Kerala High Court
A.V. Subramanian vs The District Collector on 28 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
WP(C) NO. 13789 OF 2012
NAME & ADDRESS OF THE PETITIONER:
A.V. SUBRAMANIAN
ARAKKAPARAMBIL HOUSE, VALLARPADAM P.O.,
ERNAKULAM DISTRICT.
BY ADVS.
M.M.SAIDU MUHAMMED
REENA MATHEW (THEVALAKKATTU)
NAME & ADDRESS OF THE RESPONDENTS:
1 THE DISTRICT COLLECTOR
COLLECTORATE, KAKKANAD, ERNAKULAM, PIN - 682 030.
2 THE DEPUTY TAHASILDAR (RR)
KANAYANNUR TALUK, ERNAKULAM, KOCHI - 11
3 KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD.,
4TH FLOOR, GCDA COMMERCIAL COMPLEX, MARINE DRIVE,
COCHIN - 31, REPRESENTED BY THE ASSISTANT MANAGER,
(BRANCH) ERNAKULAM.
4 DIRECTOR,
STATE WATER TRANSPORT DEPARTMENT,
ALAPPUZHA, PIN - 688 001.
5 K.K.JAYACHANDRAN,
PADATH HOUSE, NAYARAMBALAM, NEDUNGAD P.O., ERNAKULAM,
PIN - 682 509.
6 V.K.BABU,
VATTAKKATUKARA HOUSE, NARAKKAL PRESENTLY RESIDING AT
C/O.MEENAKSHI KESAVAN, KALATHITHARA HOUSE, VALAPPU,
MALIPPURAM P.O., ERNAKULAM, PIN - 682 511.
BY ADVS.
GOVERNMENT PLEADER
SRI.SUNIL K.R.SC KTDFC
OTHER PRESENT:
SR.GP.SMT.RASHMI K.M.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON
28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
W.P.(C) No.13789 of 2012
HARISANKAR V. MENON, J.
-------------------------------
W.P.(C) No.13789 of 2012
-------------------------------
Dated this the 28th day of June 2024
JUDGMENT
The petitioner was a boat driver under the 4th respondent. The petitioner retired from service on 30.04.2008. The petitioner, 5th and 6th respondents as well as one P.J. Lasser, all of whom were working under the 4th respondent, had stood as guarantors for one Smt.Treesa Antony W/o P.J. Antony, Pallampally House, for obtaining a credit facility from the 3rd respondent herein for purchasing a motor vehicle. It is stated that the loan, so obtained, was to the extent of Rs.5.5 lakhs. It is stated in the writ petition that, on account of the default committed by the above referred Treesa Antony, proceedings were taken for realising the loan amount from the guarantors through Revenue Recovery proceedings. Petitioner states that although there were four guarantors, he was singled out and recovery proceedings were taken only against him as evidenced by Exts.P1 and P2 notices issued by the 2nd respondent herein for realisation of the entire arrears. Petitioner 3 W.P.(C) No.13789 of 2012 submitted Ext.P3 application dated 15.09.2011 pointing out that the balance in his gratuity credit to the extent of Rs.1.96 lakhs may be adjusted towards the liabilities as full and final settlement. The above application at Ext.P3 was directed to be considered and disposed of by this Court in Ext.P4 judgment dated 04.10.2011 in W.P.(C) No.2863 of 2010. Pursuant to the said directions, the 3rd respondent issued Ext.P5 dated 10.11.2011 informing the petitioner that the petitioner being one of the guarantors, the liability is co-extensive with that of the loanee, and recovery proceedings will be continued on account of the joint and several liability. The 3rd respondent has also issued Ext.P6 letter dated 10.11.2011 to the 1st respondent herein, pointing out that there is a subsisting grievance for the petitioner herein, that no recovery proceedings are being taken against the other guarantors.
2. In such circumstance, the petitioner has filed the present writ petition praying for quashing Exts.P1 and P2 revenue recovery proceedings, for a direction to the 3rd respondent to consider the request at Ext.P3 in an Adalath at the earliest and also for a direction to the 4th respondent, not to disburse the retirement benefits of the other guarantors. There is a further prayer for a direction to respondents 1 and 2 to take recovery proceedings against respondents 5 and 6 as well 4 W.P.(C) No.13789 of 2012 as the legal heirs of the deceased P.J.Lasser, including by way of attachment of the retirement benefits.
3. A counter affidavit is filed on behalf of the 1 st and 2nd respondents dated 01.03.2013 and 16.10.2012 respectively, justifying the recovery proceedings taken. The 4th respondent has filed a counter affidavit dated 25.02.2013, pointing out that rest of the guarantors, respondents 5, 6 and late P.J.Lasser, are not eligible for retirement benefits since they were terminated from service on the basis of disciplinary action taken against them and since P.J.Lasser expired while in service and he has no legal heirs.
4. Pursuant to the directions issued by this Court on 20.06.2022, the 1st respondent has filed a statement dated 31.05.2024. In this statement, the 1st respondent has pointed out that the 5th respondent was dismissed from service; that he sold his properties in 2007 and therefore, he is not having any movable or immovable properties in his name to be attached. As regards the 6th respondent, it is reported that, there are no properties to be attached in his name. At the same time in the statement, it is pointed out that the 6th respondent is having 1/3rd undivided share over 2.58 Ares of land in Re- survey No.427/1 in Thandaper No.9188. As regards late Lasser, the 1 st 5 W.P.(C) No.13789 of 2012 respondent pointed out that he is eligible for getting gratuity benefits, which has not been disbursed yet, since no prior consent has been obtained in that regard.
5. Heard Sri.M.M. Saidu Muhammed, learned counsel for the petitioner and Smt.Rashmi K.M., learned Senior Government Pleader appearing for respondents 1, 2 and 4. Though notice has been served on respondents 5 and 6, there is no appearance on their behalf.
6. The petitioner filed this writ petition only on the ground that though he was only one among the guarantors, recovery proceedings had been taken only against him. His main prayer is that appropriate directions may be issued to the respondents to take steps against other guarantors also.
7. However, admittedly, the petitioner has stood as a guarantor to the 3rd respondent. Such a guarantee is an admission that he will make payments if there is default by the principal debtor. Merely for the reason that there are other guarantors, he cannot say that recovery proceedings have to be taken against the other guarantors and it is only after exhausting the steps against such guarantors, that proceedings may be taken against him.
8. At the same time, it is noticed that an amount of Rs.29,500/- 6 W.P.(C) No.13789 of 2012 is already deducted from the salary of the petitioner and paid to the credit of the 3rd respondent. Another amount of Rs.2.75 lakhs is also admitted to be received by the 3rd respondent pursuant to the sale of the vehicle in question, which has been re-possessed by them. It is not seen that any sort of recovery steps have been taken or proceedings initiated against the other guarantors. Going by the statement dated 31.05.2024, filed by the 1st respondent as directed by this Court, the sixth respondent is having an undivided share over a piece of land at Elankunnappuzha. Similarly, deceased P.J.Lasser is also having gratuity benefits, details of which have not been pointed out in the statement.
In such circumstances, this writ petition is disposed of with the following directions.
(i) The petitioner would remit an amount of Rs.50,000/-
within a period of two months from today, with the 3rd respondent herein, to the arrears in his capacity as guarantor for Smt.Treesa Antony.
(ii) The petitioner to file a fresh application with the 3rd respondent herein after making payment of Rs.50,000/- as pointed out above, for availing benefits of any one time settlements, if available. The 3rd respondent is directed to consider the above application sympathetically and extent whatever 7 W.P.(C) No.13789 of 2012 possible benefits available under any existing schemes, to the petitioner.
(iii) Respondents 1 and 2 would take proceedings against the undivided share of the 6th respondent, as identified in the 3rd paragraph of the statement dated 31.05.2024, towards the dues payable to the 3rd respondent herein.
(iv) The 4th respondent would transfer the entire amount lying in credit of the gratuity account of deceased P.J. Lasser to the 3rd respondent herein.
(v) The petitioner to file an undertaking with the 3rd respondent herein, to clear the balance arrears, if any, after the directions at (iii) and (iv) above are carried out.
Sd/-
HARISANKAR V. MENON, JUDGE Skk//07.07.2024 8 W.P.(C) No.13789 of 2012 APPENDIX OF WP(C) NO.13789 OF 2012 PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE RR NOTICE DATED 16/12/2009 EXHIBIT P2 TRUE PHOTOSTAT COPY OF ATTACHMENT NOTICE DATED NIL SERVED ALONG WITH EXHIBIT P1 EXHIBIT P3 TRUE PHOTOSTAT COPY OF REPRESENTATION DATED 15/9/2011 SUBMITTED BY THE PETITIONER. EXHIBIT P4 TRUE PHOTOSTAT COPY OF JUDGEMENT DATED 4/10/2011 IN WPC NO.2863/2010 EXHIBIT P5 TRUE PHOTOSTAT COPY OF LETTER DATED 10/11/2011 SENT BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 10/11/2011 ADDRESSED BY THE 3RD RESPONDENT TO THE DISTRICT COLLECTOR.