-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3585 OF 1991 Rustom Kazerooni Zadeh & Anr. : Petitioners V/s. Bank of Maharashtra & Ors. : Respondents ... Mr.A.V.Chatuphale for the petitioners. Mr.P.P.Chavan i/b. M/s.Little & Co., for resp. nos.1 & 2. ... CORAM : S.B.MHASE & A.A.KUMBHAKONI,JJ. DATE : JUNE 09, 2008. P.C. 1. Heard both the sides. 2. The case of the petitioners is as under:- The petitioners had deposited a cheque for Rs.2,25,000/- on 10.4.1987 with the respondent nos.1 & 2 in Fixed Deposit in a Monthly Income Scheme for a period of 24 months at an interest of 10% per annum. The Fixed Deposit matured and became due on 10.4.1989. The respondent nos.1 & 2 have paid monthly interest of Rs.1860/- regularly from 10.4.1987 to 10.4.1989. In the year 1987, the petitioners wanted to liquidate the Fixed -: 2 :- Deposit. However, the matter was referred to the higher authorities and premature payment was not granted. After maturity also, the payment has not been made and, therefore, the petitioners have approached this Court by way of this petition. 3. The respondent no.1 has filed an affidavit-in-reply wherein it has been stated that the cheque for Rs.2,25,000/- which was deposited by the petitioners was issued by one Mr.Udeshi in favour of the petitioner drawn on Punjab National Bank for certain amounts advanced by the petitioner to Mr.Udeshi. After deposit of the said cheque by the petitioner with the Bank, the respondent no.1 telephonically confirmed with Punjab National Bank through clearing house that an amount of Rs.2,25,000/- was debited in the account of Punjab National Bank. However, later on, Punjab National Bank returned the cheque and thus, the cheque was ultimately dishonoured. Since there was a dispute between the two Banks in respect of the cheque, the matter was referred to the Reserve Bank of India and the Reserve Bank of India advised the respondent no.1 to refund the mount of Rs.2,25,000/- to Punjab National Bank in February 1990 and, accordingly, the amount has been returned to Punjab National Bank and, therefore, the ultimate result is that the respondent no.1 did not receive the amount of -: 3 :- Rs.2,25,000/- from Punjab National Bank and since it is clear that the cheque for Rs.2,25,000/- issued by the said drawer in favour of the petitioner has not been cleared, there is no question of the petitioner entitled to receive the said sum of Rs.2,25,000/- from the respondent no.1. 4. Thus, what we find is that all these facts are disputed facts between the parties. The affidavit produced on record by the respondent no.1 shows that the respondent no.1 ultimately has not received the amount from Punjab National Bank and, therefore, the petitioner, if at all, is having any right, it is as against the drawer of the cheque in issue i.e. Mr.Udeshi and not against the respondent no.1. He may, if permissible in law, proceed against Punjab National Bank. 5. Under these circumstances, after going through the material on record, what we find is that this petition under Article 226 of the Constitution to simplicitor recover money, on the aforesaid background of disputed questions of fact, is misconceived. Under Article 226, this Court cannot consider such disputed factual issues and, therefore, we dismiss the petition. 6. The petitioners, if so advised, may file appropriate -: 4 :- proceedings against Mr.Udeshi and/or Punjab National Bank, if permissible in law. 7. The Writ Petition stands dismissed. (A.A. KUMBHAKONI, J.) (S.B. MHASE, J.)