Kerala State Financial Enterprises Ltd. v. Syamala T. and others (Writ Appeal No. 1743 of 2009 (E))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940 WA.No. 1743 of 2009 (E) AGAINST THE JUDGMENT IN WP(C) 16404/2008 of HIGH COURT OF KERALA DATED 18-07-2008 ## APPELLANT(S)/2ND RESPONDENT: THE KERALA STATE FINANCIAL ENTERPRISES LIMITED, KALLARA BRANCH,THIRUVANANTHAPURAM. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM ## RESPONDENT(S)/PETITIONER & RESPONDENTS 1,3,4 & 5 IN WP.(C): 1. SYAMALA.T., D/O. THANKAKKA, MELEVILAKATH VEEDU, PULIMATH,VAMANAPURAM.P.O,THIRUVANANTHAPURAM. 2. THE SPECIAL DEPUTY TAHSILDAR,(R.R),KERALA STATE FINANCIAL ENTERPRISES LIMITED, THIRUVANANTHAPURAM. 3. SMT.K.LEELA,PALAYIL KARIYATH VEEDU, KALLARA.P.O,THIRUVANANTHAPURAM. 4. SMT.RADHAMONY,U.D.CLERK,PANGODE PANCAYAT KALLARA.P.O,THIRUVANANTHAPURAM. 5. THE SECRETARY,NELLANAD GRAMA PANCHAYAT, VENJARAMOODU.PO,THIRUVANANTHAPURAM. R,R5 BY ADV. SRI.DIPU.R R,R5 BY ADV. SRI.K.S.HARIDAS R,R5 BY ADV. SMT.MERCIAMMA MATHEW R,R5 BY ADV. SRI.V.RENJITH KUMAR R,R5 BY ADV. SRI.THOMAS ABRAHAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2018, THE COURT ON 19.06.2018, DELIVERED THE FOLLOWING: WA.No. 1743 of 2009 (E) ## APPENDIX APPELLANT'S ANNEXURES: : 2 : ANNEXURE A1: TRUE COPY OF THE DEMAND NOTICE DATED 12.04.2002. ANNEXURE A2: TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 18.01.2005. ANNEXURE A3: TRUE COPY OF THE ACKNOWLEDGMENT DATED 15.01.2005. ANNEXURE A4: TRUE COPY OF THE ENQUIRY REPORT DATED 04.02.2012. ## RESPONDENTS' ANNEXURES: NIL /True Copy/ PS to Judge. rv ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** **-------------------------------W.A. No. 1743 of 2009** **---------------------------------Dated this the 19[th] day of June, 2018.** ## **JUDGMENT** ## Annie John, J. The petitioner, the Kerala State Financial Enterprises Ltd., has filed this writ appeal challenging the judgment of the learned single Judge holding that the debt has become time barred. The writ petition was filed by the first respondent challenging Exts. P1 and P2 notices issued by the first respondent Tahsildar and also for a direction not to initiate steps to recover any amount from the salary of the petitioner and to direct the first respondent to proceed against respondents 3 and 4. 2. The petitioner stood as a surety to one Leela K., who is the third respondent in the writ appeal. She had availed a loan as NCL 253 on 05.01.2000 for an amount of Rs.50,000/-. The petitioner as well as the 4[th] respondent were the sureties of the third respondent to avail the loan. The principal debtor, the 3[rd] respondent, after obtaining the loan had remitted Rs.666/- on 03.04.2000, Rs.666/- on 31.04.2000, Rs.833/- on 01.03.2000, Rs. 4000/- on 07.02.2000, Rs. 9881 on 21.06.2001, Rs. 3000/- on 31.07.2002, Rs.2000 on 31.12.2004. Subsequently, the respondent did not remit any amount. The chitty was auctioned on 19.02.2001. Due to default in paying the W.A. No. 1743/2009 -2- instalments, the prize money was adjusted to the future liability and the balance amount was adjusted towards the NCL account. On 03.11.2005, the District Collector, Thiruvananthapuram issued Revenue Recovery Certificate to recover NCL arrears of Rs.26,552/- with interest from 20.09.2001. The second respondent Tahsildar issued demand notice on 14.03.2006. Aggrieved by the same, the first respondent filed the writ petition. 3. The learned Single Judge observed that since the amount has become due on 20.09.2001 and the first requisition was made on 30.09.2005, the demand was made beyond the period of limitation. Accordingly, the learned single Judge as per judgment dated 18.07.2008, allowed the writ petition quashing Exts.P1 and P2 and directing that the respondents are restrained from effecting continuous recovery from the petitioner. Hence this writ appeal. 4. The appellant is seen to have initiated the RR proceedings on 03.11.2005 for Rs.2,65,52/- stating that the amount is in arrears from 20.09.2001 onwards. The RR request was initiated on 30.09.2005 and the RR certificate was issued on 03.11.2005. The learned single Judge allowed the writ petition filed by the first respondent observing that at the time when the requisition was made and Ext.P1 demand was issued, the debt which became due on 20.09.2001, had already become time barred and quashed Exts.P1 and P2. The appellant was also restrained W.A. No. 1743/2009 -3- from effecting continued recovery from the petitioner. 5.The loan amount had to be remitted as per the schedule of the appellant and if there was any failure on the part of the respondent, the appellant has to take necessary steps to recover the same within three years from the date of availing of the loan amount. If three years is calculated from the date of availing of the loan, it will expire on 05.01.2003. The last payment of Rs.2000/- was seen to have been made on 31.12.2004. Before that, the payment was made on 31.07.2002. The payment made on 31.07.2002 was within the prescribed period of limitation. The learned counsel for the appellant has argued that the three-year period will commence from 31.12.2004 i.e., on the last date of payment. So the recovery initiated is within the prescribed period of limitation. _Per contra_ , the learned counsel for the respondent argued that the last payment made on 31.12.2004 is not within the prescribed period of limitation and therefore, the Revenue Recovery initiated is barred by limitation. 6. After availing the loan, the default was committed on 01.03.2000, but part remittances have been made from 31.01.2000. The chitty instalments were remitted upto 18.07.2001. The loanee has not turned up for settling the prize money after the chitty has been prized on 19.02.2001 and therefore, the Branch has adjusted the amount. W.A. No. 1743/2009 -4- 7. In the statement filed by the appellant/second respondent, it was stated that the chitty has been prized and the prize money was not claimed by the third respondent loanee. Hence, an amount of Rs.63,341/- from the prize money was adjusted to the balance instalments in the chitty and the balance of Rs.6659/- was adjusted to the loan account. It was further stated that an amount of Rs.26,522/with interest from 20.09.2001 is due to the KSFE and the same is to be recovered. Accordingly, an amount of Rs.34,250/- was required to close the account of the third respondent as on 30.06.2008. 8. It is true that being a surety to the transaction, the 1st respondent's liability is co-extensive, jointly and severally as that of the principal debtor and the co-surety. Sections 128 and 146 of the Contract Act deal with the liabilities of the sureties and it reads thus: 128. **Surety’s liability.** —The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract." **146. Co-sureties liable to contribute equally** .—Where two or more persons are co-sureties for the same debt or duty, either jointly or severally, and whether under the same or different contracts, and whether with or without the knowledge of each other, the co-sureties, in the absence of any contract to the contrary, are liable, as between themselves, to pay each an equal share of the whole debt, or of that part of it which remains unpaid by the principal debtor. 9. According to the learned counsel for the appellant, they have issued notices to the first respondent, principal debtor and the other surety as evidenced from Annexures R2(a)(b) and (c). According to her, W.A. No. 1743/2009 -5- as per the agreement, the first respondent had agreed to recover the amount from her salary in case of default in payment of the monthly instalments. Since instalments were defaulted, the appellant has initiated Revenue Recovery proceedings in time and therefore, it is not barred by limitation. 10. The sole question to be considered is whether the debt due from the principal debtor, the first respondent and the other co-sureties is barred by limitation. The KSFE has issued RR certificate to the Revenue Recovery Department to recover the principal debt from 20.09.2001 onwards alongwith interest. 11. As per Annexure A1 statement, Mrs.Leela has paid interest upto 20.09.2001 and the principal debt is due from 20.09.2001 along with interest. Therefore, RR intimation was issued for recovering the principal debt from 20.09.2001 onwards. The loan was availed on 05.01.2000. So, the appellant ought to have recovered the amount on or before 05.01.2003 i.e, three years from the date of availing the loan. 12. It was contended that the Revenue Recovery proceedings initiated against the first respondent in her capacity as guarantor is beyond the period of limitation and is therefore incompetent. 13. The limitation to enforce the guarantee in terms of Article 55 of the Limitation Act read with Section 29 of the Contract Act is three years from the date of default. W.A. No. 1743/2009 -6- 14. In _**State of Kerala v. Kalliyanikutty**_ [1999 (2) KLT 146], the Supreme Court held that even if the financial institution is empowered to take Revenue Recovery steps to recover the loan amount, it cannot initiate such proceedings beyond the statutory period of limitation to recover the amount as per law. 15. So long as the liability subsists with the appellant and so far as the third respondent has acknowledged the debt, the guarantee also survives and continues. The third respondent has acknowledged the debt and thereby the guarantee is extended. 16. It is further held in _Kalliyanikutty_ (supra) that 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 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 the 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 provisions of the Kerala Revenue Recovery Act. Under Section 71 of the Kerala Revenue Recovery Act, the claims which are time barred on the date when a requisition is issued W.A. No. 1743/2009 -7- under Section 69(2) of the said Act are not amounts due under Section 71 and cannot be recovered under the said Act. 17. _Per contra,_ Smt. Ramola Nayanapally, the learned counsel representing the learned counsel for the appellant on record, has argued that the loan was acknowledged and the amount was paid upto 31.12.2004. Therefore, the period of limitation will start running from 31.12.2004 i.e., the date on which the last payment was made. Hence, the RR proceedings initiated on 03.11.2005 is within the prescribed period of limitation. In this connection, it is profitable to extract Section 19 of the Limitation Act, which reads thus: 19 **. Effect of payment on account of debt or of interest on legacy.** —Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment." 18. As per Section 19 of the Act, whenever the principal debtor or the sureties acknowledged the liability within the period of limitation, definitely the time will run from the date of last acknowledgement. If that be so, the date of last payment within the period of limitation is 31.07.2002. So, the appellant could have initiated the recovery proceedings on or before 31.07.2005. W.A. No. 1743/2009 -8- ## 19. In **Kamla Devi And Ors. vs Pt. Mani Lal Tewari And Ors.** [AIR 1977 SC 1187], it is held that the function of Section 19 is to provide a later date to count the period of limitation afresh, and that fresh period of limitation will be computed from the time when the acknowledgement is signed. Nothing turns on whether the acknowledgement itself is registered or not. The purpose of Section 19 being to postpone the date of reckoning limitation and not to create a different substantive period of limitation, the latter depends upon the appropriate Article of the Limitation Act which applies to the suit. 20. Thus, the fresh period of limitation will be counted from the date of acknowledgment. The main contention raised by the respondents that the debt is barred by limitation will not stand since the acknowledgment was made by the respondents/petitioners within the time prescribed for the limitation. So, definitely by applying Section 19 of the Limitation Act, the time automatically extended from the last date of acknowledgment or payment made before the expiry of the limitation. ## 21. In _**Shapoor Freedom Mazda v. Durga Prosad Chamaria**_ _**and Ors.**_ [AIR 1961 SC 1236] it is held that acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea W.A. No. 1743/2009 -9- of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of a debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. In construing the words used in the statement made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. 22. In _**Chathu Panikkar v. Abuseethi**_ [1962 KLT 756], it is held that acknowledgment after the expiry of normal period of limitation within the extended period of limitation provided by the enactment deemed to be an acknowledgment or payment made within the period prescribed for filing the suit. 23. In _**Firm Kamta Prasad Jagannath Prasad v. Gulzari Lal and another**_ [AIR 1955 Allahabad 41], it is held that where a provisional Act has been validly passed and it makes it obligatory on the courts to exclude a period in computing the period of limitation, the courts have to exclude that period, and if after excluding that period, a suit or an application can be filed by a certain date, any acknowledgment W.A. No. 1743/2009 -10- or payment made in accordance with the provisions of Sections 19 and 20, after the period of limitation has expired but within the extended period, should be deemed to be an acknowledgment or payment made within the period prescribed for the filing of the suit or application. As has been held supra, an acknowledgment which is made before the expiry of the period of limitation will tantamount to a valid acknowledgment. ## 24. In _**Govinda Pillai v. Parameswaran Pillai and others**_ [1962 KHC 275),it is held that the acknowledgement under Section 19 must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. The statement must admit jural relationship between the parties. Such intention can be inferred by implication from the nature of admission, and need not be expressed in words. 25. So it is justified that when the principal debtor or the sureties acknowledge the liability debts within the prescribed period of limitation, definitely time will run from the date of such acknowledgment. In this case, as per the averments, the amount was repaid on the following dates: Rs.666/: 03.04.2000 Rs.666 : 31.04.2000 Rs.833/: 01.03.2000 W.A. No. 1743/2009 -11- |Rs.4000/-|:|07.02.2000| |---|---|---| |Rs.9881|:|21.06.2001| |Rs.3000|:|31.07.2002| |Rs.2000|:|31.12.2004| 26. It is borne out from the records that the notice directing the principal debtor to remit the amount was issued on 09.06.2005. Inspite of receipt of notice, respondents 1, 3 and 4 have not paid the amount. Therefore they have sent the request for recovering the amount. The learned counsel for the appellant has argued that the last payment was made on 31.12.2004. So, the Revenue Recovery proceedings were initiated in time. From Annexure A1, it is seen that Rs.6000/- was paid on 30.11.2002 and an amount of Rs.6000/- was again paid on 01.07.2003. 27. As per Annexure A1, the last payment within the period of limitation was on 30.11.2002 and therefore, the period of limitation will commence from 30.11.2002. Hence, we find that the Revenue Recovery proceedings were initiated within the time prescribed by the statute. The appellant has not raised the contention before the learned Single Judge as was argued before us. It has also come out from the record that on the strength of the RR certificate, the appellant has recovered merely Rs.18,000/- from the first respondent and has not taken any W.A. No. 1743/2009 -12- steps to recover the amount from the principal debtor and the co-surety. However, the further proceedings to be initiated against the first respondent has to be dropped. Since the debts sought to be recovered is not barred by limitation, we have no hesitation to hold that the findings entered by the learned single Judge are unsustainable. Accordingly, the judgment of the learned single Judge is set aside. Since the major part of the amount is recovered from the first respondent, further recovery from her is hereby ordered to be dropped. In the result, this writ appeal is allowed and the judgment of the learned Single Judge is hereby set aside. However, the recovery of amount from the 1[st] respondent is hereby dropped. **K. SURENDRA MOHAN, JUDGE.** **ANNIE JOHN, JUDGE.** W.A. No. 1743/2009 -13-