Fathima Kunju Mohammed v. Seena Sara Paul; R. K. Menon; The District Manager, Kerala Financial Corporation, Ernakulam; The Deputy Tahasildar, KFC, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 WP(C).No. 9083 of 2006(F) ------------------------- PETITIONER: ------------ FATHIMA KUNJU MOHAMMED, VETTUKATTIL HOUSE, THOTTUMUKHAM.P.O, ALUVA. BY ADV. SRI.K.S.MENON RESPONDENTS: ------------- 1. SMT.SEENA SARA PAUL, D/O.M.M.PAULOSE, NOW RESIDING AT, KILANTHI PARAMBIL, MANAPPILLY, AYYAMPILLY. 2. R.K.MENON, 501-GOINDH APARTMENTS, KALATHIPARAMBIL ROAD, KOCHI-16. 3. THE DISTRICT MANAGER, K.F.C, EKM. 4. DEPUTY TAHASILDAR, KFC, ERANAKULAM BY ADV. SRI.M.M.SAYED MUHAMMED, SC, KFC SMT.K.GIRIJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9083 of 2006 ## APPENDIX ## PETITIONER'S EXHIBITS EXT.P1TRUE COPY OF THE LETTER DATED 11.8.2001. EXT.P2COPY OF THE LETTER DATED 29.9.01. EXT.P3TRUE COPY OF THE LETTER DATED 6.10.01. EXT.P4COPY OF THE LETTERS DATED 16.2.06 EXT.P4(A)TRUE COPY OF LETTER DATED 1.3.2004 EXT.P5TRUE COPY OF THE LETTERS DATED 16.2.06. EXT.P5(a)TRUE COPY OF LETTER DATED 17.2.06 (TRUE COPY) P.A TO JUDGE ## **V.GIRI, J** ------------------- ## W.P.(C).9083/2006 -------------------Dated this the 8[th] day of January, 2008 ## **JUDGMENT** Writ petition is filed challenging Exts.P5 and P5(a) notices issued under the Revenue Recovery Act. According to the petitioner, first respondent was conducting a private concern by name 'Shell Julie' engaged in the manufacture of dolls. Apparently petitioner's son came to know that there are vacancies in the company and he applied for a job. He was offered the post of cashier but was told that some security will have to be provided. Therefore, petitioner offered to give her landed property as security and accordingly petitioner’s title deed was entrusted with the first respondent. It seems that thereafter petitioner was asked to go over to the Office of the first respondent to sign an indemnity bond and bond was executed in the office of the first respondent. It further seems that the petitioner was told that job could be given only after two weeks in as much as according to the first respondent, he had applied for a loan from the KFC. Petitioner's further contention is that W.P.(C).9083/2006 2 no job was given thereafter and she further contends that she later came to know that the first respondent had resigned from the Company. Petitioner then came to know that the first respondent had taken a loan from the KFC and the petitioner's document of title deed was given by the first respondent to the third respondent for taking a loan and the first respondent misused the same to make it appear that the property, belonging to the petitioner, was mortgaged to secure the re-payment of the loan availed by the first respondent. Petitioner sent Ext.P3 notices in this regard which did not elicit any reply. Thereafter, a notice was sent by the KFC to the petitioner and subsequently Exts.P5 and P5(a) Revenue Recovery notices were sent. The same are challenged in this writ petition. 2. Counter affidavit has been filed by the respondent contending that KFC had sanctioned a loan of Rs.21 Lakhs to the first respondent. First and second respondents, the petitioner and one T.M.Kunjumoideen W.P.(C).9083/2006 3 were the co-obligants under the agreement executed on 12.10.1999. One of the items offered as security was the property belonging to the petitioner having an extent of 22.25 Ares in Re-survey No.127/06 in Block No.33 of Aluva East Village. Other item was the property belonging to T.M.Kunjumoideen. Both these properties were mortgaged and they deposited the title deed. Ext.R3(a), letter of confirmation, was also issued by her. Re-payment was defaulted. Demand was made as Ext.R3(b), but payment was not effected. Thereafter Revenue Recovery action was initiated. 3. Learned counsel for the petitioner submits that the petitioner did not stand as a guarantor for the loan availed by the first respondent and that a fraud was committed by respondents 1 and 2 in collusion with the officials of the third respondent. There is no amount legally due from the petitioner to the third respondent. 4. I heard the learned counsel on either side. W.P.(C).9083/2006 4 5. The KFC has initiated steps against the petitioner on the premise that she is a co-obligant for the loan availed by the first respondent. Corporation is in possession of the original of the document of title standing in the name of the petitioner. Prima facie it has to be held that there is material to show that the petitioner has stood as guarantor for a loan availed by the first respondent. But if petitioner feels that she was subjected to fraud by R1 and R2 in collusion with any officials of the third respondent, her remedy is to approach the Civil Curt to seek an appropriate declaration in that behalf as regards the hypothecation deed or the loan agreement. Steps under the Revenue Recovery Act initiated by the third respondent is only for recovery of amount which are due under the loan agreement and being a statutory Corporation, third respondent is entitled to initiate steps under the Act. I do not find any grounds to interfere with the notices issued under the Act. W.P.(C).9083/2006 5 6. Learned counsel for the petitioner submits that when the petitioner objected to the notice of demand served on her, it was incumbent for the revenue officials to give a reply to the same in terms of Section 49(2) of the Act. Requisition is made by the third respondent and the third respondent confirms the correctness of the revenue recovery notice. There is also a notice of demand by the third respondent. Petitioner's objection is not in relation to the correctness of the amount which is shown in the Revenue Recovery notice. Petitioner pleads complete exoneration from liability on the ground that she is not a signatory to the agreement alleged to have been executed in favour of the third respondent. These are matters which are beyond the province of the recovery officials. It can be adjudicated only by a Civil Court. Decisions cited by the learned counsel for the petitioner **State of Kerala v. V.R.Kalliyanikutty (1999 (2) KLT 146 (SC), Lalithambika v. Achuthan Nair (2003 (2) KLJ** W.P.(C).9083/2006 6 **422)** and **(1988 (1) KLT, Short Notes Page-1)** have no application to the facts of the case. 7. In the result, I do not find any grounds to interfere, in the writ petition. But I make it clear that the petitioner, if so advised, may approach the Civil Court seeking an appropriate declaration in the manner aforementioned and if it is so done, the period when this writ petition has been pending before this Court shall stand excluded in computing the period of limitation for filing the suit. Subject to this direction, the writ petition is dismissed. **V.GIRI, Judge** mrcs