Point in Issue :
Whether appellant Bank is entitled to recover the excess amount paid towards pension from respondent.

Letters Patent Appeal No. 688 of 2010

Anant S. Dave, J.—The appellant-Bank has preferred this appeal under Clause 15 of Letters Patent against the judgment delivered in Special Civil Application No. 14196 of 2005 on 16.2.2010 by learned Single Judge, by which, the writ petition filed by respondent herein came to be partly allowed.

2. The short facts to be considered in this appeal are as under:

2.1. The husband of the original petitioner was serving with the Indian Railways and died on 17.5.1992 and thereafter the Office of Financial Advisor and Chief Accounts, Western Railway, Bhavnagar Division, issued Pension Payment Orders including family pension in accordance with pension Rules. That, as per the prevailing Rules, payment of invalid pension was to be paid @ 875/- + relief Rs. 155/-, total Rs. 1012/- (Rupees One Thousand and Twelve Only) w.e.f. the date following the death of the petitioner’s husband for a period of seven years or till attaining the age of 65 whichever is earlier and thereafter pension at the rate of Rs. 450/- + relief was to be paid till the petitioner’s death or remarriage whichever is earlier. The above Pension Payment Order (disbursement portion) was communicated bearing No. Pen/05372/E789/BP/6286 /REV dated 6.2.1989. The above PPO was received by the appellant-Bank. However, late Shri I.K. Purohit, husband of the original petitioner passed away on 17.5.1992 and as per the Rules pertaining to family pension, the amount was to be paid for a period of seven years from 17.5.1992 and thereafter, it was to be reduced. Due to inadvertent error, pension was continued to be paid without any reduction as per the earlier rate. When the bank noticed the above error, a communication was addressed on 20.4.2005 and thereafter also two reminders were sent on 9.5.2005 and 9.6.2005 to the respondent but in the written reply dated 29.6.2005, the respondent contended that no amount is due to the bank and it could not be recovered by en-cashing the fixed deposit lying with the bank.

2.2. According to the appellant-Bank total amount due was Rs. 1,29,599/- and it was withdrawn on two different dates namely on 2.4.2005 Rs. 78,599/- and on 29.4.2005 Rs. 43,000/-. The above total amount of Rs. 1,29,599/- was adjusted against the fixed deposit of Rs. 84,515/- of the respondent lying with the Bank to be renewed.

2.3. It is to be noted that the respondent herein had given an undertaking on 19.5.1995 signed by her in presence of bank officers that it will be open for the bank to recover any amount in excess if paid towards pension.

2.4. Inspite of various contentions about lien of the bank over the fixed deposit of the customer and entitlement to recover dues of the Bank and decisions of the Apex Court relied on by learned Counsel for the bank, learned Single Judge held that so far as fixed deposit of the customer is concerned, contention of the learned Counsel for the bank having lien over such fixed deposit was mis-conceived and the bank could have lien upon the general accounts of the customer and not on the fixed deposits. It was also held that the bank could not be allowed to correct its own mistake under the umbrella of lien and the bank would follow procedure in accordance with law and recover dues by filing a suit or undertaking in other proceedings.

3. Mr. J.T. Trivedi, learned Counsel for the appellant-Bank would contend that learned Judge has failed to appreciate that there was an excess payment w.e.f. 17.5.1999 through an inadvertent error and the excess amount paid to the respondent was recoverable. Having undertaken to repay the dues or any excess amount paid by the bank to be recovered, the stand of the respondent not to pay excess amount paid to her through oversight is unfortunate. By relying on concept about general lien commonly known as “right to set off” of a banker on all moneys of its customers on all goods and securities and such lien of the banker arise from contract or portion of law as a matter of cours