ORDER : 1 - By way of this petition under Article 226 of Constitution of India petitioner company has prayed for following reliefs :- “A - Direct Respondent Bank to forthwith release funds lying in FDRs at ANNEXURE A in favor of Petitioner by issuing Pay Order/Demand Draft in name of Petitioner or by crediting bank account of Petitioner maintained with any other Commercial/Scheduled Bank by way of banking channel recognized by Reserve Bank of India; B - Pending admission hearing and final disposal of present petition Hon’ble Court be pleased to direct Respondent Bank not to transfer/alienate monies lying in impugned FDRs i - e - principal amount and interest to anyone without leave of Hon’ble Court; C - Further be pleased to direct Respondent Bank to pay to Petitioner an interest at rate of 12% per annum as a compensation of financial loss from date of creation of respective FDRs i - e - from 26 - 12 - 2016 and 29 - 12 - 2016 till its realization; D - Any other and further relief deemed just and proper that Hon’ble Court deems fit to be granted in interest of justice; E - To provide cost for petition - ” 2 - case of petitioner is that petitioner company is rendering consultancy services with respect to interior designing for commercial as well as residential establishments and their services are not limited to interior designing only but stretches to landscape designing garden planning and other architectural services also - In furtherance of this petitioner company had chosen respondent Bank as its banker and maintained current account with it right from year 2007 - In order to gauge its additional financial requirements petitioner company had chosen to seek an overdraft facility by opening overdraft account No - 32660431267 with respondent Bank - All necessary formalities had been complied with as per guidelines of Reserve Bank of India including K - Y - C - (Know Your Customer) - 2 - 1 It is further case of petitioner that it had adopted practice to request respondent Bank to create Fixed Deposit Receipts that in turn would be utilized to secure bank guarantee and for carrying out such process petitioner company passed a board resolution empowering directors/employees of company to ply such deposits - For dealing in aforesaid FDRs company had given an authority in two of directors and one employee had adopted practice to request respondent Bank to create Fixed Deposit Receipts that in turn would be utilized to secure bank guarantee and for carrying out such process petitioner company passed a board resolution empowering directors/employees of company to ply such deposits - For dealing in aforesaid FDRs company had given an authority in two of directors and one employee known as Mr - Bhupendra Mafatlal Panchal vide its resolution dated 08 - 02 - 2013 and as per policy of petitioner company fresh board resolution for funds to be parked in FDRs was also passed - petitioner has further asserted that said Bhupendra Panchal an employee of company was looking after clerical and other miscellaneous work of company right from year 2012 and he according to petitioner executed a deed with petitioner in year 2009 by which his share in profit was determined in projects in which he will be devoting his contribution but for that partnership arrangement was not registered before Registrar of Firms - Somewhere in year 2015 said Mr - Panchal started lodging false and unjustified claim with petitioner company which created a loss of confidence and then fraudulent tactics of defalcation of funds in company including passing of forged board resolution of company - In process Mr - Panchal in order to gain access to overdraft account No - 32660431267 unauthorizedly added his name and signature in mandate on 26 - 10 - 2016 with aid and assistance of Branch Manager of respondent Bank and surreptitiously during demonetization period which commenced from 08 - 11 - 2016 to 31 - 12 - 2016 without knowledge of directors of petitioner company deceptively used blank cheque of overdraft account and created two FDRs whereof one of Rs - 65 Lacs on 26 - 12 - 2016 and another of Rs - 51 Lacs on 29 - 12 - 2016 in joint name of company and Bhupendra Mafatlal Panchal for which no board resolution was passed - No sooner this misappropriation committed by Mr - Panchal came to knowledge of company with immediate effect respondent Bank was approached by company by representations dated 10 - 01 - 2017 and 11 - 01 - 2017 respectively requesting to release amounts in favour of company which were fraudulently invested by said Mr - Panchal in FDRs - 2 - 2 It is case of petitioner that on 07 - 02 knowledge of company with immediate effect respondent Bank was approached by company by representations dated 10 - 01 - 2017 and 11 - 01 - 2017 respectively requesting to release amounts in favour of company which were fraudulently invested by said Mr - Panchal in FDRs - 2 - 2 It is case of petitioner that on 07 - 02 - 2017 an application was also filed before respondent Bank to close down account and then through advocate petitioner company got issued notice to respondent Bank narrating entire sequence of events and fraud being committed by Mr - Panchal in connivance with erstwhile Branch Manager of Bank - said notice was followed by public notice as well on 05 - 01 - 2017 - 2 - 3 It is further case of petitioner that being aggrieved and dissatisfied with conduct of Bank since no attention was paid petitioner on 24 - 02 - 2017 lodged a complaint before Banking Ombudsman raising a grievance against respondent Bank but said authority i - e - Banking Ombudsman rejected complaint of petitioner company vide order dated 04 - 05 - 2017 - However while disposing of same it was observed that FDRs were opened due to some procedural lapse on part of respondent Bank - 2 - 4 It is further case of petitioner that in interregnum period when proceedings were pending before Banking Ombudsman on 13 - 04 - 2017 Bank wrote to petitioner that amount lying in FDRs as indicated above would only be released once all parties i - e - petitioner and said Mr - Panchal would make a joint request for its closure - On 15 - 05 - 2017 petitioner even lodged a complaint before Commissioner of Police City of Surat against Mr - Panchal as well as against In-charge Branch Manager of respondent Bank but later on after putting rigorous efforts ultimately respondent Bank closed down overdraft account on 30 - 05 - 2017 - At this stage it is mentioned by petitioner that respondent Bank closed account despite no objection was received by Bank from Mr - Panchal - 2 - 5 According to petitioner said Mr - Panchal had filed a Special Civil Suit on 04 - 09 - 2017 before Civil Court in form of Special Civil Suit No - 329 of 2017 and vexatious litigation is generated by Mr - Panchal - closed account despite no objection was received by Bank from Mr - Panchal - 2 - 5 According to petitioner said Mr - Panchal had filed a Special Civil Suit on 04 - 09 - 2017 before Civil Court in form of Special Civil Suit No - 329 of 2017 and vexatious litigation is generated by Mr - Panchal - On 11 - 01 - 2018 an application under Order VII Rule 11(d) was filed at Exh - 17 to dismiss suit but same was not entertained - Though respondent Bank was not a party to civil proceedings request of petitioner came to be rejected on 21 - 11 - 2017 and despite fact Bank has admitted mistake which has been committed in creating FDRs as stated above no request is considered in proper perspective - 2 - 6 said request was turned down on account of summon having been received of suit proceedings which were initiated by Mr - Panchal as stated above - On two occasions petitioner informed Bank that suit proceedings has nothing to do with present controversy and in fact amount had gone from account of company and as such simply because summon came to be issued request might not have been rejected - Pursuant to complaint which was lodged by petitioner before Police Commissioner Surat an FIR was also lodged on 07 - 03 - 2018 at City Police Umra against Mr - Himanshu Bhatt Branch Manager of respondent Bank and Mr - Bhupendra Panchal who created FDRs and said FIR was registered for offence under Sections 406 409 420 465 467 468 471 and 120B of Indian Penal Code - Against said FIR Mr - Panchal preferred a petition being Criminal Misc - Application No - 5906 of 2018 before this Court on 13 - 03 - 2018 for seeking quashment of said FIR in exercise of power under Section 482 of Code of Criminal Procedure in which Hon’ble Court granted ad-interim relief on 19 - 03 - 2018 - On same lines Mr - Himanshu Bhatt Branch Manager of Bank had also preferred Criminal Misc - Application No - 8187 of 2018 but no relief had been granted to Mr - Bhatt - In said proceedings Mr - Bhatt stated that upon oral request of Mr - Panchal FRDs were booked at relevant point of time on 26 - 12 - 2016 and - Himanshu Bhatt Branch Manager of Bank had also preferred Criminal Misc - Application No - 8187 of 2018 but no relief had been granted to Mr - Bhatt - In said proceedings Mr - Bhatt stated that upon oral request of Mr - Panchal FRDs were booked at relevant point of time on 26 - 12 - 2016 and 29 - 12 - 2016 respectively - Later on in civil proceedings learned Civil Court on 30 - 06 - 2018 was pleased to allow application under Order VII Rule 11(d) of Civil Procedure Code and suit came to be dismissed which was filed by Mr - Panchal against which Civil Revision being Civil Revision Application No - 430 Of 2018 was filed which was later on withdrawn on 23 - 07 - 2018 - Subsequently Mr - Panchal had filed first appeal being First Appeal No - 2983 of 2018 and by virtue of judgment and order dated 12 - 03 - 2021 appeal came to be allowed by restoring back plaint to its original file - Simultaneously complaint also came to be filed before Consumer Forum Surat against respondent Bank which came to be dismissed on 14 - 11 - 2019 - However it has been stated by petitioner that said complaint had nothing to do with FIR in question - However taking aforesaid circumstances in mind respondent Bank is taking advantage by not considering request of petitioner in view of pendency of proceedings before Civil Court as well as pendency of criminal proceedings and as such Bank had issued communication on 29 - 08 - 2020 and 31 - 08 - 2020 which has constrained petitioner to approach this Court for seeking reliefs as prayed for in petition - 3 - Learned advocate Mr - Ashutosh Dave appearing on behalf of petitioner has submitted that FDRs in question were in fact created by virtue of funds of company and it has nothing to do with Mr - Bhupendra Panchal and on contrary it is clearly evident that then Branch Manager Mr - Bhatt and Mr - Panchal committed fraud with company like this and therefore when FDRs are created out of funds of company there is hardly any reason not to grant request made by petitioner to Bank - It has been submitted that even subsequent to this after scrutiny of all relevant papers when Branch Manager then Branch Manager Mr - Bhatt and Mr - Panchal committed fraud with company like this and therefore when FDRs are created out of funds of company there is hardly any reason not to grant request made by petitioner to Bank - It has been submitted that even subsequent to this after scrutiny of all relevant papers when Branch Manager in categorical terms has stated that FDRs were inadvertently opened in joint name of M/s - J Parihar Interior Consultants Private Limited i - e - petitioner company and Mr - Bhupendra Panchal and this letter came to be issued on 18 - 09 - 2017 reflecting on page 24 of petition compilation after scrutiny of all relevant papers despite aforesaid proceedings which are pending and therefore when Bank itself wrote a letter to petitioner that through inadvertence FDRs have been created in joint name there is hardly any reason not to consider request of petitioner and as such Mr - Dave has requested to grant relief prayed for in petition - In addition thereto to substantiate this letter learned advocate Mr - Dave has pointed out statement of account of Bank attached to petition compilation on page 76 and thereby has submitted that these FDRs are created in joint name by mistake and funds have travelled from account of company and as such there is no earthy reason for respondent Bank not to release funds in respect of these FDRs - Learned advocate Mr - Dave has vehemently contended that aforesaid tactic has been played by ex-employee Mr - Panchal in connivance with then Branch Manager of respondent Bank and both are to be dealt with in accordance with law but till then sizable amount belonging to company may not be stuck up - According to Mr - Dave issue is practically clarified by Bank by way of writing a letter that FDRs in joint name have been created by sheer mistake and there is no other reason to investigate much into matter and as such relief prayed for deserves to be granted - Ultimately learned advocate Mr - Dave has submitted that irrespective of proceedings amount since belongs to petitioner company be made available back and hence there seems to be no disputed question of fact which requires long drawn trial and hence in exercise of extraordinary jurisdiction this Hon’ble Court may grant relief prayed for - No deserves to be granted - Ultimately learned advocate Mr - Dave has submitted that irrespective of proceedings amount since belongs to petitioner company be made available back and hence there seems to be no disputed question of fact which requires long drawn trial and hence in exercise of extraordinary jurisdiction this Hon’ble Court may grant relief prayed for - No other submissions have been made - 4 - Having heard leaned advocate for petitioner and having gone through relevant material attached to petition’s compilation following circumstances are not possible to be unnoticed before examining relief prayed for in petition :- 4 - 1 First of all from averments made on oath by petitioner itself it is indicating that a company itself has passed a resolution in board meeting empowering directors /employees to ply fixed deposits being created in bank and authority was vested in two of directors of company and an employee in name of Mr - Bhupendra Mafatlal Panchal - Further it appears from averments itself that Mr - Bhupendra Panchal was officially employed by petitioner and a deed was executed by him with petitioner in 2009 by which his share in profit was also determined in projects in which he would be devoting his contribution - It may be that having might not been registered but at same time this averment clearly indicates that there was a share in profit determined which has a direct nexus with company - 4 - 2 Now for this very grievance which has been voiced out about bank’s involvement with Mr - Panchal in creation of fixed deposits in question petitioner company approached competent forum i - e - office of Banking Ombudsman and this Lokpal Karyalaya after scrutiny of complaint of petitioner has clearly opined that complaint requires elaborate examination of documents and oral evidence and as such adjudication is not possible - This conclusion arrived at is reflecting on page 63 in form of communication to petitioner company dated 04 - 05 - 2017 - It reads as under :- “Please refer to your captioned complaint regarding fraudulent opening of account lodged with us vide your complaint dated February 24 2017 and a mail dated March 20 2017 on captioned subject - matter was taken up with State Bank of India SBI vide its mail dated April 15 2017 advised that there were some procedural lapses in process of TD “Please refer to your captioned complaint regarding fraudulent opening of account lodged with us vide your complaint dated February 24 2017 and a mail dated March 20 2017 on captioned subject - matter was taken up with State Bank of India SBI vide its mail dated April 15 2017 advised that there were some procedural lapses in process of TD opening for which administrative decision is to be taken by appropriate authority - They have also furnished us copies of both FDRs pay-in-slips and cheques wherein names of your company as well as one Shri Bhupendrakumar Mafatlal Panchal are found - It is difficult for this office to verify allegation of forgery made by you - In circumstances it is observed that your complaint matter requires consideration of elaborate documentary and oral evidence and proceedings before Banking Ombudsman are not appropriate for adjudication of such complaints - Accordingly your complaint is closed under Clause 13(c) of Banking Ombudsman Scheme 2006 against which no appeal facility is provided under Scheme - However you may approach any alternate forum of appropriate jurisdiction if so desired for redressal of your grievances - ” 4 - 3 Further no doubt it appears that creation of FDRs is out of funds of petitioner company but nonetheless this is subject matter in controversy of fraudulent act by Mr - Panchal who was undisputably not only employee but was a profit sharer in company as well as per say of petitioner itself - Now this very controversy is not only subject matter of civil suit being Special Civil Suit No - 329 of 2017 filed by Mr - Panchal but alleged connivance which has taken place has also resulted into filing of substantive criminal complaints and same are stated to be pending at both forums and as such it is not possible to accept at this juncture that simply because FDRs are created out of funds of company straightway be refunded to company - On contrary in civil suit when an application is filed under Order I Rule 10 of Civil Procedure Code for joining State Bank of India as necessary party a clear assertion is made with regard to this creation of FDRs which is reflecting on page 119 as well as page 120 of petition compilation - Hence there is a clear assertion interwoven in said proceedings hence to allow relief at this juncture simply Rule 10 of Civil Procedure Code for joining State Bank of India as necessary party a clear assertion is made with regard to this creation of FDRs which is reflecting on page 119 as well as page 120 of petition compilation - Hence there is a clear assertion interwoven in said proceedings hence to allow relief at this juncture simply because on basis of one letter written by successive Branch Manager at a subsequent point of time would be nothing to ignore aforesaid pending controversy - 5 - At this stage on basis of mere letter dated 18 - 09 - 2017 it is not possible for this Court to straightway grant relief as prayed for in this petition and as such on basis of material placed before this Court and on basis of averments which are made by petitioner company itself it appears to this Court that on basis of such a serious alleged fraud being practiced and which has a direct nexus with FDRs in question no case is made out by petitioner to grant relief as prayed for as a result of which petition being devoid of merits stands dismissed -