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2017 DIGILAW 998 (CAL)

Tapan Kumar Das v. Bank of India

2017-12-20

ARIJIT BANERJEE, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. This mandamus appeal is directed against an order passed by a learned single judge of this court on 24th April 2017 disposing of the writ petition being W.P. No. 13284 (W) of 2016 filed by the writ petitioners/appellants. 2. The writ petitioners along with the respondent no. 3 were carrying on business in co-partnership. Such partnership was constituted on the basis of a Partnership Agreement executed by all the partners. The mode of operation of the partnership bank account is provided in clause 13 of the Partnership Agreement, which runs as follows:- “That the partners shall control the finance and banking account shall be operated by Sri Bireshwar Das, the party of the second part and Sri Tridib Das, the party of the fourth part jointly.” 3. The private respondent being one of the partners of the said partnership firm wrote a letter to the concerned bank, requesting the Manager of the said bank to freeze the bank account of the said partnership firm. 4. On such request being made by the said partner, the Bank of India directed debit freeze of the bank account maintained by the partnership firm. 5. The legality of such action on the part of the bank was challenged by the writ petitioners/ appellants by filing the said writ petition. 6. Fact remains that the respondent no. 3 filed a suit for dissolution of the said partnership firm but the said suit was ultimately dismissed for default. Thereafter, no step was taken for restoration of the said suit. 7. The writ petitioners-appellants contends that the business of the said partnership firm is still being continued and as such the bank ought not to have entertained the letter written by one of the partners, who was not authorized to operate the bank account as per the contract which the partnership firm had with the bank at the time of opening the bank account. 8. The learned single judge of this court by referring to the Manual of Instructions held that the bank did not commit any illegality in freezing the bank account of the partnership firm on the request of one of the partners. The relevant clause of the Manual of Instruction which impressed the writ court to pass the impugned order, runs as follows:- “Objection by one of the partners to operations:- 29. The relevant clause of the Manual of Instruction which impressed the writ court to pass the impugned order, runs as follows:- “Objection by one of the partners to operations:- 29. On receipt of intimation from one (or more) of the partners to the effect that bank should not allow operations on the firm’s account by the other partners, all operations on the account must be stopped. A joint letter must be addressed and sent to the firm and all partners, stating that having regard to the objection by one (or more) of them, the bank is compelled to stop all operations on the account until all the partners jointly agree to a particular mode of operation. If after receipt of such a letter, any partner issues some legal contentions, the Branch Manager should make a reference to the Head Office giving all the relevant facts and the copies of the relevant correspondence.” 9. Relying upon the said internal instructions, the learned single judge disposed of the writ petition by holding that the bank has acted prudently and in terms of the Manual of Instruction by directing debit freeze of the account. It was directed that till the dispute inter se the partners of the partnership firm is settled, it would be inappropriate to permit any of the partners to operate such bank account. It was also directed that so far as understanding of the charging of interest is concerned, it would be open to the parties to file appropriate proceeding in respect thereof. 10. The legality and/or propriety of the said order is under challenge in this mandamus appeal. 11. It is rightly argued by Mr. Sen, learned advocate appearing for the appellants that the Manual of Instruction has no statutory force. 12. He also argued that even the instruction contained in the Manual of Instruction is not a part of the contract between the bank and the partnership firm and as such these instructions have no binding effect on the partners of the partnership firm. He further argued that the bank should not have acted upon the instruction of the respondent no. 3, who was not even authorized to operate the bank account of the partnership firm as per the partnership agreement. 13. However, the guidelines contained in the Manual of Instructions have some binding force not only over the Banks but also on its customers. 3, who was not even authorized to operate the bank account of the partnership firm as per the partnership agreement. 13. However, the guidelines contained in the Manual of Instructions have some binding force not only over the Banks but also on its customers. In the instant case, we find that even the instructions contained in the Manual of Instruction which the bank was required to follow have not been followed by the bank after freezing the said account. The bank did not communicate freezing of the bank account to the partners of the said partnership firm. The other obligations, which the bank was required to discharge as per the said Manual of Instruction, have also not been complied with by the bank. 14. Be that as it may, in course of hearing of this appeal, our attention was drawn by the learned counsel appearing for the respondent no. 3 that the writ petitioners/appellants have also sent a letter to his client on 31st October 2014 mentioning therein that the said partnership firm has been dissolved on and from 31st October 2014. 15. The learned counsel for the respondent no. 3 submits that his client has accepted such dissolution. 16. Taking note of fact that the firm stood dissolved with effect from 31st October 2014, we are of the view that the partnership firm does not require to operate the bank account regularly as its business has now been discontinued. However, the parties have all agreed that the freezed account may be made operational by the bank only for the purpose of meeting the statutory liability of the partnership firm. 17. Accordingly, we dispose of this appeal by directing the concerned bank to make the freezed account operational and the partners, namely, Bireswar Das and Tridib Das, who were authorized to operate the bank account are permitted to operate the bank account only for the purpose of withdrawing the money therefrom to meet the statutory liability of the said partnership firm upon prior notice to the respondent no. 3 and maintain accounts. 18. 3 and maintain accounts. 18. Since it is accepted by all the partners that the partnership firm stood dissolved, the parties are at liberty to approach the arbitrator in terms of the arbitration agreement contained in the said partnership agreement for settlement of the profit and loss account of the partnership firm, so that profit and/or loss of the business can be distributed amongst the partners according to their shares in the dissolved partnership firm. 19. With the above observation the appeal and the connected application are disposed of. 20. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.