Smt. Annapoornavva Vs. the Chief General Manager, State Bank of Hyderabad and Others - Court Judgment

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constitution - writ - article 226 of constitution of india and order 39 rules 1 and 2 of code of civil procedure, 1908 - whether filing of petition under order 39 rules 1 and 2 and dismissed for non-prosecution would warrant writ petition being held not maintainable - cause of writ petition being arbitrariness of respondent in raising debit whereas in civil litigation being recovery of amount - application which was rejected was application for suing respondent as indigent person - court held that writ petition could not be held not maintainable. - karnataka state universities act, 2000 [k.a. no. 29/2001]. sections 64 & 29 :[mrs. b.v. nagarathna, j] establishment of new pre-university college petitioner was running another pre-university college in same area -respondents authorities had upgraded existing government high school into pre-university college so that students could consider joining same - state government had, on acceptance of report of a committee., sanctioned 100 pre-university colleges to educationally backward talukas petitioner institution has not been able to cater to needs of locality on account of inadequate infrastructure held, decision to upgrade existing government high school into a pre-university college cannot be said to be arbitrary. - after some time, the manager of third respondent told her that it will be better to have a new account and pass book in the name of 'annapoornamma' in view of the fact that petitioner had signed her name as 'annapoornamma',though her name was mentioned as 'annapoornavva' in the old account and in the cheque for rs. the said suggestion was also recommended by fourth and fifth respondents, venkobachar upadhyaya and shankarappa borate. 7,80,487/- making her believe that the amount was safe and secure in the old account no. petitioner claims to have complained to the bank about the fraud played on her and claimed the amount. the respondents 4 to 8 were impleaded as parties at the instance of respondents 1 to 3. therefore, there is no need to examine the questions of fact requiring oral as well as documentary evidence insofar as the claims and contentions of respondents 4 to 8. the only question that arises for consideration is whether there is an unauthorised debit by the bank to the account of petitioner. it is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. if a suit had been filed on the same cause of action and it had been dismissed and the petitioner had suppressed that fact, it was possible for the bank to complain of suppression. preliminary objection (d) 10.2 the respondents contend that the unauthorised debit complained of took place on 27-10-1987 and the writ petition was filed on9-12-1991, more than three years later, and a suit would have been dismissed if it had been filed on 9-12-1991. therefore, the petition should be dismissed as not maintainable. to put curbs in the way of enforcement of fundamental rights through legislative action might well be questioned under article 13(2). the reason is also quite clear. if a short period of limitation were prescribed the fundamental right might well be frustrated. the facts and circumstances disclose an unsuccessful attempt on the part of the bank to show that rs. 16. it is well-settled that a 'withdrawal slip' is not a cheque and is not negotiable or transferable. since the basic facts regarding the unauthorised transfer of the disputed amount from the appellant's account as well as the bank's liability was admitted, there was no justification for the high court to direct the appellant to file a suit on ground of disputed question of fact. the question is whether the bank acted with almost good faith expected to it, while dealing with a customer.orderr.v. raveendran, j.1. the petitioner is a customer of state bank of hyderabad at its kinnal branch. the head office, the regional office at gulbarga, and the branch at kinnal of the said bank are impleaded as respondents 1, 2 and 3 respectively. the petitioner has filed this petition seeking a direction to respondents 1 to 3 to recredit a sum of rs. 7,80,487/- to petitioner's account with the kinnal branch of the bank.2. the petitioner's case is as follows:2.1 the petitioner was the owner of land bearing sy. no. 141, budishettinal village. the said land was acquired for construction of a tank. she was illiterate and old. she engaged the services of the fourth respondent, who is an advocate practising at badami to conduct l.a.c. no. 26 of 1984 and ex. no. 114 of 1987 rising therefrom, on the file of the civil judge, koppal. a sum of rs. 8,81,488-76 became due to her on account of acquisition of her land. on 15-10-1987, fourth respondent asked her to accompany him to the office of the assistant commissioner and land acquisition officer, koppal, for collecting the cheque. she went to the office of the assistant commissioner along with fourth respondent and on his instructions, signed some papers. thereafter, her counsel (4th respondent) stated that the cheque should be credited to her bank account and took the cheque and petitioner's pass book relating to her account no. p. 12 with the kinnal branch of state bank of hyderabad (third respondent).2.2 the said cheque was presented on 27-10-1987 by the fourth respondent with a challan, for collection and credit to the petitioner's savings bank account no. p. 12. the cheque amount of rs. 8,81,488-76 was realised and credited to petitioner's account no. p. 12 on the same day (27-10-1987) (vide annexure-c which is the copy of the pass book for the relevant date).2.3 on 27-10-1987, fourth respondent came to the house of the petitioner and asked her to accompany him to the third respondent-bank to collect the cheque amount realised. when she accompanied fourth respondent to the third respondent-bank, she found that the fifth respondent and two others (venkobachar, upadhyaya and shankarappa s. borate) were present at the bank. the manager of the bank (t.s. pattar) asked her to wait for some time. she found that fourth respondent was discussing something secretly with those persons. after some time, the manager of third respondent told her that it will be better to have a new account and pass book in the name of 'annapoornamma' in view of the fact that petitioner had signed her name as 'annapoornamma', though her name was mentioned as 'annapoornavva' in the old account and in the cheque for rs. 8,81,488-76 issued to her. the said suggestion was also recommended by fourth and fifth respondents, venkobachar upadhyaya and shankarappa borate. on their advice, she opened a new account bearing no. p. 1512, on 27-10-1987, even though she was al-ready having account no. p. 12 in the said branch. a copy of her application for opening new account is at annexure-d.2.4 the fourth respondent and others asked her to sign two or three papers and the manager of third respondent asked venkobachar upadhyaya and shankarappa borate to sign the said papers. thereafter the manager of third respondent prepared a new pass book relating to account no. p. 1512 with an opening deposit of us. 5/- and transferred rs. 1,01,001/- to the new account from out of the old account no. p. 12. they (the fourth respondent, manager of third respondent and others) also informed her that the balance of the compensation amount was in deposit in her old account. the manager of third respondent gave her the new pass book (relating to account no. 1512) and fourth respondent kept the pass book relating to the old account (account no. p. 12). petitioner trusted them and went home.2.5 according to her, fourth and fifth respondents and the said two others colluded with second and third respondents and had obtained the signature of the petitioner on withdrawal slip relating to old account p. 12 for a sum of rs. 7,80,487/- making her believe that the amount was safe and secure in the old account no. p. 12. but, the fourth respondent and others withdrew rs. 780,487/- and pocketed the amount. the copy of the withdrawal form for rs. 7,80,487/- made use of by fourth respondent and others in annexure-g.2.6 the petitioner subsequently learnt that the fourth respondent obtained from third respondent, a demand draft drawn in favour of the fifth respondent for rs. 6,80,487/-, drawn on the koppal branch of first respondent-bank and credited a sum of rs. 1,00,000/- for the purpose of obtaining two special term deposit receipts of rs. 50,000/- each, one in the name of sixth and seventh respondents and another in the name of sixth and eighth respondents- sixth respondent is the wife and respondents 7 and 8 are the sons of fifth respondent.2.7 the fifth respondent encashed the demand draft dated 27-10-1987 for rs. 6,80,487/- issued by third respondent on the same day at the bank's koppal branch. the two term deposits of rs. 50,000/- each aggregating to rs. 1,00,000/-, was encashed by sixth, seventh and eighth respondents on 20-11-1987.2.8 petitioner was under the impression that the entire compensation amount was in her account. she came to know about the fraud played on her in regard to rs. 7,80,487/- and the facts stated in paras 2.5 to 2.7 above only when some relatives asked her about the compensation amount and petitioner showed them the new pass book relating to account no. p. 1512 and on account of suspicion, she and her sons went to third respondent and made enquiries with the manager (t.s. pattar) and he gave some information. having come to know that fourth respondent and others had cheated her to an extent of rs. 7,80,487/-, she lodged a complaint to the koppal rural police on 23-11-1987. she claims that it was not received initially and after a representation to the superintendent of police, raichur, the koppal police received the complaint on 9-12-1987 and registered as crime no. 99 of 1987 against fourth respon-dent only, even though the complaint was made against others also. petitioner claims to have complained to the bank about the fraud played on her and claimed the amount. in reply, second respondent sent a letter dated 16-12-1987 (annexure-h), relevant portion of which is extracted below:--'withdrawal of rs. 7,80,487/- from your savings bank account no. p. 1517 on the 27th october, 1987.-- do --please refer to your letter number nil dated nil.the amount of rs. 7,80,487/- was paid from your savings bank account against the withdrawal form drawn as self or bearer duly signed by you and the payment was made by our bank accordingly is in order.your contention that you are ignorant of the above withdrawal is not correct. this amount of rs. 7,80,487/- is a cash transaction and the bearer shri n.v. kattikai, advocate obtained a demand draft for rs. 6,70,487/- drawn on koppal branch and has credited an amount of rs. 1,00,000/- for the purpose of issuing of special term deposit receipts. we learnt that you have lodged a police complaint with the sub-inspector, koppal rural police station and the matter is under investigation. our bank shall make available the necessary details during the investigation to the investigating authority against requisition by them according to the law'.2.9 thereafter, petitioner issued a notice dated 2-5-1988 (annexure-j)through her counsel demanding the following details:--'further my client states and request that under what circumstances savings bank account no. p. 1512 was opened at your kinnal branch on my client's name? when she was having s.b. account no. p. 12 in the same branch.(ii) under what circumstances d.d. for rs. 6,80,487/- was drawn and rs. 1,00,000/- special term deposit receipts were taken and on whose application?(iii) under what circumstances rs. 7,80,487/- were debited to my client's account no. p. 12 when this amount was drawn from account no. p. 1517 according to your regional manager, gulbarga letter bearing no. grii713222, dated 16-12-1987 and which was sent to my client with his knowledge and he has exercised all due diligence in drafting and dispatching this letter to my client'.3. the petitioner claims that third respondent falsely contended that petitioner drew in cash a sum of rs. 7,80,487/- from her account. the petitioner denies withdrawal any such amount. the third respondent in collusion with respondents 4 and 5 had unauthorisedly utilised the said amount for issuing a demand draft for rs. 6,80,487/- in favour of respondent 5 and rs. 1,00,000/- for creating two term deposits in favour of 5th respondent's children. the petitioner claims that she had not authorised or requested the third respondent-bank to use the funds in her accountfor purchasing a demand draft in favour of fifth respondent for rs. 6,80,487/-, nor had she authorised or requested the funds in her account being used for making two term deposits of rs. 50,000/- each in favour of respondents 6 and 7, and respondents 6 and 8. she also contends that the withdrawal slip used by the fourth respondent for withdrawing the sum of rs. 7,80,487/- from her account was not negotiable and could be used only for cash transactions and no cash was paid to her. it is also contended that respondent-bank being an instrumentality of the state should function fairly, honestly and reasonably in serving its customers and cannot arbitrarily and unreasonably debit rs. 7,80,487/- to her account without there being any authorisation for the same. the petitioner has, therefore, filed this petition and sought a direction to respondents 1 to 3 to recredit the sum of rs. 7,80,487/- to her account.4. the bank has filed a statement of objections contending that a cheque for rs. 8,81,488-76 drawn in favour of the petitioner, by the assistant commissioner, was credited to the petitioner's account no. p. 12 with its kinnal branch on 26-10-1987; that it was sent for collection and was realised on the same day and credited to petitioner's account bearing no. p. 12; that on 27-10-1987 (wrongly typed as 27-8-1987) petitioner visited the kinnal branch of the bank with her advocate (4th respondent) and opened a new s.b. account (a/c no. 1512); that the petitioner requested that a sum rs. 1,01,001/- he transferred from her account no. p. 12 to her new account no. p. 1512 and accordingly the transfer was made, the petitioner gave a withdrawal slip for drawing rs. 7,80,487/- in cash from her account on 27-10-1987, payable to self or bearer, and the sum of rs. 7,80,487/- was paid in cash to the bearer, namely the fourth respondent; that thereafter the cash so withdrawn was credited back by the fourth respondent at the cash counter for issue of a demand draft for rs. 6,80,487/- in favour of fifth respondent and rs. 1,00,000/- was making two special term deposits of rs. 50,000/-each in favour of respondents 6 and 7 and respondents 6 and 8; and that therefore there is no irregularity in the transaction and it is not liable to recredit the sum of rs. 7,80,4877- to petitioner's account, as claimed by the petitioner.5. the petitioner filed a rejoinder dated 18-11-1994 contending that the bank's claim that cash of rs. 7,80,487/- was paid to the bearer of withdrawal slip was not true; that the vigilance section of the bank in its reply dated 28-1-1988 (annexure-j) to petitioner's complaint, had stated that the kinnal branch was not having adequate cash for paying the amount of the withdrawal slip and therefore the fourth respondent had taken a d.d. for rs. 6,80,487/- and two term deposits for rs. 50,000/-. in view of this inconsistency in the stand of the bank about manner of payment, this court on 5-12-1994 directed the bank to state whether there was adequate cash in the branch on 27-10-1987 to pay rs. 7,80,487/-. the bank filed an affidavit on 19-12-1994 admitting that there was no cash on 27-10-1987 to pay rs. 7,80,487/-.6. on 2-1-1995, the bank filed i.a. no. i for impleading respondents 4 to 8 which was allowed. the petitioner had filed this petition onlyagainst the bank. the fourth respondent filed a statement alleging that there was a dispute between petitioner and fifth respondent regarding the acquired land; that the land acquisition case was entrusted to him both by petitioner and fifth respondent; that petitioner along with fifth respondent and two others (venkobachar upadhyaya and shankarappa boratti) had requested him to accompany them to the bank; that the petitioner had informed the bank manager that as per settlement between her and fifth respondent, she was to get only rs. 1,01,001/- from the compensation amount and the balance had to be paid to the real owner, that is, fifth respondent; that thereafter at the suggestion of bank manager a new account was opened in the name of 'annapoor-namma' and rs. 1,01,001/- was transferred to petitioner's new account; that petitioner signed the withdrawal slip for rs. 7,80,487/-; that he also signed the withdrawal slip as the manager wanted him to sign it and that the demand draft in favour of fifth respondent and special fixed deposits in favour of fifth respondent's children were issued by using the said sum of rs. 7,80,487/- at the request of petitioner and fifth respondent, in view of their settlement. the fifth respondent has also filed objections to the same effect. respondents 6 to 8 have contended that they had no transaction with petitioner and the deposit receipts (two deposits for rs. 50,000/- each) were taken in their name by fifth respondent.7. before considering the matter on merits, the following preliminary objections regarding maintainability raised by respondents should be considered:(a) the matter involves several disputed questions of fact and therefore writ petition is not the appropriate remedy;(b) the dispute between a bank and customer in regard to an unauthorised debit is a civil dispute and therefore writ petition is not maintainable.(c) the petitioner had filed a petition under order 33, rules 1 and 2 seeking leave to sue the respondents for recovery of the amount which is the subject-matter of this writ petition in miscellaneous petition no. 33 of 1990 and that miscellaneous petition was dismissed and as that fact was not disclosed in the writ petition, the writ petition should not be entertained;(d) the claim against the bank was barred by limitation and therefore the writ petition is not maintainable.re: preliminary objection (a)8. the respondents have contended that there was a dispute between the petitioner and the fifth respondent in regard to title to the acquired land as the fifth respondent contended that the petitioner was holding the land as his benamidar; and when the compensation amount was received, there was a panchayat wherein it was agreed that the petitioner should receive a sum of rs. 1.01 lakhs in addition to a house (which belonged to the family of fifth respondent and which was agreed to be transferred by the fifth respondent to petitioner); and in view of itthe petitioner had agreed that the balance of the compensation amount should be paid to the fifth respondent; and in pursuance of said agreement, the sum of rs. 7,81,487/- was paid to fifth respondent and his children as required by petitioner and fifth respondent. it is contended that the question whether the petitioner was the owner of the property or whether she was only a benamidar, whether there was any panchayat under which the petitioner agreed to receive a sum of rs. 1.01 lakhs out of rs. 8,81,288-76 and pay the balance to the fifth respondent and whether the bank had acted on the instructions of petitioner and fifth respondent or whether it had acted unauthorizedly without any authority or instructions from the petitioner are alt complex questions of fact, which require oral and documentary evidence and which cannot be gone into in a writ proceedings and therefore the writ petition should not be entertained.8.1 the petitioner has not sought any relief against the respondents 4 to 8. the relief is claimed only against the bank. the respondents 4 to 8 were impleaded as parties at the instance of respondents 1 to 3. therefore, there is no need to examine the questions of fact requiring oral as well as documentary evidence insofar as the claims and contentions of respondents 4 to 8. the only question that arises for consideration is whether there is an unauthorised debit by the bank to the account of petitioner. that question could be decided from the admitted or undisputed material on record.8.2 the assumption that disputed questions of fact should not be decided in a writ proceeding is not correct. only if complex questions of fact requiring oral evidence arise for consideration, this court may decline to decide such questions in a writ petition. but, the mere fact that decision on a question of fact will be required to dispose of a writ petition is not a ground to hold that a writ petition is not maintainable. the supreme court in smt, gunwant kaur and others v municipal committee, bhatinda and others , held thus:'. . . . .the high court is not deprived of its jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. in a petition under article 226, the high court has jurisdiction to try issues both of fact 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 complex nature, which may for their determination require oral evidence to be taken, and on that account the high court is of the view that the dispute may not appropriately be tried in a writ petition, the high court may decline to try a petition'.8.3 in babubhai muljibhai patel v nandlal khodidas barot and others, the supreme court again held:'. . . . the object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. power has consequently been vested in the high courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the high court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. it is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. a writ petition under article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporated the procedure of a suit into the proceedings of a petition under article 226. the high court is not deprived of its jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. in a petition under article 226 the high court has jurisdiction to try issues both of fact and law. exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. when the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the high court is of the view that the dispute should not appropriately be tried in a writ petition, the high court may decline to try a petition (see smt. gunwant kaur's case, supra.) if, however, on consideration of the nature of the controversy, the high court decides, is in the present case, that it should go into a disputed question of fact and the discretion exercised by the high court appears to be sound and in conformity with judicial principles, this court would not interfere in appeal with the order made by the high court in this respondent'.8.4 there are no complex questions of fact in this petition. the only questions of fact that arise for consideration are: (a) whether the bank paid rs. 7,80,487/- to petitioner on 27-10-1987 in cash and whether she or fourth respondent remitted the amount in cash for purchasing a demand draft for rs. 6,80,487/- in favour of fifth respondent and for issue of two special fixed deposits for rs. 50,000/- each in favour of respondents 6 and 7 and respondents 6 and 8; and (b) whether there is an unauthorised debit of rs. 7,80,487/- to petitioner's account no. p. 12. both these questions can be decided from the admitted and undisputed facts and the petition does not involve any complex questions. hence, the first objection regarding maintainability is liable to be rejected.re: preliminary objection (b)9. the bank contends that the question whether the debit of rs, 7,80,487/- to petitioner's account by the bank is a matter relating to banking and involved a disputed question of fact relating to transactions between a banker and customer and therefore a civil suit, and not a writ petition, is the appropriate remedy. i was also initially persuaded by this contention. but the matter is now covered by the decision of thesupreme court in m/s. hyderabad commercials v indian bank and others. the supreme court held that nationalised bank, is an instrumentality of the state who should function honestly to serve its customers and if it unauthorisedly transfers a huge amount from the account of customer, it is not necessary for the customer to file suit for recovery and the bank could be directed to recredit the amount to the account of the customer in a writ proceedings. in view of the said decision, the second contention is liable to be rejected.re: preliminary objection (c)10. the next contention urged by the respondents is that the petitioner herein had filed a petition under order xxxiii, rules 1 and 2 of code of civil procedure in miscellaneous case no. 33 of 1990, on the file of civil judge, koppal, seeking leave to sue the respondents 1, 4 and 5 and others for recovery of the amount which is the subject-matter of this writ petition and that petition was dismissed for non-prosecution on 25-7-1992 and the civil revision petition filed by the petitioner against the said order in c.r.p. no. 4492 of 1992 was disposed of on 7-12-1994 reserving liberty to petitioner to file a fresh application and therefore this writ petition should not be entertained. but there is no adjudication of the dispute or the issue which arises in this writ petition in any civil suit. the miscellaneous petition has been rejected at the threshold on the ground of non-prosecution, the cause of action for the writ petition in the arbitrariness, and highhandedness of the bank in raising a debit. mere filing of a miscellaneous petition and/or rejection thereof will not come in the way of petitioner filing of this writ petition. further, this writ petition was filed on 9-12-1991 during the pendency of the miscellaneous petition and not after the dismissal of the miscellaneous petition. it is possible that in view of the pendency of this petition the miscellaneous petition was not pursued.10.1 the respondents contend that the petitioner has not referred to the filing of miscellaneous petition or its dismissal, in the writ petition and therefore this writ petition should be dismissed for suppression of a material fact. firstly, the miscellaneous petition under order xxxiii, rules 1 and 2, civil procedure code cannot be equated to an original suit for this purpose. if a suit had been filed on the same cause of action and it had been dismissed and the petitioner had suppressed that fact, it was possible for the bank to complain of suppression. but, what was rejected was an application filed by the petitioner seeking permission to sue the respondents herein and others, as an indigent persons. the dismissal of said petition for non-prosecution is not a material for deciding this writ petition. in fact the subject-matter of the miscellaneous petition is not the subject-matter of this writ petition. further the miscellaneous petition was dismissed long after filing of this writ petition. hence, the third objection regarding maintainability is rejected.re: preliminary objection (d)10.2 the respondents contend that the unauthorised debit complained of took place on 27-10-1987 and the writ petition was filed on9-12-1991, more than three years later, and a suit would have been dismissed if it had been filed on 9-12-1991. therefore, the petition should be dismissed as not maintainable. alternatively it is submitted that the delay of more than three years is by itself a sufficient ground to reject the writ petition on the ground of delay and laches.10.3 the amount was credited to the account of the petitioner with the bank. it is a deposit with the bank. in regard to such deposits, the limitation for filing a suit for recovery is governed by article is 22, and the period of limitation is three years from the date when the depositor makes the demand for payment and not three years from the date of unauthorised debit. in fact petitioners contends that she was not aware of the unauthorised debit. therefore, the limitation did not start to run on 27-10-1987. it is not the case of the bank that a demand for payment was made by the petitioner more than three years prior to the filing of the writ petition. therefore, the contention that if a suit had been filed on 9-12-1991 for recovery of the amount, it would have been barred by limitation, is not tenable. further, a writ petition is not a suit and the provisions of limitation act are inapplicable.10.4 the relationship between the third respondent and the petitioner is that of a banker and customer. as observed by the supreme court in uco bank v hem chandra sarkar, a banker does not in practice set up statute of limitation against its customers.10.5 in regard to the contention of delay and laches, the bank relied on the decision of supreme court in m/s. tilakchand motichand and others v h.b. munshi, commissioner of sales tax, bombay and another , to contend that the petition should be dismissed on the ground of delay and laches. that decision does not support the case of the bank. the supreme court held as follows on the question of delay and laches in filing writ petitions:'8. the english and american practice has been outlined in halsbury's laws of england and corpus juris secundum. it has been mentioned by my brethren in their opinions and i need not traverse the same ground again except to say this that courts of common law in england were bound by the law of limitation but not the courts of chancery. even so the chancery courts insisted on expedition. it is trite learning to refer to the maxim 'delay defeats equity' or the latin of it that the courts help those who are vigilant and do not slumber over their rights. the courts of chancery, therefore, frequently applied to suits in enquiry the analogy of the law of limitation applicable to actions at law and equally frequently put a special limitation of their own if they thought that the suit was unduly delayed. this was independently of the analogy of law relating to limitation. the same practice has been followed in the united states.9. in india we have the limitation act which prescribes different periods of limitation for suits, petitions or applications. there are also residuary articles which prescribe limitation in those cases where no express period is provided. if it were a matter of a suit or application, either an appropriate article or the residuary article would have applied. but a petition under article 32 is not a suit and is also not a petition or an application to which the limitation act applied. to put curbs in the way of enforcement of fundamental rights through legislative action might well be questioned under article 13(2). the reason is also quite clear. if a short period of limitation were prescribed the fundamental right might well be frustrated. prescribing two long period might enable stale claims to be made to the detriment of other rights which might emerge.10. if then there is no period prescribed what is the standard for this court to follow? i should say that utmost expedition is the sine qua non for such claims. the party aggrieved must move the court at the earliest possible time and explain satisfactorily all semblance of delay. i am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. in england a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. in india i will only say that each case will have to be considered on its own facts. where there is appearance of avoidable delay and this delay affects the merits of the claim, this court will consider it and in proper case hold the party disentitled to invoke the extraordinary jurisdiction'.10.6 it would thus be seen that the decision instead of helping the bank, helps the case of petitioner. it is clear that a writ petition may be entertained even after lapse of a time and condoning such delay would depend the question as what is the breach alleged, what is the remedy claimed and how the delay arose. the matter is one of discretion. the question whether such discretion should be exercised in this case in favour of petitioner will however has to be considered. in fact it is examined in detail below and held in favour of the petitioner. hence, the fourth objection to maintainability is also rejected.11. let me now consider the matter on merits. several admissions and statements made by the bank may have to be noticed.11.1 the facts as stated by the vigilance department of the bank (h.o.) in its reply dated 23-1-1988 (annexure-j) to the petitioner's complaint dated 6-1-1988 is extracted below:'smt. annapurnavva is maintaining a savings bank account with our kinnal branch. on the 27th october, 1987 she had credited the proceeds of a cheque for rs. 8,81,488-76 ps. to her account. she had withdrawn the entire amount on the same day by means to two withdrawal slips for ks. 7,80,487/- and rs, 1,01,001/- respectively by properly discharging the withdrawalforms on the face as also on the reverse. the withdrawal form for rs. 7,80,487/- in addition to the account holder is also discharged by one shri n.b. kattikari, an advocate of the depositor who received the amount on behalf of the depositor/complainant.since the branch was not having adequate cash, the advocate had taken a demand draft for rs. 6,80,487/- payable at koppai, favouring shri veeranna gadad, apart from a special term deposit receipt for rs. 1.00 lac. the entire transactions took place in the presence of the depositor and two respectable witnesses maintaining accounts with our branch, evidencing the transaction and the payment of the amount to the advocate as desired by the depositor. the demand draft was encashed on the same day i.e., 27th october, 1987 at our koppai branch by the payee against proper identification. we have been advised that there was no protest against the transaction either at the time of withdrawal or immediately thereafter by the complainant. we find that the entire transaction is prima facie in order'.(emphasis supplied)11.2 in its statement of objections dated 8-9-1993, filed by respondents 1 to 3, the bank has stated as follows:'it is submitted that the petitioner withdrew rs. 7,80,487/ - in cash on 27-8-1987 from her savings bank account no. 1512 by means of a withdrawal slip. the endorsement on the reverse of the withdrawal slip was witnessed by one shankarappa s. borathi, a commission agent of koppai and venkobacharya, a teacher of kinnal. the withdrawal slip was signed by the petitioner on both the sides. the amount was received by the petitioner's advocate n.b. kattikai......on 26-10-1987 a land compensation cheque no. 0383341 dated 15-10-1987 for rs. 8,81,488-76 drawn on koppai branch was sent for collection which was realised on the same day and credited to the account on the same day. at the specific request of the depositor a separate account was opened on the same day with an initial deposit of rs. 5/- and then a credit of rs. 1,01,001/- was afforded to the account by transfer from her savings bank account no. p. 12 on 27-10- 1987. this account was subsequently transferred to the koppai branch on 30-10-1987 at the request of the depositor. at no point of time the branch manager, kinnal had forced/induced the depositor to open the new account. it is not correct to say that the branch manager, kinnal, wanted to open the new account styled as 'annapoornamma'. it is evident from the pass book that the new account no. 1512 is opened as smt. annapoornavva only, that too at the specific request of the depositor as she wanted to keep a separate deposit of rs. 1,01,001/-as regards the averments in paragraph 5, it is true that proceeds of compensation were deposited into the petitioner'saccount no. s.b. p. 12 on 27-10-1987 and the depositor had withdrawn rs. 7,80,487/- on 27-10-1987 by means of the withdrawal slip. the endorsement on the reverse were witnessed by shankarappa s. borathi (commission agent, koppal) and venkobacharya, teacher at kinnal. the withdrawal is signed by the depositor on both the sides and also bears the signature of recipient of the amount, n.b. kattikai, her advocate.as regards the averments in paragraph 7, it is true that the withdrawal form is not a negotiable instrument. these respondents submit that annexure-g was not negotiated as alleged by the petitioner. it is clear from the endorsement of the branch manager that the withdrawal was passed for payment in cash. on the reverse of the withdrawal slip there is a notation of two amounts viz., rs. 6,80,487/- for issue of demand draft and rs. 1,00,000/- for issuance of special term deposit receipt made at the cash counter. thereafter the cask withdrawn by way of the aforesaid withdrawal form was credited back at cash counter for taking the draft for rs. 6,80,487/- and for issuance of the special term deposit receipt of rs. 1,00,000/-. it is submitted that there is no irregularity committed by respondent 3.as regards the averments in paragraph 11, as already submitted to above, the petitioner (on both sides) payable to self or bearer was paid to bearer of the withdrawal n.b. kattikai, advocate, who had obtained a demand draft for rs. 6,80,487/-drawn on koppal and an amount of rs. 1,00,000/- and was credited on amount of rs. 1,00,000/- for the purpose of issuing special term deposit receipt and while furnishing this information to the petitioner the second respondent vide his letter no. rmii/gr.ii/13222, dated 16-12-1987, by oversight the account number was mentioned as p. 1517 instead of no. p. 12, as s.b. account no. 1517 belongs to different depositor and the same was advised to the petitioner vide letter no. rmh. gr. ii/2142, dated 11-2-1988. it is therefore not true that the second respondent had given wrong information.the withdrawal for rs. 7,80,487/- duly signed by the petitioner payable to self or bearer was paid to the bearer n.b. kattikai, petitioner's advocate, at her request and necessary, acknowledgement is obtained and is witnessed by shankarappa borathi and venkobacharya. the said advocate took a draft for rs. 6,80,487/- in favour of veeranna b. gadad and also deposited rs. 1,00,000/- towards issue of special term deposit receipt in the name of a relative of veeranna b. gadad.as the withdrawal slip is payable to self or bearer, the amount of rs. 7,80,487 j- was duly paid in cash to n.b. kattikai and the same was credited by him at the cash counter for issuing demand draft for rs. 6,80,487/- and special term deposit for rs. 1,00,000/-. there is no unauthorised transfer of rs. 7,80,487/-.the withdrawal slip is used for the cash transaction only as can be noticed from the endorsement of the branch manager on the withdrawal slip and the withdrawal amount is duly paid to the bearer of the instrument, her advocate n.b. kattikai, as per the terms of withdrawal slip which states pay self or bearer'.(emphasis supplied)the correctness of the statements above are affirmed by the branch manager (t.s. pattar) of the kinnal branch at the relevant point of time, by verifying affidavit.12. thus, the specific case of the bank in the statement of objections is that the petitioner credited the cheque for rs. 8,81,488.76 in her s.b. account no. p. 12; on 27-10-1987. she withdrew a sum of rs. 7,80,487/-in cash from the bank by means of a withdrawal slip on 27-10-1987 and on her directions the said cash of rs. 7,80,487/- was delivered to her advocate (the 4th respondent) as the withdrawal slip was for payment to self or bearer; and thereafter the said amount in cash was credited at the cash counter of the bank by the 4th respondent for the purpose of purchasing a d.d. for rs. 6,80,487/- in favour of 5th respondent and for creating two special term deposits of rs. 50,000/- each in favour of respondents 6-7 and respondents 6-8. respondents 1 to 3 have produced the copies of application given by respondent 4 for purchasing the demand draft and for making the two term deposits along with a memo dated 18-2-1997. they show that the said applications were signed by 4th respondent and not petitioner, and also show that cash has been tendered by 4th respondent for purchasing the demand draft and for making the term deposits.13. but the bank in its letter dated 23-11-1988 (annexure-j) had admitted that there was no cash and that cash was not paid. the petitioner has also all along contended that no cash was paid to her at all on 27-10-1987 and that the demand draft was not purchased by her nor was the term deposits made by her. hence this court issued the following direction to the bank on 5-12-1994:'respondents (1 to 3) are directed to produce the records and make a statement on oath whether kinnal branch of the bank had cash reserves of rs. 7,80,487/- on 27-10-1987 and the same was paid in cash to the petitioner against the withdrawal slip and if such cash was available, whether it was obtained on transfer from any other bank and when'.14. in compliance with the said direction, the bank filed an affidavit on 19-12-1994 of t.s. pattar who was working as the branch manager of the kinnal branch during october 1987. in the said affidavit, he stated thus:'1. i am presently working as the deputy manager, afzalpur. i was on deputation from koppal branch as the branch manager of kinnal branch of state bank of hyderabad during october 1987. i am therefore aware of the full facts in the above case. hence i swear to this affidavit on behalf of the respondents.2. on 27-10-1987, i was present in the bank when the petitioner and her advocate n.b. kattikai came to the bank and when the withdrawal slip at annexure-g to the writ petition was encashed. as the withdrawal slip was for a large sum and there was not enough cash in the branch, i offered to the petitioner to get the cash from koppal branch immediately and honour the withdrawal slip. koppal is just 11 k.m. away from kinnal and cash could have been brought without loss of much time. the petitioner, however, insisted that the bank follow the instructions of n.b. kattikai, the bearer of the withdrawal slip. the said n.b. kattikai informed the bank that it would not be necessary to bring the cash from koppal. on the request of the bearer of the withdrawal slip, a demand draft for rs. 6,80,487/- and special term deposit receipt for rs. 1,00,000/- were issued in lieu of cash payment.3. i produce herewith true xerox copies of cash balance register and bank cash scroll of the relevant date viz., 27-10-1987 which are marked as 'r-l' and 'r-2' respectively'.alternatively, if there was no cash, how was rs. 7,80,487/- paid in cash in respect of the withdrawal slip? why did the cash scroll (annexure-r 2) show rs. 7,80,487/- was paid to 'p. 12', in cash? if rs. 6,80,487/-, rs. 50,0007- and rs. 50,000/- (for issue of d.d. and term deposit receipts) were not received in cash, why were they shown as cash receipts in the cash scroll? why was the cash payment made to 4th respondent when petitioner was present personally? where was the need for 4th respondent to receive cash and then immediately remit it back for purchase of d.d. and for making two deposits when petitioner could have done it? if there was an understanding between petitioner and fifth respondent, fifth respondent would have received a cheque from petitioner. the facts and circumstances disclose an unsuccessful attempt on the part of the bank to show that rs. 7,80,487/- was paid to petitioner in cash. there is neither credence nor consistence in the stand of the bank.16. it is well-settled that a 'withdrawal slip' is not a cheque and is not negotiable or transferable. in para 9.7 of its statement of objections, the bank admits this position: '. . .it is true that the withdrawal form is not a negotiable instrument'. in the affidavit, dated 19-12-1994 filed by the bank manager in compliance with the direction of this court dated 5-12-1994, it is stated: 'the petitioner however insisted that the bank should follow the instructions of n.b. kattikai, the bearer of the withdrawal slip. .... on the request of the bearer (fourth respondent) of the withdrawal slip, a demand draft for rs. 6,80,487/- and special term deposit receipts for rs. 1,00,000/- were issued in lieu of cash payment'. the bank has not explained how it could act on the instructions of the 'bearer' of the withdrawal slip when it admits that a withdrawal slip is not negotiable and why did it chose to pay the amount to the 'bearer1, when according to the bank, the petitioner was personally present throughout.17. the question whether a high court, in exercise of the jurisdiction under article 226 of the constitution, can direct a bank to re-credit an unauthorised debit to the account of the customer was considered by the supreme court in mis. hyderabad commercials case, supra. in that case, the bank transferred a huge amount (about rs. 13.0 lakhs) from the account of one of its customers to another unauthorisedly. it agreed to rectify the mistake by re crediting amount. but subsequently it sought to justify the transfer by alleging that the amount was transferred on oral instructions of the customer. the high court dismissed the writ petition filed by the petition on the ground that the case involved disputed questions of facts. the supreme court reversed the decision of the high court. the supreme court held:'it is difficult to believe that a sum of rs. 12.95 lacs could be transferred to the account of another person on oral instructions, without taking care to obtain authority or instruction in writing for the same. the plea of oral instruction, justifying transfer of such large amount is an afterthought which does not inspire any credence. the bank's conduct is reprehensible. we are constrained to observe that such functioning of a nationalised bank is detrimental to public interest and if it follows the practice of transferring money of its customers to some other persons account on oral authority, people will lose faith in the credibility of bank.since the basic facts regarding the unauthorised transfer of the disputed amount from the appellant's account as well as the bank's liability was admitted, there was no justification for the high court to direct the appellant to file a suit on ground of disputed question of fact. the respondent-bank is an instrumentality of the state and it must function honestly to serve its customers.we, accordingly, allow the appeal, set aside the order of the high court and direct the indian bank to recredit the disputed amount of rs. 12.95 lacs to the appellant's account within three weeks from today along with interest if any due on the aforesaid amount. as regard the dispute between the appellant and respondents 6 and 7 is concerned, we express no opinion on the same'.18. the bank is an instrumentality of the state. it is admitted that rs. 8,81,288-76 was credited to petitioner's account no. p. 12. it contended and all along maintained that petitioner drew a sum of rs. 7,80,487/- in cash under withdrawal from dated 27-10-1987 (annexure-g) which was paid to the 4th respondent and the 4th respondent paid cash of rs. 7,80,487/- for purchasing a draft for rs. 6,80,487/- in favour of fifth respondent and rs. 1,00,000/- for obtaining two term deposits receipts for rs. 50,000/- each in favour of respondents 6 and 7 and respondents 6 and 8. that is the stand in its reply letters and its statement of objections filed in this writ petition. only when it was directed to file an affidavit in regard to cash balance available on 27-10-1987, it changed its stand and conceded that it did not pay cash of rs. 7,80,487/- in the bank. but it belatedly put forth a new case that as there was not enough cash, the branch manager offered to petitioner to get cash from koppal branch and honour the withdrawal form; that the petitioner stated that the bank should follow the instructions of fourth respondent; that fourth respondent stated that it was not necessary to bring the cash from koppal and on the request of the 'bearer' of the withdrawal slip, a demand draft for rs. 6,80,487/- and special term deposits-receipts for rs. 1,00,000/- were issued in lieu of cash payment.19. it is now not in dispute that the following events took place on 27-10-198-7 (confirmed by annexure-a to g and annexures-r1 and r2):(i) cheque for rs. 8,81,488-70 was deposited with the third respondent-bank, by petitioner for collection.(ii) the cheque was sent for collection to the koppal branch which was just 11 k.m. away and realised on the same day and credited to petitioner's account no. p. 12.(iii) the petitioner is made to open a new account and asked to sign papers.(iv) a sum of rs. 1,01,001/- is transferred to petitioner's new account from the old account.(v) a withdrawal form is taken from petitioner for withdrawal rs. 7,80,487/- in cash from petitioner's old account.(vi) the bank's records (cash scroll, cash balance book and withdrawal form) are made to show that rs. 7,80,487/- was paid to cash when no cash is paid.(vii) it is shown that fourth respondent having received rs. 7,80,487/- from the bank on behalf of petitioner, remitted it back to the bank in cash for purchase of a d.d. and issue of two term deposits, even though no cash payment was received by the bank for issue of the d.d. and term deposits.(viii) according to the bank even though the petitioner was, present throughout all the transactions are stated to have been done by fourth respondent.(ix) the fifth respondent who is the recipient of the amount (d.d. and term deposits) is present throughout with venkobachar upadhyaya and shankarappa s. borate who sign as witnesses for the alleged cash withdrawal of rs. 7,80,487/- by petitioner.what or where was the need for these acts? the same result would have been achieved by the simple act of petitioner issuing a cheque in favour of fifth respondent, for rs. 7,80,487/- instead of following an elaborate charade.20. the facts and circumstances and the conflicting stands of the bank, give credence to petitioner's case that she did not authorise withdrawal, nor directed payment of rs. 7,80,487/- to fourth respondent and she was unaware of the withdrawal of rs. 7,80,487/- from her account by using the said withdrawal form dated 27-10-1987 (annexure-g). it is therefore not necessary to examine or decide the further question raised by the petitioner that there was a conspiracy among respondents 4 and 5 and the bank manager to deceive her of rs. 7,80,487/-. this writ petition can be decided by ascertaining whether rs. 7,80,487/- was paid in cash as pleaded by the bank. if the allegation of the bank that it had paid rs. 7,80,487/- in cash to fourth respondent as per petitioner's instructions is false, obviously the debit of rs. 7,80,487/- to petitioner's account no. p. 12 as cash paid to her is an erroneous and unauthorised entry and it cannot be sustained. consequently, the bank becomes liable to reverse the entry debiting rs. 7,80,487/- to petitioner's account.21. it is true that the bank has not gained anything and rs. 7,81,487/- has been paid to respondents 5 and 8. but the question is not whether bank has made any gain. the question is whether the bank acted with almost good faith expected to it, while dealing with a customer. the question is, when it contends that it paid rs. 7,81,487/- in cash in pursuance of a withdrawal form signed by the customer and fails to prove such cash payment and is forced to admit that it did not have the required cash that day, can it be permitted to wriggle out of the liability by stating that it issued a demand draft for rs. 6.81,487/- and two term receipts for rs. 50,000/- each at the instance of fourth respondent. on the facts and circumstances, even if there is some delay on the part of the petitioner in filing the writ petition, the delay is not of such extent as to deny the petitioner the relief to which she is entitled. but, having regard to the delay and having regard to the fact that the relief is being granted in exercise of the power under article 226, she will not be entitled to any interest on the amount or costs.22. it is made clear that this order will not come in the way of the bank taking steps to recover the amount unauthorisedly paid from the beneficiary or persons responsible.23. in the result, this petition is allowed and respondents 1 to 3 are directed to re-credit a sum of rs. 7,81,487/- to the petitioner's account. as it is stated that the account was closed subsequent to filing of the petition, the bank shall pay the said amount to petitioner's legal representatives within two months from the date of receipt of the certified copy of this order. no costs.

Judgment:
ORDER

R.V. Raveendran, J.

1. The petitioner is a customer of State Bank of Hyderabad at its Kinnal Branch. The Head Office, the Regional Office at Gulbarga, and the Branch at Kinnal of the said Bank are impleaded as respondents 1, 2 and 3 respectively. The petitioner has filed this petition seeking a direction to respondents 1 to 3 to recredit a sum of Rs. 7,80,487/- to petitioner's account with the Kinnal Branch of the Bank.

2. The petitioner's case is as follows:

2.1 The petitioner was the owner of land bearing Sy. No. 141, Budishettinal Village. The said land was acquired for construction of a Tank. She was illiterate and old. She engaged the services of the fourth respondent, who is an Advocate practising at Badami to conduct L.A.C. No. 26 of 1984 and Ex. No. 114 of 1987 rising therefrom, on the file of the Civil Judge, Koppal. A sum of Rs. 8,81,488-76 became due to her on account of acquisition of her land. On 15-10-1987, fourth respondent asked her to accompany him to the Office of the Assistant Commissioner and Land Acquisition Officer, Koppal, for collecting the cheque. She went to the Office of the Assistant Commissioner along with fourth respondent and on his instructions, signed some papers. Thereafter, her Counsel (4th respondent) stated that the cheque should be credited to her Bank account and took the cheque and petitioner's pass book relating to her Account No. P. 12 with the Kinnal Branch of State Bank of Hyderabad (third respondent).

2.2 The said cheque was presented on 27-10-1987 by the fourth respondent with a challan, for collection and credit to the petitioner's Savings Bank Account No. P. 12. The cheque amount of Rs. 8,81,488-76 was realised and credited to petitioner's Account No. P. 12 on the same day (27-10-1987) (vide Annexure-C which is the copy of the pass book for the relevant date).

2.3 On 27-10-1987, fourth respondent came to the house of the petitioner and asked her to accompany him to the third respondent-Bank to collect the cheque amount realised. When she accompanied fourth respondent to the third respondent-Bank, she found that the fifth respondent and two others (Venkobachar, Upadhyaya and Shankarappa S. Borate) were present at the Bank. The Manager of the Bank (T.S. Pattar) asked her to wait for some time. She found that fourth respondent was discussing something secretly with those persons. After some time, the Manager of third respondent told her that it will be better to have a new account and pass book in the name of 'Annapoornamma' in view of the fact that petitioner had signed her name as 'Annapoornamma', though her name was mentioned as 'Annapoornavva' in the old account and in the cheque for Rs. 8,81,488-76 issued to her. The said suggestion was also recommended by fourth and fifth respondents, Venkobachar Upadhyaya and Shankarappa Borate. On their advice, she opened a new Account Bearing No. P. 1512, on 27-10-1987, even though she was al-ready having Account No. P. 12 in the said Branch. A copy of her application for opening new account is at Annexure-D.

2.4 The fourth respondent and others asked her to sign two or three papers and the Manager of third respondent asked Venkobachar Upadhyaya and Shankarappa Borate to sign the said papers. Thereafter the Manager of third respondent prepared a new pass book relating to Account No. P. 1512 with an opening deposit of Us. 5/- and transferred Rs. 1,01,001/- to the new account from out of the old Account No. P. 12. They (the fourth respondent, Manager of third respondent and others) also informed her that the balance of the compensation amount was in deposit in her old account. The Manager of third respondent gave her the new pass book (relating to Account No. 1512) and fourth respondent kept the pass book relating to the old Account (Account No. P. 12). Petitioner trusted them and went home.

2.5 According to her, fourth and fifth respondents and the said two others colluded with second and third respondents and had obtained the signature of the petitioner on withdrawal slip relating to old Account P. 12 for a sum of Rs. 7,80,487/- making her believe that the amount was safe and secure in the old Account No. P. 12. But, the fourth respondent and others withdrew Rs. 780,487/- and pocketed the amount. The copy of the withdrawal form for Rs. 7,80,487/- made use of by fourth respondent and others in Annexure-G.

2.6 The petitioner subsequently learnt that the fourth respondent obtained from third respondent, a Demand Draft drawn in favour of the fifth respondent for Rs. 6,80,487/-, drawn on the Koppal Branch of first respondent-Bank and credited a sum of Rs. 1,00,000/- for the purpose of obtaining two Special Term Deposit receipts of Rs. 50,000/- each, one in the name of sixth and seventh respondents and another in the name of sixth and eighth respondents- Sixth respondent is the wife and respondents 7 and 8 are the sons of fifth respondent.

2.7 The fifth respondent encashed the Demand Draft dated 27-10-1987 for Rs. 6,80,487/- issued by third respondent on the same day at the Bank's Koppal Branch. The two Term Deposits of Rs. 50,000/- each aggregating to Rs. 1,00,000/-, was encashed by sixth, seventh and eighth respondents on 20-11-1987.

2.8 Petitioner was under the impression that the entire compensation amount was in her account. She came to know about the fraud played on her in regard to Rs. 7,80,487/- and the facts stated in paras 2.5 to 2.7 above only when some relatives asked her about the compensation amount and petitioner showed them the new pass book relating to Account No. P. 1512 and on account of suspicion, she and her sons went to third respondent and made enquiries with the Manager (T.S. Pattar) and he gave some information. Having come to know that fourth respondent and others had cheated her to an extent of Rs. 7,80,487/-, she lodged a complaint to the Koppal Rural Police on 23-11-1987. She claims that it was not received initially and after a representation to the Superintendent of Police, Raichur, the Koppal Police received the complaint on 9-12-1987 and registered as Crime No. 99 of 1987 against fourth respon-dent only, even though the complaint was made against others also. Petitioner claims to have complained to the Bank about the fraud played on her and claimed the amount. In reply, second respondent sent a letter dated 16-12-1987 (Annexure-H), relevant portion of which is extracted below:--

'Withdrawal of Rs. 7,80,487/- from your Savings Bank Account No. P. 1517 on the 27th October, 1987.

-- do --

Please refer to your letter Number Nil dated Nil.

The amount of Rs. 7,80,487/- was paid from your Savings Bank Account against the withdrawal form drawn as self or bearer duly signed by you and the payment was made by our Bank accordingly is in order.

Your contention that you are ignorant of the above withdrawal is not correct. This amount of Rs. 7,80,487/- is a cash transaction and the bearer Shri N.V. Kattikai, Advocate obtained a demand draft for Rs. 6,70,487/- drawn on Koppal Branch and has credited an amount of Rs. 1,00,000/- for the purpose of issuing of Special Term Deposit receipts. We learnt that you have lodged a police complaint with the Sub-Inspector, Koppal Rural Police Station and the matter is under investigation. Our Bank shall make available the necessary details during the investigation to the investigating authority against requisition by them according to the law'.

2.9 Thereafter, petitioner issued a notice dated 2-5-1988 (Annexure-J)through her Counsel demanding the following details:--

'Further my client states and request that under what circumstances Savings Bank Account No. P. 1512 was opened at your Kinnal Branch on my client's name? When she was having S.B. Account No. P. 12 in the same branch.

(ii) Under what circumstances D.D. for Rs. 6,80,487/- was drawn and Rs. 1,00,000/- special Term Deposit Receipts were taken and on whose application?

(iii) Under what circumstances Rs. 7,80,487/- were debited to my client's Account No. P. 12 when this amount was drawn from Account No. P. 1517 according to your Regional Manager, Gulbarga letter bearing No. GRII713222, dated 16-12-1987 and which was sent to my client with his knowledge and he has exercised all due diligence in drafting and dispatching this letter to my client'.

3. The petitioner claims that third respondent falsely contended that petitioner drew in cash a sum of Rs. 7,80,487/- from her account. The petitioner denies withdrawal any such amount. The third respondent in collusion with respondents 4 and 5 had unauthorisedly utilised the said amount for issuing a demand draft for Rs. 6,80,487/- in favour of respondent 5 and Rs. 1,00,000/- for creating two Term Deposits in favour of 5th respondent's children. The petitioner claims that she had not authorised or requested the third respondent-Bank to use the funds in her accountfor purchasing a Demand Draft in favour of fifth respondent for Rs. 6,80,487/-, nor had she authorised or requested the funds in her account being used for making two Term Deposits of Rs. 50,000/- each in favour of respondents 6 and 7, and respondents 6 and 8. She also contends that the withdrawal slip used by the fourth respondent for withdrawing the sum of Rs. 7,80,487/- from her account was not negotiable and could be used only for cash transactions and no cash was paid to her. It is also contended that respondent-Bank being an instrumentality of the State should function fairly, honestly and reasonably in serving its customers and cannot arbitrarily and unreasonably debit Rs. 7,80,487/- to her account without there being any authorisation for the same. The petitioner has, therefore, filed this petition and sought a direction to respondents 1 to 3 to recredit the sum of Rs. 7,80,487/- to her account.

4. The Bank has filed a Statement of Objections contending that a cheque for Rs. 8,81,488-76 drawn in favour of the petitioner, by the Assistant Commissioner, was credited to the petitioner's Account No. P. 12 with its Kinnal Branch on 26-10-1987; that it was sent for collection and was realised on the same day and credited to petitioner's Account Bearing No. P. 12; that on 27-10-1987 (wrongly typed as 27-8-1987) petitioner visited the Kinnal Branch of the Bank with her Advocate (4th respondent) and opened a new S.B. Account (A/c No. 1512); that the petitioner requested that a sum Rs. 1,01,001/- he transferred from her Account No. P. 12 to her new Account No. P. 1512 and accordingly the transfer was made, the petitioner gave a withdrawal slip for drawing Rs. 7,80,487/- in cash from her Account on 27-10-1987, payable to self or bearer, and the sum of Rs. 7,80,487/- was paid in cash to the bearer, namely the fourth respondent; that thereafter the cash so withdrawn was credited back by the fourth respondent at the cash counter for issue of a Demand Draft for Rs. 6,80,487/- in favour of fifth respondent and Rs. 1,00,000/- was making two Special Term Deposits of Rs. 50,000/-each in favour of respondents 6 and 7 and respondents 6 and 8; and that therefore there is no irregularity in the transaction and it is not liable to recredit the sum of Rs. 7,80,4877- to petitioner's account, as claimed by the petitioner.

5. The petitioner filed a rejoinder dated 18-11-1994 contending that the Bank's claim that cash of Rs. 7,80,487/- was paid to the bearer of withdrawal slip was not true; that the Vigilance Section of the Bank in its reply dated 28-1-1988 (Annexure-J) to petitioner's complaint, had stated that the Kinnal Branch was not having adequate cash for paying the amount of the withdrawal slip and therefore the fourth respondent had taken a D.D. for Rs. 6,80,487/- and two Term Deposits for Rs. 50,000/-. In view of this inconsistency in the stand of the Bank about manner of payment, this Court on 5-12-1994 directed the Bank to state whether there was adequate cash in the Branch on 27-10-1987 to pay Rs. 7,80,487/-. The Bank filed an affidavit on 19-12-1994 admitting that there was no cash on 27-10-1987 to pay Rs. 7,80,487/-.

6. On 2-1-1995, the Bank filed I.A. No. I for impleading respondents 4 to 8 which was allowed. The petitioner had filed this petition onlyagainst the Bank. The fourth respondent filed a statement alleging that there was a dispute between petitioner and fifth respondent regarding the acquired land; that the land acquisition case was entrusted to him both by petitioner and fifth respondent; that petitioner along with fifth respondent and two others (Venkobachar Upadhyaya and Shankarappa Boratti) had requested him to accompany them to the Bank; that the petitioner had informed the Bank Manager that as per settlement between her and fifth respondent, she was to get only Rs. 1,01,001/- from the compensation amount and the balance had to be paid to the real owner, that is, fifth respondent; that thereafter at the suggestion of Bank Manager a new account was opened in the name of 'Annapoor-namma' and Rs. 1,01,001/- was transferred to petitioner's new account; that petitioner signed the withdrawal slip for Rs. 7,80,487/-; that he also signed the withdrawal slip as the Manager wanted him to sign it and that the demand draft in favour of fifth respondent and Special Fixed Deposits in favour of fifth respondent's children were issued by using the said sum of Rs. 7,80,487/- at the request of petitioner and fifth respondent, in view of their settlement. The fifth respondent has also filed objections to the same effect. Respondents 6 to 8 have contended that they had no transaction with petitioner and the Deposit receipts (two Deposits for Rs. 50,000/- each) were taken in their name by fifth respondent.

7. Before considering the matter on merits, the following preliminary objections regarding maintainability raised by respondents should be considered:

(a) The matter involves several disputed questions of fact and therefore writ petition is not the appropriate remedy;

(b) The dispute between a Bank and customer in regard to an unauthorised debit is a civil dispute and therefore writ petition is not maintainable.

(c) The petitioner had filed a petition under Order 33, Rules 1 and 2 seeking leave to sue the respondents for recovery of the amount which is the subject-matter of this writ petition in Miscellaneous Petition No. 33 of 1990 and that miscellaneous petition was dismissed and as that fact was not disclosed in the writ petition, the writ petition should not be entertained;

(d) The claim against the Bank was barred by limitation and therefore the writ petition is not maintainable.

Re: Preliminary objection (a)

8. The respondents have contended that there was a dispute between the petitioner and the fifth respondent in regard to title to the acquired land as the fifth respondent contended that the petitioner was holding the land as his benamidar; and when the compensation amount was received, there was a panchayat wherein it was agreed that the petitioner should receive a sum of Rs. 1.01 lakhs in addition to a house (which belonged to the family of fifth respondent and which was agreed to be transferred by the fifth respondent to petitioner); and in view of itthe petitioner had agreed that the balance of the compensation amount should be paid to the fifth respondent; and in pursuance of said agreement, the sum of Rs. 7,81,487/- was paid to fifth respondent and his children as required by petitioner and fifth respondent. It is contended that the question whether the petitioner was the owner of the property or whether she was only a benamidar, whether there was any panchayat under which the petitioner agreed to receive a sum of Rs. 1.01 lakhs out of Rs. 8,81,288-76 and pay the balance to the fifth respondent and whether the Bank had acted on the instructions of petitioner and fifth respondent or whether it had acted unauthorizedly without any authority or instructions from the petitioner are alt complex questions of fact, which require oral and documentary evidence and which cannot be gone into in a writ proceedings and therefore the writ petition should not be entertained.

8.1 The petitioner has not sought any relief against the respondents 4 to 8. The relief is claimed only against the Bank. The respondents 4 to 8 were impleaded as parties at the instance of respondents 1 to 3. Therefore, there is no need to examine the questions of fact requiring oral as well as documentary evidence insofar as the claims and contentions of respondents 4 to 8. The only question that arises for consideration is whether there is an unauthorised debit by the Bank to the account of petitioner. That question could be decided from the admitted or undisputed material on record.

8.2 The assumption that disputed questions of fact should not be decided in a writ proceeding is not correct. Only if complex questions of fact requiring oral evidence arise for consideration, this Court may decline to decide such questions in a writ petition. But, the mere fact that decision on a question of fact will be required to dispose of a writ petition is not a ground to hold that a writ petition is not maintainable. The Supreme Court in Smt, Gunwant Kaur and Others v Municipal Committee, Bhatinda and Others , held thus:

'. . . . .The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact 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 complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition'.

8.3 In Babubhai Muljibhai Patel v Nandlal Khodidas Barot and Others, the Supreme Court again held:

'. . . . The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any Government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporated the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Smt. Gunwant Kaur's case, supra.) If, however, on consideration of the nature of the controversy, the High Court decides, is in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respondent'.

8.4 There are no complex questions of fact in this petition. The only questions of fact that arise for consideration are: (a) whether the Bank paid Rs. 7,80,487/- to petitioner on 27-10-1987 in cash and whether she or fourth respondent remitted the amount in cash for purchasing a Demand Draft for Rs. 6,80,487/- in favour of fifth respondent and for issue of two Special Fixed Deposits for Rs. 50,000/- each in favour of respondents 6 and 7 and respondents 6 and 8; and (b) whether there is an unauthorised debit of Rs. 7,80,487/- to petitioner's Account No. P. 12. Both these questions can be decided from the admitted and undisputed facts and the petition does not involve any complex questions. Hence, the first objection regarding maintainability is liable to be rejected.

Re: Preliminary objection (b)

9. The Bank contends that the question whether the debit of Rs, 7,80,487/- to petitioner's account by the bank is a matter relating to Banking and involved a disputed question of fact relating to transactions between a Banker and customer and therefore a civil suit, and not a writ petition, is the appropriate remedy. I was also initially persuaded by this contention. But the matter is now covered by the decision of theSupreme Court in M/s. Hyderabad Commercials v Indian Bank and Others. The Supreme Court held that Nationalised Bank, is an instrumentality of the State who should function honestly to serve its customers and if it unauthorisedly transfers a huge amount from the account of customer, it is not necessary for the customer to file suit for recovery and the bank could be directed to recredit the amount to the account of the customer in a writ proceedings. In view of the said decision, the second contention is liable to be rejected.

Re: Preliminary objection (c)

10. The next contention urged by the respondents is that the petitioner herein had filed a petition under Order XXXIII, Rules 1 and 2 of Code of Civil Procedure in Miscellaneous Case No. 33 of 1990, on the file of Civil Judge, Koppal, seeking leave to sue the respondents 1, 4 and 5 and others for recovery of the amount which is the subject-matter of this writ petition and that petition was dismissed for non-prosecution on 25-7-1992 and the Civil Revision Petition filed by the petitioner against the said order in C.R.P. No. 4492 of 1992 was disposed of on 7-12-1994 reserving liberty to petitioner to file a fresh application and therefore this writ petition should not be entertained. But there is no adjudication of the dispute or the issue which arises in this writ petition in any civil suit. The miscellaneous petition has been rejected at the threshold on the ground of non-prosecution, The cause of action for the writ petition in the arbitrariness, and highhandedness of the Bank in raising a debit. Mere filing of a miscellaneous petition and/or rejection thereof will not come in the way of petitioner filing of this writ petition. Further, this writ petition was filed on 9-12-1991 during the pendency of the miscellaneous petition and not after the dismissal of the miscellaneous petition. It is possible that in view of the pendency of this petition the miscellaneous petition was not pursued.

10.1 The respondents contend that the petitioner has not referred to the filing of miscellaneous petition or its dismissal, in the writ petition and therefore this writ petition should be dismissed for suppression of a material fact. Firstly, the miscellaneous petition under Order XXXIII, Rules 1 and 2, Civil Procedure Code cannot be equated to an original suit for this purpose. If a suit had been filed on the same cause of action and it had been dismissed and the petitioner had suppressed that fact, it was possible for the Bank to complain of suppression. But, what was rejected was an application filed by the petitioner seeking permission to sue the respondents herein and others, as an indigent persons. The dismissal of said petition for non-prosecution is not a material for deciding this writ petition. In fact the subject-matter of the miscellaneous petition is not the subject-matter of this writ petition. Further the miscellaneous petition was dismissed long after filing of this writ petition. Hence, the third objection regarding maintainability is rejected.

Re: Preliminary objection (d)

10.2 The respondents contend that the unauthorised debit complained of took place on 27-10-1987 and the writ petition was filed on9-12-1991, more than three years later, and a suit would have been dismissed if it had been filed on 9-12-1991. Therefore, the petition should be dismissed as not maintainable. Alternatively it is submitted that the delay of more than three years is by itself a sufficient ground to reject the writ petition on the ground of delay and laches.

10.3 The amount was credited to the account of the petitioner with the bank. It is a deposit with the Bank. In regard to such deposits, the limitation for filing a suit for recovery is governed by Article is 22, and the period of limitation is three years from the date when the Depositor makes the demand for payment and not three years from the date of unauthorised debit. In fact petitioners contends that she was not aware of the unauthorised debit. Therefore, the limitation did not start to run on 27-10-1987. It is not the case of the Bank that a demand for payment was made by the petitioner more than three years prior to the filing of the writ petition. Therefore, the contention that if a suit had been filed on 9-12-1991 for recovery of the amount, it would have been barred by limitation, is not tenable. Further, a writ petition is not a suit and the provisions of Limitation Act are inapplicable.

10.4 The relationship between the third respondent and the petitioner is that of a banker and customer. As observed by the Supreme Court in UCO Bank v Hem Chandra Sarkar, a banker does not in practice set up statute of limitation against its customers.

10.5 In regard to the contention of delay and laches, the bank relied on the decision of Supreme Court in M/s. Tilakchand Motichand and Others v H.B. Munshi, Commissioner of Sales Tax, Bombay and Another , to contend that the petition should be dismissed on the ground of delay and laches. That decision does not support the case of the Bank. The Supreme Court held as follows on the question of delay and laches in filing writ petitions:

'8. The English and American practice has been outlined in Halsbury's Laws of England and Corpus Juris Secundum. It has been mentioned by my brethren in their opinions and I need not traverse the same ground again except to say this that Courts of Common Law in England were bound by the Law of Limitation but not the Courts of Chancery. Even so the Chancery Courts insisted on expedition. It is trite learning to refer to the maxim 'delay defeats equity' or the latin of it that the Courts help those who are vigilant and do not slumber over their rights. The Courts of Chancery, therefore, frequently applied to suits in enquiry the analogy of the Law of Limitation applicable to actions at law and equally frequently put a special limitation of their own if they thought that the suit was unduly delayed. This was independently of the analogy of law relating to limitation. The same practice has been followed in the United States.

9. In India we have the Limitation Act which prescribes different periods of limitation for suits, petitions or applications. There are also residuary articles which prescribe limitation in those cases where no express period is provided. If it were a matter of a suit or application, either an appropriate article or the residuary article would have applied. But a petition under Article 32 is not a suit and is also not a petition or an application to which the Limitation Act applied. To put curbs in the way of enforcement of Fundamental Rights through legislative action might well be questioned under Article 13(2). The reason is also quite clear. If a short period of limitation were prescribed the Fundamental Right might well be frustrated. Prescribing two long period might enable stale claims to be made to the detriment of other rights which might emerge.

10. If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in proper case hold the party disentitled to invoke the extraordinary jurisdiction'.

10.6 It would thus be seen that the decision instead of helping the bank, helps the case of petitioner. It is clear that a writ petition may be entertained even after lapse of a time and condoning such delay would depend the question as what is the breach alleged, what is the remedy claimed and how the delay arose. The matter is one of discretion. The question whether such discretion should be exercised in this case in favour of petitioner will however has to be considered. In fact it is examined in detail below and held in favour of the petitioner. Hence, the fourth objection to maintainability is also rejected.

11. Let me now consider the matter on merits. Several admissions and statements made by the Bank may have to be noticed.

11.1 The facts as stated by the Vigilance Department of the Bank (H.O.) in its reply dated 23-1-1988 (Annexure-J) to the petitioner's complaint dated 6-1-1988 is extracted below:

'Smt. Annapurnavva is maintaining a Savings Bank account with our Kinnal Branch. On the 27th October, 1987 she had credited the proceeds of a cheque for Rs. 8,81,488-76 Ps. to her account. She had withdrawn the entire amount on the same day By means to two withdrawal slips for Ks. 7,80,487/- and Rs, 1,01,001/- respectively by properly discharging the withdrawalforms on the face as also on the reverse. The withdrawal form for Rs. 7,80,487/- in addition to the account holder is also discharged by one Shri N.B. Kattikari, an Advocate of the depositor who received the amount on behalf of the depositor/complainant.

Since the Branch was not having adequate cash, the Advocate had taken a Demand Draft for Rs. 6,80,487/- payable at Koppai, favouring Shri Veeranna Gadad, apart from a Special Term Deposit Receipt for Rs. 1.00 lac. The entire transactions took place in the presence of the depositor and two respectable witnesses maintaining accounts with our Branch, evidencing the transaction and the payment of the amount to the Advocate as desired by the depositor. The Demand Draft was encashed on the same day i.e., 27th October, 1987 at our Koppai Branch by the payee against proper identification. We have been advised that there was no protest against the transaction either at the time of withdrawal or immediately thereafter by the complainant. We find that the entire transaction is prima facie in order'.

(emphasis supplied)

11.2 In its statement of objections dated 8-9-1993, filed by respondents 1 to 3, the Bank has stated as follows:

'It is submitted that the petitioner withdrew Rs. 7,80,487/ - in cash on 27-8-1987 from her Savings Bank Account No. 1512 by means of a withdrawal slip. The endorsement on the reverse of the withdrawal slip was witnessed by one Shankarappa S. Borathi, a Commission Agent of Koppai and Venkobacharya, a teacher of Kinnal. The withdrawal slip was signed by the petitioner on both the sides. The amount was received by the petitioner's Advocate N.B. Kattikai......

On 26-10-1987 a land compensation cheque No. 0383341 dated 15-10-1987 for Rs. 8,81,488-76 drawn on Koppai Branch was sent for collection which was realised on the same day and credited to the account on the same day. At the specific request of the depositor a separate account was opened on the same day with an initial deposit of Rs. 5/- and then a credit of Rs. 1,01,001/- was afforded to the account by transfer from her Savings Bank Account No. P. 12 on 27-10- 1987. This account was subsequently transferred to the Koppai Branch on 30-10-1987 at the request of the depositor. At no point of time the Branch Manager, Kinnal had forced/induced the depositor to open the new account. It is not correct to say that the Branch Manager, Kinnal, wanted to open the new account styled as 'Annapoornamma'. It is evident from the pass book that the new Account No. 1512 is opened as Smt. Annapoornavva only, that too at the specific request of the depositor as she wanted to keep a separate deposit of Rs. 1,01,001/-

As regards the averments in paragraph 5, it is true that proceeds of compensation were deposited into the petitioner'sAccount No. S.B. P. 12 on 27-10-1987 and the depositor had withdrawn Rs. 7,80,487/- on 27-10-1987 by means of the withdrawal slip. The endorsement on the reverse were witnessed by Shankarappa S. Borathi (Commission Agent, Koppal) and Venkobacharya, teacher at Kinnal. The withdrawal is signed by the depositor on both the sides and also bears the signature of recipient of the amount, N.B. Kattikai, her Advocate.

As regards the averments in paragraph 7, it is true that the withdrawal form is not a negotiable instrument. These respondents submit that Annexure-G was not negotiated as alleged by the petitioner. It is clear from the endorsement of the Branch Manager that the withdrawal was passed for payment in cash. On the reverse of the withdrawal slip there is a notation of two amounts viz., Rs. 6,80,487/- for issue of demand draft and Rs. 1,00,000/- for issuance of Special Term Deposit Receipt made at the cash counter. Thereafter the cask withdrawn by way of the aforesaid withdrawal form was credited back at cash counter for taking the draft for Rs. 6,80,487/- and for issuance of the Special Term Deposit Receipt of Rs. 1,00,000/-. It is submitted that there is no irregularity committed by respondent 3.

As regards the averments in paragraph 11, as already submitted to above, the petitioner (on both sides) payable to self or bearer was paid to bearer of the withdrawal N.B. Kattikai, Advocate, who had obtained a demand draft for Rs. 6,80,487/-drawn on Koppal and an amount of Rs. 1,00,000/- and was credited on amount of Rs. 1,00,000/- for the purpose of issuing Special Term Deposit receipt and while furnishing this information to the petitioner the second respondent vide his letter No. RMII/Gr.II/13222, dated 16-12-1987, by oversight the account number was mentioned as P. 1517 instead of No. P. 12, as S.B. Account No. 1517 belongs to different depositor and the same was advised to the petitioner vide letter No. RMH. Gr. II/2142, dated 11-2-1988. It is therefore not true that the second respondent had given wrong information.

The withdrawal for Rs. 7,80,487/- duly signed by the petitioner payable to self or bearer was paid to the bearer N.B. Kattikai, petitioner's Advocate, at her request and necessary, acknowledgement is obtained and is witnessed by Shankarappa Borathi and Venkobacharya. The said Advocate took a draft for Rs. 6,80,487/- in favour of Veeranna B. Gadad and also deposited Rs. 1,00,000/- towards issue of Special Term Deposit Receipt in the name of a relative of Veeranna B. Gadad.

As the withdrawal slip is payable to self or bearer, the amount of Rs. 7,80,487 j- was duly paid in cash to N.B. Kattikai and the same was credited by him at the cash counter for issuing demand draft for Rs. 6,80,487/- and Special Term Deposit for Rs. 1,00,000/-. There is no unauthorised transfer of Rs. 7,80,487/-.

The withdrawal slip is used for the cash transaction only as can be noticed from the endorsement of the Branch Manager on the withdrawal slip and the withdrawal amount is duly paid to the bearer of the instrument, her Advocate N.B. Kattikai, as per the terms of withdrawal slip which states pay self or bearer'.

(emphasis supplied)

The correctness of the statements above are affirmed by the Branch Manager (T.S. Pattar) of the Kinnal Branch at the relevant point of time, by verifying affidavit.

12. Thus, the specific case of the Bank in the Statement of objections is that the petitioner credited the cheque for Rs. 8,81,488.76 in her S.B. Account No. P. 12; on 27-10-1987. She withdrew a sum of Rs. 7,80,487/-in cash from the Bank by means of a withdrawal slip on 27-10-1987 and on her directions the said cash of Rs. 7,80,487/- was delivered to her Advocate (the 4th respondent) as the withdrawal slip was for payment to self or bearer; and thereafter the said amount in cash was credited at the cash counter of the Bank by the 4th respondent for the purpose of purchasing a D.D. for Rs. 6,80,487/- in favour of 5th respondent and for creating two Special Term Deposits of Rs. 50,000/- each in favour of respondents 6-7 and respondents 6-8. Respondents 1 to 3 have produced the copies of application given by respondent 4 for purchasing the demand draft and for making the two Term Deposits along with a memo dated 18-2-1997. They show that the said applications were signed by 4th respondent and not petitioner, and also show that cash has been tendered by 4th respondent for purchasing the Demand Draft and for making the Term Deposits.

13. But the Bank in its letter dated 23-11-1988 (Annexure-J) had admitted that there was no cash and that cash was not paid. The petitioner has also all along contended that no cash was paid to her at all on 27-10-1987 and that the Demand Draft was not purchased by her nor was the Term Deposits made by her. Hence this Court issued the following direction to the Bank on 5-12-1994:

'Respondents (1 to 3) are directed to produce the records and make a statement on oath whether Kinnal Branch of the Bank had cash reserves of Rs. 7,80,487/- on 27-10-1987 and the same was paid in cash to the petitioner against the withdrawal slip and if such cash was available, whether it was obtained on transfer from any other Bank and when'.

14. In compliance with the said direction, the Bank filed an affidavit on 19-12-1994 of T.S. Pattar who was working as the Branch Manager of the Kinnal Branch during October 1987. In the said affidavit, he stated thus:

'1. I am presently working as the Deputy Manager, Afzalpur. I was on deputation from Koppal Branch as the Branch Manager of Kinnal Branch of State Bank of Hyderabad during October 1987. I am therefore aware of the full facts in the above case. Hence I swear to this affidavit on behalf of the respondents.

2. On 27-10-1987, I was present in the Bank when the petitioner and her Advocate N.B. Kattikai came to the Bank and when the withdrawal slip at Annexure-G to the writ petition was encashed. As the withdrawal slip was for a large sum and there was not enough cash in the Branch, I offered to the petitioner to get the cash from Koppal Branch immediately and honour the withdrawal slip. Koppal is just 11 k.m. away from Kinnal and cash could have been brought without loss of much time. The petitioner, however, insisted that the Bank follow the instructions of N.B. Kattikai, the bearer of the withdrawal slip. The said N.B. Kattikai informed the Bank that it would not be necessary to bring the cash from Koppal. On the request of the bearer of the withdrawal slip, a demand draft for Rs. 6,80,487/- and special Term Deposit receipt for Rs. 1,00,000/- were issued in lieu of cash payment.

3. I produce herewith true xerox copies of cash balance Register and Bank Cash Scroll of the relevant date viz., 27-10-1987 which are marked as 'R-l' and 'R-2' respectively'.

Alternatively, if there was no cash, how was Rs. 7,80,487/- paid in cash in respect of the withdrawal slip? Why did the cash scroll (Annexure-R 2) show Rs. 7,80,487/- was paid to 'P. 12', in cash? If Rs. 6,80,487/-, Rs. 50,0007- and Rs. 50,000/- (for issue of D.D. and Term Deposit Receipts) were not received in cash, why were they shown as cash receipts in the cash scroll? Why was the cash payment made to 4th respondent when petitioner was present personally? Where was the need for 4th respondent to receive cash and then immediately remit it back for purchase of D.D. and for making two deposits when petitioner could have done it? If there was an understanding between petitioner and fifth respondent, fifth respondent would have received a cheque from petitioner. The facts and circumstances disclose an unsuccessful attempt on the part of the Bank to show that Rs. 7,80,487/- was paid to petitioner in cash. There is neither credence nor consistence in the stand of the Bank.

16. It is well-settled that a 'withdrawal slip' is not a cheque and is not negotiable or transferable. In para 9.7 of its statement of objections, the Bank admits this position: '. . .it is true that the withdrawal form is not a negotiable instrument'. In the affidavit, dated 19-12-1994 filed by the Bank Manager in compliance with the direction of this Court dated 5-12-1994, it is stated: 'The petitioner however insisted that the Bank should follow the instructions of N.B. Kattikai, the bearer of the withdrawal slip. .... on the request of the bearer (fourth respondent) of the withdrawal slip, a demand draft for Rs. 6,80,487/- and Special Term Deposit Receipts for Rs. 1,00,000/- were issued in lieu of cash payment'. The Bank has not explained how it could act on the instructions of the 'bearer' of the withdrawal slip when it admits that a withdrawal slip is not negotiable and why did it chose to pay the amount to the 'bearer1, when according to the Bank, the petitioner was personally present throughout.

17. The question whether a High Court, in exercise of the jurisdiction under Article 226 of the Constitution, can direct a Bank to re-credit an unauthorised debit to the account of the customer was considered by the Supreme Court in Mis. Hyderabad Commercials case, supra. In that case, the Bank transferred a huge amount (about Rs. 13.0 lakhs) from the account of one of its customers to another unauthorisedly. It agreed to rectify the mistake by re crediting amount. But subsequently it sought to justify the transfer by alleging that the amount was transferred on oral instructions of the customer. The High Court dismissed the writ petition filed by the petition on the ground that the case involved disputed questions of facts. The Supreme Court reversed the decision of the High Court. The Supreme Court held:

'It is difficult to believe that a sum of Rs. 12.95 lacs could be transferred to the account of another person on oral instructions, without taking care to obtain authority or instruction in writing for the same. The plea of oral instruction, justifying transfer of such large amount is an afterthought which does not inspire any credence. The Bank's conduct is reprehensible. We are constrained to observe that such functioning of a Nationalised Bank is detrimental to public interest and if it follows the practice of transferring money of its customers to some other persons account on oral authority, people will lose faith in the credibility of Bank.

Since the basic facts regarding the unauthorised transfer of the disputed amount from the appellant's account as well as the Bank's liability was admitted, there was no justification for the High Court to direct the appellant to file a suit on ground of disputed question of fact. The respondent-Bank is an instrumentality of the State and it must function honestly to serve its customers.

We, accordingly, allow the appeal, set aside the order of the High Court and direct the Indian Bank to recredit the disputed amount of Rs. 12.95 lacs to the appellant's account within three weeks from today along with interest if any due on the aforesaid amount. As regard the dispute between the appellant and respondents 6 and 7 is concerned, we express no opinion on the same'.

18. The Bank is an instrumentality of the State. It is admitted that Rs. 8,81,288-76 was credited to petitioner's Account No. P. 12. It contended and all along maintained that petitioner drew a sum of Rs. 7,80,487/- in cash under withdrawal from dated 27-10-1987 (Annexure-G) which was paid to the 4th respondent and the 4th respondent paid cash of Rs. 7,80,487/- for purchasing a draft for Rs. 6,80,487/- in favour of fifth respondent and Rs. 1,00,000/- for obtaining two Term Deposits Receipts for Rs. 50,000/- each in favour of respondents 6 and 7 and respondents 6 and 8. That is the stand in its reply letters and its statement of objections filed in this writ petition. Only when it was directed to file an affidavit in regard to cash balance available on 27-10-1987, it changed its stand and conceded that it did not pay cash of Rs. 7,80,487/- in the Bank. But it belatedly put forth a new case that as there was not enough cash, the Branch Manager offered to petitioner to get cash from Koppal Branch and honour the withdrawal form; that the petitioner stated that the Bank should follow the instructions of fourth respondent; that fourth respondent stated that it was not necessary to bring the cash from Koppal and on the request of the 'bearer' of the withdrawal slip, a demand draft for Rs. 6,80,487/- and Special Term Deposits-Receipts for Rs. 1,00,000/- were issued in lieu of cash payment.

19. It is now not in dispute that the following events took place on 27-10-198-7 (confirmed by Annexure-A to G and Annexures-R1 and R2):

(i) Cheque for Rs. 8,81,488-70 was deposited with the third respondent-Bank, by petitioner for collection.

(ii) The cheque was sent for collection to the Koppal Branch which was just 11 k.m. away and realised on the same day and credited to petitioner's Account No. P. 12.

(iii) The petitioner is made to open a new account and asked to sign papers.

(iv) A sum of Rs. 1,01,001/- is transferred to petitioner's new account from the old account.

(v) A withdrawal form is taken from petitioner for withdrawal Rs. 7,80,487/- in cash from petitioner's old account.

(vi) The Bank's records (cash scroll, cash balance book and withdrawal form) are made to show that Rs. 7,80,487/- was paid to cash when no cash is paid.

(vii) It is shown that fourth respondent having received Rs. 7,80,487/- from the Bank on behalf of petitioner, remitted it back to the Bank in cash for purchase of a D.D. and issue of two Term Deposits, even though no cash payment was received by the Bank for issue of the D.D. and Term Deposits.

(viii) According to the Bank even though the petitioner was, present throughout all the transactions are stated to have been done by fourth respondent.

(ix) The fifth respondent who is the recipient of the amount (D.D. and Term Deposits) is present throughout with Venkobachar Upadhyaya and Shankarappa S. Borate who sign as witnesses for the alleged cash withdrawal of Rs. 7,80,487/- by petitioner.

What or where was the need for these acts? The same result would have been achieved by the simple act of petitioner issuing a cheque in favour of fifth respondent, for Rs. 7,80,487/- instead of following an elaborate charade.

20. The facts and circumstances and the conflicting stands of the Bank, give credence to petitioner's case that she did not authorise withdrawal, nor directed payment of Rs. 7,80,487/- to fourth respondent and she was unaware of the withdrawal of Rs. 7,80,487/- from her account by using the said withdrawal form dated 27-10-1987 (Annexure-G). It is therefore not necessary to examine or decide the further question raised by the petitioner that there was a conspiracy among respondents 4 and 5 and the Bank Manager to deceive her of Rs. 7,80,487/-. This writ petition can be decided by ascertaining whether Rs. 7,80,487/- was paid in cash as pleaded by the Bank. If the allegation of the Bank that it had paid Rs. 7,80,487/- in cash to fourth respondent as per petitioner's instructions is false, obviously the debit of Rs. 7,80,487/- to petitioner's Account No. P. 12 as cash paid to her is an erroneous and unauthorised entry and it cannot be sustained. Consequently, the Bank becomes liable to reverse the entry debiting Rs. 7,80,487/- to petitioner's account.

21. It is true that the Bank has not gained anything and Rs. 7,81,487/- has been paid to respondents 5 and 8. But the question is not whether Bank has made any gain. The question is whether the Bank acted with almost good faith expected to it, while dealing with a customer. The question is, when it contends that it paid Rs. 7,81,487/- in cash in pursuance of a withdrawal form signed by the customer and fails to prove such cash payment and is forced to admit that it did not have the required cash that day, can it be permitted to wriggle out of the liability by stating that it issued a Demand Draft for Rs. 6.81,487/- and two Term Receipts for Rs. 50,000/- each at the instance of fourth respondent. On the facts and circumstances, even if there is some delay on the part of the petitioner in filing the writ petition, the delay is not of such extent as to deny the petitioner the relief to which she is entitled. But, having regard to the delay and having regard to the fact that the relief is being granted in exercise of the power under Article 226, she will not be entitled to any interest on the amount or costs.

22. It is made clear that this order will not come in the way of the Bank taking steps to recover the amount unauthorisedly paid from the beneficiary or persons responsible.

23. In the result, this petition is allowed and respondents 1 to 3 are directed to re-credit a sum of Rs. 7,81,487/- to the petitioner's account. As it is stated that the account was closed subsequent to filing of the petition, the Bank shall pay the said amount to petitioner's legal representatives within two months from the date of receipt of the certified copy of this order. No costs.