1. This appeal is at the instance of the defendants Indian Banks' Association and United Commercial Bank against an order passed by the Hon'ble single Judge in the following terms :--
'****It is further ordered that the defendant Banks' Association, its servants, agents and assigns be and they are hereby prohibited and restrained from taking any further steps other than those already taken in respect of the letter of cancellation and/or withdrawal dated the eight day of March one thousand nine hundred and eighty.'
And also it was made clear that this order would not stand in any way in the way of the defendants Andhra Bank Limited and United Commercial Bank from considering each consignment note issued by the plaintiff strictly on their merits and from accepting or rejecting the same after such consideration till the disposal of the suit. Being aggrieved by this order the appellants herein have preferred this present appeal.
2. The case made out by the plaintiff in its application for Injunction is that the plaintiff carries business as carrier and transport agent for reward. The Indian Banks' Association on the application being made by the plaintiff recognised the transport operator, the plaintiff, and recommended that lorry receipts issued by the plaintiff on the basis of the undertaking given by the plaintiff to the content of full value of such receipts would be recognised by the member banks for the purpose of payment on the consignment when the bank is a consignee.
3. There is a scheme named as 'IBA Scheme for Recommending Transport Operators to Member Banks'. It appears that the United Commercial Bank, according to the plaintiff, all on a sudden refused to recognise the consignment receipt for the purpose of payment by the said bank. The defendants on the basis of that came to understand that Indian Banks' Association has recommended for the de-recognition of the said transport operator under the Indian Banks' Associations scheme.
4. The Calcutta Transport Operators' Co-operative Service Society Limited was intimated on 18th of March, 1980 that though the name of the plaintiff has been recommended before member banks for being placed in the approved list, the same has now been withdrawn with immediate effect. It was further stated in the said letter that they should not now issue lorry receipts in the special form under the IBA scheme with the code number to anyone and that any existing stock of those forms with them should not be used at all. Being aggrieved by the said order of cancellation which is at page 47 of the paper book the suit was filed.
5. As we have already stated the Hon'ble single Judge has given an interim order to the extent we have quoted hereinbefore. Against that judgment the United Commercial Bank as also the Indian Banks' Association have preferred the present appeal.
6. Mr. Mitter on behalf of the appellants contended firstly that the Indian Banks' Association is not a juristic entity and not registered under any of the statutory provisions and therefore the suit as framed is not maintainable, In reply to the contention Mr. Sen on behalf of the respondents contended that it is not correct to say that the suit as framed is not maintainable because the plaintiff can at any time amend its (plaint. At the present moment we are not concerned with the amendment of the plaint, but the suit as framed against Indian Banks' Association, which is neither registered under any statutory provision nor incorporated and under the membership of the Association all the members are not made parties in the proceeding. Therefore, on the face of it prima facie for the purpose of this injunction application it can safely be concluded that the suit as against Indian Banks' Association, prima facie, may not be maintainable subiect, however. to the right, if any, of the plaintiff to amend the plaint if they are so advised. But, be that as it may therefore, the order de-recognising the transport operator at the instance of Indian Banks' Association or any order passed thereon in the absence of the proper representation of the Indian Banks' Association cannot be effectively made as against them.
7. Mr. Mitter secondly contended that under Section 41(e) of the Specific Relief Act no injunction can be granted. Mr. Mitter further referred to Sections 10 and 14(d) of the Specific Relief Act to his assistance, Mr. A. K. Sen on behalf of the respondents, however, contended that under Section 38 of the Specific Relief Act he is entitled to an injunction. Apart from what we have already held we are not going to decide this question at this stage. Mr. Sen contended that the Indian Banks' Association is an instrumentality and agency of the Government and therefore any order passed by the Indian Banks' Association which is binding or given effect to by the United Commercial Bank, which is admittedly a nationalised bank, has the effect of a Government order. The Supreme Court in a number of cases has decided that the agency of the Government must act in accordance with the principles of natural justice or such other principles which are also applicable in respect of the Government itself. Apart from the fact that this point has never been raised before the Hon'ble single Judge and no fact is forthcoming on the petition for injunction, we are not going to decide this question, even prima facie, in this proceeding. It appears to us that the order of injunction which was made more than three months after the order was passed and has taken effect and after it has already taken effect an order in a mandatory form directing contrary to what is there in the order itself should be made only in exceptional circumstances, namely, that the plaintiff will suffer irreparable loss and injury and balance of convenience is in favour of the plaintiff. In both these cases in our opinion the balance of convenience is not in favour of the plaintiff. More so. when it is clear that the plaintiff by this de-recognition does not go out of business and carries on business as argued by Mr. Mitter before us. Even in their affidavit it is so admitted. Mr. Sen, however contended that between the transport operators who are recognised by the nationalised bank or Indian Banks' Association and those who are not so recognised, there is lot of difference in carrying on of business and the volume naturally has to go down. It was. however, not slated that after the de-recognition has been made bythe Indian Banks' Association the plaintiff's business has come down.
8. In the circumstances, therefore, we are of the opinion that the order of the learned Judge to the extent that it restrains from taking any further steps in pursuance of the order of cancellation already made must be set aside which we hereby do. We, however. make it clear that if the plaintiff applies to the bank concerned and the bank may however consider their application on merits for transportation of their goods -- the bank as the consignee -- and give facilities, they may do so, but this is left to the bank itself and there is no order on the bank to do the same. We further, however, make it clear that the plaintiff will not issue the lorry receipts in special form under IBA scheme and the existing stock of such form should not be used at all.
9. With these observations we allow the appeal. The cost of this appeal will be cost in the suit.
Sambhuchandra Ghose, Ag. C.J.
10. I agree.