Patna High Court

Surajmal Jain vs The Canara Bank on 24 February, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.124 of 2022
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1. Surajmal Jain, Son of Late Kanhaiya Lal Jain, Resident of House no.24, K P Sarkar Road, Mithapur, PS-Jakanpur, PO-GPO, Patna

2. Sunil Jain, Son of Surajmal Jain Resident of House no.24, K P Sarkar Road, Mithapur, PS-Jakanpur, PO-GPO, Patna

3. Nirmal Kumar Jain, Son of Late Basant Lal Jain Resident of Laxmi Bhawan, Opposite to Dental College Hospital, Ashok Rajpat, PS-Pirmuhani, Patna.

4. Sanjay Kumar Jain, Son of Late Naresh Kumar Jain Resident of Dharhara Kothi, Naya Tola, PO-Bankipur, PS-Kadamkuan, Patna.

... ... Petitioner/s Versus

1. The Canara Bank, through its Chief Manager, Budh Marg, Patna.

2. The Chief Manager, Canara Bank, Budh Marg, Patna.

3. The Branch Manager, Canara Bank, Budh Marg, Patna.

4. Ashok Kumar Jain, Son of Late Basant Lal Jain Resident of Laxmi Bhawan, Opposite to Dental College Hospital, Ashok Rajpat, PS-Pirmuhani, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Anjani Kumar Jha, Advocate For the Respondent/s : Mr.Siddharth Harsh, Advocate, Mr. Shadwal Harsh, Advocate

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 24-02-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s).

"I. For issuance of writ in nature of cetorari to Patna High Court CWJC No.124 of 2022 dt.24-02-2022

quash the letter dated 16.06.2020 (Annexure-8) whereby Respondent bank has to accepted the request to distribute the shares among the Partner without representation signed by each and every partner including the Respondent no.4.

II. For issuance of writ in nature of Mandamus to direct the respondent Bank to liquidate the deposits bank account of Partnership Firm "

Jain Store" bearing account no.

1434201000051 and may be transferred to the partners of the said partnership firm according to their respective share.

III. Alternatively Bank may be directed to transfer the share of Petitioners keeping the 15% amount of share of Respondent no. 4 and rest amount of four partners, who are the Petitioners herein in the newly formed Firm namely "New Jain Store.

IV. For any other relief/reliefs for which petitioner is entitled for."

After the matter was heard for some time, finding the

Bench not to be agreeable with the submissions made by learned

counsel for the petitioner, learned counsel for the petitioner,

under instructions, states that petitioner shall be content if a

direction is issued to the authority concerned to consider and

decide the representation which the petitioner shall be filing

within a period of four weeks from today for redressal of the Patna High Court CWJC No.124 of 2022 dt.24-02-2022

grievance(s).

Learned counsel for the respondents states that if

such a representation is filed by the petitioner, the authority

concerned shall consider and dispose it of expeditiously and

preferably within a period of four months from the date of its

filing along with a copy of this order.

Statement accepted and taken on record.

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Chief Secretary, Government of Karnataka & Ors, (2016) 2

SCC 653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties

addressed us on the question of the bona fides of Nagalaxmi

Bai in filing a public interest litigation. We leave this

question open and do not express any opinion on the

correctness or otherwise of the decision of the High Court in

this regard.

35. However, we note that generally speaking,

procedural technicalities ought to take a back seat in public

interest litigation. This Court held in Rural Litigation and

Entitlement Kendra v. State of U.P. [Rural Litigation and

Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC

504] to this effect as follows: (SCC p. 515, para 16)

"16. The writ petitions before us are not inter Patna High Court CWJC No.124 of 2022 dt.24-02-2022

parties disputes and have been raised by way of public

interest litigation and the controversy before the court is as

to whether for social safety and for creating a hazardless

environment for the people to live in, mining in the area

should be permitted or stopped. We may not be taken to

have said that for public interest litigations, procedural laws

do not apply. At the same time it has to be remembered that

every technicality in the procedural law is not available as a

defence when a matter of grave public importance is for

consideration before the court."

36. A considerable amount has been said about

public interest litigation in R&M Trust [R&M Trust v.

Koramangala Residents Vigilance Group, (2005) 3 SCC 91]

and it is not necessary for us to dwell any further on this

except to say that in issues pertaining to good governance,

the courts ought to be somewhat more liberal in entertaining

public interest litigation. However, in matters that may not

be of moment or a litigation essentially directed against one

organisation or individual (such as the present litigation

which was directed only against Sadananda Gowda and later

Jeevaraj was impleaded) ought not to be entertained or

should be rarely entertained. Other remedies are also

available to public spirited litigants and they should be

encouraged to avail of such remedies.

Patna High Court CWJC No.124 of 2022 dt.24-02-2022

37. In such cases, that might not strictly fall in

the category of public interest litigation and for which other

remedies are available, insofar as the issuance of a writ of

mandamus is concerned, this Court held in Union of India v.

S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150:

2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13)

"12. Mandamus literally means a command. The

essence of mandamus in England was that it was a royal

command issued by the King's Bench (now Queen's Bench)

directing performance of a public legal duty.

13. A writ of mandamus is issued in favour of a

person who establishes a legal right in himself. A writ of

mandamus is issued against a person who has a legal duty to

perform but has failed and/or neglected to do so. Such a

legal duty emanates from either in discharge of a public duty

or by operation of law. The writ of mandamus is of a most

extensive remedial nature. The object of mandamus is to

prevent disorder from a failure of justice and is required to

be granted in all cases where law has established no specific

remedy and whether justice despite demanded has not been

granted."

38. A salutary principle or a well-recognised rule

that needs to be kept in mind before issuing a writ of

mandamus was stated in Saraswati Industrial Syndicate Ltd. Patna High Court CWJC No.124 of 2022 dt.24-02-2022

v. Union of India [Saraswati Industrial Syndicate Ltd. v.

Union of India, (1974) 2 SCC 630] in the following words:

(SCC pp. 641-42, paras 24-25)

"24. ... The powers of the High Court under

Article 226 are not strictly confined to the limits to which

proceedings for prerogative writs are subject in English

practice. Nevertheless, the well-recognised rule that no writ

or order in the nature of a mandamus would issue when

there is no failure to perform a mandatory duty applies in

this country as well. Even in cases of alleged breaches of

mandatory duties, the salutary general rule, which is subject

to certain exceptions, applied by us, as it is in England, when

a writ of mandamus is asked for, could be stated as we find

it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11,

p. 106:

'198. Demand for performance must precede

application.--As a general rule the order will not be granted

unless the party complained of has known what it was he

was required to do, so that he had the means of considering

whether or not he should comply, and it must be shown by

evidence that there was a distinct demand of that which the

party seeking the mandamus desires to enforce, and that that

demand was met by a refusal.'

25. In the cases before us there was no such Patna High Court CWJC No.124 of 2022 dt.24-02-2022

demand or refusal. Thus, no ground whatsoever is shown

here for the issue of any writ, order, or direction under

Article 226 of the Constitution."

As such, petition stands disposed of in the following

terms:-

(a) Petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s);

(b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the date of its filing along with a copy of this order;

(c) The order assigning reasons shall be communicated to the petitioner;

(d) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;

(e) Also, opportunity to place on record all relevant materials/documents shall be granted to the parties;

(f) Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law;

(g) We are hopeful that as and when petitioner takes recourse to such remedies, as are otherwise available in law, before the appropriate forum, the same shall be dealt with, in accordance with law and with reasonable dispatch;

(h) Liberty reserved to the petitioner to approach the appropriate forum/Court, should the need so arise subsequently on the same and subsequent cause of action;

(i) We have not expressed any opinion on merits. All issues are left open;

(j) The proceedings, during the time of current Pandemic-

Covid-19 shall be conducted through digital mode, Patna High Court CWJC No.124 of 2022 dt.24-02-2022

unless the parties otherwise mutually agree to meet in person i.e. physical mode;