SYNDICATE BANK Vs. WILFRED DSOUZA

JUDGEMENT

(1.) BOTH the writ appeals are directed against the same order of the learned single Judge dated 8-11-2000 in W. P. No. 5234 of 1998. The appellant in Writ Appeal No. 7537/00 is the Syndicate Bank, whereas in Writ Appeal No. 32/01, the appellant is one Wilfred D'souza. Sri Wilfred D'souza was the petitioner and the Syndicate Bank was the respondent in the writ petition. By the order impugned in these writ petitions, the learned single Judge has allowed the writ petition and quashed the impugned communication of the Syndicate Bank dated 7-1-1998.

(2.) THE background facts leading to filing of these writ appeals be noted briefly as under :-3. The writ petitioner is the Managing Director of the Company called M/s. Souza and Lewis Fisheries India (Pvt.) Ltd. , having its registered office at Hampanakatta, Mangalore. The said company borrowed huge amounts from the Consortium Bank comprising of Syndicate Bank, Canara Bank and Vijaya Bank. The Syndicate Bank is a member of the consortium Bank and lead Bank. The writ petitioner has furnished the bank guarantee to an extent of Rs. 170 lakhs along with the interest by Deed of Guarantee dated 12-4-1988 the true copy of which is produced and marked as Annexure '1' in the writ petition. The Syndicate Bank as a Lead Bank with a view to recover the amounts due to the consortium of Banks got issued legal notice dated 25-10-1997 to the petitioner and others calling upon them to repay the amounts. In the said notice issued to the writ petitioner, it has been clearly averred that the petitioner is liable to the Bank pursuant to the individual guarantee furnished by him. The true copy of the legal notice sent to the petitioner is produced Annexure '3' in the writ petition. According to the Bank, since the writ petitioner did not comply with the demand contained in the legal notice, the Consortium of Bank under the leadership of the Syndicate Bank, filed an application under S. 19 of the Central Act 51 of 1993 which is pending on the file of the Debt Recovery Tribunal, Bangalore. In the meanwhile according to the Syndicate Bank, since the writ petitioner did not make any attempt to repay the debts in terms of personal guarantee sought by him and instead, indulged in correspondences raising untenable pleas, in order to safeguard the interest of the Bank, it exercised its right of set off as also the right of exercise of general lien over the amounts belonging to the petitioner in his S. B. Account No. 47724. It appears that on 30-1-1997, the writ petitioner opened the above S. B. Account and a sum of Rs. 3,01,508,69 was laying in the account on the date the Bank exercised its right of set off as well as the right of general lien. This was done by the Bank in the month of January, 1998 and the same was communicated to the writ petitioner vide letter dated 7-1-1998. The writ petitioner wrote a letter to the Bank vide Annexure C protesting against the said action of the Bank. On receipt of the said letter dated 15-1-1998, the Bank replied to the same as per reply dated 15-2-1998 refusing to accede to the request of the writ petitioner. When the matter stood thus, the writ petition was filed seeking to quash the communication bearing Ref : 44/0408/lic 485/rf dated 7-1-1998.

(3.) IN the writ petition it was contended that (i) the action of the Bank in exercising the general lien on the amount standing to the credit of the petitioner in S. B. A/c No. 47724 with the respondent-Bank is illegal and arbitrary; (ii) that the freezing of the amount and exercising general lien on the amounts belonging to the petitioner even before determination of its liability by the Debt Recovery Tribunal by passing appropriate decree in favour of the respondent-Bank, is bad in law; (iii) that the liability of the petitioner could be enforced only after the decree is passed by the Debt Recovery Tribunal in favour of the Bank and, therefore, the impugned action is one without authority of law.