IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WP(C).No. 30265 of 2006(C) --------------------------------------- PETITIONERS: --------------------- 1. P.K.CHANDRAN, S/O.KUMARAN, PEROTHU HOUSE, PADAYAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. K.N.PHALGUNAN, S/O.NARAYANAN, KADAVIL VEEDU, CHEMBUKAVU VILLAGE, THRISSUR TALUK. BY ADV. SRI.M.C.JOHN. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY (TAXES) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, MALAPPURAM. BY GOVERNMENT PLEADER SMT. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NO.30265/2006 ----------------------------------------------------------------- Dated this the 28th day of May, 2008 JUDGMENT Challenge in this writ petition is against Exts.P6 and P7. 2. Petitioners were defaulters of Abkari dues as on 31.3.1997. The Government of Kerala introduced Ext.P1 scheme offering reduction of 75% of the amount of interest accrued on the rental and other dues as on 31.3.1997. According to the petitioners, they have submitted Exts.P2 and P3 claiming benefit of Ext.P1 and orders were not passed. As the cut off date for payment in terms of the scheme was running out, petitioners approached this court by filing O.P.No.25046/00, in which Ext.P4 interim order was passed directing the petitioners to remit the admitted amount in terms of the claim and furnish bank guarantee for the disputed liability. Accordingly, the petitioners 2 complied with the said order. The Original Petition was finally disposed of by Ext.P5 judgment. In Ext.P5, this court directed as follows. “In the circumstances, the second respondent is directed to call for the records pertaining to payments and verify the liability after ensuring that credit is given for full payments made by the petitioners. The petitioners in any case will be given amnesty benefit as petitioner has complied with the interim order of this court. However, if any balance liability is due i.e, if any liability is left after granting rebate of 75% of interest due up to 30.11.2000, then petitioners will pay such amount along with 12% interest per annum on the same before 31.1.2006. The second respondent will immediately on production of copy of this judgment verify payments and adjustments and give a fresh statement to the petitioners for clearing liability 3 as above. In the event of default in payment by the petitioners as above, they will forfeit the amnesty benefit granted above.” 3. In pursuance there of, petitioners' liability has been quantified as per Exts.P6 and P7 and in terms there of petitioner will have to make an additional payment of Rs.5,15,67/- towards the liability. It is challenging this quantification, made as per Exts.P6 and P7, that the writ petition has been filed. 4. As is evident from Ext.P6 order, the liability has been quantified, adding interest on the principal at 4.5% and it is on that basis additional amount is found to be due from the petitioner. 5. A reading of the extracted portion of the judgment in O.P.No.25046/2000 shows that the respondents were required to quantify the petitioners' liability towards principal and interest at the rate as applicable up to 30.11.2000. Thereafter, the petitioners should have been given the benefit of Ext.P1 by reducing their liability to the 4 extent of 75% there of. It is the amount so quantified which the petitioners are made liable. The judgment further directed for adjusting the amount that the petitioners have paid in terms of Exts.P4 interim order including the bank guarantee and if the liability stands discharged the petitioner will be exonerated entirely and in case any additional amount is payable, the petitioners are liable for interest at 12%. Therefore, what is required is that the respondents have to first quantify the petitioners' liability as on 30.11.2000 by adding interest at the rate applicable and then give reduction applying Ext.P1. 6. Respondent No.3 has filed a counter affidavit. It is stated that pursuant to Ext.P4 order petitioner remitted Rs.3,18,087/- and furnished Bank guarantee for Rs.3,05,000/-. It is stated that out of the amount remitted, the entire arrears due in respect of shop No.4/93-94 of Manjeri Range was adjusted and after closing that liability the balance account available was Rs.203762. According to the 3rd respondent, this amount was also adjusted against 5 his liability as shown in Ext.P7, and even thereafter, Rs.3,04,548/- was due from the petitioner. Respondent would also contend that along with 12% interest as allowed by this court, the total liability of the petitioner was Rs.515067/-. 7. The factual position as above, is reflected in Ext.P7 statement of accounts also and I have not been able to find anything irregular in the quantification of the petitioners' liability. However, in the statement and the affidavit, what remains unexplained is regarding the appropriation of the Bank guarantee that was furnished by the petitioners as ordered by this court in Ext.P4 order. Admittedly the petitioners had furnished the bank guarantee and the affidavit does not say that the same was encashed towards any of their liabilities. If bank guarantee was available, that ought to have been appropriated, and if it was done, a substantial portion of the liability would have been wiped off. 6 8. For this reason, I find the matter needs to be re- examined by the 3rd respondent. Accordingly, I dispose of the writ petition, upholding Ext.P7 and the quantification of the liability, but however, directing that the 3rd respondent shall consider whether the Bank guarantee was appropriate towards the liability of the petitioners and if it is not done, the said respondent shall appropriate bank guarantee, if the same is still valid, and quantify the liability of the petitioners afresh. Once liability is quantified as above, it will be intimated to the petitioners and thereupon, amount if any due, will be paid by them, within one month thereafter. Writ Petition is disposed of. ANTONY DOMINIC JUDGE vi. 7