High Court Kerala High Court

P.S.Pareed Khan vs The Deputy General Manager on 12 December, 2008

Kerala High Court
P.S.Pareed Khan vs The Deputy General Manager on 12 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 38392 of 2002(U)


1. P.S.PAREED KHAN, 40/2561, CRESCENT HOUSE
                      ...  Petitioner

                        Vs



1. THE DEPUTY GENERAL MANAGER,
                       ...       Respondent

2. THE BRANCH MANAGER, STATE BANK OF INDIA,

3. THE BANKING OMBUDSMAN, OFFICE OF THE

                For Petitioner  :SRI.PMM.NAJEEB KHAN

                For Respondent  :SRI.JOSEPH J.THAYAMKERIL

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :12/12/2008

 O R D E R
                              S. Siri Jagan, J.
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                        O.P. No. 38392 of 2002
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               Dated this, the 12th     December, 2008.

                             J U D G M E N T

The petitioner was a contractor who undertook certain works on

behalf of the Kerala State Electricity Board. In respect of that work,

the petitioner had to give security for satisfactory performance of the

work to the Kerala State Electricity Board in the form of a security

deposit receipt for an amount of Rs. 20,000/-. The petitioner

approached the erstwhile Bank of Cochin, which was later

amalgamated with the State Bank of India, the officers of whom are

the respondents 1 and 2 herein. They agreed to furnish the security

and accordingly Ext. P2 security deposit receipt was issued for an

amount of Rs. 20,000/- deposited by the petitioner on 11-5-1979, the

maturity period for which was over by 11-5-1980. But the deposit

could be released to the petitioner only on authorisation by the

Deputy Chief Engineer of the Transmission Circle, Poovarthuruthu of

Kerala State Electricity Board. That authorisation for release of the

security after completion of the work was issued by the Kerala State

Electricity Board only on 18-8-1992. Thereafter, the petitioner

approached respondents 1 and 2 for payment of the amounts covered

by the security deposit receipt. The petitioner was not paid the same.

The petitioner therefore approached the 3rd respondent Banking

Ombudsman by filing Ext. P4. By Ext. P5, the Ombudsman informed

the petitioner that since the 2nd respondent has informed the

Ombudsman as follows, the petitioner’s petition cannot be

entertained:

“The bank has stated that your deposit for Rs.20000/- (SDR
1740/79) dated 11-5-79 which was made by way of a security
deposit in favour of the Supt. Engineer, Transmission Circle
(Pakkil P.O), Kottayam in Thrunakkara branch of the erstwhile
Bank of Cochin Ltd. fell for payment on 11-5-1980. The deposit
had no provision for automatic renewal. After getting the deposit

O.P. No. 38392/2002 -: 2 :-

released by the Supt. Engineer, SBI, Thrunakkara branch
transferred the proceeds to SBI, Broadway, Ernakulam by means
of demand draft No. 7773/2 dated 28-6-93 for Rs.21200/-. The
proceeds of this draft were credited to your loan account with
SBI, Broadway, Ernakulam branch on 5-7-1993.”

The petitioner has filed this original petition challenging Ext. P5 order

of the Banking Ombudsman.

2. The main contention of the petitioner is that although the

petitioner was indebted to the Bank for repayment of the loan

amounts as claimed by them, the amount covered by Ext. P2 receipt

was never adjusted against the loan amounts due from him as is

evident from Exts.P7 and P8 execution petitions filed by the Bank in

two suits, in which the Bank had obtained decrees for the recovery of

the loan amounts. The petitioner therefore seeks the following reliefs:

“i. To call for the records leading to Exhibits P1 to P8 and
issue a writ of mandamus or any other appropriate writ, order or
direction, directing the respondents 1 and 2 to release the fixed
deposit amount of Rs.21,200/- with the prevailing rate of interest
as per RBI guidelines from 11.5.1980 onwards till return of the
amount to the petitioner as evidenced by Exhibit P2.

ii. to grant a declaration that the petitioner is entitled to get
his deposit amount with the prevailing rate of interest till
realization of the same and the respondents 1 and 2 are legally
bound to pay the same to the petitioner.”

3. The petitioner also contends that the petitioner was never

informed about the adjustment and without informing the petitioner

about such adjustment, the Bank cannot exercise the Banker’s lien.

Further, the petitioner would point out that the money covered by the

security deposit was in the hands of the Bank for the period from 11-

5-1979 to 18-8-1992 during the whole of which time the petitioner is

entitled to interest, but the interest was credited only for the period

from 11-5-1979 to 11-5-1980.

O.P. No. 38392/2002 -: 3 :-

4. A counter affidavit has been filed on behalf of respondents 1

and 2. Relying on Ext. R1(a) produced along with the counter

affidavit, they would submit that the amount was actually credited to

the suit account of the petitioner in O.S.No. 195/1985 as shown in the

suit file register. They would submit that under Section 171 of the

Indian Contract Act, the Bank is entitled to exercise the Banker’s lien

in respect of the said deposit also. According to them, the question of

paying further interest does not arise in so far as the amount was due

to be repaid at any time when the Electricity Board authorises

payment and therefore the interest as contemplated for a fixed

deposit cannot be paid for that deposit. They would further submit

that the loan account of the petitioner was ultimately settled for Rs. 7

lakhs granting a waiver of Rs. 27 lakhs. That waiver was granted

taking into account the adjustment of the amount of Rs. 21,200/-

covered by the security deposit receipt also and therefore the

petitioner cannot, in equity also, claim any relief in this original

petition.

5. I have considered the rival contentions in detail.

6. Notwithstanding the contention of respondents 1 and 2 that

they are entitled to exercise the Banker’s lien in this case, I do not

think that a Banker’s lien can be exercised without informing the

party about the same. Respondents 1 and 2 have not been able to

produce any documents to show that the petitioner has been informed

about such exercise of the Banker’s lien. In fact, the petitioner’s

specific contention is that the petitioner has never been informed

about the adjustment of the amount covered by Ext. P2 against the

loan account. Apart from that, the Bank had used the petitioner’s

money for the period from 11-5-1979 to 18-8-1992. Even assuming

that the contention regarding non-payment of rate of interest

O.P. No. 38392/2002 -: 4 :-

applicable to security deposit is accepted, I am of opinion that that

would not prevent the Bank from paying interest on that amount at

the rate applicable to Savings Bank Accounts.

7. All the same, in so far as respondents 1 and 2 have proved

that the fixed deposit amount with interest for one year has been

adjusted against the loan account due from the petitioner, I am not

inclined to direct that the amount covered by the security deposit

receipt be refunded to the petitioner. Even in respect of interest, I

am not inclined to exercise my discretionary jurisdiction in favour of

the petitioner since, admittedly, the petitioner had received a benefit

of Rs. 27 lakhs by waiver of the loan amount due from the petitioner

to the Bank. Compared to that, the interest payable on the amount

would be a paltry sum. However, in view of the lapse on the part of

the Bank in not informing the petitioner about the exercise of

Banker’s lien and refusal to credit interest at the rate applicable to

S.B Account in respect of the fixed deposit receipt, I direct

respondents 1 and 2 to pay a sum of Rs.5000/- as cost to the

petitioner. The cost shall be paid within two weeks from the date of

receipt of a copy of this judgment. The original petition is disposed of

as above.

Sd/- S. Siri Jagan, Judge.

Tds/