A.M. Bhattacharjee, J. - (1.) After hearing Mr. Sinha, the Learned Counsel for the Petitioner and the learned Advocate -General appearing for the Respondents I have not been able to find any reason to deviate from the view taken by me in my order passed on 8th May, (sic) in Krishen Kumar Agarwala vs. Reserve Bank of India, (Matter No. 2328 of 1989) that, for the reasons stated in some details in that order in Krishen Kumar Agarwala (supra) the provisions of Article 226(3) providing for automatic vacation of an ex -parte interim order on the ground of non -disposal of the application for its vacation within the period specified therein, are mandatory. As a result, I must hold the interim order passed in this case has already stood vacated as the application for its vacation has not been disposed of within the period specified in Article 226(3). The additional ground urged by Mr. Sinha in this case is that if the application for vacation of the interim order comes up before the Court and the Court passes any order thereon, including an order that the application shall be disposed of along with the main Writ Petition, the application shall be deemed to be disposed of within the meaning of Article 226(3), to arrest the automatic vacation of the interim order under the aforesaid provisions. No such order could be brought to my notice to have been made in this case. But that apart, I have not been able to agree that an application, not actually disposed of, but postponed for disposal to a later date or stage, must nevertheless be deemed to have been disposed of within the meaning of the provisions of Article 226(3). But such automatic vacation would not, as it cannot, prevent me from considering, now that I have heard both the parties and gone through affidavits, as to whether the materials on record warrant any interlocutory interdiction.
(2.) As I have pointed out in Krishen Kumar Agarwala, relying on a Division Bench decision of this Court in Ashalata Mitra ( : 59 CWN 692), the fact that the very same question would have to be determined at the final hearing of the lis, is, by itself, no reason not to consider, if necessary, the same question at the interim stage also; but any such determination cannot obviously take the place of the determination of that question at the final hearing and the matter would require final determination afresh at the final stage, may be on further and on more detailed materials. Even the question of the maintainability of the proceeding can, and very often cannot but, be taken into consideration, while considering the question of granting interim relief, for if the maintainability of a proceeding prima facie appears to be doubtful, an interim interdiction should not ordinarily be imposed. Needless to repeat, refusal of interlocutory relief in such a case cannot be taken to be a final determination of the question of maintainability.
(3.) The case at hand relates not to a statutory, but a purely commercial contract already entered into. On the materials as on record at present, no question of promissory estoppel or infraction of any statutory provision appears to have been made out. That being so, under the law as laid down by the Supreme Court in Radha krishan Agarwal (AIR 1977 SC 1946), retired rather recently in Bareily Development Authority ( : AIR 1989 SC 1076), a writ may not be available so as to compel the authorities to remedy a breach of such a non -statutory concluded contract, except in the rarest of cases. Any interlocutory interdiction at this stage would therefore be not justified and should accordingly be declined.;