UNITED BANK OF INDIA Vs. ANINDITA SEN

JUDGEMENT

(1.) The fact of the case is this that Priya Rajan Sen and his wife Anupama Sen took some loan of Rs.1,70,000/- for purchase of a truck from the Appellant/bank. The total price of the truck was Rs.2,35,000/- out of which Rs.65,000/- were invested by the parents of the respondent No.1, Kumari Anindita Sen. The father of the respondent No.1 also pledged a Fixed Deposit Certificate of Rs.45,000/- with the Appellant No.4/ Bank to secure this loan from the Appellant/ Bank. The father of the respondent No.1 obtained a Fixed Deposit Certificate for Rs.15,000/- and on maturity on 17.6.1991, it stood to Rs.25,807.50. On or about 7.8.1991, the father of the respondent No.1 renewed the cash certificate with addition of Rs.192.50 in joint names of respondent No.1 and himself for 3 years on the basis of either or survivor. Accordingly the Bank issued a Fixed Deposit Certificate for Rs.26,000/- issued on 7.8.1991 for Rs.26,000/- for a period of 3 years and maturity value of the said certificate aggregated to Rs.38,164/-. On maturity, the respondent No.1 approached on 27.8.1994 on the Bank for withdrawal of the matured sum but the respondent No.1 was refused payment of the said sums on the ground of Court case and thereafter she was induced to extend the certificate for one year as usual in the joint names of the respondent No.1 and her father and the payment instruction endorsed on the Fixed Deposit Certificate was penned through by the Accountant of the Appellant/bank. It is further alleged that she was persuaded to pay Rs.1,000/- for Recreation Club of the Bank and in that case, the Bank officials can help her to get the matured sums of the Fixed Deposit Certificate and on this issue both the parties made allegation and counter allegation against each other. But point for our decision in the instant case is whether the Bank can keep a general lien on the joint account of the respondent No.1 and her father opened on either or survivor basis Admittedly the parents of the respondent No.1 are loanee from the Bank for purchase of a vehicle.

(2.) It is admitted that the Bank has filed a Money Suit for recovery of the loan from the parents of the respondent No.1. It is again admitted position that there is no attachment of the Fixed Deposit Certificate of Rs.38,164/- standing in the joint name of the respondent No.1 and her father.

(3.) To our opinion in absence of specific hypothecation or pledge of the captioned Fixed Deposit Certificate No. A-507656 standing in the joint name of respondent No.1 and her father, either or survivor basis the payment against the said certificate cannot be withheld by the Appellant/bank. The Appellant/bank has attempted to prove that the money in question in respect of Fixed Deposit Certificate belonging to the father of the by or on behalf of person claiming to be real owner of such property. The Sub-section 3 of Sec.4 i. e. , non-obstante clause is not applicable in the instant case. Therefore all decisions dted by the Appellant/bank which were applicable prior to enactment of the said Benami Transaction (Prohibition) Act, 1988 are no longer applicable by virtue of the said Act.