The main legal point established in the judgment is that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. The judgment also emphasizes that no man can be a judge in his own cause, and that contractual rights cannot be enforced by invoking writ jurisdiction.

1. As per Ext. P5 notice of demand issued by the Tahsildar, Mangalore, the 1st petitioner firm was directed to pay a sum of Rs. 24,974.94 which as per that notice was due from the 1st petitioner by way of rent and other charges in respect of an Ice and Cold Storage-cum-Freezing plant at Azhikode. Admittedly the petitioners by executing Ext. P1 agreement dated 8-5-1970 took on lease the 'Ice Plant-cum-Cold Storage-cum-Freezing Plant' at Azhikode for a term of one year. It is the case of the petitioners that on enquiries they found out that the break-up of the amount was as follows:

This is not disputed on behalf of the respondents. According to the petitioners the demand represents only 3 claim for damages for alleged breach of the terms of Ext. P1 lease-agreement. It is also necessary to mention here that going by the averments contained in Para.14 of the counter-affidavit "the amount shown in the notice" was "properly assessed by the department as the damage sustained to the Government on account of the default of the lessee". The question is whether the respondents are entitled to invoke the provisions of the Kerala Revenue Recovery Act, 1968, or the Revenue Recovery Act, 1890 (Central) for recovery of the aforesaid sum.

2. Admittedly the amounts mentioned in items Nos. (i), (v) and (vi) mentioned in the preceding paragraph are not covered by any of the specific clauses of Ext. P1 agreement. The amounts mentioned as items Nos. (ii), (iii) and (iv) are contended to fall within clauses (4) (a) and (3) respectively of the agreement. However, according to the learned Government Pleader all these sums mentioned in items Nos (i) to (vi) aforementioned would attract clauses (16) and (17) of Ext. P1 agreement. On that basis, it is the case of he respondents, that in view of the provision contained in clause (16) of Ext. P1 agreement the respondents are entitled to resort to the provisions of the Kerala Revenue Recovery Act, 1968 as also of the Central Act aforementioned.

3. Clause.16 of Ext. P1 agreement reads.

"The lessee do further agree that all sums found due to the lessor under or by virtue of this agreement shall be recoverable from the security amount and the balance, if any, shall be recoverable from the lessee and their properties movable and immovable under the provisions of the Revenue Recovery Act for the time being in force as though they were arrears of land revenue or in such other manner as the lessor may deem fit."

This clause makes it clear that the machinery provided by the Revenue Recovery Act, be it the State Act or the Central Act, can be resorted to only for recovery of "sums found due under or by virtue of" Ext P1 agreement. According to the learned Government Pleader this clause attracts the 2nd paragraph of S.68 (1) of the Kerala Revenue Recovery Act, 1968, which reads:

"all moneys due from any person to the Government which under a written agreement executed by such person are recoverable as arrears of public revenue due on land or land revenue, and all specific pecuniary penalties to which such person renders himself liable under such agreement or contract;"

"may be recovered under the provisions of this Act."

Necessarily, therefore, two questions arise for consideration, viz., whether the sums mentioned above can be said to be "sums found due “or "moneys due"; and (2) whether any such sum, if found due, was so due "under or by virtue of" Ext. P1 agreement.

4. With reference to an almost similar provision, Clause.18 of the General Terms and Conditions, in a contract wherein it was provided that:-

"18. Recovery of sums due.

"Whenever any claim for the payment of a sum of money arises out of or under the contract against the contractor, the purchaser shall be entitled to recover such sum by appropriating in whole or in part, the security, if any, deposited by the contractor x x x "

The Supreme Court in Union of India v. Raman Iron Foundry (AIR. 1974 SC' 1265) holding that the words 'claim for the payment