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

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

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

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/-

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

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

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.