IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 21542 of 2008(M) --------------------------------------- PETITIONER: ------------------- K.C.VALSALAN, PRASANNA VILAS, KUMBHAM, KOODALI.P.O, KANNUR. BY ADV. MR.V.PREMCHAND. RESPONDENTS: ------------------------ 1. THE NORTH MALABAR GRAMIN BANK. HEAD OFFICE, P.B.NO.59, BANK ROAD, KANNUR-1. 2. THE CHAIRMAN, THE NORTH MALABAR GRAMIN BANK, HEAD OFFICE, BANK ROAD, KANNUR. 3. THE MANAGER, THE NORTH MALABAR GRAMIN BANK, EDAYANNUR BRANCH, KANNUR. R1 TO R3 BY ADV. MR. DEVAN RAMACHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21542/2008-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 17/10/2007. EXT.P.2: COPY OF THE NOTICE DTD. 02/06/2008. EXT.P.3: COPY OF THE REPLY NOTICE DTD. 17/06/2008. EXT.P.4.A: COPY OF THE RECEIPT DTD. 30/06/2008. EXT.P.4.B: COPY OF THE RECEIPT DTD. 30/06/2008. EXT.P.4.C: COPY OF THE RECEIPT DTD. 30/06/2008. EXT.P.4.D: COPY OF THE RECEIPT DTD. 30/06/2008. EXT.P.4.E: COPY OF THE RECEIPT DTD. 30/06/2008. EXT.P.5: COPY OF THE LETTER DTD. 30/06/2008 ISSUED BY THE R.3. RESPONDENTS' ANNEXURE: ANNEXURE R1: COPIES OF THE REQUESTS FOR THE LOAN ON SECURITY OF THE GOLD ORNAMENTS EXECUTED BY THE PETITIONER. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 21542 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th June, 2009. J U D G M E N T The petitioner pledged certain gold ornaments belonging to his wife and daughter-in-law with the 1st respondent-Bank for the purpose of availing of a loan. That was in 2007-2008. Prior to that, in the year 2003, the petitioner had stood as a guarantor for a loan availed of by another person. The petitioner repaid the entire amount due under the gold loan and requested return of the gold pledged. But the respondents refused to release the pledged gold on the ground that they have a general lien on the same under Section 171 of the Contract Act for the amounts due under the loan in which he was a guarantor. According to the petitioner, the 1st respondent-Bank has no lien over the gold ornaments pledged by the petitioner insofar as while pledging the same, he has not agreed for any lien over the same in respect of any other liability. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) Call for the records leading to Ext. P5 and quash Ext. P1 and Ext. P5 b a writ of certiorari or any other appropriate writ, direction or order. (ii) Declare that the respondents are not entitled to invoke section 171 of the Contract Act. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to release the gold ornaments pledged by the petitioner forthwith.” Exts.P1 to P5 are the documents by which the Bank claimed and enforced the lien. 2. The respondents have filed a statement, in which they have categorically disputed the contention of the petitioner that he has not created a general lien on the gold ornaments pledged by him. They W.P.C. No. 21542/08 -: 2 :- have produced Annexure R1 documents, which are the documents signed by the petitioner himself. Both are identical. Paragraph 2 of the same reads thus: “As security for repayment of the outstanding balance of the loan which you may grant to me/us. I/We hereby pledge with you gold ornaments as mentioned in the Schedule herein below. You are entitled to hold this security as security for any other liability/ies payable by me/us in respect of any advance/financial assistance granted/to be granted hereafter and owing/that may be owing hereafter to the Bank at any office the Bank on any account whatsoever whether solely or jointly with others and whether as Principal debtor or surety.” According to them, in view of the same, there is no merit in the contention of the petitioner. 3. I have considered the rival contentions in detail. 4. In view of the paragraph quoted above in Ext. R1 documents, the petitioner cannot be now heard to contend that he had not created a lien on the gold ornaments for other liabilities due from him. Admittedly, he has a liability to the Bank, as a guarantor in respect of another loan taken by another person. That being so, unless and until that liability is also cleared, the 1st respondent-Bank would continue to have a lien on the gold ornaments in view of the clause referred to above. As such, the petitioner is not entitled to the reliefs prayed for and accordingly the writ petition is dismissed. Counsel for the petitioner submits that in respect of the liability as a guarantor, the Bank has already filed a suit against the principal W.P.C. No. 21542/08 -: 3 :- debtor, which is pending. If and when the Bank is able to recover the amounts due from the principal debtor, certainly the petitioner can approach the Bank for release of the gold ornaments, in which case, the Bank would consider the same in accordance with law. Sd/- S. Siri Jagan, Judge. Tds/