IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 SA.No. 797 of 1997() -------------------- AS.67/1993 of DISTRICT COURT, ALAPPUZHA OS.859/1990 of PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA .................... APPELLANT(S): APPELLANT/PLAINTIFF: ------------------------------------------------------------ P.SOMASEKHARA PILLAI, POOKODU HOUSE, PADAHARAM, THAKAZHY VILLAGE. RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------------- 1. KHADI VILLAGE INDUSTRIAL BOARD, THIRUVANANTHAPURAM REPRESENTED BY THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER. 2. THE DEPUTY TAHSILDAR (R.R.), KUTTANAD, MANCOMPU, THEKKEKKARA P.O. 3. THE KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. R1 BY ADV. SRI.JOSE K.KOCHUPAPPU, SC, KHADI BOARD SRI.V.V.JOSHI (SC) R2 & R3 BY SR. GOVERNMENT PLEADER SMT. BINDU .R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- SA No.797 of 1997-C ------------------------------------- Dated this the 12th day of January 2011 Judgment The plaintiff, who was the then member of the Khadi Village Industrial Co-operative Society, Thakazhy, along with other office bearers of the society, seems to have executed an agreement in favour of the first defendant, by which they availed of certain financial facilities for the society. On default of repayment, the first defendant initiated revenue recovery proceedings. When it sought to personally proceed against the plaintiff, he pointed out that he had not availed of any loan in his personal capacity and it was the society, which was the beneficiary and so, he could not be proceeded against personally. On receipt of notice, he filed a detailed objection. But, without considering the same, proceedings were sought to be continued under the Revenue Recovery Act against him. The plaintiff then approached the court. SA 797/97 2 2. Both the courts below have simply held that the plaintiff is a signatory to Exts.B1 and B2 and so, he is liable for the amount due to the first defendant. Aggrieved by the impugned judgments and decrees against him, the plaintiff has come up in second appeal. 3. The plaintiff has averred in the plaint as well as stated in the evidence to the effect that he did not personally availed of any benefit from the first respondent and even if he has signed in Exts.B1 and B2, it was in his capacity as the member of the society and not in his personal capacity. 4. The plaintiff had filed his objections and pointed out that he has no personal liability. It is also significant to notice that it is the machinery etc. of the society that is hypothecated to the first defendant. It is very evident that the primary liability is for the society. At any rate, the defendants were bound to consider the objections filed by the plaintiff and they had necessarily to establish that he was personally liable for the amount due to the first SA 797/97 3 defendant. 5. It is the contention on behalf of the respondents that the suit itself is not maintainable in view of Section 72 of the Revenue Recovery Act. 6. In the case on hand, the plaintiff had categorically averred that he had not benefited by the financial facility availed of by the society and therefore, he cannot be proceeded against for the liability of the society. This aspect has not been considered by the defendants at all. There is no reason as to why proceedings should not be initiated against the society and its assets, especially, when the machinery etc. of the society are hypothecated to the first defendant. Under such circumstances, it could not be said that the defendants are justified in proceeding against the plaintiff until the objections filed by him are considered and disposed of. In the result, this appeal is allowed and the judgment and decree of the courts below are set aside. There will be an injunction order against the defendants SA 797/97 4 from proceeding against the plaintiff in his personal capacity unless and until his objections are properly considered and disposed of in accordance with law. There will be no order as to costs. P.Bhavadasan, Judge sta SA 797/97 5