Bhaskaran K.P. v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 WP(C).No. 30221 of 2011(C) -------------------------- PETITIONER(S): --------------- BHASKARAN K.P,S/O.KUNJIRAMAN NAIR, AGED 44 YEARS, U.D CLERK, A.E.O OFFICE, KUNUMMEL,KUNNUMMEL P.O, KAKKATTIL,VATTOLY VIA, KOZHIKODU DISTRICT. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENT(S): - --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, SOCIAL WELFARE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD, DISTRICT OFFICE P.M. KUTTY ROAD, ERINJIPPALAM P.O, KOZHIKODU 673 525. 3. THE ASSISTANT EDUCATIONAL OFFICER, KUNNUMMEL, VATTOLY VIA, KAKKATTIL, KOZHIKODU DISTRICT 673 525. 4. THE DISTRICT EDUCATIONAL OFICER, OFFICE OF THE D.D EDUCATION, MANAMCHIRA, KOZHIKODU 673 525. ADV. SRI.C.E.UNNIKRISHNAN,SC,K.S.B.C.DEVP.CO FOR R SRI.C.E.UNNIKRISHNAN,SC,K.S.B.C.DEVP.CO FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).30221/11 ## APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1. TRUE COPY OF THE ALLEGED LETTER ISSUED BY THE 2ND RESPONDENT TO the 3RD RESPONDENT DATED 08.09.2010. EXHIBIT P2. TRUE COPY OF THE LAWYER NOTICE DATED 09.03.2011. EXHIBIT P3. TRUE COPY OF THE REPLY DATED 11.04.2001. /true copy/ P.A. To Judge ## **ANTONY DOMINIC, J** ....................................................... W.P.(C).30221/2011 .............................................. Dated this the 15[th] day of December, 2011 ## **JUDGMENT** Petitioner is a surety to a loan availed of by one Sri.Radhakrishnan Pavoor. Revenue recovery proceedings have been initiated against the principal debtor which is challenged before this Court in W.P.(C).14147/2011 and the said writ petition is also pending. 2. In this writ petition filed by the surety, the main contention raised is that the loan was availed on 14.5.2001 and the amount was disbursed on 11.7.2001. It is stated that default was committed in March, 2004 and that now, pursuant to orders passed by the second respondent, the third respondent is proceeding to effect recovery from the salary of the petitioner. It is contending that, debt is time barred on account of the expiry of three years from the date of default and that therefore, recovery cannot be effected, this writ petition has been filed. 3. A statement has been filed on behalf of the second respondent where the contention raised by the petitioner that the W.P.(C).30221/11 2 debt is a time barred one is sought to be overcome by relying on Ext.R2(a) a letter given by the Principal debtor which according to the second respondent, amounts to an acknowledgment of the debt. 4. Heard the learned counsel for the petitioner and also the learned counsel appearing for the second respondent. 5. Even if it is assumed that the debt in question has been acknowledged by the principal debtor, such an acknowledgement can only bind the principal debtor and cannot be made binding on the petitioner who is a surety. Therefore, the fact that Ext.R2(a) letter has been issued by the principal debtor, cannot be of any use to the second respondent to resist the contention raised by the petitioner. 6. Yet another contention raised by the learned counsel for the second respondent is that since the institution in question has been notified under Section 71 of the Revenue Recovery Act, for recovery of its dues, extended period of 30 years provided under W.P.(C).30221/11 3 Art.112 of the Limitation Act, is applicable and therefore, plea of limitation raised by the petitioner is without force. This contention was sought to be substantiated by relying on paragraph 19 of the Full Bench judgment of this Court in **Kerala Fisheries Corporation v. P.S. John (1996 (1) KLT, 814 [FB].)** , which reads as under:- _“Assuming that the provisions of the Limitation Act can be applied to proceedings under the Revenue Recovery Act or the policy underlying that Act is to be applied for initiating proceedings under the Revenue Recovery Act, the question is what is the period of limitation within which the proceedings under that Act should be initiated. As regards the amounts due to the Government it is obvious that the recovery would be governed by Art.112 of the Limitation Act providing for a period of 30 years from the starting point of limitation. The question is what would be the position of an institution brought in by the declaration notified under S.71 of the Act. S.71 indicates that it is on the satisfaction of the Government that it was necessary to do so in public interest that the declaration contemplated under Section .71 of the Act could be notified. The institutions declared by Notification under S.71 the Act thus far, also give a clear indication that the Notification under Section 71 of the Act is issued only in respect of institutions that are public institutions and most of them are instrumentalities by the State. S.71 of the Act itself indicate that the notification itself is to be issued in public interest. Therefore, by a fiction, the amounts due to the institution notified under Section is treated on a par_ W.P.(C).30221/11 4 _with the amounts due to the Government in terms of S.68 of the Act. By giving full play to the fiction so created, we think that under the Act, the period of limitation prescribed for recovery of the debts to those institutions notified under S.71 of the Act would also be 30 years as provided under Art.112 of the Limitation Act. It is no doubt true that Art.112 of the Limitation Act, 1963, would not by itself apply to such institutions and applies only to the Government. But in our view, by the issuance of the notification under Section 71, the Act by the fiction treats the amounts due to those institutions on a par with the amounts due to the Government the approach from that angle we are of the view, that in respect of the institutions notified under Section 71 of the Act, the period available for recovery of amounts due to those institutions under the Act would also 30 years from the date when the cause of action arises for recovery.”_ 7. Though what has been laid down by the Full Bench in the aforesaid judgment, supports the contention raised by the learned counsel for the second respondent, in my view, the said principle cannot be accepted in the light of the principles laid down by the Apex Court in **State of Kerala v. V.R. Kalliyanikutty (1999 (2) KLT 146 [SC] )** . In that judgment, the Apex Court has held that the Kerala Revenue Recovery Act does not create any new right and that it only provides the process of speedy recovery of the money due to the institutions which are notified under Section 71 of the Act. It was also held that if a debt is time barred, the W.P.(C).30221/11 5 time barred debt cannot be recovered by taking recourse to the provisions of the Kerala Revenue Recovery Act. The relevant findings in the Apex Court judgment, read as under:- _“The same reasoning would apply in the present case also. The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of money due. Therefore, instead of filing a suit, (or an application or petition under any special Act), obtaining a decree and executing it, the Bank or the financial institution can now recover the claim under the Kerala Revenue Recovery Act. Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a Suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act.”_ 8. From the above law laid down by the Apex Court, it is obvious that the notification issued under Section 71 of the Act does not in any manner help the institution in question to contend that the law of limitation as provided under Art.112, is applicable in as much as Act does not create any new rights or obligations. Therefore, the contention raised by the learned counsel for the second respondent cannot be accepted and has to be rejected. W.P.(C).30221/11 6 9. Once this contention is rejected and Ext.R2(a) cannot be accepted, the debt being time barred, cannot be recovered either by taking recourse to the revenue recovery proceedings against the petitioner or otherwise. Therefore, the writ petition is disposed of quashing the recovery proceedings, if any, initiated against the petitioner and also directing that no recovery should be made from the salary due to the petitioner towards that liability which the aforesaid principal debtor owes to the second respondent to which the petitioner is a surety. ## **ANTONY DOMINIC, Judge** mrcs /true copy/ P.A. To Judge