IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WA. No. 2042 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.167/2009 Dated 04/08/2009 .................... APPELLANT(S): WRIT PETITIONER ----------------------------- N.GOPI, S/O.NARAYANAN, LATHA BHAVAN, KALATHARA P.O., NEDUMANGAD- 695541, THIRUVANANTHAPURAM DIST. (RETIRED INSPECTOR5, KSRTC) BY ADV. SRI.N.SASIDHARAN UNNITHAN RESPONDENT(S): RESPONDENTS ------------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM-695023, 2. SPECIAL DEPUTY TAHSILDAR (RR), KERALA STATE FINANCIAL ENTERPRISES LTD., SILVER JUBILEE BUILDING, STATUE, TRIVANDRUM- 695001. 3. THE BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD., KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADVS. SRI. M.K. CHANDRAMOHAN DAS - SC. FOR K.S.F.E. SRI. V.N. NANDAGOPAL NAMBIAR - SC. FOR KSRTC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON 6.10.2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2042 OF 2009 --------------------------------------------- Dated this the 6th day of October, 2009 JUDGMENT Ravikumar, J. The question that arises for consideration in this appeal is whether the amount recovered from the D.C.R.G. of the appellant by the Kerala State Road Transport Corporation (hereinafter referred to as “the K.S.R.T.C.”) at the instance of the Kerala State Financial Enterprises Ltd. (hereinafter referred to as “the K.S.F.E.”) towards the liability arising out of a chitty loan transaction and passed on to the latter, be ordered to be refunded on the ground that no recovery could have been legally effected from the D.C.R.G. 2. In the context of the contentions raised by the appellant, to be set out hereafter, it is relevant to note the incontrovertible factual aspects available in the case. The petitioner stood as a surety to one Mariamma Luke, a subscriber to a chitty with the K.S.F.E., to enable her to avail of the chitty loan. Ext.R2(a) is the chitty loan agreement executed by the appellant as a co-obligant for that purpose. The appellant had obtained a W.A. NO. 2042/2009 2 salary certificate from his employer, the K.S.R.T.C., for standing surety for that purpose and the employer had in turn agreed to effect recovery from the salary of the appellant, in case the borrower commits default in repayment of the amount. The said borrower had become a chronic defaulter in the matter of repayment of the chitty amount and thereby the amount became recoverable from the borrower and other co-obligants including the appellant. It was in the said circumstances that recovery was effected from the D.C.R.G. admitted to the petitioner. 3. The main relief sought for by the petitioner also assumes relevance, in the context of the contentions raised by the appellant: It reads as follows: “To issue a writ of mandamus or any other writ or direction directing the respondents to refund the amount of Rs.1,24,522/- recovered from the DCRG of the petitioner immediately.” 4. The petitioner had retired from the service of the K.S.R.T.C. on 30.5.2002. As per Ext.P1, an amount of Rs.1,76,235/- was admitted as his D.C.R.G. From the said admitted D.C.R.G., an amount of Rs.1,44,260/- was recovered by the K.S.R.T.C. at the instance of the K.S.F.E. towards discharging the debt due under the aforementioned chitty loan transaction. That was effected on 12.8.2005. Long later in 2009, the petitioner W.A. NO. 2042/2009 3 approached this Court by filing W.P.(C) No. 167 of 2009 challenging recovery of the amount from his D.C.R.G. on the ground that no amount from the D.C.R.G. was recoverable for the purpose of discharging the said liability without his consent. A scanning of the contentions of the appellant in the Writ Petition as also in the Writ Appeal would reveal that he admittedly owns the liability under the aforesaid chitty loan transaction by virtue of Ext.R2(a) agreement. It is also an admitted fact that the said amount legally due to the second respondent under the aforesaid loan transaction was not repaid by the borrower and thereby the appellant became liable to effect repayment. The right of the creditor/company in a transaction of this nature to proceed either against the borrower or against the sureties on their own choice, depending upon the circumstances, cannot be disputed and it is an admitted position of law that the creditor can proceed against any of them. That is because the borrower and also the sureties have co-extensive liability. The appellant/petitioner may be entitled to contribution from other co-obligants or even restitution and that cannot and will not absolve him from the said liability, if the creditor/company, K.S.F.E., chooses to proceed against him. It is in the aforesaid legal and factual circumstances obtained in this case that the learned Single Judge considered the contentions of the appellant herein. W.A. NO. 2042/2009 4 5. The appellant/petitioner, without disputing his legal liability as a co-obligant in the above said transaction, sought to challenge the recovery that was effected as early as in the year 2004 on the ground that it is illegal as no recovery could have been legally effected from the D.C.R.G. to discharge such a liability without his consent. To sustain his contention, he placed reliance on the ruling under Rule 124 of Part III of the Kerala Service Rules as also Section 13 of the Payment of Gratuity Act, 1972. The learned Single Judge considered the contentions on another angle, as is evident from paragraph 4 of the judgment. According to the learned Single Judge, the question to be considered is “when the amount of DCRG has been rightly or wrongly passed on to a person, viz. KSFE, in discharge of a legal liability of the petitioner, whose such liability as a co- obligant in a transaction is not in dispute, is it necessary for the writ court to step in and undo what has been done.” The learned Single Judge held thus: “In my view, this does not call for any order of the writ court because in the ultimate scales of justice, which alone would prevail in the writ court, no injustice could be said to have been done by the KSRTC in having released to KSFE, the amount necessary to satisfy the liabilities that were outstanding from the petitioner and co- obligants. The KSFE is a public sector body and ends of justice does not prompt this Court to issue any direction reversing the process.” W.A. NO. 2042/2009 5 6. There can be no dispute with regard to the position of law that even in a case of time barred debt, the creditor can retain the amount belonging to the debtor in case it reaches the former. This is because the law of limitation bars only the remedy and does not extinguish the right as such. Therefore, viewing the question to be answered from any angle, no one can legally compel the second respondent to refund the said amount of Rs.1,44,260/- which is legally and admittedly due to the company from the appellant and the co-obligants, whatever be the manner by which the said amount reached the K.S.F.E. 7. As noticed herinbefore, though recovery from the D.C.R.G. was effected as early as on 12.8.2005, the Writ Petition was filed only in the year 2009. That apart, the appellant/petitioner has not disowned his liability under Ext.R2(a) to pay off the liability arising out of the aforesaid chitty loan transaction. An amount of Rs.1,44,260/- was legally due to the K.S.F.E. and the same has now reached the said company. In such circumstances, in view of the discussions made above, there is no justification for this Court to interfere with the issue involved in this case and to direct the respondents to refund the amount merely because it could not have been legally recovered from the D.C.R.G. without the express consent of the appellant. The long silence in the matter amounts W.A. NO. 2042/2009 6 to acquiescence. In the wake of the facts and the peculiar circumstances explained above, a consideration regarding the validity of the recovery effected in the light of the ruling in Rule 124 of Part III of the Kerala Service Rules or under Section 13 of the Payment of Gratuity Act, 1972 is absolutely uncalled for as even a favourable finding would not save the situation for the petitioner. In the said scenario, obtained in this case, the finding and conclusion arrived at by the learned Single Judge cannot be said to be illegal or perverse warranting appellate interference under Section 5 of the High Court Act. The learned Single Judge has declined to exercise jurisdiction in the aforesaid circumstances and, therefore, it cannot be said that the said disinclination is perverse or illegal. A perusal of the judgment would show that the learned Single Judge has left open all the rights of the petitioner against the borrower and also against the co- obligants in the transaction with the K.S.F.E. In the decision in Changamanad Service Co. Op. Bank Ltd. v. P.R. Mohanan & Others reported in 2009(3) K.L.T. 623, a Division Bench of this Court held that appellate court would normally interfere only if it is found that the decision of the learned Single Judge to decline jurisdiction under article 226 of the Constitution of India is arbitrary or perverse. As held earlier, in this case, the view taken by the learned Single Judge is a plausible view that can be taken in the facts and circumstances available in the case. The W.A. NO. 2042/2009 7 appellant has not made out a case warranting interference with the judgment of the learned Single Judge. The Writ Appeal is hence devoid of merits and it is accordingly dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2042/2009 8 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A.NO.2042/2009 JUDGMENT 6th October, 2009