The main legal point established is that the nature of the lien on the FDRs is determined by whether it is a specific or general lien, as per Section 171 of the Indian Contract Act, and that a party is liable to pay the same rate of interest it had claimed and obtained against the opposing party.

VALMIKI J. MEHTA, J.

Caveat No. 868/2017

Counsel for the caveator enters appearance.

Caveat stands discharged.

C.M. Appl. No. 36280/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

C.M. Appl. No. 36281/2017 (for delay)

This is an application seeking condonation of delay of 12 days in filing the appeal.

For the reasons stated in the application the same is allowed and the delay of 12 days in filing the appeal is condoned.

C.M. stands disposed of.

RSA No. 240/2017 and C.M. Appl. No. 36279/2017 (for stay)

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff/Vijaya Bank impugning the concurrent judgments of the courts below; of the trial court dated 21.3.2006 and the first appellate court dated 15.5.2017; by which the courts below have allowed the application under Section 144 CPC filed by the respondents/defendants. I may note that a decision on an application under Section 144 CPC is a decree as per the definition of decree contained in Section 2(2) CPC and hence a regular first appeal under Section 96 CPC was filed before the first appellate court (which has been decided by the impugned judgment dated 15.5.2017) and also this RSA under Section 100 CPC.

2. The admitted facts are that the appellant/plaintiff/Bank obtained in its favour an ex-parte money decree of Rs.1,18,059/- with costs and interest at the rate of 24% per annum against the respondents/defendants on 10.5.1994 from the court of the concerned Additional District Judge at Delhi. After having obtained the judgment and decree dated 10.5.1994 appellant/plaintiff initiated execution proceedings. In terms of this execution petition for claiming the decretal amount of Rs.1,18,059/- the appellant/plaintiff adjusted two Fixed Deposit Receipts (FDRs) bearing nos. 190 and 191 of 1991 for amounts of Rs.49,158/- and Rs.49,148/- out of the decretal amount claimed of Rs.1,18,059. After further claiming certain amounts claimed towards bank guarantee commission, in the execution petition of the judgment and decree dated 10.5.1994 the appellant/plaintiff bank claimed a balance amount of Rs. 20,543/- along with interest at 24% per annum. Effectively, therefore it was only after adjusting the amount of the two FDRs that the balance decretal amount was claimed by means of Execution Petition No. 38/1996 which was filed on 31.5.1996.

3. The aforesaid two FDR nos. 190 and 191 of 1991 were admittedly given by the respondents/defendants as margin money for the appellant/plaintiff bank to issue bank guarantees in favour of the Sales Tax Department. The FDRs therefore were available with the appellant/plaintiff bank not as a general lien but as a specific lien i.e FDRs were specifically charged for amounts which the appellant/plaintiff bank may have paid to the Sales Tax Department in case the Sales Tax Department would have sought invocation and encashment of the bank guarantees issued by the appellant/plaintiff bank in favour of the Sales Tax Department.

4. After the ex-parte judgment and decree dated 10.5.1994 was set aside on an application under Order IX Rule 13 CPC in terms of the order dated 4.7.2003, the subject application under Section 144 CPC came to be filed by the respondents/defendants seeking payments of the amount of the two FDRs along with same rate of interest of 24% per annum as was claimed by the appellant/plaintiff bank. It is this application which has been allowed by the concurrent judgments of the courts below and hence the appellant/plaintiff bank is in this second appeal.

5. Under Section 171 of the Indian Contract Act, 1872 a bank has a general lien with respect to monies available in its hands for the dues payable by the person whose monies are with the bank. This general lien under Section 171 of the Indian Contract Act is however subject to the contract to the contrary and meaning thereby that there may not be general lien of bank on certain deposi