IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 1915 of 2005(C) ------------------------- PETITIONER(S): --------------- RABEKKA WILSON, W/O. GEORGE WILSON, KALA NIVAS, KILIKOLLUR P.O., KOLLAM-4. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------- 1. K.K. DILEEP KUMAR, CONTRACTOR, VARORO KUMARAMANGALAM, EZHUKONE P.O. 2. KERALA STATE CO-OPERATIVE BANK LTD., KOLLAM BRANCH REP.BY ITS MANAGER. 3. EXECUTIVE ENGINEER, K I P (LM) DIVISION NO.V., KOLLAM. 4. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. GOVT. PLEADER SRI. ARAVIND KUMAR BABU T.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 1915/2005 ----------------------------------------------------------------- EXT.P1 TRUE COPY OF STATEMENT SHOWING VARIOUS AMOUNTS RECEIVED BY REPSPECTIVE EXECUTIVE ENGINEERS. EXT.P2 NOTICE DT. 30-1-2004. EXT.P3 REPLY DT. 15-9-2004. EXT.P4 LETTER DT. 17-9-2004. EXT.P5 AFFIDAVIT AND PETITION AND ORDER IN I.A.39/04 IN O.A.191/03. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 1915 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10th December, 2009. J U D G M E N T The petitioner was a surety for repayment of loan amounts taken by the 1st respondent from the 2nd respondent for execution of certain works awarded by the 3rd to the 1st respondent. The 1st respondent defaulted repayment of the amount due to the 2nd respondent-bank. The 2nd respondent initiated proceedings for recovery of the same as evidenced by Ext. P2. By Ext. P3, the petitioner informed the 2nd respondent-bank that amounts are due from the 3rd respondent to the 1st respondent in respect of the work executed by the 1st respondent on behalf of the 3rd respondent, which may be proceeded against for recovery of the amounts due. Pursuant thereto, the 2nd respondent addressed Ext. P4 letter to the 3rd respondent. But, no amount was forthcoming. It is under the above circumstances, the petitioner has filed this writ petition seeking the following relief: “Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to transfer the sum of Rs. 3,69,000/- covered by Ext. P1 and the security amount already deposited to the 2nd respondent Bank to clear off the arrears of 1st respondent, principal debtor.” 2. It turns out that the petitioner had earlier approached this Court by filing W.P(C) No. 1915/2005, in which the following judgment was passed: “The petitioner is a surety for a loan advanced by the 2nd respondent bank to the 1st respondent. Amounts are due to the 1st respondent from the 3rd respondent. Such amounts are not being released by the 3rd respondent to the 1st respondent. The 2nd respondent is initiating steps against the petitioner, the surety of the 1st respondent. W.P.C. No. 1915/2005. -: 2 :- 2. The petitioner contends that the 3rd respondent is illegally, arbitrarily and unreasonably withholding amounts which are due to the 1st respondent. The learned Government Pleader on instructions submits that the 3rd respondent is unable to release the amounts to the 1st respondent in view of an order issued by the Debts Recovery Tribunal, Ernakulam. Specific order is issued to the 3rd respondent, not to release the amount. No contention to the contrary are urged by the petitioner. I am in these circumstances of the opinion that the prayer in this writ petition cannot be allowed. Accordingly, the writ petition is dismissed.” The petitioner now contends that the submission of the learned Government Pleader, which has been recorded in that judgment, is wrong and the amount in question was not attached by the Debt Recovery Tribunal as stated by the learned Government Pleader. The petitioner has filed Ext. P5 in support of this contention. Ext. P5 is the I.A filed by the State Bank of India before the Debt Recovery Tribunal for attachment of amounts due to the 1st respondent. The petitioner would contend that from the schedule of attachment, it is clear that the particular amount was not part of the attachment schedule. The schedule of attachment reads thus: “All the amounts due to the 1st defendant Sri. K.K. Dileep Kumar, Govt. Contractor, Varoor, Kumaramangalam, Ezhukone Post, Kollam relating to the bills due to him on his contracts works including all the amounts of the security deposits related to the works undertaken and carried out by Sri. K.K. Dileep Kumar and now held by the Garnishees 1 to 5 as named in the petition for attachment as they are the custodians of the funds of Sri. K.K. Dileep Kumar.” After reading the same, I am unable to agree with the learned counsel for the petitioner. The petitioner relies on the words “now held by garnishees 1 to 5 as named in the petition for attachment”. I am of opinion that those amounts are only part of the amounts included in the schedule of attachment. The schedule of attachment includes all W.P.C. No. 1915/2005. -: 3 :- amounts due to the 1st respondent relating to the bills due to him on his contract works including the amounts held by the garnishees 1 to 5. Therefore, the contention of the petitioner that the schedule includes only the amounts held by garnishees is clearly not correct. Even otherwise, the 2nd respondent cannot be prevented from proceeding against the petitioner and the 1st respondent for recovery of amounts due to them from the 1st respondent and the petitioner. Therefore, I do not find any merit in the writ petition. Accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.