IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23650 of 2009(A)
1. UDAYAN, SARGAM PUNNATHOOR EAST,
... Petitioner
Vs
1. THE SPECIAL DEPUTY TAHSILDAR (RR).
... Respondent
2. THE BRANCH MANAGER
3. THE ACCOUNTS OFFICER,
4. SOMAN, S/O.VELAYUDHAN, TRIVENI,
5. M.R.USHADEVI, THAYYIL PUTHEN VEEDU
For Petitioner :SRI.JOHNSON GOMEZ
For Respondent :SRI.K.S.HARIHARAPUTHRAN,SC,K.S.F.E. LTD
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :29/10/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.23650 OF 2009
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Dated this the 29th day of October, 2009
J U D G M E N T
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1. Grievance of the petitioner is against Ext.P7
prohibitory order issued by the 1st respondent directing to
recover an amount of Rs.3000/- per month from the salary of the
petitioner, towards realisation of the amounts due to the 2nd
respondent. The petitioner who is working as a Police Constable
stood as surety for the 4th respondent with respect to a chitty
transaction availed from the 2nd respondent. Subsequent to
default committed by the 4th respondent, revenue recovery steps
were initiated, and recovery measures were adopted to realise
the amounts from his salary, from 11/03 onwards. According to
the petitioner recoveries were already effected at the rate of
Rs.2000/- per month for a period of 38 months, and a total
amount of Rs.78,085/- was already recovered from his salary, as
evidenced from Ext.P2 statement. The 5th respondent is also
another guarantor with respect to the same chitty transaction
and she is working as HSA at Puthoor Govt: Higher Secondary
School. Inspite of specific request made by the petitioner no
effective steps were taken for recovery of any amounts of the 5th
respondent from the salary eventhough the petitioner was
informed through Ext.P4 that effective steps are being taken for
W.P.(C).23650/09-A 2
recovery from the salary of the 5th respondent. In this regard
petitioner had approached this court on an earlier occasion. In
Ext.P5 judgment this court observed that since the principal
loanee as well as the surety were not made parties in the writ
petition this court cannot issue any positive direction. Still the
2nd respondent was directed to consider the petitioner’s
representation and to pass orders thereon. In compliance with
the directions contained in Ext.P5 judgment, proceedings against
the petitioner was directed to be kept in abeyance through a
letter issued by the 1st respondent and thereafter no recovery
from salary of the petitioner was effected since July 2005
onwards.
2. Grievance of the petitioner at present is that, inspite
of specific directions contained in Ext.P5 judgment and inspite of
direction issued by this court in a writ petition filed by the 5th
respondent, no effective steps were taken by respondents 1 and
2 to recover the amounts from the property of the defaulter
which is mortgaged for securing the chitty transaction, as well as
no steps were initiated for realising the amount from the 5th
respondent by way of deduction from her salary.
3. In the statement filed by the 2nd respondent it is
mentioned that inspite of steps taken against the 4th respondent
principal borrower, nothing could be recovered from him, and he
is absconding at present. Further it is stated that 5th respondent
W.P.(C).23650/09-A 3
is also surety in other chitty transactions. Therefore effective
recovery could not be made inspite of the steps initiated. It is
submitted that pursuant to direction contained in Ext.P5
judgment recovery steps against the petitioner was kept in
abeyance for a period of more than two years and during that
time effective steps were pursued in an attempt to recover the
amounts from the property belonging to the borrower. But the
property belonging to the borrower is only 2.5 Ares and the
borrower is absconding. It is further stated that the petitioner
had filed yet another writ petition in which identical contentions
as raised in this writ petition were taken and this court after
considering such contentions had already dismissed the writ
petition, WP(C).No:20222/05 by judgment dt.15.7.05.
4. Confronting the contentions regarding proceedings
initiated against the 5th respondent, the petitioner had produced
additional document Ext.P8 which will show that the Headmaster
of the School where the 5th respondent is working had given
statement to the effect that recovery from the salary of the 5th
respondent is not effected because of various reasons like
judgment of this court in WP(C).14447/07 and interference of
various other prohibitory orders.
5. Considering the rival contentions, it is noticed that the
petitioner is a guarantor (co-obligant) to the chitty transaction
and he is jointly and severally liable to pay the amount due along
W.P.(C).23650/09-A 4
with the respondents 4 and 5. The petitioner is not entitled to
take a contention that recovery steps against him shall be kept in
abeyance since effective steps were not taken against
respondents 4 and 5. However, it is only just and proper on the
part of the respondents 1 and 2 to take all effective steps
simultaneously with the steps taken against the petitioner, to
recover the amount from respondents 4 and 5. It seems that the
controlling officer of the 5th respondent is not taking effective
steps in view of the requests made by the 1st respondent for
realising amounts from the salary of the 5th respondent. Going
by the judgment of this court as well as the legal situation
prevailing, it is evident that the 5th respondent is also equally
liable to be proceeded against as that of the petitioner.
6. Under the above circumstances while dismissing this
writ petition, respondents 1 and 2 are directed to take effective
steps for recovery of the amounts due, from salary of the 5th
respondent and to take all possible steps to realise the amounts
by sale of the properties belonging to the 4th respondent, along
with recovery from salary of the petitioner which is now sought
for.
C.K.ABDUL REHIM, JUDGE.
okb