BANK OF BARODA Vs. RAJKAMAL WINES
LAWS(DR)-2003-1-19
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on January 16,2003

BANK OF BARODA Appellant
VERSUS
Rajkamal Wines and Ors. Respondents




JUDGEMENT

A. Subbulakshmy, J. - (1.)THE Bank filed petition for attachment of FCNR deposit No. 036555 standing in the names of Smt. Maya Patchava the 4th respondent and another person, lying with the petitioner Bank to the extent to half share. The Presiding Officer, DRT, Hyderabad, passed order of attachment on 26.11.2001 and the order reads as follows:
"In view of the quantum of the claim, the stage of the matter and the facts and the circumstances of the case, it is just and proper to attach the amount to the extent of half share in FCNR deposit No. 036555 lying in the name of the 4th respondent and another with the petitioner Bank until further orders."

(2.)THIS matter was heard on merit and the Presiding Officer, DRT, passed order on 12.8.2002 and the petition was dismissed. It is also observed in that order that the 4th respondent is at liberty to either continue the FCNR deposit or to withdraw the same. Aggrieved against that order the Bank has preferred this appeal.
Counsel for the respondents submitted that the FCNR deposit No. 036555 stands in the name of R -4 and her husband has been subsequently added as party to the Original Application (OA) and he was not a party in the O A and he is not concerned with the borrower. The FCNR No. 036555 stands in the name of both the 4th respondent and her husband the 5th respondent. The husband's share of 50% i.e. 5th respondent's share has been refunded and what is lying with the Bank is only 50% of the 4th respondent's share in FCNR deposit No. 036555. Counsel for the appellant Bank submits that what is sought for is only the attachment of 50% of the deposit i.e. R4's share alone and R5's share is not at all sought for attachment and the appellant Bank is entitled to seek the relief of attachment of 50% of the FCNR deposit No. 036555. Counsel for the respondents submits that the Fixed Deposit standing in the names of two parties cannot be attached and if it stands in the name of the debtor alone it can be attached and the further submitted that no notice for security was also given and without ordering for security, straightaway attachment was effected initially and so the Presiding Officer, DRT, rightly dismissed the petition and the order passed by the Presiding Officer, DRT, does not warrant any interference. He further stressed the point that attachment of debt jointly due to the judgment debtor with another is illegal. On this aspect, he relies upon the decision of the Andhra Pradesh High Court in AIR 1971 Andhra Pradesh Page 165 (Nadikatla Anjanna and Ors. v. Bandi Ramakrishna and Ors.) wherein it has been held that "Attachment of a debt jointly due to a judgment debtor with another is illegal and attachment can be made of a debt due to a judgment debtor alone".

(3.)COUNSEL for the respondents also relies upon another decision in II (1995) BC 37=AIR 1993 Bombay 87 (The State Bank of India v. Javed Akhtar Hussain and Ors.) wherein it has been held that "The Bank being a debtor in respect of the money in fixed deposit, had no right to pass into service the doctrine of 'Banker's lien' and the money in fixed deposit". It has been observed in the above said decision that "The action of keeping lien was a sort of suo motu act exercised by the Bank/applicant in the present case, even without giving notice to the non -applicant No. 2 and his wife. Even though the applicant had filed Special Darkhast No. 200 of 91, it could have moved the Court for passing orders in respect of the amounts invested in TDR and RD accounts. However, the action of the applicant in keeping lien over both these accounts was unilateral and high -handed and even it is not befitting the authorities of the State Bank of India to do so. If such a thing would continue, perhaps in future the customer would lose his confidence in the Bank and I am afraid that the days are not far off."


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