Mridul Ch. Gogoi vs Punjab National Bank And 3 Ors
2021 Latest Caselaw 2956 Gua

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GAHC010092912020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRP(IO)/111/2020

            MRIDUL CH. GOGOI
            S/O- LT. M.N. GOGOI, R/O- JAYSAGAR, SIVSAGAR, ASSAM



            VERSUS

            PUNJAB NATIONAL BANK AND 3 ORS.
            HAVING ITS REGD. OFFICE AT 7TH BHIKAJI CAMA PLACE, NEW DELHI
            AND CIRCLE OFFICE FOR NORTH EAST CIRCLE AT NILGIRI MANSION,
            BHANGAGARH, G.S.ROAD, GHY-05, AND NOW THE MERGER BANK OF
            ERSTWHILE UNITED BANK OF INDIA HAVING ONE OF ITS BRANCHES AT
            DHAKUAKHANA, DIST.- LAKHIMPUR, ASSAM, REP. BY THE CHIEF
            MANAGER

            2:THE DIRECTOR OF HEALTH SERVICES
            ASSAM
             HENGRABARI
             GHY-36
             KAMRUP (M)
            ASSAM

            3:THE JOINT DIRECTOR OF HEALTH SERVICES
             SIVSAGAR
             DIST.- SIVSAGAR
            ASSAM

            4:THE BRANCH MANAGER
             STATE BANK OF INDIA
             ONGC COLONY BRANCH
             SIVSAGAR
            ASSAM (BRANCH CODE/NO. 4797

Advocate for the Petitioner   : MR. D CHAKRABARTY
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Advocate for the Respondent : SC, PNB




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                        ORDER

Date : 18-11-2021

Heard Mr. D. Chakraborty, learned counsel appearing on behalf of the petitioner. Mr. A. Ganguly, appearing on behalf of the Punjab National Bank and Mr. A. Sahewalla, appearing on behalf of the respondent no.4 and Mr. D. Upamanyu, learned counsel appearing on behalf of the Health Department, Government of Assam.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 24.01.2020 and 04.05.2020 passed by the Recovery Officer No.1, Debt Recovery Tribunal, Guwahati in OA No.273/2015.

3. I have heard the counsels for both the parties at length. Mr. D. Chakraborty, the learned counsel for the petitioner submits that the challenge to the order dated 24.01.2020 has become infructuous now in view of the fact that the petitioner had already retired. He however challenges the order dated 04.05.2020 on the ground that by the proviso to sub section (2) of Section 28 of the Recovery of Debts and Bankruptcy Act, 1993, the said pensionary benefits as well as provident fund benefits cannot be attached. In this regard he refers to section 60 (1)(g) and 60(1)(k) of the CPC to submit that the pensionary benefits, provident funds, leave encashment and all other dues to which a pensioner is entitled to cannot be attached under the provision of Section 28 of Page No.# 3/6

the said Act of 1993.

4. On the other hand, Mr. A. Ganguly, learned counsel appearing on behalf of respondent no.1, Bank submits that the order passed by the Recovery Officer dated 04.05.2020 ex-parte is permissible from the reading of Section 28(3) of the Act of 1993. He however submits that it is true that pension, pensionary benefits and provident fund as covered under section 60 of the Code of Civil Procedure, 1908 cannot be attached but the said bar only applies till the said is in the custody of the government who is the trustee. Thereupon when it comes to the hands of the pensioner then the bar as per the proviso to section 28(2) and section 60 of the CPC automatically lefts and in that regard he refers to the judgment of the Supreme Court rendered in the case of Union of India Vs. Jyoti Chit Fund and Finance and ors., reported in 1976 (3) SCC 607 as well as the judgment of the Supreme Court rendered in the case of Union of India Vs. Radha Kissen Agarwala reported in (1969) 1 SCC 225.

5. I have heard the learned counsels.

6. From the submissions made by the counsel for the petitioner, it appears from the perusal of section 60(1) (g) and section 60(1) (k) of the Code of Civil Procedure that pension, pensionary benefits as well as provident funds cannot be attached and this bar to attachment continues even in the recovery proceeding under the Recovery of Debt and Bankruptcy Act, 1993 in view of the proviso to sub-section 28(2) of the said Act.

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7. I have also perused the judgment in the case of Union of India Vs. Jyoti Chit Fund and Finance and ors. (supra) wherein the judgment of the Supreme Court in the case of Radha Kissen Agarwala (supra) had been relied upon and followed. The relevant paragraphs 11 and 12 for the sake of convenience is quoted:

"(11) The finer distinction sought to be made by Sri Rohatgi that because the appellant has already retired, therefore, the provident fund and allied amounts have already fallen due and have ceased to possess the complexion of sums "by way of provident fund under sections 3 and 4", is fallacious. On first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the Court's power to attach. Section 2(a) of the Provident Funds Act has also to be read in this connection to remove possible doubts because this definitional clause is of wide amplitude. Moreover, section 60(1), provisos (g) and (k), leave no doubt on the point of non- attachability. The matter is so plain that discussion is uncalled for.

(12) We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retained their character until they reach the hands of the employee. The reality of the protection is reduced to illusory formality if we accept the interpretation sought. We take a contrary view which means that attachment is possible and lawful only after such amounts are received by the employee. If doubts may possibly be entertained on this question, the decision in Radha Kissen erases them. Indeed, our case is a fortiori one, on the facts. A bare reading of Radha Kissen makes the proposition fool-proof that so long as the amounts are provident fund dues than, till they are actually paid to the government servant who is entitled to it on retirement or otherwise, the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in the Court to attachment. We follow that ruling and overrule the contention."

8. A reading of the said paragraph of the above quoted judgment Page No.# 5/6

alongwith Section 60(1) (g) and 60(1) (k) of the CPC and the proviso to sub- section (2) of section 28 of the Act of 1993, it would be clear that the sums which are payable by virtue of Section 60(1), proviso (g) and (k) are non- attachable. However, the non-attachability attached to the pension, pensionary benefits and provident fund continues till they are actually paid by the government and reaches the hands of the pensioner. In other words, until and unless the said pension, pensionary benefits or provident fund reaches the hands of the pensioner or the retired government servant as the case may be, the Bar of non-attachability continues.

9. In view of the above, taking into consideration the provision of Section 60 of CPC read with proviso to sub-section (2) of the Section 28 of the Act of 1993 and the judgments referred to, I am of the opinion that the order dated 04.05.2020 in so far as a lien being created in the bank account of the petitioner being account No.30372008071 of the SBI bank, ONGC Colony branch, Sivasagar is contrary to the said provision in as much as the pension, pensionary benefits and provident fund to which the petitioner is entitled to is yet to reach the hands of the petitioner. It could have been attached once it comes to the hands of the petitioner or in other words it is deposited to the bank account of the petitioner. The lien so created by the impugned order accordingly needs to be interfered with.

10. However, taking into consideration that the respondent no.1. is entitled to an amount as reflected in the certificate along with the interest and the recovery proceedings are still pending before the Recovery Officer, it would be in the interest of justice that the order dated 04.05.2020 of attachment of bank Page No.# 6/6

account is interfered with. The petitioner submits at this stage that he would be entitled to pension, pensionary benefits as well as provident fund from the government and he undertakes not to use the said amount which may come to his Bank Account till such time the recovery proceedings culminates and/or settlement is arrived at whichever is earlier. The petitioner is permitted to use the said Bank Account towards liquidation of the amount payable to the respondent no.1 Bank.

11. With the above observation this petition stands disposed of.

12. In view of the disposal of the instant proceeding the order dated 26.06.2020 is hereby vacated and the parties shall appear before the Recovery Officer on 10.12.2021.

13. No costs.

JUDGE

Comparing Assistant