Letters Patent Appeal No.1240 OF 2001. Against the judgment and order dated 30.08.2001 passed in C.W.J.C.No. 1355 of 1997. BANK OF BARODA & ORS---------------------Appellant. Versus NARENDRA SINGH & ANR-----------------Respondents. For the Appellants : Mr. Ram Balak Mahto Sr.Advocate. For the Respondent : Mr. sujeet Kumar Sinha,Adv. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. Barin Ghosh & C.M.Prasad,JJ The appellant had lent and advanced a certain sum of money to the respondent writ-petitioner against certain securities. In relation to the loan so accorded, the appellant filed a suit claiming a sum of Rs.2,76,614.48. Having failed in the suit, the appellant has preferred an appeal, which is still pending. With the appellant, the respondent writ- petitioner opened a Savings Bank Account, but in a different Branch. The moment, the respondent writ-petitioner sought to withdraw the amount lying to his credit in the S.B.Account, the appellant refused to allow such withdrawal and claimed its lien over the amount lying in the said S.B.Account. There is no dispute that the amount lying to the credit of respondent writ-petitioner in the S.B.Account, - 2 - being Rs.41,876.50, is less than the claim of the Bank in the suit now pending adjudication at the appellate stage. The refusal on the part of the appellant to allow the writ- petitioner respondent to withdraw the amount lying to his credit in the said S.B.Account was the subject matter of challenge in the writ petition, which has been allowed by the judgment and order under appeal principally on the ground that the Bank has lost in the suit. Appeal is the continuation of the suit. Therefore, if the appellant was justified in refusing withdrawal from the S.B.Account until the suit was dismissed, such justification should, in the normal course, be deemed to be existing until the appeal is decided. However, the appellant could not claim lien over the credit balance lying in the S.B.Account of the respondent writ-petitioner. The money deposited by the respondent writ-petitioner with the appellant for being credited in the said S.B.Account stood blended with the money of the appellant. Further more the money that was deposited was legal tender, which was not goods. To exercise lien, there must be some goods belonging to the - 3 - debtor. When the money was deposited by the respondent writ-petitioner with the appellant, it opened an account for the purpose of keeping track of the deposit. Such an account which is kept and maintained by the appellant cannot be said to be goods and, accordingly, question of exercising lien over such an account would not arise. However, when a Bank in two of its accounts keeps track of the course of transactions, the Bank had with one of its customers, it acquires a right to combine those two Accounts. It is true that when money was deposited by the writ-petitioner respondent with the appellant for being credited in the S.B.Account, the money so deposited could only be credited in the S.B.Account of the writ-petitioner respondent . Such deposit, being not in discharge of any debt due and owing by the writ petitioner respondent to the appellant, Sections 58, 59 and 60 of the Contract Act had no application in relation thereto. The money so received by the appellant from the writ petitioner respondent on account of S.B.Account confered a right upon the petitioner to withdraw the same from the appellant coupled with the - 4 - obligation of the appellant to pay the same to the writ petitioner respondent on demand. However, when there is a debit account as also a credit account of a customer and, accordingly, in respect of one account the Bank has an obligation to pay to the customer the amount of money to the extent lying to his credit and in respect of another the Bank has a right to recover the money lying to his debit, the Bank, being the keeper of both the accounts, has a right to combine the same. This appears to be the law as declared by the court of appeals in Halesowen Presswork & Assemblies Ltd. Vs. Westminster Bank Ltd. reported in (1970)3 All E.R.473. The previous view that permission granted to a customer to open a credit Account, when he has already a debit Accounts is an implied agreement to keep the said Account separate was expressly not accepted and it was held that the Banker has right of combining such Accounts. Until such time the suit, which is now in appeal ,is ultimately decided and dismissed, we cannot hold that there is nothing due by the writ petitioner respondent to the - 5 - appellant on account of the debit account and accordingly, the appellant is not entitled to exercise its right to combine the credit Account with the debit Account. The appeal, accordingly, succeeds. The judgment and order under appeal is set aside and the writ petition is dismissed. It is made clear that in the event the appeal from the suit does not succeed, there shall be no existence of a debit account of the writ petitioner-respondent and, accordingly, the right of the appellant to combine the accounts of the writ petitioner respondent would vanish in thin air. Patna High Court, Dated 10th Sept.2008 N.A.F.R. Jay/ (Barin Ghosh,J) (C.M.Prasad,J)