IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WA.No. 1839 of 2003 ----------------------------- AGAINST THE JUDGEMENT IN OP.2235/2003 Dated 28/01/2003 .................... APPELLANTS/ PETITIONERS: ----------------------------------------- 1. N.M.KURIAKOSE, SON OF N.I.MATHEW, NIRAVATHUKANDATH HOUSE, AYAMKARA, PAINGOTTOOR P.O., KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 2. A.V.SIMON, SON OF KORA VARGHESE, AMBAZHACHALIL HOUSE, PUTHUPADY, P.O.,KOTHAMANGALAM, ERNAKULAM DISTRICT. 3. P.V.CHACKOCHAN, SON OF P.C.VARKEY. BY ADV. SRI.S.V BALAKRISHNA IYER [SR] SRI.P.V.BABY RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. THE KERALA FINANCIAL CORPORATION, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 003 REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE DIVISIONAL MANAGER, KERALA FINANCIAL CORPORATION, ERNAKULAM. 3. MESSRS. GEECO PLASTICS, VENGOOR P.O., PERUMBAVOOR, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, JOY VARGHESE. WA.No. 1839 of 2003 -2- 4. JOY VARGHESE, MANAGING PARTNER, M/S.GEECO PLASTICS, VENGOOR P.O., RESIDING AT PANDIKUDIYIL HOUSE, VENGOOR P.O., KUNNATHUNAD, ERNAKULAM DISTRICT. 5. JOSE VARGHESE, PARTNER, M/S.GEECO PLASTICS, VENGOOR P.O., RESIDING AT PANDIKUDIYIL HOUSE, VENGOOR P.O., KUNNATHUNAD, ERNAKULAM DISTRICT. 6. JAIMON, PARTNER, M/S. GEECO PLASTICS, VENGOOR P.O., RESIDING AT POOMKAVANAM HOUSE, PANIYELI P.O., KOMBANADU VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. 7. THE DEPUTY TAHSILDAR (R.R), KERALA FINANCIAL CORPORATION, ERNAKULAM-682 017. 8. THE VILLAGE OFFICER, VENGOOR, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. 9. THE VILLAGE OFFICER, KOMBANADU VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 10. THE VILLAGE OFFICER, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 11. THE VILLAGE OFFICER, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. R1 & R2 BY STANDING COUNSEL SRI.T.V.GEORGE R 8 TO R11 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.No.1839 of 2003-D ---------------------------------------------- Dated, this the 23rd day of October, 2008 JUDGMENT A.K.Basheer, J. The appellants had filed the writ petition under Article 226 of the Constitution of India primarily impugning Ext.P8 communication issued by the Deputy Tahsildar, Kerala Financial Corporation, Kaloor, Ernakulam, to the Village Officers of Vengoor, Kombanad, Kadavoor and Kothamangalam directing them to attach and take possession of the properties situated in their respective villages and belonging to the defaulters including the petitioners, mentioned in the schedules annexed to the said communication. Inter alia, the appellants had further prayed for grant of a declaration that the respondents had no legal authority to proceed against their property, either movable or immovable otherwise than proceeding against the property mentioned in Exts.P4 and P5 which were furnished as collateral security to the extent of 2 acres and 20 cents situated in Sy. No.98/1/2 in Vengoor Village in Kunnathunad Taluk. 2. The learned Single Judge, after considering the rival contentions of the appellants and the Corporation, had disposed of the W.A.No.1839/2003 -2- writ petition holding that the appellants were not entitled to get any relief in the writ petition. Further, it was made clear that respondents 1 and 2 were free to recover the arrears in accordance with the agreement dated 3-1-2000 from the appellants, by attachment of their movable and immovable properties including the mortgaged properties. However, it was observed that the respondents should proceed against the mortgaged property first and the movables and other properties belonging to the appellants should be attached and sold only after the sale of the mortgaged property. 3. Sri.S.V.Balakrishna Iyer, learned senior counsel has taken us through several documents produced by the appellants along with the writ petition, in addition to a few others produced along with the writ appeal as well. The primary contention raised by the appellants appears to be that they came in to the picture as co-obligants at a later stage and that they had mortgaged the property referred to above with an extent of 2 acres 20 cents as security only for a sum of Rs.14 lakhs towards additional working capital as reflected in Ext.P3. It is further contended that the revenue recovery proceedings proposed to be initiated pursuant to Exts.P6, P7 and P8 cannot be justified inasmuch as the said recovery relates to the entire outstanding liability of the principal W.A.No.1839/2003 -3- debtors. In other words, the contention is that the recovery proceedings, if any, against the appellants has to be confined only to the sale of the mortgaged property having an extent of 2 acres 20 cents and that too only for recovery of Rs.14 lakhs with interest thereon. 4. We are afraid, the above contention cannot be entertained by us at this stage for the sole reason that the apprehension of the appellants based on Ext.P8 is totally misconceived. Ext.P8 as mentioned earlier, is a communication issued by the Deputy Tahsildar to four Village Officers directing them to proceed against the properties situated in their respective villages belonging to the defaulters. Indisputably, recovery proceedings can be initiated in a manner known to law and as contemplated under the Revenue Recovery Act and the Rules framed thereunder. Admittedly, the appellants had mortgaged their property situated in Sy.No.98/1/2 in Vengoor village having an extent of 2 acres 20 cents. Revenue recovery proceedings had been initiated only in respect of those properties which were mortgaged in favour of the Corporation. Even in Annexure D of Ext.P8, only that item of property which the appellants had admittedly mortgaged has been mentioned. Therefore, the apprehension raised by the appellants as regards Ext.P8 is totally misconceived. In that view of the matter, we W.A.No.1839/2003 -4- have no hesitation to hold that the learned Judge was justified in rejecting the contentions raised by the appellants. 5. However, it is made clear that, if and when revenue recovery authorities initiate any proceedings against the appellants in respect of other properties belonging to them in accordance with the procedure prescribed under the Act and the Rules, it will be open to them to urge all their contentions before the appropriate authority. Reserving such liberty in favour of the appellants, the Writ Appeal is closed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS