NAZIR AHMAD KUCHAY vs JAMMU AND KASHMIR BANK LTD.(Banks)

Court
Jammu and Kashmir High Court

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR



FAO No. 10/2020



Reserved on: - 04.11.2026
Pronounced on: - 13 .11. 2026
Uploaded on: - 13.11.2026

Whether the operative part or full
judgment is pronounced: - Full.



…. Appellant(s)
NAZIR AHMAD KUCHAY

Through: - Mr. Aamir Latoo, Advocate

V/s


JAMMU AND KASHMIR BANK LIMITED

Through: - Mr. Rabinder Singh, Advocate

CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE



JUDGMENT


01. The appellant, a retired police personnel has approached this Court with
the appeal in hand to assail the order dated 02.11.2020, for short referred to as
rd
“impugned order”, passed in file No. 52/M, by the learned 3 Additional
District Judge, Srinagar, for short the “trial Court”, whereby the application for
grant of interim relief of the appellant has been dismissed.
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document
FAO No. 10/2020 Page 1 of 6

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FACTUAL MATRIX
02. The appellant stood as a guarantor to respondent No. 4, in seeking
financial assistance from respondent No. 2. The said respondent failed to repay
the requisite installments constraining the respondent No. 2, to deduct the same
from the Bank Account of the appellant, who had, by then, retired from the
active Government service and was managing his livelihood on the pensionary
benefits.
03. Upon the appellant gain knowledge about such financial deductions, he
approached the respondent No. 2, and apprised him about the factum of his
superannuation and his dependence on the pensionary amount. The said request
was entertained by respondent No. 2, and appellant was assured that no further
amount would be deducted from his pensionary Bank Account. However, the
promise turned out to be a mere eye wash, as the respondent No. 2, continued
to deduct amount from the pensionary Bank Account of the appellant.
04. The appellant thereafter was constrained to file a civil suit before the trial
Court for recovery of money and injunction. The said suit was accompanied by
an application for interim injunction.
05 . The learned trial Court considered the matter and passed the impugned
order after hearing learned counsel for the parties, refusing the grant of interim
relief.
06 . Aggrieved of the impugned order, the appellant has filed the instant
appeal seeking setting aside of the impugned order as also a restraint upon
respondent No. 2, from recovering the loan amount credited to respondent No.
4, from the pension Bank Account number of the appellant bearing No.
0134040600000184.
Mohammad Yaseen Dar
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authenticity of this
document
FAO No. 10/2020 Page 2 of 6

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SUBMISSONS OF LEANRED COUNSEL FOR THE PARTIES.
07. Learned counsel for the appellant submits that the respondent No. 2, is
not justified in law to affect any recoveries from the Bank Account of a retired
Government employee, the same being only source of sustenance for him and
his family.
08 . Learned counsel for the appellant in support of his submissions referred
to and relied upon the Judgment of Supreme Court delivered in case titled
“Radhey Sham Gupta Vs. Punjab National Bank” AIR 2009 SC 930 and
Judgments of this Court delivered in cases titled Farooq Ahmad Khan Vs.
Mehbooba Khan , bearing CRM(M) No. 210/2020 decided on 11.05.2022 and
J&K Bank Limited and Anr. Vs. Chander Udey Singh , bearing CM(M) No.
156/2022, decided on 01.08.2025 at Jammu Wing. The learned counsel has also
referred to the Judgment of High Court Orissa at Cuttack delivered in case titled
Bharat Chandra Mallick Vs. Branch Manager State Bank of India.
09. On the contrary, the learned counsel for the respondent Bank submits
that the appellant as a guarantor to an individual, who secure financial
assistance is liable along with the borrower to repay the loan amount under the
principle of joint and several liability recognized in contract law and Banking
practice. Learned counsel for the respondent Bank further submits that
respondents have not done any illegality that may warrant judicial interference
as rightly declined by the trial Court. Learned counsel for the respondents
referred to and relied upon the Judgment of Supreme Court delivered in case
titled Union of India Vs. Jyoti Chit Fund and Finance , reported as AIR 1976
SC 1163.
ANALYSIS
Mohammad Yaseen Dar
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FAO No. 10/2020 Page 3 of 6

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10. Heard learned counsel for the parties, considered the submissions made
and perused the material made available, particularly the impugned order.
11. It would be appropriate to reproduce the operative portion of the
impugned order in the first instance.
“ 27. Once people enter into legal and solemn engagements or agreements
with each other or with the institutions, they must honor those agreements
and not resile therefrom. When a bank advances loan to a borrower and a
guarantor se-cures the repayment of that loan, the guarantor incurs a
liability to repay the loan which is co-extensive with that of the borrower.
The guarantor would prima facie be found to have entered into a contract
of guarantee with the bank to repay the loan in case of default of the
borrower. He cannot but perform that contract on the default committed by
the borrower in the repayment of loan. Consistent with the foresaid
discussion and the settled legal position this Court would find that it cannot
grant the plaintiff the interim relief that he has sought in the application.
The application would deserve dismissal. It is accordingly dismissed and so
disposed of. However, this order and the observations that this Court has
made herein shall not affect or be construed to affect the merits of the suit
in any wise or prejudice the trial of the suit. Registry shall compile the
application so disposed of and make it part of the main file.”

12 . Although the trial Court has passed a detailed order and made the
exhaustive analysis, however, the same does not appeared to be based on the
sound reasoning and the true spirit of law.
13. This Court is of the considered opinion that the guidance in these kinds
of matters is required to be sought from the Judgment delivered by the Supreme
Court in Radhey Sham Gupta case Supra , whereby the authoritative principle
in respect of pension and other retiral benefits has been laid down, which
specifies the said benefits to be protected from the attachment and coercive
recovery measures. This Court also in Farooq Ahmad Khan supra and J&K
Bank Limited and Anr. Vs. Chander Udey Singh , supra has affirmed the said
legal position and held that the amount received as pension by a retired
Government employee is insulated and protected from the coercive recovery
measures.
Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document
FAO No. 10/2020 Page 4 of 6

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14 . The appellant, admittedly, is a senior citizen and retired Government
employee managing his and his family’s sustenance on the sole income of
pension. A pension is a regular payment made to a Government employee upon
his superannuation as a financial assistance so that the said Government
employee does not feel dependent on someone else and he is protected from
vagrancy and destitution in his olden days. The said benefit is a welfare
measure aimed at to secure the interests of the retired employee and his family,
which cannot be subjected to coercive recovery measures on the failure of a
borrower to whom the said retired employee stood as a guarantor to repay the
financial assistance received by him that too at the time when the said retired
employee Government employee was in active service and was maintaining a
different Bank Account at a different branch.
15. Having said that this Court does not preclude the respondent Bank from
securing its debt from the principal borrower who are left free to proceed
against the borrower in this behalf by whatever legally permissive means they
can opt for.
16. In view of what has been said hereinbefore, the appeal is allowed and the
impugned order is set aside. The respondent Bank is restrained from recovering
any amount from the appellant’s pension Bank Account as a recovery towards
the repayment of financial assistance obtained by respondent No. 4. Insofar as
the relief of refund is concerned, the same would effectively be adjudicated
upon and decided by the trial Court being of evidentiary value, therefore,
appellant is given liberty to pursue said relief before the trial Court. It goes
without saying that the trial Court should decide the matter exclusively on its
Mohammad Yaseen Dar
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authenticity of this
document
FAO No. 10/2020 Page 5 of 6

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merits without getting influenced by any of the observations made by this Court
in the Judgment.
17. Disposed of on the above lines along with all connected CM(s).
18. Registry shall convey this order to trial Court as well as respondents 1
and 2 for compliance.

( Moksha Khajuria Kazmi)
Judge
SRINAGAR
13.11.2026
“Mohammad Yasin Dar”

Whether the Judgment is speaking: Yes/No
Whether the Judgment is reportable: Yes/No










Mohammad Yaseen Dar
I attest to the accuracy and
authenticity of this
document
FAO No. 10/2020 Page 6 of 6