A.R. Sujil and others v The Manager, State Bank of India (formerly State Bank of Travancore) Zonal Office, Ernakulam; The Manager, State Bank of India, Thoppumpady Branch, Kochi; The District Collector, Ernakulam; Special Tahsildar (Revenue Recovery), Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** ## **FRIDAY, THE 10TH DAY OF MAY 2019 / 20TH VAISAKHA, 1941** ## **WP(C).No. 23810 of 2017** ## **PETITIONERS:** - **1 A.R.SUJIL AGED 45 YEARS S/O RAJAN, THUNDIYIL HOUSE, PAI ROAD,PERUMPADAPPU, KOCHI.6** - **2 MADHUSOODANAN S/O THANKAPPAN, VELUTHEDATHU HOUSE,PAI ROAD, PERUMPADAPPU, KOCHI.6** - **3 C.R UDAYABHANU S/O RAMAKRISHNAN, CHIRAYIL HOUSE, PAI ROAD,PERUMPADAPPU, KOCHI.6** - **4 P.R SUNIL KUMAR S/O RAMAKRISHNAN, PATHIPARAMBIL HOUSE,PAI ROAD, PERUMPADAPPU, KOCHI.6** - **5 T.B. DAYALAL S/O BHUVANENDRAN, THALAMUTTAM HOUSE,PAI ROAD, PERUMPADAPPU, KOCHI.6** **BY ADVS. SMT.P.K.NANDINI SMT.JISHAMOL CLEETUS SRI.A.P.JAYARAJ (ANJILIKKAL) SRI.JUBYRAJ.A.P** ## **RESPONDENTS:** - **1 THE MANAGER, STATE BANK OF INDIA STATE BANK OF INDIA, (FORMERLY STATE BANK OF TRAVANCORE), ZONAL OFFICE,ERNAKULAM.PIN.682016.** - **2 THE MANAGER STATE BANK OF INDIA, THOPPUMPADI BRANCH, KOCHI.5, PIN. 682005.** **3 THE DISTRICT COLLECTOR ERNAKULAM. PIN.682030. 4 SPECIAL TAHSILDAR (REVENUE RECOVERY) KOCHI, PIN. 682001. BY ADV. SRI.M.JITHESH MENON** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.2.2019, THE COURT ON 10.5.2019 DELIVERED THE FOLLOWING:** ## **V.G.ARUN, J.** ----------------------------------------------W.P.(C) No.23810 of 2017 ----------------------------------------------Dated this the 10[th] day of May, 2019 ## **JUDGMENT** The petitioners had availed a loan of Rs.5,70,000/from the first respondent bank in the year 1995 for purchasing a stage carriage bus under the Prime Ministers Rozgar Yojana Scheme. The period fixed for repayment of the loan was five years, i.e up to the year 2000. From April 1995, when the repayment commenced, up to June, 1997, when the last payment towards loan was made, a total amount of Rs.2,18,897/- was remitted by the petitioners. Thus, the loan stood defaulted from 1997. As part of its efforts for recovery of the balance amount, the first respondent bank resorted to revenue recovery proceedings and seized the vehicle purchased by the petitioners with the loan amount. Simultaneously, the bank initiated criminal proceedings against the petitioners, which ultimately ended in Ext P1 judgment of acquittal. In Ext P1 judgment it was observed that, over and above the amount of Rs.2,18,897/- W.P.(C) No.23810 of 2017 4 remitted directly by the petitioners, a further amount of Rs.73,083/- was remitted during the course of the revenue recovery proceedings, to ward off the coercive steps. Much later, to be precise, 22 years from the date of availing the loan, 19 years from the date of default in repayment and 17 years from the date on which they were acquitted in the criminal case, the petitioners were served with Exts P2 to P6 notices issued under Sections 7 and 34 of the Kerala Revenue Recovery Act, on 9[th] and 10[th] of January, 2017. Even though the petitioners submitted objections against the notices, primarily on the ground that the revenue recovery action sought to be initiated is barred by limitation, the 4[th] respondent repelled the objections stating the reason that once a requisition is received from the District Collector, the subordinate officer has no authority to stall, or to refuse to proceed with, the recovery. Being aggrieved by the revenue recovery proceedings initiated as per Exts P2 to P6 and the rejection of their objections as per Ext P9, the petitioners W.P.(C) No.23810 of 2017 5 have filed the instant Writ Petition. 2. The principle contention urged in the Writ Petition is that the claim against the petitioners, sought to be realised under Exts P2 to P6, is time barred and hence the revenue recovery proceedings is illegal. It is contended that the Kerala Revenue Recovery Act merely provides a process for speedy recovery of amounts due and does not create any new right. That, the person claiming recovery cannot seek to recover amounts which are not legally recoverable or take away the plea of limitation available to the petitioners in a suit or other legal proceedings, by resorting to the provisions of the Revenue Recovery Act. In support of this contention Smt.P.K.Nandini, the learned counsel for the petitioners placed reliance on the decision of the Hon'ble Supreme Court in **State of Kerala and others** v **V.R.Kalliyanikutty Amma and another (AIR 1999 SC 1305)** . 3. Sri.Jithesh Menon, the learned counsel for respondents 1 and 2 sought dismissal of the Writ Petition on W.P.(C) No.23810 of 2017 6 the sole ground that the petitioners had suppressed the material fact that they had earlier approached this court challenging the revenue recovery proceedings by filing OP No.16952 of 1998 and that the original petition was dismissed under Annexure-A1 judgment. The learned counsel contended that even though the requisition under Section 69(2) of the Revenue Recovery Act was submitted before the District Collector and forwarded to the 4[th] respondent Tahsildar well within time, the recovery based on such requisition was deliberately delayed by the 4[th] respondent, which fact was taken note of even in Ext P1 judgment. It is pointed out that even after Ext P1 judgment, repeated reminders were sent to respondents 3 and 4 and finally by Annexure-B letter dated 19.1.2012, the 3[rd] respondent informed the bank that the revenue recovery requisition had been returned to the 3[rd] respondent District Collector on 28.2.2002 itself. Annexure-C is the copy of a letter issued by the 3[rd] respondent to the 4[th] respondent W.P.(C) No.23810 of 2017 7 pointing out that the revenue recovery requisition, which is alleged to have been returned in 2002, was not available at the office of the 3[rd] respondent. In the statement filed on behalf of respondents 1 and 2, it is stated that due to the recalcitrant attitude of the 4[th] respondent, the bank was forced to submit a fresh requisition dated 20.10.2016, which had resulted in Exts P2 to P6 notices being issued to the 4[th] respondent. It is hence contended that Exts P2 to P6 are not belated/time barred, but are a continuation of the recovery proceedings initiated at the instance of the bank way back in the year 1998. 4. With respect to the allegation that the filing of the earlier Original Petition, which resulted in Annexure-A judgment being rendered by this Court, was deliberately suppressed, the petitioners, in their reply affidavit, has stated that such non-disclosure was not wilful. It is submitted that the earlier revenue recovery proceeding was closed on payment of amount of Rs.73,083/-, as was W.P.(C) No.23810 of 2017 8 informed by the then Tahsildar. It is submitted that since the petitioners were under the _bona fide_ impression that the revenue recovery proceedings against them was closed, they did not pursue OP No.16952 of 1998 and consequently, was not aware of Annexure-A judgment. The explanation offered by the petitioners being acceptable and since Annexure-A judgment does not have any impact on the legal question mooted in this Writ Petition, I am of the opinion that the failure on the part of the petitioners to mention about the earlier Original Petition and Annexure-A judgment does not amount to material suppression of fact. 5. The question as to whether, a time barred debt can be recovered under the provisions of the Revenue Recovery Act was considered extensively by the Apex Court in _**Kalliyanikutty Amma**_ 's case(supra). After a detailed analysis of the relevant provisions under the Kerala Revenue Revenue Recovery Act, 1968, especially Sections 69, 70 & 71 therein it was held by the Apex Court that under the Kerala W.P.(C) No.23810 of 2017 9 Revenue Recovery Act, the process of recovery would start with a written requisition issued in the prescribed form by the Collector of the District under Section 69(2) and that all claims which are legally recoverable and are not time barred on that date can be recovered under the Act. After considering the object of Section 71, with specific reference to the words “amounts due”, it was found that “amounts due” under Section 71 are those amounts which the creditor could have recovered had he filed a suit. Based on the said finding it was held that the claims under Section 71 of the Kerala Revenue Recovery Act, which are time barred on the date when the requisition was issued under Section 69(2) are not “amounts due” and cannot be recovered under the said Act. 6. In the light of the law, as laid down by the Hon'ble Apex Court in _**Kalliyanikutty Amma'** s_ case, the question to be considered is whether the requisition under Section 69(2) issued by the first respondent bank in the instant case is W.P.(C) No.23810 of 2017 10 time barred or not. The period of limitation for recovery of amounts due is three years, as provided under Article 113 of the Limitation Act. Admittedly, the first requisition was issued in 1998 well within the period of limitation. The contention of the first respondent is that the notices under challenge are issued in continuation of the first requisition. If that be so, the notices cannot be interfered with on the ground of limitation. Moreover, Section 69 (6) empower the issuing officer to modify the requisition issued under Subsection 2 from time to time and that the requisition so modified shall be the authority of the Collector or the authorised officer to modify the demand. The question is, whether Exts P2 to P6 notices were issued in continuation of the first requisition or whether they are fresh requisitions. The answer to this question is available in the statement filed on behalf of respondents 1 and 2, wherein it has been clearly stated as follows: W.P.(C) No.23810 of 2017 11 “Accordingly, the bank had submitted a fresh requisition dated 20.10.2016, based on which Exts P2 to P6 notices were issued by the 4[th] respondent.” 7. A perusal of Exts P2 to P6 reveals that the requisition number is RR/2016/13408/7. As such there cannot be any doubt that Exts P2 to P6 were issued based on a fresh requisition made by respondents 1 and 2 in the year 2016, which, by no stretch of imagination, can be termed as a requisition made within three years of default. In such circumstances, I have no hesitation to hold that Exts P2 to P6, which are time barred notices, as well as the proceedings based on such notices are illegal and hence liable to be interfered with. Consequently, the Writ Petition is allowed by quashing Exts P2 to P6 notices. Sd/- **V.G.ARUN, JUDGE** cms W.P.(C) No.23810 of 2017 12 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER IN C.C NO.337/2005 DATED 6.1.2009.** - **EXHIBIT P2** **TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE 4TH PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE 5TH PETITIONER.** - **EXHIBIT P7** - **TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONERS AGAINST NOTICES UNDER SECTION 7 RR ACT.** - **EXHIBIT P8 TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONERS AGAINST NOTICES UNDER SECTION 34 OF RR ACT.** **EXHIBIT P9** - **TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT.** RESPONDENTS EXTS NIL - /TRUE COPY/ P.S.TO JUDGE cms