IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 31136 of 2008(F) ----------------------------------- PETITIONER(S): --------------------- SABU ISSAC, S/O. ISSAC, ERAPPUKUZHIYIL, PADUPPADI, THAMARASSERY, KOZHIKODE DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOZHIKODE. 3. THE TAHSILDAR, REVENUE RECOVERY, CIVIL STATION, KOZHIKODE. * 4. GOPI, VILLAGE OFFICER (RETIRED), NGO QUARTERS, VELLIMADUKUNNU, KOZHIKODE. 5. THE SOUTH MALABAR GRAMIN BANK, KALPETTA BRANCH, KALPETTA, REPRESENTED BY ITS GENERAL MANAGER. * R4 IS REMOVED FROM PARTY ARRAY AS PER ODER DATED 24.6.2009 IN I.A. NO.7673/09. ADV. SRI.T.R.RAVI FOR R5 GOVERNMENT PLEADER MR. K. RAMESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.31136/08 APPENDIX PETITIONER'S EXHIBITS:- EXT. P1 SERIES - COPY OF THE RECEPTS SHOWING THE PAYMENT OF 2ND 3RD AND 6TH INSTALLMENTS MADE BY THE PETITIONER. P2 - LETTER WRITTEN TO THE 1ST RESPONDENT BY THE PETITIONER DATED 18.5.2007. P3 - COPY OF THE LAWYLER NOTICE ISSUED ON BEHALF OF THE PETITIONER TO THE 3RD RESPONDENT. //TRUE COPY// sou. P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No.31136 of 2008 - F ---------------------------------------- Dated 21st December, 2009 Judgment Heard the learned counsel appearing on both sides. 2. The petitioner is the area manager of a pharmaceutical company stationed at Kozhikode. He had availed a loan of Rs.2,00,000/- from the Kozhikode branch of the South Malabar Gramin Bank. When the petitioner defaulted repayment of the loan, the bank took steps under the Kerala Revenue Recovery Act, 1968. Based on the said requisition, the revenue authorities initiated proceedings against the petitioner under the Kerala Revenue Recovery Act. The petitioner thereupon moved the Government seeking permission to pay the loan amount in instalments. The Government granted the said request subject to the condition that the petitioner should pay the sum of Rs.30,520/- as the first instalment and the balance amount in monthly instalments of Rs.8,700/-. The petitioner accordingly remitted the first instalment. He also remitted eight instalments during the period from 14.3.2002 to W.P.(C) No.31136/2008 2 20.3.2007. The petitioner thereafter approached the fifth respondent bank for the release of the documents deposited by him while creating a mortgage by deposit of title deeds. The bank thereupon informed him that a total sum of Rs.34,800/- is due from him towards four defaulted instalments. The petitioner thereupon made enquiries and came to know that the Village Officer concerned with whom he had remitted the instalments in time had not made over the money deposited by him to the fifth respondent bank. He thereupon submitted Ext.P2 representation before the District Collector requesting him to ensure that the amount deposited by him is paid over to the fifth respondent. He also caused Ext.P3 notice to be issued through his lawyer to the Tahsildar. This writ petition was thereafter filed seeking a direction to respondents 2 and 3 to pay over the amount remitted by him to the fifth respondent bank and for a direction to the fifth respondent bank to release the documents of title. 3. The third respondent Tahsildar has filed a counter affidavit. In paragraph 2 thereof, the third respondent has conceded that the Village Officer, Engapuzha village had failed W.P.(C) No.31136/2008 3 to remit the sum of Rs.34,800/- deposited by the petitioner in the account of the fifth respondent bank. In paragraph 3, it is stated that on detecting the said irregularity, the Village Officer concerned has been placed under suspension and disciplinary action has been initiated against him. The third respondent concedes that the Village Officer has misappropriated the amount deposited by the petitioner instead of transferring it to the fifth respondent bank. 4. It is evident from the pleadings and the materials on record that the petitioner has repaid the loan availed by him from the fifth respondent bank in instalments granted by the Government. The fifth respondent bank does not dispute the petitioner's averment that the amount defalcated by the Village Officer alone remains to be paid over to the fifth respondent bank. In such circumstances, as the revenue authorities admit that the Village Officer has misappropriated the sum of Rs.34,800/- remitted by the petitioner instead of paying it over to the fifth respondent bank, I am of the opinion that the State Government should in the first instance pay over the said amount to the fifth respondent bank and recover the amount W.P.(C) No.31136/2008 4 thus paid from the salary/pensionary benefits of the Village Officer who committed the defalcation. The petitioner cannot be visited with the consequences of an act of misconduct committed by a Government employee. In such circumstances, I dispose of the writ petition with the following directions: (1) The State of Kerala shall pay over to the fifth respondent bank the sum of Rs.34,800/- defalcated by the Village Officer, Engapuzha village expeditiously and in any event, within one month from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Revenue Department. It will be open to the Government to recover the said amount from the salary/pensionary benefits payable to the Village Officer who committed the defalcation. (2) The fifth respondent bank shall on receiving the said payment, record discharge of the loan in full and return the documents of title deposited by the petitioner. This will not however stand in the way of the fifth respondent bank from instituting appropriate proceedings against the State W.P.(C) No.31136/2008 5 Government/its officers to realise the interest on the said sum of Rs.34,800/-. The documents shall be returned to the petitioner within one week from the date of receipt of payment from the State Government. P.N.RAVINDRAN Judge vaa