K.ABDUL MAJEED v. THE DISTRICT COLLECTOR

SRI. JUSTINE JACOB (SR. GOVERNMENT PLEADER) SRI. PAULY MATHEW MURICKEN (SC), THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP.(C.)NO.1709 OF 2015 2 JUDGMENT Dated this the 11th day of January, 2024 The petitioner has approached this Court, challenging the revenue recovery proceedings initiated at the instance of the 5th respondent/bank to recover certain amounts from the petitioner, who was a guarantor to a loan availed by the 6th respondent.

2. Learned Counsel appearing for the petitioner would submit that the petitioner, as well as the 6th respondent had availed separate loans from the Canara bank. It is submitted that, in respect of the loan availed by the petitioner, the 6th respondent was the guarantor, while in respect of the loan availed by the 6th respondent, the petitioner was the guarantor. It is submitted that the bank filed separate suits for recovery of the amounts from the loan granted to the petitioner as well as the 6th respondent. It is submitted that, in respect of the suit filed against the petitioner, the loan account was settled in the Lok Adalath by paying a total amount of Rs.3,00,000/- (Rupees three WP.(C.)NO.1709 OF 2015 3 lakh only). It is submitted that the bank obtained a decree, in the suit filed against the 6th respondent, where the petitioner was also a party on account of being the guarantor and thereafter, the bank initiated revenue recovery proceedings to recover the amount due to the bank.

3. Learned Counsel appearing for the petitioner submits that the revenue recovery proceedings are not legal and valid. It is submitted that the bank has no authority to initiate revenue recovery proceedings in respect of loans not granted for development purposes in terms of the notification under Section 71 of the Revenue Recovery Act. It is submitted that the revenue recovery proceedings are barred by limitation. It is submitted that the 6th respondent has sufficient properties and the bank ought to have proceeded against the 6th respondent for recovery of the amounts due under the loan extended to the 6th respondent, instead of proceeding against the petitioner, who was only a guarantor. WP.(C.)NO.1709 OF 2015 4

4. Learned Counsel appearing for the respondent bank submits that, there is absolutely no illegality in the revenue recovery proceedings initiated against the petitioner. It is submitted that the development schemes for the purpose of the notification issued under Section 71 of the Revenue Recovery Act, would include priority sector loans, such as the loan extended to the 6th respondent, in respect of which the petitioner was the guarantor. He placed reliance on the judgment of the Hon’ble Supreme Court in Jabbar v. Dhanalakshmi Bank [2005(3)KLT 510(SC)], in support of his proposition. It is submitted that the question of limitation does not arise for consideration, as the bank had obtained a decree against the petitioner and the bank was entitled to enforce the decree by resorting to revenue recovery proceedings. In support of his proposition, the learned Counsel has placed reliance on the judgment of this Court in Sheriff v. State of Kerala [2005(1)KLT 873]. It is submitted that the contention of the learned Counsel for the WP.(C.)NO.1709 OF 2015 5 petitioner that the bank should have first proceeded against the 6th respondent for recovery of the amounts due, is also not tenable, as it is settled law that the bank may proceed against the guarantor and it may even decide to proceed only against the guarantor.

5. Having heard the learned Counsel for the petitioner and the learned Counsel appearing for the respondent bank, I am of the view that, the petitioner has not made out any case for grant of the reliefs sought for in the Writ Petition. The judgment of the Hon’ble Supreme Court in Jabbar v. Dhanalakshmi Bank (Supra) indicates that priority sector advances not exceeding Rs.5 lakhs, will fall within the definition of loans for development purposes, in terms of the notification issued under Section 71 of the Revenue Recovery Act. Therefore, the contention taken by the learned Counsel for the petitioner that, the revenue recovery proceedings are bad for the reason that they do not fall in the category of development loans, cannot be accepted. Coming to the contention of the learned WP.(C.)NO.1709 OF 2015 6 Counsel for the petitioner that the revenue recovery proceedings are barred by limitation, it is clear from the judgment of this Court in Sheriff v. State of Kerala (Supra), that when the bank has obtained a decree as in this case, it is not open to the petitioner to contend that the revenue recovery proceedings are barred by limitation as within the period prescribed in the limitation Act, for enforcement of the decree, it will be open for the bank to initiate revenue recovery proceedings to recover the decretal debt. Coming to the contention of the learned Counsel for the petitioner that the bank should have proceeded against the 6th respondent, I am of the view that there is considerable merit in the contention taken by the learned Counsel for the respondent bank that the liability of the petitioner, who was the guarantor is co-existent with that of the principle debtor, and it is open for the bank to proceed against the petitioner alone, if it decides to do so. WP.(C.)NO.1709 OF 2015 7

6. However, in the facts and circumstances of this case, I deem it appropriate to direct the authorities to consider whether the amount sought to be recovered by resort to revenue recovery proceedings can be recovered by proceeding against the properties of the 6th respondent, before proceeding against the property of the petitioner. The petitioner may approach the revenue recovery authorities, as well as the 5th respondent bank, pointing out the properties belonging to the 6th respondent, against which the revenue recovery proceedings can be continued for recovery of amounts due in respect of the loan availed by the 6th respondent. Subject to the above, the writ petition stands dismissed. Sd/- GOPINATH P. JUDGE NB/11-1