Delhi High Court
Sandeep Gupta vs Punjab National Bank & Ors on 20 January, 2016
Author: Rajiv Sahai Endlaw
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11879/2015
SANDEEP GUPTA ..... Petitioner
Through: Mr. Karan S. Thukral with Mr.
Naresh Sharma & Mr. Rohit Yadav,
Advs.
versus
PUNJAB NATIONAL BANK & ORS ..... Respondents
Through: Mr. Pranav Kumar Jha, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 20.01.2016
1. The petitioner, upon ceasing to be a partner of respondent no.2
partnership firm viz. M/s Allied Fibre Industries, seeks mandamus to the
respondent no.1 Punjab National Bank to release the title deeds of the
property of the petitioner and to discharge the petitioner from the guarantee
furnished by the petitioner, (as the then partner of the respondent no.2) for
repayment of the dues of the respondent no.2 to the respondent no.1 Bank.
2. It has been enquired from the counsel for the petitioner as to how, till
the petitioner makes the respondents no.3&4 (new / continuing partners of
the respondent no.2) furnish fresh guarantee for repayment of the dues of the
respondent no.1 Bank, the respondent no.1 Bank can be directed to release
the security and guarantee furnished by the petitioner.
3. The counsel for the petitioner refers to Section 32 of the Indian
Partnership Act, 1932 but which also provides for discharge only by an
agreement between the outgoing partner, the creditor of the firm and the new
/ continuing partners of the firm. There is admittedly no agreement.
4. The counsel for the petitioner however states that the agreement is
implied from the respondent no.1 Bank continuing to deal with the
respondents no.3&4 as partners of the respondent no.2 firm.
5. In this regard, it is the plea of the petitioner in the petition that the
petitioner has already instituted a suit against the respondents no.3&4
claiming specific performance of the agreement contained in the deed of
reconstitution of partnership to have the security furnished by the petitioner
substituted.
6. The counsel for the petitioner on enquiry states that the respondent
no.1 Bank is also a party to the said suit.
7. The said suit was admittedly instituted prior to the institution of this
petition. The petition is not maintainable on this ground alone. The
petitioner cannot maintain a petition under Article 226 of the Constitution of
India for the relief for which the petitioner, prior to instituting the writ
petition, has already availed of the relief under the civil law.
8. Supreme Court in Jai Singh Vs. Union of India (1977)1 SCC 1 held
that the appellant therein having filed a suit in which the same question as
the subject matter in the writ petition was agitated could not be permitted to
pursue two parallel remedies in respect of the same matter at the same time.
Similarly in Bombay Metropolitan Region Development Authority,
Bombay Vs. Gorak Patel Volkart Ltd. (1995) 1 SCC 642 finding that the
writ petitioner had availed of the alternative statutory remedy it was held
that the writ petition should not have been entertained. Yet again in S.J.S
Business Enterprises (P) Ltd Vs. State of Bihar (2004) 7 SCC 166
it was held that if a party has already availed of the alternative remedy while
invoking the jurisdiction under Article 226, it would not be appropriate for
the court to entertain the writ petition. This rule was held to be based on
public policy. Reference in this regard can also be made to K.S. Rashid and
Son Vs. Income Tax Investigation Commission AIR 1954 SC 207, Madura
Coats Limited Vs. Union of India (UOI) 112(2004)DLT622, Lal Harsh
Deo Narain Singh Vs. State of U.P. MANU/UP/1143/2004, Major
Jasbinder Singh Bala S/o Sri Bachan Singh Bala Vs. IInd Additional
District Judge MANU/UP/1679/2005 and D.D Shah and Brothers Vs. The
Union of India (UOI) MANU/RH/0268/2004.
9. Even otherwise, the respondent no.1 Bank which is the trustee of
public monies cannot be left high and dry by granting the relief of releasing
the security of the outgoing partners without the continuing / new partners
substituting the said security. The petitioner prior to signing the deed of
reconstitution of firm ought to have ensured that the security furnished by
him is released, if that was the agreement with the respondents no.3&4.
10. The counsel for the petitioner has also drawn attention to George Vs.
State Bank of Travancore AIR 2002 Kerala 214 but which is also in
relation to a suit and not in exercise of powers under Article 226 of the
Constitution. It entails disputed questions of fact, whether the respondent
no.1 Bank by conduct has so discharged the petitioner or not.
11. No ground is thus found for entertaining the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
JANUARY 20, 2016
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