JUDGMENT Nataraj Rangaswamy, J. - Mfa No.200388/2019 is filed by the defendant in O.S. No.129/2017 challenging the Order dated 06.12.2018 passed by the II Addl. Senior Civil Judge Bidar, in O.S.No.129/2017 by which the trial Court allowed an application filed by the plaintiff under Order 39 Rule 1 and 2 R/W section 151 of CPC and directed the defendant No.1 to deposit a sum of Rs.30,00,000/- in a fixed deposit in any nationalized bank. 2. Mfa 200768/2019 is a companion appeal filed by the plaintiff in the aforesaid suit by which he has challenged the Order dated 06.12.2018 in O.S.No.129/2017, in so far as it relates to requiring the defendant No.1 to deposit Rs.30,00,000/- in a Fixed Deposit, though the suit claimed was for a sum of Rs.47,94,000/-. 3. Since both these appeals are connected and as both of them challenge the very same order, these two appeals are taken up together for disposal. The parties shall henceforth be referred to as they were arrayed before the Trial Court. 4. The plaint filed in O.S.No.129/2017 discloses the following; that the defendant No.1 was a stock broker and a trading member at the Bombay Stock Exchange as well as the National Stock Exchange and was authorized by the regulatory authorities to deal in shares and securities, derivatives, commodities, currencies, futures and options. The defendant No.2 was the regional office while the defendant No.3 was the franchisee of the defendant No.1 at Bidar. The defendant No.4 was the person responsible for the affairs of the defendant No.3 while the defendant No.5 was the employee of the defendant No.1. The plaintiff had availed the services of the defendant No.1 through the defendant No.3 for the purpose of trading in stocks and shares and over a period of time, plaintiff held shares in various companies through the account held by him with the defendant No.1. 5. The plaintiff claims that the defendant Nos.4 and 5 approached the plaintiff during January - 2015 and informed him that he could trade through the defendant No.1 at the National Stock Exchange through another investment medium called Futures and Options. The plaintiff, therefore, invested his savings, in all amounting to a sum of Rs.47,65,000/- in the future and options segment of National Stock Exchange. The plaintiff, therefore, invested his savings, in all amounting to a sum of Rs.47,65,000/- in the future and options segment of National Stock Exchange. The plaintiff claims that during the usual course of business, he was receiving messages relating to the transactions done by the defendant Nos.1 to 3 for the plaintiff quoting the party code assigned to the plaintiff (GBN132S010). That on 25.10.2016, the plaintiff received a message with the party code mentioned as GNN132S010 instead of GBN132S010. The petitioner grew suspicious and started enquiring with the defendant Nos.4 and 5. He then learnt that the cheques drawn by the plaintiff and which were handed over to defendant Nos.4 and 5, were in turn handed over to defendant Nos.7 to 9 who were the office bearers of defendant No.6 for encashment, through the defendant No.10 which was the clearing house. He further stated that once the cheques were encashed, the defendant Nos.4 and 5 in collusion with defendant Nos.6 to 9 would withdraw the amount. In addition, he contended a cheque for a sum of Rs.29,000/- that was drawn by the defendant No.1 favouring the plaintiff was unauthorizedly sent to the defendant Nos. 4 and 5 who fraudulently encashed it. Thus, the plaintiff claimed that defendant Nos.3 and 4 as franchisees and defendant No.5 as employee of the defendant No.1 had defrauded the plaintiff and that he was constrained to lodge a complaint with the police which culminated in crime No.223/2016. The plaintiff, therefore, claims that defendant Nos.1 and 2 being the principal of the defendant Nos.3 and defendant Nos. 4 and 5 being the employees of defendant No.1 were jointly and severally liable along with defendant Nos.4 to 9, to restore the money that they had defrauded the plaintiff. He also filed an application under Order 39 Rule 1 and 2 read with section 151 of CPC to pass mandatory injunction to direct defendant No.1 to deposit a sum of Rs.47,69,000/-. 6. The defendant Nos.1 and 2 filed their written statement claiming that the defendant No.3 was a "nonexistent entity" and that the defendant No.4 was their franchisee/ sub-broker from the year 2014 and was authorized to "carry out and facilitate securities transactions with the defendant No.1 in the cash segment and futures and options segment respectively, of the National Stock Exchange of India Limited........". They also contended that " The defendant No.4 in his capacity as a Franchisee and or Authorised person was to introduce prospective clients to the defendant No.1, ........ It is only for the operational ease, that the clients interact with the Franchisee for placing trades in the stock market for and on behalf of such clients." They further contended that the defendant Nos. 4 and 5 were thus not the employees of the defendant No.1 and that the defendant No.5 was a "rank outsider". They also contended that the transaction between the plaintiff and the defendant Nos.4 and 5 were private transactions and that the defendant No.1 was not vicariously liable for the same. They further contended that every investment made in the capital market would be acknowledged in a contract note and in so far as the present case is concerned, there were no corresponding contract notes and it was precisely for this reason that the complaint lodged by the plaintiff before the Investor Grievance Redressal Mechanism of National Stock Exchange was rejected. They urged that the dispute in controversy had to be adjudicated in the light of the rights and duties specified under the guidelines issued by the Securities and Exchange Board of India. They further contended that the entire controversy arose due to the negligence of the plaintiff and that he alone had to be blamed. 7. The trial Court noticed the contents of the plaint and held that there was prima facie proof of the plaintiff parting with substantial sums of money with the defendant Nos. 3 and 4, as the franchisee of defendant No.1 and also that the defendant Nos. 6 to 9 had conspired in the sordid saga of defrauding the plaintiff, passed an Order and directed the defendant No.1 to deposit a sum of Rs.30,00,000/- in a Fixed deposit so that the parties succeeding would be entitled to encash the amount in deposit. 8. The counsel for the defendant No.1 submitted that the defendant No.4 was though the franchisee of defendant No.1 but yet was not authorised to receive any money from the plaintiff or any customer but their role was limited to facilitating clients to trade and transact on the floor of the stock exchanges. 8. The counsel for the defendant No.1 submitted that the defendant No.4 was though the franchisee of defendant No.1 but yet was not authorised to receive any money from the plaintiff or any customer but their role was limited to facilitating clients to trade and transact on the floor of the stock exchanges. The defendant No.1 contended that the defendant No.4 was not authorised to provide clients with any investment advice or to recommend any financial product on behalf of the defendant No.1. The defendant No.1, thus contended that the advice given by defendant Nos.4 and 5 to the plaintiff for investing in future and options at the National Stock Exchange is beyond the authority of defendant No.4. The defendant No.1 claims that the purported agreement between defendant Nos. 4 and 5 was a private arrangement between them and that defendant No.1 cannot be held liable for the acts of defendant No.4. The learned counsel also reiterated that the defendant No.4 and 5 were not employees but were certainly agents and in view of the fact that they had exceeded their authority in receiving money in the name of defendant No.1 under the guise of trading in futures and options without any express authorisation by the defendant No.1, the defendant No.1 cannot be fastened with any liability arising out of any act done by his agent beyond the authority. The learned counsel relied upon sections 227 and 228 of the Indian Contract Act, 1872. The learned counsel relied upon the judgment of the Apex Court in State Bank of India vs Smt.Shyama Devi, (1978) 3 SCC 399 . Furthermore, the learned counsel contended that the trial Court was not justified in entertaining an application which was filed under order 39 Rule 1 and 2, since the said provision did not deal with any contractual rights of the parties. The learned counsel contended that the proper provision to be invoked was Order 38 Rule 5 of CPC and if the application was filed under Order 38 Rule 5 of the CPC, the defendant No.1 was entitled to raise all such defenses that are available to it, such as commercial solvency and that it was a going concern. The learned counsel contended that the proper provision to be invoked was Order 38 Rule 5 of CPC and if the application was filed under Order 38 Rule 5 of the CPC, the defendant No.1 was entitled to raise all such defenses that are available to it, such as commercial solvency and that it was a going concern. The learned counsel for the defendant No.1 stated that the defendant No.1 is a large investment company with branches all over India and had sizeable business at the National Stock Exchange and therefore, assuming but not admitting that the plaintiff is entitled for suit relief, it would not be impossible for the plaintiff to recover the money in case the plaintiff succeeded in the suit. Therefore, he contended that there is no need to block a huge sum of money in a fixed deposit. 9. The learned counsel for the plaintiff on the other hand contended that the application filed by the plaintiff though under Order 39 Rule 1 and 2 of CPC but the trial Court has passed the impugned order in exercise of its inherent power to do substantial justice between the parties. He further submitted that defendant No.1 having once admitted that defendant No.4 was its sub-broker/ Franchisee and that they were authorised to entertain investments, there was a prima facie case that the defendant No.4 acting as such agent had received the money from the plaintiff in the name of defendant No.1. Therefore, he contends that the plaintiff had exercised due diligence in drawing all the cheques in the name of defendant No.1 and handing it over to the defendant No. 4 who was the franchisee. He drew support from the Judgment of the Apex Court in Haryana Gramin Bank and another vs. Madanlal, 2011 15 SCC 113 . He also relied upon the judgment of the Apex Court in Dorab Cawasji Warden vs. Coomi Sorab Warden and others, (1990) 2 SCC 117 , to contend that the relief of interim mandatory injunction is designed to preserve the status quo until the final hearing, when full relief may be granted or to compel the undoing of those acts that has been illegally done or the restoration of that which was wrongfully taken from the party complaining. The learned counsel contended that if the defendant No.1 is wound up, he would not stand a chance to recover the money as he is a neither a secured nor an unsecured creditor. The learned counsel for the plaintiff brought to the notice of this Court a complaint dated 10.12.2016 lodged by the defendant No.1 against the defendant Nos. 4 and 5, wherein it is claimed that the defendant Nos.4 and 5 had unauthorisedly received investment from the general public of Bidar. Thus, the learned counsel would contend that defendant No.1 is also in agreement with the fact that defendant Nos.4 and 5 had defrauded the plaintiff. Thus the only question remains to be considered is whether such acts of the defendant Nos.4 and 5 could be deemed to be acts committed by them as the agent of defendant No.1 or acts committed proprietarily by them. The learned counsel, therefore, would contend that the plaintiff being a gullible person cannot be burrowing an endless path and that he should have some guarantee that he would be able to recover the money, if he succeeds in the suit. 10. Having heard the learned counsel for the plaintiff and defendant No.1 some facts that are not in dispute are: a. The defendant No.3 was the franchisee/ sub- broker of the defendant No.1 at Bidar. The defendant No.4 was also authorized to bring in transactions in the F & O Segment. b. The plaintiff is a bonafide customer of defendant No.1 who had brought in transactions in the equity market through the defendant Nos.3 and 4. c. The plaintiff had paid a sum of Rs.47,65,000/- through account payee cheques drawn in the name of defendant No.1. These cheques were encashed and appropriated by the defendant Nos.3 and 4. d. The defendant No.1 was aware that the plaintiff was investing in futures and options which is evident from the whatsapp message generated by the defendant No.1 and forwarded to the plaintiff. e. The defendant No.1 by lodging a compliant with the police had acknowledged the fact that defendant Nos.4 and 5 representing to be the agents of defendant No.1 had defrauded the plaintiff. 11. Now turning to the threshold contention of the defendants Nos.1 and 2 that an application to direct the defendant Nos. e. The defendant No.1 by lodging a compliant with the police had acknowledged the fact that defendant Nos.4 and 5 representing to be the agents of defendant No.1 had defrauded the plaintiff. 11. Now turning to the threshold contention of the defendants Nos.1 and 2 that an application to direct the defendant Nos. 1 and 2 to deposit the suit claimed by recourse to Order 39 Rules 1 and 2 of CPC was not maintainable, the Apex Court in the case of Salem Bar Association has held that the Code of Civil Procedure is a functional tool of procedural law. Therefore, when a substantive right is sought to be redeemed, it cannot be stultified by claiming that the procedural law invoked is not appropriate. The Courts in India are not mere Courts of law but are Courts of equity and the philosophy behind Section 151 of the Code is to do justice to the parties. Further, an interim mandatory injunction can be granted by the Court in exercise of power under Section 94(e) or under Section 36 of the Specific Relief Act or even under Order 39 Rule 10 of CPC. The whole purpose of these provisions is to ensure that a party succeeding could reap the benefits of the decree. An interim relief is always construed as a step in aid to the final relief. Thus, it is the substance of the interim relief sought for and not the provision of law invoked that has to be scanned and Courts are cognizant of the fact that quoting a wrong provision of law should not deprive a person, relief that he is entitled to. Thus, the first contention of the defendant Nos. 1 and 2 being uninspiring is devoid of merit and is thus, rejected. 12. In so far as the contention that the defendant No.4 was not an employee but an agent and that the acts perpetrated by him were beyond his authority and thus, the defendant Nos. 1 and 2 were not vicariously liable to account for the acts in view of Sections 226 and 227 of the Indian Contract Act is concerned, the memorandum of understanding placed on record by the defendant Nos. 1 and 2 would indicate that the defendant No.4 was offered to be registered as an authorised person in Futures & Options Segment of National Stock Exchange. 1 and 2 would indicate that the defendant No.4 was offered to be registered as an authorised person in Futures & Options Segment of National Stock Exchange. Further, under the heading "Risk Management" of the aforesaid memorandum of understanding, the defendant No.4 was made "responsible for collections". 13. It is indisputable that the plaintiff had invested in the equity market through the defendant No.4 as the Sub-broker of defendant No.1. There are four whatsapp messages that are placed on record which reads as follows: 1. "Dear Client GBN132S010, your margin shortfall in F & O segment is -653207.96 so please confirm the fund at your branch/ franchise to maintain the position." 2. "Dear Client GBN132S010, your margin shortfall in F & O segment is -308231.75 so please confirm the fund at your branch/ franchise to maintain the position." 3. "Dear GBN132S010, your margin shortfall of Rs.995938.53 is due in F & O segment, please confirm fund to avoid squreoff." 4. "Dear GBN132S010, your margin shortfall of Rs.898238.53 in F& O segment is overdue , please confirm fund to avoid squreoff, final intimation." 14. The learned counsel contended that these whatsapp messages are fake and can be fabricated by any person. However, no such contention is raised by the defendants in their written statement. If these messages are considered, they point to a certain fact that the defendant No.1 knew that the plaintiff had invested in Future & Options segment. It is evident from a complaint lodged by the defendant No.1 with the New Town Police, Bidar that the defendant No.4 was a person authorized by the defendant No.1 in the National Stock Exchange Futures and Options section with effect from 28.05.2014. The defendant No.1 did not place any material on record to show that the plaintiff was transacting in Future & Options by transferring funds directly to the account of the defendant No.1 and that such funds were not collected by the defendant No.4. If the defendant No.4 has collected the funds from the plaintiff in the ordinary course of business, then the plaintiff cannot be accused of not exercising diligence to ascertain whether the defendant No.4 was authorized to do so. 15. If the defendant No.4 has collected the funds from the plaintiff in the ordinary course of business, then the plaintiff cannot be accused of not exercising diligence to ascertain whether the defendant No.4 was authorized to do so. 15. Schedule-Ii to the Securities and Exchange Board of India (Stock Brokers and Sub Brokers) Regulations, 1992 sets out the code of conduct for brokers and sub brokers and the relevant portions relating to sub brokers are extracted below: Fairness to clients: A sub broker, when dealing with a client, shall disclose that he is acting as an agent ensuring at the same time, that no conflict of interest arose between him and the client. In the event of a conflict of interest, he shall inform the client accordingly and shall not seek to gain a direct or indirect personal advantage from the situation and shall not consider clients interest inferior to his own. Investment advice: A sub broker shall not make a recommendation to any client who might be expected to rely thereon to acquire, dispose of, retain any securities unless he has reasonable grounds for believing that the recommendation is suitable for such a client upon the basis of the facts, if disclosed by such a client as to his own security holdings, financial situation and objectives of such investment. The sub broker should seek such information from clients, wherever they feel it is appropriate to do so." Section 238 of the Indian Contract Act reads as follows: Effect, on agreement, of misrepresentation or fraud by agent.--- "Misrepresentation made or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed by the principals; but misrepresentations made, or frauds committed, by agents, in matters which do not fall within their authority, do not affect their principals." 16. In an express agency created by contract, there could be apparent or an implied authority of an agent to do or to cause to be done such acts in the course of a business. The general rule is that the principal is not bound by a payment to an agent unless such payment was made in the ordinary course of business and in a manner actually or apparently authorized by him. 17. The general rule is that the principal is not bound by a payment to an agent unless such payment was made in the ordinary course of business and in a manner actually or apparently authorized by him. 17. As stated earlier, the plaintiff was a customer of the defendant No.1 and there is ample proof of payments made by the plaintiff in the name of the defendant No.1. One circumstance that weighs in favour of the plaintiff is the fact that the investments in the equity market were made at the terminal of the defendant No.4 who used to execute the buy or sell orders of the plaintiff. The whatsapp messages indicate that the defendant No.1 knew that the plaintiff had an exposure in the Future & Options segment in the account maintained by the plaintiff. Curiously, the defendant Nos. 1 and 2 have not placed on record the tripartite agreement entered into between the plaintiff, defendant No.1 and the defendant No.4, as mandated under sub-clause (4) of clause C of Schedule II to the Securities and Exchange Board of India (Stock Brokers and Sub Brokers) Regulations, 1992 which perhaps could have thrown more light on the terms of engagement of the defendant Nos.1 and 4. The defendant No.1 was unable to provide any information as to whether it is liable to pay any commission charges and also whether any amount is kept in deposit by the defendant No.3. 18. In the case of State Bank of India vs. Shyama Devi, (1978) 3 SCC 399 , the Court had the benefit of considering the issue on the basis of the evidence adduced by the parties and thus, cannot be relied upon while considering an interlocutory application. However, it is apposite to refer to the Judgment of the Apex Court reported in Dorab Cawasji Warden vs Coomi Sorab Warden and others, (1990) 2 SCC 117 wherein paragraph 16 reads as under: "16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: 1. The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. 2. It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. 3. The balance of convenience is in favour of the one seeking such relief. 19. The whole dispute in the present case revolves round the question whether, the defendant No.4 was authorized to collect the investments from the plaintiff and whether this was done during the course of business and as to whether the plaintiff had any knowledge of the defendant No.4 collecting money for the defendant No.1 from the plaintiff. These questions cannot be decided on the basis of affidavits but are to be adjudicated in a full fledged trial and thus qualifies to be classified as a "triable case". 20. Thus, there was a prima facie and a triable case made out by the plaintiff for grant of an injunction and this finding of the Trial Court cannot be found fault with. The Trial Court, had though held that the plaintiff had made out a prima facie case, curiously restricted the interim relief to deposit a sum of Rs.30,00,000/- as against the suit claim of Rs.47,94,000/-. The impugned Order does not disclose any reason for the Trial Court to do so. As a matter of fact, the defendants were unable to explain the circumstances under which the Trial Court did so. It seems that the Trial Court has directed the deposit of a part of the amount to ensure that the parties do not dilate the proceedings. At any rate, since the plaintiff has made out a case, it was inevitable that the Trial Court must have secured the interest of the plaintiff in full. 21. It seems that the Trial Court has directed the deposit of a part of the amount to ensure that the parties do not dilate the proceedings. At any rate, since the plaintiff has made out a case, it was inevitable that the Trial Court must have secured the interest of the plaintiff in full. 21. Coming to the question of balance of convenience and irreparable hardship, it goes without saying that the plaintiff would be put to loss and injury if his interest is not secured. 22. Now the crucial question is the issue regarding comparative hardship. The defendant No.1 is a Stock broker of repute and has pan India operations. The plaintiff has failed to demonstrate that the defendant No.1 is not commercially solvent or is attempting to indulge in any acts of insolvency. The affidavit accompanying the application for temporary injunction does not set out any foundation for the apprehension of the plaintiff. The defendant No.1 is a stock broker and a business enterprise in the financial market and thus it would be inequitable to direct the defendant No.1 to deposit the amount in a fixed deposit and deprive it the business opportunity that the amount could generate. However, ends of justice could be met by directing the defendant No.1 to furnish a bank guarantee. Hence the following order. 23. The appeals filed by the plaintiff and the defendant No.1 and 2 are partly allowed. The impugned Order passed by the Trial Court dated 06.12.2018 is modified and the defendant No.1 is directed to furnish a bank guarantee for a sum of Rs.47,94,000/-, unconditionally guaranteeing the repayment of a sum of Rs.47,94,000/- in the event of the plaintiff succeeding in the suit and such bank guarantee shall be kept alive till the disposal of the suit and or till such further time as the Trial Court may specify. The findings recorded by this Court are for the limited purpose of deciding this appeal and the Trial Court shall not be influenced by the same at the time of final disposal of the suit. The bank guarantee shall not cover the interest that may be awarded by the Trial Court. 24. In view of the disposal of appeals, the question of considering the I.A.No.1/2019 in MFA No.200388/2019 for temporary injunction and I.A.No.2/2019 in MFA No.200768/2019 to direct the deposit of the amount would not arise.