Court declines to exercise its writ jurisdiction

Company secretary

Our writ petition was dismissed by the court stating that we decline to exercise our jurisdiction under article 226. giving liberty to file  petition in appropriate forum

However while dismissing the writ the Honble Court gave clean chit to the respondant. This is giving the respondants an edge in the Civil suit filed by us.

Please advise the legal validity of the clean chit when the court has declined to exercise its jurisdiction.

My view is that the Court can pass an order /judgement only if it exercises its jurisdiction. could you please provide some case law in this context

 

Thanks

 

 

 

 
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Pretty much right. Appropriate forum may be prejudiced by the observations made. One remedy available would be to file a miscellaneous application to clarify in the judgment that the observations made in the Writ Petition have no bearing on the merits of the matter.

Some High Court have the practise of listing such matters under the caption "For Being Mentioned". Please enquire about the same in the concerned High Court. Some petitioners invoke Sec 151 C.P.C for such a petition.

 
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Advocate-on-Record Supreme Court of India

 

Dear Querist,

 

Please provide the copy of Order or citation of case so as to enable us to download from SC website and then give you the correct opinion in your case by referring to case law in the context.

 

 

Trust this would suffice.

 

 

Rabin Majumder

Advocate-on-Record

Supreme Court of India

New Delhi

 
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Company secretary

JUDGEMENT FILE ATTACHED



Attached File : 794703255 wp order 4 jan 2012.pdf downloaded 57 times
 
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Advocate

The order seems prima facie correct in in accordance with law. Although, you are correct that if any higher court make observation in favour of any one, lower court could be guided.

But, in this case, question before appropriate civil court should be issue over the management of company and not the reason for dishonor of cheque.

It is advisable to decide the issue of management and inform the same to banker, even then if bank does not defreeze the account, it will be bank's deficiency. At this point bank was correct in its action.

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Company secretary

We also made an RTI Applcation  to the RBI seeking copy of the Board Resolution as referred in their order dated 13th April 2011 which states that that account was frozen on the Basis of Board Resolution and not on  the request of the shareholder.

RBI replied back and stated that it was inadvertantly sated that it was on the basis of board resolution.

RBI took the shelter of court order by stating that the matter has already been dismissed by the high court.

the truth is that court relied on the order of banking ombudsman that is on the basis of board resolution, which actally does not exist and now the rbi has taken shelter under the comment of court that RBI IS NOT IN ERROR

 

 

 
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Company secretary

Unique Case for academic interest , needs your views

The first writ petition filed by the Account holder company against the HSBC was dismissed by the high court saying that the HSBC has acted as a prudent Banker , and the Banking ombudsman was not in error, the Apex Court also declined SLP.

 

The Second writ petition was filed by drawee of the cheque, another co ordinate bench set aside the order passed by the banking ombudsman and remanded the matter back to Banking Ombudsman to pass order in accordance with law , When HSBC pleaded that the no purpose will be solved by remanding the matter back to Ombudsman as the Banking Ombudsman cannot pass any order contrary to the observation made by another division bench of the this court. The Division bench stated that the earlier writ  filed by the account holding company was dismissed not on merits.

 

My question is that can another division bench say that that the earlier order was not on merits.

Both the case relate to the similar cause of action, orders are attached



Attached File : 708002377 wp order dated 8 -1-14.pdf, 708002377 wp order 4 jan 2012.pdf downloaded 57 times
 
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