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2005 DIGILAW 14 (KER)

Sheriff v. State of Kerala

2005-01-07

P.R.RAMAN

body2005
Judgment :- P.R. Raman, J. Petitioner is admittedly a defaulter in respect of the amounts due to the Public Sector Bank, the 4th respondent herein. For realization of the amounts due and payable by the petitioner a suit was instituted by the Bank and obtained a decree on 20/5/1989. An E.P.No.95/1991 was thereafter filed before, the Sub Court, Kottarakkara. While so, the Bank after obtaining the decree proceeded to recover an amount under the Kerala Revenue Recovery Act by making a requisition in that behalf as evidenced by Ext.R4(a) dated 10.11.2000. The petitioner has raised mainly two contentions before me challenging the revenue recovery proceedings initiated as evidenced by Ext.P2. (1) That the revenue recovery proceeding is barred by law of limitation, since what is sought to be recovered is a Bank loan and not a decree amount and the Bank loan normally should be paid on the expiry of three years. (2) That the Bank cannot seek recourse to two parallel proceedings. After filing an E.P. the Bank cannot turn round and proceed to recover the amounts under the Revenue Recovery Act. 2. The learned counsel for the 4th respondent-Bank on the other hand contended that though in the Revenue Recovery notice the amount is shown as due by way of Bank loan, in fact Bank loan since been quantified and turned to be a decree debt and the amount sought to be realized is thus the amount as decreed by the Civil Court. 3. In this connection a learned Single Judge of this Court in State Bank of India v. Kuttappan (1998 (2) KLT 130) held that as per S.R.O.No.799/79 the recovery of the amount under the Revenue Recovery Act and the words ‘on account of a loan advanced’ would take in the amount due under a decree obtained on the basis of that loan. Admittedly, as on the date of the requisition made a decree was already obtained by the Bank. As such the mere fact that in the demand notice it is stated as Bank loan, in no way will take away the right of the Bank to proceed to recover the amount under the revenue recovery proceedings. The period of limitation for execution of a decree being 12 years as held in M/s. Binny Ltd. v. Regional Poultry Officer & Ors. The period of limitation for execution of a decree being 12 years as held in M/s. Binny Ltd. v. Regional Poultry Officer & Ors. (1994 (2) KLJ 536), it has also to be held that recovery of the amount due as per the decree in this case cannot be said to be barred by the law of limitation. The next contention raised is that the Bank cannot proceed simultaneously with two proceedings for realization of the amount. In answer to this the learned counsel for the Bank placed reliance on the decision of this Court in State Bank of India’s case (1998 (2) KLT 130) referred to above. In that case also an execution petition was pending and this Court took the view that the doctrine of election will apply only if it is shown that any prejudice is caused by way of earlier proceedings initiated by them. It was held that two remedies are not mutually exclusive and the principle would apply only in cases where the two courses of action available are mutually exclusive, and the opposite party on the faith of the representation by conduct or otherwise, had acted to his detriment or has adopted a course of action which otherwise he would not have resorted to. Two courses open to the decree holder in the case on hand are neither mutually exclusive nor it could be said that the judgment debtor has acted to his detriment by adopting one of the courses of action by the decree holder. Therefore, the doctrine of election as such will not apply in the light of the above said decision. However, the learned counsel for the petitioner has brought to my notice the decision of the Apex Court in Andhra Pradesh State Financial Corporation v. Ms. Gar Re-Rolling Mills & Anr. Therefore, the doctrine of election as such will not apply in the light of the above said decision. However, the learned counsel for the petitioner has brought to my notice the decision of the Apex Court in Andhra Pradesh State Financial Corporation v. Ms. Gar Re-Rolling Mills & Anr. (AIR 1994 SC 2151) wherein the Apex Court in paragraph 13 held as follows:-­ “Where the Corporation takes recourse to the provisions of S.31 of the Act and obtains an order from the Court, it shall ordinarily and invariably seek its enforcement in the manner provided by S.32 of the Act, which provisions are aimed to act in aid of the orders obtained under S.31 of the Act and it cannot simultaneously initiate and take recourse to the remedy available to it under S.29 of the Act unless it gives up, abandons or withdraws the proceedings under S.31 of the Act, at whatever stage those proceedings may be. The Corporation cannot simultaneously pursue two remedies at the same time. The reach and scope of the two remedies is essentially different even if somewhat similar result flows by taking recourse to either of the two provisions in certain aspects.” (Emphasis supplied) 4. Though this decision was referred to in State Bank of India’s case (1998 (2) KLT 130), the principle laid down in the Supreme Court decision was not specifically adverted to. While accepting the fact that it is open to the Bank to proceed under the Revenue Recovery Act and it will not prevent the Bank from proceeding to take recourse to such remedy merely because they filed an execution petition, at the same time they cannot simultaneously proceed with two parallel proceedings. It is open to the Bank to abandon or give up either of the two courses open to them and to confine to the one unless either of the two proceedings have come to a finality. 5. In the present case admittedly the execution petition is still pending. Therefore, it is open to the Bank either to withdraw the execution petition and to recover the amount under the Revenue Recovery Act or to give up the revenue recovery proceedings until the execution proceeding is culminated. 6. 5. In the present case admittedly the execution petition is still pending. Therefore, it is open to the Bank either to withdraw the execution petition and to recover the amount under the Revenue Recovery Act or to give up the revenue recovery proceedings until the execution proceeding is culminated. 6. Since the Bank is proceeding simultaneously, the revenue recovery proceedings will stand stayed and the Bank may proceed to make requisition to the Tahsildar either after the culmination of the execution proceedings or after withdrawing the execution petition, as the case may be and thereafter it will be open to the authorities to proceed in accordance with law. Original Petition is disposed of as above.