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Narayani Amma Karthiyayani Amma and anr. Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 3210 of 1969
Judge
Reported inAIR1972Ker93
ActsKerala Co-operative Societies Act, 1969 - Sections 76; Constitution of India - Article 14
AppellantNarayani Amma Karthiyayani Amma and anr.
RespondentThe State of Kerala and ors.
Appellant Advocate K.N. Narayanan Nayar and; N. Sudhakaran, Advs.
Respondent Advocate G. Janardhana Kurup, Adv. and;Govt. Pleader
DispositionAppeal dismissed
Cases ReferredState of Kerala v. C. M. Francis
Excerpt:
- - p-3 and p-4 are also bad, as the petitioners have no joint liability for the amounts payable under the two awards, and each of them is liable only for the amount due from her under the particular award against her. p-3 and p-4 are bad since they relate to the aggregate of the two debts payable by the two petitioners separately......of orders, etc.-- every order made under sub-section (2) of section 68 or under section 75, every decision or award made under section 70, every order made by the liquidatorunder section 73 and every order made by the tribunal under section 82, section 84, section 85 or section 86 and every order made under section 83 shall, if not carried out,-- (a) on a certificate signed by the registrar or any person authorised by him in this behalf be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court; or (b) where the order is for the recovery of money, be executed according to the law and under the rules for the time being in force for the recovery of arrears of public revenue due on land; provided that any application for such recovery.....
Judgment:
ORDER

M.U. Isaac, J.

1. The first petitioner is the mother of the second petitioner. The third respondent, the Multi-purpose Co-operative Society Ltd. No. 1240, Kulasekharapuram, obtained an award against the first petitioner for a sum of Rs. 826, and against the 2nd petitioner for a sum of Rs. 698. The second respondent, the Sales Officer, District Co-operative Bank, Quilon issued a notice of demand Ext. P-1 to the first petitioner and a notice of demand Ext. P-2 to the second petitioner calling upon them to pay the respective amounts due from each of them. This was followed by attachment of certain moveables belonging to the first petitioner, and certain immovable properties belonging to the petitioners. Exts. P-3 and P-4. both dated 28-6-1969, are the attachment schedules. Both these attachments were made for recovery of the aggregate amounts due under the aforesaid two awards. The above action was taken by the second respondent under Section 76 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as the Act). The petitioner contends that this section is unconstitutional, as it is violative of Article 14 of the Constitution and that the attachments as per Exts. P-3 and P-4 are also bad, as the petitioners have no joint liability for the amounts payable under the two awards, and each of them is liable only for the amount due from her under the particular award against her. This writ petition has been filed to declare that Section 76 of the Act is unconstitutional, to quash Exts. P-1 to P-4 and for consequential reliefs.

2. It is necessary to read Section 76 of the Act for dealing with petitioners' first contention.

'Execution of orders, etc.-- Every order made under Sub-section (2) of Section 68 or under Section 75, every decision or award made under Section 70, every order made by the liquidatorunder Section 73 and every order made by the Tribunal under Section 82, Section 84, Section 85 or Section 86 and every order made under Section 83 shall, if not carried out,--

(a) on a certificate signed by the Registrar or any person authorised by him in this behalf be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court; or

(b) Where the order is for the recovery of money, be executed according to the law and under the rules for the time being in force for the recovery of arrears of public revenue due on land;

Provided that any application for such recovery shall be made--

(i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorised by him in this behalf;

(ii) within twelve years from the date fixed in the order, decision or award and if no such date is fixed, within twelve years from the date of the order, decision or award, as the case may be, or

(c) be executed by the Registrar or any other person subordinate to him empowered by the Registrar in this behalf, by the attachment and sale or sale without attachment of any property of the person or a society against whom the order, decision or award has been obtained or passed.'

The contention of the petitioner's counsel is that the above section Provides three methods of execution (i) through Civil Court as if the award were a decree passed by such court, (ii) under the Revenue Recovery Act as if the amount due under the award was an arrear of public revenue and (iii) by the Registrar or other person subordinate to him and empowered by him by attachment and sale or sale without attachment of any property of the debtor. Counsel for the petitioners submits that the second remedy is more drastic and prejudicial to the debtor than the first, and that the third remedy is still worse. He contends that there is no guidance either in the Act or the rules made thereunder to indicate under what circumstances one or the other of the above three remedies may be chosen, and that Section 76 of the Act is violative of Article 14 of the Constitution, in so far as it leaves to the arbitrary pleasure of the creditor to choose between such discriminatory remedies. In support of this contention, he relies on the decision of the Supreme Court in N. I. Caterers (P) Ltd. v. State of Punjab, AIR 1967 SC 1581.

In that case the Supreme Court held that Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, which empowered the Collector to evict persons in occupation of public properties and premises was vio-lative of Article 14 of the Constitution, as the Government had the ordinary remedy by way of suit to evict such persons, and the above provision conferred an unguided and arbitrary power on the Collector to choose the summary remedy.

The learned Government Pleader invites my attention to the decision of the Supreme Court in State of Kerala v. C. M. Francis & Co.. AIR 1061 SC 617. He submits that when alternative remedies are given to a creditor to recover a debt, it is open for the creditor to choose the remedy which in his opinion is most suitable on the facts and in the circumstances of the case for achieving the object for which the law is made, namely the recovery of the debt. I am inclined to accept the above submission.

In my view, the decision of the Supreme Court relied on by counsel for the petitioners does not apply to the instant case for two reasons. First, that case relates to eviction of a tenant from public property, in which he has some rights by virtue of being the tenant. Eviction determines that right; and the question of equal treatment and discrimination arises in such a matter. But no such question arises in the matter of recovery of a debt Secondly, Article 14 or the principle underlying that article applies to a case of unequal treatment or discrimination by 'the State', which term is defined in Article 12. I, therefore, reject the petitioners' contention regarding the validity of Section 76 of the 'Act.

3. The petitioners are entitled to succeed on their second contention, namely, Exts. P-3 and P-4 are bad since they relate to the aggregate of the two debts payable by the two petitioners separately. The first petitioner is entitled to get the attachment released on payment of the amount due from her. Similarly the second petitioner is entitled to get her property or her Interest in a joint property released from attachment on payment of the amount due from her. The liabilities are separate and independent The attachment notice Ext. P-3 calls upon the first petitioner to pay aggregate of the two debts which obviously she is not liable to pay. The attachment Ext. P-4 requires each of the petitioners to pay the aggregate of the two debts. As already stated, each of them is not liable for the aggregate amount. Theattachment as per Exts. P-3 and P-4 cannot therefore be sustained.

In the result I quash the attachment schedules Exts. P-3 and P-4, and direct the second respondent to return to the first petitioner the movables attached by him as per Ext. P-3, if they have not been already disposed of. In the circumstances of the case there will be no order as to costs.


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