A.I. Abraham vs State and others

G Rajasekharan, J.—Plaintiff in a suit for damages, is the Appellant. Plaintiff is the Managing Partner of Blue Sea Fisheries, Vadakkekara, North Parur''. He availed of a loan of Rs. 1 lakh from the second defendant Bank for the purchase of fishing boat for deep sea marine fisheries under a particular scheme. Certain amounts became due and the bank initiated revenue recovery proceedings for a sum of Rs. 1.31,141.80 by sending a certificate as contemplated by the Revenue Recovery Act to the Collector. On receipt of it, revenue recovery proceedings were launched and the movables belonging to the plaintiff kept in his residential building were attached on 9.5.1984. When the attachment was effected. Rs. 80.000/- was paid and the balance under the attachment order, was paid the next day. Thereupon the movables were released which were entrusted with third party, on kyehit.

It is alleged that the recovery proceedings were illegal and without jurisdiction and by the illegal distraint, the plaintiff had suffered shock and loss of reputation and as compensation for that. Rs. 25,000/-with interest at 6% from 9-5-1984 is claimed in the plaint.

The first defendant is the State of Kerala, represented by the District Collector Ernakulam, and the second defendant is the Canara Bank from which the plaintiff has availed of the loan. The contentions of first defendant are that the attachment was legal, that it was done after complying with the provisions of the Revenue Recovery Act, and that the claim is barred by limitation. The second defendant contends that the plaintiff was contacted and was informed about the closure of the Account, that the revenue recovery proceedings were resorted to in accordance with the Rules, that there is no illegality in initiating the proceedings, that the plaintiff did not suffer any loss of reputation and the suit is vexatiously brought, and that the claim is barred by limitation.

The trial court in answer to issues 2 & 5 (Whether the suit is barred by limitation ? and whether the suit is barred under any of the provisions of the R.R. Act ?) found that the case is one falling u/s 81 of the Revenue Recovery Act, and that the period of limitation prescribed is only ninety days and the Suit instituted after the expiry of that period is barred by limitation u/s 81 (2) of the Revenue Recovery Act. It was further held that the Requisition made by the Bank, the certificate issued to the Collector, and initiation of revenue recovery proceedings were done in the course of official duties with jurisdiction, and there was no fraud malafides or collusion in those matters. Without considering the claim of damages on merits, regarding the quantum, the suit was dismissed as barred by limitation. The plaintiff has come up in Appeal.

The only point argued before me was the question of limitation. According to learned counsel for the appellant/plaintiff, the revenue recovery proceedings were initiated without jurisdiction, since the loan availed of by the plaintiff was not an ''agricultural'' loan, and the loan of the nature failing under marine fisheries was included within the scope of Section 71 of the Kerala Revenue Recovery Act only by Notification G.O. MS. 1112/84 RD dated 19-11-1984. The said notification is in the following terms;

In exercise of the powers conferred by Section 71 of the Kerala Revenue Recovery Act, 1968 (15 of 1968) the Government of Kerala hereby make the following amendment, to their notification No. 26041/GI/79/RD dated 26th June, 1979 published as S.R.O. No. 797/79 in Part 1 of the Kerala Gazette No. 29 dated the 17th July 1979, namely

Amendment

In the said notification in clause (b) of the Explanation, for the word "Pisciculture", the word "pisciculture including marine fisheries and Schemes under Integrated Rural Development Programme, Differential Rate of Interest Scheme and self employment" shall be substituted.

As the Explanatory Note, it is mentioned :

In the notification cited, Government had made the provision of the K.R.R. Act applicable to the recovery of amounts due from any person to any Bank of account of any loan advanced to such person by that bank for agriculture or agricultural purposes. It is now proposed to bring within the purview of the R.R. Act also the loan issued under ''Marina Fisheries'' as well as Integrated Rural Development Programme, Differential Rate of Interest Scheme and self employment schemes. The above amendment is intended to achieve this object.

From the above amendment and the explanatory note, it is clear that the Government thought that a loan for agriculture or agricultural purpose will not take in a loan issued for marine fisheries and that was the reason for issuing the amendment. The certificate by the Bank for recovering the amount under the Revenue Recovery Act was issued to the Collector on 9-5-1984. The attachment was effected the same day. So, when the certificate was issued and revenue recovery proceedings initiated and attachment effected, the notification did not come into force. By the earlier notification, only agricultural loans and loans for agricultural purposes alone, were capable of being recovered by revenue recovery proceedings.

According to the plaintiff, the loan availed of from the second respondent bank was for the purpose of marine fisheries, and not for agricultural purposes and was not an agricultural loan. In paragraph (2) of the plaint, it is specifically mentioned that the loan was applied for and availed of for purchasing fishing that for deep sea marine fisheries. It is also averred that it is a particular type of loan for marine fisheries under a particular scheme. That has not been denied specifically in the written statement; nor is there any contention that it was an agricultural loan. Nevertheless, it was argued by the learned counsel for the Bank that even though the loan was for the purchase of a fishing boat, that also will fall under the category of "agricultural loan'' or loan for agricultural purposes'' and so, there was nothing illegal in initiating revenue recovery proceedings. This argument cannot be accepted. If actually Joans taken for marine fisheries also will fall within the category of ''agricultural loan'', there was no necessity for the Government to issue the Amendment to bring loans for the purpose of marine fisheries also within the fold of loans realisable under the Revenue -Recovery Act.

Agriculture and Marine fisheries are totally different activities, and the loan given for latter purpose cannot be treated as one for agriculture or agricultural purposes. ''Agriculture'' is the art or science of cultivating the ground, especially in fields including the preparation of the soil, the planting of seeds, the raising and harvesting of crops, and the rearing, and management of live stock tillage; husbandry and farming. ''Marine fisheries'' is the activity of fishing from the sea. That cannot be equated with ''agriculture'' or ''agricultural purpose''. When the allegation in the plaint that the loan was for the purpose of marine fisheries was not denied, and when there is no contention that the loan was for an agricultural purpose, it is idle to argue that the loan given to the plaintiff could be treated as one for ''agriculture'' or ''agricultural purpose''. ''Fishery'' is not ''agriculture'' nor an ''agricultural purpose'' (See Probhat Chandra Barua Vs. Emperor, ). So, when the certificate was issued and the revenue recovery proceedings initiated on 9-5-1984, there was no authority or jurisdiction for realising the amount under the Revenue Recovery Act. The right to recover the particular amount under the Revenue Recovery Act, became available only with effect from 19-11-1984 when the above referred notification was issued. It follows that the arrears due from the plaintiff could not have been recovered under the revenue recovery proceedings and neither the bank, nor the Government had the jurisdiction to effect revenue recovery proceedings against the plaintiff.

The next question is whether revenue recovery proceedings taken without jurisdiction will fall u/s 81 of the Revenue Recovery Act and the limitation prescribed in Section 81 (2) is attracted. Section 81 is a provision enabling parties aggrieved to sue in a civil court. Sub-section (1) reads:

Nothing in this Act shall be held to prevent parties, deeming themselves aggrieved by any decision or order passed or proceedings taken (or purporting to be passed or taken) under this Act for arrears due or alleged to be due from such parties, from suing the Government in the civil court."-Sub-section (2):

Civil courts shall not take cognizance of any suit instituted as provided for in this Act, unless such Suit has been instituted within ninety days from the time at which the cause of action arose,

According to the defendants, the present Suit falls within the ambit of Section 81 (2) and the period of limitation is only 90 days. That contention was accepted by the trial court. In my view, the trial court was wrong in holding that the case is one falling u/s 81 (2) of the Act and so, the Suit is barred by limitation. In a similar case, where a similar provision came up for consideration, the Andhra Pradesh High Court in the decision in Chegondi Venkataramadas Vs. Bonam Latchanna and Others, , held :

Where there is no jurisdiction to invoke the provisions of the Revenue Recovery Act such as where the sale is made when there are no arrears of revenue............ Section 59 becomes in applicable.

Section 59 referred to above, was a provision in the Madras Revenue Recovery Act which provided a special period of limitation in respect of cases falling under the Act. That Section reads:

Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the Civil Courts for redress; provided that civil courts shall not take cognizance of any suit instituted by such parties for any such causes of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.

It is in interpreting the above Section 59 of the Madras Revenue Recovery Act, that the court came to the conclusion that when the revenue recovery proceedings were taken without jurisdiction, the cause of action for the aggrieved party does not fall within the scope of that Section, and the general provisions of law of limitation will apply. The contention taken in that case was that where there was no justification to act under the Revenue Recovery Act, such as, for instance where there was no amount due or where the person whose properties are attached is not liable for any arrears and action is taken against him, then there is no jurisdiction to invoke the provisions of the Revenue Recovery Act and consequently, the limitation prescribed in Section 59 will not apply, but the period prescribed under the ordinary law of limitation will govern the Suit. That argument was accepted by the Court following a Full Bench decision of the Madras High Court in Venkta v. Chengadu ((1888) ILR 12 Mad 168).

Here, it is a case where there was no jurisdiction at all to invoke the provisions of the Revenue Recovery Act for realisation of the dues before the commencement of the Notification dated 19-11-1984. When that is the case, the matter does not fall u/s 81 (2) of the Revenue Recovery Act. (I am in respectful agreement with the reasonings and findings in these decisions. The finding of the trial court to the contrary, is liable to be vacated and I do so.

Then the question is whether the suit filed on 9-4-1987 is within time under the provisions of the Limitation Act.

According to the learned counsel for the appellant, the provision that governs the case is Article 113, a residuary article. That Article prescribes a period of three years, when the right to sue accrues. That article applies to suits for which no period of limitation is prescribed elsewhere in the schedule to the Limitation Act. So, if the case falls within any of the articles of the Limitation Act provided elsewhere, then Article 113 has no application.

It was also argued that even if it is found that Article 113 of the Limitation Act is not applicable, then the matter falls under Article 91 (b) of the Limitation Act which is in the following terms:

"Description of Suit

Period of Limitation

Time from which period begins to run

For compensation-

(b) for wrongfully

taking or injuring or

wrongfully detaining

any other specific

movable property.

3 Years

(a) When the person having

the right to the

possession to the

property first learns

in whose possession it is''.

This article also is only of a general nature where specific movable property was wrongfully taken or wrongfully detained and injury caused. If a more specific article governing the present Suit is available, then necessarily article 91 (b) also has to be excluded. There is the specific article - article 79, which governs similar cases, and when that specific provision is available, article 113 as well as 91 (b) are excluded. Article 79 reads:

"Description of Suit

Period of

Time from which period

Limitation

begins to run

For compensation for an illegal, irregular or excessive distress

One Year

The date of the distress."

The plaintiff''s allegation in the Suit is that his movables were attached purporting to be under the provisions of the Revenue Recovery Act without jurisdiction and by that attachment, he has suffered loss of reputation and shock, and so he is entitled to compensation. The cause of action is stated to have arisen when the attachment was effected on 9-5-1984 and from 29-1-1987 when notice u/s 80 C.P.C. was issued and also from 26-3-1987 when reply was given.

It cannot be disputed that the attachment effected was illegal distress as understood in Article 79 of the Limitation Act. Illegal distress and illegal distraint are similar in connotation and meaning. ''Distrain'' means "to take as a pledge the property of another to keep the same until he performs his obligation, or until the property is sold by the Sheriff or other proper officer to satisfy the obligation; legal seizing goods as a method of enforcing payment." (The Law Lexicon - 1987 - Edition Page 354). The term ''Distress'' is also applied to the thing taken or distrained. ''Distress'' is also used to the taking of a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. (The Law Lexicon - 1987 Edn. Page 354 by P. Ramanatha Aiyar)

In Mitra''s Commentaries on Limitation Act (10th Edn. 1992, Page 1412), the Author says:

Distress in a remedy available in respect of the performance of a duty or the satisfaction of a demand. It consists in the taking without legal process, of goods, from the possession of the defaulter into the hands of the person entitled to the performance or satisfaction to ensure that performance is made or satisfaction given. It carries with it a power to sell the seized articles if the default continued.

''Without legal process, means, without the process of a court of law.

What was done in this case was to seize the properties or attach the properties or distrain the properties for the satisfaction of the amounts due from the plaintiff. That certainly is distress falling under Article 79 of the Limitation Act. According to the plaintiff, the distress was illegal and it is for that, the compensation is claimed. So, the present claim in the suit is one falling under the category mentioned in Article 79, i.e. for compensation for an illegal, irregular or excessive distress.

In the decision reported in Shridhar Mahadeo Rasal Vs. Godulal Jethmal, . the competing articles were articles 29 and 36 of the old Limitation Act. That was a case to recover compensation for illegal distraint. That court held : Where the statute by an express Article deals with a specific case that Article must prevail over the general provisions. Hence. Article 28 applies to a claim to compensation for illegal distress or distraint. The competing article 36 does not apply as it is a very wide and general Article governing cases of compensation for any act of misfeasance or malfeasance or non - feasance independently of contract and not specifically provided for. Seizure due to want of jurisdiction is contemplated by the provisions of Article 28.

The Article corresponding to Article 28 of the old Act is Article 79. Thus, article 79 which is the specific article, is attracted and so, article 91 (b) and article 113 relied on by counsel for the appellant are excluded. The period prescribed is only one year from the date of distress. The date of distress was on 9-5-1984. The suit instituted beyond the period of one year is barred by limitation, even though the case does not fall u/s 81 (2) of the Revenue Recovery Act. The result is that the Suit must fail. In the circumstances, the dismissal of the Suit by the trial court is upheld, though on different grounds. The Appeal fails and is dismissed.

In the circumstances of the case, parties will suffer their respective costs.