C. SACHIDANANDAN Vs. T. D. MANI

JUDGEMENT

(1.) These Review Petitions are carried from a common judgment in Writ Appeal Nos.111 and 342 of 2023 of a Division Bench of this Court, of which one amongst us was a member. The issue pertains to the Abkari dues of a partnership firm pertaining to the year 1993-1994. The total dues, inclusive of the interest, came to Rs.25,34,412.00, which was realised by the sale of the properties of three among the total six partners, namely, Sri.C.Sachidanandan, Sri.T.D.Thampi and Smt.Meena Asokan. Two Writ Petitions were filed, one by C.Sachidanandan (O.P. No.464 of 2010) and the second, by the auction purchaser [W.P.(C) No.11618 of 2010]. The Writ Petition preferred by C.Sachidanandan was dismissed; and the one by the auction purchaser was allowed, directing issuance of sale certificate and delivery of property. The said judgment was under challenge before the Division Bench in the Writ Appeals afore referred, both having been preferred by the legal heirs of C.Sachidanandan, who expired after filing the Original Petition.

(2.) The essential ground of challenge raised by the legal heirs of Sachidanandan is that the entire Abkari dues would be satisfied by the sale of two properties belonging to Thampi and Meena Asokan and therefore, the property of Sachidanandan ought to have been absolved from the liability. The contention is answered by the Division Bench in paragraph no.11, by finding that the sale of the properties were conducted on the same day - that is on 13/8/2007 - at different locations and there was never an occasion to find the dues having been satisfied on the auction of the other two properties. Yet another contention pressed into service by the appellants is that the amounts recovered from the sale of the properties belonging to Meena Asokan and deceased Thampi, itself, would be in excess of the total dues, wherefore, auction proceedings against the property of Sachidanandan should be set aside. The said contention is answered in paragraph no.12 of the judgment under review, again reiterating that the sale took place on the same day, at different locations and one such sale cannot be said to have been conducted prior to the other. The settled principle that the creditor is at liberty to recover the dues from all or any of the debtors according to the former's choice in cases of joint and several liability, was also taken stock of. The third contention of the appellants that Sachidanandan had paid much more than other partners towards Abkari dues is also seen repelled by virtue of the discussion contained in paragraph no.13 of the judgment. It was found that, after the sale of the properties of the three partners, the contribution of each partner has to be reckoned by adding the amount fetched from the sale of each property to the amounts remitted by each other partners, individually. By such reckoning, it was found that the highest contribution is made by Thampi, followed by Meena Asokan; and Sachidanandan had only the third place in terms of contribution. Accordingly, the Division Bench found towards the end of paragraph no.13 that the three partners - whose properties were sold - would be entitled to approach the Revenue authorities to get back the amounts in excess of the dues, in proportion to their liability. It was also clarified that the remittances made by each of the said three partners before sale, need not be reckoned, since it is the matter of settlement by and between the partners.

(3.) The Division Bench thereafter proceeded to issue certain directions, which are confined only to the refund of the excess amount.