P.SANTHAMMA v. MANAGER, K.S.F.E.LTD

ADDL. DISTRICT COURT, PATHANAMTHITTA AGAINST THE JUDGMENT AND DECREE DATED 21.06.2007 IN OS 24/1993 of MUNSIFF COURT, PATHANAMTHITTA APPELLANTS/APPELLANTS/PLAINTIFFS : -

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1 P.SANTHAMMA, RAJANI NIVAS, (DIED) PALAMAROOR, KUMBAZHA.

2 N.P. SASIDHARAN PILLAI, RAJANI NIVS, PALAMAROOR, KUMBAZHA.

3 J. JITHESH KUMAR, RAJANI NIVAS, PALAMAROOR, KUMBAZHA.

4 S. RAJANI, RAJANI NIVAS, PALAMAROOR, KUMBAZHA. BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENTS/RESPONDENTS/DEFENDANTS : -

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1. MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., PATHANAMTHITTA.

2. SPECIAL DEPUTY TAHSILDAR (R.R), KOLLAM.

3. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA. R1 BY ADV. SRI.JACOB P. ALEX, SC, KSFE LTD. R2 & R3 BY GOVERNMENT PLEADER SRI. K.M.HASHIR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- P. SOMARAJAN, J.

--------------------------------------- R.S.A. No. 1324 of 2010

---------------------------------------- Dated this the 11th day of July, 2018 JUDGMENT Aggrieved by the concurrent findings rendered by both the Trial Court and the Appellate Court in A.S.No.175/2007 of the Additional District Court, Pathanamthitta, dated 30.06.2010 in O.S.No.24/1993 of the Munsiff's Court, Pathanamthitta, dated 21.06.2007, the original plaintiffs came up with this appeal.

2. The suit was instituted for a declaration that they are not liable to pay any amount to KSFE who is the first defendant in the suit. The third defendant is the State of Kerala represented by the District Collector. There is also a prayer for permanent prohibitory injunction restraining the second defendant from proceeding with revenue recovery proceedings already initiated. The revenue recovery proceedings were initiated by the second respondent based on the requisition submitted by the first defendant for recovery of amount due. The suit was dismissed by the Lower Court R.S.A. No. 1324 of 2010 2 finding that there is an express bar under Section 72 of the Kerala Revenue Recovery Act, 1968, (for short 'the Act'). In appeal, the Appellate Court confirmed the said decree on the same finding. It was assailed before this Court under the second appeal.

3. Going by Section 72 of the Act as stood before its amendment, no suit can be brought into existence either challenging the question arising between the Collector or the Authorized Officer and the defaulter, his representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act. Admittedly, a written demand was issued by the first defendant to the second defendant and the revenue recovery proceedings were initiated. Once requisition was issued, the validity of such a requisition cannot be raised after its initiation and it would thereafter be a dispute between the District Collector or an Authorized Officer and the defaulter. No fraud is also alleged in the suit either against the R.S.A. No. 1324 of 2010 3 requisitioning authority, the first defendant, or against the recovering authority, the second defendant. When there is no allegation of fraud, no suit can be brought up by the defaulter. The legal position is well settled by various decisions including the decisions drawn in Spl. Tahsildar v. Vasu [2006 (4) KLT 557] and SIDCO v. GAB Industries [2010 (1) KLT SN

57 (C.No.71)]. Unless fraud is alleged as against either the requisitioning authority or the revenue recovery authority, no suit can be brought up as there is an express bar under Section 72 of the Act prior to its amendment.

4. It was submitted by the learned counsel for the appellants that the suit was instituted not by the defaulter, but by the surety of the defaulter in the alleged transaction. The expression 'defaulter' would intake not only the defaulter, but the person who stood as surety to the defaulter, but they are equally, jointly and severally liable to answer their liabilities/amount due. Section 2(e) of the Act makes the legal position crystal clear. R.S.A. No. 1324 of 2010 4 Hence, the concurrent findings rendered by both the Trial Court as well as the Appellate Court dismissing the suit deserves no interference by this Court. Appeal lacks in merits, deserves only dismissal and I do so. Sd/- P. SOMARAJAN, JUDGE DMR/-