Sunil Kumar vs The Kerala State Financial ...
2023 Latest Caselaw 1939 Ker

W.P.(C) No.26383 of 2021              1


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
          FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                           WP(C) NO. 26383 OF 2021
PETITIONER:

              SUNIL KUMAR
              AGED 45 YEARS
              S/O. SANKARANARAYANAN C (LATE), CHENDORTHIL HOUSE,
              THIROORKKAD P.O, PERINTHALMANNA, MALAPPURAM 679 321
              BY ADVS.
              ALEX.M.SCARIA
              A.J.RIYAS
              SARITHA THOMAS


RESPONDENTS:

      1       THE KERALA STATE FINANCIAL ENTERPRISES LIMITED (KSFE)
              BHADRATHA, MUSEUM ROAD, P.B NO. 510, THRISSUR 680 020
              REPRESENTED BY ITS MANAGING DIRECTOR
      2       THE MANAGING DIRECTOR
              KERALA STATE FINANCIAL ENTERPRISES LIMITED, BHADRATHA,
              MUSEUM ROAD, P.B NO 510, THRISSUR 680 020
      3       THE PERINTHALMANNA BRANCH OF KERALA STATE FINANCIAL
              ENTERPRISES LIMITED,
              REPRESENTED BY ITS MANAGER, OOTTY ROAD, PERINTALMANNA,
              MALAPPURAM 679 322
      4       THE ANGADIPPURAM BRANCH OF KERALA STATE FINANCIAL
              ENTERPRISES LIMITED,
              REPRESENTED BY ITS MANAGER, PARIYAPURAM ROAD,
              ANGADIPPURAM P.O, MALAPPURAM 679 321
              BY ADV.K.A.SALIL NARAYANAN, STANDING COUNSEL


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING
 W.P.(C) No.26383 of 2021                      2




                                        JUDGMENT

Dated this the 3rd day of February, 2023

This writ petition is filed by the petitioner seeking the following reliefs:

i) Issue a writ of certiorari or any other writ, order or direction to quash Exhibits P6, P7 and P22.

ii) To issue a writ of mandamus or any other writ, order or direction, directing respondents 1 and 2 to reconsider and dispose of Exhibit P19 in accordance with law within a time frame and with a consequential direction to refund the amounts already collected from the petitioner based on Exhibits P6 and P7.

iii) To issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

2. Petitioner is a collection and canvassing agent for the Kerala State

Financial Enterprises Limited. According to the petitioner, petitioner had introduced

31 persons as per Exhibit P2 list in a chitty started by the 3rd respondent branch of

the KSFE Limited. Admittedly, out of which 10 were defaulters and therefore, those

persons were substituted with the persons listed in Exhibit P3. It is further

submitted that, likewise, in a chitty started by the 4th respondent, 36 subscribers

were introduced by the petitioner, out of which 5 persons defaulted were

substituted with persons in Exhibit P9 list.

3. The case projected by the petitioner is the failure on the part of the

respondents to pay the commission for the collection and canvassing the

customers. In fact, the issue raised by the petitioner was considered by the

Managing Director of the KSFE Limited and has passed Exhibit P22 order dated

22.9.2021, declining the reliefs sought for by the petitioner for commission and also

stating that due to excess payment, the KSFE is entitled to recover the amounts

from the petitioner.

4. It is relevant and important to note that the case projected by the

petitioner revolves around various documents and factual circumstances, and in

order to establish the case put forth by the petitioner sufficient proof is required . A

statement is filed for and on behalf of the respondents disputing the claims raised

by the petitioner and therefore without adequate proof a logical conclusion is not

possible. Therefore the claims raised by the petitioner can only be considered and

adjudicated by a competent civil court. Even though, petitioner has a contention

that when amounts are due to the petitioner, petitioner is not entitled to be

proceeded for over payment of the commission, these are all matters to be

considered by a fact finding court taking into account the documents and pleadings

put forth by the rival parties. In that view of the matter, I am of the considered

opinion that the reliefs sought for by the petitioner in the writ petition cannot be

granted by a cursory scrutiny of the photocopies of the documents and the

pleadings dependent on the same.

6. Therefore, after having heard learned counsel for the petitioner Sri.Alex M.

Scaria elaborately and going through the documents and also hearing the learned

Standing Counsel for the KSFE Limited - Sri.Salil Narayanan, I am of the view that

the reliefs sought for in the writ petition has to be declined and the petitioner has

to be relegated to a competent civil court for adjudication of the issue.

7. The writ petition is accordingly dismissed, leaving open the liberty of the

petitioner to institute appropriate proceedings before a competent civil court.

All the questions of facts and law raised in this writ petition are left open for

the adjudication of a competent court of law.

Sd/-

                                                  SHAJI P.CHALY

smv                                                    JUDGE



                           APPENDIX OF WP(C) 26383/2021

PETITIONER'S EXHIBITS
Exhibit P1            TRUE COPY OF THE RELEVANT PAGE OF THE

AGREEMENT DATED 01-06-2007 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE LIST OF 31 NUMBERS OF PERSONS AND THEIR RESPECTIVE NUMBER OF CHITTY ALLOTTED THEM ARE DETAILED IN A SEPARATE LIST Exhibit P3 TRUE COPY OF THE LIST OF PERSONS SUBSTITUTED IS DETAILED IN A SEPRATE LIST AS PER EXHIBIT P2 Exhibit P4 TRUE COPY OF THE APPLICATION FORMS SHOWING ALLOTMENT OF TICKET NUMBERS AS PER THE AGENCY OF THE PETITIONER FOR THE 31 PERSONS IN RESPECT OF WHICH CHITTY COMMENCED BY THE 3RD RESPONDENT (RELEVANT PAGES) Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE CHITTY SUBSCRIBERS SUBSTITUTED AS PER EXHIBIT P3 LIST.

Exhibit P6 TRUE COPY OF THE DEMAND NOTICE DATED 11-06-

2021 BEARING NO. 086 DEMANDING TO REFUND AN AMOUNT OF RS. 3,97,975/-

Exhibit P7 TRUE COPY OF THE DEMAND NOTICE DATED 10-05-

2021 BEARING NO. 593/AUDIT BY THE 4TH RESPONDENT Exhibit P8 TRUE COPY OF THE LIST OF SUBSCRIBERS OF 36 PERSONS ORIGINALLY ADDED BY THE PETITIONER. Exhibit P9 TRUE COPY OF THE SUBSTITUTED LIST FROM THE EXHIBIT P8 LIST Exhibit P10 TRUE COPY OF THE INTRODUCTION OF 36 TICKET HOLDERS IN THE CHITTY STARTED BY THE 4TH RESPONDENT Exhibit P11 TRUE COPY OF THE SUBSTITUTED SUBSCRIBERS AS PER EXHIBIT P9 LIST Exhibit P12 TRUE COPY OF THE CIRCULAR DATED 17-04-2017 BEARING NO. 3025/PLG ISSUED BY THE 1ST RESPONDENT Exhibit P13 TRUE COPY OF THE CIRCULAR DATED 23-06-2021 BEARING NO. 12404 ISSUED BY THE 1ST RESPONDENT Exhibit P14 TRUE COPY OF THE APPLICATION SUBMITTED BY THE

PETITIONER UNDER THE R.T.I ACT ON 30-04-2021 BEFORE THE 3RD RESPONDENT Exhibit P15 TRUE COPY OF THE REPLY DATED 09-06-2021 IN RESPECT OF THE APPLICATION SUBMITTED BEFORE THE 3RD RESPONDENT Exhibit P16 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER THE R.T.I ACT ON 10-05-2021 BEFORE THE 4TH RESPONDENT Exhibit P17 TRUE COPY OF THE REPLY DATED 04-06-2021 IN RESPECT OF THE APPLICATION SUBMITTED BEFORE THE 3RD RESPONDENT Exhibit P18 TRUE COPY OF THE AUDIT QUERY DATED 29-04-2021 IN RESPECT OF THE EXHIBIT P6 Exhibit P19 TRUE COPY OF THE REPRESENTATION DATED 16-06-

2021 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P20 TRUE COPIES OF SUCH CERTIFICATES BY THE PERSONS WHO HAVE BEEN SUBSTITUTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT Exhibit P21 TRUE COPY OF THE JUDGMENT DATED 08-09-2021 IN W.P(C0 NO. 18322 OF 2021 Exhibit P22 TRUE COPY OF THE ORDER BEARING NO. 37679 DATED 22-09-2021` Exhibit P23 TRUE COPY OF THE APPLICATION DATED 25.6.2021 SUBMITTED BY THE PETITIONER BEFORE, PUBLIC INFORMATION OFFICER, SUB REGISTRAR OFFICE, PERINTHALMANNA, UNDER RTI ACT.

Exhibit P24 TRUE COPY OF THE REPLY LETTER NO-C247/2021 DATED 5.7.2021 ISSUED BY THE PUBLIC INFORMATION OFFICER, SUB REGISTRAR OFFICE, PERINTHALMANNA TO THE PETITIONER.