Dismissed

Smt.Molly Soman v. the Tahasildar (R.R.)

Kerala HC9 Mar 2020WA/388/2020

Case brief

AI extract

What is this about?

The High Court dismissed the writ appeal challenging an order staying coercive recovery proceedings in favor of a 12-month installment plan. The court held that the Revenue Recovery Act is available alongside civil decrees and the requisition was within the limitation period. There were no merits in the appeal, and the equitable jurisdiction was not extended.

What did the court decide?

The writ appeal was dismissed, confirming the valid installment plan granted in the writ petition which stayed coercive recovery proceedings.

Smt.Molly Soman Vs the Tahasildar (R.R.) — Consumer Protection | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941

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WA.No.388 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 38035/2017(D) OF HIGH COURT OF KERALA

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APPELLANT/2ND PETITIONER:

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SMT.MOLLY SOMAN, AGED 43 YEARS, W/O. SOMAN, R/AT MANNARETHU HOUSE, VAYALINUM PADINJARU, KEERUKUZHY, ADOOR, PATHANAMTHITTA DISTRICT - 689 502.

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BY ADVS.SRI.S.JIJI

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SMT.M.M.BABY

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RESPONDENTS/RESPONDENTS & 1ST PETITIONER:

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1 THE TAHASILDAR (R.R.) ADOOR TALUK OFFICE, ADOOR - 689 501.

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2 THE VILLAGE OFFICER, THUMBAMON VILLAGE OFFICE, ADOOR - 689 502.

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3 THE GENERAL MANAGER, KERALA GRAMIN BANK (FORMERLY SOUTH MALABAR GRAMIN BANK), PANDALAM BRANCH, PIN - 689 501.

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4 SMT. MINI SATHEESH, AGED 39 YEARS, W/O. SATHEESH, R/AT POOVATH VEEDU, VAYALINUM PADINJARU, KEERUKUZHY, ADOOR, PATHANAMTHITTA DISTRICT - 689 502.

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R3 BY SRI.JAWAHAR JOSE, SC, KERALA GRAMIN BANK R1 & R2 BY SR.G.P. SRI.T.K.ARAVINDAKUMAR BABU

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.388 of 2020

“C.R.”

JUDGMENT

Dated this the 9^th day of March, 2020

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S.Manikumar, C.J.

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Challenge in this writ appeal is to the correctness of the judgment in W.P.(C)No.38035 of 2017 dated 3.2.2020, by which, the writ court,

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after accepting the submission of the appellant, to pay the outstanding amount to the 3^rd respondent Bank in ten instalments, ordered thus:

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“5. After considering the contentions urged on either side, I am of the opinion that some time can be granted to the petitioners to pay off the amounts due, especially taking note of the nature of the loan availed and the purpose of the same. Accordingly, there will be a direction to the respondents to permit the petitioners to pay off the defaulted amounts in twelve equal monthly instalments. The first of such instalments shall be paid on or before 02.03.2020 and the remaining instalments shall be payable on the corresponding dates of the subsequent months. In case the petitioners remits the entire outstanding amounts with accrued interest due in twelve equal monthly instalments as directed above, the coercive proceedings shall be kept in abeyance.

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However, in case of any default committed by the petitioners in remitting any one of the aforesaid instalments, it would be open to the respondents to resume coercive steps against the property.”

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Being aggrieved, instant writ appeal is filed. One of the

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W.A.No.388 of 2020

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grounds of challenge made in the appeal is that the writ court failed to consider the dictum of the Hon'ble Supreme Court in State of Kerala & Others v. Y.R.Kalliyanikutty & Another reported in 1999 KHC 297 wherein the Hon'ble Supreme Court held that revenue recovery proceedings is not permissible when recovery becomes otherwise illegal.

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Material on record discloses that before the writ court, contention has been made that the recovery proceedings initiated at the instance of the Kerala Gramin Bank (respondent No.3) is barred by limitation.

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To ascertain as to whether the Bank has initiated any civil proceedings, we directed the learned standing counsel for the Bank to get instructions. Reverting, Mr.Jawahar Jose, learned standing counsel for the Bank submitted that the Bank initiated recovery proceedings by filing a civil suit in O.S.No.138 of 2012, against the appellant and others, on the file of the learned Subordinate Judge, Pathanamthitta and after considering the pleadings, evidence and rival submissions, learned Subordinate Judge, Pathanamthitta, by judgment and decree dated 13.2.2015, ordered thus:

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“The plaintiff is allowed to realise the suit amount of Rs.3,51,157/- with interest at the rate of 12% from the date of suit till its realisation.

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The plaintiff is also entitled for the cost of the suit.”

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W.A.No.388 of 2020

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From the materials, it could be seen that the Bank has obtained the judgment and decree in O.S.No.138 of 2012 dated 13.2.2015 from the learned Subordinate Judge, Pathanamthitta and therefore, the contention that the initiation of recovery proceedings is barred by limitation, is rejected, for the reason that it is trite law that the recovery can be initiated within 12 years from the date of the judgment and decree. The only contention to be considered is whether provisions of the Kerala Revenue Recovery Act, 1968 can be invoked for realising the outstanding debt by the Bank.

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Learned counsel for the appellant submitted that by virtue of the dictum laid down by the Hon'ble Apex Court in State of Kerala v. Y.R.Kalliyanikutty (supra), a debt barred under law of limitation cannot be recovered. At the same time, the question with respect to initiation of revenue recovery proceedings under the Kerala Revenue Recovery Act, 1968 was considered and held that if a requisition is made by the concerned institution under Section 69(2) of the Kerala Revenue Recovery Act, 1968, the proceedings are set in motion and thereafter, there can be no limitation at all. Admittedly, the decree passed by the court below is of the year 2014 and that the requisition made is in the year 2017. Therefore, it is amply clear that invocation of the provisions of

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the Kerala Revenue Recovery Act, 1968 is within the period of limitation,

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W.A.No.388 of 2020

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prescribed under Section 69(2) of the Kerala Revenue Recovery Act, 1968. Therefore, we do not find any merit in the contentions so advanced.

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Now the next question raised by the learned counsel for the appellant is that since the Bank has opted for recovery of the amount by resorting to civil proceedings, the Bank has no option to initiate proceedings under the Act 1968. However to that point, learned standing counsel for the respondent Bank invited our attention to the judgment of this court in State Bank of India v. Kuttappan [1998 (2) KLT 130] and Sheriff v. State of Kerala [2005 (1) KLT 873] wherein the said question was considered and held that nothing prevents an institution under Section 71 to proceed in recovery even if they have secured a decree in the civil suit, in order to recover the amounts due to such institution. In that view of the matter, we do not think that the appellant has a case in that regard also.

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8. In Sheriff v. State of Kerala (supra), at paragraphs 4 to 6,

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this court held thus:

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“4. Though this decision was referred to in State Bank of India's case (1998 (2) KLT 130), the principle laid down in the Supreme Court decision was not specifically adverted to. While accepting the fact that it is open to the Bank to proceed under the Revenue Recovery Act and it will not prevent the Bank from proceeding to take recourse to such remedy merely because they

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W.A.No.388 of 2020

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filed an execution petition, at the same time they cannot simultaneously proceed with two parallel proceedings. It is open to the Bank to abandon or give up either of the two courses open to them and to confine to the one unless either of the two proceedings have come to a finality.

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In the present case admittedly the execution petition is still pending. Therefore, it is open to the Bank either to withdraw the execution petition and to recover the amount under the Revenue Recovery Act or to give up the revenue recovery proceedings until the execution proceeding is culminated.

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Since the Bank is proceeding simultaneously, the revenue recovery proceedings will stand stayed and the Bank may proceed to make requisition to the Tahsildar either after the culmination of the execution proceedings or after withdrawing the execution petition, as the case may be and thereafter it will be open to the authorities to proceed in accordance with law.”

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In State Bank of India v. Kuttappan (supra), at paragraph

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12, this court held thus:

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“12. The Courts below granted the plaintiff a decree only on the basis that the Bank was not entitled to invoke the Revenue Recovery Act, having obtained a decree based on the loan. On an interpretation of the concerned Notification, I have held that Bank was entitled to resort to the Revenue Recovery Act. The trial court had itself found that there was no estoppel operating against the Bank. In that circumstance the decree now passed by the Courts below is vitiated by substantial error of law and requires to be interfered with by this Court in Second Appeal.”

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W.A.No.388 of 2020

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Even going by the impugned judgment, it could be seen that in order to pay off the defaulted amount, the appellant has only prayed for sufficient time, which the writ court has taken note of and thus granted 12 equal instalments to pay off the defaulted amount, first of such instalment on or before 2.3.2020 and the remaining instalments on the corresponding dates of the subsequent months. Before the writ court, the appellant has sought for time and now, has preferred this appeal. Thus we find that there are no merit and the equitable jurisdiction also cannot be extended beyond the time provided by the writ court.

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In the light of the above discussion and decisions, writ appeal is

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dismissed.

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Sd/-

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S.Manikumar, Chief Justice

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Sd/-

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Shaji P.Chaly Judge