- (1.) THIS mandamus appeal is at the instance of the unsuccessful writ petitioners and is directed against order dated July 13, 2007, passed by a learned Single Judge of this Court by which His Lordship dismissed the said writ application on merit.
(2.) BEING dissatisfied, the writ petitioners have come up with the present mandamus appeal.
(3.) THE case made out by the appellants in the writ application out of which the present mandamus appeal arises may be summed up thus: 1) The appellant No. l is a partnership firm duly registered under the indian Partnership Act and carrying on business at the address given in the cause-title of the application. The appellant No. 2 carries on business through the agency and/or instrumentality of the appellant No. l from kolkata. In its usual course of business, the appellant No. l was associated with the respondent No. 1 and had business relationship with the respondent No. l as a dealer, distributor or consignment agent for the period of last 29 years. 2) In terms of the said agreement, the appellants had caused the respondent No. 3, the banker of the appellants, to issue a bank guarantee in favour of the respondent No. 1 for a sum of rupees five lakh. The said bank guarantee was extended from time to time at the instance of the appellants by the respondent No. 3. 3) The respondent No. 1 by letters dated June 7, 2002 and July 9, 2002 demanded a sum of Rs. 44. 99 lakh from the appellants which was without any basis. The respondent No. 1, in demanding such amount, had not taken into account the amount owed by the respondent No. l to the appellants. 4) By a letter dated July 11, 2002, the appellants had placed on record the correct facts regarding the transaction between the parties. It was pointed out to the respondent No. 1 by the said letter that after the adjustment of the claim of the respondent No. 1 against the appellants, and taking into account the amount payable by the respondent No. l to the appellants, a sum of Its. 7,19,576. 80p. became due and payable by the respondent No. l to the appellants. 5) Apprehending that the respondent No. l would invoke the bank guarantee furnished by the appellants, by a letter dated July 12, 2002, the appellants intimated the respondent No. 3 that such invocation would be a fraudulent one and that the respondent No. 3 should not permit encashment of the bank-guarantee without reference to the appellants. 6) The respondent No. l invoked the said bank-guarantee by a letter dated July 15, 2002. The agreement dated July 2, 1997 between the parties contained an arbitration agreement between the appellants and the respondent No. l but the said agreement was not binding upon the appellants and in any event, had no relation with the disputes involved in the writ application. Moreover, the respondent No. 3 is not a party to the purported arbitration agreement. 7) In the above circumstances, the appellant had filed a suit in the Original side of this High Court being Civil Suit No. 347 of 2002 thereby praying for recovery of Rs. 7,19,576. 80p. with other consequential relief and the said suit is still pending. 8) Subsequent to the filing of the said suit, on or about August 3, 2002, the appellants were surprised to receive a notice of a caveat lodged on behalf of respondent No. l and from the said the notice, the appellants for the first time came to learn that the respondent No. l had invoked the provision of Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972, for realization of its alleged claim against the appellants by issue of certificate. 9) The purported certificate alleged to have been issued under the provision of the said Act of 1972 was non est, null and void and was not binding upon the appellants. None of the respondents was entitled to enforce the purported certificate against the appellants or any of them. The said certificate had been issued in breach of the principle of natural justice and no hearing had been afforded to the appellants before the initiation of the purported recovery proceeding. ;