Mumthas C. and Bindu Ellarthodi v. Tahsildar, Revenue Recovery and KSFE Ltd. & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 11TH DAY OF FEBRUARY 2021/22ND MAGHA,1942** ## **WP(C).No.32296 OF 2016(J)** ## **PETITIONERS:** **1 MUMTHAS C, AGED 52 YEARS, PD TEACHER ALP SCHOOL, VADAKKUMMURI, W/O.AHAMMEDKUTTY, HABEEBA MANZIL, UGRAPURAM P.O., ARECODE (VIA), ERNAD TALUK, MALAPPURAM DISTRICT.** **2 BINDU ELLARTHODI, PD TEACHER, GOVT. BOYS HIGHER SECONDARY SCHOOL, MANJERI, VADAKKETHODI HOUSE, KOVILAKOMKUNDU SOUTH, MAJERI P.O., ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE** ## **RESPONDENTS:** **1 TAHSILDAR, REVENUE RECOVERY, KERALA STATE FINANCIAL ENTERPRISES LTD., PALAKKAD-678 001, PALAKKAD DISTRICT. 2 MANAGER KERALA STATE FINANCIAL ENTERPRISES LTD., PANDIKKAD BRANCH, PANDIKKAD P.O-676 541, MALAPPURAM DISTRICT.** |**3**|**THE HEAD MASTER,**| |---|---| ||**ALP SCHOOL VADAKUMMURI,**| ||**URANGATTIRIR, PIN-673 639,**| ||**MALAPPURAM DISTRICT.**| W.P.(C) No.32296/2016 : 2 : - **4 THE HEAD MASTER, GOVT. BOYS HIGHER SECONDARY SCHOOL, MANJERI, MANJERI P.O.-676 121, MALAPPURAM DISTRICT.** - **5 SIJU THOMAS, VEERALASSERI HOUSE, THOTTUMUKKOM PO-673324, KOZHIKODE DISTRICT.** - **6 AYISHA, W/O.RAHMATHULLA, AMBAZHATHINGAL HOUSE, IRIYATTU PARAMBU, VADAKKUMMURI, URANGATTIRI, ARECODE-676 510, MALAPPURAM DISTRICT.** - ADDL. **7 KERALA STATE FINANCIAL ENTERPRISES LTD., REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, THRISSUR-680 020.** - ADDL. **8 THE GENERAL MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., HEAD OFFICE, THRISSUR-680 020.** **ADDITIONAL R7 AND R8 ARE IMPLEADED VIDE ORDER DATED 04-01-21 IN IA No.2/2020** **R1 BY ADV. SRI.ABDUL SHUKOOR MUNDAMBRA R1 BY ADV. SRI.BABU VARGHESE SR. R5 BY ADV. SRI.T.MADHU R6 BY ADV. SRI.P.K.MOHAMED JAMEED R1 BY ADV. SRI.M.RAGHUKUMAR BY SRI.ALEXANDER.C.V., SC, KERALA STATE FINANCIAL ENTERPRISES R2 BY SURYA BINOY, SC, KSFE LTD. R2 BY ADV. SRI.BABU VARGHESE (SR.), SC R1 BY GOVERNMENT PLEADER SMT. DEEPA NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32296/2016 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.32296 of 2016 ````````````````````````````````````````````````````````````` _Dated this the 11[th] day of February, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioners 1 and 2, who are Primary Departmental Teachers working in Ugrapuram and Manjeri in Malappuram District, have filed this writ petition seeking to quash Exts.P1 and P2 communications issued by the 2[nd] respondentManager, Pandikkad Branch of the Kerala State Financial Enterprises Limited, directing the employers of the petitioners to recover the entire loan dues of the 5[th] respondent, who is a subscriber of a chitty, from the salary of the petitioners at the rate of `10,000/- per month. 2. The petitioners state that they have no transactions with the 2[nd] respondent-Pandikkad Branch of the W.P.(C) No.32296/2016 : 4 : KSFE, though they are subscribers of chitty conducted by the KSFE, Manjeri Branch. The petitioners were enrolled in the chitty by one Rahmathulla, who is the husband of the 6[th] respondent. The 6[th] respondent is a Staff Nurse in Government service. The 6[th] respondent is also a subscriber of chitty of KSFE. The petitioners state that Rahmathulla, the husband of the 6[th] respondent, compelled the petitioners to stand as surety for the chitty prized by the 6[th] respondent. The petitioners gave their salary certificates as surety for the chitty of the 6[th] respondent. 3. The petitioners contend that the said Rahmathulla misused the salary certificates of the petitioners and submitted documents to show that the petitioners have agreed to stand as guarantors to the chitty-loan of the 5[th] respondent. The manipulations were made with the connivance of the then Branch Manager of the KSFE, Pandikkad Branch. The petitioners swear that they have not gone to the Pandikkad Branch office of the KSFE and have not signed or executed any documents in the Branch Office W.P.(C) No.32296/2016 : 5 : so as to create any guarantee or security in favour of the 5[th] respondent. While using the salary certificates of the petitioners as guarantors to the 5[th ] respondent, no documents were forwarded to the employers of the petitioners for cross checking. 4. As a bolt from the blue, the 2[nd] respondentManager of the Pandikkad Branch of KSFE issued letters to employers of the petitioners seeking to recover `10,000/from their salary. When the petitioners made enquiries with the 6[th] respondent, she gave evasive replies. The petitioners learnt that a fraud has been played on them by the 5[th] respondent, 6[th] respondent, Rahmathulla and the 2[nd] respondent. 5. The petitioners submitted Exts.P3 and P4 complaints to the Manager, KSFE, pointing out the fraud played on them. The petitioners specifically stated that they gave their salary certificates for standing as surety of the 6[th] respondent. They further stated that Rahmathulla and his wife, the 6[th] respondent, came to their residence, stated that W.P.(C) No.32296/2016 : 6 : marriage of Rahmathulla‘s daughter has been fixed on 15.02.2015 and salary certificates of the petitioners are required to renew and enhance the loan in the name of the 6[th] respondent. Though the petitioners were reluctant, since it was for marriage of the young daughter of Rahmathulla, the petitioners gave their salary certificates. It was misusing the salary certificates that the petitioners were made sureties of the 5[th] respondent. 6. The petitioners submitted complaints to the Vigilance and Anti Corruption Bureau also as evidenced by Ext.P5. On a discreet enquiry on that complaint, the Dy.S.P., VACB found the allegations to be _prima facie_ true. The Dy.S.P., VACB forwarded Ext.P6 letter to the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram recommending to register a case and investigate. While investigation is pending in the matter, the 2[nd] respondent took coercive steps against the petitioners for recovery of the amount due from the 5[th] respondent. The petitioners thereupon submitted Exts.P7 and P8 complaints to their W.P.(C) No.32296/2016 : 7 : employers. As the response of the employers was not encouraging, the petitioners have approached this Court. 7. The 5[th] respondent in respect of whose dues recovery is sought to be made from the salary of the petitioners, filed a counter affidavit. The 5[th] respondent stated that he subscribed to chitty. Chitty instalments were being paid directly to Rahmatullah. The said Rahmatullah was in dire need of money in connection with the marriage of his daughter and took money from the 5[th] respondent. He agreed to repay the amount availing loan from KSFE. Subsequently, Rahmathulla handed over a KSFE cheque to the 5[th] respondent drawn in favour of the 5[th] respondent informing that he himself availed a chitty loan from KSFE, Pandikkad Branch and he got the cheque issued in the name of the 5[th] respondent. When the 5[th] respondent asked as to how KSFE can issue a cheque in his favour, in respect of chitty amount payable to Rahmathulla, the said Rahmathulla informed that if the cheque is issued in the name of Rahmathulla, his banker will appropriate the money towards W.P.(C) No.32296/2016 : 8 : debt due. Rahmathulla also informed the 5[th] respondent that if a written request is made by the chitty holder, cheque can be drawn by KSFE in favour of a third party. 8. The 5[th] respondent further stated in his affidavit that subsequently, after the marriage of his daughter, Rahmathulla committed suicide. Thereafter, the 5[th] respondent came to know that the Rahmathulla subscribed a chitty in the name of the 5[th] respondent without his knowledge and obtained money from KSFE, which was paid by Rahmathulla to the 5[th] respondent pretending that the money is in respect of Rahmathulla’s chitty and he is paying money to the 5[th] respondent in discharge of his debt. The 5[th] respondent was later issued with a revenue recovery notice by the KSFE authorities seeking recovery of money. The 5[th] respondent stated that he is also a victim to the fraud committed by Rahmathulla. 9. The 6[th] respondent, who is the wife of the said Rahmathulla, filed a counter affidavit. The 6[th] respondent stated that her husband Rahmathulla was an Agent of the 2[nd] W.P.(C) No.32296/2016 : 9 : respondent-KSFE for 15 years. Rahmathulla even misused the salary certificate of the 6[th] respondent in connivance with the officers of the 2[nd] respondent-KSFE and made the 6[th] respondent as a surety for many chitty transactions without the knowledge of the 6[th] respondent. The husband of the 6[th] respondent committed suicide due to heavy debt he incurred while working as Agent of KSFE. The 6[th] respondent filed Ext.R6(a) and a criminal complaint against the employees of the KSFE alleging offences punishable under Sections 419, 465 and 468 read with Section 34 of the Indian Penal Code. The Chief Judicial Magistrate, Manjeri forwarded the complaint to Manjeri police, who registered Crime No.485/2017 against the officials of the KSFE as evidenced by Ext.R6(b) FIR . 10. The 2[nd] respondent-Manager of KSFE, Pandikkad Branch filed a counter affidavit. The 2[nd] respondent contended that the writ petition is not maintainable. The disputes raised by the petitioners are questions of fact and cannot be agitated in a writ petition. The 2[nd] respondent W.P.(C) No.32296/2016 : 10 : stated that as per the records available, the 5[th] respondent had availed loan from KSFE. The petitioners have provided employment certificate agreeing to stand as sureties to the 5[th] respondent. Exts.R2(b) and R2(c) employment certificates were signed by the petitioners and their employers. The petitioners have executed Ext.R2(f) chitty loan agreements agreeing to be sureties of the 5[th] respondent. The petitioners are now disputing their civil liability. There is no progress in the investigation conducted by the police in the criminal case. 11. The counsel for the petitioners argued that the transactions under which the petitioners are made sureties to the 5[th] respondent are fraught with fraud. The petitioners have never consented to stand as sureties to the 5[th] respondent. Rahmathulla made the petitioners to impart with their salary certificates and made them sign documents, making the petitioners to believe that their signatures are obtained to stand as surety to the 6[th] respondent. After a preliminary discreet enquiry, the Dy.S.P. of Police, Vigilance and Anti Corruption Bureau has recommended to register W.P.(C) No.32296/2016 : 11 : criminal cases against the fraudsters. Rahmathulla was an Agent of the KSFE and therefore the KSFE cannot shirk off the consequences of the fraud committed by their Agent. It would be unjust if recovery proceedings are made and huge amounts are recovered from the salary of the petitioners. 12. Learned Standing Counsel for the 2[nd] respondent, on the other hand, contended that the Police has so far not completed the investigation proceedings. Therefore, it cannot be said that there was a fraud at all. The documents signed by the petitioners would show that they have stood as surety to the 5[th] respondent. Relying on the judgments of this Court in _**Chinnaswamy S. v. State of Kerala and others** [2009 (1) KLJ 511],_ _**Kerala Small Industries Development Corporation Ltd. v. Prakasan** [2011 (3) KLT 893]_ and a judgment of this Court in W.P.(C) No.24586/2019, the learned counsel for the 2[nd] respondent argued that a dispute of this nature cannot be decided by this Court in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. Hence, the writ petition is liable to W.P.(C) No.32296/2016 : 12 : be dismissed. The petitioners will have to approach civil court to establish fraud. 13. I have heard the learned counsel for the petitioners, learned Government Pleader representing the 1[st] respondent, the learned Standing Counsel for respondents 2 to 4 and the learned counsel appearing for respondents 5 and 6. 14. The fact that Rahmathulla, who is alleged to have manipulated the transactions, was an Agent of the 2[nd] respondent, is not seen disputed by the respondents. The specific case of the petitioners is that they were made to believe that they are being supplied as sureties to the 6[th] respondent, who is the wife of Rahmatullah, for the purpose of enabling them to avail money from the chitty which he required to conduct the marriage of his daughter. The said documents were manipulated by the deceased Rahmatullah and submitted in the office of the 2[nd] respondent, making them appear that the petitioners have stood as sureties to the 5[th] respondent. W.P.(C) No.32296/2016 : 13 : 15. The 5[th] respondent in his counter affidavit has stated that he himself was cheated by deceased Rahmathulla. After obtaining signatures of the 5[th] respondent, the late Rahmathulla, without the knowledge of the 5[th] respondent, opened a chitty account in the name of the 5[th] respondent and obtained a cheque in favour of the 5[th] respondent and then handed over it to the 5[th] respondent pretending that the cheque is being given to the 5[th] respondent in discharge of the dues payable by Rahmathulla. It was only when revenue recovery proceedings were initiated by the 1[st] respondent for default in repayment of chitty amounts that the 5[th] respondent came to know that he has been made the victim of a fraud. 16. The 6[th] respondent, who is none other than the wife of late Rahmathulla, who is working as a Staff Nurse in a Government institution, filed an affidavit stating that the salary certificates of the 6[th] respondent were also manipulated by her deceased husband and made use for defrauding the KSFE. The 6[th] respondent herself is facing W.P.(C) No.32296/2016 : 14 : the heat as a result of the fraudulent transactions made by her late husband. 17. It has also come out that complaints were made to the Vigilance and Anti Corruption Bureau, which has made discreet enquiries in the matter and recommended a thorough investigation in the subject. It is an admitted position that Police has registered a Crime in respect of the fraudulent transactions carried out by Rahmathulla. Who are all involved in the fraudulent transactions will come out only after the culmination of criminal proceedings. While the facts are so, it will be a travesty of justice if the 2[nd] respondent is permitted to proceed to recover amounts from the salary of the petitioners, who are victims of the fraud. 18. The stand of the 2[nd] respondent is that as per their records, the petitioners have stood as guarantors to the 5[th] respondent and executed agreements. The 2[nd] respondent is relying on employment certificates attached to Ext.R2(b) and Ext.R2(c). The petitioners would contend that signatures were obtained on Ext.R2(b) and R2(c) without making it W.P.(C) No.32296/2016 : 15 : known that the petitioners are being made sureties of the 5[th] respondent. Exts.R2(b) and R2(c) documents would only show that the employers of the petitioners have certified the genuineness of the employment, date of retirement and salary of the petitioners. According to the petitioners, signatures in Ext.R2(f) agreement were obtained from them without disclosing the true facts. 19. In the light of the affidavits filed by respondents 5 and 6, it is evident that the 5[th] respondent has not _bona fide_ made any application to join KSFE chitty and to make the petitioners surety of the 5[th] respondent. However, manipulating the situation, the late Rahmathulla has not only enrolled the 5[th] respondent in the chitty but received money on behalf of the 5[th] respondent making it appear that the petitioners have agreed to stand as Sureties to the 5[th] respondent. The 6[th] respondent, who is the wife of the deceased Rahmathulla, swears that Rahmathulla has similarly conducted manipulations and frauds in the 2[nd] respondent-Branch of KSFE on a large scale. The 6[th] W.P.(C) No.32296/2016 : 16 : respondent would swear that her own salary certificates were taken by her late husband and misused and the 6[th] respondent is facing the consequences. There is no reason to disbelieve the statements made by respondents 5 and 6 in their affidavits filed before this Court. 20. In the counter affidavit filed by the 2[nd] respondent, the 2[nd] respondent has not denied the allegation that the deceased Rahmathulla was an Agent of the 2[nd] respondent. The only defence of the 2[nd] respondent is that as per their records, the petitioners have signed documents to stand as sureties of the 5[th] respondent. It is to be noted that making of the 5[th] respondent as a chitty subscriber by itself, is by fraud. The deceased Rahmathulla being an Agent of the 2[nd] respondent, the 2[nd] respondent cannot pretend to be oblivious of the manipulative transactions made by the Agent and feign ignorance of the fraud committed by the late Rahmathulla whether it is with or without the connivance of the officials of the 2[nd] respondent-Branch. W.P.(C) No.32296/2016 : 17 : 21. The late Rahmathulla is admittedly an Agent of KSFE and was working for the 2[nd] respondent. If the said Rahmathulla has committed any manipulations or fraud during the course of his engagement as Agent of KSFE, the KSFE has vicarious liability. 22. In Principal-Agent relationship, a responsibility is imposed on the Principal on the acts of Agent. The responsibility is based on common law principle “ _respondeat superior_ ” (“let the master answer”). Employers are vicariously liable for acts and omissions of their employees. The imposition of liability is based on three reasons. Firstly, the Principal selects the Agent; secondly, the Principal has delegated performance of certain acts to the Agent and when the Principal enjoys the benefits of the acts of his Agent, he should bear the risk also; and thirdly, the Principal has given the Agent general authority to act. 23. The 2[nd] respondent cannot pretend that he is not responsible for the fraudulent acts committed by the Agent. The 2[nd] respondent nowhere in his affidavit has stated that W.P.(C) No.32296/2016 : 18 : the late Rahmathulla has not manipulated the records as alleged by the petitioners. The only defence of the 2[nd] respondent is that as per the records maintained by them, the petitioners are sureties and this being a disputed question of fact, the Court should not exercise its jurisdiction under Article 226 of the Constitution. 24. The allegation of the petitioners is that late Rahmathulla was an Agent of the 2[nd] respondent-KSFE. They have asserted the same in Exts.P2 to P4 complaints. The 6[th] respondent, who is the wife of late Rahmathulla, has stated in her affidavit as well as in Ext.R6(a) complaint filed before the Court of the Chief Judicial Magistrate, Manjeri that the Rahmathulla was an Agent of the KSFE. The 2[nd] respondent has not denied the fact that late Rahmathulla was an Agent of KSFE. The 2[nd] respondent has also not disputed the material allegations made by the petitioners as regards the conduct of Rahmathulla. Therefore, the 2[nd] respondent cannot be heard to contend that these are disputed questions of fact. The 2[nd] respondent is vicariously W.P.(C) No.32296/2016 : 19 : liable to the misconduct or fraudulent conduct of their Agent. In the circumstances of the case, it would be a travesty of justice if the 2[nd] respondent is permitted to recover the amount defrauded by their Agent from the salary of the petitioners. In the circumstances, the writ petition is allowed. Exts.P1 and P2 communications are set aside. The 2[nd] respondent will be at liberty to recover the amounts due to KSFE by any means known to law, other than by way of recovering the amounts from the salary of the petitioners. Sd/- **N. NAGARESH, JUDGE** aks/05.02.2021 W.P.(C) No.32296/2016 : 20 : ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P3: TRUE COPY OF THE COMPLAINT DATED 231-2016 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P5: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE DY SP, VIGILANCE AND ANTI CORRUPTION BUREAU, MALAPPURAM.** - **EXHIBIT P6: TRUE COPY OF THE LETTER DATED 23-72016 SEND BY THE DY.SP VACB MALAPPURAM TO THE DIRECTOR VACB, THIRUVANANTHAPURAM.** - **EXHIBIT P7: TRUE COPY OF THE COMPLAINT DATED 281-2016 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF THE COMPLAINT DATED 4-22016 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT.** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT R6(a):** **THE TRUE COPY OF THE PRIVATE COMPLAINT FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI.** W.P.(C) No.32296/2016 : 21 : **EXHIBIT R6(b): THE TRUE COPY OF THE FIR IN CRIME NO.485/2017 OF MANJERI POLICE STATION.** **EXHIBIT R2(a): TRUE COPY OF THE LOAN APPLICATION DATED 23.01.2015 FILED BY THE 5TH RESPONDENT. EXHIBIT R2(b): TRUE COPY OF THE APPLICATION FORM ALONG WITH EMPLOYMENT CERTIFICATE AND AGREEMENT FOR RECOVERY FROM SALARY EXECUTED BY THE 1ST PETITIONER AS WELL AS THE 3RD RESPONDENT DATED 28.11.2015 EXHIBIT R2(c): TRUE COPY OF THE APPLICATION FORM ALONG WITH EMPLOYMENT CERTIFICATE AND AGREEMENT FOR RECOVERY FROM SALARY EXECUTED BY THE 2ND PETITIONER AS WELL AS THE 4TH RESPONDENT DATED 23.01.2015 EXHIBIT R2(d): TRUE COPY OF THE COMMUNICATION DATED 07.02.2015 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT TO CONFIRM THE GENUINENESS OF THE GUARANTOR IN RESPECT OF THE 5TH RESPONDENT'S NCL ACCOUNT EXHIBIT R2(e): TRUE COPY OF THE COMMUNICATION DATED 07.02.2015 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT TO CONFIRM THE GENUINENESS OF THE GUARANTOR IN RESPECT OF THE 5TH RESPONDENT'S NCL ACCOUNT EXHIBIT R2(f): TRUE COPY OF THE CHITTY LOAN AGREEMENT EXECUTED BY THE PETITIONERS AS WELL AS THE 5TH RESPONDENT DATED 19.02.2015 EXHIBIT R2(g): TRUE COPY OF THE IDENTITY CARD SUBMITTED BY THE 5TH RESPONDENT EXHIBIT R2(h): TRUE COPY OF THE IDENTITY CARDS SUBMITTED BY THE 1ST PETITIONER EXHIBIT R2(i): TRUE COPY OF THE IDENTITY CARDS SUBMITTED BY THE 2ND PETITIONER** SR