Dismissed

Shijo Paul v. Canara Bank

Kerala HC15 Feb 2013CRP/73/2013

Case brief

AI extract

What is this about?

The court dismissed the civil revision challenging the maintainability of a suit filed against a bank. It held that initiating simultaneous recovery proceedings under the Revenue Recovery Act does not bar a civil suit, distinguishing earlier precedents and finding no express ouster of civil jurisdiction.

What did the court decide?

The civil revision petition challenging the maintainability of the suit was dismissed.

Shijo Paul Vs Canara Bank — Banking and Recovery | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934

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CRP.No. 73 of 2013 ()

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AGAINST THE ORDER/JUDGMENT IN OS.81/2011 of SUB COURT,THODUPUZHA DATED 03-12-2012

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REVISION PETITIONER(S)/DEFENDANTS:

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SHIJO PAUL, S/O.PAILY PAULOSE AGED 32 YEARS KOCHUPURACKAL, THAZHATTU HOUSE KOCHUTHOVALA KARA KATTAPPANA VILLAGE UDUMBANCHOLA TALUK, IDUKKI DISTRICT.

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PAILY PAULOSE, S/O. PAILY AGED 62 YEARS KOCHUPURACKAL, THAZHATTU HOUSE KOCHUTHOVALA KARA KATTAPPANA VILLAGE UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A. SRI.C.P.REJI

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RESPONDENT(S)/PLAINTIFF:

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CANARA BANK HAVING ITS HEAD OFFICE AT BANGALORE AND HAVING A BRANCH AMONG OTHER OFFICES IN INDIA AT THODUPUZHA REPRESENTED BY ITS CHIEF MANAGER BAIJU K.C., AGED 45 YEARS, S/O.KOCHUKUNJAN THE PRINCIPAL OFFICER OF THE BANK.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J. =========================

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C.R.P.No.73 of 2013

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============================ Dated this the 15^th day of February, 2013

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O R D E R

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Petitioners who are the defendants in O.S.No.81 of 2011 of the

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Sub Court, Thodupuzha challenge maintainability of that suit on the principle of “election” in so far as respondent/bank has already intiated proceedings for recovery of the amount under the Revenue Recovery Act (for short, "the Act") and as per installment facility granted by the Government, petitioners are paying the amount.

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Learned counsel, relying on the decision in Andhra

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Pradesh State Financial Corporation Vs. M/s.GAR Re-Rolling

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Mills and Anr. (AIR 1994 SC 2151) has contended that simultaneous proceedings under the Act and before the Civil Court cannot be initiated.

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The decision relied by the learned counsel was distinguished by this Court in M.Usman Vs. Kerala Financial Corporation & Ors. (2006(2) KLJ 141) . It was held that what is prohibited by the said decision of the Supreme Court is continuation of two alternate proceedings for recovery against the debtor and that there is no bar against initiating both remedies simultaneously and pursuing one after another. In M/s.Transcore Vs. Union of

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C.R.P.No.73 of 2013

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India & Anr. (AIR 2007 SC 712) it is held, referring to the remedies available under the SARFAESI Act and the Recovery of Debts due to Banks and Financial Institutions Act that the doctrine of election would not apply and that remedy under the NPA Act is an additional remedy to the DRT Act. Again, this Court in Lekshmi Enterprises Vs. State of Kerala (2008(2) KLT 2) has held that there is no express provision in the Act standing in the way of proceeding under the Act, for recovery of amount due to a bank for the reason that the said bank has already invoked provisions of the DRT Act or SARFAESI Act.

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In the light of the above decisions, simultaneous initiation of proceedings for recovery of the amount cannot be said to be not maintainable. There is no provision in the Act either expressly or impliedly ousting jurisdiction of the civil Court to entertain the suit once proceeding under the Act is initiated. Hence the contention that the suit is not maintainable since the respondent has initiated proceedings under the Act cannot be sustained.

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Learned counsel submits that petitioners are paying the amount as per installment facility granted by the Government, in that way liability could have been discharged but consequence of institution of the suit in such a situation is that petitioners may be

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C.R.P.No.73 of 2013

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held liable to pay cost of the respondent including court fee paid. If petitioners are entitled to raise a plea regarding liability to pay cost in the suit and they have raised it, that is a matter which the trial court has to consider and decide on the facts and circumstances of the case.

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This civil revision is dismissed.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

Shijo Paul v. Canara Bank

Case brief

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Shijo Paul v. Canara Bank

Case brief

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