JUDGMENT

SANJEEV NARULA, J. (Oral):

1. Petitioner has invoked Article 226 of the Constitution of India seeking release of Fixed Deposit Receipts [“FDRs”] claiming that the lien/charge created thereon stands discharged, and the bank is unlawfully withholding the same.

2. Mr. Neeraj Malhotra, Senior Counsel for the Petitioner-Honey Builders Limited [“HBL”], has handed over a brief note of written submissions across the board, which is taken on record.

3. Briefly, facts of the case are as follows:

3.1. For participating in a scheme for external development works of a residential plotted colony in Gurugram, Department of Town and Country Planning, Haryana [“DTCP Haryana”] called upon Supertech Limited to furnish Bank Guarantees [“BGs”] for which they approached the Respondent – Union Bank of India (formerly Corporation Bank) [“Bank”].

3.2. The Bank asked Supertech Limited to secure the BG by way of

100% cash margin, and if furnished by a third-party security, the same would be by way of a Memorandum of Charge/Lien.

3.3. In above background, HBL, which at that time was a sister concern of Supertech Limited, came into the picture. It created security by executing two documents, both dated 31st December, 2018, titled ‘Memorandum of Charge/Lien Over Deposit by Third party’ with the Bank which contained identical terms and clauses. [Hereinafter, reference to one memorandum would be treated as reference to both, and collectively, shall be referred to as “Memoranda”] Through the Memoranda, HBL created lien/charge on two FDRs bearing no. 530101344818079 and 530101344818103 for Rs. 21.80 crores and Rs. 1.05 crores respectively, in favour of the Bank, which were to inter-alia serve as 100% cash margin.

3.4. With security in place, the Bank issued two BGs, bearing no.

IPBG04471800044 and IPBG0447l800043 for Rs. 21.80 crores and Rs. 1.05 crores, both dated 31st December, 2018, respectively, in favour of DTCP Haryana, on account of Supertech Limited.

3.5. These BGs were subsequently returned by DTCP Haryana on 22nd July 2022, and cancelled by the Bank. This fact is not in dispute.

3.6. The grievance of HBL is that despite discharge of the BGs, and issuance of several letters requesting for release, the Bank is illegally and arbitrarily withholding the FDRs.

Contentions of Petitioner

4. Mr. Malhotra has made following submissions:

4.1. HBL furnished the FDRs as security, specifically for issuance of BGs. Clause 1 of the Memoranda, which is clear and specific, demonstrates that HBL made a request only for issuance of BGs on account of Supertech Limited, and nothing more. Since the BGs have been discharged, HBL is entitled to have the FDRs released.

4.2. The Memoranda are standard pre-printed formats, provided by the bank, which had blanks that were to be filled out by-hand. HBL signed the same and did not read each and every clause on the belief that inapplicable clauses would be struck out. HBL was not aware of the Bank’s ill-intention to misuse certain clauses of the Memoranda to withhold its 100% cash margin.

4.3. Clause 1 has several blanks which have deliberately neither been been filled nor struck-out. This indicates that parties intended to furnish the FDRs as securities only for BGs. Clause 11 of the Memoranda also contains blanks, left unfilled intentionally. The same is reproduced as under:

4.4. None of the clauses of the Memoranda indicated any liability towards loans of other parties, or mentioned any outstanding amounts.

4.5. A plain reading of Clause 3 of the Memoranda indicates a special contract between the Bank and HBL, for the specific purpose of securing the BGs. Accordingly, the Bank could not have created a general lien on 100% cash margin deposited by HBL.

4.6. The details of the FDRs (viz. validity from 31st December, 2018 to

31st March, 2024 i.e., for a period of 63 months) were hand-written in a table below Clause 3, as follows:

4.7. From a conjoint reading of the hand-written content and clauses noted above, the only intention that can be i