1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.11.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P (MD)No.8194 of 2011 and M.P (MD) No.1 of 2011 J.Samayal ... Petitioner Versus The Manager, Canara Bank, Sholavandan Branch, Madurai District. ... Respondent PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, to direct the respondent to return the 10-1/4 sovereigns of jewels pledged under the agricultural jewel loan facility in loan Account No. GL 28243. For Petitioner : Ms.J.Maria Roseline For Respondent : Mr.S.Sivasubramanian Standing Counsel for Canara Bank O R D E R The petitioner has come up with the above Writ Petition, seeking a Writ of Mandamus to return the jewel pledged by her with the respondent- Bank as security for the repayment for an agricultural jewel loan. 2. Heard Ms.J.Maria Roseline, learned Counsel for the petitioner and Mr.S.Sivasubramanian, learned Counsel for the respondent-Bank. 3. The petitioner obtained an agricultural jewel loan from the respondent and pledged 10-1/4 sovereigns of gold jewel as security for the due repayment of the said loan. Admittedly, she has repaid the entire loan. But, there are three other loans, namely, one taken by the petitioner as crop loan and the second and third taken by her daughter and son for their education. While the loan taken by the daughter has become a non-performing asset, the crop loan is not yet repaid. Therefore, despite the agricultural jewel loan having been repaid, the bank is not returning the jewels, forcing the petitioner to come up with the above Writ Petition. 4. Under Section 171 of the Contract Act, the respondent-Bank has a general lien, subject to any contract to the contrary. According to the petitioner, the jewels were pledged for a specific loan, namely, agricultural jewel loan, taken under a specific contract. Therefore, relying upon a decision of the Division Bench of this Court in State Bank of India Vs. Jayanthi, 2011 (2) CTC 465, the petitioner contends that the mortgage or pledge for a specific loan, by itself would operate as a contract to the contrary, disabling the bank from invoking the general lien under Section 171. https://hcservices.ecourts.gov.in/hcservices/ 2 5. I do not think that it is necessary for me to go into the said detail. There is no dispute atleast to the extent that in the absence of a contract to the contrary, the respondent-Bank has a general lien. Therefore, all that is required, is only to see the contract under which agricultural jewel loan was taken and jewelry was pledged by the petitioner. Therefore, I directed the Counsel for the Bank to produce the application-cum-letter of pledge. Today, the learned Counsel produced the same. The relevant clauses contained in the agreement for pledge read as follows:- “I/We specifically do empower you to sell jewels pledged for appropriation towards any account/s due and payable by me/us or any other person/s for whom I/we stand as guarantor/surety/co-obligant/s and waive our rights to notice of such sale of the pledged jewels in public/private auction, as you may deem fit to realise, without prejudice to your rights to proceed to recover the aforesaid dues, including the shortfall after appropriation of the sale proceeds. I/we agree and declare that these presents shall in no way affect your right of general lien/set off as available to you as bankers under the provisions of law.” 6. The above clauses make it clear that there was no contract to the contrary, enabling the petitioner to claim that the general lien under Section 171 would not apply. Hence the Writ Petition is liable to be dismissed. 7. However, the learned Counsel for the petitioner also submitted that the petitioner's husband is employed in the State Transport Corporation as a mechanic and that though he agreed for the deduction of Rs.3,000/- per month from his salary, his entire salary is being retained by the respondent, without enabling him and his family to sustain themselves. However, this a matter which the petitioner's husband should take up separately. But, I cannot resist my temptations to indicate that the retention of the entire salary, may not be legally valid. 8. With the above observation, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar (C.S) To The Manager, Canara Bank, Sholavandan Branch, Madurai District. W.P (MD)No.8194 of 2011 10.11.2011 ps RJ/22.11.11 2p/2c https://hcservices.ecourts.gov.in/hcservices/