IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE SRI JUSTICE V.V.S.RAO MONDAY, THE FIFTH DAY OF OCTOBER TWO THOUSAND AND NINE Writ Petition No.17694 of 2002 Between: M.A.Nazir, S/o. Late Mohammed Ismail, Aged 45 years, R/o. 8-1-21/65, Surya Nagar Colony, Toli Chowki, Hyderabad, Occ: Business …Petitioner AND The State of A.P. duly represented by The District Collector, Hyderabad District Collectorate, Nampally Station Road, Hyderabad. And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO Writ Petition No.17694 of 2002 ORDER The Petitioner successfully bid in auction conducted by third respondent for collection of abnus leaves (Beedi leaves) during the season 1994-1995. He was allotted two lots (areas) on 01.06.1995, namely, Lot No.01413 of Makdi Society, Kondagaon District and lot No.01527 of Sukha Society, Bastar District. As per the terms and conditions of tender, petitioner deposited a sum of Rs.1,98,631.98 ps., (Rupees one lakh ninety eight thousand six hundred and thirty one and paise ninety eight only) towards earnest money deposit. He is required to pay royalty to third respondent in equal instalments. Petitioner alleges that leaves supplied to him were of sub-standard. Therefore, he abandoned the contract. Third respondent, therefore, re-auctioned material and recovered some amounts, which was far less than the bid amount. Therefore, third respondent initiated action for recovering difference of value from petitioner. It appears that third respondent addressed a letter to first respondent to recover the amount under provisions of Andhra Pradesh Revenue Recovery Act, 1864 (‘the Act’, for brevity). Second respondent, after issuing demand notice, issued a destraint order on 09.09.2002, attaching house of petitioner’s brother, situated at Tolichowki, Hyderabad. Aggrieved by the same, petitioner filed instant writ petition seeking a Writ of Mandamus declaring action of respondents in issuing impugned destraint order as illegal and arbitrary. Petitioner mainly contends that, when there was no determination of liability of petitioner, second respondent could not have issued destraint order under Section 8 of the Act and recovery proceedings initiated at the instance of third respondent are barred by limitation under Article 17 of the Limitation Act, 1963. Respondents 1 and 2 have not filed counter affidavits, in spite of receiving notice. However, when the matter is being heard, Tahsildar, Shaikpet Mandal, Hyderabad District filed counter affidavit, opposing writ petition. While denying that there is no proper determination, it is stated that District Forest Products Officer of third respondent passed orders on 01.08.1997, determining an amount of Rs.7,07,424.63 (Rupees seven lakh seven thousand four hundred and twenty four and paise sixty three only) is the amount due from petitioner. Learned counsel for petitioner relies on State of Kerala v V.R.Kalliyanikutty[1], N.A.Radha v State of Andhra Pradesh, Revenue Department[2] and A.Laxmipathi v Andhra Pradesh State Financial Corporation Ltd.,[3] in support of his submission, that recovery of amount due to third respondent is barred by limitation. This submission is refuted by learned Assistant Government Pleader for Revenue (TA). Section 52-A of the Act provides for recovery of sums due to certain banks under public bodies as arrears of land revenue. Under proviso (ii) of sub-section (1) thereof, the State Government may, by notification in Andhra Pradesh Gazette, specify the loans and advances and other sums due to bodies mentioned under Section 52-A(1)(ii) of the Act, which may be recoverable under said provisions. There is no notification placed before this Court authorizing recovery of amounts due to third respondent under provisions of the Act. In absence of any such notification, it is doubtful whether respondents 1 and 2 can resort to recovery of amount due to third respondent under the Act, for recovery of arrears due to third respondent. Proviso (ii) of Section 52-A(1) authorizes recovery of “sums due”. This only means the legally enforceable debt, which is not barred by limitation. V.R.Kalliyanikutty (supra) is a case, which arose under Section 71 of the Kerala Revenue Recovery Act, 1968, which is similar to Section 52-A of the Andhra Pradesh Revenue Recovery Act, 1864. Section 71 of the Kerala Revenue Recovery Act, 1968 enabled, like in the case of proviso (ii) of Section 52-A(1), to recover “sums due” as land revenue. But, Supreme Court observed that amount “due” normally refers to the amounts, which, a creditor has right to recover. When such amount or debt amount is time barred, the same cannot be described as amount due, which a creditor can recover. In view of this, while holding that under Section 71 of the Kerala Revenue Recovery Act, the claims, which are time barred on the date of requisition is issued, are not “amounts due”. The Supreme Court observed as under. There is no question, however, in the present case of any payment voluntarily made by a debtor being adjusted by his creditor against a time-barred debt. The provisions in the present case are statutory provisions for coercive recovery of “amounts due”. Although the necessity of filing a suit by a creditor is avoided, the extent of the claim, which is legally recoverable, is not thereby enlarged. Under Section 70(2) of the Kerala Revenue Recovery Act the right of a debtor to file a suit for refund is expressly preserved. Instead of the bank or the financial institution filing a suit, which is defended by the debtor, the creditor first recovers and then defends his recovery in a suit filed by the debtor. The rights of the parties are not thereby enlarged. The process of recovery is different. An Act must expressly provide for such enlargement of claims, which are legally recoverable, before it can be interpreted as extending to the recovery of those amounts, which have ceased to be legally recoverable on the date when recovery proceedings are undertaken. Under the Kerala Revenue Recovery Act, such process of recovery would start within a written requisition issued in the prescribed form by the creditor to the collector of the District as prescribed under Section 69(2) of the said Act. Therefore, all claims, which are legally recoverable and are not time-barred on that date can be recovered under the Kerala Revenue Recovery Act. In N.A.Radha (supra), the action of the SFC to enforce its dues by notices under Section 52-A of Revenue Recovery Act was challenged. This Court following Kalliyanikutty (supra) held as under. The only question that survives and has been urged at the hearing of this writ petition is that the demand by the Corporation of the amounts due from the petitioners is barred by limitation and as such enforceable per se or under the provisions of the Act. In view of the decision of the Supreme Court in State of Kerala v Kalliyanikutti, AIR 1999 SC 1305, proceedings under the Act cannot lie for recovery of amounts that are barred by limitation. The question that arises is whether the claim of the respondent – Corporation is barred by limitation and whether this question would be adjudicated in these proceedings. Along with counter affidavit filed by Tahsildar, Shaikpet Mandal, Hyderabad District, order of District authorized officer of third respondent Sangh, bearing No./D.Forest.D.No./2019, dated 01.08.1997 is annexed. When the amount due was determined as of 01.08.1997, recovery proceedings ought to have been initiated on or before 31.07.2000. However, as seen from counter affidavit, Managing Director of Jilla Vanopaj Sahkaari Sangh, Mrydi, South Kondagaon, Baspur District, Chattisgadh, addressed the District Collector, Hyderabad on 28.06.2002, requesting to recover the amounts due from petitioner. In furtherance thereof, second respondent issued notice in August, 2002 followed by destraint order dated 09.09.2002. Thus, recovery proceedings are barred by limitation and the debt, if any, is not legally enforceable. In the result, for the above reasons, the writ petition must succeed. Accordingly, the writ petition is allowed and the impugned notice bearing No.A/C/3160/02, passed in August, 2002 and the destraint order dated 09.09.2002 are set aside. There shall be no order as to costs. ________________ (V.V.S.RAO, J) October 05, 2009 Bvv [1] AIR 1999 SC 1305 [2] 2000 (2) ALT 484 [3] 2008 (6) ALT 205