Calcutta High Court (Appellete Side)
Swapna Adhikary vs State Bank Of India And Others on 15 December, 2023
AD-22
Ct No.09
15.12.2023
TN
WPA No. 20666 of 2023
Swapna Adhikary
Vs.
State Bank of India and others
Mr. Gautam Chakraborty,
Mr. Debashish Sarkar,
Ms. Sonali Halder
.... for the petitioner
Mr. Debashis Saha,
Ms. Srabanti Das
.... for the respondent nos.1 & 2
1. The petitioner is the deceased widow of one Dr.
Samir Kr. Adhikari who was an employee with
the CSIR-Central Salt & Marine Chemicals
Research Institute, Bhabnagar.
2. The said employer of the deceased husband of
the petitioner, on the demise of the husband on
May 24, 2023 by an Office Memorandum dated
August 07, 2023 notified that upon the demise of
the petitioner's husband, as per Rule 50 of CCS
(Pension) Rules, 2021, it was decided by the
Competent Authority to sanction the payment of
family pension to the petitioner with effect from
May 25, 2023 till her death or remarriage,
whichever is earlier.
3. Prior thereto, on July 01, 2023 and on July 25,
2023, by two separate communications, the
respondent-Bank had intimated the petitioner
that with reference to the family pension
proposal, two active pension loans are present
under pension bearing account bearing no.
41553768909 (current outstanding Rs. 86,211/-)
and account no. 40438762918 (current
outstanding Rs. 8,39,435/-). In order to start
family pension, it was intimated by the Bank to
the petitioner that the petitioner was to either
close both loans or close at least one loan with
undertaking to continue the existing loan
(maximum one loan) so that the Bank can
proceed for family pension proposal.
4. Learned counsel assails the Bank's action of
withholding the family pension to the petitioner
on the ground that even under the analogy of
Section 60 of the Code of Civil Procedure,
stipends and gratuities allowed to pensioners of
the Government or payable out of any service
family pension fund notified in the Official
Gazette by the Central Government or the State
Government shall not be liable to attachment or
sale even in execution of a decree.
5. Learned counsel places Section 50 of the Code of
Civil Procedure. Sub-Section (2) of the same
provides that where the decree is executed
against the legal representative of a judgment
debtor when the judgment debtor dies before a
decree has been fully satisfied, he shall be liable
only to the extent of the property of the deceased
which has come to his hands and has not been
duly disposed of.
6. By drawing a line of distinction between the
property of the deceased husband and the
petitioner's own entitlement, it is argued that
family pension is given, although on the demise
of the husband of the petitioner, to the petitioner
in her independent right as a widow of the
petitioner and has no nexus with the inherited
property of her husband.
7. Learned counsel places reliance on Section 11 of
the Pensions Act, 1871 which also provides that
no pension granted or continued by Government
on political considerations, or on account of past
services or present infirmities or as a
compassionate allowance, and no money due or
to become due on account of such pension or
allowance, shall be liable to seizure, attachment
or sequestration by process of any court at the
instance of a creditor.
8. Learned counsel places reliance on a judgment of
the Supreme Court rendered in Radhey Shyam
Gupta vs. Punjab National Bank and another,
reported at (2009) 1 SCC 376 where the Supreme
Court observed, inter alia, that the High Court
erred in altering the decree of the trial court
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. It was
observed that the decision in the Jyoti Chit Fund
and Finance case has been considerably watered
down by later decisions which have been
indicated in paragraph no. 22 of the cited
judgment and it had 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. It was also observed
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).
9. It is, thus, argued that even if the Bank alleges
that the petitioner's husband had outstanding
dues by way of loan taken from the pension
account, the Bank cannot assert its rights on the
family pension payable to the petitioner on such
count. In any event, it is contended by the
petitioner that the petitioner disputes the
outstanding dues as alleged by the Bank.
10. Learned counsel for the respondent-Bank
contends that the provisions of Section 60 are not
applicable in the present case, since the instant
matter does not pertain to the claims of the Bank
on the basis of decretal dues. This is not a case
of attachment but the husband of the petitioner
himself had taken a loan not from any other
account but from the pension account itself. As
such, if the petitioner claims the benefit of the
said pension, it is the incumbent duty of the
petitioner first to meet the liabilities of the said
account with the Bank.
11. Over and above, it is argued that the pension
account has been marked as Non-Performing
Asset (NPA) in terms of the concerned guidelines
of the Reserve Bank of India in the meantime for
non-payment of the loans.
12. Thus, it is argued that the ratio relied on by the
petitioner is not applicable to the present case
and the Bank is entitled to withhold the family
pension on the ground of the petitioner having
not cleared off the loans taken by her husband
from his pension account.
13. The point which has arisen for adjudication here
is whether the family pension is a component of
the estate which the petitioner derives by way of
inheritance from her husband.
14. The governing jurisprudence in the field of
pension and gratuity as well as family pension is
clear on the issue. Family pension is not a part
of the estate of the deceased
husband/predecessor-in-interest of the person
who is entitled to the said pension. It is a sort of
subsistence provided to the heir of the deceased
in view of the financial crisis suffered by such
heir on the demise of the original employee. The
said pension is for the upkeep and maintenance
of the heir and not a component of the estate of
the deceased employee. Although the right to get
such a pension accrues on the demise of the
predecessor-in-interest, the family pension is an
independent payment to the petitioner and not a
part and parcel of the estate of the deceased
which devolves on the heir upon such demise. As
such, the argument that the petitioner is required
to meet the loans of the husband of the petitioner
prior to getting the benefit of the estate is not
applicable to the concept of family pension.
15. As to the other aspect of the matter, that is, the
Bank's dues in lieu of loans taken by the
deceased husband allegedly from the pension
account, if the Bank is of the opinion that the
said account has been marked as NPA and there
is an outstanding due in that regard, the Bank
has every option to recover the amount and/or
take appropriate steps in accordance with law in
that regard. However, before obtaining a
decree/award or taking appropriate measures
under the governing statutes, the Bank cannot
claim lien over the future family pension which is
to be disbursed in favour of the petitioner.
16. Even assuming that the husband of the petitioner
took a loan from the pension account which
could not be serviced during his life time, it still
remains a fact that the Bank has to obtain a
recovery of such amount in due process of law.
No provision of law or jural concept in India
entitles the Bank to have a lien on future family
pension to be paid to the heir of the deceased
with regard to a pre-existing loan taken by the
predecessor-in-interest during his life time.
17. As such, the action of the Bank in withholding
the family pension to the petitioner on the ground
that her husband has left outstanding dues with
regard to loan accounts, albeit the same are
pension accounts, is not tenable in the eye of law.
18. As rightly argued by the petitioner, the principle
of Section 60 is applicable to the present case,
although not directly but on a point of analogy.
Section 60 is a higher right where a decree holder
has the benefit of a decree and seeks to
implement the same on the decretal property.
Even in such cases, Section 60 of the Code of
Civil Procedure exempts family pension and
gratuity etc. although the decree holder has a
valid and legitimate decree in his favour, which
can be implemented in law.
19. Section 50 of the Code of Civil Procedure, as
rightly pointed out by the petitioner, does not
entitle the Bank to withhold family pension
which, as discussed earlier, is not a component
of the estate of the deceased. Thus, the Bank
cannot go one step further than that
contemplated in Section 60, which is with regard
to attachment of a property in execution of a
decree, before having a proper award or decree
and/or having taken steps under the due
provisions of law for recovery of the amount.
20. In view of the above observations, the Bank acted
without jurisdiction and de hors its authority in
withholding the family pension of the petitioner
on account of previous loans allegedly taken by
the petitioner's husband. In the event the Bank
is of the opinion that there were such
outstanding loans, the Bank is required to make
a claim in due process of law from the petitioner,
giving a right and opportunity of
representation/hearing and/or payment to the
petitioner and only thereafter can take due steps
in accordance with law in that regard. The
modus operandi adopted by the Bank in the
present case, however, is not acceptable to law or
judicial scrutiny.
21. Accordingly, WPA No. 20666 of 2023 is allowed,
thereby directing the Bank to disburse all due
family pension to the petitioner and to go on
paying such family pension to the petitioner
irrespective of the claims of the Bank in respect
of alleged dues of the husband of the petitioner
regarding pension etc.
22. However, nothing in this order shall preclude the
respondent-Bank from taking due steps in
accordance with law for recovery of the amounts
claimed by the Bank in lieu of the outstanding
dues left by the petitioner's husband. If such
proceedings are taken out by the Bank, the same
will continue without being prejudiced in any
manner by any of the observations made herein.
23. There will be no order as to costs.
24. Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
