Kerala High Court

Icici Bank Limited vs Gopinathan Palakkal on 30 July, 2021

WA No.801/2021                              1/6

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT
                   THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                          &
                       THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
                 Friday, the 30th day of July 2021 / 8th Sravana, 1943
                          I.A.NO.1/2021 IN WA NO. 801 OF 2021

      AGAINST JUDGMENT DATED 28/1/2021 IN WP(C) NO. 9652/2019 OF THIS COURT .

                                         ---

   PETITIONER/APPELLANT/3RD RESPONDENT:

      ICICI BANK LIMITED, KOZHIKODE (CALICUT) BRANCH,

      SHAFEER COMPLEX, OPP YMCA,KANNUR ROAD,KOZHIKODE-673 001,

      REP.BY ITS MANAGER ARAVIND R.


   RESPONDENTS/RESPONDENTS/APPELLANT AND RESPONDENTS 1 AND 3:


    1.GOPINATHAN PALAKKAL, AGED 61 YEARS,

      S/O. T.P. KUNHIKANNAN NAMBIAR, TITAN, NELLIKKAVU ROAD,

      KARAPARAMBA P.O.,CALICUT, KERALA-673 010.

    2.THE UNION OF INDIA, REP. BY SECRETARY TO MINISTRY OF FINANCE,

      NEW DELHI-110 001.

    3.THE BANKING OMBUDSAMAN.    RESERVE BANK OF INDIA,

      BAKERY JUNCTION, THIRUVANANTHAPURAM-695 033.


        Application praying that in the circumstances stated in the
   affidavit filed therewith the High Court be pleased to modify the interim
   order dated 29/06/2021 in W.A.801/2021, to mark the lien over the amount
   remitted in the account of the respondent or such other appropriate order
   which is deemed necessary to ensure that the amount remitted is
   safeguarded, pending disposal of this Writ Appeal, in the interest of
   justice.


        This application coming on for orders along with connected cases on
   30/07/2021 upon perusing the application and the affidavit filed in
   support thereof and this Court's order dated 29.06.2021 in W.A.801/2021
   and upon hearing the arguments of M/S.LAL K.JOSEPH, P.MURALEEDHARAN
   (THURAVOOR), LUXY T.A., SURESH SUKUMAR, ANZIL SALIM & CHACKO MATHEWS K.
   Advocates for the petitioner and of SRI. M.RAMESH CHANDER, SENIOR ADVOCATE
   along with M/S.K.A.SANJEETHA & BALU TOM, Advocates for the Respondent 1
    the court passed the following:

                                                                         P.T.O.
 WA No.801/2021                                 2/6




                      S.MANIKUMAR, C.J. & SHAJI P. CHALY, J.
                 -----------------------------------------
                       I.A.No.1 of 2021 in W.A.No.801 OF 2021,
                            W.A.Nos.2316 & 2279 OF 2019
                 -----------------------------------------
                          Dated this the 30th day of July, 2021

                                            ORDER

S.MANIKUMAR, C.J.

I.A.No.1 of 2021 is filed in W.A.No.801 of 2021 seeking

modification of the interim order dated 29.6.2021 in order to mark

lien over the amount remitted in the account of the respondent or

such other appropriate order which is deemed necessary to ensure

that the amount remitted is safeguarded.

2. On 29th June, 2021, we have passed the following order:

"Being aggrieved by the judgment in W.P.(C) No.9652/2019 dated 28.1.2021 directing the appellant bank to restore the unauthorised debits from the account of the 1st respondent by the bank within a period of one month from the date of receipt of a copy of the judgment, which direction would be without prejudice to the right of the bank to proceed against the persons responsible for the unauthorised transaction, instant writ appeal is filed.

2. We have heard learned counsel for appellant. We have gone through the relevant portions of the zero liability extracted at paragraph No.8 of the memorandum of appeal. However, Mr.Ramesh Chander, learned Senior Counsel appearing for the respondent, submitted that while similar issue WA No.801/2021 3/6

I.A.No.1 of 2020 in W.A.No.801 OF 2021, W.A.Nos.2316 & 2279 OF 2019 :: 2 ::

came up before this Court in a batch of W.A Nos.2316 & 2279 of 2019, a Hon'ble Division Bench of this Court, passed the following interim order on 19th November, 2019:

ORDER W.A.NO.2316/2019

Admit. Smt.Raaga R.Ramalakshmi takes notice for respondents 1 and 2. Issue notice to the 3rd respondent. Sri.T.Rajesh takes notice for respondents 4 and 5. Sri.Mathews K. Philip, takes notice for respondents 7 and

8. Sri.Joseph Rony Jose, CGC takes notice for respondents 9 and 10. Government Pleader takes notice for the 6th respondent.

W.A.NO.2279/2019

Admit. Smt.Raaga R.Ramalakshmi takes notice for respondents 1 and 2. Issue notice to the 3rd respondent. Sri.P. Sathisan takes notice for respondents 4 and 5. Sri.Joseph Rony Jose, CGC takes notice for respondents 6 and7.

W.A.Nos.2316 & 2279 of 2019

Compliance of the directions issued by the learned Single Judge shall be subject to the result of the writ appeals."

3. Posed with a query as to whether there should be consistency in the matter of granting interim orders, Mr.Lal K. Joseph, learned counsel for appellant, submitted that consistency has to be maintained.

4. The issue raised in the instant writ appeal No.801/2021 is more or less the same as that of the Writ Appeals, in which the above said interim order is passed. Therefore, we hereby direct that WA No.801/2021 4/6

I.A.No.1 of 2020 in W.A.No.801 OF 2021, W.A.Nos.2316 & 2279 OF 2019 :: 3 ::

compliance of the directions issued by the learned Single Judge in W.P.(C) by No.9652/2019 shall be subject to the result of W.A.No.801/2021.

Post W.A.No.801/2021along with W.A.Nos.2316/2019 & 2279/2019."

3. Mr.Lal.K.Joseph, learned counsel for the bank invited the

attention of this court to the judgment passed by the learned Single

Judge which reads thus:

"The writ petition was allowed by the learned Single Judge and directed the appellant Bank as follows:

"The unauthorized debits from the account of the petitioner shall be restored to the petitioner by the Bank without any delay and, at any rate, within a period of one month. This direction will be without prejudice to the right of the Bank to proceed against the persons who are responsible for the unauthorized transactions in accordance with law"

4. Averments made in the supporting affidavit to I.A.No.1 of 2021

for modification explains the zero liability, limited liability of a

customer in case of unauthorised electronic payment transactions

through a PPI (Pre Paid Payment) Instrument, etc. Sum and substance

of the contentions of the bank to seek for modification as averred in

paragraph 8 is detailed below:

WA No.801/2021 5/6

I.A.No.1 of 2020 in W.A.No.801 OF 2021, W.A.Nos.2316 & 2279 OF 2019 :: 4 ::

"8. It is submitted that the appellant Bank is ready to comply with the direction of this honourable court by remitting the amount in the account of the 1st respondent As the amount to be remitted is the public money and the remittance is subject to the result of the judgment in Writ Appeal, in order to secure the amount remitted in the account of the 1st respondent pending the writ appeal, there is every chance that the amount may be withdrawn and utilised by the customer and if the writ appeal is in favour of this the respondent. In order to secure the public money remitted in the account of the respondent pending the writ appeal, this honourable Court may be pleased to pass such an order to modify the interim order dated 29/06/2021 for marking the lien over the said amount to be remitted in due compliance of the interim order pending disposal of this Writ Appeal, otherwise the petitioner/appellant would be put into irreparable injury and hardships."

5. Opposing the prayers sought for in the interlocutory

application filed by Mr.Lal K.Joseph, learned counsel for the

respondent submitted that the concept of lien cannot be imported into

the facts of this case, as lien is only in respect of any amount due under

a contract of transaction in accordance with law. According to him,

amount deposited with respondents has been withdrawn by

unauthorized means and that the request of the respondent to

reinvest the amount due and payable with interest has been declined.

6. Reference can be made to Section 171 of Indian Contract Act,

1872, which reads as under:

WA No.801/2021 6/6

I.A.No.1 of 2020 in W.A.No.801 OF 2021, W.A.Nos.2316 & 2279 OF 2019 :: 5 ::

"171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.--Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect."

7. In the light of the above, we are not inclined to modify the

interim order.

8. Mr.Lal K.Joseph, learned counsel for the appellant submitted

that two days time may be granted for remittance of the amount as

directed by the learned Single Judge.

9. Placing on record the submission of the learned counsel for

the Bank, time is granted till 3.8.2021 to remit.

Learned counsel for the bank submitted that orders would be

complied in letter and spirit.

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-