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KERALA HIGH COURT
Dama Seshadri Naidu, J.
Lonankutty Antony @ T.L.Antony —Petitioner
versus
The Joint Registrar of Co-Operative Societies & Ors. —Respondents
WP(C).No.2527 of 2015 (M)
Decided on 8.3.2016
For the Petitioner:Sri.C.Anilkumar (Kallesseril), Sri.C.Y.Vinod Kumar, Advocates
For the Respondent No.2: Sri. T.R. Rajesh, Government Pleader
For the Respondent Nos.3 & 4:Sri.P.P.Jacob, Advocate
IMPORTANT POINT
Question of husband implicitly incurring a liability on contract entered into by his wife with a third party does not arise.
Headnote:Contract Act, 1872—Section 171—Banker’s lien on mortgaged property—Limits of—With general lien owner of asset has to be contractually connected to debt in capacity of either a borrower or a guarantor—Liability of party, be it husband or wife, is required to be determined strictly in statutory terms in terms of either contract they have entered into or law governing the issue—Both of them can independently acquire and hold property in their own names—One can contract with third persons independently of other—Question of husband implicitly incurring a liability on contract entered into by his wife with a third party, in absence husband’s express or implied consent thereto, does not arise—Bank’s action of retaining or withholding petitioner’s title deeds even after his clearing loan is per se illegal and arbitrary—Bank directed to return to petitioner title deeds of property which he had earlier mortgaged for loan. (Paras 8, 15, 25 to 30)
Result: Writ Petition allowed.
Dama Seshadri Naidu, J.—The petitioner, a member of the third respondent Co-operative Bank, availed himself of a loan after mortgaging a piece of property and later cleared it. When he sought the return of the title deeds of the property after clearing the loan, the respondent Bank refused. The refusal seems to be on the premise that the petitioner’s wife also secured a loan, and the petitioner’s title deeds are deemed to have been kept as security for the realisation of the said debt, too. In other words, the third respondent Bank has exercised its general lien. Aggrieved, the petitioner has filed the present writ petition.
2. The learned counsel for the petitioner has submitted that the petitioner has nothing to do with the loan obtained by his wife. He has further submitted that the petitioner is not a guarantor to the loan. Nor has he offered his property as security.
3. The learned counsel for the respondent Bank has, on the other hand, strenuously contended that the petitioner has all along known about the loan obtained by his wife. He has, in fact, contended that it is the petitioner that is instrumental in his wife’s securing the loan.
4. In elaboration of his submissions, the learned counsel has also contended that the Bank has bona fide believed that the husband’s property could be used for securing his wife’s loan.
5. The learned counsel has also drawn my attention to Ext.R3(g) issued by the Assistant Registrar allowing the respondent Bank to retain the petitioner’s title deeds until his wife’s loan is cleared.
6. Heard the learned counsel for the petitioner and the learned counsel for the respondent Bank, apart from perusing the record.
7. To a specific query whether the petitioner and his wife are living together, the learned counsel for the petitioner did submit that they had been living together, though he added apologetically that they had a strained relationship. I must acknowledge that the answer to my question, either way, has no impact on the issue.
8. To begin with, this Court is aware that it cannot indulge in any moral adjudication. The liability of the party, be it husband or wife, is required to be determined strictly in statutory terms in terms of either the contract they have entered into or the law governing the issue.
9. In the first place, the learned counsel for the respondent Bank could not bring to the notice of this Court any provision under which the Assistant Registrar issued Ext.R3(g) allowing the respondent Bank to retain the petitioner’s documents for the loan contracted by his wife. It is indeed an extra-legal order with no enforceability. And it is required to be ignored as devoid of any force. It is thus disregarded.
Securities-Lien:
10. In Transcore v. Union of India, (2008) 1 SCC 125. the Apex Court has delineated on the securities that could be offered. Broadly, there are three types of security over an asset. First is where the creditor obtains an interest in the asset concerned (mortgage). Second is the security in which the rights of the creditor depend on possession of the asset (pledge/lien). The third is the charge where the creditor gets neither ownership nor possession of the asset, but the asset is appropriated to satisfy the debt or obligation in question. The dichotomy, which is important, is that more than one obligation could arise from the same transaction, namely, to repay the debt or to discharge other obligation.
11. Focusing on the contractual concept of the term, we may examine ‘lien’. Black’s Law Dictionary, 9th Ed. defines lien as a legal right or interest that a creditor has in another’s property, usually lasting until a debt or duty it secures is satisfied. Typically, the creditor does not take possession of the property on which the lien has been obtained. Of the banker’s lien, the same lexicon defines it to be the right of a bank to satisfy a customer’s matured debt by seizing the customer’s money or property in the bank’s possession.
12. In West’s E
