SHERIFF Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is admittedly a defaulter in respect of the amounts due to the Public Sector Bank, the 4th respondent herein. For realisation of the amounts due and payable by the petitioner a suit was instituted by the Bank and obtained a decree on 20/5/1989. An E.P. No. 95/1991 was thereafter filed before the Sub Court, Kottarakkara. While so, the Bank after obtaining the decree proceeded to recover an amount under the Kerala Revenue Recovery Act by making a requisition in that behalf as evidenced by Ext.R4(a) dated 10.11.2000. The petitioner has raised mainly two contentions before me challenging the revenue recovery proceedings initiated as evidenced by Ext.P2. (1) That the revenue recovery proceeding is barred by law of limitation, since what is sought to be recovered is a Bank loan and not a decree amount and the Bank loan normally should be paid on the expiry of three years. (2) That the Bank cannot seek recourse to two parallel proceedings. After filing an E.P. the Bank cannot turn round and proceed to recover the amounts under the Revenue Recovery Act.

(2.) The learned counsel for the 4th respondent-Bank on the other hand contended that though in the Revenue Recovery notice the amount is shown as due by way of Bank loan, in fact Bank loan since been quantified and turned to be a decree debt and the amount sought to be realised is thus the amount as decreed by the Civil Court.

(3.) In this connection a learned Single Judge of this Court in State Bank of India v. Kuttappan (1998 (2) KLT 130) held that as per S.R.O. No. 797/79 the recovery of the amount under the Revenue Recovery Act and the words 'on account of a loan advanced' would take in the amount due under a decree obtained on the basis of that loan. Admittedly, as on the date of the requisition made a decree was already obtained by the Bank. As such the mere fact that in the demand notice it is stated as Bank loan, in no way will take away the right of the Bank to proceed to recover the amount under the revenue recovery proceedings. The period of limitation for execution of a decree being 12 years as held in Binny Ltd. v. Regional Poultry Officer and Ors. (1994 (2) KLJ 536), it has also to be held that recovery of the amount due as per the decree in this case cannot be said to be barred by the law of limitation. The next contention raised is that the Bank cannot proceed simultaneously with two proceedings for realisation of the amount. In answer to this the learned counsel for the Bank placed reliance on the decision of this Court in State Bank of India's case (1998 (2) KLT 130) referred to above. In that case also an execution petition was pending and this Court took the view that the doctrine of election will apply only if it is shown that any prejudice is caused by way of earlier proceedings initiated by them. It was held that two remedies are not mutually exclusive and the principle would apply only in cases where the two courses of action available are mutually exclusive, and the opposite party on the faith of the representation by conduct or otherwise, had acted to his detriment or has adopted a course of action which otherwise he would not have resorted to. Two courses open to the decree holder in the case on hand are neither mutually exclusive nor it could be said that the judgment debtor has acted to his detriment by adopting one of the courses of action by the decree holder. Therefore, the doctrine of election as such will not apply in the light of the abovesaid decision. However, the learned counsel for the petitioner has brought to my notice the decision of the Apex Court in Andhra Pradesh State Financial Corporation v. Gar Re-Rolling Mills and Anr. (AIR 1994 SC 2151) wherein the Apex Court in paragraph 13 held as follows:-