Dismissed

K.Chandran Pillai v. State of Kerala and Others

Kerala HC16 Dec 2014WP(C)/4998/2011

Case brief

AI extract

What is this about?

Dismissing a writ petition challenging recovery proceedings for Rubber Cess, this Court held that the underlying civil dispute regarding performance guarantee and defalcation between the petitioner and KSRTC must be adjudicated by the Civil Court. While denying relief, the Court allowed the petitioner to clear the tax liability in five monthly instalments to stay coercive steps. No merits were dec

What did the court decide?

Permission granted to clear tax liability in five equal monthly instalments; coercive recovery steps stayed pending payments; writ relief otherwise declined.

K.Chandran Pillai Vs State of Kerala… — Constitutional and Fundamental Rights | Kerala HC (2014)

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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 P.R.RAMACHANDRA MENON

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TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936

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WP(C).No. 4998 of 2011 (Y)

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PETITIONER:

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K.CHANDRAN PILLAI, AGED 63 YEARS, USHUS, KURUVIKKONAM, KARUPPOOR VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY SECRETARY, (EXCISE DUTY) RUBBER BOARD, KOTTAYAM-686 001.

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2. DISTRICT COLLECTOR,

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THIRUVANANTHAPURAM - 695 001.

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3. DEPUTY TAHSILDAR, REVENUE RECOVERY, NEDUMANGAD - 695 541.

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4. KERALA STATE ROAD TRANSPORT

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CORPORATION, TRANSPORT BHAVAN,

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THIRUVANANTHAPURAM,

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REP. BY ITS MANAGING DIRECTOR - 695 001.

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*ADDL. R5 IMPLEADED

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5. THE SECRETARY(EXCISE DUTY), RUBBER BOARD, KOTTAYAM-686 002.

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ADDL. R5 IS IMPLEADED AS PER ORDER DATED 9.3.2011 IN IA.3853/2011.

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R1 & ADDL.R5 BY ADVS. SRI.V.ABRAHAM MARKOS

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SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) R2 & R3 BY SENIOR GOVT. PLEADER SRI.SHYSON.P.MANGUZHA R4 BY SRI.P.C.CHACKO, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 4998 of 2011 (Y)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 : PHOTOCOPY OF REGISTRATION CERTIFICATE ISSUED TO THE SMALL SCALE INDUSTRIAL UNIT OF THE PETITIONER.

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EXHIBIT P2 : PHOTOCOPY OF AGREEMENT DATED 18.5.05 ENTERED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.

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EXHIBIT P3 : PHOTOCOPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT AS PER SECTION 34 OF THE ACT.

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EXHIBIT P4 : PHOTOCOPY OF DEMAND NOTICE DATED 5.6.10 AS PER SECTION 7 OF THE ACT TO ATTACH THE MOVABLE PROPERTY.

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EXHIBIT P5 : PHOTOCOPY OF REPRESENTATION SUBMITTED BEFORE THE 4TH RESPONDENT.

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EXHIBIT P6 :	PHOTOCOPY OF MRI SCANNING REPORT OF THE PETITIONER.
EXT. P6(A) :	PHOTOCOPY OF MRI SCANNING REPORT OF THE PETITIONER.
EXHIBIT P7 :	PHOTOCOPY OF REPRESENTATION DATED 27.1.2011 SUBMITTED BEFORE THE 2ND RESPONDENT.
EXHIBIT P8 :	PHOTOCOPY OF ACKNOWLEDGEMENT OF RECEIPT OF EXHIBIT P7 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9 :	TRUE COPY OF THE JUDGMENT IN OS.NO.1371/2009 DATED 10.10.2013 OF SUB COURT, THIRUVANANTHAPURAM.

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RESPONDENT'S EXHIBITS:

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EXT. R4(A) : TRUE COPY OF THE PLAINT DATED 25.11.2009 IN OS.NO.1371/2009 FILED BY THE 4TH RESPONDENT AGAINST THE PETITIONER.

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EXT. R4(B) : TRUE COPY OF THE I.A.NO.4993/2013 IN OS.NO.1371/2009 ON THE FILE OF THE SUB COURT, THIRUVANANTHAPURAM.

/TRUE COPY/

P.S. TO JUDGE

mbr/

P.R.RAMACHANDRA MENON, J.

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W.P.(C) No. 4998 of 2011

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Dated this the 16^th day of December, 2014

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J U D G M E N T

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The petitioner has approached this Court with the following reliefs:

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“i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2^nd respondent to consider Ext.P7 and recover the amount from the 4^th respondent in the capacity of Garnishee;

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ii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4^th respondent to return the amount to the petitioner which was retained towards performance guarantee;

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iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3^rd respondent to consider Ext.P5 and pass orders and not to proceed till a decision is taken on Ext.P7 by the 2^nd respondent;

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W.P.(C) No. 4998/2011

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iv. Issue any other appropriate order or direction, which this Honourable Court deems fit to grant in the facts and circumstances of the case.”

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The grievance of the petitioner is mainly in respect to the coercive proceedings taken at the instance of the additional 5^th respondent for realisation of the amount of about 2.84 lakhs towards 'Rubber Cess' for the period from 2005 to 2009. The case of the petitioner is that, even though there is no dispute with regard to the claim made by the additional 5^th respondent, the petitioner is not in a position to satisfy the same in view of the ongoing dispute between the petitioner and the 4^th respondent, for the balance payment to be effected to the petitioner in respect of the various supplies of 'Tread Rubber' made at different points of time. The petitioner has also sought for intervention by the 2^nd respondent- the District Head of the

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W.P.(C) No. 4998/2011

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Revenue, by passing appropriate orders on Ext.P7, referring to the pendency of dispute between the petitioner and the KSRTC. The concerned respondents have filed counter affidavit/additional counter affidavit/statement as the case may be and the petitioner has filed a reply affidavit as well.

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Heard both the sides in detail.

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The learned counsel for the petitioner submits that the petitioner was running a small scale industry engaged in the manufacture and sale of 'Tread Rubber' and pursuant to Ext.P2-work order awarded to the petitioner, he was supplying 'Tread Rubber' at different points of time. By virtue of the terms agreed, the petitioner had to deposit a sum of Rs.4.7 lakhs as security deposit, which is still remaining at the hands of the 4^th respondent. In respect of the supplies effected, only 80% used to be released and the balance 20% was retained as performance guarantee. A total sum of about 55 lakhs is still to be cleared, to be

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W.P.(C) No. 4998/2011

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released to the petitioner. Several requests were made in this regard but turned to be futile. The unit came to be closed in the year 2009 and the petitioner is lying paralysed, living at the mercy of his daughter. On receipt of the notice issued at the instance of the additional 5^th respondent, referring to various steps under the R.R. Act, the petitioner has approached this Court seeking for a direction to be given to the 2^nd respondent to consider and pass appropriate orders on Ext.P7, simultaneously seeking a direction to the 3^rd respondent to consider Ext.P5 and pass appropriate orders till a decision is taken on Ext.P7, by the 2^nd respondent .

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The learned standing counsel for the KSRTC submits that, as per Ext.P2, the quality of the product had to be maintained assuring a minimum mileage of 26,000 Kms. In the very same proceeding, it was clearly stipulated

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W.P.(C) No. 4998/2011

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that the retention amount (20%) will be released only according to assessment of the final performance of the materials and any loss due to shortfall in the guaranteed mileage will be realised on pro-rata basis. The learned counsel further submits that two supplies were effected by the petitioner; first one on 18.10.2005, which could obtain only a mileage of 70.53% and in respect of the next supply effected on 9.10.2006, it could generate a mileage of only 69.91%. By virtue of the shortfall as above, the KSRTC was put to great loss. Under such circumstances, the Civil Court has already been moved by filing O.S.No.1371/2009 which is pending before the Sub Court, Thiruvananthapuram. It is also stated that the suit was dismissed for default once, but an I.A. has already been filed seeking to have the same restored.

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After hearing both the sides, this Court finds that

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the dispute between the petitioner and the KSRTC which is

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W.P.(C) No. 4998/2011

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the subject matter of O.S. No.1371/2009, cannot form the subject matter of the present Writ Petition and since the issue is pending before the Civil Court, the 2^nd respondent does not have any jurisdiction to deal with the issue. The parties have to work out their remedies before the Civil Court.

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Coming to the claim put up by the 5^th respondent,

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leading to the R.R. Notices, it is seen that there is no

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dispute with regard to the extent of liability to be cleared to the said respondent. In such circumstances, this Court finds that the petitioner is not entitled to have any relief in the Writ Petition.

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In the above circumstance, interference is declined. Writ Petition is dismissed. However, considering the particular facts and circumstances, the petitioner is permitted to clear the liability to the additional 5^th

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W.P.(C) No. 4998/2011

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respondent by way of 'five' equal monthly instalments; the first of which shall be effected on or before the 15^th of January, 2015, followed by similar instalments to be effected on or before the 15^th of the succeeding months. Subject to this, the coercive steps shall be kept in abeyance for the time being. If any default is committed, the benefit given will automatically stand withdrawn. It is made clear that this Court has not expressed anything with regard to the merits of the case or the rights and liberties of the

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parties concerned.

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Sd/P.R. RAMACHANDRA MENON, JUDGE

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jjj

K.Chandran Pillai v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

K.Chandran Pillai v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

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