Full Judgment Text
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PETITIONER:
LUKA MATHAI
Vs.
RESPONDENT:
NEELAKANTA IYER SUBRAMONIA IYER
DATE OF JUDGMENT06/10/1971
BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
RAY, A.N.
PALEKAR, D.G.
CITATION:
1972 AIR 383 1972 SCR (1) 977
ACT:
Travancore Land Improvement and Agricultural Loans
Regulation IX ,of 1094.(M.E.)-Recovery of loan.
HEADNOTE:
The loans granted under the Travancore Land Improvement and
Agricultural Loans Regulation IX of 1094 together with
interest and charges etc. can be recovered from the
borrowers under cl. (a) of s. 7(1) of the Regulation, as
arrears of land revenue due by him or in any of the other
modes prescribed by cls. (b), (c) and (d) of the section.
The fact that the properties which had been sold were not
mentioned in the bond as collateral security or were not
expressly hypothecated does not make any difference,
because, Travancore Revenue Recovery Act 1 of 1068 (M.E.)
provides under s. 5 "when public revenue due on loan may be
in arrear, such arrear, together with interest if any and
cost and process may be recovered by the sale of the
defaulter’s movable or immovable property or both in the
manner hereinafter provided." Further, it is not necessary
for the borrower to specifically so covenant in his bond
that he would be personally liable, because, s. 7(1) (a) of
the Regulation makes the borrower personally liable. This
is also made clear by sub-s. (2) under which if a surety
pays the loan he can request that the money be recovered
from the borrower on his behalf. [979 F]
Ulahannan Quseph v. Koohitti Kochukumari, 23 Tr. L. J.
1051, 54 and Birendra Nath Raha v. Mir Mahabubar Rahaman,
A.I.R. 1947 Cal. 332, held inapplicable,
Gonjalada Bhojarajappa v. Korlahalli Halappa, A.I.R. 1946
Mad. 226, Lakshman Venkatesh Naik v. Secretary of State
A.I.R. 1939 Bom. 183 Hand Birendra Nath Raha v. Mir
Mahabubar Rahman, A.I.R. 1947 Cal. 332, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 542 of 1967.
Appeal from the judgment and decree dated January 24, 1964,
of the Kerala High Court in Appeal Suit No. 368 of 1959.
Manual T. Paikeday, S.K. Sabharwal and Ganpat Rai, for the
appellant.
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A. R. Somanatha Iyer and M. R. K. Pillai, for the
respondent.
The Judgment of the Court was delivered by
Sikri, C.J. By judgment dated May 26, 1970, this Court
(Sikri J., as he then was, and Ray J.) allowed Civil Appeal
No. 542 of 1967, set aside the judgment of the High Court
and passed a decree in favour of the appellant after
modifying the decree passed by the Trial Court. The
respondent subsequently filed Review Petition No. 35 of 1970
for review on the ground that they had failed to
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bring to the notice of the Court the provisions of
Travancore Regulation IX of 1094 and the fact that the loans
were. granted under the above Regulation. We allowed review
on February 1, 1971. This judgment is, however, in
continuation of our earlier judgment dated May 26, 1970,
The only new point which needs discussion is the effect of
the provisions of Travancore Regulation IX of 1094 on our
conclusion on the fourth point in that judgment.
We had inter alia held that the "fourth point raised by the
learned counsel for the plaintiff is fatal for the
respondent." We observed that "the bonds do not give power
to the Government to sell the properties other than
mentioned in the bond. The properties mentioned in plaint A
schedule items 2 to 5, B Schedule items 1 and 3 to 8, and C
schedule items were not given as security under the bond and
the Government had no authority to sell them. It is
conceded on behalf of the respondent that all the properties
were sold in one lot. This, in our opinion’ vitiates that
the sale of all the properties was void." The fourth point
raised before us was that "the Government had no authority
to attach and sell plaint A schedule items 2 to 5 and B
schedule items 1 and 3 to 8 and C schedule items, which were
not given as security under the bonds; and if the Government
had no authority then the sale of all the properties is
void." We had while dealing with the third ground also
observed that "no other regulation has been brought to our
notice which makes dues under this bond to be recoverable as
arrears of public or land revenue."
It now transpires that Regulation IX of 1094-Travancore Land
Improvement & Agricultural Loans Regulation-provides for
recovery of land improvement loans from the borrower as if
they were arrears of land revenue due by him. Section 7 of
the above Regulation provides
"7. (1) Subject to such Rules as may be made
under Section 10, all loans granted under this
Regulation, all interests (if any) chargeable
thereon and costs (if any) incurred in making
the same shall, when they become due, be
recoverable in any of the following modes :
(a) from the borrower as if they were arrears
of land revenue due by him;
(b) from his surety (if any as if they were
arrears of land revenue due by him;
(c) except as regards the loans referred to in
Section 4, out of the land for the benefit of
which
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the loan has been granted as if they were
arrears of land revenue due in respect of that
land;
(d) out of the property comprised in the
collateral security according to the procedure
for the realisation of land revenue by sale of
immovable property other than the land on
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which the revenue is due :
Provided that no proceeding in respect of any
land under Clause (c) shall affect any
interest in that land which existed before the
date of the order granting the loan, other
than the interest of the borrower, and of
mortgagees of, or persons having cha
rges on,
that interest, and, where the loan is granted
under Section 3 with the consent of another
person, the interest of that person, and of
mortgagees of, or persons having charges on,
that interest.
(2) When any sum due on account of any such
interests or costs is paid by a surety or an
owner of property comprised in any collateral
security, or recovered from a surety or out of
any such property, such sum shall on the
application of the surety or the owner of such
property, be recovered on his behalf from the
borrower or out of the land for the benefit of
which the loan has been granted, in manner
provided in this Section."
From these provisions it is quite clear that the loans
granted under the Regulation, interest and charges, etc. can
be recovered in any or all of the four modes described in
the section. They can be recovered from the borrower under
clause (a); they can be recovered from recovered from a
surety under clause (b); the, land for the benefit of which
the loan had been granted can be proceeded.. against under
clause (c) ; and under clause (d) property comprised in the
collateral security can be proceeded against. The fact that
the properties which had been sold were not mentioned in the
bond as collateral security or were not expressly
hypothecated does not make any difference because the
Travancore Revenue Recovery Act 1 of 1068 provides under s.
5 that "when Public Revenue due on land may be in arrear,
such arrear, together with interest, if any, and costs of
process. may be recovered by the sale of the defaulter’s
movable or immovable property or both, in the manner
hereinafter provided."
The learned counsel for the appellant contends that neither
the Travancore Revenue Recovery Act 1 of 1068 nor the Land
improvement and Agricultural Loans Regulation IX of 1094,
and
980
the rules made thereunder, confer any power or jurisdiction
on the State Government or its officers to sell through the
machinery of the Revenue Recovery Act any other property of
the borrower than what he has specifically given by his bond
as security for the loan. It is further contended that the
borrower does not incur any personal liability. unless he
has specifically so covenanted in the bond and hence the
sale of all the 12 out of the 13 items of land sold--one
item alone having been a security-property under the loan
agreement-was unauthorised, illegal and void.
We are unable to agree with this contention. It is not
necessary for the borrower to specifically so convenant in
his bond that he would be personally liable because s. 7 (1
) (a) of Regulation IX of 1094 makes the borrower personally
liable. This is also made clear by sub-s. (2). Under sub-
s. (2), if a surety pays the loan he can request that the
money be recovered from the borrower on his behalf.
The learned counsel relied on the decision in Ulahannan
Quseph v. Koohitti Kochukiimari(1) where reference was made
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to an earlier judgment in the Dewan of Travancore v. Eravi
Narayanan(2) in which it was held that "though under section
59 of the Revenue Recovery Regulation, moneys due to
Government under written agreements and all sums declared by
other Regulations to be realisable as arrears of public
revenue may be recovered under this Regulation, that section
only makes the machinery or procedure prescribed in the
Regulation applicable to such cases, and it would not follow
that the incidents of a Revenue sale held under section 39
would also attach to sales held under the authority
conferred by the provisions of section 59." The Court held
that the property in the case remained subject to the
plaintiff’s prior charge.
We are unable to appreciate how this case assists us on the
question whether there is any personal liability of the
appellant or not.
The learned counsel also due our attention to Birendra Nath
Raha v. Mir Mahabubar Rahaman (3). In this case it was held
that according to the provisions of the Bengal Land Revenue
Sales Act, 1868, the properties in question could not be
sold because they were neither an estate nor a tenure within
s. 5 of the Act. No such question arises in this case but
it may be mentioned that at page 336 the Court interprated
cl. (a) of s. 7 of the Land Improvement Loans Act to mean
that it imposed a personal liability on the borrower.
(1) 23 Travancore Law Journal 1051, 54.
(2) 29 Travancore Law Reports 37.
(3) A.I.R. 1947 Cal. 332.
981
There is, however, authority against the contentions of the
appellant. The Madras High Court observed in Gonjalada
Bhojarajappa v. Korlahalli Halappa(1) as follows :-
"It is clear from s. 5, Revenue Recovery Act,
that for the recovery of a loan advanced under
the Agriculturists Loans Act it is open to the
Collector to sell any part of the immovable
property belonging to the defaulter, and the
remedy is not confined to that particular
property in respect of which or for whose
improvement the loan had been taken."
It may be noted that Section 5 of the Agriculturists’ Loans
Act,, 1884, provides :
"Every loan made in accordance with such rul-
es, all interest (if any) chargeable thereon,
and costs (if any) incurred in making or
recovering the same, shall, when they become
due, be recoverable from the person to whom
the loan was made, or from any person who has
become surety for the repayment thereo
f, as if
they were arrears of land-revenue or costs
incurred in recovering the same due by the
persons to whom the loan was made or by his
surety."
In interpreting this section, the Madras High Court, in the
above mentioned case clearly held that it was open to the
Collector to sell any part of the immovable property
belonging to the defaulter, and the remedy was not confined
to that particular property in respect of which or for whose
improvement the loan had been taken.
We may also mention that in Lakshman Venkatesh Naik v.
Secretary of State(2), while dealing with s. 7 of the Land
Improvement Loans Act, 1883, which is in terms similar to
sec. 7 of Travancore Regulation IX of 1094, it was observed
that "it was therefore open to the Collector to adopt all or
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any of the four different methods which the Section provides
for the recovery of the taqavi arrears."
In the result the appeal is dismissed. The parties will
bear their own costs throughout. Our order dated February
1, 1971 awarding Rs. 1,500 to the appellant as thrown away
costs shall however, stand.
K.B.N.
Appeal dismissed.
(1) A.I.R. 1946 Mad. 226.
(2) A.I.R. (1939) Bom. 183.
982