PUNJAB NATIONAL BANK & ORS. versus ATMANAND SINGH & ORS. on 6 May 2020

SUPREME COURT REPORTS

[2020] 7 S.C.R.

APUNJAB NATIONAL BANK & ORS.

v.

ATMANAND SINGH & ORS.

(Civil Appeal No. 2410 of 2020)

BMAY 06, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Writ – Jurisdiction of – When the petition raises questions offact of a complex nature – Respondent no. 1 alleged that he hadCtaken a term loan of Rs.10,000/- from the Bank in 1984 – In 1990,the term loan with interest had mounted upto a figure ofRs.13,386/- – In 1989, respondent no. 1 was granted two chequesof Rs.5000/- each as Earthquake Relief Fund – The said two chequeswere deposited with Bank for encashment, however, the said amountof cheques were transferred to the loan account and the same wasDdone without any authorisation – It was also alleged by respondentno. 1 that he approached bank with Rs.14,93,000/- for issuance oftwo bank drafts – However, the Bank transferred the said amountto the loan account – Thereafter, respondent no. 1 approached theDistrict Magistrate – Respondent no.1 alleged that his basicassertion was found correct and liability was accepted by the bank,Eand it was reduced to an agreement dated 27.05.1990 – However, awrit petition was filed by respondent no.1 when Bank refused tohonour the agreement – The Bank denied the allegation of transferof proceeds of two cheques of Rs.5000/- to loan account and alsodenied the allegation of deposit of Rs.14,93,000/- by respondentFno. 1 – The Bank explicitly denied the genuineness and existenceof the documents annexed to the writ petition and asserted the sameas forged, fabricated and manufactured documents – The SingleJudge of the High Court allowed the writ petition – Aggrieved, theBank filed LPA before the Division Bench of the High Court whichwas dismissed – On appeal, held: The Bank had categorically deniedGthe 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 onthe preponderance of probabilities – In other words, the case setup by the respondent no. 1 in the writ petition is neither an admittedposition nor it is possible to even remotely suggest that it isH

indisputable, so as to bind the Bank on that basis – Also, the DistrictMagistrate in the affidavit clearly denied the existence of the statedproceedings for want of contemporaneous official record in thatregard – This aspect was not taken into account by the High Court– From the narration of facts, it is clear that it would involve securityof complex matters and issues including about the existence of thevery agreement, which is the foundational evidence for seeking reliefas prayed in writ petition – The High Court committed manifesterror in disregarding the core jurisdictional issue that the matter onhand involved complex factual aspects, which could not beadjudicated in exercise of writ jurisdiction – The High Court shouldhave relegated the parties to other alternative remedy as may bepermissible in law – Thus, the impugned decisions of the SingleJudge and the Division Bench of the High Court are set aside.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. The judgment of the single Judge of the HighCourt has completely glossed over the crucial aspects and thewrit petition has been disposed of in a very casual manner. TheDivision Bench of the High Court committed the same error inupholding the decision of the single Judge. The Division Benchhas not even analysed the efficacy of the affidavits filed in supportof the stand taken by the appellant-Bank during the pendency ofthe LPA. It merely reiterates the view taken by the Single Judgein just two short paragraphs. It has not analysed the efficacy ofthe proceedings in Misc. Case No. 04 (DW1) PNB/1989-90, aswell as, the certified copy of the proceedings filed in appeal beforeit, in the context of affidavits of Bank officials and report of theDistrict Magistrate. The Division Bench was also misled by thevoluminous documents relied upon by the respondent No. 1 andassumed that the same could not be a figment of imagination or apiece of fiction. [Para 15][687-G-H; 688-A-B]

2. Even if the impugned judgments were to be read as awhole, there is no analysis of the relevant documents and inparticular, the stand taken by the appellant-Bank expresslydenying the existence of the stated agreement and genuinenessthereof, which plea was reinforced from the affidavits of theconcerned Bank officials and the report of the District Magistrate.Notably, the District Magistrate in the affidavit filed in compliance ABC

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Aof the order dated 18.3.2016 had clearly denied the existence ofthe stated proceedings for want of contemporaneous officialrecord in that regard. This aspect has not been taken into accountby the High Court at all. On facts, therefore, the High Courtcommitted manifest error in disregarding the core jurisdictionalissue that the matter on hand involved complex factual aspects,Bwhich could not be adjudicated in exercise of writ jurisdiction.[Para 16][688-C-E]

3. When the petition raises questions of fact of complexnature, such as in the present case, which may for theirdetermination require oral and documentary evidence to beCproduced and proved by the concerned party and also becausethe relief sought is merely for ordering a refund of money, theHigh Court should be loath in entertaining such writ petition andinstead must relegate the parties to remedy of a civil suit. Had itbeen a case where material facts referred to in the writ petitionDare admitted facts or indisputable facts, the High Court may bejustified in examining the claim of the writ petitioner on its ownmerits in accordance with law. [Para 17][690-G-H; 691-A]

4. A priori, this Court has no hesitation in taking the viewthat in the facts of the present case, the High Court should haveEbeen loath to entertain the writ petition filed by the respondentNo. 1 and should have relegated the respondent No. 1 toappropriate remedy for adjudication of all contentious issuesbetween the parties. [Para 22][693-F-G]

Thansingh Nathmal & Ors. v. Superintendent of Taxes,FDhubri & Ors. AIR 1964 SC 1419; Suganmal v. Stateof Madhya Pradesh & Ors. AIR 1965 SC 1740 –followed.

Smt. Gunwant Kaur & Ors. v. Municipal Committee,Bhatinda & Ors. (1969) 3 SCC 769; BabubhaiGMuljibhai Patel v. Nandlal Khodidas Barot & Ors.(1974) 2 SCC 706 : [1975] 2 SCR 71; M/s. HyderabadCommercials v. Indian Bank & Ors. (1991) 2 Suppl.SCC 340; ABL International Ltd. & Anr. v. Export CreditGuarantee Corporation of India Ltd. & Ors. (2004) 3SCC 553; Bhinka & Ors. v. Charan Singh AIR 1959

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SC 960 : [1959] Suppl. SCR 798; Kaliya v. State ofMadhya Pradesh (2013) 10 SCC 758 : [2013] 7 SCR760 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2410of 2020.

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From the Judgment and Order dated 23.02.2017 of the High Courtof Judicature at Patna in L.P.A. No. 310 of 2009.

Dhruv Mehta, Sr. Adv., Rajesh Kumar-I, Anant Gautam,Ms. Sakshi Gaur, Sorabh Dahiya, Vibhu Sharma, Nipun Sharma, AnmolEMehta, Advs. for the Appellants.

J.S. Attri, Sr. Adv., Varinder Kumar Sharma, Chandra Nand Jha,Chandan Kumar, Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree,Gestine George, Ms. Srishti Agarwal, Advs. for the Respondents.

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The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Leave granted.

2. This appeal takes exception to the judgment and order dated23.2.2017 passed by the Division Bench of the High Court of Judicatureat Patna[1] in Letters Patent Appeal (LPA) No. 310/2009, whereby, theLPA filed by the appellants came to be dismissed while affirming thedecision of the learned single Judge, dated 10.2.2009 in allowing theCivil Writ Jurisdiction Case (CWJC) No. 867/1999.

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1 For short, “the High Court”

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3. The Division Bench took note of the relevant background factsnecessitating filing of writ petition by the respondent No. 1for a directionto the appellant-Bank to pay his lawful admitted claims in terms ofagreement dated 27.5.1990 (Annexure 5(b) appended to the writ petition)and also to deposit the income-tax papers with immediate effect. TheDivision Bench has noted as follows: - “4. The facts of the case is that the writ petitioner had taken aterm loan of Rs.10,000/- from the Bank by way of financialassistance to run a business in the name of “Sanjeev ReadymadeStore” from Haveli Kharagpur Branch of Punjab National Bankin the district of Munger. The writ petitioner was paid the saidsum of Rs.10,000/- in two instalments of Rs.4,000/- on 21.07.1984and Rs.6,000/- on 01.10.1984. The writ petitioner had yet anothersavings account in the same branch of the respondents-bank.However, on 14.02.1990, the term loan with interest had mountedupto a figure of Rs.13,386/-. In 1989, the writ petitioner, who isRespondent no.2 in the appeal, was granted two cheques ofRs.5,000/- each by the Circle Officer, Haveli Kharagpur underthe Earthquake Relief Fund. The said two cheques were depositedwith the Bank for encashment in the other savings account, butinstead, were transferred to the loan account. This was donewithout any authorization of the writ petitioner and without direction of any competent authority. Some time thereafter, the writpetitioner’s son was afflicted by cancer, which required immediatetreatment at All India Institute of Medical Sciences, New Delhi.In order to meet the expenses of the treatment, writ petitionersold 406 bhars of gold jewellery of his wife’s “stridhan” andreceived Rs.14,93,268/-. He approached the branch of therespondents-bank with a sum of Rs.14,93,000/- on 04.08.1989 forissuance of two bank drafts, one in his name and the another inthe name of his wife. The then Accountant, Mr. T.K. Palit showedhis inability to prepare the drafts on the ground of shortage ofstaff on that day and requested the writ petitioner to deposit theamount in the savings account No. 1020 in the said branch. TheAccountant, after receipt of the money, transferred total amountof Rs.15,03,000/- to the loan account, whereas in the loan accountupto 14.02.1990 outstanding dues of principal and interest wasonly Rs.13,386/-. The writ petition made grievance before theBranch Manager of the said branch and also filed representations

before the Bank authorities. Thereafter, the writ petitionerapproached the District Magistrate, Sri Nanhe Prasad, who orderedthe then Circle Officer, Haveli Kharagpur, District Munger,Sri Binod Kumar Singh to make a detailed enquiry into the matterand report. Accordingly, a Misc. Case No. 4 (DW 1) PNB/1989-90 was initiated and in those proceedings, various officials of thePunjab National Bank, including the then Branch Manager, DistrictCoordination Officer of the Punjab National Bank and theAccountant of the Bank were examined from time to time andreports were submitted to the District Magistrate, Munger. Severalwitnesses were examined even by the District Magistrate, Munger.There were officers from the Regional Office of the PunjabNational Bank, one of them being Sri Tej Narain Singh, the RegionalManager of the Punjab National Bank, Regional Office, Patna-Balso deposed making reference of what had transpired to the ZonalOffice of the Bank. On the basis of these statements, which wererecorded by the Circle Officer and/or by the then DistrictMagistrate-cum-Collector, Munger, Sri Gorelal Prasad Yadav, thematter proceeded. The basic assertion of the writ petitioner havingbeen found correct and the liability having been accepted by therespondents-bank, it was reduced to an agreement dated27.05.1990, which is Annexure-5B to the writ application betweenthe parties. The agreement was signed by one and all in presenceof the Circle Officer and the overall supervision of the DistrictMagistrate. It was duly recorded in writing that the bank hadreceived the deposit amounting to Rs.15,03,000/- as per depositsmade on 02.08.1989, 04.08.1989 and 04.10.1989. It was alsorecorded that the total term loan and the liability of the writ petitionerup 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 Depositof the bank and shall be paid with interest by September, 1997.The writ application was filed, when the bank refused to honourthis agreement. In support of the writ application, certified copiesof the entire proceedings, depositions as had been obtained by thewrit petitioner in the year 1990 were annexed.”

The appellant-Bank contested the said writ petition and raisedobjections regarding the maintainability of the writ petition and disputedthe money claim set up by the respondent No. 1 on the basis of allegedcontractual agreement dated 27.5.1990. The appellant-Bank denied the AB

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Aallegation of transfer of proceeds of two cheques of Rs.5,000/- (Rupeesfive thousand only) each, allegedly received by the respondent No. 1from the district authorities,to the loan account. The Bank also deniedthe allegation of deposit of Rs.14,93,000/- (Rupees fourteen lakhs ninety-three thousand only) by the respondent No. 1 in his Savings Fund AccountNo. 1020 or transfer of the said amount in his loan account. Further, onBreceipt of complaint from the respondent No. 1, the Regional Managerof the appellant-Bank instituted an internal enquiry conducted byMr. 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 hadbeen paid the proceeds of two cheques of Rs.5,000/- (Rupees fiveCthousand only) each in cash and there is no record about the deposit ofRs.14,93,000/- (Rupees fourteen lakhs ninety three thousand only) in hisaccount with the concerned Branch. The appellant-Bank explicitly deniedthe genuineness and existence of the documents annexed to the writpetition and asserted that the same are forged, fabricated andmanufactured documents. The Bank also placed on record that theDrespondent No. 1 had filed similar writ petition against another bank,namely, the Munger Jamui Central Cooperative Bank Limited beingCWJC 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 petitionwas stoutly disputed by the concerned Bank.

E4. Be it noted that the learned single Judge, as well as, the DivisionBench adverted to the stand taken by the appellant-Bank, seriouslydisputing the existence of the stated agreement and asserting that thesame was fabricated and fraudulent document, as can be discerned fromthe order of the learned single Judge, which records as follows: -F

“11. Counter affidavit came to be filed by the respondent bankwhere they decided to deny the claim of the petitioner. They raisedserious doubts with regard to the existence of the records of Misc.Case No. 4 (DW I) PNB/89-90. They took a stand that as pertheir knowledge no such records exist or is readily available andGtherefore the claim of the petitioner cannot be accepted or actedupon. The counter affidavit has tried to cast serious - 7 - doubtsabout the so-called proceeding having been conducted and evenan agreement having been entered into by the parties. It is alsourged that the writ application cannot be maintained because theCourt can not direct enforcement of an agreement. It is also H

submitted that the District Magistrate had no power to adjudicatethe matter and even if for the sake of argument there was anagreement, the petitioner ought to have sought its enforcementthrough common law and not waited for filing the writ applicationafter many a years. It is also urged that these are disputedquestions of fact which cannot be decided in the writ application.”

Despite having noticed the objection regarding maintainability ofthe writ petition taken by the appellant-Bank, the learned single Judge, ifwe may say so, by a cryptic judgment and order, allowed the writ petitionfiled by the respondent No. 1 by observing as follows: - “13. The Court has gone through the plethora of documentswhich have been brought on record in support of thepleading of the petitioner. If the documents which have beenbrought on record are read as a whole this Court does geta feeling that the respondent bank wants to wriggle out of aticklish situation by raising technical objections with regardto the maintainability of the writ application. Such voluminousdocuments cannot be created or manufactured. Merely becausethe respondent bank is suffering from selective amnesia the Courtis not willing to brush aside the materials which have been broughton record in support of the writ application. No serious effort hasbeen made by the respondents to answer the submissions and thearguments made in the writ application. The annexures coupledwith specific pleadings point to the fact that there was a seriousgrievance raised by the petitioner about misconduct or wrongbanking procedure having been adopted by the employees of thePunjab National Bank in maintenance of the accounts of thepetitioner. The writ application of the petitioner therefore cannotbe dismissed on the technical objection made by the respondentbank.

14. In the given facts and circumstances noted above, the petitionerhas succeeded in making out a case for interference and keepingthe settled principle in this regard as noted above, the respondentBank is hereby directed to take steps for payment of the moneywhich had been quantified in terms of annexure-5B. It is clarifiedthat order of payment is not for enforcement of agreementcontained in annexure 5B but only a certification that the moneyof the petitioner must accrue to his account and must be paid A

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Aback to him with due interest thereon as proper book keeping andmaintenance of accounts of a customer is a public duty of thebank. The Court expects the respondent Bank to make paymentswithin a period of three months from the date of communication/production of a copy of this order.

BThe writ application stands allowed.”

5. The appellant-Bank carried the matter before the DivisionBench by way of LPA No. 310/2009. During the pendency of the saidappeal, the Bank filed affidavit of Mr. Tapan Kumar Palit (the thenCAccountant 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 lakhsninety-three thousand only) with the appellant-Bank on 4.8.1989, (b)that the affiant participated in the enquiry alleged to have conductedDunder the orders of District Magistrate, Munger and (c) the affiant wasa signatory to the alleged agreement dated 27.5.1990. Similar affidavitof Mr. Krishna Deo Prasad (the then Manager, Branch Office, HaveliKharagpur) dated 4.9.2009 was filed, taking the same stand. Anotheraffidavit of Mr. Bishnu Deo Prasad Sah (the then District CoordinationOfficer i.e. the D.C.O.) dated 5.9.2009 was filed, specifically denyingEthe relevant facts and asserting that he was never appointed as an enquiryofficer by the District Magistrate, Munger in terms of Misc. Case No.04 (DW1)PNB/1989-90 and that he was not signatory to the allegedagreement dated 27.5.1990. The Division Bench was also conscious ofthe express stand taken by the appellant-Bank before the learned singleFJudge, raising the issue of maintainability of the writ petition on theassertion that the case involved complex factual matters which cannotbe adjudicated in exercise of writ jurisdiction. In paragraph 8 of theimpugned judgment, the Division Bench noted thus: - “8. Before the learned Single Judge as is the stand in this appeal,Gthe Bank filed counter affidavit in the writ application raising seriousdoubt with regard to existence of any case registered as Misc.Case No. 4 (DW 1) PNB/1989-90. They took the stand that noenquiry was ever conducted nor there was any enquiry report norany official of the Bank ever deposed in the enquiry. There wasno record of those proceedings and the certified copies, which H

have been produced and were part of the record of the writapplication, were forged and created by the writ petitioner. Anotherobjection was taken by the Bank in the writ proceeding that theDistrict Magistrate had no power to adjudicate the matter andorder for enquiry. Yet another objection was taken that the matterrelates to disputed questions of fact, which is not maintainableunder Article 226 of the Constitution of India in writ jurisdiction.”

6. Despite the specific plea taken by the appellant-Bank, disputingthe transactions and documents in question, on the basis of which therespondent had sought relief by way of writ petition, the Division Benchproceeded to dismiss the LPA filed by the Bank by holding thus: - “13. Having heard the learned counsel for the parties and takinginto consideration the copies of the proceedings of Misc. CaseNo. 4 (DW1) PNB/1989-90 as well as the certified copy of theproceedings filed before this Court in appeal, which is a voluminousone with a plethora of documents, it could not have been a figmentof imagination or a piece of fiction. Thus, the order of the learnedSingle Judge does not suffer from any infirmity and calls for nointerference, which has further been fortified by affirmation ofthe officer and the office peon as well as the Head Clerk postedat the relevant time in the office of the Circle Officer, HaveliKharagpur.

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. Whileissuing 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 tothem fixing a returnable date within twelve weeks.

Be it noted that Mr. Amrinder Sharan, learned senior counsel hasagreed that the respondent No. 1 is prepared to face any inquiryand investigation by the Central Bureau of Investigation if thisCourt feels it appropriate. Mr. Dhruv Mehta, learned senior counsel AB

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[2020] 7 S.C.R.

Abeing assisted by Mr. Rajesh Kumar, learned counsel accepts thesuggestion made by Mr. Sharan and if need be the same can beadverted to after the appearance of other respondents.

There shall be stay of operation of the impugned judgment dated23[rd] February, 2017 passed by the High Court until further orders.”BThe appellant-Bank, inter alia, invited our attention to the affidavitfiled by the District Magistrate – Mr. Uday Kumar Singh, before thisCourt in the present appeal, wherein he has reiterated the stand takenby him in the 3[rd] supplementary counter affidavit dated 5.5.2016 filedbefore the High Court in compliance of order dated 18.3.2016. In theCsaid affidavit, it had been stated that on perusal of records, reports ofdifferent officers and staff and their written depositions, it prima facieappears that the documents pertaining to Misc. Case No. 04 (DW1)PNB/1989-90 (in the office of Anchal Adhikari, H. Kharagpur) are forgedand fabricated, as no contemporaneous document was available eitherin the Sub-Divisional Office, H. Kharagpur or in the headquarters,DKharagpur in that regard.

8. The grievance of the appellant-Bank is that considering such acategoric plea taken, which was supported by affidavits and the reportof the District Magistrate (referred to in his affidavit dated 5.5.2016filed in compliance of order dated 18.3.2016 passed by the Division BenchEof the High Court), it was amply clear that the matter involved complexfactual aspects, which could not and ought not to be answered in writjurisdiction and that the respondent No. 1 (writ petitioner) must takerecourse to appropriate legal remedy for enforcement of the allegedagreement dated 27.5.1990, if so advised. The Bank has placed relianceFon the decisions of the Constitution Bench of this Court in ThansinghNathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors.[2] andSuganmal vs. State of Madhya Pradesh & Ors.[3] to contend that thewrit petition ought to have been dismissed by the High Court.

9. The respondent No. 1, on the other hand, submitted that merelyGbecause the Bank has disputed the relevant facts, does not warrantdismissal of writ petition, as the jurisdiction of the High Court underArticle 226 of the Constitution is very wide including it can cross-examinethe concerned affiant(s) and enquire into all aspects of the matter. To 2 AIR 1964 SC 1419H3 AIR 1965 SC 1740

buttress this submission, reliance is placed on Smt.Gunwant Kaur &Ors. vs. Municipal Committee, Bhatinda & Ors.[4], Babubhai MuljibhaiPatel vs. Nandlal Khodidas Barot & Ors.[5], M/s.HyderabadCommercials vs. Indian Bank & Ors.[6] and ABL International Ltd.& Anr. vs. Export Credit Guarantee Corporation of India Ltd. &Ors.[7]. The respondent No. 1 would additionally urge that the case set upby him in the writ petition is substantiated by the certified copies of themain docket alongwith that of the dispatch register regarding Misc. CaseNo. 04 (DW1) PNB/1989-90 and there is presumption about itsgenuineness. The respondent No. 1 has placed reliance on the decisionsof this Court in Bhinka & Ors. vs. Charan Singh[8] and Kaliya vs.State of Madhya Pradesh[9]. Further, the circumstances emanating fromthe records clearly substantiate the fact that the stated agreement wasexecuted between the parties on 27.5.1990 and it is not open to theappellant–Bank to resile from the said agreement. The existence of theagreement having been substantiated in the enquiry being miscellaneouscase referred to above, wherein statement of the officials of the Bank atthe relevant time came to be recorded supporting the plea of therespondent No. 1 including about the genuineness of the certified copiesrelied upon, it was a case of admission of liability by the appellants andthe claim of the respondent No. 1 was, therefore, indisputable. In such asituation, the learned single Judge of the High Court was justified inallowing the writ petition and the reasons on which stated relief came tobe granted commended to the Division Bench. Therefore, no inferenceby this Court is warranted and moreso, because the respondent No. 1has become a victim of circumstances and it would be unfair and unjustto drive him to take recourse to alternative remedy by filing a suit forenforcement of the agreement at this distance of time. The respondentNo. 1, therefore, has urged to dismiss this appeal.

10. We have heard Mr. Dhruv Mehta, learned senior counsel forthe appellants, Mr. J.S. Attri, learned senior counsel for the respondentNo. 1 and Mr. Devashish Bharuka, learned counsel for the respondentNo. 2.

4 (1969) 3 SCC 7695 (1974) 2 SCC 7066 1991 Supp (2) SCC 3407 (2004) 3 SCC 5538AIR 1959 SC 9609 (2013) 10 SCC 758

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A11. From the factual matrix highlighted hitherto, it is manifest thatthere is no unanimity between the appellant-Bank and the respondentNo. 1 on the relevant facts, on the basis of which the relief sought in thewrit petition was founded. The Bank had expressly denied the existenceof the alleged agreement dated 27.5.1990 including the fact that therespondent No. 1 had deposited the amount of Rs.14,93,000/- (RupeesBfourteen lakhs ninety-three thousand only). The Bank had relied uponthe affidavits of the concerned Bank officials, and also on the report ofthe District Magistrate referred to in his affidavit dated 5.5.2016 filedbefore the Division Bench of the High Court in compliance of its orderdated 18.3.2016. The Bank had categorically denied the case set up byCthe respondent No. 1 in the writ petition in toto; and more so the standtaken by the Bank could be substantiated on the preponderance ofprobabilities. In other words, the case set up by the respondent No. 1 inthe writ petition is neither an admitted position nor is it possible to evenremotely suggest that it is indisputable, so as to bind the appellant-Bankon that basis. Moreover, from the narration of facts, it is more than clearDthat it would involve scrutiny of complex matters and issues includingabout the existence of the very agreement, which is the foundationalevidence for seeking relief as prayed in the writ petition. In that, thegenuineness and existence of the stated agreement has been put in issueby the appellant-Bank and which is made good on the basis of affidavitsEof concerned Bank officials and even supported by the report of theDistrict Magistrate referred to in his affidavit dated 5.5.2016.

12. Notably, the respondent No. 1 had filed similar writ petitionagainst another bank in the year 1995, which came to be rejected as thefacts stated therein were also disputed by that bank. In the present case,Fhowever, the learned single Judge was impressed by the specious factthat the respondent No. 1 had produced plethora of documents and thusassumed that the appellant bank wanted to wriggle out of the ticklishsituation by raising technical objection of maintainability of the writapplication. This observation of the learned single Judge is nothing short of being based on surmises and conjectures. The matter such as theGpresent one, could not be decided on the basis of some inference or afeeling gathered by the Court as noted in the impugned judgments. Thehard facts on record clearly suggested that the appellant-Bank hadsupported its plea by relying on affidavits of the concerned Bank officialsincluding the report of the District Magistrate. The learned single JudgeHvery conveniently ignored that aspect and proceeded to hold that the appellant-Bank was suffering from selective amnesia, having noted thatvoluminous documents are relied upon by the respondent No. 1 (writpetitioner) and thus assumed that the same could not be created ormanufactured.

13. Be that as it may, the learned single Judge without analysingthe entirety of the stand of the appellant and the relevant documents,proceeded to make observations about the conduct of the appellant-Bank, which was certainly avoidable. We say so because, the High Courtcould not have assumed that the documents produced by the respondentNo. 1 (writ petitioner) are genuine and admissible, despite the expressdenial by the appellant-Bank and its officials on affidavit about beingparty 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 intoalmost 20 closely typed pages, recording the stand taken by the partiesin the form of an agreement between them. From the terms stated therein,it is unfathomable as to how the Bank would agree to such onerousterms. Concededly, no policy document or authorisation of the signatoryof the Bank has been produced which would indicate that such anagreement could be reached by the Bank with the respondent No. 1.

14. Be it noted that on one hand, the case made out by therespondent No. 1 is that he had sold his family gold and the sale proceedsreceived were deposited in the concerned Branch of the appellant Bankfor withdrawal, as the amount was required by him for meeting medicalexpenses of his ailing son suffering from cancer. At the same time, videalleged agreement, the respondent No. 1 conveniently agrees to investthe amount for seven (7) years, which circumstance also raises seriousdoubt about the genuineness of the document. We do not wish toelaborate on the terms set out in the subject agreement except to observethat the plea taken by the appellant-Bank about genuineness of thedocument is debatable (triable) and is not a case of admitted position orindisputable fact, so as to proceed against the appellant-Bank by directingpayment 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 glossedover these crucial aspects and the writ petition has been disposed of in avery casual manner. The Division Bench of the High Court committedthe same error in upholding the decision of the learned single Judge.The Division Bench has not even analysed the efficacy of the affidavits A

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Afiled in support of the stand taken by the appellant-Bank during thependency of the LPA. It merely reiterates the view taken by the learnedsingle Judge in just two short paragraphs reproduced in paragraph 6above. It has not analysed the efficacy of the proceedings in Misc. CaseNo. 04 (DW1) PNB/1989-90, as well as, the certified copy of theproceedings filed in appeal before it, in the context of affidavits of BankBofficials and report of the District Magistrate. The Division Bench wasalso misled by the voluminous documents relied upon by the respondentNo. 1 and assumed that the same could not be a figment of imaginationor a piece of fiction.

16. Even if the impugned judgments were to be read as a whole,Cthere is no analysis of the relevant documents and in particular, the standtaken by the appellant-Bank expressly denying the existence of the statedagreement and genuineness thereof, which plea was reinforced fromthe affidavits of the concerned Bank officials and the report of the DistrictMagistrate. Notably, the District Magistrate in the affidavit filed inDcompliance of the order dated 18.3.2016 had clearly denied the existenceof the stated proceedings for want of contemporaneous official recordin that regard. This aspect has not been taken into account by the HighCourt at all. On facts, therefore, the High Court committed manifesterror in disregarding the core jurisdictional issue that the matter on handinvolved complex factual aspects, which could not be adjudicated inEexercise of writ jurisdiction.

17. The appellant-Bank has rightly invited our attention to theConstitution Bench decision of this Court in Thansingh Nathmal (supra).In paragraph 7, the Court dealt with the scope of jurisdiction of the HighCourt under Article 226 of the Constitution in the following words: - F

“7. … The jurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and the exercise thereofis not subject to any restrictions except the territorial restrictionswhich are expressly provided in the Articles. But the exercise ofthe jurisdiction is discretionary: it is not exercised merely becauseGit is lawful to do so. The very amplitude of the jurisdiction demandsthat it will ordinarily be exercised subject to certain self-imposedlimitations. Resort that jurisdiction is not intended as analternative remedy for relief which may be obtained in asuit or other mode prescribed by statute. Ordinarily theCourt will not entertain a petition for a writ under Article H

226, where the petitioner has an alternative remedy, whichwithout being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand anelaborate examination of evidence to establish the right toenforce which the writ is claimed. The High Court does nottherefore act as a court of appeal against the decision of a courtor tribunal, to correct errors of fact, and does not by assumingjurisdiction under Article 226 trench upon an alternative remedyprovided by statute for obtaining relief. Where it is open to theaggrieved petitioner to move another tribunal, or even itself inanother jurisdiction for obtaining redress in the manner providedby a statute, the High Court normally will not permit by entertaininga petition under Article 226 of the Constitution the machinerycreated under the statute to be by passed, and will leave the partyapplying to it to seek resort to the machinery so set up.

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 HighCourts have power to pass any appropriate order in the exerciseof the powers conferred under Article 226 of the Constitution,such a petition solely praying for the issue of a writ of mandamusdirecting the State to refund the money is not ordinarilymaintainable for the simple reason that a claim for such a refundcan always be made in a suit against the authority which hadillegally collected the money as a tax. …We do not find anygood reason to extend this principle and therefore hold thatno petition for the issue of a writ of mandamus will benormally entertained for the purpose of merely ordering arefund of money to the return of which the petitioner claimsa right.”

And again, in paragraph 9, the Court observed as follows: - “9. We therefore hold that normally petitions solely praying forthe refund of money against the State by a writ of mandamus are A

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not to be entertained. The aggrieved party has the right ofgoing to the civil court for claiming the amount and it isopen to the State to raise all possible defences to the claim,defences which cannot, in most cases, be appropriatelyraised and considered in the exercise of writ jurisdiction.”

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In Smt.Gunwant Kaur (supra) relied upon by the respondentNo. 1, in paragraph 14, the Court observed thus: -

“14. The High Court observed that they will not determine disputedquestion of fact in a writ petition. But what facts were in disputeCand what were admitted could only be determined after an affidavitin reply was filed by the State. The High Court, however,proceeded to dismiss the petition in limine. The High Court is notdeprived of its jurisdiction to entertain a petition under Article 226merely because in considering the petitioner’s right to reliefDquestions of fact may fall to be determined. In a petition underArticle 226 the High Court has jurisdiction to try issues both offact 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 complexnature, which may for their determination require oralEevidence to be taken, and on that account the High Courtis of the view that the dispute may not appropriately betried in a writ petition, the High Court may decline to try apetition. Rejection of a petition in limine will normally be justified,where the High Court is of the view that the petition is frivolousFor because of the nature of the claim made dispute sought to beagitated, or that the petition against the party against whom reliefis claimed is not maintainable or that the dispute raised thereby issuch that it would be inappropriate to try it in the writ jurisdiction,or for anologous reasons.”

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We restate the above position that when the petition raisesquestions of fact of complex nature, such as in the present case, whichmay for their determination require oral and documentary evidence tobe produced and proved by the concerned party and also because therelief sought is merely for ordering a refund of money, the High CourtH

should be loath in entertaining such writ petition and instead must relegatethe parties to remedy of a civil suit. Had it been a case where materialfacts referred to in the writ petition are admitted facts or indisputablefacts, the High Court may be justified in examining the claim of the writpetitioner on its own merits in accordance with law.

18. In the next reported decision relied upon by the respondentNo. 1 in Babubhai (supra), no doubt this Court opined that if need be, itwould be open to the High Court to cross-examine the affiants. Wemay usefully refer to paragraph 10 of the said decision, which readsthus: -

“10. It is not necessary for this case to express an opinion on thepoint as to whether the various provisions of the Code of CivilProcedure apply to petitions under Article 226 of the Constitution.Section 141 of the Code, to which reference has been made, makesit clear that the provisions of the Code in regard to suits shall befollowed in all proceedings in any court of civil jurisdiction as faras it can be made applicable. The words “as far as it can be madeapplicable” make it clear that, in applying the various provisionsof the Code to proceedings other than those of a suit, the courtmust take into account the nature of those proceedings and therelief sought. The object of Article 226 is to provide a quick andinexpensive remedy to aggrieved parties. Power has consequentlybeen vested in the High Courts to issue to any person or authority,including in appropriate cases any government, within thejurisdiction of the High Court, orders or writs, including writs inthe nature of habeas corpus, mandamus, prohibition, quo warrantoand certiorari. It is plain that if the procedure of a suit had also tobe adhered to in the case of writ petitions, the entire purpose ofhaving a quick and inexpensive remedy would be defeated. Awrit petition under Article 226, it needs to be emphasised, isessentially different from a suit and it would be incorrect toassimilate and incorporate the procedure of a suit into theproceedings of a petition under Article 226. The High Court is notdeprived of its jurisdiction to entertain a petition under Article 226merely because in considering the petitioner’s right of relief,questions of fact may fall to be determined. In a petition underArticle 226 the High Court has jurisdiction to try issues both offact and law. Exercise of the jurisdiction is no doubt discretionary, A

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Abut the discretion must be exercised on sound judicial principles.When the petition raises complex questions of fact, whichmay for their determination require oral evidence to betaken, and on that account the High Court is of the viewthat the dispute should not appropriately be tried in a writpetition, the High Court may decline to try a petitionB(see Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC769]. If, however, on consideration of the nature of the controversy,the High Court decides, as in the present case, that it should gointo a disputed question of fact and the discretion exercised bythe High Court appears to be sound and in conformity with judicialCprinciples, this Court would not interfere in appeal with the ordermade by the High Court in this respect.”

This decision has noticed Smt.Gunwant Kaur (supra), which hadunmistakably held that when the petition raises complex questions ofDfacts, the High Court may decline to try a petition. It is further observedthat if on consideration of the nature of the controversy, the High Courtdecides to go into the disputed questions of fact, it would be free to do soon sound judicial principles. Despite the factual matrix in the presentcase, the High Court not only ventured to entertain the writ petition, butEdealt with the same in a casual manner without adjudicating the disputedquestions of fact by taking into account all aspects of the matter. Themanner in which the Court disposed of the writ petition, by no stretch ofimagination, can qualify the test of discretion having been exercised onsound judicial principles.

F19. In Hyderabad Commercials (supra), on which reliance hasbeen placed, it is clear from paragraph 4 of the said decision that theBank had admitted its mistake and liability, but took a specious pleaabout the manner in which the transfer was effected. On that stand, theCourt proceeded to grant relief to the appellant therein, the accountholder. In the present case, however, the concerned officials of the BankGhave denied of being party to the stated agreement and have expresslyasserted that the said document is forged and fabricated. It is neither acase of admitted liability nor to proceed against the appellant Bank onthe basis of indisputable facts.

20. Even the decision in ABL International Ltd. (supra) will beof no avail to the respondent No. 1. This decision has referred to all theearlier decisions and in paragraph 28, the Court observed as follows: - “28. However, while entertaining an objection as to themaintainability of a writ petition under Article 226 of the Constitutionof India, the court should bear in mind the fact that the power toissue prerogative writs under Article 226 of the Constitution isplenary in nature and is not limited by any other provisions of theConstitution. The High Court having regard to the facts ofthe case, has a discretion to entertain or not to entertain awrit petition. The Court has imposed upon itself certain restrictionsin the exercise of this power. (See Whirlpool Corpn. v. Registrarof Trade Marks [(1998) 8 SCC 1]) And this plenary right of theHigh Court to issue a prerogative writ will not normally be exercisedby the Court to the exclusion of other available remedies unlesssuch action of the State or its instrumentality is arbitrary andunreasonable so as to violate the constitutional mandate of Article14 or for other valid and legitimate reasons, for which the Courtthinks it necessary to exercise the said jurisdiction.”

21. For the view that we have taken, it is not necessary for us todilate on the decisions of this Court in Bhinka (supra) and Kaliya (supra),which have dealt with the efficacy and admissibility of certified copiesof the relevant documents. Be it noted that these decisions are in referenceto the suit/trial in the concerned case, where the documents are requiredto be proved by the party relying upon it by examining competentwitnesses to prove the existence thereof and also their contents.

22. A priori, we have no hesitation in taking the view that in thefacts of the present case, the High Court should have been loath toentertain the writ petition filed by the respondent No. 1 and should haverelegated the respondent No. 1 to appropriate remedy for adjudicationof all contentious issues between the parties.

23. Accordingly, we are inclined to allow this appeal. As aconsequence, the impugned decisions of the learned single Judge andthe Division Bench are set aside and the writ petition filed by therespondent No. 1 shall stand dismissed with liberty to respondent No. 1to take recourse to other alternative remedy as may be permissible in

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Alaw. The same be decided on its own merits in accordance with lawuninfluenced by the observations on factual matters made in the impugnedjudgment and order of the High Court or for that matter, this judgment.In other words, all contentions available to both parties are left openincluding to proceed against respondent No. 1 as per law, if it is found bythe concerned Court/forum that false and incorrect statement on oathBhas been made by the respondent No. 1 and that the documents producedby him are forged and fabricated documents.

24. In view of the above, this appeal succeeds. The impugneddecisions are set aside and the writ petition filed by the respondent No.1 being CWJC No. 867/1999 stands dismissed with liberty asCaforesaid.There shall be no order as to costs. Pending interlocutoryapplications, if any, shall stand disposed of.

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Ankit Gyan

Appeal allowed.

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