IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 RSA.No. 1085 of 2009() ---------------------- AS.11/2008 of PRINCIPAL SUB COURT,ALAPPUZHA OS.775/2005 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------- N.S.ROY, S/O.SREEDHARAN, NALLEDATHU HOUSE, PONNADU P.O., MANNANCHERY, ALAPPUZHA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.SOJI, S/O.T.V.THANKAPPAN, THAKKIDIYIL HOUSE, PONNADU PO, MANNANCHERY, ALAPPUZHA. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE SPECIAL THAHASILDAR (REVENUE RECOVERY), TALUK OFFICE, AMBALAPUZHA, ALAPPUZHA. 3. THE VILLAGE OFFICER, MANNACHERRY P.O., ALAPPUZHA. 4. BHARAT SANCHAR NIGAM LTD., REPRESENTED BY CHIEF GENERAL MANAGER, TELECOMMUNICATIONS, KERALA CIRCLE, THIRUVANANTHAPURAM. 5. THE GENERAL MANAGER, TELECOMMUNICATIONS, BSNL, ALAPPUZHA. GOVERNMENT PLEADER : SRI L G SURESH BABU FOR R1 SRI.V.R.KESAVAKAIMAL, SC, BSNL FOR R4 & R5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1085 of 2009 P --------------------------------------- Dated this 16th day of November, 2009 JUDGMENT Admit. Government Pleader takes notice for respondent Nos.1 to 3. Standing counsel, Sri.V. R. Kaimal appears for respondent Nos.4 and 5. 2. The second appeal arises from judgment and decree of learned Principal Sub Judge, Alappuzha in A.S.No.11 of 2008 confirming judgment and decree of learned Principal Munsiff, Alappuzha in O.S.No.775 of 2005. Appellant sued the respondents for injunction against initiating revenue recovery proceedings against him and the schedule properties for amount allegedly due from him to respondent Nos.4 and 5. Respondent was conducting a jewellery shop at Cherthala and was a subscriber of telephone connection under respondent Nos.4 and 5. His case is that he wound up his business in 1993 and at that time on his request his telephone was kept in the safe custody of respondent Nos.4 and 5. While so on 25-03-1997 a notice was served on him demanding payment of Rs.12280/- and threatening to disconnect the telephone connection on failure of payment of the amount. On enquiry respondent learned that the amount claimed was actually due for the telephone connection given to M/s. Ganga Lorry Transports. To prevent disconnection of another telephone in her name, wife of appellant field O.S.No.369 of 1999 R.S.A.No.1085 of 2009 2 which ultimately was dismissed. According to the appellant, he is not liable to pay any amount. It is also contended that at any rate, claim of respondent Nos.4 and 5 is barred by the law of limitation and hence not recoverable under the Revenue Recovery Act (for short, “R. R. Act”). Respondent Nos.1 to 3 contended that they have initiated proceedings under the Act on receiving requisition from respondent Nos.4 and 5 and they are entitled to collect the amount under the Act. Respondent No.5 contended that on 25-06-1993 appellant had applied to shift his telephone to M/s. Ganga Lorry Transports (as per Ext.B2) and accordingly, that telephone was shifted to the premises of M/s. Ganga Lorry Transports on 09-07-1993. The STD facility was barred on the request of appellant on 19-08-1993 and the telephone number also was changed. Respondent No.5 claimed that Rs.12,280/- is due from the appellant for period from 1994-1995. On 09-03-1997 notice was issued to the appellant and his wife to clear the liability. It is while so that wife of appellant filed O.S.No.369 of 1999 which was dismissed on 30-01-2006. Respondent No.5 claimed that for recovery of the amount due to it, the period of limitation is twelve years under Article 112 of the Limitation Act. Trial court found that appellant is liable to pay the amount claimed by respondent Nos.1 to 5. It also found that the claim of the appellant regarding limitation cannot be sustained. Accordingly the suit was dismissed. That has been confirmed by the first appellate R.S.A.No.1085 of 2009 3 court. In the second appeal, it is contended that the finding of the courts below regarding liability and limitation are not correct. Learned Government Pleader and standing counsel appearing for respondent Nos.1 to 5 would support the judgment and decree of the courts below. 3. So far as the finding of the courts below regarding liability of the appellant is concerned, it is based on the evidence produced by respondent Nos.4 and 5. Respondents produced Exts.B1 to B6. Ext.B2 is the request dated 25-06-1993 which according to respondent Nos.4 and 5 was made by the appellant to shift his telephone to the premises of M/s. Ganga Lorry Transports. According to the appellant, he has not made any such request and in so far as he denied that he made any such request, it was for respondent Nos.4 and 5 to prove the same. Courts below in the facts and circumstances of the case found that there is no reason to disbelieve Ext.B2 produced by respondent Nos.4 and 5 from their lawful custody. There is no case and there is no reason to think that respondent Nos.4 and 5 have fabricated Ext.B2. On the facts and circumstances of the case, if the appellant disputed Ext.B2, it was for him to show that it did not contain his signature. So far as the finding regarding liability of the appellant is concerned, no substantial question of law is involved in that matter and hence no interference required in second appeal with respect to that finding. 4. So far as the contention that claim of respondent Nos.4 and R.S.A.No.1085 of 2009 4 5 is barred by limitation is concerned, reliance is placed by learned counsel for respondent Nos.4 and 5 on Article 112 of the Limitation Act. According to the learned counsel for appellant that provision is not available to respondent Nos.4 and 5 since that Article only concerned amount due to the “State” while, BSNL is only a corporation though owned by the Central Government and cannot be treated as “State” so as to come under Article 112 of the Limitation Act. 5. The question whether the amount claimed by respondent Nos.4 and 5 is legally recoverable due to the bar of limitation if any is a matter which the Collector or other authority mentioned under section 72 of the R.R.Act is authorized to decide. If recoverability of the amount is barred by limitation, that is certainly a matter pertaining to execution of the written demand as understood under section 72 of the Act which the Collector or other authority referred to therein is required to consider and reading the proviso of section 72, it leaves me in no doubt that in such a situation a suit can be sustained only on the ground of fraud. Though, none of the respondents have taken up a specific contention regarding bar of suit under section 72 of the Act, I am in view that the question regarding recoverability of the amount claimed by the respondent on account of plea of limitation raised by the appellant is not a matter to be decided by the Civil Court and instead, that question has to be decided by the Collector or other R.S.A.No.1085 of 2009 5 authority referred under section 72 of the Act any. I draw support for that view from the decision in Chinnaswamy Vs. State of Kerala (2009 (2) KLT 525) and the unreported decision in KSIDC Vs. Gab Industries and Others (S.A.No.774 of 1995) decided on 08-10- 2009. Hence courts below were not correct in dealing with the issue regarding limitation in the present case. That issue has to be left open for decision by the Collector or other authority mentioned in section 72 of the Act. 6. In the light of what I have stated above, the finding of the courts below regarding issue of limitation is set aside and left open for consideration by the Collector or other authority under section 72 of the Act, if and when such an issue is raised before them against execution of the written demand. With the above observations the second appeal is dismissed. THOMAS P JOSEPH, JUDGE Sbna/