- (1.) The matter came up for hearing on 15.3.2004 when nobody appeared on behalf of the respondent bank. Directions were issued to the writ petitioner to intimate the learned Advocate-on-Record for the respondent bank that the matter shall be taken up on 17.3.2004. An affidavit of service had been filed by the learned Advocate-on-Record for the petitioner wherefrom it appears that the learned Advocate for the respondent bank refused to accept the letter dated 15.3.2004 as he was no longer appearing for the respondent bank. Thereafter, on 15.3.2004 the respondent bank was intimated that the matter shall be heard on 17.3.2004 and if nobody appeared on behalf of the bank, the matter shall be taken up ex parte. In spite of such service of notice, nobody appeared on behalf of the bank. The affidavit-in-opposition affirmed by the bank authorities was not available from the records.
(2.) Appearing for the petitioners Mr. Moloy Ghosh submitted that the petitioner is seeking return of the cash certificates mentioned in prayer K(iv) and the money of the three cash certificates mentioned in prayers L(i),(ii), (iii) which according to the petitioner had been encahsed prematurely. It was submitted that the petitioner No. 1 had paid all the dues along with interest which was communicated to the bank by letter dated 30.4.1999 being Annexure 'L' to the writ petition. In the said letter request was made to arrange for return of the deed documents and papers lying with the bank. Similar request was made on 13.9.1999 along with the details of the documents and certificates. Such details of the cash certificates figure in serial Nos. 4, 5, 6 and 7 of the said letter. Directions were issued on 4.2.2000 for return of all the deeds mentioned in prayer 'K' of the application and to furnish accounts. Such accounts were furnished. According to Mr. Ghosh it appears from the statement of accounts that on 31.8.85 the said cash certificates amounting to Rs. 70,000/-, Rs. 45,000/- and Rs. 15,000/- had been prematurely encashed. It was submitted that no notice of such encashment was ever served on the petitioner though the petitioner was entitled to such notice. Reference was made to the provisions of the Indian Contract Act, 1872. Submission was made that the respondent No. 1 did not have any right or authority for premature encashment for any of the said cash certificates as no document had been disclosed by the respondent No. 1 in support of its alleged right to make premature encashment of any of the said 4 cash certificates in spite of there being a recording "lien withdrawn on 8.9.78" in the certificate register in respect of the said 4 certificates. It was submitted that since lien was withdrawn the bank had no power to withhold the said certificate. Prayer was made that since the dues had already cleared along with interest, the bank should be directed to return the said cash certificate as appearing in prayer K(iv) and also to return the money of the encashed certificates minus any amount which had been paid to the petitioner along with 24% interest.
(3.) I find that since it appears that the petitioner had paid the dues along with interest, the bank should return the cash certificate as mentioned in prayer K(iv). It was also improper on the part of the respondent No. 1 to encash the said certificates mentioned in prayers L(i), (ii) and (iii) without any intimation to the petitioner No. 1 in the facts and circumstances of the case.;