Dismissed

Raghuvansh D.Bhasin v. National Co-Op.Bank Ltd.

Bombay HC25 Sept 2012WP/2339/2000

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition seeking recovery of a fixed deposit amount. The court held the bank was entitled to debit the deposit against an outstanding overdraft and bank guarantee liability, dismissing the petition for suppression of facts and directing return of the FDR.

What did the court decide?

Petition dismissed; petitioner directed to return original Fixed Deposit Receipt to the bank.

Raghuvansh D.Bhasin Vs National Co-Op.Bank Ltd. — Banking and Recovery | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2339 OF 2000

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Raghuvansh Dewanchand Bhasin … Petitioner Vs. National Co-operative Bank Limited and another ... Respondents

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Mr. R. V. Bhasin for the Petitioner in Person Ms Rubia Taneja for Respondent for respondent No.1.

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CORAM : S. A. BOBDE & R. G. KETKAR, JJ. Reserved on: 4^th September, 2012 Pronounced on: 25^th September, 2012

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ORDER: (Per R. G. Ketkar, J.)

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Heard Mr. R. V. Bhasin, the petitioner in person and Ms Taneja, learned Counsel for respondent No.1 at length.

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By this Petition under Article 226 of the Constitution of India, the petitioner has prayed for (i) issuance of mandamus or appropriate writ, order or direction directing respondent No.1 Bank (for short ‘Bank’) to pay to the petitioner forthwith amount of Rs.14,31,045/- together with interest @14% p.a. until the date of the actual payment with exemplary costs; (ii) liberty to adopt any other and further legal proceedings to claim civil damages in addition to the value of the Fixed Deposit Receipt

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(for short ‘FDR’) with further interest as may be applicable, which is stated to be 14% p.a. as on date; (iii) making such observations on the

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conduct of Bank, which is clearly criminal so that the ends of justice are met and the respondent No.1 are legally punished as per law. The facts and circumstances, giving rise to filing of the present Petition, briefly stated are as under:

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It is the case of the petitioner that he had deposited amount of Rs.10,50,000/- with the Bank on 14.05.1998 in FDR. The said FDR was to carry interest @ 14% p.a. and the due date was 13.08.2000. The maturity value was Rs.14,31,045/-. The petitioner presented the said FDR through the Oriental Bank of Commerce, Kalyan Branch to the Bank for encashing the same. The Bank with dishonest intention illegally and falsely stamped ‘Bank’s Lien’ on the face of the FDR. On the reverse of that FDR, there was also a remark to the effect that ‘Bank Lien for Guarantee / OD A/c.’. Such remark was not made when the FDR was issued on 14.05.1998. In other words, it is the case of the petitioner that when the Oriental Bank of Commerce presented FDR for encashment to the Bank, the said remarks were made on the face and on the reverse side of the FDR. It is the case of the petitioner that the Bank had committed act of forgery by making remarks on the front and reverse side of the FDR. The petitioner lodged complaint with the Manager of the Bank and also to the Higher State Authorities including the Registrar of Co-operative Societies, Maharashtra and also the Senior Inspector of Police, Cuffe Parade Police Station, Mumbai - 400 005.

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It is the case of the petitioner that he has been wrongfully denied his legal right and the Bank had made dishonest and wrongful gain of money. The FDR is in exclusive name of the petitioner. No one else is connected with any other loan and / or transaction that is alleged to have been done by the Bank in the past with some rank outside company. Bank alleged to have entered into some transaction with a private limited company whose address and name was Devanshish Prop : Micrfibres Private Limited, 76, Bajaj Bhawan, Nariman Point, Mumbai – 400 021 (for short ‘Company’). Bank addressed a letter dated 11.08.2000 to the petitioner falsely addressing him as the Managing Director of the said Company making both a wrongful statement and attempting to connect it with a case instituted by Madhya Pradesh Electricity Board (for short ‘Board’) at Jabalpur against the Bank. The petitioner is not party to the said proceedings. The petitioner relied upon the correspondence exchanged by and between the petitioner, Bank and the Oriental Bank of Commerce. Since the Bank did not pay the amount due to him under FDR together with accrued interest, he has instituted the present Petition.

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On behalf of Bank, Mr. Sudhir Narhar Biniwale, Manager of the Bank made affidavit opposing the admission of the Petition. It was asserted that the Writ Petition is thoroughly misconceived and untenable and the petitioner has an equally efficacious alternate remedy of filing

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civil Suit to recover the alleged amount under the FDR. Respondent No.1 is a Co-operative Bank registered under the Maharashtra Cooperative Societies Act, 1960, and as such, petitioner cannot invoke writ jurisdiction against the co-operative bank seeking recovery of the alleged dues. On merits, it was asserted that at the request of the petitioner, who was the Managing Director of the said Company, the Bank had given a bank guarantee bearing No.NCB/NP/G-23/95-96 dated 12.01.1996 in favour of the Board for an amount upto Rs.2,19,600/- for due and faithful performance required from the Company as the said Company was given contract for supply of material, equipments of services to the Board of a total value of Rs.21,60,000/-. The said bank guarantee was valid till 31.12.1996.

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It is the case of the Bank that there was a dispute between the Company and the Board and the Board had instituted a civil Suit in the Court of District Judge, Jabalpur. As a result whereof, the Bank was required to make payment of Rs.3,00,303/- along with interest, as claimed by the Board in that Suit. The said fact was brought to the notice of the petitioner by letter dated 20.10.1999. The petitioner was informed that the said amount claimed by the Board is being paid by debiting the same to the petitioner’s current account, and if the petitioner fails to make the payment of the same, the Bank will have no alternative but to withhold the payment of fixed deposit for the said amount. It is

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the case of the Bank that the petitioner was sanctioned overdraft facility of Rs.1,75,000/- on 25.01.1996 and Rs.10,78,875/- on 12.07.1996. The said overdraft facility was sanctioned against fixed deposits maintained by the petitioner with the Bank. The petitioner had signed loan documents for availing overdraft limit of Rs.1,75,000/- against the security of FDR Nos.14701-704 for Rs.50,000/- each. The petitioner had not kept the said FDRs with the Bank, though the said limit was sanctioned against the security of fixed deposit. In view thereof, the bank’s lien could not be stamped or recorded on the FDRs. The petitioner was requested on number of times to pledge the said FDRs. However, for one reason or the other, the petitioner refused to do so. Since there was default on the part of the petitioner in making timely repayment in the overdraft account, Bank had frozen FDR having account No.2231 with instructions not to allow any debits from the said account. For the said account No.2231, the original deposit was Rs.19,00,000/- vide FDR No.116425 dated 13.02.1997, and the maturity value of which was Rs.22,83,990/-. On the date of maturity i.e. 14.05.1998, on the instructions of the petitioner, the proceeds of the maturity value of Rs.22,83,990/- were adjusted by crediting Rs.12,33,990/- to the overdraft account No.2048 and for the balance amount of Rs.10,50,000/-, fresh FDR was issued vide SMRD No.017900 dated 14.05.1998 (FDR in question). Since the overdraft facility was availed by the petitioner against the said FDR, the said FDR

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continued to be under Bank’s lien for the overdraft account. As on 30.11.2000, the outstanding balance in overdraft account No.2048 was Rs.89,424.04/-. The petitioner and the said Company are liable to make payment of the amount due under the bank guarantee.

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It was further asserted that on maturity of the fixed deposit of Rs.10,50,000/-, the Bank received the original fixed deposit from Oriental Bank of Commerce, Kalyan Branch. In order to avoid encashment of the said deposit and / or any misuse of the same, the Bank marked its lien for the amount due under the bank guarantee as well as the overdraft facility. The said fact was recorded by the Bank in its letters and correspondence addressed to the petitioner as well as Oriental Bank of Commerce. It was also asserted that the Bank was justified in withholding the payment of amount under fixed deposit, as the petitioner has to pay and discharge the amounts due under the bank guarantee as well as the overdraft facility. It was contended that the petitioner, without disclosing any of the aforesaid facts, has invoked the writ jurisdiction and prayer was made to dismiss the Petition.

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The Petition was admitted on 09.04.2001 and the Bank was directed to release the amount covered by the fixed deposit to the petitioner after deducting therefrom the amount due under the overdraft account and the amount due towards the bank guarantee. The amount due towards the bank guarantee was ordered to be deposited in this

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Court within a period of four weeks and to be invested in any nationalized bank in a fixed deposit for a period of one year and to be renewed from time to time till the decision of this Petition.

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Mr. Avinash Keskar, Recovery Manager of the Bank made further affidavit dated 14.07.2009 reiterating the earlier stand. In addition, it was contended that pursuant to the order dated 09.04.2001 passed by this Court, the Bank had paid Rs.9,77,670.96/- by pay order after deducting TDS of Rs.53,214/- on the interest earned and appropriating a sum of Rs.90,131.04/- towards overdraft account as per the said order. Bank vide letter dated 02.05.2001 had deposited amount of bank guarantee with interest thereto @21%, which came to Rs.4,12,750/- with the Prothonotary and Senior Master, High Court, Bombay. By letter dated 02.05.2001, the Bank intimated the said fact to the petitioner and called upon him to surrender the FDR duly discharged. Though the petitioner had accepted the said amount, he has not surrendered the FDR duly discharged. A request is, therefore, made to direct the petitioner to surrender the fixed deposit receipt failing which, the Bank will face audit objection. It was also asserted that since the petitioner has recovered the entire amount under the FDR, he is falsely claiming to recover the disputed amount deposited with the bank guarantee along with interest. The claims made by the petitioner were denied and it was prayed that the Petition may be dismissed with costs.

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Mr. Bhasin invited our attention to annexures to the Petition and

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in particular, (i) FDR A No.017900 dated 14.05.1998 without the endorsement made on the face and reverse side of the said FDR. The said FDR was submitted by the Oriental Bank of Commerce to the Bank for encashment; (ii) the endorsement made by the Bank on the front and reverse side of the said FDR; (iii) a communication dated 20.10.1999 made by Mr. S. N. Biniwale, Manager of the Bank to the petitioner; (iv) reply of the same date given by the petitioner to Mr. Biniwale; (v) a communication dated 11.08.2000 made by the respondent to the petitioner; (vi) a communication dated 17.08.2000 made by the Oriental Bank of Commerce to the Bank; (vii) notice dated 06.10.2000 given by the petitioner to (a) Mr. Biniwale, Manager of the Bank, (b) the Registrar, Co-operative Societies, Maharashtra and (c) Senior Inspector of Police, Cuffe Parade, Police Station, Mumbai. He also invited our attention to the compilation filed by the petitioner in Criminal Application No.4069 of 2007 preferred by the petitioner against the order of acquittal dated 29.09.2007 passed by the Additional Chief Metropolitan Magistrate, 47^th Court, Esplanade, Mumbai in C.C. No. 1125/SS/2003 acquitting Mr. Biniwale. In particular, he invited our attention to (i) a communication dated 03.02.1997 addressed by the Bank to the Chief Engineer (S & P), Board setting out therein that the Bank had terminated the bank guarantee; (ii) a communication dated 12.02.1997 addressed by the Bank to the Chief Engineer wherein it was

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set out that the bank cancelled its lien; (iii) a communication dated 17.09.1997 addressed by the Bank to the Chief Engineer (S & P), Board.

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Mr. Bhasin submitted that the Bank had terminated the bank guarantee, which is evident from a communication dated 03.02.1997 addressed by the Bank to the Chief Engineer (S & P) of the Board. The Bank also cancelled its lien, which is evident from the communication dated 12.02.1997. Under these circumstances, the Bank was wholly unjustified in making endorsements on the face and reverse side of the FDR. Having cancelled the bank guarantee, the Bank was not justified in paying the amount of Rs.3,00,303/- together with interest @21% to the Board. The stand taken by the Bank in the communication dated 20.10.1999 addressed by the Bank to the petitioner setting out therein that the Board had lodged a claim within the stipulated period in the bank guarantee i.e. before the expiry of six months as stated in the bank guarantee and as such the claim is within limitation and the Bank has decided to accept the claim of the Board and make payment of Rs.3,00,303/- is wholly unjustified as the bank guarantee was terminated. In any case, the Bank's lien was cancelled, and therefore, the endorsements made on the face and reverse side of the FDR are wholly unjustified and the appropriate direction may be issued to the Bank for paying the amount in terms of prayers made in the Petition. He further submitted that this Court has admitted appeal against the order of

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acquittal. He further submitted that the Bank cannot defeat the Writ Petition on the ground that the disputed questions of fact arise in this Petition for adjudication. In support of this proposition, he relied upon the decision of the Apex Court in the case of Dwarka Nath Vs. Income Tax Officer , AIR 1966 SC 81(4) .

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On the other hand, Ms Taneja invited our attention to the annexure to the affidavit of Mr. S. N. Biniwale, and in particular, (i) Bank Guarantee, (ii) application for loan / overdraft facility against the securities deposit dated 25.01.1996, (iii) letter dated 25.01.1996 addressed by the petitioner to the Bank authorizing the Bank to adjust the loan / overdraft account from the proceeds of FDR No.14701-704. Relying upon these documents, she submitted that the Bank had sanctioned overdraft facility against the security namely FDR. The petitioner had given letter dated 25.01.1996 authorizing the Bank to adjust the loan / overdraft account from the proceeds of the FDR or any other FDR issued in renewal thereof at any time without any reference to

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him and until repayment, the Bank has a lien on the said FDR or a renewal thereof and the moneys due thereunder.

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She further submitted that the Bank repeatedly called upon the petitioner to pledge the said FDR so as to enable the Bank to make endorsement of Bank's lien. However, the petitioner for one reason or

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the other did not produce the FDRs for making endorsements thereon. She also submitted that the Bank Guarantee was to remain in force until 31.12.1996. Unless a demand to enforce a claim is made under the said Bank Guarantee by the Board to the Bank within six months from 31.12.1996 i.e. upto 30.06.1997, the rights of the Board under the said Guarantee shall be forfeited and the Bank would be relieved and discharged from all liability thereunder.

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She submitted that the Board had lodged a claim before the expiry of six months from 31.12.1996 i.e. upto 30.06.1997 and since the claim made by the Board was within limitation, the Bank decided to make payment of Rs.3,00,303/- as demanded in the Suit instituted by the Board together with interest @21% p.a. till the date of the repayment. She also invited our attention to the communication dated 20.01.2004 addressed by the Chief Engineer (S & P) of the Board to the Bank setting out therein that the Suit instituted by the Board was decreed on 17.04.2003 and the amount payable under the Bank Guarantee was shown to Rs.3,67,739.32/- as on date of that communication and the request was made to remit the said amount to the Board.

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She submitted that even otherwise the Bank has general lien over the FDR, and therefore, the action of the Bank in making endorsement on the FDR is perfectly in accordance with law. In support of this

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proposition, she relied upon the decision of the Apex Court in the case of Syndicate Bank Vs. Vijay Kumar , AIR 1992 SC 1066 .

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We have considered the rival submissions made by the learned Counsel appearing for the parties. We have also perused the material on record. During the course of hearing, we suggested Mr. Bhasin to consider instituting the Suit as the Petition raises sever disputed questions of fact. Relying upon the decision of the Apex Court in Dwarka Nath's case (supra), he submitted that no disputed questions of fact are involved in the present Petition and this Court under Article 226 of the Constitution of India has power to issue appropriate writs, orders or directions. In view thereof, we now proceed to consider the Petition on merits.

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It is the case of the petitioner that he had invested Rs.10,50,000/in FDR with the Bank on 14.05.1998. The maturity date of the said FDR was 13.08.2000 and the maturity value was Rs.14,31,045/-. The petitioner presented FDR on 07.08.2000 for encashment through Oriental Bank of Commerce, Kalyan. Instead of paying the amount under the said FDR, the Bank had made endorsement on the face and reverse side of the said FDR thereby refusing to make the payment. It is in these circumstances, the action of the Bank in withholding the payment under the said FDR is wholly unjustified. As against this, it is

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the case of the Bank that the petitioner availed the overdraft facility on the basis of the security of the FDRs. The petitioner was also called upon to produce that FDR so as to enable the Bank to make endorsement. However, the petitioner did not produce the FDR for making endorsement of the Bank's lien.

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It is not in dispute that the petitioner applied for availing overdraft facility. He made application on 25.01.1996. In that application, the particulars of security mentioned, were to the following effect:

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	Particulars of	Number of Scripts	Face value	Book
	Security	or Certificates		value
(1)	SMRO 14701-704	4	(50,000/-x4)	Due on
			2,00,000/-	9/2/99

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The petitioner also addressed a letter dated 25.01.1996 to the Bank authorizing Bank to adjust the loan / overdraft account from the proceeds of the FDR or any other FDR issued in renewal thereof at any time without any reference to him and until the repayment, the Bank has lien on the said FDR on the renewal thereof and the moneys due thereunder. The petitioner had also signed application on 25.01.1996 for overdraft limit of Rs.1,75,000/- and the security documents were to the following effect:

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i) SMRO Deposit Receipt No.14701-704 duly discharged by the Deposit/s, Recurring Deposit Pass Book with blank withdrawal slip obtained.

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ii) Letter/s of lien.

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iii) Demand Promissory Note. iv) Continuing Security Letter (in case of Overdraft) v) Bank Lien noted on the Receipt/s, Ledge Account/Register.

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Thus, the petitioner availed the overdraft facility against the FDRs including the FDR in question. In the case of Syndicate Bank (supra), the Apex Court has held that the bank's lien is also applicable to negotiable instruments including FDRs, which are remitted to the bank by the customer for the purpose of collection. There is no gainsaying that such a lien extends to FDRs also. By letter dated 25.01.1996, the petitioner had authorized the Bank to adjust overdraft account from the proceeds of the FDR and until repayment, the Bank has lien on the FDR or the renewal thereunder and the moneys due thereunder. In the present case, the petitioner had availed overdraft facility against fixed deposits maintained by the petitioner with the Bank. The petitioner had not kept the said FDRs with the Bank. It is the case of the Bank that in view thereof, the Bank's lien could not be stamped or recorded on the FDRs. The petitioner was requested on number of occasions to pledge the said FDRs. However, for one reason or the other, the petitioner refused to do so. When the Bank received original FDR from Oriental Bank of Commerce, in order to avoid encashment of the said FDR and / or any misuse of the same, the Bank marked its lien for the amount due under the Bank Guarantee as well as the overdraft facility. These assertions were made by Mr. Biliwale in the affidavit filed opposing the admission

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of the Petition. However, the petitioner has not controverted these assertions by filing Rejoinder.

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In view thereof, we are satisfied that the Bank was justified in making endorsements on the face and reverse side of the FDR in question. The submission of Mr. Bhasin based on the communication dated 12.02.1997 that the Bank has cancelled its lien is totally misconceived. Perusal of the said communication shows that the Bank cancelled its lien on 6^th Hydraulically Operated Aerial Lift Machine of the said Company and called upon the Chief Engineer (S & P) to send his representative to receive the vehicles at the earliest. In other words, the Bank did not cancel its lien on the FDR.

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Apart from this, in the first place, the petitioner has not disclosed all these facts in the Petition. Secondly, the petitioner has also not disputed availing of the overdraft facility from the Bank. Thirdly, the petitioner has also not disputed his signatures on the loan documents produced by the Bank. Fourthly, it is also not disputed that as on 30.11.2000, the outstanding balance in respect of OD Account No.2048 was Rs.89,424.04/-. It is further evident from the additional affidavit filed on behalf of the Bank that pursuant to the order dated 09.04.2001 passed by the Division Bench of this Court, the Bank had paid Rs.9,77,670.96/- on 02.05.2001 to the petitioner after deducting TDS of

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Rs.53,214/- on the interest earned and appropriating a sum of Rs.90,131.04/- towards overdraft account. Thus, the petitioner has recovered the entire amount due under the FDR. We, therefore, of the opinion that the petitioner is not entitled to claim any amount under the FDR.

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Insofar as payment of Bank Guarantee by the Bank is concerned, from the additional affidavit made on behalf of the Bank, it is evident that pursuant to the order dated 09.04.2001, the Bank had deposited amount of Rs.4,07,750/- in this Court. The question is whether the petitioner is entitled to the said amount or whether the Bank is entitled to the said amount.

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As noted earlier, it is the case of the Bank that the Bank Guarantee of Rs.2,19,600/- was given by the Bank to the Board at the request of the petitioner, who was the Managing Director of the said Company. The Bank Guarantee was to remain in force until 31.12.1996. It also provided that unless a demand to enforce a claim is made under the Bank Guarantee by the Board to the Bank within six months from 31.12.1996 i.e. upto 30.06.1997, the rights of the Board under the said Guarantee would be forfeited and the Bank shall be relieved and discharged from all liabilities thereunder. The Board instituted the Suit against the Bank for recovery of Rs.3,00,303/- and the Suit was decreed

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on 17.04.2003 and the Bank was required to pay amount of Rs.3,63,739.32/- to the Board. In view thereof, we do not find any substance in the submission made by Mr. Bhasin relying upon the communication dated 03.02.1997 that since the Bank Guarantee was terminated by the Bank, it was not justified in making the payment to the Board pursuant to the decree. In this regard, it is material to note that the said communication was addressed by the Bank to the Chief Engineer (S & P) of the Board on 03.02.1997. The demand to enforce a claim under the Bank Guarantee by the Board to the Bank could be made upto 30.06.1997. Board had lodged claim before the expiry of six months from 31.12.1996 i.e. upto 30.06.1997, and as such, claim was within limitation and the Bank decided to accept the claim of the Board and made payment accordingly. Pursuant to the order passed by this Court on 09.04.2001, the Bank had deposited amount of Rs.4,07,750/- in this Court. Under these circumstances, we are of the opinion that the bank is entitled to the refund of the said amount together with accrued interest. The Bank had further sought direction against the petitioner directing him to surrender original Fixed Deposit Receipt as the Bank is facing the audit objection. In the facts and circumstances of the case, we are of the opinion that the petitioner should be directed to handover original FDR to the Bank.

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In the result, we are of the opinion that the petitioner has not made

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out any case for invocation of the extra-ordinary jurisdiction under Article 226 of the Constitution of India. On the other hand, the petitioner has suppressed the material facts from this Court. We have, therefore, no option but to dismiss the Petition.

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The Petition is dismissed accordingly. Rule is discharged. However, in the circumstances of the case, there shall be no order as to costs. The Petitioner is directed to return the original FDR to the Bank.

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(R. G. KETKAR, J.) (S. A. BOBDE, J.)

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Minal Parab

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Raghuvansh D.Bhasin v. National Co-Op.Bank Ltd.

Case brief

What is this about?

What did the court decide?

Raghuvansh D.Bhasin v. National Co-Op.Bank Ltd.

Case brief

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What did the court decide?

What the court decided

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