M/S.St.Antony's Timber Mart Vellangallur v. THE TAHSILDAR, TALUK OFFICE, MUKUNDAPURAM TALUK OFFICE, THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, THRISSUR, AND THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **WP(C).No.35452 OF 2017(F)** ## **PETITIONER:** **M/S.ST.ANTONYS TIMBER MART VELLANGALLUR, VADAKKUMKARA, VIA. IRINJALAKUDA,THRISSUR DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, E.C.ANTONY.** **BY ADVS.** **SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON** ## **RESPONDENTS:** **1 THE TAHSILDAR, TALUK OFFICE, MUKUNDAPURAM TALUK OFFICE, MUKUNDAPURAM - 691 585. 2 THE GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, THRISSUR - 680 001. 3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY GOVERNMENT PLEADER SMT. PRINCY XAVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2019, THE COURT ON 09-10-2019 DELIVERED THE FOLLOWING:** W.P.(C) No. 35452 of 2017 ..2.. **W.P.(C) No. 35452 of 2017 --------------------------------------** ## **JUDGMENT** The petitioner has purchased an item of immovable property on 07.01.2010 in terms of Ext.P1(b) assignment deed. The said property originally belonged to one Jose and he had sold the property to one Bobby on 9.9.1998 in terms of Ext.P1 assignment deed. Bobby died thereafter. The legal representatives of Boby sold the property to M/s.St.Antony's Timber Depot on 23.05.2008 in terms of Ext.P1(a) assignment deed. It is from the assignees under Ext.P1(a) assignment deed that the petitioner obtained the property on 07.01.2010. Jose, who was holding the property originally had, in fact, availed a margin money loan from the Industries Department of the State Government. As he failed to repay the said loan, proceedings have been initiated under the Kerala Revenue Recovery Act (the Act) against the property purchased by the petitioner for realisation of the loan outstanding. The W.P.(C) No. 35452 of 2017 ..3.. petitioner then raised a claim before the competent authority, viz, the first respondent taking the stand that in so far as the property purchased by the petitioner was one sold by the defaulter long prior to the institution of the revenue recovery proceedings, the same is not liable to be proceeded against for realisation of the dues of the Government. Ext.P4 is the claim petition. Ext.P4 was rejected in terms of Ext.P5 order holding that the transfer of property effected by Jose in favour of Bobby on 9.9.1998 is hit by the provisions contained in Section 44 of the Act. Ext.P5 order is under challenge in the writ petition. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. The learned counsel for the petitioner contended that the claim of the Government against the defaulter is hopelessly barred by limitation and such a claim cannot be enforced invoking the provisions of the Act. It was also contended by the learned counsel that W.P.(C) No. 35452 of 2017 ..4.. Section 44 of the Act does not apply to a case of this nature as the revenue recovery proceedings were requisitioned for and written demand under the Act was issued only after the defaulter transferred the property. It was also contended by the learned counsel that the petitioner is a _bona fide_ purchaser of the property and therefore, it is highly arbitrary and unjust on the part of the State in proceeding against such a property for realisation of its dues. ## 4. Section 44 of the Act reads thus: “44. Effect of engagements and transfers by the defaulter:(1) Any engagement entered into by the defaulter with any one in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government. (2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government. (3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may, subject to the order of a competent Court, proceed to recover W.P.(C) No. 35452 of 2017 ..5.. such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer had not taken place.” The expression `written demand' contained in sub section (1) of Section 44 has been explained and interpreted by this court in **Jameela Bose v. State of Kerala** (2012 (1) KLT 258) as the demand issued to the defaulter by the competent authority for payment of the amounts due to the Government for the first time and not as the demand issued by the authorities under the Act. Paragraph 5 of the counter affidavit filed by the second respondent, wherein the particulars of the various demands issued by the competent authority to the defaulter are mentioned, reads thus: “5. After the disbursement of the said Margin Money Loan of Rs.1,00,000/-, the loanee failed to remit even a single installment of loan dues till date, as per the agreement submitted by the loanee with the Government. The repayment period of Margin Money Loan was completed on 24.11.01. Several notices were sent to the proprietor when remittance was not made on the due amount. Notices dated 13.12.94, 22.08.03, 28.09.94, 29.11.04, were issued to the petitioners. Thereafter the 2[nd] respondent again issued notices dated 21.05.13, 23.03.16 and 20.04.2017. No W.P.(C) No. 35452 of 2017 ..6.. response was received from the petitioners proprietor.” The statement made by the second respondent that written demands for payment were issued by the competent authority to the defaulter on 28.9.1994, 13.12.1994 etc. is not seen refuted nor contradicted by the petitioner. If that be so, the transfer of the property effected by the defaulter on 9.9.1998 in terms of Ext.P1 assignment deed does not bind the Government. If the does not bind the Government, needless to say, the various documents executed thereafter on the strength of the said document also do not bind the Government and the Government is entitled to proceed against the property for realisation of the amounts due from the defaulter. If the document under which the petitioner claims title is hit by Section 44 of the Act, the contention that the petitioner is a _bona fide_ purchaser of the property does not hold good. Coming to the plea of limitation raised by the petitioner, it is seen that the petitioner has not pleaded necessary facts, viz, the date on which the W.P.(C) No. 35452 of 2017 ..7.. loan was disbursed, the dates of default, the date on which demands were issued to the defaulter etc. The petitioner has also not raised such a ground in the writ petition. The petitioner is, therefore, not entitled to raise the plea of limitation in a matter like this. Be that as it may. Paragraph 6 of the counter affidavit filed by the second respondent indicates that the repayment of the margin money loan was due from 24.5.1994. If that be so, in the light of Article 112 of the Schedule to the Limitation Act , the proceedings were well within time. The writ petition is without merits, and the same is, accordingly dismissed. Sd/- **P.B.SURESH KUMAR JUDGE** ds 10.10.2019 W.P.(C) No. 35452 of 2017 ..8.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT-P1: COPY OF ASSIGNMENT DEED NO.2862/98 09.09.1998.** **EXHIBIT-P1(A): COPY OF DEED NO.2278/08 EXECUTED BETWEEN UNNIMARY AND THE PETITIONER 23.05.2008.** **EXHIBIT-P1(B): COPY OF ASSIGNMENT DEED NO.126/2010 07.01.2010.** **EXHIBIT-P2: COPY OF ENCUMBRANCE CERTIFICATE ISSUED BY THE VILLAGE OFFICE, VADAKKUMKARA 18.02.2010. EXHIBIT-P2(A): COPY OF POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICE, VADAKKUMKARA 23.02.2010. EXHIBIT-P2(B): COPY OF TAX RECEIPT NO.6797922 TOWARDS PAYMENT OF TAX 27.07.2015. EXHIBIT-P3: COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT 31.01.2017.** **EXHIBIT-P4: COPY OF REPLY FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT 15.02.2017. EXHIBIT-P5: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT 07.10.2017.**