IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 OP.No. 27325 of 2000(C) ----------------------- PETITIONER(S): --------------- 1. MATHAI DEVASIA, VENATTUSSERIL HOUSE, VELIYANADU P.O., ALAPPUZHA. 2. DEVASIA KURIAN, -DO- BY ADV. SRI.JOMY GEORGE RESPONDENT(S): --------------- 1. AGRO INDUSTRIES CORPORATION, TRIVANDRUM, REP. BY ITS MANAGING DIRECTOR. 2. DISTRICT COLLECTOR, ALAPPUZHA. 3. TAHSILDAR (R.R), KUTTANADU, ALAPPUZHA. 4. VILLAGE OFFICER, KUNNUMMA VILLAGE, KAVALAM, ALAPPUZHA. 5. E.C.JOSEKUTTY, ILLAMPALLIYIL, VELIYANADU P.O., ALAPPUZHA. GOVERNMENT PLEADER SHRI.M.R.SABU FOR R2,3&4 SRI.P.C.HARIDAS FOR R5 SRI.A.M.SHAFFIQUE FOR R1 SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SMT.PRIYA MAHESH FOR R1 SMT.PRIYA MANJOORAN FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31.10.2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.27325/00. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE SALE DEED DTD.21.7.69. P2. COPY OF THE SALE DEED DTD.8.6.90.\ P3. COPY OF THE TAX RECEIPT DTD.19.7.90. P4. COPY OF THE REPRESENTATION DTD.30.10.96 P1 TO R3. P5. COPY OF THE NOTICE DTD.NIL TO R1. P6. COPY OF THE REPLY DTD.21.9.2000 BY P1 TO R3. P7. COPY OF THE LEGAL NOTICE DTD.16.9.2000. RESPONDENTS' EXHIBITS: R1A. COPY OF THE H.P. APPLICATION. B COPY OF THE CREDIT WORTHINESS CERTIFICATE DTD.3.7.81. C. COPY OF THE H.P. AGREEMENT. D. COPY OF THE SEIZURE NOTICE DTD.19.1.84 BY R1. E. COPY OF THE R.R.REQUISITION DTD.13.10.86. F. COPY OF THE REPLY NOTICE DTD.20.9.2000. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.27325 of 2000 ================== Dated this the 31st day of October, 2008 J U D G M E N T The petitioners jointly purchased the property which is the subject matter of this original petition and later, the 1st petitioner transferred his share in the same also to the 2nd petitioner. The petitioners challenge proceedings under the Revenue Recovery Act initiated by respondents 2 to 4 by the sale of that property, for recovery of the amounts due from the 1st petitioner to the 1st respondent in a loan transaction, on the ground that the 1st petitioner stood as guarantor for the 5th respondent, who is the principal debtor. The petitioners' contention is that the 1st petitioner never stood as guarantor for any loan, much less, the loan given to the 5th respondent by the 1st respondent. According to them, the entire transaction was a fraudulent action by the then Village Officer. In respect of the same, the Revenue authorities have made an enquiry in which it was found that the Village Officer fraudulently fabricated documents forging the 1st petitioner's signature and obtained loan from the 1st respondent. Therefore, according to the petitioners, the properties belonging o.p.27325/00 2 to the petitioners are not liable to be proceeded against in the revenue recovery proceedings. 2. The 1st respondent has filed a counter affidavit denying all the averments of the petitioners. According to 1st respondent, the security documents were executed by the 1st petitioner himself and they have no reason to believe otherwise. They categorically deny the alleged fact that the 5th respondent along with the then Village Officer fraudulently fabricated documents forging the 1st petitioner's signature and obtained loan from the 1st respondent. 3. I am of opinion that these disputed questions of fact cannot be decided in an original petition since the same requires evidence especially in respect of forgery. The petitioners have also not produced any convincing material before me, by which I can come to the conclusion that the petitioners' allegation that the 1st petitioner's signature was forged in the security documents, is correct. Without a finding in respect of the genuineness of those documents, no relief can be granted to the petitioners in this original petition. Ordinarily this Court cannot take evidence in proceedings under Article 226 of the Constitution of India. Evidently, the petitioners' remedy lies o.p.27325/00 3 elsewhere. Learned counsel for the petitioners makes a fervent plea that in case the petitioners file a suit for the same relief, the period during which this original petition was pending before this Court may be excluded for the purpose of calculating limitation. I do not think that I can give such a direction against the law of limitation. However, if under the law of limitation, the petitioners are entitled to exclusion of that period for the purpose of limitation, the petitioners can certainly contend so in any other proceedings that may be initiated by the petitioners in this regard. The original petition is disposed of with the above observations without prejudice to the right of the petitioners to seek other remedies available to them under law. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.27325/00 4 S.SIRI JAGAN, J. ================ O.P.No.27325 of 2000-C ================ J U D G M E N T 31st October, 2008 o.p.27325/00 5