Back
2008(8) Supreme 670
SUPREME COURT OF INDIA
Altamas Kabir and Markandey Katju, JJ.
Radhey Shyam Gupta — Appellant
versus
Punjab National Bank & Anr. — Respondents
Civil Appeal Nos 6440-41 of 2008
Special Leave Petition (C) Nos. 797-798 of 2006
Decided on : 04-11-2008
(2003)7 SCC 522; (1992) 3 SCC 159 – Relied upon.
(b) Gratuity Act, 1972 – Section 5 – In absence of a notification u/s 5, gratuity payable would not be liable to attachment for satisfaction of a Court’s decree. (Para 15)
(1985)2 SCC 1; (1987)1 SCC 551; (2001) 6 SCC 591 – Relied upon.
(c) Provident Funds Act, 1925 – Sections 3 and 4 and section 60(1), Proviso (g), CPC – Retiral benefits, such as pension and gratuity, even after receipt by the appellant, did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code – These cannot be attached. (Paras 17 and 24)
(2003)6 SCC 659; (2003)6 SCC 675 – Relied upon.
(1976)3 SCC 607 – Distinguished.
(d) Code of Civil Procedure, 1908 – Section 115(1) – Revision petition seeking to finally decide the manner in which the decree passed by trial court was to be satisfied, was not maintainable. (Para 24)
(e) Code of Civil Procedure, 1908 – Section 60(1) Proviso (g) – High Court’s direction directing to satisfy portion of the decretal amount from the fixed deposit receipts of the appellant held by the Bank was without jurisdiction. (Para 24)
Facts of case :
1. On 28th May, 1986, the Respondent No.1 Bank sanctioned a loan of Rs.83,000/- to Shri Durga Prasad, the Respondent No.2 herein. The appellant stood guarantee for the Principal Debtor for repayment of the loan.
2. As the loan was not repaid by the Principal Debtor, Durga Prasad, the Bank in 1992 filed Suit for recovery of its dues against the respondent No.2 in his capacity as the loanee and against the appellant in his capacity as guarantor. The suit was decreed by the learned Additional District and Sessions Judge in favour of the respondent No.1 Bank for a sum of Rs.1,10,360/-, together with interest at the rate of 12.5% per annum from the date of institution of the suit till realization.
3. Though warrants for attachment of the Matador were issued, the same were not executed by the Bank on the ground that the vehicle was not traceable and instead the Bank sought attachment of the appellant’s Fixed Deposits with the said Bank made with the amounts received by him by way of pension and gratuity which was granted.
4. This was set aside by the High Court and the amount of Rs.50,000/- out of the appellant’s Fixed Deposit Receipts was directed to be adjusted in the first instance. It was also directed that on the Matador being furnished along with solvent security before the learned Executing Court by the appellant herein, the remaining amount under the Fixed Deposit Receipt would be released to him. It was further directed that on the Matador being produced, the decree holder Bank would be entitled to realize the decretal amount by sale of the Matador and while realizing the balance of the decretal amount, if any, through the solvent security to be furnished by the appellant herein, the Fixed Deposit Receipts, which were accepted to be the appellant’s retirement benefits, were to be returned to him.
5. The Review Petition filed by the appellant was dismissed in limine by the High Court.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Appeal allowed.
JUDGMENT
Altamas Kabir, J. —
1. Leave granted.
2. On 28th May, 1986, the Respondent No.1 Bank sanctioned a loan of Rs.83,000/- to Shri Durga Prasad, the Respondent No.2 herein. The appellant stood guarantee for the Principal Debtor for repayment of the loan.
3. As the loan was not repaid by the Principal Debtor, Durga Prasad, the Bank in 1992 filed Suit No.66 of 1992 for recovery of its dues against the respondent No.2 in his capacity as the loanee and against the appellant in his capacity as guarantor. The suit was decreed on 19th December, 1994, by the learned Additional District and Sessions Judge, Bayana, District-Bharatpur, in favour of the respondent No.1 ‘Bank for a sum of Rs.1,10,360/-, together with interest at the rate of 12.5% per annum from the date of institution of the suit till realization. While decreeing the suit, the trial Court directed as follows :-
“The plaintiff shall be entitled to recover this amount by auction sale of the hypothecated Matador Mahindra FC RRD/1851. The plaintiff shall also be entitled for cost of litigation. If any amount remains to be paid even after auction sale of the Matador, then the same shall be recovered from other properties of the defendants. The suit of the plaintiff is hereby decreed against the defendants in the aforesaid terms.”
4. The aforesaid directions have created some confusion in the execution of the decree.
5. For the purpose of executing the decree the respondent No.1 Bank initiated execution proceedings and though warrants for attachment of the Matador were issued, the same were not executed by the Bank on the ground that the vehicle was not traceable and instead the Bank sought attachment of the appellant’s Fixed Deposits with the said Bank made with the amounts received by him by way of pension and gratuity. The Executing Court allowed the Bank’s application and ordered attachment of the appellant’s Fixed Deposit Receipts, hereinafter referred to as “FDRs”. The appellant moved the High Court against the order of attachment and the High Court while allowing the appellant’s application, directed the trial Court to pass appropriate orders in the light of the specific directions given in the judgment and decree dated 19th December, 1994, for recovery of the decretal amount. The Executing Court by its order dated 1st November, 2002, directed release of the appellant’s F.D.Rs and the pension amount with a further direction that the hypothecated Matador was to be auctioned first in terms of the directions contained in paragraph 11 of the Judgment dated 19th December, 1994. The Executing Court also took the view that amounts paid towards gratuity and pension could not be attached in view of the provisions of proviso (g) of Section 60(1) of the Code of Civil Procedure, hereinafter referred to as “the Code”.
6. The Bank filed a Revision Petition against the said order of the Executing Court dated 1st November, 2002, and also applied for interim orders therein. On 15th October, 2003, when the matter came up before the High Court, the appellant herein was directed to forthwith deposit a sum of Rs.50,000/- with the Bank. He was also directed to furnish the complete details of the movable and immovable properties of the principal debtor with the stipulation that in the event the Bank’s revision petition failed, the amount to be deposited by the appellant herein would be refunded to him with interest at the rate of 9% per annum. Instead of complying with the said direction, the appellant herein moved an application indicating that two Fixed Deposit Receipts belonging to him of over a total value of Rs.50,000/- were lying with the Bank and instead of cash deposit of Rs.50,000/- the said two Fixed Deposit Receipts could be adjusted against the said sum to be deposited and the balance, if any, could be returned to the appellant herein.
7. While disposing of the Revision Petition of the Bank, the High Court noted in its judgment that the appellant herein had undertaken that he wo
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
