MD. NAYABUDDIN Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petitioner seeks an order on the bank to allow him to repay the entire loan amount to the bank. The writ petitioner also seeks a direction on the bank to release the title deeds of the flat mortgaged in respect of such loan amount upon repayment.

(2.) It is contended on behalf of the writ petitioner that, he along with his brother has obtained a home loan from the bank upon deposit of title deeds of a flat as security. The bank is not allowing the writ petitioner to repay the home loan and to obtain release of the title deeds kept as security in respect of such home loan. According to the writ petitioner, the bank does not have a lien on the title deeds of the immovable property in respect of any other amount that may be outstanding to the bank. The title deeds kept as security for the home loan account cannot be withheld for the purpose of security for the cash credit limit taken by the brother of the writ petitioner. The provisions of lien and Section 171 of the Contract Act, 1872 does not apply in favour of the bank. Since the home loan is on the basis of a written contract and such contract does not allow the bank to exercise banker's lien, it cannot exercise such lien in respect of the title deeds for a different loan account. Reliance is placed on (The State Bank of India v. Javed Akhtar Hussain & Ors., 1993 AIR(Bom) 87), (Anumati v. Punjab National Bank, 2005 AIR(SC) 29), (Krishna Kishore Kar v. United Commercial Bank & Anr., 1982 AIR(Cal) 62) and (Vijay Kumar v. M/s. Jullunder Body Builders, Delhi & Ors., 1981 AIR(Del) 126) on the scope and ambit of a banker's lien.

(3.) On behalf of the respondent it is submitted that, the writ petition involves disputed questions of fact. The parties should be relegated to a suit. It is next contended on behalf of the bank that, the writ petitioner not having paid the entire home loan amount, the question of accord and satisfaction does not arise. Reliance in this regard is placed on (National Insurance Company Limited v. Boghara Polyfab Private Limited, 2009 1 SCC 267). Referring to Section 60 of the Transfer of Property Act, 1882 it is contended that, the writ petitioner has a right to redeem. The writ petitioner not having paid the home loan amount, the writ petitioner cannot be held to have exercised his right to redemption. Reference is also made to Section 63 of the Contract Act, 1872. According to the bank, Section 171 of the Contract Act, 1872 allows a banker to exercise banker's lien in absence of a contract to the contrary. Reliance in this regard is placed on (M/s. Devi Ispat Limited & Anr. v. The Central Bank of India & Ors., 114 CalWN 24). It is submitted that, the view expressed by the Single Bench has been upheld upto the Supreme Court in the case (Zonal Manager, Central Bank of India v. Devi Ispat Limited & Ors., 2010 11 SCC 186). On the scope and ambit of the banker's lien reliance is placed on (The Board of Trustees of the Port of Bombay & Ors. v. M/s. Sriyanesh Knitters, 1999 AIR(SC) 2947) and (Syndicate Bank v. Vijay Kumar & Ors., 1992 AIR(SC) 1066). Referring to the home loan documents it is submitted that, the interpretation of those documents should not be embarked upon by way of the present writ petition. As disputed questions of fact have arisen, it is proper that the parties are relegated to a suit.