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State Bank of India Vs. Smt. Goutmi Devi Gupta, C.R. No. 884 of 2001,wherein it is held:

"xxxxxxxxSecond objection is also not tenable. S. 171 of the Contract Act gives statutory recognition to the concept ofBanker's general lien. It provides that the Bankers may, in the absence of a contract to the contrary, retain as a security for a general balance of account any goods bailed to them. Money  is a species of goods which may be the subject matter of bailment and over which lien may be exercised. The general lien of bankers, as judicially recognized, and dealt with in S. 171 attaches to all goods and securities deposited with them as bankers by a customer or by a third person  on a customer's account, provided there is no contract, express or implied, inconsistent with such lien. There is no gainsaying that such a lien extends to FDRs also which are deposited by the customer.xxxxxx"

12.    In view of the above legal position the decree holder in the present case cannot be directed to proceed first against the hypothecated property and then against the surety.

17.    xxxxxxxxxBank 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. Such a lien is also applicable to negotiable instruments including FDRs which are remitted to the Bank by the customer for the purpose of collection."

State Bank of Mysore Vs. Surjeet Kaur, 1993 (51) DLT 150 : 1993(2) BC 177wherein it is held:

"7.   The aforesaid decision of this Court on which reliance was placed by the Executing Court had already been reversed by the Supreme Court in re: Syndicate Bank v. Vijay Kumar and others, AIR 1992 SC 1066. The Supreme Courtdecided that case on 5/03/1992 whereas the impugned order is dated 20/04/1992. It has been held by the Supreme Court that having regard to the mercantile custom as judicially recognized the bank has a general lien over all forms of deposits and securities made by or on behalf of the customer in the ordinary course of banking business. The Supreme Court not only relied upon the recital in the letters in the said case creating lien in favour of the bank but also pronounced about the right of the bank of general lien over all forms of deposits or securities made by or on behalf of the customer in the ordinary course of banking business."

15.    We have carefully examined the record and have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties. The admitted facts are that the son of the complainant/respondent was a partner in the partnership firm, namely, Vatan Cinema and the partnership firm obtained  a loan from the State Bank of Saurashtra (now merged in the State Bank of India). The respondent was a guarantor for the said loan and had signed the Deed of Guarantee with the Petitioner Bank.   When the loan was not repaid, the Petitioner Bank approached the Civil Court by filing Special C.S. No.63:86.  A decree has been passed in  favour of the Petitioner-Bank by Civil Judge-S.D. on 18.9.1994. However, the firm or the guarantor did not comply with the decree and the petitioner Bank adjusted the amount of Rs.2,47,044/- from the FDRs of the guarantor/respondent. The learned counsel for the petitioner has relied upon the two judgements i.e. State Bank of India Vs. Smt. Goutmi Devi Gupta (Supra) and State Bank of Mysore Vs. Surjeet Kaur (supra) wherein it is laid down that the banks have general lien on the amounts deposited with them.  However, the learned counsel for the respondent has relied upon the judgment of High Court of Guwahati in TilendraNathMahanta Vs. United Bank of India and others (supra). In this judgement Guwahati High Court has given a finding that money kept in FDR is in fact a loan to the Bank and the lien is not applicable on debt.  Learned counsel for the respondent has also relied upon the judgment in ING Vysya Bank Ltd., Frazer Town Branch Vs. Y.G. Sreeram Setty S/o Late Shri Y.S. Gopalakrishna Setty (supra),  wherein this Commission has raised the issue  of procedure to be adopted for exercising the general lien.  It is true that no notice was given to the respondent for adjusting these amounts of the FDRs, but in the present case, there was already a decree passed in the civil suit.  The loanee as well as guarantor both are simultaneously liable to re-pay the loan amount  and in the event of non-payment of the loan, any of them can be proceeded against.  In this case, we would like to rely on the judgment in Gurgaon Gramin Bank and another Vs. Om Parkash (supra) wherein it is clearly laid down that the liability of guarantor and principal debtor are co-extensive and not in alternative. Thus, in the present case, the bank has decided to adjust the amount of FDRs of the guarantor.  As there was a civil decree, we are of the considered opinion that non- issuance of notice was no major lacuna in the whole process of exercising the general lien as banks lend public money and a loanee/guarantor on one side, cannot deny to re-pay the loan and on the other side, keep the money in FDRs with the same Bank.We are of the firm view that public money given as loan for development/running of an enterprise, cannot be allowed to be swindelled away by  the loanee or the guarantor.  In spite of a decree passed in the civil suit, the principal debtor or the guarantor did not come forward to re-pay the loan.