Shaji P. Chaly, J.
1. The writ appeal is directed against the interim order dated 19.3.2020 passed by the learned Single Judge in W.P.(C) No.8428/2020, whereby the learned Single Judge declined to stay the proceedings pertaining to Exts.P1 and P1(a) prohibitory orders issued by the Special Tahasildar (RR), Kerala State Financial Enterprises Limited, Neyyattinkara to the Divisional Forest Officer, Forest Head Quarters, Thiruvananthapuram, requesting to recover an amount of Rs.2,24,537/- along with interest @ 18 % from the appellant on account of the guarantee extended by the appellant in a chitty and loan transactions of the 8th respondent, in the appeal. Shorn of unnecessary details, necessary facts for the disposal of the writ appeal are as follows:
2. Appellant is working as an Administrative Assistant in the Forest Department. Appellant stood as surety to the 8th respondent, who is a subscriber to chitty No.6/2012 and two ticket Nos.36 & 77, conducted by the Kerala State Financial Enterprises Limited, Thirumala Branch, Thiruvananthapuram, a State Government undertaking. The total sala of the chitty was Rs.5,00,000/- and chitty was for a period of 100 months and the subscriber was liable to pay installments of Rs.5,000/- per month, spanning over a period from 31.12.2012 to 12.4.2020. The Special Deputy Tahasildar (RR) has issued Exts.P1 and P1(a) prohibitive orders requesting his employer to recover the amount from the salary of the appellant. According to the appellant, on realising the situation, appellant approached the 8th respondent and it was informed that the 8th respondent has filed W.P.(C) No.27297/2018 before this Court, and later it was known that the said writ petition was disposed of as per the judgment dated 15.10.2018. Again, when the appellant contacted the 8th respondent appellant was informed that Ext.P2 arbitration proceedings is instituted before the Registrar of Chits, Kerala (The Inspector General of Registration) as per Rule 3 of the Kerala Chit Fund Rules, 2012 and claims are raised under section 64 of the Chit Funds Act, 1982 r/w rule 47 of the Kerala Chit Funds Rules, 2012.
3. The case therefore projected by the appellant is that since dispute a is raised by the principal debtor i.e., the subscriber to the chitty transaction, the action initiated by the Kerala State Financial Enterprises Limited through the Special Tahsildar (RR) to recover the amounts at a time when an adjudication pending before a statutory authority is illegal and arbitrary, liable to be interfered with by the writ court.
4. To drive home the above point, appellant has relied upon the decision of a Division Bench of this Court in Sriram Engineering Construction Co. v. Kerala State Industrial Development Corporation and Another [2007(1)KHC 974=2007(2)KLT 388]. It is also pointed out that even if appellant, who is the guarantor has not challenged the transaction, the challenge made by the subscriber of the chitty in the arbitration proceedings in accordance with the provisions of the Chit Funds Act, 1982 and the Rules thereto, the respondents are liable to withhold the coercive action against the appellant also. It is also submitted that since the proceedings are still pending adjudication before the arbitrator, there is no amount due as is contemplated under section 71 of the Kerala Revenue Recovery Act,nor under the provisions of the Chit Funds Act, 1982.
5. A statement was filed by the KSFE in the writ petition refuting the allegations and the relief sought for by the appellant, including the interim relief of stay sought for against Exts.P1 and P1(a) specified above. Among other contentions it is stated that appellant is the surety of the 8th respondent in two transactions, they being now referred to as NTA.12640/17-18 and NTA/13227/18-19. It is further submitted that the subscriber to the chitty i.e, the 8th respondent has challenged the action initiated against him by the Special Deputy Tahsilar as regards the liability in chitty No.6/12 alone. However , fact remains appellant is a surety to the 8 th respondent in chitty loan Nos.62 and 152 availed by the 8th respondent from the Balaramapuram Branch of KSFE. It is also stated that Ext.P2 proceedings of arbitration was not instituted challenging the said chitty loans and hence recovery initiated and proceeded against the appellant for recovering the dues is not under dispute before any authority. So also it is contended, merely because the principal debtor has challenged the recovery action initiated, before the arbitrator, that cannot be considered as a dispute raised by the appellant before any authority. It is also pointed out that appellant has not raised any dispute with respect to the amounts sought to be recovered as per Exts.P1 and P1(a). So much so it is submitted that on account of Exts.P1 and P1(a) recovery proceedings, the KSFE could recover only an amount of Rs.9,881/- on 30.8.2019, and the contentions contrary to the same made in the writ petition that huge amounts were recovered from the appellant is not true or correct.
6. Learned standing counsel for KSFE has also taken us through Ext.P4, the salary slip of the appellant for the month of May, 2019. However, we could not locate any recovery effected on the basis of the requisition made by the KSFE though certain recoveries are made against the dues towards Co-operative Societies etc. etc.
7. We have heard learned counsel for appellant, learned Senior Government Pleader as well as learned Standing Counsel appearing for the 5 th respondent and perused the pleadings and documents on record.
8. The sole question to be considered is whether any manner of interference is warranted to the order passed by the learned Single Judge? The learned Single Judge after assimilating the fact situation in the writ petition and also taking into account the statement placed by the 5th respondent found that since the appellant is a guarantor to chitty transactions, no interim order of stay can be granted against Exts.P1 and P1(a) , merely because the appellant has contended that appellant is not liable to pay any amounts.
9. The paramount contention as we have stated earlier raised by the appellant is on the basis of the judgment of a Division Bench of this Court in Sriram Engineering Construction Co.(supra). In Sriram Engineering Construction Company, the Division Bench of this Court has considered an issue with respect to the damages to be quantified in a contract entered into by and between the petitioner therein and a government company, and has held that when breach was not admitted, unless the amount due was determined in a suit, or arbitration proceedings by an independent authority, revenue recovery cannot be initiated for recovering disputed damages as settled by this Court in various decisions. In order to arrive at the said finding, the Division Bench has relied upon judgment of the Apex Court in State of Kerala and others v. V.R.Kalyanikutty and Another [(1999)3 SCC 657]. Paragraph 17 of the judgement is relevant to the context, which read thus:
“17. In view of the interpretation which we have put on Section 71 of the Kerala Revenue Recovery Act it is not necessary for us to consider whether by making a requisition under Section 69(2) a creditor sets in motion a process of recovery which is a judicial process which would attract the law of limitation. There is a clear provision for adjudication under Section 70(3) of the said Act. This right under Section 70(3) is not affected by Section 72 of the said Act as was contended before us by the respondents. Section 72 merely provides that every question arising between the Collector or the authorised officer and the defaulter relating to execution, discharge or satisfaction of a written demand issued under this Act will be determined not by a suit but under the provisions of the said Act. Section 72 does not cover the right of a person making a payment under protest to institute a suit which is expressly provided for under Section 70 sub-section (3). Looking to the scheme of recovery and refund under Sections 70 and 71, “amounts due” under Section 71 are those amounts which the creditor could have recovered had he filed a suit.”
10. On a reading of the judgment of the Apex Court in V.R.Kalyanikutty (supra), it is evident, that was a case where, in order to ascertain the issue with respect to the amount due on account of the question of limitation raised by the respondent therein, “amount due” prescribed under section 71 of the Kerala Revenue Recovery Act was dealt with. Therefore, the ratio arrived at by the Apex Court in V.R.Kalyanikutty was on a question, as to whether the claim raised by the creditor was barred by the law of limitation, and in that context it was held that time barred debt would not be a debt due as is provided under section 71 of the Kerala Revenue Recovery Act. Therefore, the proposition of law laid down by the Apex Court in V.R.Kalyanikutty will not come to the rescue of the appellant at all, since it has nothing to do with the case at hand.
11. Moreover, the judgment rendered by the Division Bench of this Court in Sriram Engineering Construction Co. was on account of the damages to be quantified on the basis of the contract entered into by and between Sriram Engineering Construction Company and Kerala state Industrial Development Corporation, wherein the court has held that, even though a provision was made under the contract for quantification of the damages due, by the Managing Director, such an exercise was not undertaken by the Managing Director, and therefore recovery was not possible without adjudication. Therefore, the judgment in Sriram Engineering Construction Co. is clearly distinguishable from the issues at hand.
12. That apart the Division Bench has relied upon the judgment of this Court in K.A.Ponnappan v. The D.F.O Chalakudy and others [1984 KLJ 853] in holding that a party to a contract was not entitled to adjudicate and quantify the damages suffered. However, we find the said judgment in Ponnappan was overruled by a Full Bench of this Court in Abdul Rahiman & Another v. D.F.O. & Another [1988(2)KLJ 202]. Therefore, the proposition of law laid down so in Sriram (supra ) has no presidential value vis - a -vis the issue raised by the petitioner in the writ petition, and this appeal ,as singularly contented. It is apposite to state here, we have no difference of opinion that judicial precedents bind a bench of co-equal strength in accordance with the mandates under the constitution of India and the laws. But what is the rule of precedent is the question. In our view, it is nothing but a decision by a court of law binding on a subsequent decision of a like/ similar nature. The relevance, significance, and the major role of the rule of precedence is , streamlining judicial discipline, and to have uniformity, consistency and certainty, thereby sets the principle of deciding similar cases alike, and thus retain and sustain confidence of the public in the justice delivery system. It also means, a prior judgment of a constitutional court on a specific point of law on identical facts binds any court on the same point of law in a subsequent case. We do not think the said issue requires further elucidation,however reference to some of the judgments of the apex court would make the situation clearer.
13. In State of Orissa v. Sudhansu Sekar Misra [AIR 1968 SC 647], the Apex Court held as follows:
“A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495.
'Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”
It is not profitable task to extract a sentence here and there from a judgment and to build upon it.”
14. In Union of India v. Dhanwanti Devi [1996(6)SCC 44] Apex Court explained the doctrine of precedent and when a judgment becomes per incuriam and held as follows:
"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla reported in 1993 Supplement (2) SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an intelligent technique in the use of precedents.”
15. True learned counsel for the appellant submitted that since the subject matter of the issue is challenged by the principal debtor before the arbitrator in accordance with the provisions of the Chit Funds Act, 1982, appellant cannot be proceeded with, we are of the considered opinion that, first of all there is no stay granted by the arbitrator against the coercive action initiated by the creditor against the principal debtor and the proceedings, and moreover even assuming that there is a dispute raised by the principal debtor on account of the amount due from the principal debtor, as provided under the provisions of the Indian Contract Act, 1872, the creditor is at liberty to proceed against the guarantor, in accordance with the provisions contained under section 128 of the Indian contract Act, 1872, which specifies that the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract. Which thus also means , even without proceeding against the principal debtor, the creditor is entitled to proceed against the surety as of right .
16. There is no case for the appellant that liability of the appellant is in any manner limited under contract as per the agreement executed by and between the parties. Appellant has also not put forth any case of adverse circumstances as provided under act 1872, disabling the creditor from proceeding against the appellant, being a guarantor to the loan transactions, which is an admitted fact. Therefore, if at all appellant has suffered damages on account of the guarantee extended to the principal debtor, the remedy available to the appellant is to proceed against the principal debtor in accordance with the statutory protection provided to the guarantors under section 145 of the Contract Act, by which it is stipulated that in every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety, and the surety is entitled to recover from the principal debtor whatever sum he has rightly paid under the guarantee, but no such sums which he has paid wrongfully.
17. The Kerala Revenue Recovery Act is a self contained statute enacted in the year 1968 aimed at recovering amounts due to the Government, statutory bodies and Corporations, and other notified institutions. The aim and object of the Act, 1968 is to provide speedy recovery of not merely public revenue, but also certain other counts of loans which are required to be recovered speedily in public interest. Apart from recovering amounts due to the Government towards arrears of public revenue due on land, or public revenue due on land, the Government is at liberty to notify any institution in larger public interest enabling such institutions to recover the amount by resorting to the procedure contemplated under Act, 1968, by virtue of section 71 of Act, 1968, which reads thus:
“71. Power of Government to declare the Act applicable to any institution.- The Government may, by notification in the Gazette declare, if they are satisfied that it is necessary to do so in public interest, that the provisions of this Act shall be applicable to the recovery of 'amounts due' from any person or class of persons to any specified institution or any class or classes of institutions, and thereupon all the provisions of this Act shall be applicable to such recovery.”
18. Section 5 deals with the manner in which arrears of public revenue due on land is recovered, which read thus:
“5. Arrears of public revenue due on land how recovered.- Whenever public revenue due on land is in arrear, such arrear, together with interest, if any, and cost of process may be recovered by one or more of the following modes:-
(a) by attachment and sale of the defaulter's movable property.
(b) by attachment and sale of the defaulter's immovable property.
(c) by appointing an agent for the management of the defaulter's immovable property.
(d) by arrest of the defaulter and his detention in prison.”
19. It is significant to note that, Chapter II of act 1968 deals with a demand notice to attach sale of movable property and Chapter III deals with procedure for attachment and sale of immovable property. Since in the instant writ appeal, the issue is relating to attachment of salary guided by the provisions of Chapter II, section 19 of Act, 1968 is relevant to the context, which read thus:
“19. Attachment of debt, shares, etc.--(1) In the case of –
(a) a debt not secured by a negotiable instrument; or
(b) a share in a corporation; or
(c) other movable property not in the possession of the defaulter except property deposited in, or in the custody of, any court, the attachment shall be made by a written order of the Collector or the authorised officer prohibiting
(i) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Collector or the authorised officer, as the case may be;
(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
(iii) in the case of the other movable property (except as aforesaid), the person in possession of the same from giving it over to the defaulter.”
(2) A copy of such order shall be affixed on some conspicuous part of the office of the Collector or the authorised officer, as the case may be, and another copy shall be send, in the case of the debt, to the debtor; in the case of the share, to the proper officer of the corporation; and in the case of the other movable property (except as aforesaid), to the person in possession of the same.
(3) A debtor prohibited under clause (i) of sub-section (1) may pay the amount of his debt to the Collector or the authorised officer, as the case may be, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.”
That apart section 80 of Act, 1968 deals with attachment of salaries and debts of defaulters, which read thus:
“80. Attachment of salaries and debts of defaulters.- The salaries or allowances and debts due to a defaulter may be attached and realised for the recovery from him of any arrear of public revenue due on land, in the manner and to the extent provided for attachment and realisation of debts and salaries in the Code of Civil Procedure, 1908 (Central Act 5 of 1908).”
20. On a compendious and harmonious reading of the aforesaid provisions, it is evident that while issuing the order, for attachment of salary, the attachment and recovery can only be in the manner provided under the Code of Civil Procedure, 1908. Section 60 of Code of Civil Procedure deals with the attachment of property and sale in execution of decree. Section 60(1)(i) deals with attachment of salary, which read thus:
“60(1)(i): salary to the extent of the first one thousand rupees and two third of the remainder in execution of any decree other than a decree for maintenance.
[Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree]”
21. Taking into account the afore aspects, it is unequivocal that the respondents are entitled to proceed against the appellant to attach the salary of the appellant on account of the amount due to the Kerala State Financial Enterprises Limited, which is a notified institution under section 71 of the Act, 1968, which stands undisputed. We are also of the view that even though the appellant has a case that the amount claimed by the KSFE is disputed by the principal debtor, there is no manner of dispute raised by the appellant against Exts.P1 and P1(a) prohibitory orders issued under section 19 r/w section 80 of the KRR Act, 1968, before any lawful authorities.
22. In that regard the judgment of the Apex Court in State of Karnataka v. Rameshwara Rice Mills, Thirthahalli, [AIR 1987 SC 1359]; the Apex Court had occasion to consider a dispute wherein it was held that,
“we are therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined to only to those case where the breach of conditions is admitted or it is not disputed [emphasis supplied].
23. Adopting the meaning so provided to ‘dispute’ in the judgment in Rameswar Rice Mills supra, there is no basis at all, for the contention advanced by the appellant that since the principal debtor has raised objections by instituting arbitration proceedings in accordance with Chit Funds Act, 1982, appellant is entitled to get protection from the proceedings initiated by the KSF
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E as per provisions of Act, 1968. 24. Having regard to the principle of law laid down by the Apex Court, we are of the considered view that, the judgment was rendered by the Division Bench of this Court in Sriram Engineering Construction Company supra and arrived at material conclusions, overlooking the judgment of the Full Bench in Abdul Rahiman supra and therefore, in our considered view, the judgment is per incuriam for that reason. True,a Bench's decision is to be followed by a co-ordinate Bench,but, only if facts and circumstances are akin to the earlier one, and the law is laid down by the Bench of coordinate jurisdiction correctly. Analysing the situations so, it is convincingly clear that the Division Bench judgment in Sriram (supra) relied upon by the learned counsel for appellant is distinguishable in all respects, and therefore not a binding precedent on this Court. 25. In Mamleshwar Prasad v. Kanhaiya Lal, the Apex Court reflecting the principle of judgment per incuriam has held as follows in paragraph 7: “7. Certainty of the law, consistency of rulings and comity of courts — all flowering from the same principle — converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertance or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. ” 26. Learned counsel for the appellant has relied upon judgment of a learned single Judge of this Court in Shobana Das K.A. v. State of Kerala and Another [1984 KHC 441 = 1984 KLJ 684], in regard to the question of amount due, following the judgment of a learned single Judge of this Court in Chellappan v. Executive Engineer [1979 KLT 53] wherein it was held that, in spite of the breach and in spite of the fact that normally such breach may entitle the party against whom that breach is committed to claim damages at that stage, what arises is only a claim for unliquidated damages and until that is determined no amount could be said to be due. First of all the said judgment was also on account of damages to be quantified and secondly the judgment in Chellappan supra was overruled by the Full Bench of this Court in Abdul Rahiman supra. Therefore the said judgement is also will not come to the rescue of the appellant. 27. Accordingly, we are of the view that appellant has not made out any case, justifying interference in the interim order passed by the learned Single Judge in the intra court appeal filed under section 5 of the Kerala High Court Act, there being no legal infirmity. Writ appeal is dismissed accordingly.