Kerala High Court
M/S.Amrutha Oils vs State Of Kerala on 8 June, 2016
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938
WP(C).No. 19615 of 2016 (B)
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PETITIONER(S):
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M/S.AMRUTHA OILS, CHAKKALA,
COMMUNITY ASSOCIATION OF INDIA, CHAMMANUVILLA
VENPAKAL P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS
PRESIDENT K.RENGANATHAN, AGED 54 YEARS, S/O.KRISHNA PILLAI,
MALAYALA SANDESAM
NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695123.
BY ADVS.SRI.LAL K.JOSEPH
SRI.A.A.ZIYAD RAHMAN
SRI.V.S.SHIRAZ BAVA
SRI.M.R.XAVIER JESS
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
2. THE DISTRICT COLLECTOR,
COLLECTORATE, THIRUVANANTHAPURAMPIN-695001.
3. THE DEPUTY TAHSILDAR (RR),
TALUK OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM-695001.
4. CANARA BANK, KAMUKINKODE BRANCH
KODANGAVILA P.O.THIRUVANANTHAPURAM
PIN-695123, REPRESENTED BY ITS CHIEF MANAGER.
R1-3 BY GOVERNMENT PLEADER SMT.LILLY K.T.
R4 BY SRI.PAULY MATHEW MURICKEN,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08-06-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 19615 of 2016 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: TRUE COPY OF THE NOTICE DT.16-9-2010 UNDER SEC.13(2) OF THE
SECURITIZATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND
ENFORCEMENT OF SECURITY INTEREST ACT, 2002.
P2: TRUE COPY OF THE REPLY DT.2-11-2010.
P3: TRUE COPY OF THE NOTICE DT.1-3-2012 ISSUED BY THE ADVOCATE
COMMISSIONER.
P4: TRUE COPY OF THE ORDER DT.8-3-2012 IN IA 780/12 IN SA 241/12.
P4(A): TRUE COPY OF THE PROCEEDINGS OF THE DEBT RECOVERY TRIBUNAL FOR
THE PERIOD OF 8-3-2012 TO 23-12-2015.
P5: TRUE COPY OF THE DEMAND UNDER FORM 10.
P6: TRUE COPY OF THE DEMAND NOTICE DT.5-4-16 UNDER S.34 OF THE
REVENUE RECOVERY ACT, 1968.
RESPONDENT(S)' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
A.M.SHAFFIQUE, J.
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W.P.(C) No.19615 of 2016
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Dated this the 8th day of June, 2016
J U D G M E N T
The petitioner has approached this Court challenging revenue recovery proceedings initiated against the petitioner by the 4th respondent Bank.
2. The main contention urged by the petitioner is that the 4th respondent Bank had already initiated proceedings by filing O.A.No.464 of 2010 before the Debt Recovery Tribunal for determination of the amount. The petitioner had also filed an application as S.A.No.241 of 2012 in which a direction had been issued to the Bank not to proceed under Section 14 of the SARFAESI Act. It is submitted that when proceedings had already been initiated by the respondent Bank under a special enactment namely the Recovery of Debts to the Banks and Financial Institutions, 1993 ('RDBFI Act' for short), it is not open for a Bank to parallely recover the amount under the Revenue Recovery Act. The petitioner relies upon Section 18 of the RDBFI Act to submit that there is a bar of jurisdiction. Section 18 reads as under :
"18. Bar of Jurisdiction.- On and from the appointed day, no court or other authority shall have, or be entitled to exercise any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to the matters specified in section 17."
W.P.(C) No.19615 of 2016 2
3. It is submitted that in view of the fact that no other court can exercise jurisdiction in the matter specified in Section 17, the revenue recovery authorities are not entitled to recover the amount at the instance of the respondent Bank.
4. On the other hand the learned Standing Counsel appearing on behalf of the 4th respondent submits that the issue is covered by a judgment of this Court in Lekshmi Enterprises v. State of Kerala [2008 (2) KLT 2] wherein a learned Single Judge having considered the issue as to whether recovery proceedings can be taken under the Revenue Recovery Act by invoking the Section 71 of the Revenue Recovery Act during the pendency of a petition before the Tribunal under the RDBFI Act held in paragraph 15 to 19 as under :
"15. In the circumstances, the doctrine of election is not available to the petitioners with a view to deter the 3rd respondent from invoking the provisions of the RR Act merely for the reason that the 3rd respondent has exercised his right as a mortgagee under the Securitisation Act and as a bank under the provisions of the DRT Act. I am unable to accept the contentions of the petitioners in this regard.
16. Learned counsel for the petitioners then contends that going by Notification S.R.O. 1465/87 issued under S.71 of the RR Act, the provisions of the Act are available to recover only such amounts which are due from a person on account of any loan advanced by that bank under various development schemes. Reference in this regard is made to the decision of the Supreme Court in Califfs India chambers v. Syndicate Bank (1999 (1) KLT 155). The argument would have merited acceptance but for the fact that the notification itself stood W.P.(C) No.19615 of 2016 3 amended in 1999. The phrase 'development scheme' as defined therein, has been amended to include all priority sector advances with effect from 30.7.1999.
17. Mr. John, learned counsel for the 3rd respondent submits that advances availed of by the petitioners are: The advances made to a small scale industry and such advances are classified as priority sector advances. There is no contra assertion by the petitioners to the aforementioned factual assertion by the 3rd respondent.
18. The advances availed by the 1st petitioner would consequently be covered by the "priority advances" as occurring in S.R.O. 1465/99. In that view of the matter, it cannot be said that the initiation of the proceedings under the RR Act, is without jurisdiction.
19. In the ultimate analysis, though no doubt, the question of jurisdiction may have to be decided with reference to the express provisions contained in the enactment, it would not be justified to lose sight of the fact that what is sought to be done by the creditor, who might get desperate, in circumstances where the total outstanding is above Rs.20 crores, is to take steps, as are available under law, for effecting such recovery as far as possible. The DRT Act, Securitisation Act and the RR Act are essentially intended to enable recovery of amounts by the creditor as against the recalcitrant defaulter. Unless one is in a position to come to conclusion on a conspectus of the provisions of the enactments that a real prejudice would be caused to the debtor by subjecting himself to the process under one enactment while simultaneous proceedings are there under another enactment, it would not be possible to seriously consider the case of any prejudice to the extent of justifying restraint of a creditor from prosecuting a remedy, which is otherwise available to him legitimately under the provisions of an enactment. What could be the prejudice that the petitioners may have, if they are subjected to the provisions of the RR Act merely by reason of the W.P.(C) No.19615 of 2016 4 pendency of the proceedings under the Securitisation Act or the DRT Act? After all, if on culmination of the proceedings under any one enactment, the debt stands discharged, it is open to the creditor not to continue the proceedings prosecuting his remedies under the other enactment. Since the mortgaged properties are accessible under all the three enactments, if proceedings are taken against the mortgaged property under one enactment, the possibility of any prejudice being caused to the debtor merely by reason thereof may not really arise for consideration. At the same time, if any one of the properties, not liable for attachment, are attached under the provisions of the RR Act, then it is always open to the defaulter, to assert his right under the provisions of the RR Act, and seek an exemption from such attachment. In other words, the rights which are available to the defaulter under the RR Act qua any properties belonging to him or qua any properties in which he has any interest are neither diluted nor forfeited, merely because the creditor has, taken recourse to the DRT Act or the Securitisation Act, as the case may be."
5. A perusal of Section 18, bar of jurisdiction, only indicates that there is a bar for determination of the amount in terms of Section 17. Section 17 refers to the power granted to the Debt Recovery Tribunal to determine the amount as claimed by the Bank and to pass a final award. The Revenue Recovery Act stands in a totally different scooting. It is invoked by the Bank based on a contract between the petitioner and the Bank by which certain items of loan can be recovered by resorting to the proceedings of the Revenue Recovery Act. It is in the said circumstances that the said procedure is adopted. The petitioner does not dispute the liability in this writ petition with reference to the claim made in the revenue W.P.(C) No.19615 of 2016 5 recovery notice. However, the learned counsel for the petitioner submits that the amounts had been disputed by filing written statement in the original application pending before the Tribunal.
6. Apparently, if any such recovery is made, which is contrary to law, it is for the Tribunal to take a decision in the matter. As matter stands now, when the 4th respondent Bank has a statutory right to proceed to recover the amount due under certain type of loans by resorting to revenue recovery proceedings, merely for the reason that an OA has been filed for determining the amount under the RDBFI Act, I do not think that the revenue recovery proceedings can be stopped. Under such circumstances, there is no basis for the contentions urged in this writ petition.
The writ petition is dismissed.
The learned counsel for the petitioner seeks three months' time to remit the amount covered by the demand made. Having regard to the aforesaid factual situation, the petitioner is granted three months' time to pay the entire amount in three equal monthly instalments starting from 08.07.2016. If there is any default in payment of any of the instalments, it shall be open for the revenue authorities to recover the entire amount in accordance with law.
Sd/-
A.M.SHAFFIQUE, JUDGE.
AV