IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 WP(C).No. 26815 of 2009(V) -------------------------- PETITIONER(S): --------------- S.DASAN, AGED 40 YEARS, S/O.LATE SREEDHARAN, THOTTUNGAL CHERRAYIL HOUSE, ELANKUNNA PUZHA, ERNAKULAM,PRESENTLY WORKING AS PD TEACHER, GOVERNMENT HS, WEST KODIKULAM, THODUPUZHA, IDUKKI. BY ADVS. MR. C.V.MANUVILSAN MR. P.G.SURESH MS. K.VIDYA MR. M.R.VIBIN RESPONDENT(S): --------------- 1. THE DISTRICT MANAGER, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD, DISTRICT OFFICE, IDUKKI, CHERUTHONY-685 602. 2. THE HEAD MASTER, GOVERNMENT HS, WEST KODIKULAM PO, THODUPUZHA, IDUKKI. 3. JINEESH P.S, S/O.SIVAN, PROP:CHITHRA STUDIO, KUNCHITHANNY PO, ADIMALY(VIA), IDUKKI, RESIDING AT PULICKAM PURATHU PANICKANKUDY PO, ADIMALY, IDUKKI. GOVERNMENT PLEADER MS. T.B. REMANY ADV. MR. C.E.UNNIKRISHNAN,SC,K.S.B.C.DEVP.CORPN. LTD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).26815/09 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF COMMUNICATION DT.26.6.2009 ISSUED BY R1 EXT.P2:- TRUE COPY OF THE ORDER NO.10/NB/GL/03/0040 DT.18.7.09 RESPONDENT'S EXHIBITS:- EXT.R1(a):- TRUE COPY OF THE LOAN AGREEMENT DT.15.5.03 EXT.R1(b):- TRUE COPY OF THE PRONOTE DT.15.5.03 EXECUTED BY THE PETITIONER WITH R1 EXT.R1(c):- TRUE COPY OF THE LETTER OF CONTINUITY DT.15.5.03 EXT.R1(d):- TRUE COPY OF THE EMPLOYMENT AND SALARY CERTIFICATE DT.26.2.03 EXT.R1(e):- TRUE COPY OF THE LETTER DT.31.8.04 OKB //TRUE COPY// P.A. TO JUDGE C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.26815 OF 2009 ------------------------------ Dated this the 12th day of March, 2010 J U D G M E N T ---------------------- 1. The petitioner is a school teacher, who is presently working in Government High School, West Kodikulam. The petitioner is a guarantor for a loan availed by the 3rd respondent from the 1st respondent Corporation, which he availed for purchase of a 'video camera' for expansion of business activities in his studio. The loan was availed on 19.5.2003, to the tune of Rs.50,000/-. Consequent to default committed by 3rd respondent in repayment of the loan, Ext.P2 notice was issued by the 1st respondent directing recovery of amounts at the rate of Rs.3,500/- per month from the salary of the petitioner. 2. Petitioner is challenging Ext.P2 mainly on the ground that he is working as PD Teacher at Govt: High School, West Kodikulam and the person to whom Ext.P2 is addressed is the Headmistress of Govt: VHSS, Kodikulam, who is not the controlling officer of the petitioner. According to the petitioner, the 2nd respondent is the controlling officer and the W.P.(C).26815/09 2 2nd respondent alone is empowered to initiate recovery steps. Complaint is that eventhough Ext.P2 was not addressed to the 2nd respondent, the 2nd respondent is attempting to recover amounts from the salary of the petitioner, as directed therein. It is also contended that the amount sought to be recovered is a time barred debt and it could not be recovered from the salary of the petitioner at this point of time. The petitioner also contended that the amount sought to be recovered at the rate of Rs.3,500/- per month is not sustainable in view of the provisions contained in Section 60 of the Code of Civil Procedure, 1908. 3. The 1st respondent in their counter affidavit contended that the loan in question was availed on 19.5.2003 on executing Ext.R1(a) Agreement and R1(b) Promissory Note, jointly by the 3rd respondent and the petitioner. As per terms of the loan agreement, the amount along with interest was promised to be repaid in 60 equal monthly installments of Rs.1000/- each, commencing from 19.6.2003 onwards. The borrower as well as the guarantor have also sent letter of continuity as evidenced from Ext.R1(c). The guarantorship of the petitioner was accepted on production of his salary W.P.(C).26815/09 3 certificate, which is produced as Ext.R1(d) showing his gross salary as Rs.6,839/- per month. It is further stated that demand notices were issued to the petitioner as well as to the 3rd respondent before initiating recovery steps, but they were returned unserved. It is also contended that the petitioner as well as the borrower were informed about the “One Time Settlement Scheme” available at the relevant point of time and they have failed in availing any such opportunity. It is further contended that the recovery steps initiated for realising the amount from the salary of the petitioner is not an action proposed under Section 80 of the Kerala Revenue Recovery Act and hence such action is not hit by the provisions of Section 60 of the Code of Civil Procedure. 4. Heard, Sri. Manuvilsan, learned counsel appearing for petitioner and Sri. C.E. Unnikrishnan, learned standing counsel for 1st respondent. Pointing out various clauses in Ext.R1(a) agreement, Sri.Manuvilsan argued that the petitioner had put his signature without noting the contents thereof and that he had put signature in many blank papers, which were subsequently filled up by the 1st respondent and converted into various documents. It is further argued that W.P.(C).26815/09 4 going by the clauses contained in Ext.R1(a), the 1st respondent is not entitled to proceed against the petitioner unless effective steps for recovery of the movables mortgaged is not initiated. It is submitted that the 1st respondent has not taken any effective steps for repossessing the 'video camera', for the purchase of which the loan was sanctioned. But on a perusal of Ext.R1(a) it is noticed that nothing is mentioned in the schedule as 'hypotheca' with respect to the loan agreement. Further it is noticed that clauses Nos.9, 10, 11 and 13 of Ext.R1(a) enables the 1st respondent to proceed against the guarantor for realising the amount from his salary. Therefore it could not be contended that the proceedings initiated in this regard is without jurisdiction or authority. Since there is a specific agreement executed by the petitioner consenting to recover the amount from salary, on the event of default, the petitioner could not successfully contend that such recovery steps are hit by the provisions of Section 60 of the CPC. As contended by the 1st respondent the proceedings is not initiated under the provisions of the Revenue Recovery Act. Hence I find no merit in such contentions. So also, the proceedings now initiated could not be held as time barred in W.P.(C).26815/09 5 view of the specific agreement executed consenting for recovery of the amount in default, from the salary of the petitioner, and also in view of the letter of continuity submitted. If the petitioner has got any valid contentions regarding genuineness of the agreement, its execution, or any dispute regarding its enforcibility or if there is any dispute regarding the quantum of salary which can be recovered, remedies are available to the petitioner to approach the appropriate civil court. He is not entitled to invoke jurisdiction under Article 226 of the Constitution of India, on such grounds, which are basically questions of disputed facts. Therefore I find no merit to interfere with the impugned proceedings. 5. However, I notice that there is no effective steps taken from the side of the 1st respondent to recover the amount from the 3rd respondent, either by repossessing the video camera and selling it or through any other coercive steps. It is always open for the petitioner herein to point out availability of the camera for re-possession by the officials of the 1st respondent. In this context the 1st respondent is directed to take effective steps for realising the amounts to the W.P.(C).26815/09 6 extent possible, from the 3rd respondent by recovery of the camera and by sale of the same, and also through other coercive steps of recovery. Such actions shall be initiated by the 1st respondent with co-operation of the petitioner, without any further delay. The petitioner is granted two months time from today to pursue such coercive steps with the assistance of the officials of the 1st respondent to realise the amounts from the 3rd respondent. It is made clear that if no amount is recovered from the 3rd respondent or amount if any recovered is not sufficient to wipe off the liability, the 1st respondent will be at liberty to take steps for recovery from the salary of the petitioner, by issuing proper proceedings in this regard to the 2nd respondent. It is also made clear that disposal of this writ petition is without prejudice to rights of the petitioner to approach any other legal forum challenging the liability, if permissible under law. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM, JUDGE. okb