IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4137 of 2009(P)
1. P.J.A. RAJU,
... Petitioner
Vs
1. KERALA FINANCIAL CORPORATION,
... Respondent
2. THE MANAGER,
3. THE DEPUTY TAHSILDAR (RR),
For Petitioner :SRI.JOHNSON MANAYANI
For Respondent :SRI.M.M.SAYED MUHAMMED, SC, KFC
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/02/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 4137 OF 2009 (P)
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Dated this the 18th day of February, 2009
J U D G M E N T
Petitioner had availed of two loans of Rs.10 lakh each from the
respondent Corporation and had received a total amount of Rs.19.03 lakhs
out of the sanctioned amounts. Default was committed in the matter of
repayment and coercive action was initiated.
2. It is stated that initially, the petitioner made Ext.P1 request
dated 14/12/2006 for the benefit of a One Time Settlement Scheme. The
application was made to the 2nd respondent offering to settle the liability
by paying Rs.19.03 lakhs. Along with Ext.P1, petitioner also offered to pay
Rs.3 lakhs as OTS advance. Accordingly, Rs.1.5 lakhs each were remitted
by the petitioner as is seen from Exts.P2(a) and P4 receipts.
3. From the statement filed by the respondents, it is seen that
the matter was discussed in the meeting held on 21/3/2007 and as the
petitioner was not willing to increase the offer, the request was rejected.
Thereupon, Rs.3 lakhs paid by the petitioner was appropriated equally
towards the loan account on 29.3.2007.
4. Subsequently, petitioner made Ext.P3 request dated 12/8/08
for the benefit of one time settlement scheme by offering Rs.28 lakhs in
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settlement of the liability. Petitioner submits that as directed by the 2nd
respondent, he remitted Rs. 2 lakhs towards advance as per Ext.P2
receipt. From the statement, it would appear that on 18/8/08, the Zonal
Level OTS Committee considered Ext.P3 and as the petitioner was not
prepared to enhance his offer, the proposal was rejected. It is stated that
thereupon the advance amount of Rs.2 lakhs was appropriated towards
the loan accounts equally on 10/9/2008.
5. Still later, according to the respondents, petitioner made
Ext.R1(a) request dated 11/12/2008, informing that he was willing to
enhance his offer to Rs.32 lakhs. Petitioner has produced as Ext.P5, a
request dated 20/12/2008 where he requested that Rs.5 lakhs already
paid by him as advance should be given credit in the OTS amount.
6. The respondents state that the request of the petitioner made
as per Ext.R1(a) was considered without even insisting on any advance
payment and that finally they issued Ext.P6, allowing the petitioner to
settle the liability by paying Rs.32 lakhs before 20/2/2009. In Ext.P6, they
have also demanded that the petitioner will have to pay revenue recovery
charges and court expenses.
7. It is in these circumstances, petitioner has filed this writ
petition praying that the respondents be directed to give reduction of Rs.5
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lakhs deposited towards advance from Rs.32 lakhs specified in Ext.P6 and
also to exonerate him from the liability to pay the collection charges.
8. Learned counsel for the petitioner placed reliance on the
judgment of this Court in Abdul Majeed and another v. Ummerkunhi
(1995(1) KLJ 375), to contend that since he has, in Exts.P1, P3 and P5,
indicated the manner of appropriation of the advance amount remitted,
the respondents could not have appropriated that amount in any other
manner.
9. As already noticed, as is seen from Exts.P2,P2(a) and P4 itself,
the remittance of Rs.5 lakhs made by the petitioner was towards OTS
advance only. This position is not disputed by the respondents also.
However, both Exts. P1 and P3 requests made by the petitioner along with
the advance mentioned above were rejected by the Corporation as is
evident from the statement filed by them.
10. Once the request for OTS is rejected, the amount remitted
looses its character as advance, and there is no question of appropriating
that advance in the manner indicated by the petitioner in Exts.P1 and P3.
If that be so, the creditor, KFC, is always entitled to appropriate the
amount available towards the liability of the petitioner. This is what the
KFC has done. In such a situation, the principles laid down by this Court in
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the judgment referred to above also does not come to the rescue of the
petitioner. Therefore, I do not find anything irregular in the appropriation
made by the KFC. Consequently, I cannot also direct the KFC to give credit
of Rs.5 lakhs towards Rs.32 lakhs, now specified by them in Ext.P6.
11. Now what remains is the direction in Ext.P6 that the petitioner
should pay the revenue recovery charges. Indisputably the question of
payment of revenue recovery charges arise only if the amount is recovered
employing the machinery under the Revenue Recovery Act. In this case,
one cannot say that, if the petitioner pays Rs.32 lakhs specified in Ext.P6,
the recovery is in pursuance to anything done by the revenue recovery
authorities. Therefore, the petitioner pays the amount and discharges the
liability in pursuance to Ext.P6, petitioner cannot be saddled with the
liability to pay the Revenue Recovery charges mentioned in Ext.P6 and he
will stand exonerated of that liability.
12. At this stage, counsel for the petitioner sought for a
reasonable time for depositing the amount due under Ext.P6. Having
regard to the confusion that was prevailing and the pendency of this
litigation, I feel it is appropriate that a reasonable time is granted to the
petitioner so that the liability can be discharged.
13. In the result, the writ petition will stand disposed of with the
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following directions.
1) That the claim of the petitioner for giving credit of
Rs.5 lakhs deposited as per Exts.P2, P2(a) and P4 towards
Rs.32 lakhs specified in Ext.P6 will stand rejected.
2) If the petitioner pays Rs.32 lakhs availing of the
benefit of OTS offered in Ext.P6, petitioner will not be
saddled with any liability for payment of revenue recovery
charges
3) On such payment, the respondents shall release to
the petitioner, the documents of title deposited by him
forthwith.
4) Considering the facts of this case, I direct that the
time specified for payment of the amount due as per
Ext.P6 will stand enlarged till 15/3/2009, and if payment is
made on or before that date, the payment will be
accepted as in compliance with Ext.P6.
ANTONY DOMINIC, JUDGE
Rp