D.P. Hiremath, J.
1. The respondent, Sundara Shetty, had filed O.S. No. 104 of 1968 before the court of the Civil Judge, Mangalore, against one Ronald Lobo and B.l. Ignato for the amounts due to him on a hire purchase agreement and obtained an attachment before judgment of the immovable properties of B.L. Ignato. The suit came to be decreed on December 16, 1968, and on the execution petition filed by the plaintiff in Execution Case No. 44 of 1970 before the same court, the attached property wa sold in court auction and the plaintiff-respondent himself purchased the same in court sale and the sale was confirmed on april 17, 1971. He was even delivered possession of the property. The defendant present appellant-bank had encumbrance over the property by way of mortgage in its favour dated March 28, 1967, and the sale in favour of the plaintiff was subject to this mortgage. The plaintiff was not aware of any other encumbrance over this property.
2. After he took possession of the property sold to him, the plaintiff in order to discharge the encumbrances of the defendant addressed to it a letter in the month of August, 1971, to inform him the total amounts due under the mortgage over the mortgage of the schedule property and the bank intimated to him that the mortgager, B.L.Ignato, was also a surety to his wife for a sum of Rs. 2,957.77 and, therefore, the said mortgegor was due to pay that surety loan also to the bank. When the plaintiff intimated to the banks denying his liability to pay the surety loan, and bank claimed that he was liable to pay that loan amount a well. Even the amount tendered by the plaintiff due under the mortgage dated March 28, 1967, was refused by the bank. The plaintiff intended to sell away the property and, therefore, he wa constrained to make payment of all the amounts due to the bank, namely, the mortgage debt of B.L.Ignato of Rs. 3, 129.20 and the surety loan of R. 3, 580.77. this payment wa made on August 29, 1972.
3. Having made payment as offered, he instituted the suit against the bank for refund of Rs. 3,580.77 paid by him to the bank on surety loan of B.L.Ignato together with interest at 12% per annum form August, 29, 1972, on the grounds to be stated hereafter: Firstly, he contended that the surety loan advanced by the defendant to the same Ignato and his wife was on January 7, 1970, long after the schedule property was attached before judgment on December 5, 1968. the, the loan given by the defendant subsequent to this attachment was void and there was no liability cast on the plaintiff to pay it back. secondly, the plaintiff was made to pay this amount due under surety loan by coercion as the plaintiff was in need of the title deeds of the schedule property. This amount wa extracted form him under threat of withholding the title deeds knowing full well that the plaintiff could not secure any purchaser without the title deeds. He was not liable to pay the surety loan which was void.
4. The defendant-bank which is now the appellant in this appeal, interalia, contended that it was claiming a charge on the latter transaction also as over at the time of the first transaction as security for the second transaction as well. secondly, there is a banker's lien on the appellant over the title deeds deposited with bank as security for the amounts due and this extended to the second transaction as well. Therefore, the title deeds were being withheld by the bank both lawfully and legally. It had never intended to coerce the plaintiff into making payment by with holding the title deeds. The plaintiff acted under independent legal advice and, therefore, coercion alleged by him is out of question. The bank even pleaded ignorance of attachment before judgment of the suit property in O.S. 104 of 1968. It further pleaded that the position was altered when the parties agreed that the plaintiff was to pay all the due of B.L.Lgnato to the defendant and, therefore, there was a enervation and the plaintiff being party thereto is bound by the altered agreement.
5. It even pleaded that when the plaintiff agreed to receive all title deeds by making payment of the amount due form B.L.Ignato, there was a compromise or settlement of existing disputes and, therefore, the parties are bound by this settlement.
6. The trial court dismissed the hit holding that the loan given by the defendant to B.L.Ignato and his wife on January 7, 1970, was not void that there was no coercion on the part of the bank, but it was a voluntary payment by the plaintiff, that the suit is barred by estoppel. It found that advancement of a surety loan cannot be said to be a private alienation or a transfer of any interest in the property attached. Therefore, section 4, Civil Procedure Code, did not come into operation.
7. The first appellate court on the appeal preferred by the plaintiff allowed it and found that the payment made by the plaintiff was not voluntary but under coercion as the plaintiff was in need of his title deeds for selling his property, that the bank had no. general lien over the securities applicable, and lastly, there is a bailment in respect of the second loan and, therefore, the transaction is hit by section 64, Civil Procedure Code. It also pointed out that when the bakers's lien started in the year 1970, there first appellate court decreed the suit.
8. In this second appeal preferred by the bank, th following substantial questions of law have been formulated:
1. Whether the first appellate court was correct in law in holding that the general lien of the defendant-bank was excluded in the circumstances of the case?
2. Is the finding of the first appellate court on the third issue (farmed in the trial court on the question of coercion) based on no evidence and, therefore, vitiated?
9. The material dated of these transactions not disputed. Section 171 of the Contract Act relating to general lien of bankers reads follows:
'General lien of bakers, factors, wharfinger, attorneys and policybokenrs. - bankers, factorss, wharfingers, attorneys of a high Court and policy-broker may. in the absence of a contract to the contrary, 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.'
10. A banker's lien, when it is not excluded by special contract express or implied, extends to all bills, cheques and money entrusted or paid to him and all securities deposited with it in his character as a banker. It i not necessary that the assignee should have given notice to he bank. There may, however, be circumstances inconstant with the general lien of a banker and the most frequent example of this is a deposit expressed to cover a specified advance. In that event, the lien will not extend beyond the agreed advance which may be an overdraft or the like. However, it the customer knowingly permit the banker to retain the security, a general lien may be implied and its protection may then be claimed in respect of other advances as well. the first appellate court found that the title deeds were given to the bank in the year 1967 for a specific purpose because B.L. Ignato had mortgaged his property and it was in pursuance of that mortgage that he had handed over his title deeds. The contention of the plaintiff was that when the property wa mortgaged, the title deeds were not given as security for other transactions. It also pointed out that there was no bailment of the title deeds at the time of the first mortgage. they were only of the second loan, the same is hurt by section 4, Civil Procedure Code, as the transaction was subsequent to this attachment taken out by the plaintiff of the property before judgment. this reasoning of the first appellate sell for the appellant on a decision of the Punjab High Court in the case of Punjab National Bank Ltd. v. Satya Pal Virmani . The learned judge of the the Division bench of that High Court observed that where a banker has advanced money to another, he has a lien on all activities which come into his hands for the amount of his general balance, unless there is an express contract or circumstances to the contrary. Referring to various authorities cited before it, the High Court said at para 12 of the report that a review of these authorities shows that where a baker has advanced money to another, he has a lien on all securities which come into his hands for the amount of his general balance, unless there is an express contract or circumstances to the contrary. In that case, a in the present case, an argument was raised that thee was a specific contract which circumscribed the lien to the advance of call-loan only. although this allegation was made, there is no evidence in support of it and, therefore, the High Court was unable to accept this special contract which was inconsistent with the general len. In that case, one v had with the bank at Shore a call-loan account and by way of security, he had deposited Government securities of the clause of Rs. 5.00,000. On December 31, 1984, Rs 4,86,148-1-0 was due to the bank on this account. With the consent due form v, a sum of R. 13,31-6-6 was a surplus amount in the hands of the bank. V called upon the bank to pay this surplus amount with interest but the bank refused to pay the amount claiming a general banker's lien on that amount's lien on that amount in respect of certain dues form another bank for whom V and another person had given a guarantee under which each one of them had taken an individual and personal liability to pay any amounts which were due to the bank. It was argued before that High Court that the bankers have no lien on the deposit of a partner on his separate account of r a balance due to the bank form the firm by referring to Grant's Law of Banking seventh edition. Reliance was placed in the cased of Watts v. Christies[1949] 11 Beav 546. In that case, one Wing had an account with the bank and later on he opened another account in the name of a firm of which he was a partner. The firm account was overdrawn to the extent of pound 5,00 for this temporary overdraft. some time later, the firm's account was closed and the leasehold was sold and the proceeds handed over to the baker and Wing was subsequently adjudicated bank rapt and the trustees in bankruptcy sued to recover the surplus of the proceeds of the sale after settlement of the overdraft on Wing's private account. The bank pleaded that the lease was deposited with them in order to secure advances made on both the accounts, i.e.., of Wing and of the partnership, and they claimed to retain the the proceeds of the sale for the purpose of repaying both such advances. It was held that the lease was deposited by Wing merely for the purpose of securing to the bankers had no general lien on the proceeds so as to entitle them to retain the surplus in the first instance, held that upon a true construction of the documents the Lease was deposited to secure the particular overdraft of pound 500, and the contention of the bank's counsel that there was a bargain by which the lien was applicable to the entire account was not sustained. The matters was taken in appeal and Lord Esher M.R. during the course of arguments observed that they have a general lie, but they have no right to take a security given for one purpose and apply it to another. the judgment of Mathew J. wa affirmed by the Court of Appeal observing that prima facie a separate debt cannot be set off against a joint debt either at law or in equity observed that there is no authority for the kbakers having a general lien in a case such as the one that was before them, and the he carefully pointed out that the correspondence made it clear that which had deposited the lease to secure the one particular advance and no more and, therefore, thee case excludes a general lien. though reference was made to thee decisions by the Punjab High Court in the case of Satya Pal , the learned judges observed that in the case before money which the bank held to the credit of the original applicant.
11. What class of securities may be the subject of len is not very clearly defied. In Deus v. Bowsher [1794]5 Term Rep 491, Lord Kenyon C.J. uses first the words 'all the securities' but afterwards says:
'....Whenever a banker has advanced money to another, he has a lien on all the paper securities which come into his hands for the amount of his general balance.'
12. The class of securities covered by these definitions cannot, on the the one hand, be limited to fully negotiable securities. Even Grose, J uses the term 'paper securities'. On the other hand, the general lien cannot be said to extend to all classes of documents, even though they might otherwise be classified as security. In Wylde v. Radford [1863] 33LJ Ch 51, at page 53, Kindersly V.C.expressed the view that a conveyance of land was not subject to the general lien:
'The cases refer to a deposit of documents which are in their nature securities, but there is some ambiguity in the term 'securities'. Anything may of course be deposited, and deeds or plate, after they have been deposited, may be said to be a security; but what is intended is such securities foreign Governments, etc., and the courts have held that if such securities are deposited by a customer with his baker, and there is nothing to show the intention of such deposit one way or the other, the banker has, by custom, a lien thereon for the balance due form the customer.'
13. The following observations of Paget in Law of Banking, at page 500 of the Eigth Edition are useful:
'The better view would seem to be that in the admittedly rare cases in which a banker is entitled to refuse to re-deliver deeds until the depositor's debt to ham is repaid, it is because an equitable charge over the deeds has arisen simultaneously and as a consequence of the implied change of character in which the deeds are held. Lien normally attaches to such securities as a banker ordinarily deals with for his customer, otherwise than for the custody, when there is no question or contemplation of indebtedness on the part of the customer. Normally, deeds of property come into the banker's 0possession either when handed over as security or with the request that they be held for safe custody. Thus they cannot ordinarily be the subject of lien. In the subject of lien. In the second case, if the customer subsequently borrows form the bank, the latter might properly retain the deeds until the debit paid, as the result of a new implied contract taking the deeds out of the category of safe custody and giving the banker a charge by deposit. this however, is not strictly a lien. An obvious example of possession inconsistent with lien s where bearer securities have to be deposited with an authorised depositay, by virtu of section 15 of the Exchange Control Act, 1947, and are deposited no other purpose.
Whether a particular security is in the banker's possession for the purpose of the being deal with by him in his capacity as banker is a question of fact, depending party on the general usage of bankers, and partly on agreement or course of dealing between the banker and the particular customer who owns the security.
It must be assumed that the general lien extends only to the customer's own securities.'
14. It all depends on the intention of the customer. If the owner of land gave to the bank on equitable mortgage by deposit of deeds to secure the then present and future general balance of his account, then certainly the banker would have a general lien over such deeds in respect of the future debt.
15. In th instant case, it is noteworthy that thee is no evidence to show that B.L. Ignato intended that the title deeds of the property attached should be the security for the subsequent debt a well. That indeed is not even the case of the appellant. the title deeds are not in the nature of the securities described by Kindersly V.C. as extracted above. therefore when these title deeds were on account of quotable mortgage of the property for the loan that Ignato had taken, the bank, the bank cannot claim general lien over them for the subsequent surety loan of Ignato and his wife . The view taken by the first appellate court in this behalf is quite consistent with the principles of baker's lien. section 64, Civil Procedure Code, reads as follows:-
'Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.'
16. In the case of Dasharathlal v. Anandkumar, AIR 1951 Nag 311 , it was held that where the interest of the auction purchaser is prejudiced by a private transfer after the attachment of the property covered by the transfer, that transfer is wholly void under section 64. the fact that in the meanwhile, the vendee of the property concerned acquired the interest of the decree-holder would make no difference so far as the auction-purchaser is concerned as, by the ale of the the property in execution, the claim enforceable under the attachment has been enforced . A person liable to satisfy a decree as a aureate can obtain the benefit of section 64 if he purchase the property of the judgment- debtor at the sale held in execution of the decree against the judgment-debtor alone. It is only claimed that there was a surety on of Ignato and his wife subsequent to this attachment. There is nothing to show that there was a transfer of the interest in the property subsequent to the mortgage debt of March 28, 1967. Even the bank pleaded that it was claiming a charge on the latter transaction also because B.L. Ignato had agreed with the bank to tread the title deeds handed over to it at the time of the first transaction also as security for the second transaction. Practically, there is no oral or documentary evidence in this behalf. Therefore, implied because a subsequent loan was taken by Ignato and his hi wife, it doe not follow that there was a private private alienation as contemplated under section 64, Civil Procedure Code. In my view, the fist appellate court was right in holding that the title deeds were deposited for a specific loan and there was no intention on the part of the customer to created a private charge on the property even for the subsequent loan . In such an event, in view of the nature of the security given, the bank cannot claim a general lien on the title deeds deposited with it.
17. The next question is one of coercion alleged by the plaintiff. My attention was drawn to the notice issued to the bank on behalf of the plaintiff dated September 28, 1927, as per exhibit P-4. the relevant in it is as follows:
'When my client offered the amounts due to you under the said mortgage with a view to discharge the liability, but you have refused to accept the same without paying the amounts due form said B.L.Ignato in respect of the surety loan alleged to have been executed by him. I am instructed to state the the said surety loan being subsequent to the attach attachment got effected by my client in the above suit, the surety loan alleged to have been advanced by you on the the charge of the said property is nothing but void under law.... As my client was n need of the title deeds for selling the said property, he was constrained to pay the entire amount as directed by you. the said sum was extracted by you form my client taking advantage of the possession of the title deeds with you and my client wa coerced to pay the same, in spite of the fact that the said claim by client taking advantage of the circumstances as taxed supra.'
18. My attention was drawn to the evidence in this behalf given by the secretary of the defendant-bank as Dw-1. In his cross- examination he stated thus:
'If the plaintiff had not paid the surety loan, we would not have returned the title-deeds. the plaintiff demanded the return of the title deeds in writing by tendering the mortgage money....the plaintiff had come to me and I toad him that unless all the amounts due by Ignato are paid by him, it was not possible for me to return the title-deeds. At the time of making the payment, the plaintiff informed me that he wa not liable to pay the surety loan, as hell had purchased the property attached through the court. When the plaintiff made such a statement, I told him that I was helpless and that I could not part with the documents unless he paid the surety loan.'
19. Relying on this evidence, it has been urged by the respondent - the plaintiff - that this is a clear case of coercion on the part of the bank as the plaintiff was badly n need of the title deeds to sell away the property purchased by him in the auction sale. Even the plaintiff gave evidence that for selling the property purchased by him in court auction he was in need of the documents of title of Ignato and the defendant insisted upon payment of the surety loan also for returning the original documents of title. So he paid the surety loan also. It was only therefore that he was wiling to pay the mortgage loan of the casually but not willing to pay his surety loan. While the trial court very casually brushed aside this evidence as not amounting to coercion on the part of the bank as the plaintiff could as well have obtained certified copies of the deeds, the fist appellate court took it as an instance of the plaintiff of this subsequent surety loan so as to attract the provisions of section 70 of the Contract Act. section 70 reads thus:-
'Obligation of person enjoying of non-gratuitous act. - Where a person lawfully does anything for another person, or delivers anything to him, not intending to do o gratuitously, and such other person enjoys the benefit thereof, the latter is bound to take compensation to the former in respect of, or to restore, the thing so done or delivered.'
20. An instance of such voluntary payment came before this court in the case of M.S.Dvoraj v.S. V. Krishnamurthy, AIR 1969 Mys 350 the plaintiff in that case, acting as power of attorney agent of the defendant, entrusted certain building work to a contractor and paid the balance due to the contractor long after the power of attorney in his favour wa can-celled, as the contractor threatened to us him. the payment was made without the knowledge of the defendant. It was held that the payment to the contractor made by the defendant wa not a lawful payment within the meaning of section 70 of the Contract Act and the plaintiff could not claim imbursement form the defendant. That was a clear case of voluntary payment after he ceased to hold the power of attorney. It is the clear case of the plaintiff that the payment was not voluntary but under coercion. In the case of T.G.M. Asadi and sons v. Coffee Board, AIR 1969 Mys 230, a Division Bench of the court observed that the word 'coercion' occurring under section 72 of the 15 the Contract Act should not be understood in the manner defined by section 15 of the Act and that that word should be understood in it ordinary sense Coercion to which that section refraction' as defined under section 15 of the Contract Act which un corporate a special definition of that word occurring in the preceding section. That exclusive definition cannot assist the interpretation of section 72 of the Act. The observations of Lord Moulton were quoted with approval (at page 230):
'It is impossible to contend that the coercion referred to in this section or in the above illustration is 'with the intention of causing any person to enter into an agreement. 'The word'Coercion' must' therefore, be there used in its general and ordinary sense as an English word, and its meaning, is not controlled by the definition in section 15.'
21. In the case, the Judicial Committee had before them a case in which the plaintiff alleged that he wa the sole proprietor of certain cotton mills and their contents. The defendants who had a money decree against the limited company obtained thereunder an attachment against his said property, took possession and prevented him form working the mills. the plaintiff was n consequence compelled to pay to the defendants under protest the sum claimed by them and ought it s recovery in the suit. The convention that there was no coercion within the meaning of section 15 of the Contract Act was repelled on the ground that the word 'coercion' occurring in section 72 of the Contract Act was used i its general and ordinary sense and that its meaning was not controlled by the definition contained in section 15. These observations were made form the decision in the case of Seth Kanhaya Lal. v. National Bank of India [1913] 40 IA 56 (PC). What creates a liability to make a restitution is the act of coercion which was itself wrongful. A person who pays money to another a the result of compulsion or duress exerted by that other, or because it is exerted form him color official, can recover the money if it could not otherwise have been lawfully demanded form him. The compulsion or duress exerted upon the payer may fall short the commission of an actual tort against him, but nevertheless, still is sufficient for him to claim that the payment was not made voluntarily. the met usual form of compulsion consist in the seizure, or threatened seizure, of the plaintiff's property by way of distress or lien. (Anson's Law of Contract, at pages 633 and 634 of the twenty-fourth edition). In the case of Trikamdas Udeshi v. Bombay municipality Corporation, : AIR1954Bom427 , the petitioner boarded a term-car belonging to the BET undertaking and got out a t Bori Bunder without purchasing a ticket. He wa thereupon called upon by the Traffic Supervisor to pay us of Rs. as penalty. The petitioner paid the fine and obtained a receipt form the supervisor. The receipt itself mentioned that the amount was paid to avoid proceedings in a court of law. His Lordship Justice Chagla (a he then was) held that the petitioner had paid the same in order to avoid a prosecution. He know perfectly well that if he did not pay this sum of R. 5, he would have been prosecuted before a magistrate. It was impossible to suggest that both the parties were so situated that the petitioner could have refused to pay the amount if he so desired. their situations was unequal. The municipality could have dragged the petitioner to a criminal court; there would have been publicity about the prosecution; the petitioner would have been convicted nd would have been compelled to pay a fine. It was to escape these consequences that the petitioner paid the amount. As that was the position, the petitioner could not be said to be in 'partie delicate' with the Bombay Municipality on the question of the payment of Rs. 5.
22. Learned counsel for the appellant has contended that because the respondent had got all along legal advice, he did not make any payment under coercion. The contents of the notice extracted above clearly go to show that the respondent was constrained to pay the amount as directed for the reason that he was badly in need of the title deeds. After the mortgage money was discharged, the defendant-bank has no reason or occasion withhold the title deeds. But it wa compelling payment form the respondent on some other surety loan of which perhaps the respondent him self was not awe and there wa no change for this loan on the property.
23. Therefore, this cannot be considered as a voluntary payment or gratuitous payment as contemplated under section 70 of the Contract Act. The reasoning of the trail court that he could have a well obtained certified copies of the title deeds does not commend itself to reason for the simple reason that a purchaser form the respondent of this property was very legitimately insisting on warranty of title form the plaintiff. the fact that there was a sale certificate in favour of the plaintiff is no ground to hold that there was no coercion because it all depends on how the mind of the plaintiff wa working. When he wanted to sell the property, which he has done admittedly after receiving back the title deeds, he thought himself duty bound to deliver the title deeds to his purchase. Whether the sale certificate alone could have been sufficient for the purpose i not the concern of the court but what exactly the parties thought is a matter that would receive attention. the first appellate court, therefore, was right in holding that there was coercion falling under section 72 of the Contract Act to coerce the plaintiff to pre with the surety loan money due form Ignato and his wife. In that the suit of the plaintiff and I do not not find any reason to interfere with appeal must fail and the same is dismissed. Parties however, to bear their respective cost in this appeal.