Case: Bank of Maharashtra Vs. Race Shipping &amp; Tpt. Co. Pvt. Ltd

urged that the dispute between the parties relates to the liability of the appellant-bank to reimburse respondent No.1 the sum of Rs.95,000/- debited to the account of respondent No.1 on the basis of cheque No.425395 dated August 26, 1992 that was encashed by the appellant-bank which is claimed to be forged in the sense that the signature of Ashok Chattopadhyay, the Managing Director of respondent No.1, on the said cheque is forged. The learned counsel has urged that the said liability is being fastened on the appellant-bank on the basis of the law governing banking operations and that the proper remedy for enforcing the said liability is to file a civil suit and that it is not a matter which can be agitated through a writ petition under Article 226 of the Constitution. It has also been urged that the matter involves adjudication of disputed questions of fact inasmuch as the appellant-bank disputes that signature of Ashok Chattopadhyay on the cheque is forged. The learned counsel for the appellant-bank has submitted that the learned Judges of the High Court were not right in proceeding on the basis that the appellant-bank did not take precautions before making payment of large amount and the fact that cheque was forged is not in dispute and that the affidavit filed by R.V. Pinglay appears to be prima facie false and an after-thought. It has been pointed out that in the correspondence with respondent No.1 the appellant-bank did not accept the contention of respondent No.1 that one of the signatures of the joint signatories, namely, Ashok Chattopadhyay, the Managing Director of respondent No.1, was forged and further that the case of the appellant-bank is that the payment of the cheque was made in the ordinary course of business and that the procedure for honouring the cheque by the bank officials was correctly followed in the matter of encashment of the cheque. The appellant-bank has also denied the allegations made by respondent No.1 that there was collusion of bank staff with an outside unknown person for payment of the cheque and it was asserted that it was obvious negligence on the part of respondent No.1 not to keep the Cheque Book in the proper custody and that the respondent No.1 was making false allegations against the appellant-bank. The submission of the learned counsel was that various questions that arise in the case can be properly determined only on the basis of evidence that is adduced and that such determination cannot be made in a writ petition and it can be more appropriately adjudicated in a regular civil proceeding. 9. Shri P.H. Parekh, the learned counsel appearing for the respondents, has, on the other hand, urged that this appeal is directed against the interim order only and the main Writ Petition is still pending adjudication before the High Court and the question of maintainability of the Writ Petition would be gone into by the HIgh Court in the light of the objections that are raised by the appellant-bank. Shri Parekh has, however, urged that in view of the fact that the signature of one of the joint signatories on the cheque is forged the appellant-bank is liable to reimburse respondent No.1 the sum of Rs. 95,000/- that has been paid from the account of respondent No.1 on the basis of said cheque which was a nullity. In support of his aforesaid submission Shri Parekh has placed reliance on the decisions of this Court in Bihta Co- operative Development Cane Marketing Union Ltd. & Anr. v. The Bank of Bihar & Ors., (1967) 1 SCR 848 and Canara Bank v. Canara Sales Corporation & Ors., 1987 (2) SCR 1138. 10. Since the Writ Petition is still pending in the High Court and the question of maintainability of the Writ Petition has yet to be considered we do not propose to go into the said question. All that we wish to say at this stage is that the objections that have been raised by the appellant-bank against the maintainability of the writ petition are not such that they may be disregarded as lacking in substance. This is a factor which has a bearing or the exercise of discretion by the Court while passing the interim order in the writ petition.11. By the interim order the High Court has directed the appellant-bank to credit a sum of Rs.95,000/- in the current account No. 318 of respondent No.1. The High Court has recorded that respondent through their counsel had given an undertaking to bring back the amount if the Court so desires. The said interim order, in substance, grants the relief which the respondent would have been given at the final stage in the event of their writ petition being allowed by the High Court.12. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd & Ors., 1985 (1) SCC 260 at p. 265; State of Rajasthan & Ors. v. M/s Swaika Properties & Anr., 1985 (3) SCC 217 at p. 224].13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of Rs.95,000/- that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order passed by the High Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Since the Writ Petition is still pending in the High Court and the question of maintainability of the Writ Petition has yet to be considered we do not propose to go into the said question. All that we wish to say at this stage is that the objections that have been raised by theagainst the maintainability of the writ petition are not such that they may be disregarded as lacking in substance. This is a factor which has a bearing or the exercise of discretion by the Court while passing the interim order in the writ petition.11. By the interim order the High Court has directed theto credit a sum of Rs.95,000/in the current account No. 318 of respondent No.1. The High Court has recorded that respondent through their counsel had given an undertaking to bring back the amount if the Court so desires. The said interim order, in substance, grants the relief which the respondent would have been given at the final stage in the event of their writ petition being allowed by the High Court.12. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India LtdOrs., 1985 (1) SCC 260  at p. 265; State of RajasthanOrs. v. M/s Swaika PropertiesAnr., 1985 (3) SCC 217  at p. 224].13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of Rs.95,000/that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order passed by the High Court.