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Madhya Pradesh High Court · body

2013 DIGILAW 503 (MP)

Thakur Lal Dhakad v. State Bank of India

2013-04-12

Sujoy Paul

body2013
ORDER 1. This petition is directed against the action of the respondents State Bank of India (SBI) in freezing/seizing bank account of the petitioner. Brief facts necessary for adjudication are as under:- 2. Petitioner is a teacher and is posted in Government Primary School, Vijaypur, District Sheopur (MP). The petitioner’s monthly salary and allowances are regularly credited by the office of the District Education Officer, Sheopur in his saving account No. 53040600892 mainatained by the respondent No. 2. Salary is only means of livelihood for the petitioner and his family. The petitioner has three daughters who are studying in higher classes of different educational institutions. It is the case of the petitioner that when he went to the Bank/respondent No. 2 for taking payment of salary for the month of July, 2011 from said saving account, he was informed that said account is freezed by the respondent No. 2 on 24.6.2011. It is stated that the petitioner’s wife is suffering from serious ailment and petitioner requires money for her treatment. MRI reports of petitioner’s wife is filed as Annexure-P/3. In nutshell, the petitioner submits that his entire salary is deposited in the aforesaid saving acount and if the said account is seized, it results into depriving him from the fruits of salary and leads him to starvation. He submits that in absence of salary from July, 2011, the petitioner is facing great financial hardship. It is difficult for him to run the cart of his family, provide adequate medical facility to ailing wife and pay fees and provide other expenses to his daughters. He submits that aforesaid action of the respondents Bank is without any authority of law and therefore, a mandamus be issued against the respondents. 3. In turn, Mr. M.P. Agarwal, learned counsel for the Bank submits that the petition is not maintainable. Disputed questions of fact are invoived which can be determined by the civil Court. It is stated that the petitioner’s parents Smt. Savitri Devi Dhakad (mother) and Shri Khubiram Dhakad (father) had jointly obtained term loan for purchasing tractor on 15.4.1999 from the respondent No. 3 Bank. The said loan account of petitioner’s parents became irregular. Later-on, the petitioner’s father expired but the petitioner did not pay any heed to regularize the loan account. For this reason, the petitioner’s load account was put on hold. The said loan account of petitioner’s parents became irregular. Later-on, the petitioner’s father expired but the petitioner did not pay any heed to regularize the loan account. For this reason, the petitioner’s load account was put on hold. By placing reliance on Annexure-R/1 it is stated that the petitioner was informed to repay the said loan and therefore, his loan account was freezed. It is further argued by Mr. Agarwal that agreement for hypothecation shows that borrower had given consent for recovery of loan as public money and therefore, it can be recovered from the petitioner. It is stated that the petitioner’s parents signed the said agreement for hypothecation, which contains a clause that in the event loan is not repaid, it can be recovered from the heirs. He submits that the petitioner on the one hand wants to enjoy the property being legal representative and on the other hand wants to avoid repayment of loan liability. He submits that the petitioner being heir cannot avoid the said payment and respondents have not erred in freezing the said account. He relied on the judgment of Allahabad High Court in Radhika Devi and another v. Branch Manager, Bank of Baroda and others, reported in II (1993) BC 326; Delhi High Cout in State of India v. M/s Samneel Engineering Company and Ors., reported in (1997) BC 655 and Jharkhand High Court in Hindustan Malleables and Forgings Ltd. v. Union of India and Anr., reported in III (2004) BC 417 (DB). 4. Mr. VK Bhardwaj, was requested to assist the Court in this matter as Amicus curie. Accordingly, I had advantage of hearing Mr. Bhardwaj, learned senior counsel with Shri Arvind Agrawal, Advocate for the petitioner. Mr. Bhardwaj, also addressed the Court on the aforesaid issue. 5. I have heard learned counsel for the parties and perused the record. 6. First objection of the respondents SBI is that this petition is not maintainable. It is stated that disputed questions of fact are involved which cannot be gone into in this writ proceeding. 7. The petitioner is a teacher and freezed account is his salary account. This fact is not dispute. It is also not in dispute between the parties that the petitioner has larger family liability and he is only bread winner in the family. His entire salary is deposited in the said saving account which is seized by the Bank. 7. The petitioner is a teacher and freezed account is his salary account. This fact is not dispute. It is also not in dispute between the parties that the petitioner has larger family liability and he is only bread winner in the family. His entire salary is deposited in the said saving account which is seized by the Bank. It cannot be also disputed that the respondents Bank is amenable to writ jurisdiction of this Court being “State” within the meaning of Article 12 of the Constitution of India. The petitioner has approached this Court for protection of his fundamental rights including the right to live with dignity. It is stated that because of freezing the account petitioner’s source of livelihood is affected which hit Article 21 of the Constitution. In my opinion, the petition is very much maintainable. The petitioner’s fundamental right flowing from Article 21 is affected and therefore, this writ petition is very much maintainable. In my opinion, there is no disputed questions of fact involved which necessitated this Court to relegate the petitioner to avail alternative remedy. Thus, this objection of the Bank is overruled. 8. The pivotal question to be decided in this case whether the action of the petitioner in freezing the petitioner account on account of nonpayment of loan by his parents is legal, justiciable and permissible in law ? 9. The petitioner admittedly is neither borrower nor the guarantor. His parents had obtained loan from the Bank. The petitioner is not a signatory of loan documents including the agreement of hypothecation. Accordingly, those documents cannot be pressed into the service against the petitioner. Despite repeated queries by the Bench, Mr. M.P. Agrawal, learned counsel for the respondents/Bank is unable to show any enabling provisions which gives powers to the Bank to recover the loan amount of parents from the petitioner. 10. In 2005 (II) MPWN 64 = 2005 MPLJ 500 (Jagdish Prasad Batham v. Union of India and others), this Court disapproved the action of the Bank in stopping withdrawal from the petitioner’s account without his consent. It is held that the petitioner although stood his surety and guarantor to a loan, his saving account cannot be freezed without his consent and without following “due process” 11. In my opinion, the petitioner’s case is on better footing. It is held that the petitioner although stood his surety and guarantor to a loan, his saving account cannot be freezed without his consent and without following “due process” 11. In my opinion, the petitioner’s case is on better footing. The present petitioner is neither borrower nor guarantor and accordingly, his loan account could not have been seized on account of nonpayment of loan by his parents. The Bank may be at liberty to take action on the property which is mortgaged or file civil suit for recovery but in absence of any enabling provisions, they have no right to recover the amount by freezing the petitioner’s saving account. 12. Judgments cited by Mr. M.P. Agrawal, has no application in the present facts and circumstances of the case. In M/s. Samneel (supra), Delhi High Court had discussed various provisions of recovery of debts due to Banks and Financial Institution Act, 1993. The said judgment has no application in the present matter. Similarly, in Radhika Devi (supra), the borrower undertook to repay the loan. Accordingly, Court ordered for repayment of loan in para 8 of the said order. The question involved in the present matter was not addressed by the Court in Radhika Devi (supra). In Hindustan Malleables and Forgings (supra) also, the issue was totally different. In that case it is held that the Bank may direct to open current account of the customer in the Bank. However, the said matter deals with the question of continuance of credit facility to the customer. This judgment has also no application in the present matter. 13. In the considered opinion of this Court, the respondents have erred in freezing the petitioner’s loan account. The said action is without any authority of law. Accordingly, I am unable to approve the said action. 14. Resultantly, the respondents Bank is directed to permit the petitioner to operate the said account forthwith. The petitioner shall be free to operate the said account in accordance with law. However, this order will not preclude the Bank to recover loan of the petitioner’s parents in accordance with law. 15. Petition is allowed to the extend as indicated above. No costs.