IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 27383 of 2008(I) --------------------------------------------- PETITIONER: ------------------- VINAYAKA TIMBERS AND WOOD CRAFTS, ANANDAPPALLY P.O., ADOOR REPRESENTED BY ITS PARTNER SRI.PRAKASH SARMA AGED 35 YEARS, S/O.LATE NH SARMA, RESIDING AT PRASANTH, ANANDAPPALLY P.O., ADOOR, PATHANAMTHITTA. BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, PATHANAMTHITTA. 3. THE TAHSILDAR, ADOOR, PATHANAMTHITTA. 4. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, ADOOR. 5. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOZHENCHERRY, PATHANAMTHITTA. 6. THE MANAGER, CATHOLIC SYRIAN BANK LTD., P.O.BOX NO.2, ADOOR, PATHANAMTHITTA 691 523. R1 TO R5 BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN ADV. SRI.K.ANAND (A.201) FOR R6 SMT.LATHA KRISHNAN FOR R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 27383 OF 2008 I -------------------------------------- Dated this the 7th October, 2008 JUDGMENT Briefly put, the case of the petitioner is as follows: Petitioner is a partnership Firm. Apparently, the business floundered. Amounts are due to the KFC, SBT and Government Departments including the Sales Tax Department. After the expiry of the Managing Partner, they have decided to revive the Unit. By Ext.P1, the General Manager, District Industries Centre registered the Unit as a sick Unit. The fifth respondent, namely the General Manager, addressed the second respondent, District Collector recommending stay of all revenue recovery proceedings against the petitioner for one year from 7.2.2008. Second respondent has, despite the recommendation, not taken any action on the basis of Ext.P3 which is a Government Order granting concession to sick industrial units. The third WPC. 27383/08 I 2 respondent has issued communications to all the Branches of the banks operating from Adoor that late N.H. Sharma, the former Managing Partner is a defaulter and requesting the banks to hold the money or property and only interest or dividend becoming payable was to be paid subject to further orders. Ext.P5 is the attachment. There was a dispute between the petitioner and the National Building Construction Corporation limited which was subjected to arbitration and as per the Award of the Arbitrator, an amount of Rs.74,000/= was retained in the 6th respondent Bank as a Bank Guarantee. Ext.P6 is a letter produced to show that the General Manager of the Corporation, bound by the Arbitration Award, has informed the 6th respondent and it has been decided to withdraw the claim made by the Corporation with respect to the Bank Guarantee for Rs.74,000/= and the 6th respondent was informed that the Corporation does not have any claim with respect to the above Bank Guarantee. Though approached, the sixth responsdent expressed his WPC. 27383/08 I 3 inability to pay the Fixed Deposit in view of Ext.P5 attachment order. According to petitioner, there was a term deposit of Rs. 1 Lakh in the name of third respondent and the petitioner firm which was made pursuant to Ext.P10 Judgment. Ext.P11 is the order of the Appellate Tribunal. 2. The prayers in the Writ Petition are as follows: “a. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P5 issued by the third respondent and to quash the same. b. Issue a writ of mandamus or any other appropriate writ, order or direction, compelling and commanding the 2nd respondent and to pass orders staying all revenue recovery action against the petitioner's unit, on the recommendation of the 2nd respondent as per Ext.P2, in the light of Ext.P1 proceedings declaring the petitioner's unit as a sick unit under the Sick Unit Rehabilitation Programme expeditiously and within a reasonable time that this Hon'ble Court may deem fit and proper. WPC. 27383/08 I 4 c. Issue a writ of mandamus or any other appropriate writ, order or direction compelling and commanding the 3rd respondent to release the amounts covered by Ext.P9 term deposit to the petitioner for remitting the proceeds thereof to the 4th respondent for considering the application under the One Time Settlement Scheme.” 3. I heard the learned counsel appearing for the petitioner and the learned Government Pleader. Counsel for petitioner would submit that after the filing of the Writ Petition, petitioner has filed an application under the Amnesty Scheme. he would further submit that the District Collector should take a decision pursuant to the recommendation contained in Ext.P2. He also submit4s that the amount of Rs.74,000/= which is lying as Fixed Deposit with the sixth respondent Bank should be released so that the same can be utilised for paying off the dues as per the Amnesty Scheme. He has also a claim that Rs.1 lakh which was deposited pursuant to Ext.P10 Judgment should also be made available for clearing the liability under the Amnesty Scheme. WPC. 27383/08 I 5 Learned Government Pleader would submit that the Department has no objection in making available the amount lying in the Fixed Deposit and attached as per Ext.P5 order for clearing the dues as per the Amnesty Scheme. Also, there is no serious opposition to a decision being taken by the District Collector on the basis of the recommendation contained in Ext.P2. 4. As far as the question as to whether Rs.1 lakh has been adjusted already, that is a matter I think, I need not pronounce at this stage. In such circumstances, the Writ Petition is disposed of as follows: There will be a direction to the second respondent to consider and take a decision on Ext.P2 recommendation in accordance with law, within a period of one month from the date of production of a copy of this Judgment. It is further ordered that Ext.P5 attachment will not stand in the way of the sixth respondent releasing the amount covered by the Fixed Deposit in a sum of Rs.74,000/= with due interest to the fourth respondent for payment against the demand under the Amnesty WPC. 27383/08 I 6 Scheme. As far as the claim for payment of Rs.1 Lakh is concerned, it is a matter which I leave open and it will await the decision to be taken by the Authority under the Amnest Scheme. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge