K. Haridas vs Kerala Water Authority

K. Vinod Chandran, J.—Petitioner is aggrieved with the recovery proceedings, initiated as per Ext.P1, claiming an amount of Rs. 10,57,670/-, which according to the respondents is the damages payable by the petitioner, to the first respondent herein.

The brief facts to be noticed, even as per the counter affidavit filed by the first respondent in the above case is that, the petitioner was awarded a work, of supply of 3 numbers of chlorinators, as per agreement No. 31/95-96/SE dated 16.04.1996, by the Superintendent Engineer, Public Health Circle Kochi-11. There is no dispute that the said chlorinators were, in fact erected at site. The contention raised is with respect to the petitioner having not turned up, for repairs, during the guarantee period; which as is indicated in Ext.R1(a) is 5 years.

Petitioner allegedly, having not responded to the various demands made for repairs, it is seen from Ext.R1(a) that the chlorinators went out of order and were beyond repair and hence, the claim for damages for an amount of Rs. 4,90,850/- and the expenses incurred at Rs. 18,445/- being that spent at earlier repairs. The respondent had issued repeated notices, according to them, as is indicated in Exts.R1(a) and R1(c) all between 2001-2010.

However, there is nothing on record to show that any recovery proceedings were initiated within the limitation period. It is also pertinent that the petitioner had filed reply to the counter, wherein, it has been specifically denied that any request for repairs were notified to the petitioner, within the guarantee period. The respondent has not produced any evidence to counter the said contention or substantiate the fact.

In any event, it is to be noticed that, even as per the averments of the respondent, the contract was of the year 1995-1996, and the guarantee period was 5 years. Hence the same expired in the year 2001. Any recovery proceedings initiated, definitely, would have to be within the 3 years provided under the Limitation Act, 1963 since the claim is of recovery of money. There is nothing on record to show that such recovery proceedings were initiated; but for repeated notices having been issued to the petitioner, which is denied by the petitioner by filing a reply affidavit.

It is trite that, mere issuance of repeated notices would not save limitation and a creditor would necessarily have to file a suit within the limitation period or in the case of an institution covered by a notification under Sec. 71 of the Kerala Revenue Recovery Act, 1968 (for brevity, "the R.R. Act"); as has been declared by the Supreme Court in State of Kerala and Ors Vs. V.R. Kalliyanikutty and Anr, the recovery proceedings would have to be initiated within the time provided under the Limitation Act. The notification under Sec. 71 of the R.R Act does not save limitation, is the categoric declaration made in the aforesaid decision.

7Ext.P1, recovery proceedings obviously has been initiated only in the year 2010, since the file number disclosed in the notice is No.RR-4642/10. In such circumstance, the recovery steps initiated is beyond the limitation period and is not liable to be proceeded against the petitioner herein. Exts.P1 and P2 are set aside.

Writ Petition is disposed of.