Jammu & Kashmir High Court
Cm No. 482/2026 Res vs Jammu & Kashmir Bank Ltd on 24 February, 2026
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Sr.No.202
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.204/2026
CM No. 482/2026 Res
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
Dev Raj, Age 69 years
S/O Kanshi Ram,
R/O Gagian, R S Pura,
Jammu-181102
....Petitioners
Through :- Mr. Ayushman Kotwal, Advocate.
Versus
1. Jammu & Kashmir Bank Ltd, through
CEO & Managing Director,
Head Office, M.A. Road, Srinagar.
2. Jammu & Kashmir Bank Ltd.
Branch Head, Kullian, Jammu.
3. Jammu & Kashmir Bank Ltd.
Branch Head, R.S. Pora, Jammu.
4. Gagandeep Choudhary S/O Sudershan Kumar,
R/O Baspur, R. S. Pura, Jammu
....Respondent(s)
Through :- Mr. Vipin Gandotra, Advocate.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner, through the medium of this petition, claiming to be a
retired Field Assistant from Agricultural Department in the year 2016 and
receiving a monthly pension of Rs.36,856/-, which is credited to his account
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maintained with J&K Bank Ltd, Branch R. S. Pura alleged that to his surprise,
without any prior notice or information to the petitioner, the respondent No.3-
J&K Bank Ltd., Branch Head R. S. Pura, Jammu, deducted an amount of
Rs.50,000/- from his pension account on 25.08.2025 towards the recovery of
the loan raised by respondent No.4- Gagandeep Choudhary from respondent
No.2- J&K Bank Ltd. Branch Head, Kulliyan, Jammu, wherein the petitioner
had stood as one of the guarantors on 09.03.2018 for repayment of Cash
Credit Facility of Rs.15.00 lakhs for meeting the working capital of loanee’s
business under the name and style as M//S GEE ESS Traders Baspur, R. S.
Pura, Jammu, besides other guarantor, namely Sudershan Kumar.
2. It has been pleaded that respondent No.3 had also made three more
similar deductions of Rs.15,000/-, Rs.15,530/- and Rs.16,000/- on 18.11.2025,
09.11.2025 and 15.01.2025 from the pension account of the petitioner and thus
a total amount of Rs.96,530/- stand deducted till date; that on enquiry from
respondent No.3, the petitioner was informed that respondent No.4 had
defaulted in regular payment of installment towards repayment of loan
obtained by him and, as such, the Bank has 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 No.1 to 3, in particular, respondent No.3 regarding deduction
from the pension account of the petitioner, 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 after if
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pension is credited to his pension account; that respondent No.3 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 respondent No.4 and direct them to
credit to the pension account of the petitioner the amount of Rs.96,530/-
already deducted by them from his pension account illegally. Petitioner has
placed on record the copy of the deed of guaranty whereby petitioner- Dev
Raj, besides one Sudershan Kumar has stood as guarantor for the loan raised
by respondent No.4 Gagandeep Choudhary, besides statement of bank
indicating the deductions from his account towards the repayment of the loan
as pleaded in the petition.
4. Mr. Vipin Gandotra, Advocate on behalf of respondents 1 to 3,
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
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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 V. Jammu and
Kashmir Bank Ltd. Jammu & Ors.‘ decided on 14.08.2025, in support of his
contentions.
7. Learned counsel for the respondents No.1 to 3, 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 for deduction of the amount due in favour
of respondent No.2 is legal and also it cannot be questioned in writ
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
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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. 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,
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”.
9. 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
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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.
10. A similar matter came up for consideration before a three judge
bench of the Apex Court in Civil Appeal titled ‘UOI Vs. Radha Kissen
Agarwalla & Ors‘. reported as (1969) 1 SCC 225, wherein after retirement of
an employee of East India 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
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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.
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.
12. 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) had taken a different view. 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 cannot be subjected to recovery in
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consequence to recover the amount, from the petitioner who had stood as
guarantor against a loan having been defaulted by the loanee.
14. In view of the authoritative judgment of the Apex Court in the case
of Sandeep Kumar Bafna (supra), the earlier judgment who 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 judgment of three benches and two benches passed by
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
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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
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 theWP(C) No. 204/2026 Page 9 of 11
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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
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 No2,
while offering himself as a guarantor to the loan raised by respondent No.4, 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
respondent no.4 to liquidate his loan had deducted the amount from petitioner
who was the guarantor from his account wherein his pension was being
credited with respondent no.3 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 cases 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 pensioner, 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
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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 (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.
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).
( ) (M.A. Chowdhary)
Jammu: Judge
24.02.2026
Raj Kumar
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
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