IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 19192 of 2006(I) -------------------------- PETITIONER(S): --------------- THANKAPPAN P.N., S/O. KUMARAN, PANACHIKKEL HOUSE, KALIYAR P.O., VANNAPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT., (HELPER KERALA STATE BEVERAGES CORPORATION LTD., WAREHOUSE, OLAMATTOM, THODUPUZHA). BY ADV. SRI.PAULY MATHEW MURICKEN RESPONDENT(S): --------------- 1. KERALA STATE FINANCIAL ENTERPRISES LIMITED, MUSEUM ROAD, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR. 2. SPECIAL DEPUTY TAHSILDAR (R.R.) KERALA STATE FINANCIAL ENTERPRISES LTD., ERNAKULAM-18. 3. MANAGING DIRECTOR, KERALA STATE BEVERAGES CORPORATION LTD., THIRUVANANTHAPURAM. 4. MANAGER, KERALA STATE BEVERAGES CORPORATION LTD., THIRUVANANTHAPURAM. 5. M.K. SHINE, MANJAPPILLIL HOUSE, CHEPPANAM, PANANGAD P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.P.DANDAPANI (SR.) FOR R3,4 BY ADV. SRI.K.S.HARIHARAPUTHRAN,SC,K.S.F.E. LTD FOR R1 BY G.P. SRI. SMITHA FOR R2 BY ADV. SRI.G.SANTHOSH KUMAR (P). FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE RECOVERY NOTICE DATED 24.1.2005 RECEIVED BY THE PETITIONER FROM THE FIRST RESPONDENT. EXT.P2 TRUE PHOTOCOPY OF THE PROCEEDINGS NO. SDT/EKM/3892/05-06 DATED 20.5.2006 OF THE 2ND RESPONDENT. EXT.P3 TRUE PHOTOCOPY OF THE LETTER DATED 26.5.2006 (SHOWN AS DATED 26.2.2006) FORWARDED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT. EXT.P4 TRUE PHOTOCOPY OF THE PROHIBITORY ORDER DATED 2.6.2006 ISSUED AS PER PROCEEDINGS NO. SDT/EKM/3892/05-06 ISSUED BY THE 2ND RESPONDENT AND ADDRESSED TO THE 3RD RESPONDENT. EXT.P5 TRUE PHOTOCOPY OF THE PAY SLIP OF THE PETITIONER FOR THE MONTH OF MAY, 2006 EXT.P6 TRUE PHOTOCOPY OF THE MEDICAL CERTIFICSATE ISSUED TO THE PETITIONER BY DR. R. CHANDRASEKHARAN, CIVIL SURGEON, GOVT. HOSPITAL, THODUPUZHA. EXT.P7 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 17.7.2006 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WITH A COPY TO THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 19192 OF 2006 -------------------------------------------- Dated this the 8th day of August, 2008 JUDGMENT Heard counsel for the petitioner, standing counsel appearing for the KSFE and Sri. G. Santhosh Kumar, counsel appearing for the fifth respondent. Petitioner is challenging recovery proceedings initiated against him for recovery of arrears due from the fifth respondent to KSFE. Admittedly petitioner being a surety can be proceeded against if fifth respondent continues default. Petitioner's case is that fifth respondent has assets to be proceeded against and if recovery is made from the fifth respondent, then there is no scope for recovery from the petitioner. Even though legally there is no bar for proceeding against the surety first on default or simultaneously along with debetor, I feel on equitable ground recovery can be ordered against the fifth respondent. However, since standing counsel for KSFE submitted that fifth respondent has no asset, petitioner will give specific details of immovable property of the fifth respondent to the second respondent 2 within a period of two weeks from the date of receipt of a copy of this judgment and if such details are furnished there will be direction to the second respondent to proceed against the fifth respondent. It will be open to the fifth respondent to approach the KSFE and make payment under OTS scheme or under any other Scheme. Recovery proceedings against the petitioner will be kept in abeyance for three months from now and if petitioner furnishes specific details of assets of the fifth respondent, then there will be direction to the second respondent to proceed against such assets, if available, and complete recovery without any delay. However, if no specific details are furnished about the assets of the fifth respondent by the petitioner, recovery can be continued against the petitioner. W.P. C. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 3