{"id":207303,"date":"2009-08-10T00:00:00","date_gmt":"2009-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-sadhna-gupta-ors-vs-sh-r-c-gupta-ors-on-10-august-2009"},"modified":"2016-01-27T21:07:02","modified_gmt":"2016-01-27T15:37:02","slug":"smt-sadhna-gupta-ors-vs-sh-r-c-gupta-ors-on-10-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-sadhna-gupta-ors-vs-sh-r-c-gupta-ors-on-10-august-2009","title":{"rendered":"Smt. Sadhna Gupta & Ors. vs Sh. R.C.Gupta & Ors. on 10 August, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Smt. Sadhna Gupta & Ors. vs Sh. R.C.Gupta & Ors. on 10 August, 2009<\/div>\n
Author: Aruna Suresh<\/div>\n
*           HIGH COURT OF DELHI AT NEW DELHI\n\n+     IA NO. 8092\/2001 in CS (OS) No.1731\/2001\n\n                           Date of decision : August 10, 2009\n\n#     SMT. SADHNA GUPTA & ORS.      ..... PLAINTIFFS\n!              Through : Mr. V.B. Andley, Sr. Advocate\n                         with Mr. Rajinder Mathur, Adv.\n\n                             Versus\n\n\n$     SH. R.C. GUPTA & ORS.         .....DEFENDANTS\n^               Through : Mr. S.L. Gupta, Advocate for\n                          defendant No. 5.\n\n%\n      CORAM:\n      HON'BLE MS. JUSTICE ARUNA SURESH\n\n     (1) Whether reporters of local paper may be\n         allowed to see the judgment?\n\n     (2) To be referred to the reporter or not?           Yes\n\n     (3) Whether the judgment should be reported\n         in the Digest ?                                  Yes\n\n                             ORDER\n<\/pre>\n
ARUNA SURESH, J.\n<\/p>\n
1.    Vide this order, I shall dispose of an application filed<\/p>\n
      by the plaintiffs under Order 39 Rule 1 and 2 read<\/p>\n
      with Section 151 CPC seeking temporary injunction<\/p>\n
      against defendant No.5 i.e. State Bank of India from<\/p>\n
      attaching before judgment or creating third party<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001             Page 1 of 23<\/span>
\n       right or interest in the suit property No. 221, Okhla<\/p>\n
      Industrial Estate, Phase-III, New Delhi.<\/p>\n
2.    Plaintiff No.1 has claimed herself to be one of the<\/p>\n
      members of the HUF defendant No.2 M\/s. R.C.<\/p>\n
      Gupta and Brothers. Defendant No.1 is the Karta of<\/p>\n
      the said HUF whereas defendants No. 3 and 4 are<\/p>\n
      also members of the HUF.\n<\/p>\n<\/p>\n
3.    Case of the plaintiffs in brief is that, property in suit<\/p>\n
      was allotted to defendant No.2 HUF by the Delhi<\/p>\n
      Government.       Defendant No.1 obtained permission<\/p>\n
      from the Director of Industries for mortgaging the<\/p>\n
      property in view of clause (a) and (b) of the lease<\/p>\n
      deed. Defendant No.2 R.C. Gupta and Brothers HUF<\/p>\n
      availed certain financial loan\/credit facilities for<\/p>\n
      working capital of defendant No.2 from defendant<\/p>\n
      No.5. At the time of raising the loan, the title deeds<\/p>\n
      of the suit property were deposited with the bank<\/p>\n
      for purposes of creating a mortgage on the said<\/p>\n
      property to secure the repayment of the loan<\/p>\n
      amount.\n<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001              Page 2 of 23<\/span>\n<\/p>\n
 4.     Some disputes arose on the issue of repayment of<\/p>\n
       loan.   The bank filed OA No. 652\/1996 before the<\/p>\n
       Debt Recovery Tribunal (DRT) against defendant<\/p>\n
       No.2     for    recovery       of    the   amount    of<\/p>\n
       Rs.46,78,768.08paise.       In view of Reserve Bank of<\/p>\n
       India\u201fs policy dated 27.7.2000 defendant No.1<\/p>\n
       settled the dispute with the bank and defendant<\/p>\n
       No.2 through defendant No.1 agreed to pay a sum<\/p>\n
       of Rs.36,23,125.27paise on the condition that on<\/p>\n
       receipt of the said amount, the bank would release<\/p>\n
       all the title deeds.       Defendant No.2 accordingly<\/p>\n
       deposited the amount but, bank refused to return<\/p>\n
       the title deeds of the property in suit claiming<\/p>\n
       general lien on the plea that defendant No.1 was<\/p>\n
       liable to pay the dues of the bank in the account of<\/p>\n
       M\/s Bharat Strips Ltd. and M\/s Gwalior Strips Ltd.<\/p>\n
       Plaintiffs disputed the general lien exercised by the<\/p>\n
       bank in view of the affidavit filed by defendants<\/p>\n
       No.1 and 3 in DRT.\n<\/p>\n<\/p>\n
5.     Plaintiffs have further disputed the authority of the<\/p>\n
     bank to exercise general lien in respect of the<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001             Page 3 of 23<\/span>
\n      mortgaged     property    in   view    of   the   letter     of<\/p>\n
     Commissioner of Industries dated 27.3.2001 as no<\/p>\n
     permission to mortgage the said property in respect of<\/p>\n
     the account of M\/s. Bharat Strips Ltd. and M\/s Gwalior<\/p>\n
     Strips Ltd. was obtained from the department.              It is<\/p>\n
     further averred that since property is HUF, defendant<\/p>\n
     No.5 had no right to claim lien on the said property<\/p>\n
     against the account of said two companies which are<\/p>\n
     limited companies having separate entity in the eyes of<\/p>\n
     law wherein defendant No.1 being the managing<\/p>\n
     director of the said company is associated in his<\/p>\n
     individual capacity.     Since bank claimed lien on the<\/p>\n
     property, plaintiffs feared that bank is likely to attach<\/p>\n
     the suit property before judgment is passed and they<\/p>\n
     being member of the HUF will suffer irreparable loss<\/p>\n
     and injury which cannot be compensated in terms of<\/p>\n
     cost and that under the circumstances balance of<\/p>\n
     convenience tilts in their favour, this application has<\/p>\n
     been filed.\n<\/p>\n<\/p>\n
6.      Defendant No.1 in his written statement while<\/p>\n
     corroborating the claim of the plaintiffs has claimed<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                Page 4 of 23<\/span>
\n   that he is a coparcener of HUF defendant No.2 and he<\/p>\n
  has been managing activities of defendant No.2 as<\/p>\n
  Karta but, has been using the suffix \u201esole proprietor\u201f<\/p>\n
  instead of \u201eKarta\u201f while signing all papers\/documents<\/p>\n
  relating to the business and official activities of the<\/p>\n
  HUF.        In all communications to the government<\/p>\n
  departments including the income tax and wealth tax<\/p>\n
  departments he has signed as the sole proprietor<\/p>\n
  though defendant No.2 is an HUF and is the owner of<\/p>\n
  the property in suit.      He has averred that suit property<\/p>\n
  is not his personal or individual property.              He has<\/p>\n
  denied that he had executed any guarantee in his<\/p>\n
  personal capacity or as the Karta of the HUF with<\/p>\n
  regard to the credit accounts of M\/s Bharat Strips Ltd.<\/p>\n
  or Gwalior Strips Ltd. in which he is the managing<\/p>\n
  director in his individual capacity. Since full and final<\/p>\n
  settlement amount has been paid by defendant No.2<\/p>\n
  and the loan account stands fully adjusted, defendant<\/p>\n
  No.5 is under a legal obligation to release and return<\/p>\n
  back the title deeds to defendant No.2. The approval<\/p>\n
  by    the   Delhi    administration       to   create   equitable<\/p>\n
  mortgage in favour of defendant No.5 was only for<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                  Page 5 of 23<\/span>
\n      raising working capital by defendant No.2 and there is<\/p>\n
     no approval of the lessor for the bank to exercise its<\/p>\n
     general lien over the property pertaining to the<\/p>\n
     accounts of companies run by defendant No.1. In<\/p>\n
     substance he has admitted the claim of the plaintiffs in<\/p>\n
     the present application.\n<\/p>\n<\/p>\n
7.      Similar is the reply of defendant Nos. 2, 3 and 4.<\/p>\n
8.      Defendant No.5, the State Bank of India (SBI) in its<\/p>\n
     written statement has refuted the claim of the plaintiffs<\/p>\n
     supported by defendants No. 1 to 4 and have averred<\/p>\n
     that the suit property belongs to defendant No.2 in its<\/p>\n
     individual capacity and is a leasehold property.        This<\/p>\n
     lease deed dated 23.6.1970 was executed by Delhi<\/p>\n
     Administration in favour of defendant No.1 being the<\/p>\n
     sole proprietor of M\/s. R.C. Gupta and Brothers and he<\/p>\n
     mortgaged the property by representing it to be the<\/p>\n
     self acquired property of defendant No.1. The loan was<\/p>\n
     accordingly sanctioned to defendant No.2. Defendant<\/p>\n
     No.1 has been signing the documents as proprietor of<\/p>\n
     defendant No.2 and the bank is entitled to recover the<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001             Page 6 of 23<\/span>
\n      dues in the loan account of M\/s. Bharat Strips Ltd. and<\/p>\n
     M\/s. Gwalior Strips Ltd. to whom the loan and credit<\/p>\n
     facilities   were     sanctioned   and   granted   by   the<\/p>\n
     defendant bank on the creditworthiness and guarantee<\/p>\n
     of defendant No.1. DRT is already seized of the matter<\/p>\n
     as bank has already filed recovery application before<\/p>\n
     the DRT being OA No.285\/2000 against M\/s. Bharat<\/p>\n
     Strips   Ltd.   and    defendant No.1.     The DRT has<\/p>\n
     restrained the defendant No.1 from selling, alienating,<\/p>\n
     transferring or parting with possession of the suit<\/p>\n
     property vide its order dated 28.8.2001 and no such<\/p>\n
     application has been filed by the plaintiffs alleging that<\/p>\n
     defendant No.1 is not the owner of the property and<\/p>\n
     that it is an HUF property. Defendants No. 1 to 4 are<\/p>\n
     running two parallel files and have deceived the<\/p>\n
     income tax department, wealth tax department as well<\/p>\n
     as the defendant bank.         Therefore, bank has every<\/p>\n
     right to exercise its general lien over the mortgaged<\/p>\n
     property and plaintiffs are not entitled to any ad-<\/p>\n
     interim injunction as prayed.\n<\/p>\n<\/p>\n
9.       I have heard Mr. V.B. Andley, Sr. Advocate for the<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001               Page 7 of 23<\/span>
\n   plaintiffs, Mr. S.L. Gupta, Advocate for defendant No.5<\/p>\n
  and have carefully perused the record.<\/p>\n
10.   The admitted facts are:\n<\/p>\n
            i.     Property No.221, Okhla Industrial Estate,<\/p>\n
Phase-III, New Delhi was allotted in the name of<\/p>\n
defendant No.2 M\/s. R.C. Gupta and Brothers by Delhi<\/p>\n
Administration in the year 1970.\n<\/p>\n
            ii.    Defendant No. 2 raised loan for working<\/p>\n
capital from       defendant No.5        SBI   against equitable<\/p>\n
mortgage of the suit property.\n<\/p>\n
            iii.   Defendant No.2 could not repay the loan<\/p>\n
and therefore SBI filed OA No. 652\/1996 before the DRT<\/p>\n
for the recovery of due amount.\n<\/p>\n
            iv.    Defendant      No.2      repaid   the   settled<\/p>\n
amount to the defendant bank in view of the policy of the<\/p>\n
Reserve Bank of India.\n<\/p>\n
            v.     The bank has not returned back the title<\/p>\n
deeds of the suit property as it has claimed general lien<\/p>\n
in view of Section 171 of Indian Contract Act (in short<\/p>\n
\u201eAct\u201f).\n<\/p>\n
            vi.    Defendant No.1 has been signing all the<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                  Page 8 of 23<\/span>
\n documents filed before the Wealth Tax Department and<\/p>\n
Income Tax Department as sole proprietor of defendant<\/p>\n
No.2.\n<\/p>\n<\/p>\n
11.     Learned counsel for the plaintiffs has argued that<\/p>\n
  defendant bank cannot claim any lien under Section<\/p>\n
  171 of the Act as that relates to movable assets and<\/p>\n
  does not relate to immovable properties mortgaged<\/p>\n
  with the bank for raising a loan by a party. Since in<\/p>\n
  this case working capital was raised by defendant No.2<\/p>\n
  against equitable mortgage of immovable property lien<\/p>\n
  under Section 171 of the Act is not available to the<\/p>\n
  bank. It is further argued by learned counsel for the<\/p>\n
  plaintiffs that since it is a leasehold property without<\/p>\n
  the permission of the concerned department, the bank<\/p>\n
  cannot claim any general lien on the suit property with<\/p>\n
  a view to adjust its claim against the loan account of<\/p>\n
  M\/s. Bharat Strips Ltd. and M\/s. Gwalior Strips Ltd.,<\/p>\n
  companies owned by defendant No.1 in his individual<\/p>\n
  capacity and not as a Karta of the HUF, whereas the<\/p>\n
  property     in suit is     HUF property   and necessary<\/p>\n
  permission was obtained by defendant No.1 for raising<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001          Page 9 of 23<\/span>
\n   working capital from the bank for running its business<\/p>\n
  by defendant No.2 HUF.          Therefore plaintiffs who are<\/p>\n
  coparceners      of   the    HUF     property     would   suffer<\/p>\n
  irreparable loss and injury in case the bank is allowed<\/p>\n
  to attach the suit property before any decree is passed<\/p>\n
  in favour of the bank for its claim against defendant<\/p>\n
  No.1.\n<\/p>\n<\/p>\n
12.   He has further urged that in view of the admitted<\/p>\n
  documents on the record prima facie a case is made<\/p>\n
  out in favour of the plaintiffs and against defendant<\/p>\n
  No.5.    Under     the   circumstances,     the    balance    of<\/p>\n
  convenience tilts        in favour of     the plaintiffs     and<\/p>\n
  therefore, plaintiffs are entitled to the injunction as<\/p>\n
  prayed.\n<\/p>\n<\/p>\n
13.   Learned counsel for defendant No.5 submits that<\/p>\n
  bank has a general lien over the property which is self-<\/p>\n
  acquired property of defendant No.1 for adjustment of<\/p>\n
  loan accounts of M\/s. Bharat Strips Ltd. and M\/s.<\/p>\n
  Gwalior Strips Ltd. opened by defendant No.1. DRT in<\/p>\n
  another OA No. 285\/2000 filed by the bank has already<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001               Page 10 of 23<\/span>
\n   issued an injunction against defendants no. 1 and 2 not<\/p>\n
  to dispose of or alienate or part with the suit property<\/p>\n
  or create any third party interest in the same.            He<\/p>\n
  submits that under the circumstances, plaintiffs are not<\/p>\n
  entitled    to   injunction    as    prayed   and   therefore,<\/p>\n
  application deserves dismissal.\n<\/p>\n<\/p>\n
14.   Ex.-P21 is letter dated 8.5.2001 addressed by SBI to<\/p>\n
  defendant No.2.          Vide this letter while informing<\/p>\n
  defendant No.2 that subject to clearing of the pay-<\/p>\n
  orders mentioned in the letter, the bank\u201fs dues in the<\/p>\n
  loan account of M\/s. R.C. Gupta and Brothers subject<\/p>\n
  matter of recovery suit No.652\/1996 pending before<\/p>\n
  the DRT stands satisfied.        Defendant No.2 was further<\/p>\n
  informed:\n<\/p>\n
                  “The above compromise amount
\n             of Rs.37.60lacs plus interest has been
\n             accepted by the bank on express
\n             condition that the Bank will continue
\n             to exercise its general lien on the
\n             property bearing No.221 Okhla Ind.
\n             Estate, New Delhi in other loan
\n             accounts of M\/s. Bharat Strips Ltd. &
\n             M\/s Gwalior Strips Ltd. and title deeds
\n             of the said property will not be
\n             released due to above reason.”\n<\/p><\/blockquote>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001              Page 11 of 23<\/span><\/p>\n
 15.   Thus, defendant bank refused to return back the<\/p>\n
  title deeds as it claimed general lien on the suit<\/p>\n
  property in loan accounts of M\/s. Bharat Strips Ltd. and<\/p>\n
  M\/s. Gwalior Strips Ltd. owned by defendant No.1.<\/p>\n
16.   In OA No. 652\/1996 defendant No.1 had filed<\/p>\n
  applications seeking return of the title deeds of the<\/p>\n
  property in suit pursuant to the compromise having<\/p>\n
  been entered into between the parties.         The said<\/p>\n
  applications were dismissed by DRT vide its order<\/p>\n
  dated 11.5.2001 and 8.10.2001 respectively with the<\/p>\n
  observations, \u201ewhether bank had a lien of the suit<\/p>\n
  property or not can only be decided in the other case<\/p>\n
  OA No.285\/2000\u201f. This OA filed by the bank pertained<\/p>\n
  to the recovery of the amount due from M\/s. Bharat<\/p>\n
  Strips Ltd. and Gwalior Strips Ltd.\n<\/p>\n<\/p>\n
17.   Balance sheets filed by defendant No.2 with the<\/p>\n
  bank in view of the lien agreement were signed by<\/p>\n
  defendant No.1 for and on behalf of defendant No.2 as<\/p>\n
  sole proprietor. It is pertinent that the promissory note<\/p>\n
  and DP note dated 25.3.1991 executed for and on<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001         Page 12 of 23<\/span>
\n   behalf of the defendant No.2 at the time of obtaining<\/p>\n
  the loan, agreement for cash credit dated 25.3.1991,<\/p>\n
  hypothecation agreement dated 25.3.1991, general<\/p>\n
  undertaking executed in favour of the bank, the letter<\/p>\n
  dated 25.3.1991 annexed to hypothecation agreement,<\/p>\n
  the credit account of interest and revival letter form<\/p>\n
  are all signed by defendant No.1 as sole proprietor of<\/p>\n
  defendant      No.2.        Vide     letter    dated        12.11.1982<\/p>\n
  defendant      No.1    as    proprietor       of    defendant      No.2<\/p>\n
  expressed his desire to furnish collateral security of his<\/p>\n
  building in place of the personal securities of his<\/p>\n
  brothers.     Defendant No.1 has been signing various<\/p>\n
  correspondences         like        letters        dated      3.1.1983,<\/p>\n
  15.2.1983, 25.3.1991 etc. all addressed to the bank<\/p>\n
  manager as sole proprietor of defendant No.2.<\/p>\n
18.   Letter dated 18.2.1987 has been signed by Vinod<\/p>\n
  Gupta,     defendant        No.3,    as   general          attorney   of<\/p>\n
  defendant No.1, proprietor R.C. Gupta. Defendant No.1<\/p>\n
  deposited the title deeds of the suit property with the<\/p>\n
  bank on 17.12.1982 as sole proprietor of defendant<\/p>\n
  No.2. In the letter dated 15.2.1983 signed by him as<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                        Page 13 of 23<\/span>
\n   sole proprietor of defendant No.2, defendant No.1<\/p>\n
  informed the bank:-\n<\/p>\n
                   “The said property is self
\n             acquired and as such no one has any
\n             interest in the said property. The said
\n             property      is   under     my    sole
\n             occupation.”\n<\/p><\/blockquote>\n
19.   In a letter received by the bank on 8.8.1985 signed<\/p>\n
  by defendant No.1 as proprietor of defendant No.2, he<\/p>\n
  communicated his intention of creating an equitable<\/p>\n
  mortgage over the suit property as security for the<\/p>\n
  amount due to the bank from defendant No.2. In this<\/p>\n
  letter also he has stated:\n<\/p>\n
                  “The said property belongs to
\n             me\/us absolutely and no one else has
\n             any interest therein.      The said
\n             property is under my\/our occupation.”\n<\/p><\/blockquote>\n
20.   Perpetual lease executed by Delhi Administration in<\/p>\n
  favour of defendant No.2 does not describe defendant<\/p>\n
  No.2 as an HUF.          This document is also signed by<\/p>\n
  general attorney of defendant No.1, the sole proprietor<\/p>\n
  of defendant No.2.        In the civil suit (No. 88 of 2001)<\/p>\n
  inter se the parties, apparently decree was obtained<\/p>\n
  collusively to show that the property was an HUF<\/p>\n
  property.\n<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001              Page 14 of 23<\/span>\n<\/p>\n
 21.   In OA No.652\/1996 in para (J) defendant bank had<\/p>\n
  averred:\n<\/p>\n
                   “The Applicant Bank also has the
\n             charge over the property mortgaged
\n             for recovery of its dues in the
\n             loan\/credit facilities granted to M\/s
\n             Bharat Strips Limited and M\/s. Gwalior
\n             Strips Limited, the sister concerns of
\n             the Respondent No.1.”\n<\/p><\/blockquote>\n
22.   Respondent No.1 in the said OA is none else but<\/p>\n
  defendant No.1 in this case. Defendant No.1 had filed<\/p>\n
  a suit against the bank in the civil court for perpetual<\/p>\n
  injunction. In this suit plaintiff in its opening paragraph<\/p>\n
  has pleaded that he is the sole proprietor of M\/s. R.C.<\/p>\n
  Gupta & Brothers and is carrying on his business at<\/p>\n
  221, Okhla Industrial Area New Delhi. It is only in the<\/p>\n
  wealth tax and income tax returns that defendant No.2<\/p>\n
  has been described as HUF barring one order dated<\/p>\n
  28.1.1984 wherein defendant No.1 has been shown as<\/p>\n
  proprietor of defendant No.2. When all the documents<\/p>\n
  read together they prima facie clearly reflect that<\/p>\n
  defendant No.1 R.C. Gupta is the proprietor of M\/s. R.C.<\/p>\n
  Gupta and Brothers; defendant No.2. Also that the suit<\/p>\n
  property was leased out to defendant No.1 as sole<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001             Page 15 of 23<\/span>
\n   proprietor of M\/s. R.C. Gupta and Brothers; defendant<\/p>\n
  No.2.\n<\/p>\n<\/p>\n
23.   Plaintiffs have also disputed the right of the<\/p>\n
  defendant to claim lien on the suit property under<\/p>\n
  Section 171 of the Act on the plea that Section 171<\/p>\n
  specifically speaks of movable assets mortgaged with<\/p>\n
  the bank and does not give any right to the bank to<\/p>\n
  claim lien on immovable properties mortgaged with it.<\/p>\n
  Section 171 of the Act reads:\n<\/p>\n
                    “S. 171. General lien of bankers,
\n              factors, wharfingers, attorneys and
\n              policy-brokers.–bankers,        factors,
\n              wharfingers, attorneys of a High Court
\n              and policy-brokers may, in the
\n              absence of a contract to the contrary,
\n              retain as a security for a general
\n              balance of account, any goods bailed
\n              to them; but no other persons have a
\n              right to retain, as a security for such
\n              balance, goods bailed to them, unless
\n              there is an express contract to that
\n              effect.”\n<\/p><\/blockquote>\n
24.   Thus,     Section     171     creates   a   general       as<\/p>\n
  distinguished from a particular lien of bankers.           This<\/p>\n
  section, however, limits the right to a general lien, i.e.,<\/p>\n
  a right of the bankers to retain goods in their<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                Page 16 of 23<\/span>
\n   possession as a security for a general balance of<\/p>\n
  account to them.       This general lien can be excluded by<\/p>\n
  special agreement whether expressed or implied from<\/p>\n
  the circumstances but such agreement must be clearly<\/p>\n
  in consistent with the existence of general lien. When<\/p>\n
  a person has a number of accounts kept in the books of<\/p>\n
  the bank, the customer cannot take the plea in the<\/p>\n
  absence of any special contract to say that securities<\/p>\n
  which    he    deposited     are   only   applicable   to   one<\/p>\n
  particular account and not subject to a general lien. In<\/p>\n
  other words Section 171 is clear and categoric that<\/p>\n
  unless a contract to the contrary is established by the<\/p>\n
  plaintiff the bank\u201fs right of lien has to be accepted.<\/p>\n
25.   As per mercantile customs recognised by the<\/p>\n
  judiciary, the banker has a general lien over all forms<\/p>\n
  of deposits or securities made on behalf of the<\/p>\n
  borrower in the ordinary course of banking business.<\/p>\n
  The documents on the record placed by the bank as<\/p>\n
  well as by the plaintiffs clearly create a general lien of<\/p>\n
  the defendant bank on the title deeds deposited by<\/p>\n
  defendant No.1 in his individual capacity as sole<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                Page 17 of 23<\/span>
\n   proprietor of defendant No.2 for the loans raised by<\/p>\n
  him. Syndicate Bank v. Vijay Kumar and Others<\/a> –<\/p>\n
  AIR 1992 SC 1066 is referred to.\n<\/p>\n<\/p>\n
26.   Learned     counsel     for    the    plaintiffs    has    placed<\/p>\n
  reliance on Tilendra nath Mahanta v. United Bank<\/p>\n
  of India and others – AIR 2002 Gauhati 1 to<\/p>\n
  support his submissions. Therein it was observed that<\/p>\n
  banker\u201fs lien can properly arise only over things which<\/p>\n
  belong to customers but which are held by the bank as<\/p>\n
  security. There is no bailment in case of fixed deposits<\/p>\n
  or separate accounts as fixed deposits are basically<\/p>\n
  loans in the hands of bankers. This judgment is of no<\/p>\n
  help to the plaintiffs in the facts and circumstances of<\/p>\n
  this case.\n<\/p>\n<\/p>\n
27.   In    State     Bank      of     Mysore        v.     Lakshmi<\/p>\n
  Construction P. Ltd. and Ors.<\/a>                    – (2001) 103<\/p>\n
  Company Cases 258 (Madras), \u201ea general lien\u201f<\/p>\n
  appearing in Section 171 has been explained as:<\/p>\n
                   “20. This “general lien” as it is
\n             realized from the section is culled by
\n             way of distinction from the “particular<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                       Page 18 of 23<\/span>
\n              lien” of an artificer for work done by
\n             him on the goods in question was the
\n             basis for the English law and proved
\n             trade usage of relationship between
\n             bankers and customers. But it is also
\n             made clear that a banker\u201fs lien, when
\n             it is not excluded by special contract,
\n             express or implied, extends to all bills,
\n             cheques, and money entrusted or
\n             paid to him and all securities
\n             deposited with him, in his character
\n             as a banker. Thus, the statute does
\n             not seem to expressly refer to
\n             banker\u201fs lien in respect of deposits
\n             but, however, money has been held to
\n             be a species of goods over which, lien
\n             may be exercised. Looking into the
\n             provision of law stated above, there
\n             appears to be no lien or liability
\n             created by defendants Nos. 5 and 6 in
\n             favour of the plaintiff in the instant
\n             case over their money for loan due to
\n             the plaintiff.\n<\/p><\/blockquote>\n
                    “By mercantile custom the
\n             banker has a general lien over all
\n             forms of commercial paper deposited
\n             by or on behalf of a customer in the
\n             ordinary course of banking business.”\n<\/p><\/blockquote>\n
                    is a passage found in Chitty on
\n             Contracts, Vol.II, para. 473 (23rd
\n             edition). At page 474, it is found
\n             further that a banker may not claim
\n             the protection of the lien in respect of
\n             advances made after notice that the
\n             security belongs to or is subject to
\n             some interest of a stranger. Thus,
\n             from the facts of the instant case,
\n             with reference to the contents of
\n             exhibit P-18, by applying the above
\n             legal ratio, it is made clear that the
\n             lien can be created only by prevailing
\n             over the property of the customer
\n             that is defendants Nos. 1 to 4 herein
\n             and not against the deposits made by<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001                Page 19 of 23<\/span>
\n              defendants Nos. 5 and 6 pursuant to
\n             Section 171 of the Indian Contract
\n             Act.”\n<\/p><\/blockquote>\n
28.   Thus, it is clear that defendant bank has a general<\/p>\n
  lien over the papers deposited by defendant No.1 with<\/p>\n
  the bank at the time of raising loan for and on behalf of<\/p>\n
  defendant No.2.        Title deeds are goods within the<\/p>\n
  meaning of Section 171 and cannot be considered as<\/p>\n
  immovable properties.           Possession of the property<\/p>\n
  remained with defendants No. 1 and 2 and it was never<\/p>\n
  taken over by the bank.\n<\/p>\n<\/p>\n
29.   In State Bank of India v. Diwanji Buildwell<\/p>\n
  (India) Pvt. Ltd. and Anr.<\/a> – (2005) 126 Company<\/p>\n
  Cases 161 (Delhi) wherein in similar circumstances<\/p>\n
  an argument was raised by the counsel for the<\/p>\n
  petitioner that by a letter issued by the bank, a specific<\/p>\n
  promise was made by the bank to the effect that if the<\/p>\n
  outstanding amount was paid with interest, the papers<\/p>\n
  deposited by way of collateral securities would be<\/p>\n
  returned and since bank had promised to return back<\/p>\n
  the documents, the title deeds in any event had to be<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001           Page 20 of 23<\/span>
\n   returned and the bank cannot claim any general lien<\/p>\n
  under Section 171 of the Contract Act, it was observed<\/p>\n
  that bank had a lien on the title deed and that there<\/p>\n
  was not just one transaction of loan between petitioner<\/p>\n
  and the bank but petitioner No.2 was involved in the<\/p>\n
  transaction with the bank being a partner of the firm.<\/p>\n
  The Court while coming to this conclusion had referred<\/p>\n
  to a letter issued by the bank whereby they claimed<\/p>\n
  general lien on the title deeds against a suit filed by<\/p>\n
  the bank for liability of the petitioner No.1 in case of<\/p>\n
  another firm.\n<\/p>\n<\/p>\n
30.   In this case, I have already referred to the letter of<\/p>\n
  the bank dated 8.5.2001 wherein defendant bank<\/p>\n
  claimed general lien on the suit property in other loan<\/p>\n
  accounts of M\/s. Bharat Strips Ltd. and M\/s. Gwalior<\/p>\n
  Strips Ltd. of which defendant No.1 is the managing<\/p>\n
  director and declined to release the title deeds to<\/p>\n
  defendant No.2. Bank has claimed its general lien on<\/p>\n
  the suit property in OA No.652\/1996 filed by the bank<\/p>\n
  against defendant No.2 for the loan accounts of the<\/p>\n
  said two companies. The DRT also refused to direct the<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001          Page 21 of 23<\/span>
\n   bank to return the title deeds after defendants and the<\/p>\n
  bank had settled and compromised the claim of the<\/p>\n
  bank in OA No.652\/1996.\n<\/p>\n<\/p>\n
31.   Hence, in view of my discussion as above, prima<\/p>\n
  facie plaintiffs have not been able to show that suit<\/p>\n
  property is an HUF property and that they are the<\/p>\n
  coparceners of the same. Whereas evidence on record<\/p>\n
  prima facie indicates that defendant No.1 is the sole<\/p>\n
  proprietor of defendant No.2 and the sole owner of the<\/p>\n
  suit property.      It is the interest of the bank which is<\/p>\n
  likely to jeopardise in case the injunction as sought is<\/p>\n
  granted to the plaintiffs and it is the bank which shall<\/p>\n
  suffer    irreparable    loss    and      injury.   Under   the<\/p>\n
  circumstances, balance of convenience heavily tilts in<\/p>\n
  favour of defendant No.5.\n<\/p>\n<\/p>\n
32.   Hence, I find no merits in the application. Same is<\/p>\n
  accordingly dismissed.          The observations made as<\/p>\n
  above are without prejudice to the rights of the parties<\/p>\n
  on the merits of the case.\n<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001               Page 22 of 23<\/span>
\n CS (OS) No.1731\/2001<\/p>\n
33.   Parties shall appear before the regular Bench on<\/p>\n
  20th August, 2009 for further proceedings.<\/p>\n
                                            ARUNA SURESH
\n                                               (JUDGE)
\nAugust 10, 2009
\njk<\/p>\n
IA NO. 8092\/2001 in CS (OS) No. 1731\/2001           Page 23 of 23<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Smt. Sadhna Gupta & Ors. vs Sh. R.C.Gupta & Ors. on 10 August, 2009 Author: Aruna Suresh * HIGH COURT OF DELHI AT NEW DELHI + IA NO. 8092\/2001 in CS (OS) No.1731\/2001 Date of decision : August 10, 2009 # SMT. SADHNA GUPTA & ORS. ….. PLAINTIFFS ! Through : Mr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-207303","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSmt. Sadhna Gupta & Ors. vs Sh. 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