Bombay High Court
F.A. Construction vs Union Bank Of India (Earlier Known As ... on 14 September, 2021
Bench: K.K. Tated, Prithviraj K. Chavan
7-WP-L-14352-2021.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION [L] NO.14352 OF 2021
M/s. F.A. Construction ] Petitioner
Vs.
Union Bank of India ] Respondent
.....
Ms. Purvi Doctor a/w Ms. Sweta Rathod a/w Ms. Pallavi Kulkarni i/b
Elixir Legal Services, for Petitioner.
None for Respondents.
.....
CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 14 th SEPTEMBER, 2021.
.....
P.C.
1. Heard learned Counsel for the petitioner.
2. By this petition under Article 226 of the Constitution of
India, the petitioner is seeking direction against respondent-Union
Bank of India to release the mortgage documents deposited in
respect of the loan availed by the petitioner and thereafter the
same has been repaid on 29th August, 2020. It is the case of the
petitioner that the respondent refused to give the said mortgage
documents on the ground that in some other matter, they require
those documents. Hence, the present writ petition.
Digitally signed by SHAILAJA
SHAILAJA SHRIKANT SHRIKANT HALKUDE
HALKUDE Date: 2021.09.16 16:14:42 +0530
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3. Learned Counsel appearing on behalf of the petitioner relies
on the judgment of the Division Bench of this Court in case of
Surendra s/o Laxman Nikose Vs. Chief Manager & Authorized
Officer, State Bank of India, Nagpur, 2013 (5) Mh. L. J, 283
stating that Bank cannot exercise its right of general lien over the
title deeds deposited as security by the petitioner. Paragraph 12 of
the said judgment reads thus;
"12. It is also relevant to consider that there
was a relationship of employer and employee
between the parties. According to the
respondent-Bank, the petitioner who was its
employee had committed a fraud resulting in
monetary loss to the Bank, and for recovering
the the said loss, it had filed a civil suit. It is to
be seen that the relationship of Banker and
Customer was independent of the relationship of
employer and employee. The recovery that was
sought to be made by the respondent-Bank was
in its capacity as an employer who had been
defrauded by its employee. This is further clear
from the pleadings in aforesaid civil suit. It is
not the case of the respondent-Bank that
aforesaid lien was being exercised so as to
safeguard the amount of loan that remained due
and payable. In fact, the bank admits that the
loan amount has been fully received along with
interest. In such situation, it is not open for the
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respondent Bank to continue to exercise its
general lien for the securities deposited with it
especially when it seeks to recover the amount
from the petitioner on account of fraud
committed by him on the basis of the employer
and employee relationship. It is not in dispute
that such a general lien is not being exercised
for a general balance of account as required
under section 171 of the said Act. Further, it
would not be open for a bank to exercise its
right of general lien for the securities with it on
culmination of the banker and customer
relationship. It cannot exercise such general lien
under section 171 as an employer against an
employee especially when such employee who
had borrowed the amounts from the Banker had
fully repaid the same. It is thus, clear that there
is no legal justification on the part of the
respondent-Bank to retain said documents by
relying upon the provisions of section 171 of the
said Act".
4. In spite of service, no one appeared on behalf of respondent-
Union Bank of India on several occasions. Hence, this Court by an
order dated 26th August, 2021 directed Manager of Union Bank of
India to remain present before this Court on 31 st August, 2021 at
10.30 a.m. On 31st August, 2021, matter was adjourned to 14 th
September, 2021 i.e today.
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5. Learned Counsel appearing on behalf of the petitioner
submits that Chief Manager of the respondent is Mr. Kaushik Das
having Branch at Raheja Construction "A" 24 th Road, Opposite
Telephone Exchange, Khar (West), Mumai - 400 052. Statement is
accepted.
6. Learned Counsel appearing on behalf of the petitioner
submits that they served the copy of the order dated 26 th August,
2021 on the respondent and filed affidavit of service to that effect.
She further submits that she informed the respondent that now the
matter is posted today i.e on 14 th September, 2021. In spite of
that, no one appeared on behalf of respondent-Union Bank of
India today when the matter is called out. Not only that, this Court
directed the Associate to call out name of the respondent-Union
Bank of India in the Court as well as in the corridor, but no one
appeared.
7. As no one appeared on behalf of the respondent in spite of
several orders and as they failed and neglected to comply the
order dated 26th August, 2021, following order is passed;
:ORDER:
(a) Registry is directed to issue show cause notice to Mr Kaushik Das, Chief Manager having branch at Raheja Construction "A" 24th Road, Opposite Telephone Exchange, Khar (West), Mumai - 400 052 as to why action should not be taken against him under the Contempt of Courts Act, 1971 for not following the order dated 26th August, 2021;
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(b) Notice is made returnable on 4th October, 2021;
(c) In addition to usual mode of service through Registry, learned Counsel for the petitioner is permitted to serve copy of order passed by this Court today on Mr. Kaushik Das, Chief Manager of Union Bank of India on or before 28 th September, 2021 and file affidavit of service to that effect;
(d) Stand over to 4th October, 2021.
[PRITHVIRAJ K. CHAVAN, J.] [K. K. TATED, J.] 5 of 5