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banker's lien and right of setoff

EX BANKER

Sir,

Kindly inform whether the Banker's lien and right of ste off can be exercised by a NBFC.For example,Mr.X works for  a NBFC  which is a public limited company.X's wife P has invested in debentures of this company say Rs.100000.Due to Mr.X.company suffers some loss.Whether  NBFC can attach this debentures in the name of P to recover its due from Mr.X.

As per debenture certificate,there is no lien created,and not given as security.

If general lein and right of setoff is notavailable,whetehr NBFC can attach the debenturte through court orders.Under what circumstances NBFC can attach the debentures in the name of P

 
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Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)

No lien over spousal property - as it belongs to her exclusively. 

 
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Advocate

NBFC cannot exercise general lien against the debentures of the wife of X

 
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(1) Since Mr X works for the NBFC and is not a customer/account holder. So question of excercising banker's lien or the right to set-off does not arise at all.

(2) NBFCs are not considered as Banks and hence the right to excercise 'banker's lien' or the 'right to set-off' is not applicable on NBFCs.

For Banks to apply 'banker's lien (BL)' or the 'right to set-off (RTSO)', following things should be noted:

(a) Where RTSO is available, banks cannot apply BL. (b) Both apply to Banks with their relationship to customers as Debtor-Creditor relationship only. (c) Dues of Mr Z cannot be recovered from Mr M. (d) BL & RTSO do not apply to Goods and securities left by the customer in the branch premises by oversight, things kept in safe custody (e) all branches in the bank are to be seen as one single entity, meaning debit balance in an a/c with branch A can be set off with credit balance in an a/c with branch B (f) Dues outstanding and accrues as on date of excercise of BL or RTSO are applicable - amounts should be certain and no future amounts can be BL-ed/RTSO-ed. (g) Unavailed portion of a cash credit/overdraft a/c cannot be BL-ed/RTSO-ed.

 
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I agree with Mr.Prasun Chandra Dass

 
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FIN

Kindly clarify:

"Can bank apply BL to FD of the customer if a case is already being heard by DCDRF for CC dues?"

{(v) Lien

Banks have a right to exercise lien under section 171 of the Indian Contract Act against the dues from constituents/customers. However, the banks cannot exercise lien over the personal account of a customer on the ground that money was due to the bank in another account where he acts in a different capacity, if there is no agreement to that effect}

Brief history of the matter is given below:

A is CC holder of a leading Pvt Sector bank since 7 years and has been paying on time without a single default. Bank has not provided copy of CC application form signed by customer and is not supplying the same despite many representations. Customer is sure that 7 years back he has not signed any agreement that bank can exercise lien on other accounts.

--Bank defaults on service and customer lodges’ complaint in writing from customer care to the highest level of VP-Customer Services Credit Cards and MD.

--bank does not resolve the complaint as customer is adamant on getting reply and apology in writing. Bank is not willing to beg apology in writing. Bank resorts to unethical practices e.g. bank has been supplying CC bills by courier and stops courier. Customer lodges complaint on non receipt of bill in time and escalates the complaint. Bank does not supply the bill. Customer blocks the payment and states bill shall be paid if bank supplies the bills at his doorstep. Bank's collection/recovery agents resort to coercion/threats and customer lodges police complaint, and also with MD of the bank.

 Bank dispatches its Zonal Collection Head to the o/o lawyer of customer to apologize in verbal and this man promises in verbal to supply all bills and revalidate the CC. Nothing happens. Customer lodges consumer complaint. While, the hearing is in progress in DCDRF, bank resorts to another malpractice. It creates banker's Lien on FD of the customer and notice of BL reaches customer on the last day mentioned in the notice. Hence lien is created.

Lawyer of the customer issues legal notice to the bank. Bank starts calling customer on phone from various locations and vacates the lien. Customer takes premature payment of all FD's and suffers loss of interest.

Other query is :

“Can customer claim this amount from bank’s MD or has to go to DCDRF again? What are the chances of getting payment of loss suffered? Kindly provide, if available, some suitable decisions from National Commission or State Commissions”

DCDRF decides in favor of the customer and orders the bank to waive off all charges and supply valid CC. Customer gets CC by execution petition.

Again bank resorts to unethical practices and does not activate the CC. Customer lodges written complaint and bank activates the CC. Bank again does not supply the bill. Customer lodges complaints in writing. Bank does not supply the bills despite repeated reminders in writing and invalidates the CC.

Can the customer demand severe punishment/penalty as bank has committed same offense like a habitual willful offender?

What should be the strategy?

 

 

 



Attached File : 1063930405 bank lien does not extends to fixed deposits.doc, 1063930405 banks cannot exercise lien over the personal account.pdf downloaded 293 times
 
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Dear Kumar Doab, I am quite confused by the judgement. (1) In all cases of savings/current/fixed deposit a/cs, customer is creditor and bank is debtor. If banker's lien does not apply to FDs, by the same logic it should not apply to savings and current a/cs also. This is against all theory and practice of the banker's lien concept. (2) "In the same capacity" is important. It means that if I have a CC in my name, a banker's lien or rtight to set off cannot apply to my FD a/c jointly with my wife. Only those a/cs where I am the sole holder are applicable. The 1st point, however, baffles me.
 
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FIN

The direction on Banker's lien and right to set of is given by RBI, BCSBI.

In adittion to that there are court judgements.

How does a bank daree to defy all.

 Either there are some trendsetting judgements by apex court or no one has raised the voice.

However purpose of the query raised in this post is to seek guidance and citations, rules, clarification, knowledge to help the fellow citizens who face harassment.

Valuable advice of learned experts/members is sought.

 
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If "How does a bank daree to defy all" is directed to me just because I am a Banker, then it is misdirected.

I have not challenged anything in my post. I have said I am confused and baffled by the judgement. All viewpoints are most welcome.

 
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Dear Kumar Doab, In your word file attachment it is stated "The depositor would accordingly cease to be the owner of the money in fixed deposit .The said money becomes money of the bank, enabling the bank to do as it likes, that however, with the obligation to repay the debt on maturity .In the same ruling it was further held that the bank being a debtor in respect of the money in FD, had no right to pass into service the doctrine of banker’s lien and the money in Fixed Deposit." But in various illustrations in the PDF file that you have attached, courts have ruled that banks can apply banker's lien on FDs. Nowhere (even in illustrations where courts have ruled that banker's lien cannot be applied) have the courts pointed out what is said in the word file attachment. Please explain this.
 
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