Sheeba v. The Tahsildar, Taluk Office, Kollam; Tahsildar (RR), Taluk Office, Kollam; The Village Officer, Thrikkovilvattom; The District Collector, Kollam; The Branch Manager, Canara Bank, Thrikkovilvattom Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 11TH DAY OF DECEMBER 2020 / 20TH AGRAHAYANA, 1942** ## **W.P.(C) No.12587 OF 2020(W)** ## **PETITIONER/S:** **SHEEBA, AGED 45 YEARS, W/O.NAZARUDEENKUTTY, RESIDING AT EVER GREEN VILLA, NEDUMPANA VILLAGE, NEDUMPANA P.O., KOLLAM DISTRICT, PIN-691576. BY ADVS. SRI.A.JANI(KOLLAM) SMT.NISA FASIL(KOLLAM) SAJU WAHAB** ## **RESPONDENT/S:** |**1**|**THE THAHASILDAR**| |---|---| ||**TALUK OFFICE,**| ||**TALUK JUNCTION,**| ||**CUTECHERY P.O.,**| ||**KOLLAM, PIN-691001.**| |**2**|**THE THAHASILDAR (RR),**| ||**TALUK OFFICE,**| ||**TALUK JUNCTION,**| ||**CUTCHERY P.O.,**| ||**KOLLAM, PIN-691001.**| |**3**|**THE VILLAGE OFFICER,**| ||**THRIKKOVILVATTOM VILLAGE OFFICE,**| ||**THRIKKOVILVATTOM P.O.,**| ||**KOLLAM, PIN-691536.**| |**4**|**THE DISTRICT COLLECTOR,**| ||**KOLLAM DISTRICT,**| ||**COLLECTORATE,**| ||**KOLLAM, PIN-691001.**| |**5**|**THE BRANCH MANAGER,**| ||**CANARA BANK,**| ||**THRIKKOVILVATTOM BRANCH,**| W.P.(C) No.12587 OF 2020(W) 2 **THRIKKOVILVATTOM P.O., KOLLAM DISTRICT, PIN-691536.** **6 NOUWFAL, AGED 26 YEARS, S/O.VAHEEDKUTTY, RESIDING AT THASNIMANSIL, MUKHATHALA P.O., THRIKKOVILVATTOM VILLAGE, KOLLAM, PIN-691577.** **R5 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R5 BY ADV. SRI.JOHN MATHAI R5 BY ADV. SRI.KURYAN THOMAS R5 BY ADV. SRI.RAJA KANNAN R5 BY ADV. SRI.PAULOSE C. ABRAHAM** ## **OTHER PRESENT:** ## **SC - SRI. M. GOPIKRISHNAN NAMBIAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.12587 OF 2020(W) 3 ## **JUDGMENT** The petitioner, who purchased 3 ares 40 square meters of property comprised in Sy.Nos.4476, 4485, Re.Sy.No.540/9-2, 540/18-2 in Block No.23 of Thrikkovilvattom Village, vide Ext.P1 sale deed dated 05.11.2018 executed by the 6[th] respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to conclude the proceedings of Transfer of Registry as per File No.C6-4905/19 dated 11.03.2019 in relation to Ext.P1 sale deed, within a time limit to be specified by this Court. The petitioner has also sought for a declaration that the revenue recovery proceedings initiated as per Exts.P2 and P3 notices against the 6th respondent and others is no way related to and binding on property covered by Ext.P1 sale deed and the proceedings under Exts.P2 and P3 are null and void. 2. On 25.06.2020, when this writ petition is came up for admission, the learned Government Pleader took notice for respondents 1 to 4 and the learned Standing Counsel took notice for the 5th respondent. Notice before admission was ordered to 6th respondent. W.P.(C) No.12587 OF 2020(W) 4 3. A statement has been filed on behalf of the 5th ## respondent. Paragraph 3 and 4 of that statement read thus: “3. The 6th respondent had availed Cash Credit loan from this respondent for an amount of Rs.7.65 crores. On 19.01.2019, a request was made to the Collector for initiating RR proceeding against the 6th respondent. On 18.02.2019, the 1st respondent issued demand notices under Section 7 and Section 34 of the RR Act against the properties of the 6th respondent. It was only on 11.03.2019 that the petitioner purportedly applied for mutation of the property attached by the 1st respondent. By then, the recovery proceedings under the RR Act had already been st initiated by the 1 respondent. 4. This Hon'ble High Court in **Sam J Mathews v. Deputy Tahsildar Thalappally, Trichur [2019 (3) KLT 641]** has declared that the proceeding for recovery of debts which are more than Rs.20 lakhs is barred as per S.17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Consequently, this respondent has dropped all revenue recovery proceedings under the RR Act against the 6[th] respondent. A copy of the letter dated 01.12.2020 issued by the respondent Bank to the Tahsildar, Revenue Recovery, Taluk Office, Kollam withdrawing Revenue Recovery action is ” produced herewith and marked as Annexure R5(a). 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4, the learned Standing Counsel for the Canara Bank representing the 5th W.P.(C) No.12587 OF 2020(W) 5 respondent. Despite service of notice, none appears for the 6th respondent. 5. In **Sam J Mathews v. Deputy Tahsildar Thalappally,** **Trichur [2019 (3) KLT 641]** this Court held that, if any dispute is raised with respect to a debts, as defined by the Recovery of Debts and Bankruptcy Act, 1993, namely, which is more than Rs.10 lakhs, an adjudication on it can only be done by the Debts Recovery Tribunal under the Recovery of Debts and Bankruptcy Act and not by the District Collector under the Kerala Revenue Recovery Act, 1968. Obviously, therefore, the provisions of subsection (2) of Section 34 of the Revenue Recovery Act would stand in conflict with Sections 17, 18, 19 and 34 of Recovery of Debts and Bankruptcy Act and resultantly, cannot be availed of by the Banks. The case of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 stands on a different pedestal because this is a special Act, brought in subsequent to the Recovery of Debts and Bankruptcy Act intended to provide a special mechanism, whereby the Banks can recover debts through the methods specified therein and under the adjudicatory processes that are well defined through its W.P.(C) No.12587 OF 2020(W) 6 provisions. Thus, even assuming that, in an abstract manner, one views the Kerala Revenue Recovery Act to be a mere mechanism for recovery, it would still be of no avail to Banks and Financial Institutions because such recovery, as long as it entails a component of adjudication, would certainly have to yield to the provisions of Sections 17, 18, 19 and 34 of the the Recovery of Debts and Bankruptcy Act. 6. The learned Standing Counsel for Canara Bank, would submit that the 5th respondent Branch Manager has already requested the 2nd respondent Tahsildar, vide Annexure R5(a) letter dated 01.12.2020 to withdraw revenue recovery proceedings against the borrower. 7. In such circumstances this writ petition is disposed of by directing the 2nd respondent Tahsildar (RR) to take further action on the request made by the 5th respondent Annexure R5(a) letter dated 01.12.2020 and intimate the said fact to the 1st respondent Tahsildar, within a period of three weeks from the date of receipt of a certified copy of this judgment, if not already intimated. Thereafter, the 1st respondent Tahsildar shall consider the application made by the petitioner for Transfer of Registry as per W.P.(C) No.12587 OF 2020(W) 7 File No.C6-4905/19 dated 11.03.2019, in relation to Ext.P1 sale deed, and take an appropriate decision thereon, with notice to the petitioner, as expeditiously as possible, at any rate, within a further period of two months. 8. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a ThreeJudge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Therefore, the direction contained in this judgment to the 1[st] respondent Tahsildar to consider and take an appropriate decision W.P.(C) No.12587 OF 2020(W) 8 on the application made by the petitioner for Transfer of Registry in relation to Ext.P1 sale deed, is for considering that application strictly in accordance with the relevant statutory provisions and the law on that point. No order as to costs. **Sd/ANIL K. NARENDRAN JUDGE** MIN W.P.(C) No.12587 OF 2020(W) 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SALE DEED NO.2196 OF 2018 OF KANNANALLOOR S.R.O. EXHIBIT P2 TRUE COPY FORM NO.1 NOTICE ISSUED UNDER SECTION 7 OF THE REVENUE RECOVERY ACT. EXHIBIT P3 TRUE COPY OF FORM NO.24 NOTICE ISSUED UNDER SECTION 69(2) OF THE REVENUE RECOVERY ACT 1968.** ## **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R5(A) TRUE COPY OF THE LETTER DATED 01.12.2020 ISSUED BY THE RESPONDENT BANK TO THE TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, KOLLAM WITHDRAWING REVENUE RECOVERY ACTION.**