1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.4025 OF 2009 1. Sundeep Polymers pvt. Ltd., having its factory at D-70, MIDC Ind. Area, Hingna, Nagpur 440 028 and office at 52, Mamta `A', New Prabhadevi Road, Mumbai 400 025 2. Shri Dileep Balkrishna Nevatia, Age - 58 years, occupation - business, R/o 5-A, Worli Sea Face, Mumbai 30 3. Smt. Sunita Dileep Nevatia, Age - 56 years, Occ. housewife, R/o as above ..PETITIONERS VERSUS 1. Deogiri Nagri Sahakari Bank Ltd., having its office at Artha Complex, Kesarsinghpura, Aurangabad 431 001 2. S.B. Wadgaonkar, Special Recovery Officer, Deogiri Nagari Sahakari Bank Ltd., Artha Complex, Kesarsinghpura, Aurangabad 431 001 3. State of Maharashtra Through its Secretary Co-operation Department, Mantralaya, Mumbai 400 032 ..RESPONDENTS Mr R.T. Nagargoje, Advocate for the petitioners; Mr S.V. Adwant, Advocate for respondents no.1 & 2; Mr V.H. Dighe, A.G.P. for respondent no.3. 2 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ (Date of reserving the judgment : 20.8.2009 Date of pronouncing the judgment : 15.10.2009) JUDGMENT [ PER P.V.HARDAS , J ] 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. This is a petition under Article 226 of the Constitution of India by which the petitioners pray for issuance of a writ directing the respondents to obey the order dated 4.6.2009 passed by this Court in Writ Petition No.2494 of 2008 and to return an amount of Rs.9,01,537/- together with interest. 3. Such of the facts as are necessary for the decision of this petition may briefly be stated thus :- The petitioner no.1 claims to be a registered company, while petitioners no.2 & 3 claim to be its Directors. According to 3 the petitioners the Deputy Registrar issued recovery certificate No.19 of 2002 for Rs.46,85,643.27 under section 101 of the Maharashtra Co-operative Societies Act, 1960 on 8.5.2002. The petitioners filed revision before the Divisional Joint Registrar and the Divisional Joint Registrar by order dated 19.6.2004 rejected the revision on the ground that 50% of the amount of the certificate was not deposited by the petitioners as was required to be deposited under section 154 (2A) of the Maharashtra Co- operative Societies Act, 1960. The petitioners being aggrieved by the said order filed Writ Petition No.5920 of 2004 before this Court, which came to be dismissed on 2.8.2006. The Division Bench of this Court also dismissed Letters Patent Appeal No.72 of 2006 confirming the orders of the authorities below. The petitioners being aggrieved by the aforesaid order filed Special Leave Petition No.14582 of 2007 before the Supreme Court. The Supreme Court by its order dated 30.8.2007 permitted the petitioners to withdraw the Special Leave Petition with liberty to approach the revisional authority for extension of time for deposit of the aforesaid amount. The petitioners, pursuant to the order of the Supreme Court filed revision petition before the Divisional Joint Registrar, Aurangabad with a principal prayer for quashing of the recovery certificate. By order dated 12.12.2007 the Divisional Joint Registrar condoned the delay and directed the petitioners to deposit 50% of the amount of the certificate. Pursuant to the 4 order of the Divisional Joint Registrar, the petitioners have deposited with respondent no.1 50% of the amount against the three recovery certificates including an amount of Rs.23,42,825/- against Certificate No.19 of 2002. On the amount being deposited by the petitioners the Divisional Joint Registrar admitted the revisions and quashed and set aside the impugned recovery certificates dated 8.5.2002 and remanded the matter back to the Deputy Registrar. Consequent to the order of the Divisional Joint Registrar remitting the matter back to the Deputy Registrar, Co-operative Societies, Aurangabad, the Deputy Registrar, Aurangabad returned the plaint to the respondent no.1 Bank. The respondent no.1 Bank being aggrieved by the order dated 20.6.2008, passed by the Deputy Registrar, Co-operative Societies, Aurangabad returning the plaint to the bank, the respondents no.1 & 2 preferred revisions before the Divisional Joint Registrar being Revision Nos.12 of 2008, 13 of 2008 and 14 of 2008. 4. Meanwhile, it appears that some time in March, 2008 the petitioners had filed Writ Petition No.2494 of 2008 praying therein for directing the respondents to return the amount of Rs. 9,01,537/- to the petitioners and one Shri Balkrishna Nevatia (deceased). The aforesaid writ petition came to be decided by an order dated 6.4.2009 and this Court directed the respondent no.1 5 Bank to retain the amount of Rs.9 Lakhs as custodian, pending the decisions of the revisions. The revisions filed by the respondents no.1 & 2 came to be dismissed by the Divisional Joint Registrar by orders dated 15.5.2009 and 20.5.2009. This present petition, therefore, is filed by the petitioners for directing the respondents to refund the aforesaid amount of Rs.9,01,537/- together with interest. 5. On notice being issued to the respondents, the respondents have filed their affidavit in reply. In the affidavit in reply the respondents state that the Bank has a general lien over all forms of securities or negotiable instruments by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right of the Banker which is judicially recognised. According to the respondent no.1 bank, the Bank has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of the customers debit balance. According to the respondent no.1 Bank the aforesaid amount is being held towards the amount which the petitioners are liable to pay to the respondent Bank and the respondent Bank has exercised the Bankers lien over the said amount as the petitioners are the debtors of the respondent Bank. Learned Counsel for the petitioners Shri Adwant has also pointed out to us that the respondents have filed three petitions, 6 namely Writ Petition Nos.5231 of 2009, 5232 of 2009 and 5234 of 2009 challenging the order passed by the Divisional Joint Registrar dismissing the revisions filed by the respondent Bank. The copy of the order of the learned Single Judge, dated 11.8.2009 which has been made for our perusal only discloses that the learned Single Judge has issued Rule making it returnable early and granting liberty to the petitioner therein to move for final hearing after six months. Thus, no interim relief has been granted by the learned Single Judge in respect of the deposit of the amount of Rs.9,01,537/-. 6. Shri Adwant, learned Counsel for the respondent has placed reliance on the judgment of the learned Single Judge of the Nagpur High Court in Devendrakumar Lalchandji vs. Gulabsingh Nekhesingh, AIR 1946 Nagpur 114, Syndicate Bank vs. Wilfred D'Souza AIR 2003 KARNATAKA 337 and Lloyds bank Ltd. vs. Administrator-General of Burma AIR 1934 Rangoon 66. 7. The retention of the amount of Rs.9,01,537/- now stands regulated by virtue of the order passed by the Division Bench of this Court in Writ Petition No.2494 of 2008 wherein this Court permitted the respondent no.1 Bank to retain the aforesaid amount as custodian, pending hearing and final disposal of the 7 revisions. The revisions ultimately came to be dismissed by the Divisional Joint Registrar against which writ petitions have been filed. The learned Single Judge of this Court has not passed any orders thereby permitting the respondent no.1 Bank to retain the aforesaid amount during the pendency of the said writ petitions. In that light of the matter, when this Court had specifically directed that respondent no.1 Bank could retain the said amount as custodian pending the decision of the revisions, it is wholly impermissible for respondent no.1 Bank to hold that amount has a lien towards the other debt which the petitioners are liable to pay to the respondent no.1 Bank. The judgments, adverted to above, cited by the respondents, do not further the case of the respondents. The ratio of the said judgments is not applicable to the facts of the present case. The respondents cannot retain the aforesaid amount particularly when the order passed by this Court in Writ Petition No.2494 of 2008 has attained finality as the aforesaid order has not been challenged by the respondent no.1 Bank. The respondents cannot retain said amount contrary to the directions issued by this Court. In that light of the matter, therefore, according to us the petition deserves to succeed. Accordingly, this petition is allowed and the respondents no.1 & 2 are directed to forthwith refund the amount of Rs.9,01,537/- to the petitioners within three weeks from today. Failure to refund the said amount within three weeks from today would attract 8 interest on the said amount at the rate of 8% per annum from the date the amount became due and payable to the petitioners till the amount is actually paid to the petitioners. We allow this petition quantifying the costs to be paid by respondents to the petitioners at Rs.10,000/-. Rule is thus made absolute on the above terms. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE amj/wp4025.09 9