Kalidasi Ray(Bhandary) vs Allahabad Bank And Others
2023 Latest Caselaw 4698 Cal

3rd August, 2023
  (D/L No.43)
     (SKB)

                                           W.P.A. 24048 of 2018

                                         Kalidasi Ray(Bhandary)
                                                  Versus
                                        Allahabad Bank and others


                               Mar. Satyajit Mondal,
                               Mr. Amar Nath Sen,
                               Mr. Malay Dhar,
                               Mr. P. K. Ghosh,
                               Mr. Amit Bikram Mahata
                                                     ... for the petitioner.

                               Ms. Sangita Misra
                                               ... for the respondent Bank.

1. Both the writ petitioner and the respondent Bank

(previously Allahabad Bank now Indian Bank) and its

officials are represented by their respective learned

advocates.

2. On behalf of the respondent Bank and its officials an

accommodation has been sought for.

3. Considering the long pendency of the matter and

considering the urgency as involved in the instant

writ petition, prayer for accommodation is considered

and rejected.

4. By filing the instant writ petition, the writ petitioner

has prayed for issuance of writ of mandamus against

the respondent Bank as well as its officials from

withholding the pensionary benefits of the writ

petitioner which are lying in her pension account

being 50320661680 with Shyambasur Chak Branch

in district South 24 Parganas with a further prayer to

direct the Bank authority to allow her to operate her

another account bearing No.50306038968 lying with

Dalanghata Branch in village and Post Office

Ratneswarpur, Diamond Harbour, Dist. 24 Parganas.

5. At the very outset, learned advocate for the writ

petitioner draws attention of this court to page 18 of

the writ petition being Annexure 'P-1' which is the

details of the pension account of the present writ

petitioner lying with the respondent no.1 Bank.

Attention of this court is also drawn to Annexure 'P-

2' being the details of another savings account of the

present writ petitioner with the respondent no.1

Bank with Dalanghata Branch.

6. It is submitted that since the writ petitioner could

not repay her loan, the respondent Bank started a

recovery proceeding under the SARFAESI Act, 2002

which is evident from Annexure 'P-4' and during the

pendency of the said SARFAESI proceeding, the

respondent no.1 Bank most illegally prohibited the

present writ petitioner from withdrawing her pension

from her pension account as well as the money lying

in the other savings account which has been

transferred from the pension account taking

advantage that two such accounts are lying with the

respondent no.1 Bank. It is further submitted on

behalf of the petitioner that it is settled position of

law that a pension account and/or the other deposits

which has been converted from pension account

cannot be prohibited to be withdrawn and even then

the respondent Bank without any authority or

without any order of any competent court of law did

not allow the present writ petitioner to withdraw her

money either from the said pension account or from

the said savings account wherein a sum of

Rs.1,85,000/- has been transferred.

7. In support of his contention, learned advocate for the

petitioner places reliance upon a reported decision of

Radhey Shyam Gupta Vs. Punjab National Bank and

another reported in (2009)1 CHN (SC) 125. The

relevant portion of which is as under:

"24. Having considered the submissions made on behalf of the respective parties, we are inclined to accept Mr. Mentals submission that the order impugned in the revision petition before the High Court did not attract the bar of the proviso to sub-section (1) of section 115 of the Code as it sought to finally decide the manner in which the decree passed in Suit No. 66 of 1992 by the learned Additional and Sessions Judge, Bayana, Rajasthan, was to be satisfied. 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 receipts 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 the Jyoti Chit Fund case (supra) has been considerably watered down by later decisions which have been indicated in paragraphs 15 and 16 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.

26. The High Court, in our view, erroneously proceeded on the basis that a concession had been made by the appellant that he was willing to have the decretal amount adjusted partly form his fixed deposits, which represented his retiral benefits and that he had also volunteered to produce the vehicle before the Bank so that the same could be sold to recover the major portion of the dues. Furthermore, although the Bank was entitled to proceed both against the principal- debtor and the guarantor for recovery of its dues, the mode of recovery was prescribed by the Trial Court, which, in our view, clearly indicates that the Bank should at first recover whatever amount it can from the sale of the

Matador. The right of the Bank to proceed against either the principal-debtor or the guarantor stood restricted by the directions or the Trial Court. Except for recording that the vehicle was not traceable, nothing is recorded in the impugned judgment of the High Court as to what steps were actually taken by the Bank for recovery of the Matador for sale in order to recover its decretal dues. In our view, instead of disturbing the order of the Executing Court, which was passed in consonance with the provisions of the Code of Civil Procedure, the High Court should have directed the respondent Bank and the Executing Court to seriously pursue the recovery of the Matador or against any other property of the principal- debtor, having particular regard to the finding of the Executing Court that the said fixed deposits represented the retiral benefits of the appellant."

8. In course of reply, learned advocate for the

respondent no.1 Bank could not place any scrap of

paper which authorizes the respondent Bank to stop

transaction of a pension account though learned

advocate for the respondent Bank contended that in

the loan agreement, there was a clause by which the

Bank can withdraw its due from the other accounts

of the borrower who is the writ petitioner herein.

9. This court has considered the rival contentions of the

contending parties. This court has also perused the

reported decision of Radhey Shyan Gupta (supra).

10. It is undisputed that account no. 50320661680

lying with Shyambasur Chak Branch of the

respondent no.1 Bank is a pension account and,

therefore, in view of the proposition of law as laid

down in the case of Radhey Shyam Gupta(supra), the

respondent no.1 Bank has no right to create any

obstruction upon the writ petitioner from

withdrawing her pensionary benefits from her

pension account. It also reveals that in account

No.50306038968 which is a savings account lying

with Dalanghata Branch of the respondent no.1

Bank, a sum of Rs.1,85,000/- was transferred from

the pension account of the writ petitioner to the said

savings bank account and in view of the proposition

of law in Radhey Shyam Gupta(supra), the

respondent Bank authority also cannot cause any

hindrance to withdraw the money which has been

transferred from the pension account.

11. In view of such, the instant writ petition is hereby

allowed on contest. the respondent Bank i.e. the

Indian Bank and its other officials especially the

Manager of Shyambasur Chak and Manager of

Dalanghata Branch are hereby directed not to cause

any hindrance to the present writ petitioner in

withdrawing her pension from her pension account

being account no. 50320661680 as well as

withdrawal of Rs.1,85,000/- from the account no.

50306038968 as lying with Dalanghata Branch. The

branch managers of the aforesaid two branches of

the respondent no.1 Bank are further directed to

refund the entire arrear pensionary benefits, if there

be any as payable to the writ petitioner within a

period of 15 days from the date of communication of

this order.

12. With the aforementioned observations, it is made

clear that the time limit as fixed by this court is

mandatory and in the event such order is not

complied with within the time as fixed by this court,

the branch managers of the aforesaid two branches

of the Indian Bank may face necessary consequences

in accordance with law.

13. All the parties are directed to act on the server

copy of this order.

14. Urgent photostat certified copy of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Partha Sarathi Sen, J.)