry was
ever conducted nor there was any enquiry report nor any
official of the Bank ever deposed in the enquiry. There
was no record of those proceedings and the certified
copies, which have been produced and were part of the
record of the writ application, were forged and created by
the writ petitioner. Another objection was taken by the
Bank in the writ proceeding that the District Magistrate
had no power to adjudicate the matter and order for
enquiry. Yet another objection was taken that the matter
relates to disputed questions of fact, which is not
maintainable under Article 226 of the Constitution of
India in writ jurisdiction.”
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6. Despite the specific plea taken by the appellantBank,
disputing the transactions and documents in question, on the
basis of which the respondent had sought relief by way of writ
petition, the Division Bench proceeded to dismiss the LPA filed by
the Bank by holding thus:
“13. Having heard the learned counsel for the parties
and taking into consideration the copies of the
proceedings of Misc. Case No. 4 (DW1) PNB/198990 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 face any inquiry and investigation by the Central
Bureau of Investigation if this Court feels it appropriate.
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Mr. Dhruv Mehta, learned senior counsel being assisted
by Mr. Rajesh Kumar, learned counsel accepts the
suggestion made by Mr. Sharan and if need be the same
can be adverted to after the appearance of other
respondents.
There shall be stay of operation of the impugned
rd
judgment dated 23 February, 2017 passed by the High
Court until further orders.”
The appellantBank, inter alia, invited our attention to the
affidavit filed by the District Magistrate – Mr. Uday Kumar Singh,
before this Court in the present appeal, wherein he has reiterated
rd
the stand taken by him in the 3 supplementary counter affidavit
dated 5.5.2016 filed before the High Court in compliance of order
dated 18.3.2016. In the said affidavit, it had been stated that on
perusal of records, reports of different officers and staff and their
written depositions, it prima facie appears that the documents
pertaining to Misc. Case No. 04 (DW1) PNB/198990 (in the office
of Anchal Adhikari, H. Kharagpur) are forged and fabricated, as
no contemporaneous document was available either in the Sub
Divisional Office, H. Kharagpur or in the headquarters,
Kharagpur in that regard.
8. The grievance of the appellantBank is that considering
such a categoric plea taken, which was supported by affidavits
and the report of the District Magistrate (referred to in his
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affidavit dated 5.5.2016 filed in compliance of order dated
18.3.2016 passed by the Division Bench of the High Court), it
was amply clear that the matter involved complex factual
aspects, which could not and ought not to be answered in writ
jurisdiction and that the respondent No. 1 (writ petitioner) must
take recourse to appropriate legal remedy for enforcement of the
alleged agreement dated 27.5.1990, if so advised. The Bank has
placed reliance on the decisions of the Constitution Bench of this
Court in
Thansingh Nathmal & Ors. vs. Superintendent of
2
Taxes, Dhubri & Ors. and Suganmal vs. State of Madhya
3
Pradesh & Ors. to contend that the writ petition ought to have
been dismissed by the High Court.
9. The respondent No. 1, on the other hand, submitted that
merely because the Bank has disputed the relevant facts, does
not warrant dismissal of writ petition, as the jurisdiction of the
High Court under Article 226 of the Constitution is very wide
including it can crossexamine the concerned affiant(s) and
enquire into all aspects of the matter. To buttress this
submission, reliance is placed on
Smt. Gunwant Kaur & Ors.
2 AIR 1964 SC 1419
3 AIR 1965 SC 1740
12
4
vs. Municipal Committee, Bhatinda & Ors. , Babubhai
5
,
Muljibhai Patel vs. Nandlal Khodidas Barot & Ors. M/s.
6
Hyderabad Commercials vs. Indian Bank & Ors. and ABL
International Ltd. & Anr. vs. Export Credit Guarantee
7
Corporation of India Ltd. & Ors. . 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/198990 and there is presumption about its
genuineness. The respondent No. 1 has placed reliance on the
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decisions of this Court in Bhinka & Ors. vs. Charan Singh
9
and . Further, the
Kaliya vs. State of Madhya Pradesh
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 to the appellant–Bank to
resile from the said agreement. The existence of the agreement
having been substantiated in the enquiry being miscellaneous
case referred to above, wherein statement of the officials of the
4 (1969) 3 SCC 769
5 (1974) 2 SCC 706
6 1991 Supp (2) SCC 340
7 (2004) 3 SCC 553
8 AIR 1959 SC 960
9 (2013) 10 SCC 758
13
Bank at the relevant time came to be recorded supporting the
plea of the respondent No. 1 including about the genuineness of
the certified copies relied upon, it was a case of admission of
liability by the appellants and the claim of the respondent No. 1
was, therefore, indisputable. In such a situation, the learned
single Judge of the High Court was justified in allowing the writ
petition and the reasons on which stated relief came to be
granted commended to the Division Bench. Therefore, no
inference by this Court is warranted and moreso, because the
respondent No. 1 has become a victim of circumstances and it
would be unfair and unjust to drive him to take recourse to
alternative remedy by filing a suit for enforcement of the
agreement at this distance of time. The respondent No. 1,
therefore, has urged to dismiss this appeal.
10. We have heard Mr. Dhruv Mehta, learned senior counsel for
the appellants, Mr. J.S. Attri, learned senior counsel for the
respondent No. 1 and Mr. Devashish Bharuka, learned counsel
for the respondent No. 2.
11. From the factual matrix highlighted hitherto, it is manifest
that there is no unanimity between the appellantBank and the
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respondent No. 1 on the relevant facts, on the basis of which the
relief sought in the writ petition was founded. The Bank had
expressly denied the existence of the alleged agreement dated
27.5.1990 including the fact that the respondent No. 1 had
deposited the amount of Rs.14,93,000/ (Rupees fourteen lakhs
ninetythree thousand only). The Bank had relied upon the
affidavits of the concerned Bank officials, and also on the report
of the District Magistrate referred to in his affidavit dated
5.5.2016 filed before the Division Bench of the High Court in
compliance of its order dated 18.3.2016. The Bank had
categorically denied the case set up by the respondent No. 1 in
the writ petition in toto; and moreso the stand taken by the Bank
could be substantiated on the preponderance of probabilities. In
other words, the case set up by the respondent No. 1 in the writ
petition is neither an admitted position nor is it possible to even
remotely suggest that it is indisputable, so as to bind the
appellantBank 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
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existence of the stated agreement has been put in issue by the
appellantBank 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 conjectures. The
matter such as the present one, could not be decided on the
basis of some inference or a feeling gathered by the Court as
noted in the impugned judgments. The hard facts on record
clearly suggested that the appellantBank had supported its plea
by relying on affidavits of the concerned Bank officials including
the report of the District Magistrate. The learned single Judge
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very conveniently ignored that aspect and proceeded to hold that
the appellantBank was suffering from selective amnesia, having
noted that voluminous documents are relied upon by the
respondent No. 1 (writ petitioner) and thus assumed that the
same could not be created or manufactured.
13. Be that as it may, the learned single Judge without
analysing the entirety of the stand of the appellant and the
relevant documents, proceeded to make observations about the
conduct of the appellantBank, which was certainly avoidable.
We say so because, the High Court could not have assumed that
the documents produced by the respondent No. 1 (writ petitioner)
are genuine and admissible, despite the express denial by the
appellantBank and its officials on affidavit about being party to
the said agreement as alleged. If one reads the stated agreement,
it is in the nature of an order passed by some authority, running
into almost 20 closely typed pages, recording the stand taken by
the parties in the form of an agreement between them. From the
terms stated therein, it is unfathomable as to how the Bank
would agree to such onerous terms. Concededly, no policy
document or authorisation of the signatory of the Bank has been
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produced which would indicate that such an agreement could be
reached by the Bank with the respondent No. 1.
14. Be it noted that on one hand, the case made out by the
respondent No. 1 is that he had sold his family gold and the sale
proceeds received were deposited in the concerned Branch of the
appellant Bank for withdrawal, as the amount was required by
him for meeting medical expenses of his ailing son suffering from
cancer. At the same time, vide alleged agreement, the respondent
No. 1 conveniently agrees to invest the amount for seven (7)
years, which circumstance also raises serious doubt about the
genuineness of the document. We do not wish to elaborate on
the terms set out in the subject agreement except to observe that
the plea taken by the appellantBank about genuineness of the
document is debatable (triable) and is not a case of admitted
position or indisputable fact, so as to proceed against the
appellantBank 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
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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 appellantBank 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/198990, 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 and assumed that the same could not be
a figment of imagination or a piece of fiction.
16. Even if the impugned judgments were to be read as a whole,
there is no analysis of the relevant documents and in particular,
the stand taken by the appellantBank expressly denying the
existence of the stated agreement and genuineness thereof, which
plea was reinforced from the affidavits of the concerned Bank
officials and the report of the District Magistrate. Notably, the
19
District Magistrate in the affidavit filed in compliance of the order
dated 18.3.2016 had clearly denied the existence of the stated
proceedings for want of contemporaneous official record in that
regard. This aspect has not been taken into account by the High
Court at all. On facts, therefore, the High Court committed
manifest error in disregarding the core jurisdictional issue that
the matter on hand involved complex factual aspects, which
could not be adjudicated in exercise of writ jurisdiction.
17. The appellantBank has rightly invited our attention to the
Constitution Bench decision of this Court in
Thansingh
Nathmal (supra). In paragraph 7, the Court dealt with the scope
of jurisdiction of the High Court under Article 226 of the
Constitution in the following words:
“ 7. … The jurisdiction of the High Court under Article
226 of the Constitution is couched in wide terms and the
exercise thereof is not subject to any restrictions except
the territorial restrictions which are expressly provided in
the Articles. But the exercise of the jurisdiction is
discretionary: it is not exercised merely because it is
lawful to do so. The very amplitude of the jurisdiction
demands that it will ordinarily be exercised subject to
certain selfimposed limitations. Resort that jurisdiction
is not intended as an alternative remedy for relief
which may be obtained in a suit or other mode
prescribed by statute. Ordinarily the Court will not
entertain a petition for a writ under Article 226,
where the petitioner has an alternative remedy, which
without being unduly onerous, provides an equally
efficacious remedy. Again the High Court does not
generally enter upon a determination of questions
20
which demand an elaborate examination of evidence
to establish the right to enforce which the writ is
claimed . The High Court does not therefore act as a court
of appeal against the decision of a court or tribunal, to
correct 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.
(emphasis supplied)
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 authority which had illegally
collected the money as a tax. … We do not find any
good reason to extend this principle and therefore
hold that no petition for the issue of a writ of
mandamus will be normally entertained for the
purpose of merely ordering a refund of money to the
.”
return of which the petitioner claims a right
(emphasis supplied)
And again, in paragraph 9, the Court observed as follows:
“9. We therefore hold that normally petitions solely
praying for the refund of money against the State by a
21
writ of mandamus are not to be entertained. The
aggrieved party has the right of going to the civil
court for claiming the amount and it is open to the
State to raise all possible defences to the claim,
defences which cannot, in most cases, be
appropriately raised and considered in the exercise of
writ jurisdiction .”
(emphasis supplied)
In Smt. Gunwant Kaur (supra) relied upon by the respondent
No. 1, in paragraph 14, the Court observed thus:
“ 14. The High Court observed that they will not
determine disputed question of fact in a writ petition. But
what facts were in dispute and what were admitted could
only be determined after an affidavit in reply was filed by
the State. The High Court, however, proceeded to dismiss
the petition in limine. The High Court is not deprived of
its jurisdiction to entertain a petition under Article 226
merely because in considering the petitioner's right to
relief questions of fact may fall to be determined. In a
petition under Article 226 the High Court has jurisdiction
to try issues both of fact and law. Exercise of the
jurisdiction is, it is true, discretionary, but the discretion
must be exercised on sound judicial principles. When the
petition raises questions of fact of a complex nature,
which may for their determination require oral
evidence to be taken, and on that account the High
Court is of the view that the dispute may not
appropriately be tried in a writ petition, the High
. Rejection of a
Court may decline to try a petition
petition in limine will normally be justified, where the
High Court is of the view that the petition is frivolous or
because of the nature of the claim made dispute sought
to be agitated, or that the petition against the party
against whom relief is claimed is not maintainable or that
the dispute raised thereby is such that it would be
inappropriate to try it in the writ jurisdiction, or for
anologous reasons.”
(emphasis supplied)
22
We restate 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 crossexamine 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 which reference has been made, makes it clear that the
provisions of the Code in regard to suits shall be followed
in all proceedings in any court of civil jurisdiction as far
as it can be made applicable. The words “as far as it can
be made applicable” make it clear that, in applying the
various provisions of the Code to proceedings other than
23
those of a suit, the court must take into account the
nature of those proceedings and the relief sought. The
object of Article 226 is to provide a quick and inexpensive
remedy to aggrieved parties. Power has consequently been
vested in the High Courts to issue to any person or
authority, including in appropriate cases any government,
within the jurisdiction of the High Court, orders or writs,
including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. It is
plain that if the procedure of a suit had also to be
adhered to in the case of writ petitions, the entire purpose
of having a quick and inexpensive remedy would be
defeated. A writ petition under Article 226, it needs to be
emphasised, is essentially different from a suit and it
would be incorrect to assimilate and incorporate the
procedure of a suit into the proceedings of a petition
under Article 226. The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226
merely because in considering the petitioner's right of
relief, questions of fact may fall to be determined. In a
petition under Article 226 the High Court has jurisdiction
to try issues both of fact and law. Exercise of the
jurisdiction is no doubt discretionary, but the discretion
must be exercised on sound judicial principles.
When the
petition raises complex questions of fact, which may
for their determination require oral evidence to be
taken, and on that account the High Court is of the
view that the dispute should not appropriately be
tried in a writ petition, the High Court may decline to
try a petition (see Gunwant Kaur v. Bhatinda
Municipality [(1969) 3 SCC 769]. If, however, on
consideration of the nature of the controversy, the High
Court decides, as in the present case, that it should go
into a disputed question of fact and the discretion
exercised by the High Court appears to be sound and in
conformity with judicial principles, this Court would not
interfere in appeal with the order made by the High Court
in this respect.”
(emphasis supplied)
This decision has noticed (supra), which
Smt. Gunwant Kaur
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
24
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 present case,
however, the concerned officials of the Bank have denied of being
party to the stated agreement and have expressly asserted that
the said document is forged and fabricated. It is neither a case of
admitted liability nor to proceed against the appellant Bank on
the basis of indisputable facts.
25
20. Even the decision in ABL International Ltd. (supra) will be
of no avail to the respondent No. 1. This decision has referred to
all the earlier decisions and in paragraph 28, the Court observed
as follows:
“ 28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the
fact that the power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provisions of the Constitution.
The High Court having regard to the facts of the case,
has a discretion to entertain or not to entertain a writ
petition . The Court has imposed upon itself certain
restrictions in the exercise of this power. (See Whirlpool
Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]) And
this plenary right of the High Court to issue a prerogative
writ will not normally be exercised by the Court to the
exclusion of other available remedies unless such action
of the State or its instrumentality is arbitrary and
unreasonable so as to violate the constitutional mandate
of Article 14 or for other valid and legitimate reasons, for
which the Court thinks it necessary to exercise the said
jurisdiction.”
(emphasis supplied)
21. For the view that we have taken, it is not necessary for us to
dilate on the decisions of this Court in Bhinka (supra) and
(supra), which have dealt with the efficacy and
Kaliya
admissibility of certified copies of the relevant documents. Be it
noted that these decisions are in reference to the suit/trial in the
concerned case, where the documents are required to be proved
by the party relying upon it by examining competent witnesses to
prove the existence thereof and also their contents.
26
22. A priori, we have no hesitation in taking the view that in the
facts of the present case, the High Court should have been loath
to entertain the writ petition filed by the respondent No. 1 and
should have relegated the respondent No. 1 to appropriate
remedy for adjudication of all contentious issues between the
parties.
23. Accordingly, 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.
27
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.
..................................J.
(A.M. Khanwilkar)
..................................J.
(Dinesh Maheshwari)
New Delhi;
May 6, 2020.