Mohan Roy v. State Bank of Travancore — 1990 DIGILAW 183 (KER)

Judgment :- The main point raised in the original petition and in respect of which the relief is claimed regarding the validity ofS.71 of the Kerala Revenue Recovery Act, 1968 and of the notification issued there under stands concluded against the petitioner by the decision of this court in David v. Kerala State Financial Corporation, 1988(1) KLT 585. This point is therefore, held against the petitioner. The correctness of the amount claimed in Ext.P4 cannot also be challenged. Paragraph 6 of the counter affidavit explains as to how the amount of Rs.28, 753/- has been arrived at. The petitioner's contention that only the amount of Rs.21, 694-83 and interest is due is not sustainable in the light of the explanation and the figures mentioned in paragraph 6 of the counter affidavit of the first respondent. This contention of the petitioner is also therefore, overruled. 2. Counsel for the petitioner however, raised a subsidiary contention that this amount of Rs.28, 753/-includes 5% of the amount of Rs.27, 315-33 due on 25th April 1987, as charges. Payable to government for the revenue recovery proceedings. Though the petitioner has raised only a bald contention without any details that this amount is not payable, counsel amplifies the point at the hearing by submitting that this amount of 5% is-liable to be recovered under the Revenue Recovery Act as R.4 of the Kerala Revenue Recovery Rules only justifies recovery of the charges mentioned therein as part of the amount recoverable under the Act. 3. Counsel raises another further point that if this amount is not recoverable in law under the Revenue Recovery Act, the demand made by Ext.P4 will be in excess of that due thereby rendering the notice Ext.P4 itself invalid. Reliance for this purpose is placed on the decisions of the High Court of Madras in Collector of North Arcot v, Kannan, AIR 1967 Madras 249, and Santhosha Nadarv. First Additional Income Tax Officer, 49 ITR 715. 4. As stated by this court in David's case, the relationship between the parties is one in the realms of contract for the breach of which or for enforcing any rights there under, the remedy of the petitioner is by way of filing suit in the ordinary civil court. It is not open to the petitioner to invoke the extraordinary jurisdiction of this court under Art.226. It is not open to the petitioner to invoke the extraordinary jurisdiction of this court under Art.226. What exactly are the terms of contract between parties is not in evidence, as the contract is not produced before this court. If the first respondent is acting in violation of the terms of the contract in realising the charges payable to government for the proceedings under the Revenue Recovery Act, the normal remedy of the petitioner is by way of suit to restrain collection of that portion of the demand covered by Ext.P4 namely 5% of the amount due on Rs.27, 315-33. 5. Even otherwise, I am inclined to hold that the amount of 5% is also liable to be recovered under the Revenue Recovery Act. This amount of 5% is payable by the first respondent to the State under R.5(1) of the Kerala Revenue Recovery Rules. The said rule provides that collection charges at the rate of 5% of the arrears collected under the provisions of the Act, on behalf of any institution notified under S.71, shall be realized from such institutions. That part of the rule is clear that government gets 5% of the arrears collected on behalf of any institution notified under S.71 as collection charges. This amount constitutes part of the cost of recovery and is ordinarily payable by the debtor whose recalcitrance and default has led to the recovery proceedings and expending of money by the creditor for realization of the dues. Such cost of recovery forms part of the amount due to the creditor namely the institution notified under S.71 and is therefore, Liable to be recovered from the defaulter under the provisions of the Revenue Recovery Act. It will not be proper to read rules 4 and 5 separately and limit the recovery under the Act only to the actual arrears due and the charges specified in rule 4. The charges payable under rule 5 equally constitute part of the amount due to the creditor as cost of recovery and hence recoverable by it from the defaulter. It must be noted here that if the creditor had resorted to the remedy of suit, with payment of court fee and expenditure of other amounts, the said amounts will be recoverable from the defaulter as part of the costs in the suit. It must be noted here that if the creditor had resorted to the remedy of suit, with payment of court fee and expenditure of other amounts, the said amounts will be recoverable from the defaulter as part of the costs in the suit. It will be obnoxious to hold that the cost of recovery, which are otherwise payable by the defaulter should alone be liable to be recovered by an ordinary civil suit and not under the Revenue Recovery Act when the entire arrears could be recovered under the said Act. The very scheme of the Act and the purpose of making the Act applicable to such institutions as the first respondent is to ensure speedy and cheaper recovery of the amount due. Such recovery should comprehend within it all the amounts, which are due under the contract in question including those, which are incurred as costs of recovery. I have no hesitation to overrule the contention of the petitioner that.the charges payable under R.5 are not recoverable under the Act. 6. In this view of the matter the further contention raised that the demand under Ext.P4 is excessive and hence invalid does not arise for consideration. The original petition therefore, fails and it is dismissed, without however any order as to costs. Issue photocopy on usual terms.