IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 AS.No. 940 of 1998() ------------------------------ OS.61/1993 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT(S): PLAINTIFF ---------------------------------------- THE KOLLAM MUNICIPAL COUNCIL, REP.BY THE SECRETARY, KOLLAM. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): DEFENDANT ----------------------------------------------- 1. MOHAMMED HAMSA, VAYALIL THOPPIL VEEDU, POLAYATHODU, KOLLAM. 2. MOHAMMED, RESIDING AT SHAH MANZIL, POLAYATHODU, KOLLAM. ADV. SRI.P.B.SURESH KUMAR(QUILON) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.940 OF 1998 ............................................. Dated this the 2nd day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kollam in O.S.No.61/1993. The suit is one for realisation of amount. The defendants have bid the right to collect fee from the public market for a period from 1.4.1988 to 31.3.1989 for an amount of Rs.64,000/=. An agreement was entered into between the defendants and the plaintiff and the first defendant had paid Rs.8,000/= as the first instalment of the bid amount. The balance amount has to be paid in six equal instalments. He paid a sum of Rs.6,000/= on 24.11.1988 as the second instalment and thereafter did not pay any amount. Therefore the plaintiff has filed the suit for realisation of the amount. 2. The contention raised by the defendants is that the suit is barred by limitation and as the suit is barred by limitation, the plaintiff is not entitled to the amount. On an analysis of the materials, the court found that the claim is barred by limitation and therefore, non suited the plaintiff. It is against that decision, the plaintiff has come up in appeal. : 2 : A.S.NO.940 OF 1998 3. Heard the learned counsel for the appellant as well as the respondents. The following facts are admitted. The first defendant was a bidder to collect fee from the market for a period of one year i.e. from 1.4.1988 to 31.3.1989. He had bid for Rs.64,000/=. He had deposited Rs.8,000/= initially and subsequently in November 1988 had deposited another Rs.6,000/=. As per the terms of the contract, he was bound to deposit the entire amount by way of instalments by October, 1988. So, really the entitlement of the plaintiff to claim entire amount has come into effect in October, 1988. Even by stretching the law in favour of the plaintiff, at the most he can extend it up to the termination of the contract i.e., 31.3.1989. The suit is instituted in the year 1993. So, it is admittedly filed after the period of three years. When this is the situation, the learned counsel for the appellant would contend before me that Section 387 of the Kerala Municipalities Act as it stood then would come to his rescue. Under Section 387 “no distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to the Municipal council under this Act after the expiration of a period of : 3 : A.S.NO.940 OF 1998 three years from the date on which distraint might first have been made, a suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum.” 4. According to the learned counsel for the appellant, the municipal council's right to claim the amount has started only after the issuance of the notice and after the resolution taken for proceeding against the defendants. So, it is contended that from that day onwards, the council will get three years' time to institute the suit and therefore, the suit is not barred by limitation. The learned counsel has relied upon a decision of this Court reported in K. G. Sreenivasan Nair v. Priyasenan (1989 (1)KLJ 100). In that case, a learned Judge of this Court held that “Section 387 specifically says that if a suit is to be filed for realisation of the amount, it can be had within three years from the date on which a suit might first have been instituted. That means, a civil suit for realisation of the amount will not be barred by limitation unless after the expiry of three years from the date on which the Municipal Council obtained the : 4 : A.S.NO.940 OF 1998 right to realise the same”. The learned Judge in para-19 had also dealt with the same. The learned Judge held that a civil suit for realisation of the amount will not be barred by limitation unless after the expiry of three years from the date on which the Municipal Council obtained the right to realise the same. Obtainment of the right is specifically made clear under Section 387 to the effect that it must be “a suit might first have been instituted”. So a suit might first have been instituted means three years from the date on which the suit should have been filed. 5. The learned counsel for the respondents had cited a decision of this Court reported in Krishna Das v. Pathanamthitta Municipality (1983 KLT 656). There also the Hon'ble Judge held that “a reading of the provisions in the sections mentioned above clearly shows that there is a limitation prescribed for recovery of the amount by way of tax or other sums due to a Panchayat or a Municipality under the Panchayat and Municipal Acts or any rule, bye- law, regulation or order made under the above said Acts. No tax or other sum due to a Panchayat or a Municipality can : 5 : A.S.NO.940 OF 1998 be recovered after the expiry of a period of three years from the date on which a distraint might first have been made, a suit might first have been instituted. The facts of this case makes it clear that immediately after October, 1988 the municipality did get first right to institute the suit. So when that right has accrued in October, 1988 the suit should have been filed by excluding October at least by November 1991. By liberally construing if it is extended till the term of expiry of the contract, it should have been instituted within three years from 1.4.1989 at least. Now the suit is instituted only in the year 1993 and therefore the suit instituted after three years under such circumstances is barred by limitation and Section 387 does not come to the rescue of the municipality and Section 387 acts against them for non taking of action in the appropriate time. Therefore, I do not find any error committed by the court below in passing the decree and judgment dismissing the suit of the plaintiff. Therefore the appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.940 OF 1998 : 7 : A.S.NO.940 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.940 OF 1998 ............................................. 2nd day of September, 2010. J U D G M E N T