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Judgment
Markandey Katju, C.J.—This writ appeal has been filed against the impugned judgment of the learned single Judge dated 25.11.2004.
Heard the learned counsel for the parties, and perused the record.
By means of W.P. No. 9461 of 2003, the writ petitioner had prayed for a Writ of Certiorarified Mandamus calling for the records of the 1st
respondent pertaining to BO (CHN)/477/SN/16/2001-2002 dated 11-07-2001 and quash the same, and consequently direct the 2nd respondent
to re-credit the current account of the petitioner bearing No. 8812 at the 2nd respondent bank by Rs. 46,00,000/- with interest at the rate of 20%
compounded quarterly from 29.08.2000.
The facts of the case have been mentioned in detail in the impugned judgment of the learned single Judge, and hence we are not repeating the
same, except where required.
The writ petitioner/appellant, namely, M/s. Sarda Precision Products Private Limited has dealings with the third respondent, namely, M/s.
Theepa Pressed Components Private Limited. The third respondent used to purchase steel goods manufactured by the writ petitioner and has
continuous credit transaction with the writ petitioner for several years. The third respondent purchased goods for several crores of rupees from the
writ petitioner/appellant
Both the writ petitioner and the third respondent have bank accounts with the second respondent/M/s. Lakshmi Vilas Bank Limited Tallakulam
Branch, Madurai.
It is alleged in paragraph 6 of the writ petitioner''s affidavit that in the month of August 2004 in the course of business transaction M/s.
Raghavendra Industries, a unit of the third respondent, had issued a cheque for a sum Rs. 46,68,850/-(Rupees Forty six lakhs sixty eight thousand
and eight hundred and fifty only) in favour of the writ petitioner in discharge of its debts to the writ petitioner in connection with the goods supplied
by the writ petitioner to the third respondent. It is alleged that the said cheque was deposited in Account No. 8812 with the second respondent on
29.08.2000. Since the writ petitioner and the third respondent had accounts with the second respondent/bank, the second respondent on the same
day of the deposit of the sum of Rs. 46,68,850/- credited the said amount to the account of the writ petitioner.
It is alleged in paragraph 7 of the writ petitioner''s affidavit that on the same day i.e., on 29.08.2000 the writ petitioner issued a cheque from
Account No. 8812 for a sum of Rs. 46,69,000/- favouring themselves to be deposited in the writ petitioner''s account in Indian Overseas Bank,
Kamarajar Salai Branch, Madurai. The said cheque was sent by courier on 29.08.2000 from Bangalore to the writ petitioner''s representative in
Madurai and the same was deposited in the petitioner''s IOB account. On 31.08.2000 the cheque was returned unpaid by the second respondent
herein on the ground of ''insufficient funds''.
It is alleged in paragraph 8 of the writ petitioner''s affidavit that on enquiry the writ petitioner found that immediately after the credit of the amount in
the account of the writ petitioner, the second respondent/bank had transferred back the entire amount to the account of the third respondent in the
bank. The said transfer was purported to have been made on the basis of a letter issued by the petitioner''s Director dated 29.08.2000 requesting
the second respondent/bank to make remittance to the account of the third respondent. The aforesaid letter dated 29.08.2000 states: -
Dt.29.08.2000
The Manager,
The Lakshmi Vilas Bank Ltd.,
Tallakulam,
Madurai.
Dear Sir,
We request you to transfer a sum of Rs. 46,00,000/- (Rupees forty six lakhs only) to the account of M/s. Sri Theepa Pressed Components Private
Limited with you. This amount is payable by us to them.
The amount may be debited to our account with you.
Thanking you,
Yours faithfully,
For Sarda Precesion Products (P) Ltd.
Director
According to the writ petitioner no such letter dated 29.08.2000 was written by it to the bank requesting the bank to transfer the amount from
the account of the writ petitioner to the account of the third respondent. It is alleged that the letter dated 29.08.2000 is a forged and fabricated
document made at the instance of the third respondent who had in his possession a blank signed letter head which was entrusted to it by the writ
petitioner. It is alleged that the third respondent made use of the said blank letter head and committed breach of trust. It is further alleged that the
officers of the second respondent/bank have acted in collusion with the third respondent in debiting the amount as aforesaid.
The writ petitioner raised an issue before the Banking Ombudsman requesting action to be taken, but the Banking Ombudsman by his letter
dated 11.07.2001 informed the writ petitioner that the action of the second respondent/bank was in conformity with the banking practice and that
the complaint does not constitute deficiency of service by the bank. Aggrieved the writ petitioner filed a writ petition, which was dismissed by the
learned single Judge.
We have carefully perused the judgment of the learned single Judge, and we find no infirmity in the same.
In its counter affidavit, the second respondent/bank has stated that on 29.08.2000 the Director of the third respondent came to the bank and
gave an authorization letter dated 29.08.2000 to the Branch Manager requesting to transfer a sum of Rs. 46 lakhs from the petitioner''s current
account to the third respondent''s current account. It is only on the strength of the authorization letter which was handed over personally by the
Director of the writ petitioner company that the bank transferred the said amount to the account of the third respondent. It is alleged that the
Branch Manager acted in good faith without any reason to believe that the letter dated 29.08.2000 was a fabricated one. The authorized signatory
himself was present and had given the letter dated 29.08.2000, and hence the action of the bank was bona fide
Mrs. Nalini Chidambaram, learned senior counsel appearing for the appellant, submitted that the order of the Banking Ombudsman dated
11.07.2001 should be quashed, and a direction should be issued to him to reconsider the matter. We regret we cannot accept this submission.
In its letter dated 11.07.2001, the Banking Ombudsman said that the action of the second respondent/bank was in conformity with the banking
practice. Whether there was any such practice or not, whether any forgery or fraud was committed, whether there was any collusion between the
bank officials and the third respondent, etc. are all highly disputed questions of fact. The writ petitioner/appellant has not disputed the signature of
its director on the letter dated 29.08.2000. The stand of the writ petitioner/appellant is that the signature of the Director was taken on a blank letter
head which was subsequently filled in. We find it prima facie difficult to accept this contention. No reason has been given by the writ
petitioner/appellant as to why its Director signed on a blank letter head.
u/s 114 of the Evidence Act, ""The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to
the common course of natural events, human conduct and public and private business, their relation to the facts of the particular case.
Keeping this provision in mind we may ask: does it usually happen in business that businessmen give signed blank letters? The answer can only
be no. Businessmen are ordinarily prudent people, and it is difficult to believe that a Director of a Company would give a signed blank letter head
to another person, which has possibility of misuse. However, we are not expressing a final opinion on this point, as that can be decided in a civil
suit.
In this connection, it may be mentioned that a counter affidavit has been filed by S.P.Annamalai, who is said to have signed the letter dated
29.08.2000. In paragraphs 4 and 5 of the counter affidavit, it is stated: -
At the outset I take very strong exception to the use of unsavory epithet against me in paragraph 8 of the affidavit under reply as though a
transfer of funds was made by the 2nd respondent on the basis of a forged, fabricated document at my instance and as though I had misused blank
letter heads entrusted to me by the petitioner. Curiously the petitioner has not stated the date or the purpose for which I was entrusted the blank
signed letter heads. Further it is highly unbelievable that the petitioner being a businessman would be careless so as to give possession to me of
such signed blank letter heads in business transactions. All such allegations are figment of fertile imagination of the petitioner and have been made
recklessly without an iota of respect for truth.
The transfer of funds to my account with the 2nd respondent bank was made on the basis of a letter at the instance of the petitioner with regard
to business transactions between myself and the petitioner and there is absolutely no fraud whatsoever. This is an accepted banking practice. All
the letters written by the petitioner objecting to such transfer were found to be false and have been answered by me in person before the police
authorities and the 1st respondent. I have not committed any crime nor perpetrated any fraud. The petitioner is making na�ve attempts by
prejudicing the mind of this Honourable Court against me leveling unfounded allegations. The petitioner is yet to establish his claim and the petition
for interim deposit is premature and cannot be allowed.
Mrs. Nalini Chidambaram, learned senior counsel appearing for the appellant, relied on the decision of the Supreme Court in Canara Bank v.
P.R.N. Upadhyaya (1998) 6 SCC 526. We have carefully perused the said decision, and find that it has no application to the facts of this case. In
the above decision, all that has been stated by the Supreme Court is that the circulars issued by the Reserve Bank of India have to be considered
by the Banking Ombudsman before passing his award, and he cannot ignore such circulars.
In the present case, there is no allegation by the writ petitioner that the Banking Ombudsman has ignored any circular of the Reserve Bank.
Learned senior counsel for the appellant then submitted that there was no such banking practice as referred to in the letter of the Banking
Ombudsman dated 11.07.2001.
In this connection, in paragraph -10 of the counter affidavit of the second respondent/bank it is stated: -
I submit that in fact the Manual of Instructions as is in practice for the second respondent bank enable the second respondent from drawings on
the account otherwise than on the printed cheque forms issued to the constituent. The Manual of Instructions would clearly show that the bank
cannot refuse payment other than printed cheque issued to the constituent. It only require that the account is debited on the authority of a letter
signed by the customer and a debit voucher with advice would be prepared and the debit voucher and advice would be sent to the customer with a
request to send confirmation cheque immediately on its receipt. In the instant case, the authorized signatory himself was present at the office and
gave a letter of authorization to debit the account and a debit advice was prepared and sent to the petitioner. In fact the authorization letter itself
promised to the second respondent that it would send the confirmation cheque, but on the contrary after enabling the second respondent to act
upon the authorization letter and debit the account, the petitioner with ulterior motives gone back on the authorization letter. I submit that the
second respondent has acted on the basis of the representation of the authorized signatory of the petitioner and the petitioner is thus estopped from
saying that debiting the account of the petitioner and crediting the account of the third respondent in a sum of Rs. 46,00,000/- is not correct. I
submit that the petitioner cannot require the second respondent to re-credit the account of the petitioner in a sum of Rs. 46,00,000/-.
At any event, whether there was such a banking practice or not is also a disputed question of fact, which can be decided only in a civil suit. In
paragraph 7 of the counter affidavit of the second respondent/bank it is stated: -
I submit that the deponent of the affidavit who is a director of the petitioner company along with Mr. Annamalai, Managing Director of the third
respondent came to this respondent''s branch on 29.08.2000 and gave an authorization letter dated 29.08.2000 to this respondent''s branch
manager and requested to transfer a sum of Rs. 46,00,000/- from the petitioner''s current account to the third respondent''s current account. The
deponent of the affidavit Mr. C.M. Sarda, a director of the petitioner company requested the branch manager of this respondent to transfer the
amount on the strength of the letter dated 29.08.2000 and promised to furnish the confirmation cheque. I submit that on the strength of the
authorization letter and at the request of the authorized signatory in person, this respondent transferred a sum of Rs. 46,00,000/- from the account
of the petitioner to the account of the third respondent. I submit that the branch manager of this respondent acted in good faith without any reason
to believe that the letter dated 29.08.2000 claimed to be a fabricated one. I submit that when the authorized signatory himself was present and
gave the letter dated 29.08.2000 it could never have been a fabricated one as alleged by the petitioner in the correspondence at a later stage. I
submit that there is nothing illegal in acting upon the representation of the deponent of the affidavit who is admittedly an authorized signatory and
who gave the letter dated 29.08.2000 to the Branch Manager of this respondent in person and the Branch Manager of this respondent acted upon
such letter and transferred the amount to the account of the third respondent. I submit that the action of the Branch Manager immediately in causing
a debit memo in the bank with regard to the transfer of a sum of Rs. 46,00,000/-. I submit that consequent upon such transfer there are no funds
available in the account of the petitioner and the cheque was therefore rightly returned with the endorsement ''insufficient funds''.
However, we are not giving any final opinion on this matter also as all these disputed questions of fact can be decided appropriately in a civil
suit where examination, cross examination, etc. can be done.
In our opinion, the learned single Judge has rightly dismissed the writ petition on the ground of availability of alternative remedy by way of a
civil suit as there are highly disputed questions of fact in this case, and hence these would require examination, cross examination, discovery,
interrogatory etc. which are normally done in a civil suit. No doubt all this can also be done in writ proceedings as Article 226 of the Constitution
does not prescribe any particular procedure to be followed by a writ Court. However, since writ jurisdiction is discretionary jurisdiction it is well
settled that ordinarily the High Court would refuse to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, if
disputed questions of fact are involved which require detailed examination of the evidence which can more appropriately be done in a civil suit.
Thus in D.L.F. Housing Construction (P) Ltd. Vs. Delhi Municipal Corpn. and Others, , the Supreme Court observed (vide paragraph 18): -
In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the
writ Court is not the proper forum for seeking relief.
Similarly in Moti Das Vs. S.P. Sahi, The Special Officer In Charge of Hindu Religious Trusts and Others, , a Constitution Bench of the
Supreme Court observed (vide paragraph 17): -
In all these cases the High Court has taken the view, rightly in our opinion, that the questions whether the trusts are public or private trusts or the
properties or private or trust properties are questions which involve investigation of complicated facts and recording of evidence and such
investigation could not be done on writ proceedings.
In Union of India (UOI) Vs. Ghaus Mohammad, , a Constitution Bench of the Supreme Court observed (vide paragraph 7): -
The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed
examination of evidence. A proceeding under Art. 226 of the Constitution would not be appropriate for a decision of the question. In our view this
question is best decided by a suit and to this course neither party seems to have any serious objection.
In Ram Badan Rai and Others Vs. Union of India and Others, , the Supreme Court observed that whether the three villages in question were
non-existent or ghost villages of Bihar created fictitiously by the officials of the State of Bihar and other related matters are questions which cannot
be decided in writ jurisdiction inasmuch as a lot of oral an documentary evidence is to be adduced and considered by the Courts.
For the reasons given above, this writ appeal is dismissed on the ground of availability of alternative remedy of filing a civil suit.