IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 AS.No. 481 of 1999() -------------------- OS.418/1995 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT/PLAINTIFF: ----------------------------------- M/S.KAUMUDI INVESTMENTS (P) LTD., A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT HAVING ITS REGISTERED OFFICE AT 10.B, SARASWATHI NILAYAM, JAWAHARNAGAR, TRIVANDRUM, PIN-695 014, REP. BY ITS DIRECTOR, M.S. MADHUSOODANAN. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE RESPONDENT/DEFENDANT: ----------------------------------------- CORPORATION OF COCHIN, REPRESENTED BY COMMISSIONER, CORPORATION BUILDINGS, ERNAKULAM. ADV. SRI.K.G.SARATHKUMAR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 481 OF 1999 = = = = = = = = = = = = = = = Dated this the 24th day of May 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Ernakulam in O.S.418/95. The plaintiff moved a suit for declaration that the demand notice dated 20.12.94 is illegal, null and void and to pass a decree for declaration that the defendant is not entitled to collect any amount from the plaintiff as per the demand notice dated 20.12.94 without adjusting the amount due to the plaintiff and also for passing a mandatory injunction directing the defendant to return the articles in schedule A details to the plaintiff etc. The suit was dismissed by the trial court and it is against that decision the plaintiff has come up in appeal. 2. The short facts necessary for the disposal of the appeal are that the plaintiff owned a flat in Asoka Apartments. During the period from 1984-1985 to 1994- A.S. 481 OF 1999 -2- 95 property tax was assessed at Rs.31,704 plus a fine amount of Rs.3,670/-. The plaintiff did own a town house in Foreshore road and for which there was an assessment of enhanced building tax which on revision was reduced from Rs.2,310.50 to Rs.971.25. The plaintiff would contend that he is entitled to get a refund of Rs.10,203.79 with interest. Therefore it is contended that the Corporation is not entitled to realise the amount or issue a notice demanding payment without adjusting the amount. 3. On the other hand the defendant would contend it is incorrect to hold that the plaintiff is to be given refund of the amount by the defendant. The demand notice issued is legal and the plaintiff is liable to pay the amount which represents the arrears of tax pertaining to the building and when the plaintiff persistently refused to pay, action was initiated and movables were attached. So the suit has to be dismissed. A.S. 481 OF 1999 -3- 4. In the lower Court Exts.A1 to A3 were marked and on an analysis of the materials the learned Judge dismissed the suit. It is against that decision the plaintiff has come up in appeal. The point that arises for determination is whether there is anything to interfere with the decision of the trial court. The clever plaintiff wanted to avoid the liability due from him on the ground that in respect of some other building he is entitled to refund and therefore the amount already paid towards that building has to be adjusted and the balance has to be claimed. It has to be stated that when the assessment notice was issued the plaintiff never brought to the notice of the Corporation with respect to the refund. He did not do anything, he did not pay the amount as well and when he is at the threshold of forceful realisation of the amount, he had rushed to the Court with a prayer for declaration. 5. So far as the assessment proceedings are concerned it is some thing which is done under a statute A.S. 481 OF 1999 -4- and statutory remedies are provided and the civil Court has no jurisdiction to entertain the correctness of the assessments made. Similarly there will be general provisions regarding the refund as well. If a person is entitled to refund it is for him to approach the authority and claim refund. 6. Now the learned counsel for the plaintiff relied upon a decision of the Hon'ble Supreme Court reported in Punjab National Bank v. Surendra Prasad Sinha (AIR 1992 SC 1815). There it was a criminal case. It was a case where the sum adjusted by the creditor was already in the possession of the creditor and it was lying as a security furnished by the judgment debtor for securing the loan covered by the very same transaction. There the adjustment was already made by the creditor before the suit itself. It is against that decision criminal proceedings were initiated and the Hon'ble Supreme Court held that when an amount is due the liability does not get automatically dissolved or only the right to A.S. 481 OF 1999 -5- recover through law gets extinguished. 7. Here refund is a thing which is on the basis of an assessment made with respect to another building. The amount due is more than Rs.34,000/-. A person who does not take the refund because of his default cannot claim interest as well. So only an attempt is made to avoid realisation of the amount really due from him which order has become final and therefore I feel the finding of the Court below is perfectly justifiable and does not call for any interference. Therefore the appeal is devoid of merits and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 481 OF 1999 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 481 OF 1999 = = = = = = = = = = = J U D G M E N T 24th May, 2010.