ALLAHABAD BANK AND ANOTHER Vs. SUSHIL KUMAR DASS

JUDGEMENT

(1.) This Revision Petition has arisen out of the order dated 28.4.1995 passed by the West Bengal State Commission at Calcutta allowing the appeal of Shri Sushil Kumar Das, Complainant and reversing the order dated 9.1.1995 passed by the .District Forum Calcutta by which the complaint was dismissed. The State Commission directed the Allahabad Bank, the Opposite Party before the District Forum to release the sum of Rs. 88,070.00after adjustment of statutory interest of Rs. 5,000.00 on account of the agricultural loan out of the proceeds of the two Fixed Deposit Receipts.

(2.) The facts as found established by the District Forum and upheld by the State Commission are these. The Complainant along with one Dakha Biswas jointly obtained in 1985 an agricultural loan to the extent of Rs. 62,000.00 from the erstwhile United Industrial Bank Limited, since amalgamated with Allahabad Bank against hypothecation of the tractor and collateral security/mortgage of agricultural land to the extent of 10 acres belonging to the Complainant and Dakha Biswas worth Rs. 3.00 lakhs. The loan was to be repayable by half yearly instalments of Rs. 5,000.00 each within 7 years plus accrued interest. The Complainant has obtained the two Fixed Deposit Receipts of Rs. 30,000.00 each, being F.D.R. No. 100320/269/91 and 100321/270/91 and were due to mature on 2.8.1994 with maturity value of Rs. 88,070.00. Smt. Maya Rani Santra was nominee for the two F.D.Rs. The Bank sent a demand notice dated 20.7.1994 for the balance of Rs. 56,574.00 due against the said agricultural loan but no payment was made. The Bank realised the amount of Rs. 56,574.00 out of the maturity value of the said two FDRs and credited Rs. 29,384.00 in the Saving Bank Account of the Complainant.

(3.) The complaint was filed alleging deficiency in service in the illegal act of appropriation by the Opposite Party of the amount of FDRs alleged to be taken by the Complainant to meet the expenses for his grand-daughters marriage. The District Forum upheld the contention of the Opposite Party that the amount due under the FDRs had been adjusted as per the banking rules and Bankers lien against the amount due under the said agricultural loan and there is no deficiency in service on the part of the Opposite Party. The District Forum held that the Opposite Party is within its right to encash and adjust the FDRs amount of the Complainant against the amount of dues of his joint loan. The State Commission on appeal by the Complainant held that the exercise of the power of general lien by the Bank, in respect of the FDRs which came into its possession in the ordinary course of banking business as per section 171 of the Contract Act does not apply in the instant case inasmuch as the agricultural loan was more than fully secured by the mortgage of 10 acres of agricultural land worth Rs. 3.00 lakhs and the tractor itself is worth more than the dues of the Bank and that the express contract would exclude the expression of the statutory general lien. It was further held that the Bank could invoke its power of general lien over the FDRs standing in the name of Complainant along had not the agricultural loan been recovered from the mortgaged property and the tractor through due process of law as per the provisions of Sec. 171 of the Contract Act, otherwise not.