A. B. Rohatgi, J.

(1) THIS execution case raises the question of bankers lien.

(2) THE decree-holder obtained a decree on 2-11-1979 for Rs. 1,04,441. 35 with future interest at 9 per cent per annum and costs against the judgment-debtors, Jullundur Body Builders. In the course of execution the judgment-debtors said that they will pay the decretal amount in instalments. They were accordingly required to furnish a bank guarantee in the sum of Rs. 90,000. The judgment-debtors approached the Syndicate Bank the Bank with whom they had an overdraft account. They deposited two fixed deposit receipts with a covering letter with the bank and requested it to issue a guarantee in favour of the Registrar of this court. The particulars of the FDR are as under:

(1) FDR dated 9-5-80 for Rs. 25,000. 00 to mature on 1-7-85. (2) FDR dated 17-9-80 for Rs. 65,000. 00 t0 mature on 17-12-83. The deposit receipts were duly discharged in favour of the bank. On 17-9-1980 the bank executed a deed of guarantee for Rs. 90,000. 00 in favour of the Registrar.

3. On 27-10-1980 a division bench of this- court discharged the bank guarantee as the proposal to pay in instalments was not acceptable to the decree-holder.

(3) ON the application of the decree-holder this court attached an amount of Rs. 35,000 in the hands of the bank out of the amount of the aforesaid deposit receipts. The order of attachment was made by R. N. Aggarwal J. on 21-11-80. The bank as a garnishee has now raised objection to the attachment. The ground of objection is that the bank has a lien on the deposit receipts and that the amount docs not belong to the judgment-debtors and cannot therefore be attached. It is the validity of this defence which is in question.

(4) "the judgment-debtors are customers of the bank. They have an overdraft account. The bank has allowed them overdraft facility upto Rs. one lac. It is not a clear overdraft. The judgment-debtors have admittedly given securities like hypothecation of stocks and machinery in this account. On 21-11-80 when the attachment order was issued there was a debit balance of Rs. 1,17,365, in this account. The bank now claims that they have a lien on the amount of Rs. 90,000 of the deposit receipts and that they will exercise their right of set-off when the receipts mature against the balance of account. Reliance is placed by the bank on the covering letter which the judgment-debtors wrote On 17th September, 1980 when they requested the bank to issue a guarantee in favour of the Registrar. The letter reads :

"the Manager, Syndicate Bank, Dev Nagars Br. , New Delhi. Dear Sir, Our Fixed Deposit Account No. 38991417493 covered by your Receipt/certificate No. 389914/7493 for Rs. 65,000 due on 17th Dec. 1983. We enclose herewith our fixed Deposit Receipt Certificate No. 38991417493 dated 17. 9. 1980 for Rs. 65,000 due on 17. 12. 1983 duly discharged by me as security for the loan over draft account of Shrismt. M/s. Jullundur Body Builders for Rs. 90,000. The Bank is at liberty to adjust from the proceeds of other receipts/ certificates sued in renewal thereof at any time without any reference re/us, to the dues under the said loan/od account. I/we agree the above deposit and renewals shall remain with the Bank as any amount on any account is due to the Bank from us of the said Sri[smt. M/s. Jullundur Body Builders singly or jointly with others. Yours faithfully, Manager Partner. "

The other letter for the deposit receipt Rs. 25,000 is in identical terms. The bank relies on the last paragraph of the letter which entitles the bank to retain the receipt "so long as any amount on any account is due to the bank: from us" (the judgment-debtors). The decree-holder on the other hand relies on the fixed deposit receipt where on the reverse the following words appear. "lien to BG 11/80. "

This means that deposit receipts are being held against the guarantee furnished by the bank. This is clear from the first paragraph of the letter which says that the receipt of Rs. 65,000 is held "as security" for "Rs -. 90,000". The two receipts of Rs. 65,000 and Rs. 25,000 are therefore securities which tile judgment-debtors have given to the bank for issuing the bank guarantee. If they are asked to pay Rs. 90,000 to the Registrar they can recover the money from the deposit receipts. This is the arrangement. The letter of 17. 9. 80 has to be read in the light of the arrangement. The circumstances show that the agreement was for the specified purpose of guarantee. It was a special contract for special and exceptional transaction.

(5) BY mercantile custom the banker has a general lien over all forms of commercial paper deposited by or on behalf of a customer in the ordinary course of banking business. The custom is displaced by either an express contract or. circumstances which show an implied agreement inconsistent with the lien. This proposition was established as long ago as 1846 in. the leading case of Brandao V. Bamett (1846) 12 CL. and F. 787 (1 ).

(6) IN Re Bowes (1886) 33 Ch. D. 5862 where a policy of life assurance was deposited with a memorandum which expressed the deposit as security for all sums due upto a limit of 4,000, North J. held that a lien would not be implied so as to extend the effect of the security beyond the agreed overdraft. The most frequent example of circumstances inconsistent with the genera] lien rs in the case of a deposit expressed to cover an advance for a specified purpose. (See Chitty on Contracts Vol. 2 (24th Ed) Para 2643.

(7) LIEN is the right to retain property belonging to another until a debt due from the latter is paid. This is a possessory lien. It has judicially been defined as an implied pledge.

(8) THE bank is claiming in this case a general lien because they have a right to retain the deposit receipts for all the general balance due from the judgment-debtors. In other words they claim a bankers lien which is a special form of general lien. They assert a right to retain such of their customers property as has come into their hands in the ordinary course of business as a banker.

(9) IN Brandao v. Bernett (12 Cl. F. 787) Lord Cumbell made the classic statement. He said:

"bankers have a general lien on all securities deposited with them as bankers by a customer, unless, there be an express contract, or circumstances that show an implied contract, inconsistent with lien. "

It is contended that the bank has a bankers lien, that the judgment-debtors are their customers, and they handed over to them the deposit receipts as security, that they have these in their hands and are entitled to hold them, not only for the guarantee they issued but also for the general balance due in the overdraft account. In other words it is claimed by the bank that they have a further right as bankers to hold the securities in respect of the overdraft account.

(10) I have no hesitation in rejecting the banks claim. It appears tome that the claim of the bank is inconsistent with the terms of the special contract. The contract was to furnish a guarantee for Rs. 90,000 on the understanding the bank will hold the deposit receipts as a security for the guarantee they give on behalf of their customers. The contract is expressed pithily in those three words "lien to BG 11/80". The charge is limited to the amount of the bank guarantee. After the bank guarantee has been released the bank has no right to hold the security in their hands. They are bound to return it to the customer when he makes a demand on them. It seems to me that the express term of this contract between the banker and the customer is inconsistent with the general lien that the bank claims. It could claim a particular lien for the bank guarantee. But it has no general lier. How that the bank guarantee has been discharged the bank has no right to hold the securities for something more than what was originally agreed upon. Sir Macenzie Chalmers in his Bills of Exchange 3rd ed. (p. 92) says:

"the terms on which securities are deposited may, of course, create merely a particular lien and not a general lien. "

In my opinion the present is a case of particular lien.

(11) THE letter of 17th September, 1980 is on the usual printed form which the bank gets signed from the customers in their daily routine business. It is not addressed to the particular transaction of bank guarantee. The words written by the officer of the bank on the reverse of the deposit receipts are specific and explicit. They are the controlling words. They are decisive of this case. They unambiguously tell us what was in the minds of the parties at that time lien to B. C. That is what the bank wanted from the customer. The customer was prepared to give the security of the deposit receipts to the bank in return of their preparedness to stand surety for him. The written word will prevail over the printed word. The written word expresses truly the intention of the parties. That, to my mind, ought to prevail. The letter of 17-9-80 in the first paragraph says the same thing. The letter has to be read as a whole. It has to be read with the words written in hand on the receipts, namely, lien to BIG 1180. The court has to see the real nature of the transaction. What matters is the substance and not the form.

(12) BANKERs lien. was recognised in common law as part of the Law Merchant. "when a general usage has been Judicially ascertained and recognised, it becomes part of the law merchant, which courts of justice are bound to know and recognise" (Brando v. Barnett per Lord Campbell ). In India the law is codified. Section 171 of the Indian Contract Act deals with the bankers lien. It says that the general lien is subject to a contract to the contrary. I find here a special contract contrary to the general lien claimed by the bank.

(13) APPLYING these principles to this case it appears to me that the bank cannot claim a general right of retainer on the amount of Rs. 90,000. The letter of 17-9-1980 though worded in wide terms has to be read with the deposit receipts Which expressly mention that the deposit receipts are securities for guarantee No. 11/80. The bank cannot apply this money to satisfy the balance on the overdraft account that may be due from the customer. It cannot claim the right to set off the sum of Rs. 90,000 and interest against Rs. 1,17,365. 95. The reason is that there is an express contract between the bank and the customer that the bank shall have a lien OK the deposit receipts against bank guarantee. If the bank guarantee is discharged, as has happened in this case, the customer can say to the bank : "you return my FDRs which I deposited with you against the transaction of guarantee. " The bank will have no answer. The attendant circumstances show that there was an express contract inconsistent with the general Ken. So I must hold that the amount of Rs. 90,000 belongs to the judgment-debtors and can be attached by the decree-holder in execution of his decree against them. So the bank looses the battle. The judgment-creditor wins.

(14) FOR these reasons I dismiss the objections and order the bank to deposit the amount of Rs. 35,000 in this court in a weeks time.