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Bankers Right to lien and set off

Bankers Right to lien and set off

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Antara Dasgupta, Fifth Year student of Law Symbiosis Societyís Law College, Pune

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What is lien?
A lien is the right of a creditor in possession of goods, securities or any other assets belonging to the debtor to retain them until the debt is repaid, provided that there is no contract express or implied, to the contrary. It is a right to retain possession of specific goods or securities or other movables of which the ownership vests in some other person and the possession can be retained till the owner discharges the debt or obligation to the possessor.

It is a legal claim by one person on the property of another as security for payment of a debt.

A legal claim or attachment against property as security (right) for payment of an obligation.

In Halsburyís Laws of England ,it is stated: "Lien is ,in its primary sense ,a right in one man to retain that which is in his possession belonging to another until certain demands of the person in possession are satisfied. In its primary sense, it is given by law and not by contract."

In Chalmers on Bills of Exchange ,the meaning of the Bankerís Lien is stated :
"A bankersí lien on negotiable securities has been judicially defined as Ďan implied pledgeí. A banker has, in the absence of agreement to the contrary ,a lien on all bills received from a customer in the ordinary course of banking business in respect of any balance that may be due from such customer." it should be noted that the lien extends only to negotiable instruments which are remitted to the banker from the customer for the purpose of collection .When collection has been made the process may be used by the banker in reduction of the customerís debit balance unless otherwise earmarked.

We can also refer to Pegetís Laws of Banking ,8th Edn. at page 498 where speaking about the Bankerís lien the learned author has stated that apart from any specific security ,the banker can look to his general lien as a protection against loss on loan or overdraft or other credit facility. The general lien of bankers is part of law merchant and judicially recognised as such.

In Chitty on Contracts, it is explained. "The lien is applicable to negotiable instruments which are remitted to the banker from the customer for collection. When the collection has been made, the proceeds may be used by the banker in reduction of the customerís debit balance ,unless otherwise earmarked."

In Byles on Bills of Exchange 26th Edn, by Frank Ryder and Antonio Bueno Sweet & Maxwell

27.- (3) Where the holder of a bill has a lien on it arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lien. A banker has lien on all securities and valuables of his customer, which come into his hands in his capacity as banker in the ordinary course of business. Currie v. Misa (1867) App. Cas.554(H.L.)

Where therefore, the customer is indebted to the banker, the lien arises immediately a cheque is paid in for collection -presumably by implication of law. On the other hand if the banker agrees either impliedly, as the result of a course of action, or expressly, that a customer may draw against uncleared effects, the banker has a lien on those effects Ėarising from contract.

So far as the legal requirements are concerned there is no need of any special agreement, written or oral to create the right of lien, but it arises only by operation of law for, under the Indian Law, such an agreement is implied by the terms of Section 171 of the Indian Contract Act, 1872 so long as the same is not expressly excluded .In order that the lien should arise the following requirements are to be fulfilled:
(1) the property must come into the hands of the banker in his capacity as a banker in the ordinary course of business ;
(2) there should be no entrustment for a special purpose inconsistent with the lien
(3) the possession of the property must be lawfully obtained in his capacity as a banker; and
(4)There should be no agreement inconsistent with the lien.

Lien - an implied pledge
Bankerís lien is a general lien recognized by law.
The general lien on the banker is regarded as something more than an ordinary lien; it is an implied pledge. This right coupled with rights u/s 43 of the Negotiable Instruments Act, 1881 permits bills, notes and cheques, of the banker, being regarded as a holder for value to the extent of the sum in respect of which the lien exists can realize them when due; but in the case of the other negotiable instruments e.g. bearer bonds, coupons, and share warrants to bearer, coming into the bankerís hands and thus becoming liable to the lien, the character of a pledge enables the banker to sell them on default, if a time is fixed for the payment of the advance ,or, where no time is fixed ,after request for repayment and reasonable notice of intention to sell and apply the proceeds in liquidation of the amount due to him .The right of sale extends to all properties and securities belonging to a customer in the hands of a banker ,except title deeds of immovable property which obviously cannot be sold.

The law gives inter alia, a general lien to the bankers - Lloyds Bank v. Administrator General of Burma ,AIR 1934 Rangoon 66.
To claim a lien, the banker must be functioning qua banker under Section 6 of the Banking Regulation Act-State Bank of Travencore v. Bhargavan ,1969 Kerela .572.

It is now well settled that the Banker lien confers upon a banker the right to retain the security, in respect of general balance account. The term general balance refers to all sums presently due and payable by the customer, whether on loan or overdraft or other credit facility.(Re European Bank (1872) 8 Ch App 41) In other words ,the lien extends to all forms of securities deposited ,which are not specifically entrusted or to be appropriated.

Case Laws
In the matter of Firm Jaikishen Dass Jinda Ram v. Central Bank of India Ltd. AIR 1960 Punj.1,two partnership firms with the same set off partners had two separate accounts with the Bank. The Court held that the bank was entitled to appropriate the monies belonging to a firm for payment of an overdraft of another firm. Because although two separate firms are involved they are not two separate legal entities and cannot be Ďdistinguished from the members who compose them. Mutual demands existed between the bank on the one hand and the persons constituting firm on the other. Nor it could be said that these demands did not exist between the parties in the same right.

The court can interfere in the exercise of the Bankís Lien. In the matter of Purewal & Associates and another v/s Punjab National Bank and others (AIR 1993 SC 954) where the debtor failed to pay dues of the bank which resulted in denial of bankís services to him, the Supreme Court of India ordered that the bank shall allow the operation of one current account which will be free from the incidence of the Bankerís lien claimed by the bank so as to enable the debtor to carry on its day to day business transactions etc. and the liberty was given to bank to institute other proceedings for the recovery of its dues.

State Bank of India v/s Javed Akhtar Hussain and others it was held by the Court that the action of the bank in keeping lien over the TDR and RD accounts was unilateral and high handed and even it is not befitting the authorities of the State Bank of India .The court relied on the ruling Union Bank of India v/s K.V.Venugopalan where it was held by the court that the fixed deposit money lodged with the bank is strictly a loan to the bank. The banker in connection with the FD is a debtor .The depositor would accordingly cease to be the owner of the money in fixed deposit .The said money becomes money of the bank, enabling the bank to do as it likes, that however, with the obligation to repay the debt on maturity .In the same ruling it was further held that the bank being a debtor in respect of the money in FD, had no right to pass into service the doctrine of bankerís lien and the money in Fixed Deposit.

In the case State Bank of India Kanpur v/s Deepak Malviya (AIR 1996 All 165) it has been held that section 174 of the Act contemplates that in the absence of a contract to the contrary the Pawnee is under an obligation to return the goods pledged for any debt or compromise for which the goods were pledged. This is a general provision providing for the relationship of a pawnee and a pawner in respect of pledged goods. Section 171 of the Act, providing for bankerís lien, is a specific provision, which has an overriding effect on this general provision, as such, the bankerís lien is also extended to the pledged goods.

Principles Governing Bankerís Lien
1) It has been held in Chettinad Mercantile Bank Ltd. v/s PL.A.Pichammai Achi and Anr.AIR 1945 Mad. 445 that bankerís lien is the right of retaining things delivered into his possession as a banker if and so long as the customer to whom they belonged or who had the power of disposing of them when so delivered is indebted to the banker on the balance of the account between them provided the circumstances in which the banker obtained possession ,do not imply that he has agreed that this right shall be excluded .Bankerís lien can properly be said to arise only in respect of any of the securities held by the bank ,the bank has a lien over these securities and it could hold them against the amount due by the customer.

2) It is necessary that the ownership of a thing, which is in possession of the bank, must be with the customer and held by the bank as a security otherwise the bank can exercise no right of lien. PNB Ltd.v. Arura Mal Durga Dass and another (AIR 1960 Pun.632.)

3) A bank may not be able to exercise any right of lien over the money deposited by the customer inasmuch as by itself becomes the owner of the money deposited ,but still it has the right to adjust such amounts against any debts due to from the customer. The purpose of lien in such cases is attained by the application of the principle of set off.(AIR 1945 Mad.447)

4) The bankerís lien is subject to any contract to the contrary and one alleging it must prove the existence of such a contract.

5) An insight into the matter of City Union Bank Ltd.v.Thangarajan (2003)46 SCL 237 (Mad) it is pertinent to state certain principles with respect to Bankerís lien that was observed.
a) The bank gets a general lien in respect of all securities of the customer including negotiable instruments and FDR s, but only to the extent to which the customer is liable. If the bank fails to return the balance, and the customer suffers a loss thereby, the bank will be liable to pay damages to the customer. In the present matter the Court has based its decision on the principle that in order to invoke a lien by the bank, there should exist mutuality between the bank and the customer i.e. when they mutually exist between the same parties and between them in the same capacity. Retaining the customerís properties beyond his liability is unauthorized and would attract liability to the bank for damages.

When Is Lien Not Permissible :-
However Lien is not permissible in the following cases, viz.
(i) Where there is an express contract like by way of counter-guarantee ,providing reimbursement - Krishna Kishore Kar v. United Commercial Bank, AIR 1982 Cal .62.
(ii) Where there is no mutual demand existing between the banker and the customer-firm-Jaikishan Dass Jinda Ram v. Central Bank of India,AIR 1960 Punj.1.
(iii) Where the valuables are received for safe -custody- Cuthbert v. Roberts ,(1909)2 Ch.226 (CA) and Bank of Africa and Cohen,(1902)2 Ch.129. (Pagetís law of Banking (11th Edition)
(iv) Where the entrustment of goods (documents of title) is for a specific purpose stated to banker- Greenhalgh v. Union Bank of Manchester,(1924) 2 K.B.153.
(v) When the deposit with the banker is for a specific purpose, if the banker has implied or express notice of such purpose.
(vi) Where the valuables or documents of title are left in the bankers hands ,inadvertently.
(vii) Where the banker has only a contingent debt .A contingent debt is that "no amount would be due on the date when he wants to exercise lien" Tannans banking Law .
(viii) Where the account is in respect of a trust.

Bankerís Lien is not available against Term Deposit Receipt in Joint Names when the debt is due only from one of the depositors

In the matter of State Bank of India v. Javed Akhtar Hussain and others ,AIR 1993 Bom.87 ,the appellant bank obtained a decree from against applicant and non-applicant who stood as a surety to the non-applicant No.1 .After a decree was passed ,the non-applicant No.2 deposited a sum of Rs.32,793/-in TDR No.856671 with the appellants in joint names of himself and his wife in another branch of the same bank .They were also having RD account. The applicant bank kept lien on both these accounts without exhausting, any remedy against non-applicant No.1.The Court held that the action of keeping lien was a sort of suo muto act exercised by the Bank even without giving notice to the non-applicant No.2 and his wife. The applicant could have moved the court for passing orders in respect of the amounts invested in TDR and RD accounts. However the action of the appellant in keeping lien over both these accounts was unilateral and high-handed.

Syndicate Bank v.Vijay Kumar and Others , AIR 1992 SC 1066
The Supreme Court upheld the right of bankersí lien and right of set-off ,holding that these are of mercantile custom and are judiciously recognised.

Facts
In the present matter the bank at the request of the judgment debtor had agreed to furnish the bank guarantee in favour of the High Court of Delhi on the condition that that judgment Debtor should deposit the entire sum of Rs.90,000 in favour of the Registrar of the High Court of Delhi .This was done and the partner of the judgement debtor firm deposited two FDRS of Rs. 65,000 and 25,000 respectively after duly discharging them by signing on the reverse of each FDR.

The two FDR s were duly discharged by signing on the reverse of each of them by the judgment debtor and were handed over along with two covering letters on the bankís usual printed forms on 17.9.1980 at the time of obtaining the guarantee. The relevant clause of the letter read as under:

"The Bank is at liberty to adjust from the proceeds covered the aforesaid Deposit Receipt /Certificate or from proceeds of other receipts /certificates issued in renewal thereof at any time without any reference to us ,to the said loan/OD account. We agree that the above deposit and renewals shall remain with the said bank so long as any account is due to the bank from us for the said M/s Jullundur Body Builders singly or jointly with others."

Held That
The bank has general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is valuable right of the banker judicially recognised and in the absence of an agreement to the contrary, a Banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of a reduction of customerís debit balance. In case the bank gave a guarantee on the basis of the two FDRs it cannot be said that a banker had only a limited particular lien and not a general lien on the two FDRs.It was hence held that what is attached is the money in deposit amount. 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.

When does a general lien take effect?
A general lien arises out of a series of transactions in the general course of business rather than a single specific transaction such as the repair of a piece of jewellery or a computer. Attorneys, bankers, and Factors usually have general liens to ensure that his client will pay him for services already performed, an attorney may retain possession of the papers and personal property of his client that fall into his hands in his professional capacity. He also has a charging lien on any judgment he has obtained for his client for the value of his services. A banker may retain stocks, bonds, or other papers that come into his hands from his customer for any general balance owed by the customer. A factor or commission merchant may hold onto all goods entrusted to him for sale by the owner of the goods for any balance due. The merchant may sell the goods to satisfy his lien, but he must account to the owner for any excess realized from the sale. General liens occur less frequently than specific liens.

What is set-off?
The right of set off is also known as the right of combination of accounts .A bank has a right to set off a debt owing to a customer against a debt due from him.

"A legal set-off is ďwhere there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator one debt may be set against the other "(S.13 Insolvent Debtors Relied Act 1728)

From a commercial standpoint, a right of set-off is a form of security (right) for a lender. It is an attractive security because its realization does not involve the sale of an asset to a third party.

A set-off must be in the form of a cross claim for a liquidated amount and it can be pleaded only in respect of a liquidated claim. Both the claim and the set-off must be mutual debts, due from and to the same parties, under the same right A claim by a person in a representative capacity cannot be set off against a personal claim. Even a claim against the estate of a deceased customer cannot be set off against a debt, which was due to the customer from his banker, during the formerís lifetime, whether the accounts are with one or more offices of the banker, it does not materially affect the position in any way.

A bankerís right of set off cannot be exercised after the money in his hands has been validly assigned or in any case after he has been notified of the fact of an assignment. (Official Liquidator ,Hanuman Bank Ltd. v. K.P.T. Nadar and Others 26 Comp.Cas .81)

Judgments indicating certain essentials to the exercising of the right of set off.
Punjab National Bank v. Arunamal Durgadas ,AIR 1960 Punj.632 State Bank of India v. Javed Akhtar Hussain ,AIR 1993 Bombay ,87 where it has been established that : (1) Mutuality is essential to the validity of a right of exercising set-off
(2) It must be between the same periods.

Relationship Between Lien And Set-Off
The bankerís right of lien can attach to the money so long as it is earmarked. Where it has ceased to be such a separate earmarked sum, the bank has not the right of set off. ( Radha Raman Choudhary v. Chota Nagpur Banking Association Ltd.(1945) 15 Comp.Cas.4(Pat).

There is a distinction between a bankerís lien and the bankís right to set-off. A lien is confined to securities and property in bankís custody. Set-off is in relation to money and may arise from a contract or from mercantile usage or by operation of law.

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