TMI Blog1992 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the applicant/decree-holder. 2. The applicant filed Special Civil Suit No. 312 of 86 for recovery of ₹ 64,305.48 from the principal debtor/defendant No. 1 (present respondent No. 1-judgment-debtor) and the non-applicant No. 2 who stood as a surety to the non-applicant No. I. Accordingly, the documents were also executed by the respondents in favour of the applicant. Both the non-applicants remained absent and hence the suit came to be decreed and subsequently, the applicant/decree-holder filed Special Darkhast No. 200 of 91 on 16-8-91 for recovery of the decretal amount, costs etc. 3. It is seen from the record that after the decree is passed in Special C.S. No. 312/86, the non-applicant No. 2 deposited a sum of ₹ 32, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-parte decree is passed against both the non-applicants jointly and severally and hence the applicant has a choice to proceed with either party for recovery of the said amount. The applicant prayed for dismissing the application (exhibit 6). 5. It is submitted by Shri A. S. Pophaly that when the decree in the special civil suit is passed jointly and severally against the non-applicants, the applicant Bank is at liberty to execute the decree against any one of them. He further submitted that the liability of the surety is co-extensive with that of the principal debtor and hence it is not open for the non-applicant to contend that the applicant should proceed at the first instance against the principal debtor and exhaust all the remedies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t confidence in the banking business. 7. Before considering the arguments advanced by the learned counsel for the parties, it is necessary to note that after passing the ex-parte decree in Special Civil Suit No. 642 of 88 on 28-4-1988 non-applicant No. 1 filed M.J.C.No. 172 of 91 on 18-6-1991 for setting aside the ex-parte decree and it is still pending. Special Darkhast No. 200 of 91 is filed on 16-8-1991 for recovery of ₹ 1,27,780/-. The non-applicant No. 2 deposited the amount of ₹ 32,793/- vide T.D.R. No. 8/6671 on 7-9-1991 and its date of maturity was 29-11-1991. The date of maturity of R.D. Account No.SB/137/RD for ₹ 37,0788/- (or 37,788 --Ed.) was 19-11-1991. Both these accounts are on joint names of the non-appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s security for the issuance of the bank guarantee. In such a case, the words on the back of the FDRs Lien to BG 11/80 did not make any difference. However, the banker's lien would not by itself be a bar for such attachment of FDRs in execution proceedings against the customer. What is attached is the money in deposit account. The banker as a garnishee, when an attachment notice is served has to go before the Court and obtain suitable directions for safeguarding its interest. This becomes clear from the perusal of O. 21, R. 46(a) of the Civil P.C. The Court in such situation has to take into account the banker's lien over the securities or deposits regarding which garnishee notice is issued. But as the Bank had the liberty to adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent one. 9. It is submitted by Shri N. S. Bhattad, the learned counsel for the non-applicants that even it is contended by the applicant that when TDK or R.D. accents are joint in the name of two persons and there is a presumption that the party whose name appears first in such accounts, is the owner of the amount, such a presumption is rebuttable. Moreover, when the FDR is on joint names, it is none of the business of the bank to make enquiries as to who is the real owner of the amount invested in term deposit. Moreover, even this presumption is rebuttable and evidence can be adduced in respect of the same. It is further submitted that unless there is express contract to the contrary, bank cannot keep lien on term deposits of its cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidenced by a fixed deposit would not constitute bailment within the ' meaning of S. 171 of the Contract Act, even assuming that, money is a species of goods over which lien may be exercised as observed by the Punjab High Court while construing S. 171 . 10. Shri N. S. Bhattad further placed a reliance on a ruling in Firm Jaikishen Dass v. Central Bank of India reported in. It is observed in this ruling that the banker's lien can be enforced if mutual demand exists between banker and customer. However, in the present case, there is no such mutual understanding between the applicant and the non-applicant No. 2. 11. Shri N. S. Bhattad further relied upon a ruling in the case of Punjab National Bank Ltd. v. Arura Mal Drugs Das, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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