JOHN Vs. CORPORATION OF COCHIN

JUDGEMENT

(1.) PLAINTIFF in O. S. No. 363 of 1980 on the file of the II Additional Sub Court . Ernakulam. is the appellant. The suit is for realisation of money.

(2.) PLAINTIFF is the owner of building Nos. 25/1285/1 to 11 series situate within the Municipal Corporation of Cochin and the said buildings were assessed to property tax in quinquennial revision for the period from 1976-77 to 1978-79. According to the plaintiff. neither the Corporation nor the Commissioner of the Corporation issued any demand to him under Rule 29 of the Rules in Schedule II of the Kerala Municipal Corporations Act. There is a statutory bar to issue of warrant of distraint without giving a notice of demand. The Revenue Inspector of the Corporation came to the house 2 P. M 2p. M. to enforce warrant of distraint illegally and started removing of valuable house-hold articles of the plaintiff from the residence to the Office of Cochin corporation. An order of injunction was issued in LA No. 1305 of 1980 in O. S. 239 of 1980. restraining the Corporation from recovering the amount. but in violation of the said order. the Revenue Inspector seized the moveable properties. PLAINTIFF remitted the entire amount covered by the warrant under protest. which included Rs. 1. 000/- expenses for the distraint. PLAINTIFF is therefore entitled to claim refund of the amount paid together with interest at 6% per annum from 22-2-1980 and he was also entitled to get Rs. 350/ -. which represented the expenditure incurred by plaintiff for bringing back the immovables to his residence from the office of the Corporation. PLAINTIFF also claimed Rs. 5. 000/- by way of damages. A statutory notice dated 12-6-1980 was issued to the defendant. but no reply was sent. Hence the suit.

(3.) IN this appeal. learned counsel for the appellant has challenged the finding of the court below. Learned counsel submitted that the corporation had not given any bill to the plaintiff demanding the property tax as contemplated under Rule 29 (1) of Schedule II (Taxation rules) to the Kerala municipal Corporation Act and therefore the warrant of distraint was illegal and that consequently the plaintiff was en titled to get refund of the amounts collected on the basis of such an illegal restraint warrant. IN the written statement filed by defendants. they averred that there is compliance with Rule 29 (3) before distraint warrant was issued. According to them. it was only after issue of bills. distraint warrants were Issued. Learned counsel for appellant also submitted that as soon as the plaintiff came to know about the distraint warrant. he filed O. S. No. 239 of 1980 before the Munsiffs Court. Ernakulam and obtained an injunction. restraining defendants from collecting tax and that violating the order of injunction. the distraint was made with the help of police at 2 P. M. on 22-3-1981. Learned counsel submitted that the order of injunction was shown to the defendants before distraint was made. but defendants did not stop the proceedings. On the other hand. learned counsel for respondents submitted that the suit O. S. No. 239 of 1980 was filed by plaintiff and' injunction was obtained only after the distraint was made and that the allegation that distraint was made violating the injunction order was untrue.