(Per Shri P.N.Kashalkar, Hon’ble Presiding Judicial Member)
(1) This is an appeal filed by the original opponent, State Bank of India against the judgement dated 19/11/2007 passed by District Consumer Disputes Redressal Forum, Raigad (‘forum below’ in short) in Consumer Complaint No.73/2007 by allowing the complaint partly, the forum below directed appellant/original opponent to cancel banker’s lien kept on Fixed Deposit Receipt of the complainant and to pay `5,000/- to her by way of mental agony and cost. As such, the opponent bank has come up in appeal.
(2) The facts in brief can be stated as below:-
The complainant was an employee of the appellant/opponent bank. She had kept certain amounts in 3 Fixed Deposit Receipts (‘FDR’ in short) with State Bank of India, Alibaug Branch, Alibaug, Dist.Raigad. The fixed deposit amounts were to mature on 06/06/2011, 08/08/2007 and 21/07/2011. The deposit receipt No.1 was for `2,51,857/-having receipt No. 0129209401306. It was kept on 06/06/2006 and she was to receive the amount with interest after maturity on 06/06/2011. According to the complainant, she had taken VRS on 31/03/2001. She was given retirement benefits by the bank. It included leave encashment amount of `26,104.95. After six months, on 06/09/2001 the opponent No.3 State Bank of India, Alibaug Branch sent a letter to the complainant stating that the amount of `26,104.95 was erroneously paid and therefore they were required to recover that amount and since she was not paying the same they had put banker’s lien on the said deposit. According to the complainant, action on the part of the State Bank of India, Aligbaug Branch was illegal and improper and the lien could not be enforced by the bank and the amount of leave encashment paid by the bank to her was as per rules. Therefore, the bank was deficient in rendering service to the complainant. She sent a notice through advocate dated 09/11/2006 to the opponent bank, in reply the opponent bank sent a circular dated 29/12/2006 stating the complainant was not entitled to get the amount of leave encashment. She, therefore, filed consumer complaint and requested the District Forum to direct opponent State Bank of India to cancel the lien that was kept on her FDR. She also prayed that she should be given `10,000/- towards cost and compensation.
(3) State Bank of India filed written version and contested the complaint. According to State Bank of India, the complainant is not consumer and she was an employee of the bank and on her taking VRS, she was given retirement benefits and while giving same, she was erroneously given an amount of `26,104.95 for leave encashment. They had asked the complainant to refund and on refusal to do so, they had kept lien on FDR No. 0129209401306. The bank, therefore, pleaded that the complaint be dismissed since they had exercised banker’s lien in terms of provisions of Indian Contract Act.
(4) The forum below held that the bank should have filed civil suit to recover an amount of `26,104.95 from the complainant, which amount was wrongly paid to her due to oversight by the bank. The bank should not have kept lien on the FDR No.01292094013206 of `2,51,857/-. The forum below has even held that under the provision in Sec.72 of Indian Contract Act, the bank has no right to recover the amount from its ex-employee, which was erroneously paid to the complainant. Leave encashment could be permitted only to the employee who had completed 20 years of service, but since the complainant had taken VRS after completing 15 years’ service, she was not entitled to get encashment. Therefore, the bank was entitled to recover dues under provisions of India Contract Act of only one FDR under banker’s lien. This submission of the bank was turned down by the forum below and it held that the appellant bank should have filed civil suit against the complainant to recover the amount and directed the bank to cancel the banker’s lien kept on FDR. Aggrieved by this order, the bank has filed this appeal.
(5) We have heard Adv.Patwardhan for the appellant bank. None present for the respondent, though she is duly served with notice sent by the Commission.
(6) Adv.Patwardhan submitted that in terms of Sec.72 of Indian Contract Act, if the person has utilized the amount by mistake, he is bound to pay/return with interest. In this case, the amount of `26,104.95 of leave encashment was erroneously given by the bank as such employer of the complainant. The employee is entitled to get benefit of leave encashment only if he/she put in service of 20 years. Since, the complainant/respondent had not put in 20 years continuous service, she was not entitled to get the said benefit and therefore U/s.72 of India Contract Act, bank was entitled to recover the amount wrongly paid to the complainant. Adv.Patwardhan also submitted that the respondent had kept three FDRs with bank. Out of 3 FDRs, amount of `2,51,857/- of FDR No. 01292094013206 had not matured till then. Since the complainant did not return an amount of `26,104.95 of leave encashment which was wrongly paid to her despite notice, they simply put banker’s lien of the said FDR held by the complainant to induce her or prompt her to pay `26,104.95 which was erroneously given to her at the time of her retirement. They exercised banker’s lien u/s.171 of the Indian Contract Act. The National Commission in the case of – Branch Manager, Union Bank of India & anr. Vs. Tele Surya Rao – Revision Petition No. 336 of 1996 decided on 11/04/1997 - clearly held that when the complainant obtained two FDRs from a bank - obtained loan against first FDR - paid amount without recovering the loan - bank realized mistake - it rightly declined to return amount of 2nd FDR when prematurely depositer wanted to encash of the second FDR without discharge of loan. The question was whether the bank could exercise its lien against the second FDR ? The Hon’ble National Commission held that the general lien over all forms of securities deposited by the customers has been judicially recognized and affirmed by the Supreme Court in a catena of cases (see Syndicate Bank Vs. Vijay Kumar, (1992) SCC 330 = 1 91992) BC 324 (SC). In another case, the Hon’ble National Commission in case of – Bank of India Vs. S.N.Chawla – (2000) NCJ 99 - held that bank has general lien on all the securities of company and its directors. Therefore, since the loan was not recovered, the bank had kept general lien over the securities kept in the bank while obtaining loan by the company or by company’s director. Right of general lien U/s.171 of Indian Contract Act is clearly right vested in the bank in respect of securities kept by the party. In the instant case, the respondent had kept 3 FDRs with the appellant. The respondent was erroneously given a sum of `26,104.95 towards leave encashment. She was not entitled to receive the said amount since she was put in only 15 years’ service and she had not completed 20 years’ continuous service with the appellant bank. Thus, the respondent was not entitled to get leave encashment amount, but at the time of retirement she was given an amount of `26,104.95 by mistake. The respondent on demand also did not return the said amount. The appellant bank, therefore, kept lien on the FDR bearing No. 01292094013206 held by the respondent which was for `26,104.95 whose maturity date was 06/06/2011. So, we are of the view that the bank has rightly exercised its right to keep general lien on the said FDR held by the respondent u/s.171 of India Contract Act and the bank was entitled to recover that amount and therefore, the impugned order passed by the forum below appears to be erroneous which is required to be quashed and set aside by allowing this appeal. Hence, the order.
ORDER
(1) Appeal is allowed. Impugned order dated 19/11/2007 passed by District Forum, Raigad in Consumer Complaint No.73/2007 is quashed and set aside. In result, consumer complaint No.73/2007 stands dismissed.
(2) No order as to costs.
(3) Inform the parties accordingly.
Pronounced on 18th June, 2012.
