THANKAPPAN T.K v. THE BRANCH MANAGER, KSFE, KUTHIATHODE

BY ADVS. SRI.LAL GEORGE, SC, KERALA STATE FINANCIAL ENTERPRISES LTD. SRI.SALIL NARAYANAN K.A., SC, KSFE LTD. SMT. RESHMI THOMAS (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.8787/2015 -:2:- J U D G M E N T The petitioner has approached this Court challenging the proceedings initiated against the petitioner under the provisions of the Revenue Recovery Act to recover amounts due under five chitties subscribed by the 3rd respondent. The petitioner had mortgaged his property having an extent of 05.06 ares in Chembu Village, Vaikom Taluk, for the repayment of amounts due under various chitties and loans availed by the 3rd respondent. According to the petitioner he was a surety and had only mortgaged his property in respect of one chitty, while the demand is now in respect of five chitties. In paragraph No.4 of the writ petition it is stated that the property of the petitioner is scheduled to be sold on 19-03-2015. The grounds taken in the writ petition indicate that the only contention taken is that no details of the amounts due have been mentioned in the proceedings initiated against the petitioner and that in Ext.P1 notice, in one place it is shown that the amount due from the petitioner is Rs.8,95,010/-, while in another place the amount of Rs.15,14,599/- is recorded. W.P.(C) No.8787/2015 -:3:-

2. This writ petition has not been admitted. It came up for consideration before this Court on 19-03-2015, 25-03-2015 and on 30-03-2015. It has not been listed thereafter. There are no interim orders prohibiting the continuation of proceedings against the petitioner. That apart, the 1st respondent has filed a counter affidavit which indicates that the amount of Rs.15,14,599/- mentioned in Ext.P1 is actually the amount due from the petitioner as a surety/mortgagor on the principle sum of Rs.8,95,010/-. It is also stated as follows: “III. It is submitted that the petitioner is the guarantor to the various chitties and chitty loans subscribed and availed of by one Mr. Shaji C.R., Chemparambil House, Cherthala, ie the 3rd respondent herein. The said Mr. Shaji C.R., had approached the various branches the Kerala State Financial Enterprises Limited in the state and subscribed several chitties and availed of chitty loans, after mortgaging the property owned by the several persons. It is learnt that Mr.Shaji is the main chain of a racket, misusing the chitty and the loan facilities provided by the Kerala State Financial Enterprises Limited and sharing the amount received by them. It is further learnt that Mr.Shaji C.R., his wife Mrs.Sheeba Mol, his brother Mr.Shiji C.R., brother's wife Mrs. Smitha O.T., who had availed of similar chitties/loans facilities had approached this Hon'ble Court and filed WP(C)Nos. 5602/2014, 28186/2013, 24727/2013, 8920/2013, 20891/2013, 20241/2012, 16747/2014, 7410/2014, 11533/2014 etc., challenging the recovery proceedings and it W.P.(C) No.8787/2015 -:4:- is further learnt that those writ petitions were disposed of granting installments. However, no effective recovery could be effected in those cases. It is further learnt that after disposal of said writ petitions, Mr.Shiji C.R., ie 3rd respondent's brother has approached this Hon'ble Court and filed WP(C)No.33866/2014 challenging the recovery proceedings and the same is pending. IV. In the instant case, as guarantor, the petitioner has mortgaged 5.06 Ares of property in Chembu village, Vaikom Taluk towards security to the chitties and loans availed of by 3rd respondent. The details of the chitties and loan accounts of the petitioner and 3rd respondent are furnished below: Chitty/ Loan No. Default date Principal Amount Interest Loan 13.5% Notice Charge Collection Charge Total due 9/03/2015 NCL-34 18/05/2010 150000 97921 100 12401 260422 CVL-932 19/05/2010 98290 63074 100 8073 169537 4/2009-46 19/11/2010 350730 200060 100 41317 592207 NCL-1678 18/05/2010 50000 32640 100 4137 86877 31/2008-70 20/06/2010 245990 140154 100 19312 405556 Total 895010 1514599 V. It is submitted that the officers of the 1st respondent company had contacted the petitioner as well as the 3rd respondent on several occasions and requested them to remit the dues and clear the accounts. However, no amount has been remitted by the principal debtor (3rd respondent) or the petitioner herein. After subscribing several chitties and availing of loans, both the petitioner and the 3rd respondent did not care to remit the arrears with interest. It is submitted that after the chitties and loans became due, no amount has W.P.(C) No.8787/2015 -:5:- been remitted by the petitioner or the 3rd respondent and they are chronic defaulters. Accordingly, the matter was referred for initiating Revenue Recovery proceedings after issuing necessary recovery certificate. VI. It is submitted that section 7 and 34 notices were issued to the petitioner and 3rd respondent on 22.02.2013 and the same were duly served on the petitioner and 3rd respondent through the Village Officer, Chempu. Section 36 notice was issued on 01.11.2013 and the same was duly served on the petitioner on 22.02.2014. Section 49(2) notice under the Revenue Recovery Act was issued on 02.02.2015 and the same was served on the petitioner on 02.03.2015. It is further submitted that before bringing the property for auction, all the statutory formalities contained in section 36 and 49 of the Revenue Recovery Act were duly complied with”.

3. Having considered the pleadings in the writ petition and having noticed the averments in the counter affidavit filed by the 1st respondent, I am of the view that the petitioner has not made out any case for interference with the Revenue Recovery Proceedings initiated against the petitioner. The petitioner had admittedly mortgaged his property for the purposes of securing the repayment of amounts due from the 3rd respondent to the 1st respondent. The petitioner is also a surety in respect of the amounts availed by the 3rd respondent. Therefore, there is absolutely no illegality in the proceedings W.P.(C) No.8787/2015 -:6:- initiated against the petitioner. There is only a bald averment in the writ petition that the property of the petitioner had not been mortgaged to secure the repayment under five chitties mentioned in paragraph No.4 of the counter affidavit filed by the 1st respondent. However, it is the specific case of the 1 st respondent that the mortgage was in respect of the five chitties mentioned in paragraph No.4 of the counter affidavit. This is a question of fact which cannot be determined in proceedings under Article 226 of the Constitution of India. Writ petition fails and it is accordingly dismissed. Sd/- GOPINATH P. JUDGE W.P.(C) No.8787/2015 -:7:- APPENDIX OF WP(C) 8787/2015 PETITIONER’S EXHIBITS EXHIBIT-P1- EXHIBIT-P2- TRUE COPY OF THE NOTICE FROM THE 2ND RESPONDENT. TRUE COPY OF THE TREATMENT RECORD ISSUED FROM MEDICAL TRUST HOSPITAL.