IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 AS.No. 833 of 1997(E) ------------------------ OS.296/1994 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S)/PLAINTIFF: -------------------------------- JANAMMA W/O CHELLAPPAN, THULAMUTTATHU, ATTUVATHALA MURI, CHAMPAKKULAM VILLAGE, KUTTANAD. BY ADV. SRI.P.KESAVAN NAIR SRI.K.G.CLEETUS RESPONDENT(S)/DEFENDANTS: ---------------------------------------- 1. TAHSILDAR, TALUK OFFICE, KUTTANAD. 2. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, ALAPPUZHA. GOVERNMENT PLEADER SRI. BENNY VARGHESE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 833 OF 1997 = = = = = = = = = = = = = = = Dated this the 15th day of January, 2009. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.296/94 of the Subordinate Judge, Alappuzha. It is a suit filed to declare that the Order No.D5-4/93/Misc. Dated 3.6.94 passed by the first defendant is null and void and to restrain the defendants or anybody under them from taking any steps pursuant to the said order against the plaint schedule properties and for costs etc. The plaintiff is the widow of one Chellappan. The said Chellappan had taken an auction right to collect toll from two bridges in the Alappuzha- Changanassery road for a total amount of Rs.12,52,553/-. At the time of the said auction the petitioner was entitled to collect toll from buses belonging to the K.S.R.T.C. Subsequent to the same the Government promulgated Ext.P10 Ordinance whereby it exempted the Corporation from payment of toll. It is contended that on account of the same there was A.S. NO. 833 OF 1997 -2- substantial reduction in the collection of the toll and therefore Chellappan filed writ petitions before this Court and this Court directed him to file representations before the Government for consideration of his grievance. It is stated that the Government deducted an amount of Rs.57,942/-. In spite of the same and after the expiry of the period of contract the amount was not paid by the said Chellappan and therefore action was initiated. When it was initiated it was found that he had transferred his properties in favour of different persons including his wife who is the present plaintiff. But the plaintiff would contend that no amount could have been collected from Chellappan for the reason that there has not been any proper quantification of the amount to be deducted and it was only a unilateral act and thereby there was no quantified amount due from Chellappan and therefore the action initiated is illegal. The plaintiff also contends that even prior to the transfer in her favour she was in possession of the property and therefore by any stretch of imagination her property could not be proceeded against for the amount if any due from Mr.Chellappan. A.S. NO. 833 OF 1997 -3- 2. On the other hand the defendants would contend that after putting in auction and collecting the amount Chellappan did not pay the amount due and on the basis of his representations some reduction was granted and in spite of repeated opportunities he did not pay the amount, he had fraudulently transferred the property in favour of his wife and therefore the contention of the plaintiff cannot be sustained. 3. The trial court on a consideration of the materials available had found against the plaintiff and dismissed the suit. It is against that decision the plaintiff has come up in appeal. Learned counsel for the appellant contends before me that unless and until there is a quantified amount due from Chellappan the authorities are precluded from proceeding and further as the plaintiff is in possession of the property it cannot be proceeded against for the debt even if due from the said Chellappan . 4. Let me first consider about the plea of quantification. Admittedly the husband of the plaintiff bid in auction the right to collect toll of two bridges in Alappuzha- Changanassery road. Unfortunately the Government A.S. NO. 833 OF 1997 -4- promulgated ordinance whereby it exempted K.S.R.T.C Buses from the purview of payment of toll. Being aggrieved by the same as it will affect his collection he moved writ petitions before this Court and this Court directed the Governmental agency to consider his plea. Subsequently the P.W.D. Superintending Engineer had found that the said Chellappan is entitled to a reduction of Rs.57,492/-. So as directed by this Court the Government have passed an order scaling down the amount and it is seen from the plaint itself that Mr.Chellappan had been pursuing the matter and ultimately nothing has come out and so it cannot be said that there had been no quantification of the amount in this case. Whether the quantification is proper or improper should have been a subject matter in appeal or revision against the order and so long as it has not been done it has to be treated as final which is binding on the party. Therefore it is futile to contend that there has not been any quantification and that it is an unilateral decision. So the said contention cannot be hold good. A.S. NO. 833 OF 1997 -5- 5. The next point to be considered is whether the Government is entitled to proceed against the property of the plaintiff. The plaintiff is none other than the wife of Chellappan. The contract is for the period from 16.6.89 to 31.3.90. The amount was due on 1.4.90 and it is seen that just like any other amount it is an amount that is recoverable by the Government under the provisions of the Revenue Recovery Act. On 14.9.90 a document is executed in favour of the plaintiff. The Government would contend that the said document is only with the object to defeat the creditor. The said contention cannot be found to be faulty for the reason that attempts were made right from the inception by Mr.Chellappan not to pay the amount. The back drop of the litigation would reveal that at each and every point of time he had been approaching the authorities to avoid the payment. That is why most probably this Court in writ petition No.8077/89 held that this will not exonerate him from his liability to pay the balance amount due from him. So fully knowing the factum of balance amount due the said Chellappan had effected a transfer and therefore that transfer A.S. NO. 833 OF 1997 -6- will not bind the Government from proceeding against that property. So it cannot be found fault with. Under the provisions of the Revenue Recovery Act, the only situation where a suit is maintainable against the revenue recovery is where the question of fraud is invoked. Except for some vague averments in the plaint that too only in the form of quantification no other materials are there. The plea of quantification is not available in this case and therefore S.44 also will stand in the way of plaintiff in getting any relief. As stated earlier facts of the case would conclusively establish that even on facts the plaintiff is not entitled to any relief as prayed for. Therefore the order passed by the Tahsildar cannot be found fault with and it does not suffer from any infirmity. So it has to be held that the plaintiff is not entitled to any relief and there is nothing to interfere with the decision rendered by the trial court. Therefore the appeal is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 833 OF 1997 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 833 OF 1997 = = = = = = = = = = = J U D G M E N T 15th January, 2009.