Antony @ Shaju v. District Collector, Union Bank of India and Others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE9[TH]DAYOFJANUARY2024/19THPOUSHA,1945 WP(C)NO.42499OF2023 ``` ``` PETITIONER: ``` ``` ANTONY@SHAJU,AGED57YEARS S/OANTONY,KUMBULUVELILHOUSE,DEVAGIRI,MUNDIYERUMA KARA,PAMPADUMPARAVILLAGE,UDUMBANCHOLATALUK,IDUKKI - DISTRICT.,PIN685554 BYADVTREESASHAJI ``` ``` RESPONDENTS: ``` ``` 1DISTRICTCOLLECTOR, OFFICEOFTHEDISTRICTCOLLECTOR,CIVILSTATION, KUYILIMALAKARA,IDUKKIVILLAGE,IDUKKITALUK,IDUKKI - DISTRICT,PIN685001 2THAHSILDAR(R.R), REVENUERECOVERYOFFICE,NEDUMKADAMKARA,UDUMBANCHOLA - TALUK,IDUKKIDT.,PIN685554 3DEPUTYTAHSILDAR OFFICEOFTHEDEPUTYTAHSILDARUDUMBANCHOLATALUK, - NEDUMKANADMKARA,IDUKKIDISTRICT.,PIN685553 4UNIONBANKOFINDIA, NEDUMKANDAMBRANCHREPRESENTEDBYITSBRANCHMANAGER, NEDUMKANDOMKARA,KALKKONTHALVILLAGE,UDUMBANCHOLA - TALUK,IDUKKIDISTRICT,PIN685553 5SANDEEPGEORGEK S/OGEORGEMATHEW,AGED35YEARS,KUZHIVELIPARAMPIL HOUSE,PULIKURUMAP.O,THALIPARAMBATALUK,KANNUR - DISTRICT.,PIN670582 ``` ``` SRI.ASPKURUP,SCFORUNIONBANKOFINDIA ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 09.01.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P(C) 42499 of 2023 2 ## **JUDGMENT** The petitioner herein is a co-borrower of an educational loan for a sum of Rs.3.74 lakhs availed on 13.09.2012 from the 4th respondent herein. The said loan was availed for the educational purpose of his son, a certain Abit Antony. As per the conditions of repayment, the loan was to be repaid with interest at monthly rests in 84 equated monthly installments commencing from October 2017, i.e., one year after the completion of the course or six months after getting the job, whichever is earlier. The petitioner asserts that due to unforeseen events, the petitioner was not able to regularly remit the loan installments. It is stated that his son, Sri. Abit Antony, left the country on 11.11.2016 and returned back to India only on 9.11.2017. He states that he left for Abudhabi to secure a job on 01.10.2019 and has not managed to secure a lucrative job. The petitioner asserts that while so the 5th respondent has instituted O.S No. 95/2023 before the Munsiff Court, Kattappana claiming Rs.7,73,152/- together with future interest. An application for attachment has also been filed, and orders have been obtained. It is the specific contention of the petitioner that neither the petitioner nor his son owes any amount to the respondent. It is contended that a suit was instituted on the strength of a balance confirmation note, which is alleged to have been signed by the W.P(C) 42499 of 2023 3 petitioner and his son, Abit Antony, on 16.3.2020. He asserts that no such statement was signed by the son as he left the country on 1.10.2019 and has always been abroad. The document based on which the suit has been instituted is a forged document. It is further stated that the suit is also one barred by limitation. It is further stated that the petitioner has entered appearance in the suit and has raised a contention with regard to the maintainability of the suit. Noticing the contentions raised by the petitioner in the suit, the 4th respondent has requisitioned the initiation of proceedings under the Revenue Recovery Act, 1968 for recovering the amount, and he has now been served with Exts. P5 and P6 demand notices purportedly under Sections 34 and 7 of the Act. The petitioner states that he has responded to Exhibit P5 and P6 by issuing Ext.P7 legal notice. It is on these assertions that this writ petition is filed seeking the following relief: i. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents not to proceed with the revenue recovery proceedings initiated under Ext P5 and P6 until the final disposal of O.S No. 95/2023 pending before the Munsiff’s Court at Kattappana. 2. A counter affidavit has been filed by respondents 4 and 5 wherein, after narrating the sequence of events, it is stated that the present outstanding in the account as of 30.11.2023 is Rs.8,89,059/- and the defaulted arrears W.P(C) 42499 of 2023 4 would come to the tune of Rs.1,85,012/- which excludes future interest and cost. It is stated that the contention that the suit is barred by limitation has no basis. The loan was taken for a period of seven years, with the repayment has been scheduled to commence subsequent to the completion of the course. The repayment was to start from October 2017 and the last installment is to be paid in October 2024. In that view of the matter, the limitation would commence only after the period of the culmination of the loan, which is three years from October 2023. It is further stated that simultaneous proceeding brought under the Revenue Recovery Act is not a prohibited course. 3. A reply affidavit has been filed by the petitioner. 4. Sri. Shaji, the learned counsel appearing for the petitioner, would point out that valid contentions have been raised by the petitioner in the civil Suit. Until the Civil court decides the issue, it cannot be said that any amount is legally due to the Bank. It is further submitted that simultaneous proceedings under the Revenue Recovery Act, while the Civil suit is pending, cannot be sustained. 5. In response, the learned counsel appearing for the respondents submits that the prayer in this petition is limited to the issuance of directions to the respondents not to proceed with the revenue recovery proceedings initiated W.P(C) 42499 of 2023 5 under Exts.P5 and P6 until final disposal of O.S No.95 of 2023. The learned counsel would refer to the law laid down in **Ramachandran H v. Branch Manager, Union Bank of India and Others** (Neutral Citation No.2023/KER/22546) and also the law laid down in **Syndicate Bank v. Sheriff[1] ,** and it is urged that the Bank can resort to the proceedings under the Revenue Recovery Act while simultaneously proceeding with the recovery of amounts from the Civil Court. It is submitted that in that view of the matter, the prayer sought cannot be granted. 6. The sole question raised in this petition is whether there is any prohibition under the law to proceed for recovery of amounts by instituting a suit and simultaneously initiating proceedings under the Revenue Recovery Act, 1968. The said question has been answered against the petitioner in Ramachandran( supra), where it was held as under: 11. Insofar as the 2nd question is concerned, there is no prohibition contained anywhere under law to proceed for recovery of the amount by filing a suit and initiating a proceeding to recover the amount as per the provisions of the Act, 1968, if the bank is entitled to proceed under the provisions of the Act, 1968. There is no case for the petitioner that the bank is not entitled to proceed under the Act, 1968 to recover the loans in question. As per the notification issued under the Act, 1968, the priority scheme loans are notified to enable the bank to make > 1 [2007 (1) KLT SN 63] W.P(C) 42499 of 2023 6 requisition for recovery of the amount due to it under the provisions of the Act, 1968. Moreover, the question with respect to filing of a suit and a simultaneous proceeding initiated under the provisions of the Act, 1968 was considered by a Division Bench of this Court in Syndicate Bank v. Sheriff [2007(1)KLT SN 63], and held that the proceedings in execution of a decree and the proceedings initiated under the Kerala Revenue Recovery Act, 1968, are independent of each other in scope and purport, and contextually, issue of prejudice is irrelevant, as the obvious attempt is to keep off the evil days to the maximum extent and therefore, the discretion of the court cannot be exercised in favour of the petitioner therein and that, the court should not be oblivious of the plight of a decree holder/financier. In State Bank of India v. Kuttappan [1998(2)KLT 130], a learned Single Judge of this Court held that the bank can resort to the proceedings under the Kerala Revenue Recovery Act, 1968 for recovery of amount in spite of a decree passed in favour of the bank by a competent civil court. 12. Moreover, the said question was considered by the Apex Court in the judgment in Transcore v. Union of India [(2008) 1 SCC 125], wherein it was held that the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election, which are repugnant and inconsistent; and after considering the provisions of the Debt Recovery Tribunal Act, 1993 and the SARFAESI Act, 2002, it was held that there is no repugnancy nor inconsistency between the two remedies contained under the aforesaid Acts and therefore, the doctrine of election has no application. ## It was held by this Court that there is no embargo in proceeding under W.P(C) 42499 of 2023 7 the Revenue Recovery Act, 1968, while a suit for recovery of amounts is pending. 7. The period of the loan is 84 months, and the tenure will end only in the month of October 2024. Admittedly, default has been committed, and the outstanding amount as on date is Rs.8,89,059/-. As the matter is pending for consideration before the Civil Court, it would not be proper for this Court to delve more into the said aspect. If the petitioner has a contention that some of the documents produced before the Civil Court are forged documents, it is for him to substantiate the same in Court. 8. In that view of the matter, I am of the considered opinion that the contention raised by the petitioner cannot be sustained under law. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P(C) 42499 of 2023 8 ## **`APPENDIX OF WP(C) 42499/2023`** ``` PETITIONER’SEXHIBITS: ``` ``` ExhibitP1THETRUECOPYOFTHEPASSPORTOFABITANTONY ExhibitP2ATRUECOPYOFTHEPLAINTINO.SNO.95/2023 BEFORETHEHON'BLEKATTAPPANAMUNSIFF'SCOURT DATED7/2/2023 ExhibitP3ATRUECOPYOFTHEBALANCECONFIRMATION GENERATEDFROMTHEPHOTOCOPYOBTAINEDFROM THEMUNSIFF'SCOURT,KATTAPPANAINO.S 95/2023 ExhibitP4ATRUECOPYOFTHEWRITTENSTATEMENTFILEDIN O.S95/2023ON20.11.2023 ExhibitP5ATRUECOPYOFTHEDEMANDDATED26.10.2023 ISSUEDBYTHE3RDRESPONDENTUNDERSECTION34 OFTHEKERALAREVENUERECOVERYACT,1968 ExhibitP6ATRUECOPYOFTHEDEMANDDATED25.10.2023 ISSUEDBYTHE3RDRESPONDENTUNDERSECTION7 OFTHEKERALAREVENUERECOVERYACT,1968 ExhibitP7ATRUECOPYOFTHELEGALNOTICESENTTOTHE 3RDRESPONDENTUNDERSEC80OFTHECIVIL PROCEDURECODEDATED04.11.2023 ExhibitP8ATRUECOPYOFTHEREPLYNOTICESENTBYTHE 2NDRESPONDENTVIDEHISLETTERDATED 25.11.2023 ExhibitP9Atruecopyoftheagreementdated13/9/2012 ```