A bank cannot exercise its right of banker's lien against a joint account holder unless there is an express contract or circumstances indicating an implied contract inconsistent with the lien. Additionally, a surety is discharged from liability if the terms of the contract are varied without his consent.

T.S. Doabia, J.

1. The petitioner seeks a direction that the respondent Bank be directed to make payment which is payable toward the fixed deposit receipts taken by her along with her husband. The photostat copies of these have been placed on record as Annexures P/l to P/10. The particulars of these are as under :

Sr. No. Dates FDR Number Amount - Rs. 1 2 3 4

(A) 30-11-1985 044103/278/15 10,237.50 (B) 30-11-1985 044104/279/15 14,206.50 (C) 4-6-1986 005150/16/123 25,000.00 (D) 4-6-1986 005151/16/124 25,000.00 (E) 4-6-1986 005152/16/125 25,000.00 (F) 4-6-1986 005153/16/126 25,000.00 (G) 4-6-1986 005154/16/127 25,000.00 (H) 4-6-1986 005155/16/128 25,000.00 (I) 4-6-1986 005156/16/129 25,000.00 (J) 25-11-1986 044099/273/15 61,419.00

2. It be seen that these FDRs, are in the name of Sri Bhagat Singh Sound and the present petitioner.

3. The payment of this amount is not being made on the ground that the Bank has filed Civil Suit for the recovery of a sum of Rs. 11,46,467/-. This suit is pending in a Civil Court at Gwalior. The parties to this Civil Suit be also noticed. There are four defendants. The husband of the petitioner figure as defendant No. 3. It is on the basis of the above suit, it is contended that the Bank has exercised its right to adjust loan and it is submitted that it is not obliged to make the payment. Before dealing with this position, it would be apt to notice the assertion made in the plaint. The learned counsel for the petitioner placed reliance on para 8 of the plaint whereas the learned counsel appearing for the Bank placed his reliance on para 4 of this very plaint.

4. It be seen that originally the loan appears to be to the extent of Rs. 4 lakhs. For this Bank placed his reliance on para 4, of this very plaint. Later on, the cash-credit limit was increased. It was fixed at seven lakhs. When fresh documents were executed, the husband of the petitioner was not signatory to the continued guarantee. This becomes apparent from perusal of para 8 of the plaint. For facility of reference, this be noticed. This reads as under :

"8. That in consideration of the plaintiff having at their request agreed to grant to defendant No. 1, the said advance, defendants Nos. 2 and 4 executed in favour of and delivered to the plaintiff on 2-9-1988 a letter of continuing guarantee whereby they guaranteed jointly and severally in their personal capacity the due payment to the plaintiff after demand of all advances whether made before or after the date thereof to defendant No. 1 in the open cash credit account and also interest thereon and all costs, charges and expenses." The learned counsel for the petitioner submits that the claim of the respondent Bank which is based on guarantee for repayment of Bank's loan and further based on concept of Banker's lien would not be available. It has been indicated that prima facie husband of the petitioner is not a guarantor and this is apparent from the plaint, reading of the averments contained in para 8 of the plaint. Thus, it is stressed that the husband of the petitioner is not a guarantor for payment against the promissory note. If this be a situation, then prima facie, it cannot be said that the" husband of the petitioner is bound by the continuing guarantee said to have been given on 2-9-1988. Faced with this difficulty, the learned counsel for the Bank argued that the husband of the petitioner would at least be bound for the commitment made by him and this commitment is said to be to the extent of Rs. 4 lakhs. This argument is sought to be countered by placing reliance on Section 134 of the Contract Act. It is argued that the Bank of its own gave up the husband of the petitioner and he is no longer treated as a guarantor. The sum of Rs. 4 lakhs which was initially given as loan is now part of second demand promissory note. The original payment of promissory note of 4 lakhs cannot be said to be in existence. The demand is now being made for a sum of Rs. 7 lakhs. As such, the Bank is prima