Calcutta High Court (Appellete Side)
For The vs Vijay Kumar & Others) Is Relied on 28 July, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
28.07.2014 W.P. NO. 1113 (W) OF 2014
26
Mr. Tapas Mukherjee
Ms. Manisha Nath
For the Petitioner.
Mr.Sudip Pal Chowdhury
For the respondents.
The grievance of the writ petitioner is that gold loan obtained by the deceased husband of the petitioner is not being returned by the bank on the ground of banker's lien.
The petitioner submits that, the deceased husband of the petitioner was a partner of a Partnership Firm. Such Partnership Firm obtained credit facilities from the Bank. The Partnership Firm did not pay such credit facilities and, therefore, the Bank has initiated recovery proceedings including proceedings under the Securitiazation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
In respect of the gold loan account, the gold belonging to the petitioner was kept as security for repayment of the gold loan account. The husband of the petitioner died suddenly. Subsequent to the death of the husband, the petitioner approached the Bank to settle the account of the gold loan. The petitioner paid substantial money. However, the Bank is not agreeable to return the gold loan claiming banker's lien over the same. The Bank claims that it can retain the gold to satisfy the claim of the bank in respect of the outstanding in the partnership amount.
The learned counsel for the petitioner submits that the Partnership Deed provided that the eldest son of deceased partner will be included in the partnership. The partnership will not come to an end on the death of a partner. In the instant case, the eldest son of the deceased partner is still a minor. The petitioner as the widow did not become a partner of that firm. Furthermore, the bank is adequately protected in the sense that the bank has securities of immovable property in the partnership account. Therefore, the Bank need not proceed against the gold ornaments to realize the claim. In the event, the Bank sold the gold ornaments to realize its claim in respect of the partnership, the petitioner will be doubly jeopardized. She would lose her gold ornaments. At the same time, she is not getting anything from the partnership and the partners of such partnership will stand benefited at the costs and expenses of the petitioner.
In such circumstances, the petitioner prays for protection so far as the gold ornaments are concerned.
As to the meaning of banker's lien, the judgment reported in AIR 1992 SCC 1066 (Syndicate Bank -vs- Vijay Kumar & Others) is relied upon by the petitioner.
On behalf of the Bank, an affidavit-in-opposition is filed. The bank claims banker's lien in respect of the gold ornaments lying with him.
I have considered the rival contentions of the parties and the materials on record. The bank came into possession of the gold loan admittedly in its custody when it granted loan to the deceased husband of the petitioner against security of the gold ornaments belonging to the petitioner. The gold loan account remains unsatisfied in spite of the efforts of the petitioner to settle the same.
According to the petitioner, the value of the gold ornaments lying with the bank is far in excess of the claim of the bank in the gold loan account.
Syndicate Bank (supra) considered various authorities of the bankers' lien. After considering such parties it held as follows:
" The above passages go to show that by mercantile system the Bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right of the banker judicially recognized and in the absence of an agreement to the contrary, a Banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customer's debit balance. .................."
In the instant case, the gold ornaments coming into custody and possession of the bank is in its usual course of business. Applying the principles of banker's lien, the bank is entitled to retain such gold ornaments till its claim against the estate of the deceased husband remains.
It is nobody's case that the estate of the deceased husband is not liable to the bank for the unpaid amount in the partnership transaction between the partnership firm and the bank.
Therefore, the bank is well within its right to exercise its lien in respect of the securities, in the instant case, gold ornaments belonging to the petitioner, till such time its entire claim is satisfied. The petitioner herein is one of the heirs and legal representatives of the deceased partner.
In such circumstances, I find no merit in the writ petition and the same is accordingly, dismissed.
There will, however, be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Debangsu Basak, J)