JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainant took two housing loans, one in the year 2002 and other in the year 2005 from State Bank of Patiala, mortgaging property no. 2/231, Govindpura, Haldwani, while taking the aforesaid housing loan. The learned counsel for the petitioner complainant submits that in fact two title deeds in respect of two separate floors for the same property were deposited with the Bank. The husband of the complainant/petitioner had also availed credit facility from the Bank and the complainant had stood as a guarantor for repayment of the aforesaid housing loan taken by her husband. The complainant claims to have arranged fund from her relatives for payment of the housing loan taken by her and wanted the Bank to settle the housing loan account and release the title deeds which she had deposited with the Bank. It would be pertinent to note here that the complainant/petitioner had defaulted even in payment of the housing loan taken by her and had thereby become a defaulter. The Bank settled the housing loan taken in account no. 55048407615, but did not settle the housing loan taken in the other account, on the ground that being guarantor of the credit facility taken by her husband, she was under an obligation to pay the aforesaid loan before the title deed of her property could be returned to her. The complainant wanted the Bank to enter into a one time settlement with her, but the Bank refused to enter into such a settlement. Being aggrieved from the action of the Bank, the complainant approached the concerned District Forum, seeking the following reliefs:- “(i) An award to be passed in favour of the Complainant, directing the O.P. Bank to process the said house loan no. 55048407614 for one time settlement and release the original house deed of house no. 2/231, ground floor, Gobindpura, Haldwani in her favour after receiving the entire amount of one time settlement forthwith or deposit the said title deed in this Hon’ble Forum. (ii) To award an amount of Rs. 25,000/- to the Complainant by the O.P. Bank by way of damages for unwarranted harassment. (iii) Cost the case being Rs. 5,000/- be also awarded.” 2. The complaint was resisted by the Bank on the ground that the complainant had mortgaged the ground floor of house no. 2/231, Govindpura, Haldwani against cash credit limit of Rs. 14 lakhs sanctioned to her husband, who was the proprietor of Jeevan Auto Industries. The aforesaid ground floor of house no. 2/231, Govindpura, Haldwani was also mortgaged by the complainant against housing loan taken in account no. 55048407614. It was claimed by the Bank that the complainant could not compel it to enter into a settlement and the title deeds could not be returned to her till the time the loan taken by her husband and guaranteed by her by mortgaging the ground floor of house no. 2/231, Govindpura, Haldwani was repaid. 3. The District Forum, vide its order dated 27.08.2013, directed the complainant to pay a sum of Rs. 3,73,062/- as one time settlement amount to the Bank in housing loan account no. 55048407614, within one month. It was further directed that on such payment, the Bank will return the title deed of the ground floor of house no. 2/231, Govindpura, Haldwani to the complainant and will also issue No Dues Certificate to her. The Bank was directed to pay Rs. 20,000/- as damages for mental agony and financial loss and Rs. 5,000/-, as compensation to the complainant. 4. Being aggrieved from the order of the District Forum, the Bank approached the concerned State Commission by way of an appeal. The complainant was also aggrieved from the quantum of compensation awarded to her and therefore, she also filed an appeal against the order of the District Forum. 5. Vide impugned order dated 31.07.2014, the State Commission allowed the appeal, filed by the Bank, thereby setting aside the order passed by the District Forum on 27.08.2013 and also simultaneously dismissed the appeal filed by the complainant. Being aggrieved from the dismissal of her appeal and allowing the appeal filed by the Bank, she is before us, by way of this Revision Petition. 6. Admittedly, the complainant had taken housing loan from the Bank in two accounts. It is also an admitted case that the Bank has already settled the housing loan, taken in one of the account and the title deed, which was deposited by the complainant while taking loan in the said account has been returned to the complainant. The dispute is only with respect to the housing loan, taken in the other account. The complainant had mortgaged the ground floor of house no. 2/231, Govindpura, Haldwani with the Bank not only while taking housing loan, but also at the time she had stood as guarantor for the credit facility taken by her husband as the Proprietor of Jeevan Auto Industries. Admittedly, the amount outstanding in the aforesaid account has not been paid to the Bank. Therefore, the Bank has a lien in respect of the title deed of the ground floor of house no. 2/231, Govindpura, Haldwani till the time the dues in the loan account of her husband are paid to the Bank. 7. The learned counsel for the complainant submits that in fact the ground floor of house no. 2/231, Govindpura, Haldwani was not mortgaged by the complainant while standing as the guarantor for the loan taken by her husband. This, however, is not correct. The Bank has categorically stated in para 7 of its reply that the complainant had also mortgaged the ground floor of the aforesaid house towards the cash credit limit of Rs. 14 lakhs, extended to her husband by the Bank. However, even if we proceed on the assumption that the ground floor of the aforesaid house was not mortgaged against the cash credit limit extended by the Bank to the husband of the complainant, the Bank would still be entitled to hold the title deed of the aforesaid property since it is an admitted case that the complainant had guaranteed the cash credit service availed by her husband from the Bank. Till the time the dues guaranteed by the complainant are not paid to the Bank, it cannot be directed to release the title deed of the property owned by the complainant. 8. Section 171 of the Indian Contract Act to the extent it is relevant 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. The aforesaid section came up for consideration of the Hon’ble Supreme Court in Syndicate Bank vs. Vijay Kumar & Ors., AIR 1992 SC 1066. In the aforesaid case, the respondent no. 3 before the Hon’ble Supreme Court deposited two sums, one of Rs. 65,000/- and the other of Rs. 25,000/-, by way of two separate fixed deposits receipts, so as to enable the Bank to furnish a bank guarantee on behalf of judgment debtor firm in favour of the Registrar, High Court of Delhi. The fixed deposits receipts were duly discharged by signing on their reverse. Later, the Bank guarantee issued in favour of the Registrar of the High Court was discharged by the Court. The decree holder got a sum of Rs. 35,000/-, out of the amount of Rs. 90,000/-, which respondent no. 3 had deposited with the Bank by way of FDR, attached on the ground that the said amount belonged to the judgment debtor firm of which respondent no. 3 was a partner. The High Court rejected the plea of the Bank that the aforesaid amount could not be attached, since the Bank had a lien on the FDRs against dues in an overdraft account. It was contended on behalf of the Bank that it had a lien over the amount deposited by the judgment debtor and as banker they had a right to hold the security, in respect of overdraft amount. Accepting the contention, the Hon’ble Supreme Court, inter-alia, held that the Bank has a general lien over all forms of securities or negotiable instruments, deposited by or on behalf of the customers in the ordinary course of banking business and such a general lien is a valuable right of the banker, judicially recognised, and in the absence of a contract to the contrary, the banker has a general lien over such security received from the 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 the customer’s debit balance. During the course of the decision, the statements of law on the subject was extracted by the Hon’ble Supreme Court in the following terms:- In Pagets’s Law of Banking, Eighth Edition, Page 498 a passage reads as under: THE BANKER’S LIEN Apart from any specific security, the banker can lock to his general lien as a protection against loss on loan or overdraft or other credit facility. The general lien of bankers is part of law merchant and judicially recognised as such. In Brandao v. Barnett, (1846) 12 Cl. and Fin.787 it was stated as under: Bankers most undoubtedly have a general lien on all securities deposited with them as bankers by a customer, unless there be an express contract, or circumstances that show an implied contract, inconsistent with lien.” This issue also came up for consideration of the Karnataka High Court in Smt. K. S. Nagalambika vs. Corporation Bank & Anr., AIR 2000 Kant 201. In the aforesaid case, the plaintiff had deposited money with the bank and obtained fixed deposits receipts in their name. On maturity, the said deposits were not paid by the Bank on the ground that the plaintiff was a surety for a loan taken by his wife and the amount of the FDR was accordingly adjusted by the Bank towards the loan account of the wife. Claiming the adjustment to be illegal, a suit was filed for recovery of the adjusted amount alongwith interest. The Bank contended that it had general lien and therefore, was entitled to adjust the amount towards the loan account. Relying upon the decision of the Hon’ble Apex Court in Vijay Kumar & Ors. (supra), it was held that undoubtedly the Bank had a lien over the FDRs. In view of the legal proposition, enunciated in the above referred cases, the petitioner Bank is certainly entitled to withheld the title deed till the loan guaranteed by the complainant is repaid to it. 9. As regards the direction sought by the complainant to the Bank to enter into a one time settlement, in our view, no such direction can be given by a Consumer Forum. It is for the Bank to decide whether to enter into a one time settlement or not and if the complainant claims any discrimination by the Bank in this regard, his remedy would be before some other forum and not before a Consumer Forum. 10. For the reasons stated hereinabove, we find no merit in the revision petition and the same is hereby dismissed. |
