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2005 DIGILAW 599 (KER)

Mathew Joseph v. The DY. Tahsildar

2005-09-06

K.S.RADHAKRISHNAN, K.T.SANKARAN

body2005
Judgment :- Sankaran, J. Appellants challenged Exts.P2 P2(a) and P2(b) notices issued under the Kerala Revenue Recovery Act in the Original Petition filed under Article 226 of the Constitution of India. The learned Single Judge dismissed the Original Petition. 2. A loan was availed by the appellants from Canara Bank, Vythiri Branch. Amounts are due to the Bank and it is not disputed. The contention raised by the appellants is that the loan was availed in the year 1985 and the revenue recovery proceedings were initiated only in 1999 and therefore, the revenue recovery proceedings are not legal as barred by limitation. The appellants relied on the decision in State of Kerala and Others v. V.R. Kalliyanikutty and another ((1999) 3 SCC 657). The Bank contended that there was acknowledgment of the debt as evidenced by Ext.R2 series of acknowledgements and, therefore, recovery of the loan is not barred by limitation. The learned single Judge held that there was valid acknowledgment and, therefore, the plea of limitation is not sustainable. 3. In (1999) 3 SCC 657, it was held thus: “…The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due. Therefore, instead of filing a suit, (or an application or petition under any special Act), obtaining a decree and executing it, the bank or the financial institution can now recover the claim under the Kerala Revenue Recovery Act. Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act….” It was also held that “amounts due” under Section 71 of the Kerala Revenue Recovery Act are those amounts which the creditor could have recovered had he filed a suit. The finding of the learned single Judge that there was valid acknowledgement does not call for any interference. 4. The main contention raised by the appellants is that the property which is proceeded against as per the revenue recovery proceedings was in the possession of the Receiver appointed in Company Petition No.68 of 1980 and that appellant No.3 obtained the property only on 11.4.1985 and the other appellants got rights in the property subsequently. 4. The main contention raised by the appellants is that the property which is proceeded against as per the revenue recovery proceedings was in the possession of the Receiver appointed in Company Petition No.68 of 1980 and that appellant No.3 obtained the property only on 11.4.1985 and the other appellants got rights in the property subsequently. It is also contended that part of the properties were acquired for Kuttiyadi Augmentation Scheme. An extent of 708 acres of land included in the Company Petition referred to above were taken over by the Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971 and there were proceedings before this Court as well as the Supreme Court. Counsel for the appellants contended that since all these proceedings were pending, the acknowledgments made could not be attributed to the property sought to be proceeded against and therefore, the acknowledgements are not valid. 5. An acknowledgement is in respect of a liability and not in respect of the property, which is proceeded against for realization of the debt. No period of limitation is provided in the Revenue Recovery Act for realizing any amount, which could be recovered as an arrear of public revenue due on land. The Honourable Supreme Court has held in (1999) 3 SCC 657 that the proceedings for recovery of barred debts cannot be resorted to under the Revenue Recovery Act. Since no period of limitation is provided in the Revenue Recovery Act, by applying the principles of limitation, the question to be decided is whether the debt is time barred. Such a conclusion could be arrived at only on the basis of period of limitation for filing suits as provided in the Limitation Act or under any special statute. Section 18 of the Limitation Act provides for a fresh period of limitation, if an acknowledgement coming within the purview of that Section is made. Subsection (1) of Section 18 reads thus: “18. Section 18 of the Limitation Act provides for a fresh period of limitation, if an acknowledgement coming within the purview of that Section is made. Subsection (1) of Section 18 reads thus: “18. Effect of acknowledgement in writing—(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.” The expression used is “an acknowledgment of liability”. A liability could be enforced by resorting to various proceedings known to law. The liability in the present case is one for money due to Canara Bank. By resorting to revenue recovery proceedings, the amount can be recovered either by attachment and sale of movables or by attachment and sale of immovable properties belonging to the defaulter or by arrest and detention of the defaulter. The nature of the remedy that could be resorted to has absolutely no relation to the acknowledgment of liability. By acknowledging the liability, a fresh period of limitation shall be computed. The liability could be enforced and the amount recovered within the same period of limitation as computed from the time when the acknowledgment was signed. The availability or otherwise of a particular mode of recovery at the point of time when the acknowledgment was made is not the relevant criterion. For example, a person may not be having any immovable property at the time when the acknowledgment was signed. If he was having movable properties, the amount could be realized by attachment and sale of the movable properties. If, in such a fact situation, the defaulter acquires some immovable properties after the date of acknowledgment, there is nothing wrong or illegal in proceeding against that property for realization of the debt. The mode of recovery could be alternative or simultaneous. If, in such a fact situation, the defaulter acquires some immovable properties after the date of acknowledgment, there is nothing wrong or illegal in proceeding against that property for realization of the debt. The mode of recovery could be alternative or simultaneous. If the contention put forward by the counsel for the appellants is accepted, in order to decide the question of validity of the acknowledgment the court or other authority should embark upon an enquiry to find whether at the time when the acknowledgment was made the defaulter had some property liable to be proceeded under the Revenue Recovery Act. Such an enquiry is not contemplated under the Kerala Revenue Recovery Act or under the Limitation Act. Section 18 of the Limitation Act does not contemplate such an enquiry and the requirements for a valid acknowledgment are those specified therein. The availability or otherwise of any movable or immovable property or any other asset for the defaulter at the time when the acknowledgment was made is absolutely irrelevant in considering the question whether the acknowledgment is valid or not. If the acknowledgment is valid, the liability could be enforced and the amount recovered from any realizable asset, whether acquired before or after the acknowledgment. Therefore, we are unable to accept the contention put forward by the appellants. No other contention has been raised by the counsel for the appellants. The learned single Judge was right in dismissing the writ petition. The Writ Appeal is devoid of merit and it is accordingly dismissed.