Judgment Letters Patent Appeal No. 688 of 2010 Anant S. Dave, J.—The appellant-Bank has preferred this appeal under Clause 15 of Letters Patent against the judgment delivered in Special Civil Application No. 14196 of 2005 on 16.2.2010 by learned Single Judge, by which, the writ petition filed by respondent herein came to be partly allowed. 2. The short facts to be considered in this appeal are as under: 2.1. The husband of the original petitioner was serving with the Indian Railways and died on 17.5.1992 and thereafter the Office of Financial Advisor and Chief Accounts, Western Railway, Bhavnagar Division, issued Pension Payment Orders including family pension in accordance with pension Rules. That, as per the prevailing Rules, payment of invalid pension was to be paid @ 875/- + relief Rs. 155/-, total Rs. 1012/- (Rupees One Thousand and Twelve Only) w.e.f. the date following the death of the petitioner’s husband for a period of seven years or till attaining the age of 65 whichever is earlier and thereafter pension at the rate of Rs. 450/- + relief was to be paid till the petitioner’s death or remarriage whichever is earlier. The above Pension Payment Order (disbursement portion) was communicated bearing No. Pen/05372/E789/BP/6286 /REV dated 6.2.1989. The above PPO was received by the appellant-Bank. However, late Shri I.K. Purohit, husband of the original petitioner passed away on 17.5.1992 and as per the Rules pertaining to family pension, the amount was to be paid for a period of seven years from 17.5.1992 and thereafter, it was to be reduced. Due to inadvertent error, pension was continued to be paid without any reduction as per the earlier rate. When the bank noticed the above error, a communication was addressed on 20.4.2005 and thereafter also two reminders were sent on 9.5.2005 and 9.6.2005 to the respondent but in the written reply dated 29.6.2005, the respondent contended that no amount is due to the bank and it could not be recovered by en-cashing the fixed deposit lying with the bank. 2.2. According to the appellant-Bank total amount due was Rs. 1,29,599/- and it was withdrawn on two different dates namely on 2.4.2005 Rs. 78,599/- and on 29.4.2005 Rs. 43,000/-. The above total amount of Rs. 1,29,599/- was adjusted against the fixed deposit of Rs. 84,515/- of the respondent lying with the Bank to be renewed. 2.3. 2.2. According to the appellant-Bank total amount due was Rs. 1,29,599/- and it was withdrawn on two different dates namely on 2.4.2005 Rs. 78,599/- and on 29.4.2005 Rs. 43,000/-. The above total amount of Rs. 1,29,599/- was adjusted against the fixed deposit of Rs. 84,515/- of the respondent lying with the Bank to be renewed. 2.3. It is to be noted that the respondent herein had given an undertaking on 19.5.1995 signed by her in presence of bank officers that it will be open for the bank to recover any amount in excess if paid towards pension. 2.4. Inspite of various contentions about lien of the bank over the fixed deposit of the customer and entitlement to recover dues of the Bank and decisions of the Apex Court relied on by learned Counsel for the bank, learned Single Judge held that so far as fixed deposit of the customer is concerned, contention of the learned Counsel for the bank having lien over such fixed deposit was mis-conceived and the bank could have lien upon the general accounts of the customer and not on the fixed deposits. It was also held that the bank could not be allowed to correct its own mistake under the umbrella of lien and the bank would follow procedure in accordance with law and recover dues by filing a suit or undertaking in other proceedings. 3. Mr. J.T. Trivedi, learned Counsel for the appellant-Bank would contend that learned Judge has failed to appreciate that there was an excess payment w.e.f. 17.5.1999 through an inadvertent error and the excess amount paid to the respondent was recoverable. Having undertaken to repay the dues or any excess amount paid by the bank to be recovered, the stand of the respondent not to pay excess amount paid to her through oversight is unfortunate. By relying on concept about general lien commonly known as “right to set off” of a banker on all moneys of its customers on all goods and securities and such lien of the banker arise from contract or portion of law as a matter of course unless rebutted. Learned Counsel further relied on following decisions of the Apex Court: (a) Jammu and Kashmir Bank Ltd vs. Attar-Ul-Nisaand Raja Mohd. Afsal Khan reported in AIR 1967 SC 540 . (b) Krishna Kishore Kar vs. United Commercial Bank and another reported in AIR 1982 Calcutta 62. Learned Counsel further relied on following decisions of the Apex Court: (a) Jammu and Kashmir Bank Ltd vs. Attar-Ul-Nisaand Raja Mohd. Afsal Khan reported in AIR 1967 SC 540 . (b) Krishna Kishore Kar vs. United Commercial Bank and another reported in AIR 1982 Calcutta 62. (c) United Bank of India vs. M/s. A.T. Ali Hussain & Co. and others reported in AIR 1978 Calcutta 169. (d) Firm Jaikishen Dass Jinda Ram and others vs. Central Bank of India through Manager reported in AIR 1960 Punjab 1. 3.1. In view of the above, it is submitted that the learned Single Judge committed an error by allowing the writ petition of the petitioner/respondent herein by permitting the bank to recover dues only for the period preceding three years by considering the period of limitation for recovery of money dues. 4. Per Contra, learned Counsel for the respondent/writ petitioner would contend that the decision of the learned Judge was based on appreciation of law on this subject and rightly rejected contentions of the Bank with regard to general lien over the fixed deposit of a customer. According to learned Counsel for respondent the bank could not have en-cashed fixed deposit to recover the amount of pension paid in excess. That concept of a general lien of a banker would extend in a case of fixed deposit and it is not open for the bank to correct its own mistake. Learned Counsel for the respondent also relied on the decision of the Apex Court in the case of Jammu and Kashmir Bank Ltd vs. Attar-Ul-Nisaand Raja Mohd. Afsal Khan reported in AIR 1967 SC 540 . 4.1. In view of the above, it is submitted that the attempt and approach of the bank while withdrawing and setting of the dues to recover excess amount in a case of a widow pensioner is rightly redressed by leaned Single Judge, do not require any interference by this Court in appeal. 5. 4.1. In view of the above, it is submitted that the attempt and approach of the bank while withdrawing and setting of the dues to recover excess amount in a case of a widow pensioner is rightly redressed by leaned Single Judge, do not require any interference by this Court in appeal. 5. Having heard learned Counsel for the parties, perusal of the record including Pension Payment Order (disbursement portion) by Divisional Accounts Officer, Wester Railways, Bhavnagar, dated 16.9.1988, a letter dated 3.10.1988 addressed by Financial Advisor and Chief Accounts Officer (Pension), Western Railway, Bombay, to the Manager, Main Branch, Bank of India, Janta Chawk, Junagadh, and the details computed as per order dated 28.12.1988 issued by the Divisional Accounts Officer, Western Railway, Bhavnagar, also addressed to the Manager, Bank of India, Junagadh, would reveal that the late husband of the respondent herein was entitled to basic pension of Rs. 857/- + relief Rs. 155/- total Rs. 1012/- for a period of seven years or till attaining the age of 65 years whichever is earlier and thereafter pension @ of Rs. 450/- + relief was to be paid till the death of his wife or remarriage which is earlier. Therefore, in the facts of this case husband of the respondent herein late Shri I.K. Purohit passed away on 17.5.1992 and therefore, the full family pension was to be paid for a period of seven years from 17.5.1992 and thereafter it was to be reduced but even after 17.5.1999, due of inadvertent error pension was paid @ Rs. 1012/- and not as per Rs. 450/- + relief and this error was not of Western Railway, the employer of the late husband of the respondent but of the bank itself. Inspite of communication addressed on 20.4.2005, 9.5.2005 and 9.6.2005 the respondent herein failed to repay the excess amount from the date when it was paid to her, the action of the bank to recover such an excess amount by en-cashing or setting of or adjusting the fixed deposit lying with the Bank cannot be said to be illegal. 6. The decision relied on in the case of Jammu and Kashmir Bank Ltd. vs. Attar-Ul-Nisaand Raja Mohd. Afsal Khan (Supra) relied on by learned Counsels for the parties can be made applicable in the facts of this case and the decision would help the appellant bank rather than the customer respondent herein. 6. The decision relied on in the case of Jammu and Kashmir Bank Ltd. vs. Attar-Ul-Nisaand Raja Mohd. Afsal Khan (Supra) relied on by learned Counsels for the parties can be made applicable in the facts of this case and the decision would help the appellant bank rather than the customer respondent herein. In the above decision, the Apex Court held that the bank would not be able to correct any mistake in the account of any constituent but the bank can certainly correct and adjust the amount towards its dues in case if such mistake has occurred due to banking practice. In the facts of this case, the employer of the bank had not committed any mistake but the amount of pension was over paid by the bank itself and, therefore, the bank has established the above mistake and particularly when the undertaking dated 19.5.1995 was filed by the respondent herein to repay the excess amount, the bank was justified in recovering such amount paid due to inadvertancy. Since the facts on hand are not pertaining to reversing the entries and debiting the account and, therefore, contention of learned Counsel for the respondent-customer of the bank that the bank would not be able to correct any mistake in the account of any constituent would fail. 6.1. We are in agreement with submissions canvassed by learned Counsel for the appellant-Bank that the undertaking dated 19.5.1995 filed by the respondent gives authority to the respondent-Bank to recover the amount due by debiting her pension account or any other account/deposits belonging to her in possession of the Bank. The right of the Bank to appropriate the money, funds and securities of the customer coming into its possession in the course of their dealings for repayment of the customers indebtedness which flows out of the relationship of debtor and creditor and such lien can be enforced and the Bank will be entitled to appropriate the money in view of over payment made to respondent, for which, Western Railway, the employer was not at all at fault. 7. Therefore, considering overall facts and circumstances of the case, allowing the writ petition filed by the respondent herein (original petitioner) in part and permitting the bank to recover the dues only for preceding three years on ground of law of limitation to recover such dues by learned Single Judge cannot be permitted to operate any more. 7. Therefore, considering overall facts and circumstances of the case, allowing the writ petition filed by the respondent herein (original petitioner) in part and permitting the bank to recover the dues only for preceding three years on ground of law of limitation to recover such dues by learned Single Judge cannot be permitted to operate any more. 8. That, the action of the respondent bank (appellant herein) according to us in recovering the dues paid in excess towards the amount of pension to the petitioner (respondent herein) being an administrative and an accounting error is not be interfered with. For the discussion of the law and facts herein above, we quash and set aside the order of learned Single Judge impugned in this appeal. Appeal stands allowed accordingly. In view of the findings given in the judgment, the request for stay of this judgment is rejected. P P P P P