IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RSA.No. 778 of 2004() --------------------- AS.148/2001 of I ADDL. DISTRICT COURT, PALAKKAD OS.197/1999 of MUNSIFF COURT, ALATHUR .................... APPELLANT/4TH RESPONDENT/4TH DEFENDANT: ----------------------------------------------------------- THE TELECOM DISTRICT MANAGER, PALAKKAD, TELECOM DISTRICT, PALAKKAD. BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL RESPONDENT(S): APPELLANT/RESPONDENTS 1 TO 3/PLAINTIFF & DEFENDANTS.1 TO 3: ---------------------------------------------------------------- 1. KAJA, S/O. CHELLAPPA ROWTHER, AGRICULTURIST, RESIDING AT MANNAYAM KADU VEEDU, KOTHAMANGALAM, KUTHANNUR AMSOM DESOM,ALATHUR TALUK 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD. 3. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), ALATHUR. 4. THE VILLAGE OFFICER, KUTHANNUR-I, VILLAGE OFFICE, KUTHANNUR, ALATHUR TALUK. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.PRASUN.S FOR R1 GOVERNMENT PLEADER SHRI L.G.SURESH BABU FOR R2 TO R4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.778 of 2004 -------------------------------------- Dated this the 15th day of December, 2009. JUDGMENT This Regular Second Appeal is at the instance of the Telecom Department (which has now transformed into the BSNL) represented by Telecom District Manager, Palakkad challenging judgment and decree of learned I Additional District Judge, Palakkad in A.S.No.148 of 2001 reversing judgment and decree of learned Munsiff, Alathur in O.S.No.197 of 1999 and granting a decree for prohibitory injunction restraining appellant and respondent Nos.2 to 4 from initiating revenue recovery proceedings against respondent No.1 for recovery of the amount due to the appellant. According to respondent No.1, he was conducting a travel agency in room No.4/194 where a telephone with No.2312 was installed. While so he got notice from the appellant on 14.6.1995 demanding payment of Rs.40,736/- by way of telephone charges. Respondent No.1 made a representation to the appellant about defective meter recording and thereon appellant informed respondent No.1 about the defect in meter recording system and asked respondent No.1 to pay Rs.29,233/-. Respondent No.1 claimed to have paid certain amounts on various dates mentioned in the plaint. But in October, 1993 telephone was disconnected by the appellant. While so respondent No.1 got notice under the provisions of the Revenue Recovery Act (for short, “the Act”) from respondent No.4 demanding payment of Rs.23,595/-. Respondent No.1 claimed that appellant had fabricated documents based on RSA No.778/2004 2 which respondent Nos.2 to 4 issued the demand notice. He also claimed that the account was actually settled with the appellant and prayed for injunction against revenue recovery proceedings. Appellant and respondent Nos.2 to 4 contended that the suit is barred under Section 72 of the Act. Appellant denied that the account was closed as claimed by respondent No.1. A sum of Rs.23,595/- was due from respondent No.1. Though respondent No.1 requested appellant time for payment of the said amount and undertook to pay Rs.4,000/- before 30.8.1998 that was not complied with. On the request made by appellant, respondent Nos.2 to 4 initiated proceedings under the Act. Trial court found that the suit is not maintainable in view of Section 72 of the Act and dismissed the same. Respondent No.1 took up the matter in appeal. First appellate court relying on the decision of this Court in Govindankutty, A.V. v. The General Manager and others (ILR 2002 (2) Kerala 173) held that since there is no notification as required under Section 71 of the Act, amount due to the appellant cannot be said to be recoverable under the Act. Hence decree for prohibitory injunction was granted. That is under challenge in the Second Appeal. Substantial questions of law framed for a decision are: i. whether lower appellate court erred in coming to the conclusion that appellant is not entitled to take resort to the provisions of the Act for enforcement of the claim against respondent No.1? ii. Whether lower appellate court erred in coming to the conclusion that claim is barred by limitation? RSA No.778/2004 3 It is contended by learned counsel for appellant that the decision (Govindankutty, A.V.’s case - supra) relied on by the first appellate court has been reviewed by this Court as per order on R.P.No.495 of 2002 holding that in view of the notification issued under Section 71 of the Act, the amount due to BSNL could be recovered under the provisions of the Act. Learned counsel has placed reliance on an unreported decision in W.A.No.2442 of 2005 dated 27.1.2006 where the same view has been taken. According to the learned counsel basis on which the first appellate court found against validity of recovery proceedings is now non-existant and hence judgment and decree of the first appellate court cannot be sustained. Counsel for respondent No.1 would contend that the claim of appellant is barred by limitation and hence it cannot be said to be an amount due and recoverable under the provisions of the Act and hence the appellant cannot have resorted to the provisions of the Act. 2. The decision of the first appellate court is based on the decision of this Court in Govindankutty, A.V.’s case (supra). So far as the decision in Govindankutty, A.V.’s case is concerned, the order in R.P.No.495 of 2002 and the unreported decision in W.A.No.2442 of 2005 (supra) make it clear that in so far as there is a notification under Section 71 of the Act, the amount due to the appellant is recoverable resorting to the provisions of the Act. In the light of the above, contention that the Act is not applicable for recovery of amount due to the appellant cannot be sustained. 3. The question of bar of jurisdiction of civil court under Section 72 of the Act also arises for consideration. This Court in SIDCO v. GAB RSA No.778/2004 4 Industries and others (ILR 2009 (4) Kerala 706) has held that even when recovery proceedings are challenged on the ground of bar of limitation, suit is not maintainable under Section 72 of the Act since the issue regarding limitation relates to the executability of written demand which is a matter required to be determined by the District Collector or other authority under Section 72 of the Act. This Court also held that the suits brought on the ground of fraud alone are saved by the proviso to Section 72. On the facts of this case application of proviso to Section 72 of the Act does not arise. Hence the trial court is justified in holding that the suit is not maintainable. 4. Yet another question raised for consideration is whether in view of Section 7B of the Indian Telegraph Act the suit is maintainable. Section 7B of the Indian Telegraph Act provides that except as otherwise specifically provided under this Act if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided the dispute shall be determined by arbitration. Dealing with a similar situation this Court held in R.S.A.No.1008 of 2003 (See judgment dated 13.11.2009) that Section 7B of the Indian Telegraph Act provided an inbuilt bar against civil court entertaining suits concerning dispute in relation to any telegraph line, apparatus or appliance, for such disputes are to be determined by arbitration. This Court held that suit is not maintainable. Indisputably, dispute in this case concerns telephone bill issued to respondent No.1 in relation to apparatus installed in the premises of respondent No.1 and hence also the suit is not maintainable. If any such RSA No.778/2004 5 dispute exists, remedy is under Section 7B of the Indian Telegraph Act as above stated. So far as the question regarding limitation is concerned, in SIDCO’s case (referred supra) it has been held that the said question is required to be decided by the District Collector or other authority referred to in Section 72 of the Act. Substantial questions of law framed are answered as above. Resultantly this Second Appeal succeeds. Judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court are restored with the observation that question regarding limitation if any available to respondent No.1 can be raised before the authorities mentioned under Section 72 of the Act. No cost. THOMAS P.JOSEPH, Judge. cks