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Marudhara Conductors Pvt. Ltd. & Another v/s State Bank of India & Another

    Civil Writ Petition No. 2120 of 1990

    Decided On, 04 August 1999

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE V.G. PALSHIKAR

    For the Appellant: M. Mridul, Advocate. For the Respondent: J.P. Joshi, Advocate.



Judgment Text

1. By this petition, the petitioners have challenged realisation of certain amounts of money by way of interest by the respondent No. 1 Bank. The contention of the petitioner is that no such interest could have been charged in the absence of either statutory provisions or contractual undertaking. The charge of interest is therefore, void ab initio, it is liable to be quashed.

2. The prayers read as under : "F/l, The respondent be directed not to charge interest from the petitioner No. 1 on the amount after the same has been realised by any of the branches of Respondent No. 1 till this advice in regard to the receipt of the amount is received by Respondent No. 2.

F/2. The Respondent be directed to refund the petitioners the interest which is impugned in this writ petition charged from time to time.

F/3. Any other appropriate writ, order or direction which the circumstances of the case

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warrant may be passed in favour of the petitioner.

F/4. The cost of this writ petition may be awarded to the petitioner."

3. From the above prayers, it is obvious that the petitioner is seeking refund of money wrongly recovered from him. Writ jurisdiction cannot be invoked and should not be exercised to settle monitory claims which can be equally efficacious settled by a civil Court of competent jurisdiction. The writ jurisdiction is extraordinary jurisdiction meant for the purposes of administering quick Justice in cases causing gross injustice. This very purpose of writ jurisdiction is consistently frustrated by filing writs indiscriminately for all kind of reliefs, even though, efficacious remedies before different forums are available. Filing of such writ petitions irrespective of the availability of other remedies which has resulted in for appealing arrears of writ petitions in the High Court with the results that expeditious disposal of petitions has become virtually impossible. It is because the High Court has to deal with the such petitions in nature of civil suits and adjudicated upon the question of interest that is properly charged or not in a money claimed that most of the time of High Court is consumed in exercise of extraordinary Jurisdiction in compelling circumstances. In fact filing of such writ petitions indiscriminately has converted the High Court in its writ jurisdiction to a civil Court.

4. Reliance was placed on certain decisions of the Supreme Court observing that Banks cannot charge interest on any sum of money, unless there is stipulation to that regard in the contract with the consumer or from some statutory provisions empowering the bank to do so. Relying on this case, it was submitted on behalf of the petitioner that charging of interest in the present case is void ab initio. There is no statutory provisions to warrant charging of recovery of such interest and hence, a writ in the nature of direction directing the bank to refund the interest illegally recovered is liable to issue. This relief, after showing these very decisions of the Supreme Court, could have been granted in the civil Court certainly earlier than now,

5. It is contended on behalf of the petitioner that charging of interest unless provided by law or by contract is impermissible. Reliance is placed on a judgment of the Supreme Court reported in India Carbon Ltd. etc. Vs. State of Assam, The legal position in view of the Supreme Court judgment is that no such interest can be charged. The question is whether the charging should be declared illegal and refund should be directed by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution or the person concerned should go to a civil Court claiming refund of the interest wrongly charged. Relying on this very judgment of Supreme Court, it cannot be said in this case that civil suit for refund of the wrongly charged interest is not efficacious remedy.

6. It is then contended that the action of charging interest is arbitrary, unfair and unreasonable and therefore, violates Article 14 of the Constitution. In view of the judgment of the Supreme Court in India Carbon Ltd. etc. Vs. State of Assam, where the Hon'ble Supreme Court of India has laid down that interest cannot be charged, unless provided by law or by contract, the question of arbitrariness, unfairness or unreasonableness does not arise. Obviously, the action appears to be illegal and for redressal against such illegality, civil suit for refund of the money wrongly charged is a better remedy than the writ petition. The reliance is placed on the following judgments of the Supreme Court reported in Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries, : Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , K.I. Shephard and Others Vs. Union of India (UOI) and Others, (B), Union of India and others Vs. Hindustan Development Corpn. and others, Bangalore Medical Trust Vs. B.S. Muddappa and others, (F), Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, and AIR 1979 SC 515 (sic) is therefore, inconsequential in view of the direct decision of the Supreme Court cited above.

7. It has already been pointed out that in the circumstances of the present case where all that is claimed by the petitioner is refund of the wrongly charged interest. It cannot be said that suit is not an efficacious alternate remedy. On this ground alone, the petition is liable to be non suited. The reliance placed on the following decisions reported in 1994 (2) WLC 151 (3) , Century Spinning and Manufacturing Company Ltd. and Another Vs. The Ulhasnagar Municipal Council and Another, is misplaced and they have no application to the facts of the present case.

8. It was then contended that the action of charging interest without statutory provision or contractual obligation is violation of Article 300A of the Constitution of India, This contention is baseless and unsustainable. Article 300A of the Constitution reads thus;

"No person shall be deprived of his property save by authority of law."

9. Bank's advance loans by authority of law and interest by authority of law where bank charged interest beyond the authority given to it by law, does illegal and by charging such interest, no question of deprivation of any property as envisaged by Article 300-A arises, what has been done by the Bank in the present case is 'x' amount of interest is charged and recovered from the petitioner. According to the petitioner, the bank could not take away the property of the petitioner. Article 300A therefore, has no application in such a case. The reliance placed by the learned counsel on all the cases of the Supreme Court of India in this regard has no application to the facts of the present case. There is no violation of the Article 300A. Having held above that the action of the respondent Bank in charging interest is not violative of Article 300A, the question of maintaining the petition because the action impugned is vlolative of Article 300A does not arise. The petitioner has contended that it is case of breach of fundamental right. Article 300A, even if it is assumed to have been breached is not finding place in Part III, of the Constitution and the right, if any that can accrue to a citizen under Article 300A is certainly not a fundamental right and therefore, following judgments reported in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, have to application to the facts of the present case.

10. It is then contended that after amendment of Article 226, the question of alternative remedy cannot come in the way of maintaining a writ petition. This submission is baseless and is repeatedly made by the learned counsel for the petitioner for no plausible reason. It has been conclusively laid down by a Judgment of five Hon'ble Judges of this Court 1995 (1) RLW I that ordinarily alternate remedy is a bar to filing of a writ petition. In spite of that decision, repeatedly submitting that alternate remedy is no bar is frivolous argument to say the least.

11. Reliance was placed on the following decision for the submissions that civil suit is not an alternate remedy. A perusal of this judgment will show that in peculiar circumstances of that case, civil suit was held not to be an alternate remedy. In the present case, all that has been done by the bank is charging interest which according to the petitioner is wrongly done and therefore, the petitioner seeks refund of the interest so wrongly charged. It cannot in the circumstances be held that civil suit is not an alternate remedy. If the facts as alleged by the petitioner are undisputed, then in view of the judgment of the Supreme Court, charging of interest becomes doubtful and therefore, civil suit for monetary claim on wrongly charged interest is in fact the only remedy available. Valuable time of the High Court seeking extraordinary jurisdiction under Article 226 for such aroutine trifle matter is according to me highly improper.

With the above observations, the petition is therefore, dismissed with cost of Rupees 500/-.

Final Result : Dismissed.
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