Maniyan and Others vs Federal Bank Ltd.

K.P. Radhakrishna Menon J.

The judgment debtors are the revision petitioners. The respondent bank sanctioned a loan of Rs. 3,593/-to the first petitioner under the I. R. D. P. Scheme. The first petitioner availed of the same on 9-3-1984. Petitioners 2 and 3 are the sureties.

The first petitioner failed to repay the loan amount. This resulted in the respondent bank getting Revenue Recovery proceedings initiated for recovery of the amounts due from the petitioners under the loan transaction, and in connection with that, the authority concerned got the demand notice, No. C1-2092/87 demanding a sum of Rs. 4,288.78, served on the first I petitioner. In response to the demand notice the first petitioner on 28-4-1987 paid Rs. 1,000/- and the entire balance amount due, namely Rs. 3,385.40 was paid on 13-5-1987 and obtained receipts for the payments. The liability under the loan transaction thus got discharged

The bank" thereafter instituted the suit, O. S. 62/87 for recovery of Rs. 4,325.78 being the balance amount due by the first petitioner to the bank under the aforesaid loan transaction. On receipt of notice in the suit the first petitioner met the Manager and appraised him of the fact that he had repaid the loan amount in full and in proof of that, he, it is said, produced the receipts issued by the Revenue authorities The Manager promised to withdraw the suit. The petitioners therefore did not enter appearance in the suit. The suit accordingly was decreed ex-parte, and to execute, the decree the respondent bank filed E P. 77/87 from which this revision arises.

The petitioners resisted the E P. They filed a counter statement containing statements to the effect that even before the suit was instituted the amounts due under the loan transaction had been repaid through the Revenue authorities who had initiated Revenue recovery proceedings at the instance of the respondent bank. Thus the entire liability stood discharged even before the suit was instituted, they contend.

Without taking any of these aspects into account the court below has passsed a criptic order which is under challenge in this revision. The order reads:-

On the basis of the statement filed by decree holder and in the light of the argument advanced I am of the view that Rs. 968 10 is due from the judgment-debtor. Order passed accordingly. For payment to 3-3-1988

From the facts stated hereinbefore, it is clear that the respondent bank had initiated allied proceedings, (1) The Revenue Recovery proceedings and (2) a regular suit, for recovery of the amounts due by the petitioners under the loan transaction mentioned above. How far the bank was justified in law in initiating these proceedings for recovery of the amounts due from the petitioners, simultaneously, is the question before me.

Before I deal with this question I shall refer to the notification which makes it possible for a bank to recover amounts due from any person on account of any loan advanced to such person by the, bank without resort to the remedy of recovery by filing suit. The notification reads:-

S.R.O No. 797/79. -In exercise of the powers conferred by Section 71 of Kerala Revenue Recovery Act, 1968 (15 of 1968) and in supersession of the Notification No. 68933/B3/78/RD dated the 24th November 1978 published as S.R.O.No 1199/78 in the Kerala Gazette No. 52 dated the 26th December 1978, the Government of Kerala, being satisfied that it is necessary to do so in public interest, hereby declare that the provisions of the said Act shall be applicable to the recovery of amounts due from any person to any bank on account: of any loan advanced to such person by that bank for agriculture or agricultural purposes..........................

The explanation attached to this notification enumerates the banks which are entitled to the benefit of this notification.

The notification declares that the provisions of the Revenue Recovery Act shall be applicable to the recovery of amounts due from any bank on account of any loan, advanced to such person by that bank for agriculture or agricultural purposes. That means when once it is established that the, bank within the meaning of this notification has advanced a loan to any person for agricultural purposes and the loan has not been repaid as per the terms of the loan transaction, then the bank can recover the amounts due under the loan transaction by initiating revenue recovery proceedings. The notification thus provides the bank a remedy to recover the loan amount due by a borrower without resort to a regular suit. This remedy provided for under the notification is inconsistent, in other words not co-existent and alternative to the usual remedy of filing suit for recovery of the loan amounts, on the borrower failing to repay the same in terms of the loan transaction.

The question therefore is, whether a litigant who has a right to choose between two equally efficacious remedies which are inconsistent but alternative elects one as better adopted than the other to work out his purpose, can he also adopt the other remedy for the same purpose? My answer is no, because in such cases the doctrine of estoppel by election comes into play. It should in this connection be remembered that this doctrine is not peculiar to English law but common to all law which is based on the rules of justice. In other words a party shall not "affirm it as far as it is for his benefit and disaffirm it as far as it is for his prejudice". (Rungama v. Atchama, 4 M.I.A. 1). This principle enunciated by judicial pronouncements can be stated thus:-

When a litigant has a right to choose between two remedies, which are not co-existent but'' alternative, he may elect and adopt one as better adopted than the other, to work out his purpose. When once, be has made his choice and adopted one of the alternative remedies, his act at once operates as a bar as regards the other and the bar is final and absolute

(See Baikuntha v. Salimulla, 6 CLJ 547, R. Samudra Vijayan Chettiar v Srinivasa Alwar & Others, AIR 1956 Mad. 301, Ragavan Nair v. Appu Kidavu, ILR 1979 (2) Ker. 25).

Applying this principle to the facts of the case: It should be held that the bank in choosing the Revenue Recovery proceedings for recovery of the loan amount due from the 1st petitioner mast be deemed to have waived the other. If that be so, the suit is not maintainable-in law. The decree passed therein therefore is null and void and hence incapable of execution.

The learned counsel for the decree-holder bank relying on a decision of the Orissa High Court in I.T.O. v. Manmohanlal (168 (1987) ITR 56) however, contended that though Revenue recovery proceedings have been initiated to recover the amounts due under the loan transaction, it cannot be said that the bank has given up its right to institute a suit for recovery of the said amount. The Orissa High Court in the: said decision was considering the authority of the Income Tax Officer to recover the tax arrears which is the subject-matter of the tax recovery certificate, he had forwarded to the tax recovery officer Considering this question the Court observed as follows:-

A plain construction of sub-section (1) of Section 226 of the income tax Act, 1961, will lead to the inevitable conclusion that although Section 222 provides for recovery of the arrear tax through the Tax Recovery Officer to whom certificate is issued by the income tax Officer, Section 226 provides other modes of recovery which may be adopted concurrently with proceedings u/s 222 or without any proceeding being taken under that Section

It is thus clear that the two remedies provided for under the income tax Act in regard to recovery of arrears of tax are not inconsistent or alternative. They in fact are co-existent and not alternative. The said decision therefore has no application.

To sum up: The doctrine of estoppel by election squarely applies to this case and if that be so the decree, the respondent bank has obtained against the petitioners is incapable of being executed because it is void ab initio. The executing court in such circumstances has the authority to declare that the decree is not capable of execution. The execution, petition, for the reasons stated above is liable to be dismissed. I accordingly dismiss the same.

For the reasons stated above the C R. P. is allowed with costs, lawyer''s fees Rs. 1,500/-.