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Showing contexts for: Particular lien in The Bank Of India, Ltd. vs Rustom Fakirji Cowasjee on 5 July, 1954Matching Fragments
19. In the course of his arguments learned Counsel for the defendant laid stress on the words "security" and "negative lien" used in the resolution. I need scarcely observe that these words must be given full effect in ascertaining the intention of the parties, and the resolution must be read as a whole. The writing itself says that the negative lien was to constitute a security for the payment of the loan. Lien, strictly, is neither a jus in rem nor a jus ad rem, but is simply a right to possess and retain property until some claim attaching to it is satisfied or discharged. (Story on Equity Jurisprudence p. 508.) There are some kinds of lien which are to be found in enactments such as the Companies Act, but most of the different kinds of lien, both particular and general, recognised by our law are to be found stated in the Indian Contract Act. It is true that the provisions of the Contract Act relating to lien are not exhaustive and Section 1 of that Act in terms saves all usages and customs of trade which may be found inconsistent with the provisions of the Contract Act. Then there are some exceptional liens, such as the common law lien of a solicitor. Such exceptional liens apart, the general rule may be stated to be that a lien whether an offspring of statute or arising by any usage or custom is essentially a right of retention. Under our law there is not, in case of a lien, any right of bringing the property to sale unless it is expressly conferred by statute. There are some kinds of lien where such right of sale is expressly recognised, e.g. the lien of an unpaid seller or of a pawnee of goods. But in case of many liens expressly recognised by statute there is no such right of bringing the property to sale and the right remains simply one of retention. It may be that in case of any lien which may be established by any usage or custom of trade there may be this additional right to bring the property to sale. But such usage or custom would have to be pleaded and strictly proved. Such is not the case before me. Here I am concerned with a lien in favour of a bank, and it is indisputable that the general lien of a banker expressly recognised by Section 171 of the Contract Act (which is a possessory lien) does not confer on the banker any right to bring the property to sale. There is no pleading, and no issue, before me relating to any negative lien of a banker which by usage or custom may be said to confer any such right of bringing the property to sale. It is difficult for me to see that when the positive general lien of a banker does not confer on him any power of bringing the property to sale, how such power can reasonably be implied in case of a negative lien, when the parties have not chosen to state that it was their intention that there was to be such, right and there are no other words from which such intention could be inferred. The words "negative lien" in the resolution, in my judgment, does not in any way add to the effect of the assurance whereby the airline company became bound to keep its assets unincumbered. But as I have already observed the negative lien is given in the form of a declaration and an assurance contained in the resolution itself and, if anything, the expression "negative lien" seems rather incompatible with any implied right to bring the property to sale.