CHUNI LAL vs JAMMU AND KASHMIR BANK LTD. TH ITS CHAIRMAN AND OTHERS

2026:JKLHC-JMU:517
Sr.No.201
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU




WP(C) No.3777/2025
CM No. 8607/2025



Reserved On:- 06 .02.2026
Pronounced On:- 24 .02.2026
Uploaded On: 24 .02.2026

Whether the operative part or full

judgment is pronounced Full Judgment
-

Chuni Lal, Age 67 years
S/O Basant Ram,
R/O Ward No. 5, Loorkote
Rajouri




….Petitioners


Through :-

Mr. Abdul Qadar Khan, Advocate.

Versus










….Respondent(s)
Through :- Mr. Vipin Gandotra, Advocate.
1. Jammu & Kashmir Bank Ltd,
Corporate Headquarters, M.A. Road, Srinagar
through its Chairman.
2. Authorised Officer,
Jammu and Kashmir Bank Ltd.
3. Branch Head, J&K Bank Ltd.
Janipur, Jammu.
4. Branch Head, J&K Bank Ltd.
Rajouri.


CORAM:


HON’BLE MR. JUSTICE M A CHOWDHARY, JUDGE




JUDGMENT



1. Petitioner, through the medium of this petition, claiming to be a
retired Range Officer, from J&K Forest Department in the year 2018 and
receiving a monthly pension of Rs.35,350/-, which is credited to his account
maintained with J&K Bank Ltd, Branch Rajouri, alleged that to his surprise,
without any prior notice or information to the petitioner, the respondent No.3-
J&K Bank Ltd., Branch Head Janipur, Jammu, deducted an amount of

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Rs.20,000/- from his pension account on 28.05.2025 towards the recovery of
the loan raised by Bandana Kumari & Harjeet Kumar from respondent No.3-
J&K Bank Ltd. Branch Head, Janipur, Jammu, wherein the petitioner had
stood as one of the guarantors on 09.10.2019 for availing Housing Loan
Facility of Rs.15.00 lakhs, which was secured by registered mortgage of

leasehold rights of Land and a house constructed over it.
2. It has been pleaded that respondent No.3 deducted an amount of
Rs.4,64,900/- from petitioner’s pensionary Account No.0020040100012619
maintained with respondent No.4; that the petitioner was informed that
loanees-Bandana Kumari & Harjeet Kumar had defaulted in regular payment
of installment towards repayment of loan obtained by them, as such, the Bank

decided to effect the recovery from the pension account of the petitioner.
3. It has been contended that the decision on the part of the
respondents, regarding deduction from the pension account of the petitioner
and freezing of the pension account by respondent No.4, the petitioner is
aggrieved on the grounds that the deduction from the pension account of the
petitioner towards the recovery of the loans obtained by the borrower is
illegal, as pension of a retired government servant is exempt from such a
recovery even if pension is credited to his pension account; that respondent
No.3 & 4 had deprived the petitioner of his property without any prior notice
and contrary to the principles of natural justice; and finally, it was prayed that
the respondents be directed not to make any deduction from the pension
account of the petitioner towards recovery of the loan obtained by Bandana
Kumar and Harjeet Kumar, and direct them to credit back the amount of

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Rs.4,64,900/- already deducted by them from his pension account illegally to
the pension account of the petitioner. Petitioner has placed on record the
statement of bank, indicating the deductions made from his account, towards

the repayment of the loan as pleaded in the petition.
4. Mr. Vipin Gandotra, Advocate on behalf of respondents, strongly
opposed the plea raised in the petition by the petitioner, particularly, with
regard to maintainability of the petition as well as the liability of the petitioner
as a guarantor to liquidate the loan raised by the loanee, for whom he had

stood as a guarantor.
5. With consensus of the learned counsel for the parties, the matter is
taken up for final consideration in view of legal issues involved in the face of

admitted facts.
6. Learned counsel for the petitioner has vehemently argued that any
amount for the liability of the petitioner as guarantor, cannot be deducted from
his pension account as the pensionary income of the petitioner is protected
under Section 11 of the Pensions Act, 1871, even after it is paid to the
petitioner, the same being exempt of any attachment and recovery. He has
relied upon judgment of the Supreme Court in case titled ‘Radhey Shyam
Gupta V. Punjab National Bank & Anr.’ reported as AIR 2009 SC 930 ,
judgment of Hon’ble High Court of Orissa at Cuttack in WP(C) No.
19648/2025 titled ‘Bharat Chandra Mallick V. Branch Manager, State
Bank of India’ decided on 17.10.2025 and judgments of this court in
CRM(M) No.210/2020 titled ‘ Farooq Ahmad Khan V. Mehbooba Khan’
decided on 11.05.2022 and in WP(C) No. 2794/2021 titled ‘Krishan Singh

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V. Jammu and Kashmir Bank Ltd. & Ors.’ decided on 14.08.2025, in

support of his contentions.
7. Learned counsel for the respondents, ex adverso , argued that the
contention raised by the learned counsel for the petitioner with regard to the
exemption of pension from attachment under Section 11 of the Pensions Act,
1871 is not tenable, as such money cannot be subjected to seizure or
attachment when it becomes due to some pensioner, however, once it is paid
into the account of the pensioner, it can be subjected to attachment, as such,
the action taken by respondent No.3 & 4 for deduction of the amount due and
freezing of the pension account of the petitioner is legal and also it cannot be
questioned in writ jurisdiction, which is otherwise not within the jurisdiction
before this court being a contractual matter. He has relied upon the Apex
Court judgment reported as AIR 1976 SC 1163 and argued that the later
judgment of the Apex Court reported as AIR 2009 SC 930 , by equal strength
of judges, relied upon by the learned counsel for the petitioner being per
incuriam is strictly and correctly applicable to the ratio decidendi and not to
obiter dicta as laid down by three judge bench of Apex Court in a case
reported as AIR 2014 SC 1745 and that the earlier judgment cited by him
holds good to be followed. On the point of non maintainability of the writ
petition, in contractual matters, he relied upon the judgment of the Apex Court

reported as (2000) 6 SCC 293 .
8. A three judge bench of the Apex Court in Civil Appeal titled ‘UOI
Vs. Radha Kissen Agarwalla & Ors’. reported as (1969) 1 SCC 225 , in a case
of identical facts, wherein after retirement of an employee of East India

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Railway, two cheques in his name to Reserve Bank had been sent with regard
to his Provident Fund against whom a money decree had been obtained by the
respondent therein and an order of attachment of cheque lying with the
Reserved Bank of India had been issued for being attached and encashed, held
that compulsory deposit in recognized provident fund account is exempt, from
attachment in execution of decree of Civil Court, and that the attachment of
amount of cheques was contrary to terms of Section 3 of the Provident Fund
Act. The Court had explained that in its view the High Court was in error in
holding that the money in the hands of the Reserve Bank of India had ceased
to be provident fund and was liable to be attached with the observation that so
long as the money remained under the control of Railway administration as
provident fund, it was exempt from attachment. In view of the observations
made by the Apex Court in this judgment, the ratio decidendi of the case is
that so long as the money is with some other person, the same cannot be
subjected to attachment. This judgment had been considered by the Apex
Court in subsequent case titled ‘UOI V. Jyoti Chit Fund & Finance & Ors.,
AIR 1976 SC 1163 and was followed with the observation that till the dues
are actually paid to the government servant, who is entitled to it on retirement
or otherwise, the Govt. is a trustee for those sums and has interest in

maintaining the objection in court to attachment.
9. The Apex Court in a case titled ‘Union of India V. Jyoti Chit Fund

& Finance & Ors.’, AIR 1976 SC 1163 involving the subject, held as follows:
“We may state, without fear of contradiction, that
provident fund amounts, pensions and other compulsory
deposits covered by the provisions we have referred to,

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retain 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 possible be entertained on
this question, the decision in Union of India v. Radha
Kissen Agarwala & Anr. erases them. Indeed our case is
an afortiori 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 them, 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
court to attachment. We follow that ruling and over-rule
the contention”.
10. The aforesaid observation-ruling had been laid down by the Apex
Court on a contention raised by the petitioner-UoI, that it is impermissible in
law for amounts representing provident fund contribution and pensionary
benefits to be attached having due regard to Sections 3 and 4 of the Provident
Funds Act, S. 11 of the Pensions Act and Section 60(1), provisos (g) and (k) of

CPC.
11. The Apex Court has, thus, in both the cases reported as AIR 1969
SC 762 by a bench of three judges and AIR 1976 SC 1163 by a bench of two
judges had taken the same view that until the amount is actually paid to the
person, the same cannot be subjected to attachment before payment to the

pensioners.

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12. In the judgment relied upon by the learned counsel for the petitioner
in support of his case in ‘Radhey Shyam Gupta V. Punjab National Bank &
Anr.’ (AIR 2009 SC 930) different view was taken by the Apex Court.
However, an important point arises for this court as to whether the judgment
passed by a bench of equal or more than equal strength or passed earlier in
time has to be followed or the judgment passed by later bench of the co-

ordinate strength.
13. The three Judge Bench of the Apex Court in a case titled ‘Sandeep
Kumar Bafna Vs. State of Maharashtra & Ors.’ (2014) 16 SCC 623 held that
the per incuriam rule is strictly and correctly applicable to the ratio decidendi
and not to obiter dicta . As such, the judgments contrary to the aforementioned
case relied upon by the learned counsel for the petitioners are of no help, to
contend that the pensionary amount cannot be subjected to attachment from
the account held by the petitioner in a Bank when it has already been credited
to his account from the Govt. account, besides holding that it is not a case that
the pensionary income of the petitioner under his co-extensive liability cannot
be subjected to recovery in consequence to recover the amount, from the
petitioner who had stood as guarantor against a loan having been defaulted by

the loanees.
14. In view of the authoritative judgment of the Apex Court in the case
of Sandeep Kumar Bafna (supra), the earlier judgment which had laid the ratio
decidendi had to be followed as a judicial discipline and the later judgment of
the coordinate bench or of a less strength has to be treated as rule of per
incuriam . The earlier judgments of three benches and two benches passed by

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the Apex Court in view of principle of obiter dicta in the considered opinion

of this court is to be followed on the subject.
15. Viewed thus, it is held that the pensionary amount of the petitioner
having been credited to his account in the bank, can be stated to have been
paid to him and when he had received the same by credit of the amount in his
account, the same can be subjected to attachment with regard to his liability as
a guarantor in a loan case. Viewed thus, the petitioner has failed to make out a

case on this count.
16. The next question, which falls for consideration of this Court, in
regard to the contention of the learned counsel for the respondents is with
regard to plea of non-maintainability of the petition that the writ jurisdiction
does not extend to enforcement of private contractual rights, even if the
opposite party is an authority under Article 12 of the Constitution of India.
The Apex Court in ‘Kerala State Electricity Board & Anr. V. Kurien E.
Kalathil & Ors.’ reported as (2000) 6 SCC 293 and ‘State of Gujarat & Ors.
V. Meghji Pethraj Shah Charitable Trust & Ors.’ reported as (1994) 3 SCC
552 has laid down that the writ jurisdiction cannot be invoked in the cases of
contractual obligations even if the opposite party is an authority within Article

12 of the Constitution of India.
17. Para 10 of the judgment in the case of Kurien E. Kalathil (supra)

being relevant is reproduced as below:
“10. We find that there is a merit in the first contention
of Mr. Rawal. Learned Counsel has rightly questioned
the maintainability of the writ petition. The

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interpretation and implementation of a clause in a
contract cannot be the subject matter of a writ petition.
Whether the contract envisages actual payment or not is
question of construction of contract? If a term of a
contract is violated, ordinarily the remedy is not the writ
petition under Article 226. We are also unable to agree
with the observations of the High Court that the
contractor was seeking enforcement of a statutory
contract. A contract would not become statutory simply
because it is for construction of a public utility and it
has been awarded by a statutory body. We are also
unable to agree with the observation of the High Court
that since the obligations imposed by the contract on the
contracting parties come within the purview of the
Contract Act, that would not make the contract
statutory. Clearly, the High Court fell into an error in
coming to the conclusion that the contract in
question was statutory in nature.”

Para 22 of the Meghji Pethraj Shah Charitable Trust (supra) is reproduced

as:
“22. We are unable to see any substance in the argument that
the termination of arrangement without observing the
principle of natural justice (audi alteram partem) is void.
The termination is not a quasi-judicial act by any stretch
of imagination; hence it was not necessary to observe the
principles of natural justice. It is not also an executive or
administrative act to attract the duty to act fairly. It was as
has been repeatedly urged by Shri Ramaswamy a matter
governed by a contract/agreement between the parties. If
the matter is governed by a contract, the writ petition is not
maintainable since it is a public law remedy and is not

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available in private law field, e.g., where the matter is
governed by a non-statutory contract.”
18. The petitioner had entered into a contract with respondent No. 3,
while offering himself as a guarantor to the loan raised by Bandana Kumar
and Harjeet Kumar, as such, there was a contractual obligation between the
petitioner and respondent-J&K Bank. The Bank in default of the payment of
installments by Bandana Kumari and Harjeet Kumar to liquidate their loan had
deducted the amount from petitioner who was the guarantor from his account
wherein his pension was being credited with respondent no.4 and rightly so, as
the petitioner as guarantor had subjected himself to the deed of guaranty, as
such, the respondent Bank was well within its right to deduct the amount from

petitioner’s account, in view of contractual liability.
19. In view of law laid down by the Apex Court in the case Radha
Kissen Agarwala (supra) and Jyoti Chit Fund (supra), that the amount received
by a pensioner cannot be subjected to attachment and recovery, until that
amount is received by the petitioner, as such, it is held that there is no
illegality in the action of the respondent Bank in deduction of the amounts, in
discharge of his contractual obligation to pay the amount in default of the
loanee/borrower, for whom petitioner had stood as guarantor, from the account

of the petitioner, when his pension had been credited.
20. In view of law laid down by the Apex Court in Kurien E. Kalathil &
Meghji Pethraj Shah Charitable Trust cases (supra) , the writ petition is also
held to be non-maintainable, for contractual obligation of petitioner, as writ

jurisdiction can be invoked in contractual matters.

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21. For the aforesaid reasons and discussions made hereinabove, the
writ petition filed by petitioner is found to be bereft of any merit and substance
and also non-maintainable. The writ petition is thus dismissed alongwith

connected application(s).



Jammu:
24 .02.2026

Raj Kumar





(M.A. Chowdhary)

Judge


Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No

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