Haneefa vs Kerala State Women'S Development ...
2021 Latest Caselaw 20401 Ker

WP(C) NO. 332 OF 2009                   1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
      FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                              WP(C) NO. 332 OF 2009
PETITIONER/S:

               HANEEFA. H, S/O ALI, HAJIYARAKATHU HOUSE,
               ALUNGAL BEACH, CHETTIPPADY POST, MALAPPURAM
               DISTRICT.

              BY ADVS.
              SRI.K.P.SUDHEER
              SRI.T.P.RAMACHANDRAN THACHETH



RESPONDENT/S:

      1        KERALA STATE WOMEN'S DEVELOPMENT CORPORATION
               LIMITED, REPRESENTED BY ITS, MANAGING DIRECTOR,
               K.V.TOWERS, MARAPPALAM,, PATTOM P.O.
               THIRUVANANTHAPURAM - 4.

      2        THE DEPUPTY TAHSILDAR, REVENUE RECOVERY
               TIRURANGADI, MALAPPURAM DISTRICT.

               BY ADVS.
               SRI.SUNIL V.MOHAMMED, SC, KSWDC
               GOVERNMENT PLEADER
               SMT.JAYASREE MANOJ
               SRI.N.MANOJ KUMAR




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.10.2021,        THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 332 OF 2009                  2




                       P.V.KUNHIKRISHNAN, J
                 --------------------------------------------
                      W.P.(C.) No.332 of 2009
                    --------------------------------------
               Dated this the 1st day of October, 2021


                                 JUDGMENT

Petitioner availed a sum of Rs.65,500/- on 7.6.1995 from

the 1st respondent as a loan. The loan was availed for starting

a carpenter unit in Self Employment Scheme. Ext.P1 is the

repayment schedule issued by the 1st respondent dated

13.11.1995. As per Ext.P1, 8 dated cheques with specific

amount is seen issued and another cheque was issued for the

balance amount without giving any date. Thereafter, according

to the 1st respondent, there was default in paying the amount.

They initiated criminal and civil proceedings to recover the

balance amount. A suit was filed before the Sub Court,

Thiruvananthapuram as O.S.No. 200/2001. Ext.P4 is the plaint.

The suit was dismissed as evident by Ext.P5 judgment,

because balance court fee was not paid. Ext.P5 judgment

became final. The first respondent initiated a criminal

complaint under Sec.138 of Negotiable Instrument Act, 1881

before the Chief Judicial Magistrate Court,

Thiruvananthapuram as C.C. No.191/1998. Admittedly, the 1st

respondent withdrew that complaint on receiving some

amount. According to the petitioner, he was on a bonafide

belief that the entire amount due to the 1 st respondent is paid

and the loan account is closed. Thereafter, the petitioner

received Ext.P6 revenue recovery notice dated 3.11.2008. The

requisition which leads to Ext.P6 is Ext. R1(b) and the same

was despatched on 13.5.2008.

2. It is the case of the petitioner that Ext.P6 and

consequential recovery proceedings will not stand, because it

is barred by limitation. It is also submitted by the petitioner

that the entire amount due is already paid, when the criminal

complaint was pending and that is why the complaint was

withdrawn by the 1st respondent. Therefore, Ext.P6 and further

proceedings to recover the amount will not stand.

3. Heard the learned counsel for the petitioner and the

learned Standing Counsel for respondent No.1. I also heard

the Government Pleader for the 2nd respondent.

4. The learned counsel for the petitioner reiterated his

contentions in the writ petition. The learned Standing Counsel

for the 1st respondent submitted that Ext.P1 is only a notice

issued to the petitioner for the 1 st year and the petitioner has

to pay the amount in 60 instalments. The petitioner failed to

pay the amount and hence, civil and criminal proceedings were

initiated. The counsel submitted that there is balance amount

due from the petitioner. The counsel submitted that as per

Ext.R1(a) requisition, the total amount due is Rs.2,22,994/-.

The Standing Counsel also takes me through a representation

submitted by the petitioner subsequent to the initiation of the

revenue recovery on 3.8.2010, in which he stated that he is

ready to pay the amount. The Standing Counsel submitted

that, in the light of Ext.R1(c) acknowledgement, the petitioner

is bound to pay the amount. The counsel also submitted that as

evident by Ext.R1(d), only part payment is made by the

petitioner.

5. I considered the contentions of the petitioner and

the 1st respondent. It is an admitted case that the loan was

availed in the year 1995. It is also an admitted case that

cheque Nos. 1 to 8 mentioned in Ext.P1 is already honoured. It

is also an admitted case that the 9th cheque mentioned in

Ext.P1 is the disputed cheque in Ext.P3 complaint filed by the

1st respondent before the Chief Judicial Magistrate Court,

Thiruvananthapuram. It is also an admitted case that the 1 st

respondent withdrew the private complaint filed against the

petitioner, which was a prosecution under Sec. 138 of the

Negotiable Instrument Act. It is also an admitted case that the

1st respondent initiated a civil proceedings before the Sub

Court, Thiruvananthapuram as evident by Ext.P4 plaint. It is

also an admitted fact that the suit was dismissed for non-

payment of the balance court fee and the 1st respondent has

not proceeded further, after Ext.P5 and the same became final.

6. After these proceedings, the petitioner received

Ext.P6 notice on 3.11.2008. The requisition, which leads to

Ext.P6 was despatched on 13.5.2008. Therefore, admittedly,

the revenue recovery proceedings initiated by the respondents

was only after 3 years of the conclusion of Ext.P3 complaint

and Ext.P5 civil proceedings. When this matter came up for

consideration, the counsel for the petitioner submitted that it

is barred by limitation and the counsel relied the judgment of

the Apex Court in State of Kerala v. Y.R. Kalliyanikutty

[1999 (2) KLT 146]. When this point was raised, this Court

directed the Standing Counsel to get further instructions to

find out whether there is any acknowledgement by the

petitioner after the conclusion of the civil and criminal

proceedings initiated by the 1st respondent.

7. Today, when the matter came up for consideration,

the Standing Counsel conceded that there is no

acknowledgement, because all the files were already

misplaced and the 1st respondent is not in a position to

produce any acknowledgement from the side of the petitioner

within a period of 3 years, after the civil and criminal

proceedings are concluded.

8. I perused the judgment in Kalliyanikutty's case

(supra). It will be better to extract the relevant paragraphs in

Kalliyanikutty's case (supra).

"8. Looking to the object of S.71 we have to examine whether time-barred claims of the State Financial Corporation and the banks can be recovered under it. Is the object only speed of

recovery or is it also enlargement of the right to recover? The respondent-institutions rely on the words amounts due to S.71 as encompassing time- barred claims also. Now, what is meant by the words amounts due used in S.71 of the Kerala Revenue Recovery Act as also in the notifications issued under S.71? Do these words refer to the amounts repayable under the terms of the loan agreements executed between the debtor and the creditor irrespective, of whether the claim of the creditor has become time-barred or not? Or do these words refer only to those claims of the creditor which are legally recoverable? An amount due normally refers to an amount which the creditor has a right to recover. Wharton in Law Lexicon defines due as anything owing; that which one contracts to pay to another. In Blacks Law Dictionary, 6th Edn. at page 499 the following comment appears against the word due. The word due always imports a fixed and settled obligation or liability; but with reference to the time for its payment there is considerable ambiguity in the use of the term, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at sometime !in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived. But commonly and in the absence of any qualifying expressions, the word due is restricted to the first of these meanings, the second being

expressed by the term overdue and the third by the word payable. There is no reference in these definitions to a time-barred debt. In every case, the exact meaning of the word due will depend upon the context in which that word appears.

10. The same reasoning would apply in the present case also. The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due. Therefore, instead of filing a 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 this 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 the provisions of the Kerala Revenue Recovery Act. In fact, under S.70 of the Kerala Revenue Recovery Act it is provided die when proceedings are taken under this Act against any person for the recovery of such sum of money due from him, such person may, at any time before the commencement of the sale of any property attached in such proceedings, pay the amount claimed and at the same time deliver a protest signed by himself to the officer issuing the demand or conducting the sale as the case may be. Sub-s. (2) of S.70 provides that when the amout is

paid under protest the order issuing the demand or the officer at whose instance the proceedings have been initiated, shall enquire into the protest and pass appropriate orders. If the protest is accepted, the officer disposing of the protest shall immediately order the refund of whole or part of the money paid under protest. Under Sub-S.(3) of S.70, the person making a payment under protest shall have the right to institute a suit for the refund of the whole or part of the sum paid by him under protest.

14. In our view if such a wide interpretation is put on the words amount due under the Kerala Revenue Recovery Act, there is every likelihood of the provision's of Art. 14 being attracted. This Court in the case The Director of Industries, U.P. and Ors.v. Deep Chand Agrawal(Supra) justified the special procedure for recovery of certain debt under the U.P.Public Moneys (Recovery of Dues) Act, 1965 on the ground that the amounts which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts could be re-utilised for the same public purpose. It is doubtful if the public purpose would extend to granting exemption to these claims from the statute of limitation. The law of limitation itself rests on the foundations of public interest. The Courts have expressed at least three reasons for supporting the existence of statutes of limitation; (1) that long dormant claim have more of cruelty than

justice in them; (2) that a defendant might have lost the evidence to disprove a stale claim; and (3) that persons with good causes of action should pursue them with reasonable diligence. (See Halsbury 4th Edition Vol. 28 paragraph 605). In Nav Rattanmal & Ors. v. State of Rajasthan (AIR 1961 1 SC 1704) the Statutes of Limitation have been considered as Statutes of Repose and Statutes of Peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words amounts due in S.71."

9. The above decision is followed in Kerala State

Financial Enterprises v. Syamala T. and others [2018 (3)

KHC 664], Premanandanan K. v. State of Kerala and

others [2020 (3) KHC 719] and Thiruvananthapuram

Development Authority (TRIDA) v. Thomas Abraham and

others [2017 (3) KHC 439].

10. In the light of the above dictum laid down by the

Apex Court and this Court, I think the revenue recovery

proceedings initiated against the petitioner is time barred. I

also take note of the fact that even though criminal and civil

proceedings were initiated by the 1 st respondent against the

petitioner and the same is concluded, no steps are taken by the

1st respondent and after about 5 years, the requisition for

revenue recovery proceedings is initiated. The same,

according to me, will not stand, in the light of the dictum laid

down by the Apex Court and this Court, in the above

judgments. Even though, the Standing Counsel submitted that

the petitioner submitted a representation admitting the

liability, that is a representation subsequent to the revenue

recovery proceedings initiated against the petitioner and that

will not amount to the acknowledgement, in the eye of law.

Therefore, this writ petition is allowed in the following

manner :

1) Ext.P6 is quashed.

2) All further proceedings against the petitioner based

on Ext.P6 are quashed.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 332/2009

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF LETTER DATED 13.11.1995 ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING THE RECEIPT OF CHEQUE LEAVES.

Exhibit P2 TRUE COPY OF LETTER DATED 24.01.1997 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

Exhibit P3 TRUE COPY OF COMPLAINT IN C.C.191/1998 FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-1, THIRUVANANTHAPURAM.

Exhibit P4 TRUE COPY OF PLAINT IN O.S. NO.200/2001 FILED BY THE 1ST RESPONDENT BEFORE SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM.

Exhibit P5 TRUE COPY OF JUDGMENT DATED 12TH AUGUST 2003 IN O.S.NO.200/2001 PASSED BY I ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM.

Exhibit P6 TRUE COPY OF PROCEEDINGS NO.8682/08/OB/PGDI DATED 03.11.2008 ISSUED BY THE 2ND RESPONDENT.

RESPONDENT'S EXHIBITS

EXT R1(A) TRUE COPY OF THE LETTER DATED 5.5.2008 OFFERING ONE TIME SETTLEMENT BENEFIT TO THE PETITIONER

EXT.R1(B) TRUE COPY OF THE REQUISITION DATED 5.5.20085 ISSUED BY THE 1ST RESPONDENT

EXT.R1(C) TRUE COPY OF THE REQUEST DATED 3.8.2010 SUBMITTEDBY THE PETITIONER

EXT.R1(D) TRUE COPY OF THE RECEIPT DATED 7.12.2010 ISSUED BY THE 1ST RESPONDENT