Peddada Kuncha Rao, vs The Branch Manager,
2021 Latest Caselaw 1450 AP

     THE HONOURABLE SRI JUSTICE R.RAGHUNANDAN RAO

                 WRIT PETITION No.25174 of 2020

ORDER :

The petitioner had obtained a term loan of Rs.4,98,000/- from

the respondent No.2 on 05.05.2006 after creating an equitable

mortgage over his property. This loan amount was to be repaid in

equated monthly installments of Rs.5,224/-. As the petitioner has

committed default of payment of installments, respondent No.2 filed

O.S.No.85 of 2009 on the file of the Additional Senior Civil Judge's

(FTC) Court, Anakapalli for recovery of Rs.6,84,253/- and a preliminary

decree was passed in the said suit, directing that the amount was to be

recovered by the sale of mortgaged property and to proceed personally

against the petitioner in the event, the proceeds of sale are insufficient

for clearing the debt. The respondent No.2 recovered an amount of

Rs.2,20,000/- by selling the mortgaged property. Thereafter the

respondent-Bank issued an order of 'hold' on the SBI Savings Bank

Account No.10299608911 of the petitioner for recovery of the

remaining money.

2. by the said order of hold, the petitioner has now approached this

Court.

3. It is the case of the petitioner that the petitioner who had retired

on 01.05.1987 was getting pension of Rs.21,560/- per month and the

same is credited into his savings Bank, which is now under the order of

hold. He submits that the money in this account is entirely the pension

amount, which is being paid to the petitioner and as such, the same

cannot be attached. The petitioner relies upon the judgment of the

Hon'ble Supreme Court in Radhey Shyam Gupta vs. Punjab

National Bank and another1 to contend that pensionary amounts are

protected from attachment and any coercive process of recovery and

that this protection would extend to all such amounts aggregated from

the pension of the person.

4. Sri P.Raj Kumar, learned counsel for the respondent-Bank would

submit that the present writ petition is not maintainable as it is a

private contractual dispute and the same would not fall for

consideration before this Court in a petition under Article 226 of the

Constitution of India.

5. The said submission cannot be accepted as the respondent is a

Bank falling within the meaning of the state under Article 12 of the

Constitution of India. Further, there are no disputed facts in the

present case and the action of the respondent-Bank is not in

accordance with the directions of the Hon'ble Supreme Court in Radhey

Shyam Gupata's case. In the said circumstances, the writ petition

would be maintainable.

6. In view of the said decision of the Hon'ble Supreme Court, it

must be held that the petitioner would be entitled to the said

protection.

7. Accordingly, this Writ Petition is allowed setting aside the order of

hold as well as the transfer of the amount available in the petitioner's

account to the loan account of the petitioner and with a further

direction to the respondent-Bank not to interfere with the operation of

the said account by the petitioner.

8. However, this will preclude the respondent Bank from attaching

any amount in the account of the petitioner which does not fall within

(2009) 1 SCC 376

the parameters of pensionery amounts as statute of the Hon'ble

Supreme Court in Radhey Shyam Gupta. There shall be no order as to

costs.

As a sequel, the miscellaneous applications, if any pending, shall

stand closed.

__________________________ JUSTICE R. RAGHUNANDAN RAO

Date : 08.03.2021 SPP

THE HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO

W.P.No.25174 of 2020

Date : 08.03.2021 SPP