Joy Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **MONDAY, THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938** ## **WP(C).No. 20789 of 2011 (W)** **-------------------------------------------** **PETITIONER(S) :** ## **-------------------------** **JOY JOSEPH, AGED 45 YEARS, S/O. OUSEPH JOSEPH, THULISSERIYIL, MUTTUCHIRA P.O., VAIKOM, KOTTAYAM DISTRICT- 680 613.** **BY ADVS. SRI.B.RAMACHANDRAN SMT.K.B.REKHA SMT.M.CHANDRALEKHA** ## **RESPONDENT(S) :** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, MINISTRY OF REVENUE, GOVT. SECRETARIATE, THIRUVANANTHAPURAM- 695 001.** **2. DEPUTY TAHASILDAR (RR), TALUK OFFICE, VAIKOM- 636 141.** **3. THE VILLAGE OFFICER, MANJOOR VILLAGE, MANJOOR- 686 603.** **4. VIJAYA BANK, KOTTAYAM BRANCH, YMCA BUILDING, PIN- 686 001, REPRESENTED BY ITS BRANCH MANAGER.** **R1 TO R3 BY GOVERNMENT PLEADER SMT. MABLE C.KURIAN R4 BY ADVS. SMT.SALLY THOMAS CHACKO SRI.P.T.THOMAS PERAKATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 20789 of 2011 (W)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF NOTICE DATED 11.07.2006 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2: TRUE COPY OF RECEIPT DATED 20.07.2006 FOR PAYMENT OF RS. 5,000/-** - **EXHIBIT P3: TRUE COPY OF DEMAND NOTICE DATED 21.06.2011 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF ATTACHMENT NOTICE DATED 21.06.2011 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R4(A): THE TRUE COPY OF THE LETTER OF UNDERTAKING DATED 28.08.2003.** **EXHIBIT R4(B): THE TRUE EXTRACT OF THE STATEMENT OF ACCOUNT.** **EXHIBIT R4(C): THE TRUE COPY OF THE ACKNOWLEDGEMENTS OF LIABILITY DATED 10.07.2009.** **EXHIBIT R4(D): THE TRUE COPY OF THE ACKNOWLEDGEMENTS OF LIABILITY DATED 10.08.2006.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **DEVAN RAMACHANDRAN, J.** ------------------------------------------------ W.P.C.No.20789 of 2011 -----------------------------------------------------------Dated this the 13[th] day of February, 2017 J U D G M E N T The petitioner says that he had availed a personal loan of ₹80,000/- from the 4th respondent bank in the year 2003. According to him he has repayed 41,800/- till 20.07.2006 and₹ that he had been unable to make any payment after that on account of impecuniousness. He says that while so, he had made attempts to settle the account with the bank under a one time settlement scheme and that for such purpose he had also participated in a recovery camp conducted by the bank. He asserts that the bank did not agree with any proposal for settlement and that therefore, he was not in a position to make any further payment after the year 2007. The petitioner states that matters being so, in the year 2011 he had received a notice under Section 7 of the Kerala Revenue Recovery Act ('Act' for short) issued by the 2[nd] respondent Deputy Tahsildar, demanding that the petitioner make payment of an amount of 62,792/- and on such failure₹ _W.P.C.No.20789/2011_ **2** threatening to effect attachment of his movable properties. The copy of the said demand notice has been produced as Ext.P3 in the writ petition. The copy of the attachment notice under the provision of the Act has been produced as Ext.P4. Petitioner contents that Exts.P3 and P4 notices are illegal and unlawful for two reasons, one that it is barred by limitation and the other that no action under the Act could have been initiated for recovery of a personal loan since the said loan in not one that comes within the purview of Section 71 of the Act. 2. I have heard the learned counsel for the petitioner, Sri.B.Ramachandran, learned standing counsel for the 4[th] respondent bank and the learned Government Pleader for the 2[nd] and 3[rd] respondents. 3. A counter affidavit has been placed on record on behalf of the 4[th] respondent bank. The 4[th] respondent, in answer to the allegations of the petitioner, contents that the amount which is sought to be recovered from the petitioner is not a time barred debt, and he has produced Exts.P4(c) and R4(d) which is alleged to be the acknowledgments of liability dated 10.08.2006 and 10.07.2009 issued by the petitioner, based on which it is _W.P.C.No.20789/2011_ **3** asserted that the action now initiated under the Act is well within time. The learned standing counsel for the 4[th] respondent bank maintains that since the petitioner had acknowledged the liability as late as in the year 2009, the proceedings initiated in the year 2011 is not barred by limitation and that the debt is not a time barred one. The learned counsel for the petitioner objects to this and contents that these documents are forged and that these have not been executed or issued by the petitioner at any point of time. He says that the petitioner had no occasion to sign the documents and that he had no requirement to do so since after 2006 he had neither made any payment nor had visited the bank for any purpose. 4. The question as to whether these documents are forged or genuine are of course, that which come under the realm of disputed questions of fact, which this Court under Article 226 of the Constitution of India cannot dwelve into or consider, recognizing the well settled principles of jurisdictional circumspection. The petitioner's case is that the documents are forged will have to be adjudicated in a court of competent jurisdiction since it relates essentially to questions of facts and _W.P.C.No.20789/2011_ **4** do not involve any question of law. 4. As regards the issue that the liability is not one that is covered by Section 71 of the Revenue Recovery Act is concerned, even though the bank asserts that they are entitled to invoke the provisions of the Revenue Recovery Act in terms of the amendment to the notification SRO 1465/87, I an unable to see on record any document to show that the loan has been sanctioned under a scheme that has been approved by the State/Central Government or other Government agencies or under schemes administered by the Development Department with a view to improving the living condition of the economically and socially weaker sections of the community. The learned counsel for the petitioner, relying on decision of the Honourable Supreme Court of India in **Calif India Chambers v. Syndicate Bank [1999 (1) KLT 155 (SC)],** presses forth his contention that in the absence of any document to show that the loan has been sanctioned under a scheme of this nature indicated above, recovery of the same cannot be permitted under the provisions of the Revenue Recovery Act. _W.P.C.No.20789/2011_ **5** 4. After considering all the pleadings and materials on record, it is obvious that this case presents mixed questions of facts and law. The question as to whether the documents relied on by the bank are genuine or otherwise are essentially questions of fact and the issue as to whether the loan that has been granted to the petitioner is covered by a scheme to attract the provisions of SRO 1465/87 is a bundled question of fact and law. This is not something that this court, acting under Article 226 of the Constitution of India can consider. It is necessary that the petitioner prove this case regarding the genuineness or otherwise of the documents before a competent civil jurisdiction, before he is able to contend that the debt is time barred. 5. In such circumstances, I close this writ petition reserving liberty to the petitioner to invoke suitable jurisdiction under the Civil law to challenge the proceedings initiated by the bank under the provisions of the Revenue Recovery Act on the ground inter alia that the documents relied upon by the bank is not genuine and also that the loan that has been sanctioned to him do not fall under any of the schemes covered by SRO.1465/87. To enable the petitioner to invoke such _W.P.C.No.20789/2011_ **6** jurisdiction, I order that the interim order grated by this Court, interdicting action under the provisions of the Revenue Recovery Act, shall continue for a further period of one month from the date of receipt of a copy of this judgment, within which time he will have to invoke remedies as are available to him under the Civil laws and under the Code of Civil Procedure. This writ petition is disposed of as above. In the facts and circumstances of this case, I make no order as to costs. The parties are directed to suffer their respective costs. Sd/- **DEVAN RAMACHANDRAN JUDGE** TRUE COPY P.A.TO JUDGE DG