Civil Appeal No 111N of 1981
From the Judgment and Order dated 21101980 of the Madras High Court in Application No 2875 of 1980
Abdul Kareem ATM Sampath and PN Ramalingam for the Appellant
section Govind Swaminathan Rajendra Chowdhary NS Sivam and K Madhavan for the Respondents
TS Krishnamoorthi Iyer section Balakrishnan and MKD Namboodiri for the Intervener
A question which arose for decision was whether the appellant should discharge the mortgage of the suit property created by the respondent in favour of the South Indian Bank
The High Court held that the appellant was liable to discharge the mortgage and directed her to deposit in Court a sum of Rs350000 with interest for the purpose
The appellant paid the amount direct to the mortgagee
The High Court refused to accept the payment made directly to the mortgagee as due compliance with its decree and against that order of the High Court the appellant preferred civil Ap peals Nos
1993 1994 of 1977
This Court disposed of the said appeals by the following order dated 29 November 1979 We direct that a decree be passed that the plaintiff Appellant do deposit within six months from today the entire sum of Rs345000 together with interest due upto date at the rate of 11 per cent together with an undertaking that she would give up all her rights under the mortgage decree passed in her favour in CS No 154 of 1968 except to the extent of the amount actually paid to the South Indian Bank for taking the assignment
If these two 822 conditions are fulfilled the appeals will stand allowed and a final decree for specific performance passed
In the event of non com pliance with either of these conditions the appeals will stand dismissed with costs
 Purporting to comply with the above order of this Court the appellant deposited a sum of Rs24282219 on 11 April 1980 in the High Court with the undertaking to give up all her rights decreed in CS No 15 of 1968 and filed CMP Nos
2424 and 2425 of 1980 in the High Court for a declara tion that the payment as mentioned above was in compliance with the order of this Court and she claimed a set off of the amount of Rs59668719 paid by her earlier to the South Indian Bank which she was entitled to recover from the respondent in accordance with the second condition of the order of this Court dated 29 November 1979
The time limit fixed for fulfilling the two conditions set out in this Court s order dated 20 November 1979 having fallen on 29 May 1980 and the High Court not having passed orders on her CMPs
2424 2425 of 1980 till then she paid into the High Court a sum of Rs602000 on 29 May 1980 by cheque purporting to comply with the first condition set out in this Court s order aforesaid
CMPs
2424 and 2425 of 1980 filed by the appel lant in the High Court were dismissed by a Single Judge by an order dated 6 June 1980 against which the appellant preferred Petitions for Special Leave to Appeal Nos
947 48 of 1981
The appellant also filed another CMP No 2875 of 1980 in the High Court for a declaration that she had com plied with the aforesaid order of this Court dated 29 Novem ber
1979 which was dismissed by the High Court
Civil Appeal No 111 of 1981 has been preferred against the judg ment and order of the High Court in CMP No 2875 of 1980
The only question decided against the appellant by the High Court in CMP No 2875 of 1980 was with regard to the deposit of the amount stipulated in the first condition of the order of this Court dated 29 November 1979
The crucial issue was whether the payment made by the appellant on 29 May 1980 by cheque of the amount of Rs602009 together with the amount deposited earlier on 11 April 1980 was in due compliance of the first condition of this Court s Order dated 29 November 1979
The High Court found that the simple delivery of the cheque on 29 May 1980 could not be deemed to be deposit of the specified sum of 29 May 1980 in satisfaction of the order of this Court when the amount of the cheque had been realised only on 16 June 1980
The High Court held that the appellant was bound to 823 comply with the Original Side rules of the High Court which prescribed the procedure to be followed in depositing the money in Court and in particular Order 31 rules 1 to 6 thereof which were aimed at securing the deposit of the money in the Reserve Bank of India to the credit of a par ticular proceeding on or before the specified date
Accord ingly the High Court refused to grant the declaration that the appellant had complied with the order of this Court dated 29 November 1979
It is contended before us on behalf of the appellant that the cheque for Rs602000 was tendered in Court on 29 May 1980 and that it was duly honoured by the Bank and money was realised under the cheque and therefore it must be taken that payment had been effected by the appellant on 29 May 1980 within the time stipulated by this Court in its order dated 29 November 1979
In Commissioner of Income Tax Bombay South Bombay vs Messrs Ogale Glass Works Ltd Ogale Wadi  it was laid down by this Court that payment by cheque realised subsequently on the cheque being honoured and encashed relates back to the date of the receipt of the cheque and in law the date of payment is the date of delivery of the cheque
Payment by cheque is an ordinary incident of present day life whether commercial or private and unless it is specifically mentioned that payment must be in cash there is no reason why payment by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course
There is nothing in the order of this Court providing that the depos it by the appellant was to be in cash
The terms of the order dated 29 November 1979 are conclusive in this respect and it is the intent of that order which will determine whether payment by cheque within the period stipulated in that order was excluded as a mode in satisfaction of the terms of that order
The time for payment is governed by the order of this Court
It is alleged on behalf of the respondent that there was no money on the date of delivery of the cheque to support payment of it and that it was subsequently when arrangements were made that the cheque was realised
Now the High Court has not found that if the cheque was presented for encash ment on the date it was delivered the cheque would not have been encashed
There is nothing to suggest also that the cheque was not honoured in due course and that the Bank had at any time declined to honour it for want of funds in the ordinary course
In any event there is nothing to suggest that under the arrangements made for payment of the cheque even if it had been encashed on the date it was delivered the cheque would not have been encashed
There 824 is no finding by the High Court that on 29 May 1980 the cheque would not have been realised
That being so the question whether the appellant had wrongly stated that her counsel had offered to pay cash to the High Court office on 29 May 1980 ceases to be relevant
We also see no substance in the objection taken before the High Court that in the letter dated 29 May 1980 addressed by counsel for the appellant forwarding the cheque for Rs602000 there was a request for the return of the cheque in case it was found that the appellant was entitled to the set off claimed by her
The application of the appellant claiming adjustment was pending in Court and no conclusion can be drawn against her on the ground that she had requested a return of the cheque in the event of the adjustment being allowed by the Court
We are of the view that the conditions set forth in the order of this Court dated 29 November 1979 in the facts and the circumstances of the case have been complied with by the appellant substantially and she is entitled to the benefit of that order
The appeal is allowed the order dated 21 October 1980 of the High Court is set aside and the application by the appellant for a direction to the respondent to execute the sale deed in her favour is allowed
In the circumstances of the case there is no order as to costs
NVK Appeal allowed


Summary:
The appellants were operating launch services for joy rides film shooting etc
from Appollo Pier or Gateway of India to Elephanta Island in Bombay
Respondent 7 was a cooperative association of launch owners also engaged in the same activities
The members belonging to the associations were operating launch services turn by turn on voluntary roster system to avoid unhealthy competition
When efforts were made by the police and the Port Trust Authorities to resolve the difference in the operation of launch services between the association and the appellants failed a roster system was chalked out on the direction of the Deputy Conservator of Bombay Port Trust which was sought to be enforced by the police
When some employees working in the launches were arrested for failure to act according to the roster system the appellants filed writ petitions claiming that the police and the Port Trust Authorities had no authority to compel them to follow the roster system
The High Court dismissed the writ petitions holding that the Bombay Port Trust Rules conferred powers upon the Deputy Conservator to give directions for berthing and for mooring and unmooring the vessels in the Port and that apart the police and the Port Trust Authority had adequate powers under the Port of Bombay Passenger Boat Rules 1962 and section 67 of the Bombay Police Act to regulate the manner in which the launches carried Passengers
In the appeals to this Court it was contended On behalf of the appellants that 1 the Deputy Conservator of Bombay Port Trust respondent No 3 was not empowered in law to devise an order of the 826 imposition of a roster and that this action was beyond the powers conferred by the  the Bombay Port Rules and the Port of Bombay Passengers Rules 1962
2 Respondent No 3 had purported to act under Rules 4 and 19 of the Bombay Port Rules Rule 4 of the Port of Bombay Passenger Boat Rules and section 7 of the Bombay Police Act in having the roster system enforced by the Inspector of Police
3 The roster has tendency to prohibit trade and the power to regulate Is being misused as a power to prohib it
4 The imposition of the roster is too severe a measure to deal with the simple problem of overcrowding and chaos and touting for passengers 5 The provocation for devising and imposing a roster was the complaint made by the appel lant s trade rivals
and 6 The roster has been prepared and is being enforced without recourse to any statutory provision enabling respondent No 3 to devise it and impose it
Dismissing the appeals the Court HELD 1
The roster system provides for the regulation of traffic so that each launch obtains an opportunity of access to the landing place
This is not a distribution of business but a distribution of the time for which the landing place can be used and therefore a regulation of the use of the landing place
The roster is intended to give effect to Rule 4 of the Port of Bombay Passenger Boats Rules 1962
There is no reason why recourse to a roster system should be considered as unreasonable
830CF 2
The dominant purpose of the regulation of the use of the landing place by the launches is to prevent congestion and a possible breach of peace
The real purpose that the roster is intended to serve is to ensure the even flow of traffic at landing places
830H 831A Smt
SR Venkataraman vs Union of India  Anr
   Brownelis Limited vs The Ironmongers  Wages Board Brownells Limited vs The Drapers  Wages Board  and Hanson vs Radcliffe Urban District Coun cil inapplicable
All the launches owners have equitable access to the landing place and if the other conditions for plying the launches such as holding of a proper licence are satis fied there is no reason why the launches turn by turn cannot avail of the facility of an equitable opportunity to use the landing place
831C D 827 4a There is no excessive invasion of the appellants Fundamental Right to carry on business
831E 4b What should be the duration for which the appel lants may be allowed to use the landing place and what should be the turn in which such user may be permitted is essentially a matter for the judgment of the authorities concerned
It is not possible for the Court to adjudicate on this point
831E F 5
The disputes between the parties in relation to the application of the roster is not a matter on which this Court will readily enter
831G 6
The imposition of a roster is reasonable and the power to impose a roster can be spelt out from the powers conferred on the authorities under the relevant statutory provisions
The roster is only one method of regulation
831H 832A