Haneefa H v. Kerala State Women’s Development Corporation Limited and The Deputy Tahsildar, Revenue Recovery, Tirurangadi

**WP(C) NO. 332 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 WP(C) NO. 332 OF 2009** ## **PETITIONER/S:** HANEEFA. H, S/O ALI, HAJIYARAKATHU HOUSE, ALUNGAL BEACH, CHETTIPPADY POST, MALAPPURAM DISTRICT. BY ADVS. SRI.K.P.SUDHEER SRI.T.P.RAMACHANDRAN THACHETH ## **RESPONDENT/S:** 1 KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LIMITED, REPRESENTED BY ITS, MANAGING DIRECTOR, K.V.TOWERS, MARAPPALAM,, PATTOM P.O. THIRUVANANTHAPURAM - 4. 2 THE DEPUPTY TAHSILDAR, REVENUE RECOVERY TIRURANGADI, MALAPPURAM DISTRICT. BY ADVS. SRI.SUNIL V.MOHAMMED, SC, KSWDC GOVERNMENT PLEADER SMT.JAYASREE MANOJ SRI.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 332 OF 2009** **2** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------W.P.(C.) No.332 of 2009 -------------------------------------Dated this the 1[st] day of October, 2021** ## **JUDGMENT** Petitioner availed a sum of Rs.65,500/- on 7.6.1995 from the 1[st] respondent as a loan. The loan was availed for starting a carpenter unit in Self Employment Scheme. Ext.P1 is the repayment schedule issued by the 1[st] respondent dated 13.11.1995. As per Ext.P1, 8 dated cheques with specific amount is seen issued and another cheque was issued for the balance amount without giving any date. Thereafter, according to the 1[st] respondent, there was default in paying the amount. They initiated criminal and civil proceedings to recover the balance amount. A suit was filed before the Sub Court, Thiruvananthapuram as O.S.No. 200/2001. Ext.P4 is the plaint. The suit was dismissed as evident by Ext.P5 judgment, because balance court fee was not paid. Ext.P5 judgment became final. The first respondent initiated a criminal **WP(C) NO. 332 OF 2009 3** complaint under Sec.138 of Negotiable Instrument Act, 1881 before the Chief Judicial Magistrate Court, Thiruvananthapuram as C.C. No.191/1998. Admittedly, the 1[st] respondent withdrew that complaint on receiving some amount. According to the petitioner, he was on a bonafide belief that the entire amount due to the 1[st] respondent is paid and the loan account is closed. Thereafter, the petitioner received Ext.P6 revenue recovery notice dated 3.11.2008. The requisition which leads to Ext.P6 is Ext. R1(b) and the same was despatched on 13.5.2008. 2. It is the case of the petitioner that Ext.P6 and consequential recovery proceedings will not stand, because it is barred by limitation. It is also submitted by the petitioner that the entire amount due is already paid, when the criminal complaint was pending and that is why the complaint was withdrawn by the 1[st] respondent. Therefore, Ext.P6 and further proceedings to recover the amount will not stand. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondent No.1. I also heard the Government Pleader for the 2[nd] respondent. **WP(C) NO. 332 OF 2009** **4** 4. The learned counsel for the petitioner reiterated his contentions in the writ petition. The learned Standing Counsel for the 1[st] respondent submitted that Ext.P1 is only a notice issued to the petitioner for the 1[st] year and the petitioner has to pay the amount in 60 instalments. The petitioner failed to pay the amount and hence, civil and criminal proceedings were initiated. The counsel submitted that there is balance amount due from the petitioner. The counsel submitted that as per Ext.R1(a) requisition, the total amount due is Rs.2,22,994/-. The Standing Counsel also takes me through a representation submitted by the petitioner subsequent to the initiation of the revenue recovery on 3.8.2010, in which he stated that he is ready to pay the amount. The Standing Counsel submitted that, in the light of Ext.R1(c) acknowledgement, the petitioner is bound to pay the amount. The counsel also submitted that as evident by Ext.R1(d), only part payment is made by the petitioner. 5. I considered the contentions of the petitioner and the 1[st] respondent. It is an admitted case that the loan was availed in the year 1995. It is also an admitted case that **WP(C) NO. 332 OF 2009 5** cheque Nos. 1 to 8 mentioned in Ext.P1 is already honoured. It is also an admitted case that the 9[th] cheque mentioned in Ext.P1 is the disputed cheque in Ext.P3 complaint filed by the 1[st] respondent before the Chief Judicial Magistrate Court, Thiruvananthapuram. It is also an admitted case that the 1[st] respondent withdrew the private complaint filed against the petitioner, which was a prosecution under Sec. 138 of the Negotiable Instrument Act. It is also an admitted case that the 1[st] respondent initiated a civil proceedings before the Sub Court, Thiruvananthapuram as evident by Ext.P4 plaint. It is also an admitted fact that the suit was dismissed for nonpayment of the balance court fee and the 1[st] respondent has not proceeded further, after Ext.P5 and the same became final. 6. After these proceedings, the petitioner received Ext.P6 notice on 3.11.2008. The requisition, which leads to Ext.P6 was despatched on 13.5.2008. Therefore, admittedly, the revenue recovery proceedings initiated by the respondents was only after 3 years of the conclusion of Ext.P3 complaint and Ext.P5 civil proceedings. When this matter came up for consideration, the counsel for the petitioner submitted that it **WP(C) NO. 332 OF 2009 6** is barred by limitation and the counsel relied the judgment of the Apex Court in **State of Kerala v. Y.R. Kalliyanikutty** [1999 (2) KLT 146]. When this point was raised, this Court directed the Standing Counsel to get further instructions to find out whether there is any acknowledgement by the petitioner after the conclusion of the civil and criminal proceedings initiated by the 1[st] respondent. 7. Today, when the matter came up for consideration, the Standing Counsel conceded that there is no acknowledgement, because all the files were already misplaced and the 1[st] respondent is not in a position to produce any acknowledgement from the side of the petitioner within a period of 3 years, after the civil and criminal proceedings are concluded. 8. I perused the judgment in **Kalliyanikutty's** case (supra). It will be better to extract the relevant paragraphs in ## **Kalliyanikutty's** case (supra). “8. Looking to the object of S.71 we have to examine whether time-barred claims of the State Financial Corporation and the banks can be recovered under it. Is the object only speed of **WP(C) NO. 332 OF 2009** **7** recovery or is it also enlargement of the right to recover? The respondent-institutions rely on the words amounts due to S.71 as encompassing timebarred claims also. Now, what is meant by the words amounts due used in S.71 of the Kerala Revenue Recovery Act as also in the notifications issued under S.71? Do these words refer to the amounts repayable under the terms of the loan agreements executed between the debtor and the creditor irrespective, of whether the claim of the creditor has become time-barred or not? Or do these words refer only to those claims of the creditor which are legally recoverable? An amount due normally refers to an amount which the creditor has a right to recover. Wharton in Law Lexicon defines due as anything owing; that which one contracts to pay to another. In Blacks Law Dictionary, 6th Edn. at page 499 the following comment appears against the word due. The word due always imports a fixed and settled obligation or liability; but with reference to the time for its payment there is considerable ambiguity in the use of the term, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at sometime !in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived. But commonly and in the absence of any qualifying expressions, the word due is restricted to the first of these meanings, the second being **WP(C) NO. 332 OF 2009** **8** expressed by the term overdue and the third by the word payable. There is no reference in these definitions to a time-barred debt. In every case, the exact meaning of the word due will depend upon the context in which that word appears. 10. 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 moneys 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. In fact, under S.70 of the Kerala Revenue Recovery Act it is provided die when proceedings are taken under this Act against any person for the recovery of such sum of money due from him, such person may, at any time before the commencement of the sale of any property attached in such proceedings, pay the amount claimed and at the same time deliver a protest signed by himself to the officer issuing the demand or conducting the sale as the case may be. Sub-s. (2) of S.70 provides that when the amout is **WP(C) NO. 332 OF 2009** **9** paid under protest the order issuing the demand or the officer at whose instance the proceedings have been initiated, shall enquire into the protest and pass appropriate orders. If the protest is accepted, the officer disposing of the protest shall immediately order the refund of whole or part of the money paid under protest. Under Sub-S.(3) of S.70, the person making a payment under protest shall have the right to institute a suit for the refund of the whole or part of the sum paid by him under protest. 14. In our view if such a wide interpretation is put on the words amount due under the Kerala Revenue Recovery Act, there is every likelihood of the provision's of Art. 14 being attracted. This Court in the case The Director of Industries, U.P. and Ors.v. Deep Chand Agrawal(Supra) justified the special procedure for recovery of certain debt under the U.P.Public Moneys (Recovery of Dues) Act, 1965 on the ground that the amounts which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts could be re-utilised for the same public purpose. It is doubtful if the public purpose would extend to granting exemption to these claims from the statute of limitation. The law of limitation itself rests on the foundations of public interest. The Courts have expressed at least three reasons for supporting the existence of statutes of limitation; (1) that long dormant claim have more of cruelty than **WP(C) NO. 332 OF 2009** **10** justice in them; (2) that a defendant might have lost the evidence to disprove a stale claim; and (3) that persons with good causes of action should pursue them with reasonable diligence. (See Halsbury 4th Edition Vol. 28 paragraph 605). In Nav Rattanmal & Ors. v. State of Rajasthan (AIR 1961 1 SC 1704) the Statutes of Limitation have been considered as Statutes of Repose and Statutes of Peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words amounts due in S.71. **”** 9. The above decision is followed in **Kerala State Financial Enterprises** v. **Syamala T. and others** [2018 (3) KHC 664], **Premanandanan K.** v. **State of Kerala and others** [2020 (3) KHC 719] and **Thiruvananthapuram Development Authority (TRIDA)** v. **Thomas Abraham and others** [2017 (3) KHC 439]. 10. In the light of the above dictum laid down by the Apex Court and this Court, I think the revenue recovery proceedings initiated against the petitioner is time barred. I **WP(C) NO. 332 OF 2009** **11** also take note of the fact that even though criminal and civil proceedings were initiated by the 1[st] respondent against the petitioner and the same is concluded, no steps are taken by the 1[st] respondent and after about 5 years, the requisition for revenue recovery proceedings is initiated. The same, according to me, will not stand, in the light of the dictum laid down by the Apex Court and this Court, in the above judgments. Even though, the Standing Counsel submitted that the petitioner submitted a representation admitting the liability, that is a representation subsequent to the revenue recovery proceedings initiated against the petitioner and that will not amount to the acknowledgement, in the eye of law. Therefore, this writ petition is allowed in the following manner : 1) Ext.P6 is quashed. - 2) All further proceedings against the petitioner based on Ext.P6 are quashed. SD/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** SKS **WP(C) NO. 332 OF 2009** **12** ## **APPENDIX OF WP(C) 332/2009** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF LETTER DATED 13.11.1995| |---|---| ||ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING| ||THE RECEIPT OF CHEQUE LEAVES.| |Exhibit P2|TRUE COPY OF LETTER DATED 24.01.1997| ||ISSUED BY THE 1ST RESPONDENT TO THE| ||PETITIONER.| |Exhibit P3|TRUE COPY OF COMPLAINT IN C.C.191/1998| ||FILED BY THE 1ST RESPONDENT BEFORE THE| ||JUDICIAL FIRST CLASS MAGISTRATE-1,| ||THIRUVANANTHAPURAM.| |Exhibit P4|TRUE COPY OF PLAINT IN O.S. NO.200/2001| ||FILED BY THE 1ST RESPONDENT BEFORE| ||SUBORDINATE JUDGE'S COURT,| ||THIRUVANANTHAPURAM.| |Exhibit P5|TRUE COPY OF JUDGMENT DATED 12TH AUGUST| ||2003 IN O.S.NO.200/2001 PASSED BY I| ||ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM.| |Exhibit P6|TRUE COPY OF PROCEEDINGS| ||NO.8682/08/OB/PGDI DATED 03.11.2008 ISSUED| ||BY THE 2ND RESPONDENT.| |RESPONDENT'S EXHIBITS|| |EXT R1(A)|TRUE COPY OF THE LETTER DATED 5.5.2008 OFFERING| ||ONE TIME SETTLEMENT BENEFIT TO THE PETITIONER| |EXT.R1(B)|TRUE COPY OF THE REQUISITION DATED 5.5.20085| ||ISSUED BY THE 1ST RESPONDENT| |EXT.R1(C)|TRUE COPY OF THE REQUEST DATED 3.8.2010| ||SUBMITTEDBY THE PETITIONER| |EXT.R1(D)|TRUE COPY OF THE RECEIPT DATED 7.12.2010 ISSUED BY| ||THE 1ST RESPONDENT|