Credit card default
JAYAKUMAR RAMASAMI
(Querist) 29 February 2012
This query is : Resolved
I am a pensioner & a senior citizen, 62 years old.Question 1 : if I default on my credit card payments, can the banks legally attach my pension ?
Ghanshyam Prasad
(Expert) 29 February 2012
Legally pension can not be attached to recover dues.
Guest
(Expert) 29 February 2012
Sorry to differ with Shri Ghanshyam Prasad ji. In my views, only gratuity cannot be attached, but pension can attached by an order of the competent court of law, as like attachment of salary.
V R SHROFF
(Expert) 29 February 2012
Lets have citations.
Pension cannot be attached to recover dues.
I agree with the Opinion of H.H. Judge Shri Ghanshyam Prasad ji.
However, once it is deposited in s/bank a/c it becomes his money, & no more pension.
Adv.R.P.Chugh
(Expert) 29 February 2012
Stipends and gratuities being received by government pensioners cannot be attached. S.60 proviso CPC is categorical with respect to that.
I also beg to differ with Ld.Mr.Shroff - if the interpretation talked about is adopted with respect to pension in bank,the very protection is reduced to a nullity.
Selvam Perumal
(Expert) 29 February 2012
Dear Sir,
Under Clause (g) to the proviso of Sub-section 1 of Section 60 of the Code of Civil Procedure, 1908 provides certain categories of properties which could not be subjected to attachment as such pension which cannot be attached.
But at the same time the Banks are entitled to sought for a direction from the Execution Court to the Treasury Officer to remit the amount of two-third pension of the Judgment debtor till realisation of the decreetal amount was held legal.
Because once the amount is lying in the hands of the Pension Officer it is having the legal protection from attaching it but as soon as it was passed over to the Treasury Officer it becomes an “Asset” of the Pensioner as it becomes liable for attachment in view of Sections 51 and 60, Clause (g) of the Code of Civil Procedure, 1908 for which the Hon’ble Punjab & Haryana High Court on 10-04-2002 has rendered a ruling in Ram Kanvar Vs. Ram Ricchhpal Banarsi Dass case which was reported in AIR 2003 P&H 38. (Read the FULL Judgment at: http://indiankanoon.org/doc/1678964/)
I think the above submission will suffice for your query.
I request the learned Experts to correct my submission if any mistakes found in it.
ajay sethi
(Expert) 29 February 2012
pension cannot be attached . in view of judgement of supreme court Union of India v. Jyothi Chit Fund and Finance and Others (1976-II-LLJ-69).
ajay sethi
(Expert) 29 February 2012
Karnataka High Court
Smt. Vasanthi Devi vs Vijaya Bank, Ashok Nagar Branch, ... on 1 January, 1997
Equivalent citations: ILR 1997 KAR 738, 1997 (2) KarLJ 331
Bench: M Anwar
ORDER
1. Heard.
2. This is judgment-debtor's revision directed against the order dated December 22, 1990 Of the Executing Court passed in Execution Case No. 489 of 1989 on its file ordering is sue of warrant attaching the sum of Rs. 300/- per month out of the pension amount payable to petitioner, towards realisation of the money decree which was obtained by the respondent decree-holder against petitioner and which was put in execution in the said Execution Case 101 No. 489 of 1989.
3. The irnpugned order came to be passed by the Court below rejecting the petitioner's objection raised before it, who was respondent in 5 Execution Case No. 489 of 1989, that by reason of Section 11 of the Pensions Act, 1871 (the 'Act' for short) the said pension amount was not liable to attachment in law.
4. The learned Counsel for petitioner, reiterating the said objection, contended that the impugned order of the Executing Court is vitiated gy patent illegality, in that, it is passed in contravention of Section 11 of the Act. In support of his contention reliance was placed on a decision of the Supreme Court in Union of India v. Jyothi Chit Fund and Finance and Others (1976-II-LLJ-69).
5. On going through the relevant provisions under Section 11 of re Act and sub-clause (g) of proviso to Section 60(1) of Civil Procedure Code and also the decision of the Supreme Court in Union of India's case, (supra), I find sufficient legal force and weight in the contention raised for the petitioner by her learned Counsel.
6. The material portion of Section 11 of the Act reads :
"11. Exemption of pension from attachment :- No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court at the instance of creditor, for, any demand against the pen-sioner, or in satisfaction of a decree or order of any such Court".
7. Proviso to Section 60(1) to Civil Procedure Code provides exemption for certain properties indicated under its various clauses from nc attachment and sale in execution of decree. The di relevant clause (g) of this proviso reads :
"60. Property liable to attachment and sale go an in execution of decree. - (1) ......... provided that the following particulars shall not ch be liable to such attachment or sale, pli namely :-
(a) ......... (b) ...... (c) ........
(d) ......... (c) ...... (f) ........
(g) stipends and gratuities allowed to pensioners of the Government (or of a local authority or of any other employer), or payable out of any service family pensi Rnd notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions".
8. Dealing with the same aspect of the matter, the Supreme Court in Jyoti air Fund's case, (supra), formulated a few points for its determination. One of the as :
Is is permissible in law for amounts representing provident fund contributions and pensionary benefits to be attached, having is due regard to Sections 3 and 4 of the Provide Act, Section 11 of the Pensions Act and Section 60(1), provisos (g) and (k) of Civil Procedure Code ?".
9. This point stands answered by the Supreme Court as under :
"A bare reading of Sections 3 and 4 of the Provident Funds Act. 1925, read with Section 2(a) of that Act, will convince anyone that attachment of amounts bearing their descretion are prohibited. It will be a gross vio ation of legal mandates involving public interest if. in the teeth of such injunction, an attachment should still be ordered by a Court".
Further, at para 11 of its decision, Supreme Court has said: 'Moreover Section 60(1), provisos (g) and (k), leave no doubt on the point of non attachability. Tle matter is so plain that discussion is uncalled for". Again at para 12 it is held: 'We may state without fear of contradiction that provident fund amounts, pensions go and other compulsory deposits covered by the provisions we have referred to, retain their die hands of the employee. The reality of the protection is reduced accept the intetreta. is its earlier decision in Union of India v. Radha Kissen Agarwalla and Another, , the Supreme Court has further observed that :
"A bare reading of Radha Kissen makes the proposition foolproof that so long as the amounts are provident fund dues then, 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 Govermnent is a trustee for those sums and has an interest in maintaining the objection in Court to attachment".
10. It, therefore, clearly transpires in the light of the aforesaid legal propositions laid down by the Supreme Court that by virtue of Section 11 of the Act and Section 60(1)(g) of Civil Procedure Code, the pension amount in the of Government payable to respondent is exempt from attachment in law in execution of the decree in question and that the Court below has clearly erred in law in rejecting this objection raised before it by the petitioner/judginent-debtor. Therefore, without more, the order of the Court below is unsustainable in law.
11. Hence, the revision is allowed. The impugned order of the Court below is set aside. Parties to bear their own costs.
Kirti Kar Tripathi
(Expert) 01 March 2012
It is true gratuity and pension can not be attached but this situation is remains till it is in the custody of employer, once it is sent to the bank account such immunity is over and amount in the bank account can be attached against any legal dues.
Shailesh Kr. Shah
(Expert) 01 March 2012
Rightly guided that pension can not be attached.
But one point is to be notice that author is not still default. he said "if".
Guest
(Expert) 01 March 2012
Properties, liable to be attached or not to be attached are listed in Sec.60 of the Civil Procedure Code. Section 60(g) does not make a pension of pension as exempt from attachment. Only gratuity stands exempted as per the said section.
As such, the experts may please like to express their views with reference to the existing section 60(g) of the Civil Procedure Code, as amended w.e.f. 1-2-1977 by the central Act 104 of 1976, which states as follows:
"(g) stipends and gratuities allowed to pensioners of the Government [or of a local authority or of any other employer], or payable out of any service family pension fund notified in the Official Gazette by [the Central Government or the State Government] in this behalf, and political pension."
Deepak Nair
(Expert) 01 March 2012
Best option to avoid any issue is NOT TO DEFAULT.
malipeddi jaggarao
(Expert) 02 March 2012
I agree with the advice of expert Mr.Kirti Kar Tripathi. Once it is credited into your S.B.Account in the Bank, no immunity whatsoever is not available. Moreover, you are a senior citizen and should live peacefully by using your credit card judiciously.
