Calcutta High Court (Appellete Side)
Soharab Hossain vs The State Bank Of India on 15 March, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
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15.03.2017.
rc
W.P. No.2912(W) of 2017
Soharab Hossain
Versus
The State Bank of India, Kolkata Head Office & Ors.
Mr. Debabrata Karan ... For the petitioner
Mr. Sudip Pal Chowdhury ... For the bank
The petitioner assails an action of the State Bank of India in attaching a pension
account of the petitioner lying with the bank.
Learned advocate for the petitioner relies upon (2009)1 SCC 376 (Radhey Shyam
Gupta Vs. Pubjab National Bank & Anr.) and submits that the pension received from the
employer does not lose its character of a pension in the hands of the employee. The
account maintained by the petitioner is a pension account. Pension receivable by the
petitioner is credited in such bank account. The bank has attached such pension account.
Such action of the bank is wrong.
Learned advocate for the bank relies upon a decision of the Hon'ble Supreme Court
of India reported at AIR 1976 SC 1163 (Union of India Vs. Jyoti Chit Fund and Finance &
Ors.) and submits that pension is attachable. He relies upon a decision reported in AIR
2016 SC 86 (New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.)
and submits that the judgment delivered earlier must be respected and followed.
I have considered the rival contentions of the appearing parties and the materials
made available on record.
The bank has disallowed the operation a pension account. On query from the Court
under what provision of law such disallowance of operation of an account was made,
initially the response from the bank was that the bank had exercised the powers under the
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Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (in brevity "SARFASI Act, 2002"). On a request to the learned advocate for the
bank to identify the provisions of the SARFASI Act, 2002 which was invoked for such
purpose the learned advocate for the bank is not in a position to do so. He however
submits that the bank has exercised the banker's lien.
Radhey Shyam Gupta (Supra) considers Jyoti Chit Fund and Finance & Ors.
(Supra). Radhey Shyam Gupta (Supra) is of the following view :-
"....................................................................................................
33. However, we are also of the view that having regard to proviso (g) to
Section 60(1) of the Code, the High Court committed a jurisdictional error in
directing that a portion of the decretal amount be satisfied from the fixed deposit
reeipts of the appellant held by the Bank. The High Court also erred in placing
the onus on the appellant to produce the Matador in question for being
auctioned for recovery of the decretal dues. In other words, the High Court erred
in altering the decree of the trial court in its revisional jurisdiction, particularly
when the pension and gratuity of the appellant, which had been converted into
fixed deposits, could not be attached under the provisions of the Code of Civil
Procedure. The decision in Jyoti Chit Fund case has been considerably watered
down by later decisions which have been indicated in para 22 hereinbefore and
it has been held that gratuity payable would not be liable to attachment for
satisfaction of a court decree in view of proviso (g) to section 60(1) of the Code.
..............................................................................
35. We also agree with Ms. Shobha that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to section 60(1) of the Code. Except for the decision in Jyoti Chit Fund and Finance case, where a contrary view was taken, the consistent view taken thereafter supports the contentions that merely because of the fact that gratuity and pensionery benefits have been received by the appellant in case, it could not longer be identified as such retiral benefits paid to the appellant."
New India Assurance Co. Ltd. (Supra) is of the view that a judgment delivered in 2002 with regard to a point in issue under the Consumer Protection Act ought to have been respected by the later Bench of the Hon'ble Supreme Court of India. 3
As noted above Radhey Shyam Gupta (Supra) has considered the view expressed in Jyoti Chit Fund and Finance & Ors. (Supra) and is of the view that the consistent view of the Hon'ble Supreme Court of India with regard to the question as to whether a pension received by an employee losses its character upon the same reaching the account of the employee is to be answered in the negative.
In view of Radhey Shyam Gupta (Supra) a pension received by an employee does not loose its character where the same is in the hands of the employee. It is exempt from attachment under the provisions of the Pension Act, 1871. A banker cannot exercise banker lien in view of the provisions of the Pension Act, 1871 over such sum. A banker can exercise its lien on sums coming to its possession in the usual course of its business. A pension account being exempt from attachment through a process of Court cannot be made the subject matter of exercise of bankers lien. A bankers right of lien would not exceed the power of the Court is attach a property in execution of a decree of a Court.
In such circumstances, the order of attachment, if any, in respect of the bank account is set aside. Again on query from Court learned Advocate for the bank is unable to produce any order passed by them to attach such bank account. The Bank will defreeze the account of the petitioner forthwith.
W.P.No. 2912(W) of 2017 is allowed.
There will be, however, no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.) 4