Debangsu Basak, J. - (1.) The petitioners seek return of fixed deposits lying with the bank as according to the petitioners, the credit facilities for which such fixed deposits were furnished as securities stands satisfied.
(2.) Learned senior advocate appearing for the petitioners draws attention to the Court to a compromise proposal dated July 10, 2006 written on behalf of the fourth petitioner. He submits that, such compromise proposal was considered by the bank and a compromise was arrived at by the writing dated September 27, 2006 issued by the bank. Under such writing, the requirement of the petitioners to continue to keep in deposit the fixed deposits concerned were not specified. Moreover, the bank by a letter dated July 29, 2008 had issued a no due certificate. According to the learned senior advocate for the petitioners, such no due certificate is unequivocal in its term and states that, no amount is due and payable by the petitioners to the bank. Consequently, there is no justification on the part of the bank to retain any of the 9 fixed deposits concerned. He submits that, the right of the bank to exercise lien on any property is governed by Section 171 of the Contract Act, 1872. Such provisions were considered by the Court in (2010) 1 Calcutta High Court Notes 198 (Devi Ispat Limited and Anr. v. Central Bank of India and Ors.) . In the facts of that case, the Court had found that, the bank did not have any lien as claimed over the securities. Such decision was assailed in appeal. The appeal was dismissed. The judgment and order of the Appeal Court is reported in (2010) 2 CHN (CAL) 231 (Central Bank of India and Ors. v. Devi Ispat Ltd. and Anr.) . A Special Leave Petition was filed to the Hon'ble Supreme Court. By the judgment and order reported at (2010) 11 Supreme Court Cases 186 (Zonal Manager, Central Bank of India v. Devi Ispat Limited and Ors.) such appeal was dismissed. He submits the Court had considered Devi Ispat Limited (supra) in 2015 SCC OnLine Cal 5003 (Md. Nayabuddin v. Union of India and Ors.) . He submits that, in the facts of that case, the Court had found that, the bank was entitled to exercise lien and therefore had allowed the bank to do so. The factual situation obtaining in the present case does not permit the Court to find that, the right of the bank to exercise lien under Section 171 of the Contract Act, 1872 continues. Therefore the bank should be directed to return the 9 several fixed deposits concerned to the petitioner forthwith.
(3.) Learned advocate for the bank opposes the writ petition. He submits that, the petitioners had enjoyed credit facilities from the bank. The credit facilities were in the nature of non-fund based as well as fund based. The petitioners had put forward a proposal by its writing dated July 10, 2006 to enter into a compromise with regard to the credit facilities both on account of fund based and non-fund based. So far as non-fund based credit facilities are concerned, the petitioners had to present in the writing dated July 10, 2006 to secure the claim that may arise out of the exposure of the bank in non-fund based account by way of keeping fixed deposit as collateral security. The compromise proposal was considered by the bank at the appropriate level and accepted. The compromise entered into between the petitioners and the bank was such that, the non-fund based credit facilities enjoyed by the petitioners would stand secured by the deposit of fixed deposits by the petitioners till such time the claim in respect of such non-fund based account was sorted out by the appropriate forum. So far as fund based claims are concerned, the same was taken care of through the compromise settlement. He refers to the letter accepting the compromise proposal contained in the writing dated September 27, 2006 and submits that, such letter of acceptance should be read in the context of other for settlement. He submits that, no due certificate issued by letter dated July 29, 2008 should also be considered in such context. He contends that, the petitioners are guilty of suppression of material facts. The petitioners did not state that, there are two suits pending, filed at the behest of the petitioners, relating to the bank guarantees involved in the non-fund based credit facilities. He draws the attention of the Court to the averments made in the affidavit-in-opposition as also the affidavit in reply in this regard. He submits that, as on date, the suits are pending after being restored at the behest of the petitioners. He submits that, there were subsisting interim orders in the suit. Therefore, it cannot be said that, the disputes with regard to the non-fund based credit facilities stands sorted out, for the bank to release 9 several fixed deposits or any one of them in favour of the petitioner. He submits that, the factual situation in Devi Ispat Limtied (supra) does not obtain in the present proceedings. Therefore the ratio of such judgment is not applicable to the present proceedings.;