Judgment 1. The plaintiff is the appellant. 2. It is aggrieved by an order refusing to grant injunction in a suit filed by it for granting a decree for cancelling proceedings in Certificate Case No. 48 of 1980-81 of the Court of Certificate Officer, Begusarai and for issuance of an injunction restraining the defendant No. 1, State Bank Agricultural Development Branch, Dalsinghsarai from proceeding further with the said proceeding and also for restraining the defendant No. 2, Certificate officer, Begusarai, from executing or issuing any process relating to the said certificate. 3. The suit in question was filed alleging that the plaintiff is a proprietor firm; that there was an agreement dated 21-10-1978 between its proprietor Sudhir Rai and the Defendant No. 1, the latter agreeing accommodation by way of cash credit from time to time, which is still in custody of the Bank; that even though the advance made from time to time by the defendant Bank to the tune of, Rs. 2,13,784.29 paise have already been endorsed and recorded in the accounts and Balance sheet maintained by the Bank and nothing was due from the plaintiff still the Bank made an entirely baseless and incorrect claim, taking into account such cheques which were not signed by the sole proprietor of the firm and got the certificate proceeding started; that all such cheques were forged; that on the contrary, a sum of Rs. 25,358.80 paise is due from the Bank itself; that no notice u/ S. 7 of the Bihar and Orissa Public Demand Recovery Act was ever issued or served upon it; that the entire certificate proceeding is vitiated and not legally maintainable; that an objection petition was also filed by it u/S.9 of the Act denying the liability which has not been heard by the certificate officer, who, on the contrary on 21-5-1984, issued orders for attachment and hence the suit. 4. The appellant also filed an application for grant of injunction on the ground that the plaintiff seriously apprehended that processes will be issued and executed in the certificate case which will cause irreparable injury to it. 5. On a notice being issued, show cause was filed by the Bank, denying the allegations of the plaintiff and its claim, further asserting that the suit itself is not maintainable and thus the prayer for temporary injunction is not fit to be allowed. 5. On a notice being issued, show cause was filed by the Bank, denying the allegations of the plaintiff and its claim, further asserting that the suit itself is not maintainable and thus the prayer for temporary injunction is not fit to be allowed. It further appears that the defendant Bank filed a certified copy of the order sheet of the certificate case showing that the plaintiff had been repeatedly praying for adjournment in that case on the ground that it is not in a position to make deposit and that on that ground time was repeatedly granted to it but it was only when time prayed for correctly rejected on 25/03/1983, the suit in question was filed. 6. The court below by the impugned order rejected the prayer of the plaintiff observing as follows: i) It appears from the order sheet of the certificate case that the certificate debtor has accepted its liability to pay the dues and had applied for time for depositing the money which was rejected by order dated 25/03/1983. ii) No specific pleading of fraud on the part of the defendant has been alleged in the plaint and therefore the suit appears to be barred under S. 46 of the Bihar and Orissa Public Demand Recovery Act. iii) The plaintiff does not have any prima facie case. iv) The balance of convenience does not lean in its favour and in such circumstances the question of danger of any irreparable loss does not arise at all. 7. At the time of admission of this appeal, on a separate application (Flag A) filed for grant of interim injunction during the pendency of this appeal, by an interim order dated 31-3-1986 further proceedings in the certificate case were stayed. However, by an order dated 9-7-1986 the said petition was rejected, after contest, by the Defendant No.1. 8. Mr. Birendra Singh, learned counsel for the appellant, submits as follows: i) In the plaint fraud was specifically alleged in paragraphs 2, 3, 6, 7 and 10. Accordingly, the finding that the suit in question is not maintainable is erroneous. ii) A petition was filed on behalf of the plaintiff in the trial court for directing the Bank to produce its accounting so that truth or otherwise of the claim of the plaintiff or of the defendant Bank could be prima facie ascertained by it. Accordingly, the finding that the suit in question is not maintainable is erroneous. ii) A petition was filed on behalf of the plaintiff in the trial court for directing the Bank to produce its accounting so that truth or otherwise of the claim of the plaintiff or of the defendant Bank could be prima facie ascertained by it. This demonstrated the mala fide of the Bank. iii) The court below has not applied its mind to a Division Bench decision of this Court in Chhatu Ram Bhadani V/s. The State of Bihar reported in AIR 1971 Patna 312 and has erred in recording findings on the questions of balance of convenience and irreparable injury. 9. Mr. Rajendra Narain, learned counsel appearing for the respondent No. 1, submits as follows: i) A case of fraud has been deliberately set forth in order to avoid the bar of the provisions of S. 46 of the Act and thus no error has been committed by the trial court in holding that the suit in question is barred because of S. 46 of the Act. ii) The trial court had correctly appreciated the stand and conduct of the appellant before the certificate Officer before whom is repeatedly went on taking time to clear up the dues which impliedly meant that the liability in question was never disputed by it. iii) The prayer for grant of interim injunction during the pendency of this appeal was also rejected by this Court on 9-7-1986 and that fact may also be taken into account while exercising discretion in favour of the appellant. iv) From the order it does not appear that the plaintiff ever pressed the petition, referred to by it, during the pendency of the injunction matter. Thus no importance should be attached to this submission. 10. It is a settled law that jurisdiction of the civil court is dependent upon the averments made in the plaint. 11. iv) From the order it does not appear that the plaintiff ever pressed the petition, referred to by it, during the pendency of the injunction matter. Thus no importance should be attached to this submission. 10. It is a settled law that jurisdiction of the civil court is dependent upon the averments made in the plaint. 11. The statements made in paragraphs 5, 6, 7 and 10 of the plaint runs as follows: - "5 That the incorrect nature of the claim of defendant Bank will be also proved by the fact that no cheque has been issued by the plaintiff in the name of Bank defendant for the following amounts: Date Cheque No. Amount 28-10-78 638 10,000.00 3-11-78 663 2,000.00 8-11-78 737 1,000.00 10-11-78 739 5,000.00 15-11-78 647 4,000.00 28-11-78 205777 5,000.00 22-12-78 787 2,500.00 5-1-79 792 1,500.00 12/ 13-1-79 793 2,500.00 17-1-79 800 5,000.00 9-2-79 531 5,200.00 8-3-79 539 3,500.00 19-12-79 077 400 /- 14-1-80 083 540.00 18-2-80 048091 2,500.00 Grand Total 51,740.00 @@@ The plaintiff has not issued any cheque as stated earlier, nor such cheques have been signed by the present plaintiff nor do the bear signature of the plaintiff nor such amounts has been withdrawn or received by the plaintiff and as all such cheques are forged and never issued under the signature of the present plaintiff. 6. That as per deposit made by the plaintiff as sum of Rs. 25,358.80 paise (Rupees twenty five thousand three hundred and fifty eight and eighty paise) of the present plaintiff is due of the defendant Bank. Besides a further sum of Rs. 490.00 has been deposited by the plaintiff with the defendant Bank on 16-5-83 And as such it is patent that the entire certificate proceeding and the claim made thereunder by the Defendant Bank is baseless and fraudulent and nothing is due with the plaintiff rather a sum of Rs. 25358.80 paise of the plaintiff is due with the defendant Bank. 7. That no notice under S. 7 of the Public Demand Recovery Act has been so far issued or served upon the present plaintiff and the entire certificate proceeding is vitiated as not legally maintainable. 10. That the entire certificate proceeding is fraudulent and incorrect there being no dues. From a perusal of these paragraphs, it is clear that the plaintiff has come up with an allegation of fraud. 12. 10. That the entire certificate proceeding is fraudulent and incorrect there being no dues. From a perusal of these paragraphs, it is clear that the plaintiff has come up with an allegation of fraud. 12. Sec. 46 of the Bihar and Orissa Public Demand Recovery Act runs as follows: - "General bar to jurisdiction of civil courts, save where fraud alleged except as otherwise expressly provided in this Act, every question arising between the certificate holder and the certificate debtor, or their representatives, relating to the making execution, discharge or satisfaction of a certificate duly filed under this Act, or relating to the confirmation or setting aside by an order under this Act, of a sale held in execution of such certificate, shall be determined, not by suit but by order of the certificate officer before whom such question arises, or of such other certificate officer as he may determine : Provided that a suit may be brought in a civil court in respect of any such question upon the ground of fraud." 13. The proviso to S. 46 of the Act permits a Civil Court to entertain a suit, if fraud is alleged. 14. In the aforementioned view of the matter, I am of the view that the court below has committed an apparent error in holding that the suit is not barred upon S. 46 of the Act and its finding that the plaintiff has got no prima facie case is not sustainable in law. 15. However, the questions still are as to whether there is a balance of convenience in the side of the appellant or not and whether the appellant is going to suffer an irreperable injury. 16. It has not been alleged by the plaintiff that its properties have been put on auction. In the aforementioned view of the matter, I am of the view that the ratio decidendi in Chhatu Ram Bhadanis case Supra, relied upon by Mr. Singh, is of no help. In that case it appears from the judgment that the properties were also put on sale on which were houses situate at Jhamru Tilaiya and it was then held that if they are allowed to be sold and purchased by stranger, there may be difficulty in the way of the plaintiff in recovering the houses from the stranger purchaser. Such is not the case here. 17. Such is not the case here. 17. From the perusal of the order, the memorandum of appeal as also the petition for grant of interim injunction during the pendency of this appeal (Flag A) it does not appear that the petition, relied upon by Mr. Singh, was pressed before the trial court. In the said view of the matter, it is difficult for me to place any reliance on that petition when the defendant Bank has come up with an allegation that the payments were never made in regard to the 14 cheques issued on behalf of the plaintiff. 18. The grant of injunction is a discretionary remedy. The trial court, while rejecting the prayer of the plaintiff-appellant also took into account its conduct before the certificate officer, namely, praying for repeated adjournments and dragging the certificate case for years to clear off the dues which prima facie meant acceptance of its liability to pay the certificate dues. 19. In Wazir Sundar Singh V/s. Mst. Farida Khanam, AIR 1920 PC 132, it was held by the Privy Council to the effect that mere possibility of a different conclusion, on the same facts and evidence, will not justify interference by an appellate court of the orders of the trial court. 20. The House of Lords, through Lord Diplock, in Hadmor Productions Ltd. V/s. Hamilton, (1982) 1 All ER 1042, in an appeal arising out of an interlocutory order, like the present one, held as follows: --- "It is I think appropriate to remind your Lordships of the limited function of an appellate Court is an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court Judge by whom the application for it is heard. Upon an appeal from the Judges grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the court of Appeal or Your Lordships House, is not to exercise an independent discretion of its own. It must defer to the Judges exercise of his discretion and must not interfere with it merely upon the ground that the member of the appellate court would have exercised the discretion differently." . It must defer to the Judges exercise of his discretion and must not interfere with it merely upon the ground that the member of the appellate court would have exercised the discretion differently." . 21 Same observations were also repeated by Lord Diplock in Garden Cottage Foods Ltd. V/s. Milk Marketing Board, (1983) 2 All ER 770, which runs as follows: "Every argument including the balance of convenience would seem to fall in favour of maintaining the same status quo until determination of the action, which is the normal purpose for which interlocutory injunctions are granted. .......... This course of action is in line with what the European Court Justice thought appropriate .............I cannot avoid the conclusion that the Court of Appeals order makes for better justice and I see nothing wrong with it in law-" . 22 For the reasons aforementioned, I do not find that the appellant was entitled to grant of injunction and the order of the trial court requires interference in appeal. The appeal is, thus, dismissed but in the peculiar facts and circumstances, without costs. 23. Before I part, since the suit in question was filed in the year 1984, 1 direct the trial court to take up its expeditious hearing. I also clarify that the findings, recorded in the court below as well as by me shall have no bearing on the merits of the claim of the plaintiff during trial. Appeal dismissed.