IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 23650 of 2009(A) -------------------------- PETITIONER(S): --------------- UDAYAN, SARGAM PUNNATHOOR EAST, PUNNATHOOR VILLAGE, PUNATHOOR TALUK, KOLLAM, NOW RESIDING AT QUARTER NO.26 POLICE QUARTERS, ELAMPALLOOR, KUNDARA. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): --------------- 1. THE SPECIAL DEPUTY TAHSILDAR (RR). KERALA STATE FINANCIAL ENTERPRISES LTD ,KOLLAM. 2. THE BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD , PUTHOOR BRANCH,KOLLAM. 3. THE ACCOUNTS OFFICER, DISTRICT POLICE OFFICE, KOLLAM. 4. SOMAN, S/O.VELAYUDHAN, TRIVENI, NEDIYAVILA KUNNATHOOR TALUK NOW RESIDING AT KURAMPALAZHIKATHU VEEDU, THEKKUMPURAM P.O. NEDUVATHOOR VILLAGE, KOLLAM. 5. M.R.USHADEVI, THAYYIL PUTHEN VEEDU, THEKKUMPURAM P.O., PUTHOOR, KOLLAM, (HSA, GOVT.HIGHER SECONDARY SCHOOL, PUTHOOR) KOLLAM. ADV. SRI.K.S.HARIHARAPUTHRAN,SC,K.S.F.E. LTD FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.23650 OF 2009 ------------------------------ Dated this the 29th day of October, 2009 J U D G M E N T ---------------------- 1. Grievance of the petitioner is against Ext.P7 prohibitory order issued by the 1st respondent directing to recover an amount of Rs.3000/- per month from the salary of the petitioner, towards realisation of the amounts due to the 2nd respondent. The petitioner who is working as a Police Constable stood as surety for the 4th respondent with respect to a chitty transaction availed from the 2nd respondent. Subsequent to default committed by the 4th respondent, revenue recovery steps were initiated, and recovery measures were adopted to realise the amounts from his salary, from 11/03 onwards. According to the petitioner recoveries were already effected at the rate of Rs.2000/- per month for a period of 38 months, and a total amount of Rs.78,085/- was already recovered from his salary, as evidenced from Ext.P2 statement. The 5th respondent is also another guarantor with respect to the same chitty transaction and she is working as HSA at Puthoor Govt: Higher Secondary School. Inspite of specific request made by the petitioner no effective steps were taken for recovery of any amounts of the 5th respondent from the salary eventhough the petitioner was informed through Ext.P4 that effective steps are being taken for W.P.(C).23650/09-A 2 recovery from the salary of the 5th respondent. In this regard petitioner had approached this court on an earlier occasion. In Ext.P5 judgment this court observed that since the principal loanee as well as the surety were not made parties in the writ petition this court cannot issue any positive direction. Still the 2nd respondent was directed to consider the petitioner's representation and to pass orders thereon. In compliance with the directions contained in Ext.P5 judgment, proceedings against the petitioner was directed to be kept in abeyance through a letter issued by the 1st respondent and thereafter no recovery from salary of the petitioner was effected since July 2005 onwards. 2. Grievance of the petitioner at present is that, inspite of specific directions contained in Ext.P5 judgment and inspite of direction issued by this court in a writ petition filed by the 5th respondent, no effective steps were taken by respondents 1 and 2 to recover the amounts from the property of the defaulter which is mortgaged for securing the chitty transaction, as well as no steps were initiated for realising the amount from the 5th respondent by way of deduction from her salary. 3. In the statement filed by the 2nd respondent it is mentioned that inspite of steps taken against the 4th respondent principal borrower, nothing could be recovered from him, and he is absconding at present. Further it is stated that 5th respondent W.P.(C).23650/09-A 3 is also surety in other chitty transactions. Therefore effective recovery could not be made inspite of the steps initiated. It is submitted that pursuant to direction contained in Ext.P5 judgment recovery steps against the petitioner was kept in abeyance for a period of more than two years and during that time effective steps were pursued in an attempt to recover the amounts from the property belonging to the borrower. But the property belonging to the borrower is only 2.5 Ares and the borrower is absconding. It is further stated that the petitioner had filed yet another writ petition in which identical contentions as raised in this writ petition were taken and this court after considering such contentions had already dismissed the writ petition, WP(C).No:20222/05 by judgment dt.15.7.05. 4. Confronting the contentions regarding proceedings initiated against the 5th respondent, the petitioner had produced additional document Ext.P8 which will show that the Headmaster of the School where the 5th respondent is working had given statement to the effect that recovery from the salary of the 5th respondent is not effected because of various reasons like judgment of this court in WP(C).14447/07 and interference of various other prohibitory orders. 5. Considering the rival contentions, it is noticed that the petitioner is a guarantor (co-obligant) to the chitty transaction and he is jointly and severally liable to pay the amount due along W.P.(C).23650/09-A 4 with the respondents 4 and 5. The petitioner is not entitled to take a contention that recovery steps against him shall be kept in abeyance since effective steps were not taken against respondents 4 and 5. However, it is only just and proper on the part of the respondents 1 and 2 to take all effective steps simultaneously with the steps taken against the petitioner, to recover the amount from respondents 4 and 5. It seems that the controlling officer of the 5th respondent is not taking effective steps in view of the requests made by the 1st respondent for realising amounts from the salary of the 5th respondent. Going by the judgment of this court as well as the legal situation prevailing, it is evident that the 5th respondent is also equally liable to be proceeded against as that of the petitioner. 6. Under the above circumstances while dismissing this writ petition, respondents 1 and 2 are directed to take effective steps for recovery of the amounts due, from salary of the 5th respondent and to take all possible steps to realise the amounts by sale of the properties belonging to the 4th respondent, along with recovery from salary of the petitioner which is now sought for. C.K.ABDUL REHIM, JUDGE. okb