Proceedings by way of revenue recovery can be resorted to only after a proper adjudication of the liability of the defaulter.

P.C. Balakrishna Menon, J.

1. Eventhough this second appeal at the instance of the 1st plaintiff is admitted on questions 1 to 3 formulated in the Memorandum of Second Appeal, learned counsel for the appellant has urged only one point relating to the validity of the revenue recovery proceedings taken by the defendant State against the plaintiffs. The suit is for a permanent injunction to restrain the defendant State from continuing the revenue recovery proceedings taken against the plaintiffs for recovery of damages for the alleged breach of agreements entered into between the plaintiffs and the State, as unauthorised, without jurisdiction and beyond the powers of the State and its Officers.

2. The two plaintiffs were joint contractors for the sale of toddy in three toddy shops Nos. 17, 19 and 25 of Chavakkad Range for the year 1969-70. They started functioning with effect from 5-4-1969 after executing temporary agreements Exts. B1 to B3 with the Government of Kerala. The plaintiffs had deposited 10% of the bid amount on the date of the temporary agreements and the balance amount was to be paid in ten equal monthly instalments as per sub-r.(25) of R.6 of the, Kerala Abkari Shops (Disposal in Auction) Rues, 1974. The plaintiffs carried on trade in the three shops till 29-10-1969 and on that day surrendered the shops to the Government. According to the plaintiffs they were not able to carry on trade due to large scale illicit distillation and also due to labour troubles. The Government took over the shops and continued the trade under Departmental Management. The plaintiffs have paid the lists in monthly instalments for the period they had been conducting the shops. There was no payment after the shops were surrendered to the Government. The suit was occasioned on account of revenue recovery proceedings initiated by the State against the plaintiffs for realisation of the defaulted instalments. Ext. A1 is a copy of the notice under S.80 CPC. issued to the Chief Secretary to the Government of Kerala. According to the plaintiffs there are no valid agreements between the parties. The contracts even if held valid had become impossible of performance and the defendant is not entitled to recover the balance kist amounts from the plaintiffs.

3. The defendant State contended that there is no valid notice under 3 S.80 CPC., the agreements produced as Exts. B1 to B3 are perfectly valid and binding on the plaintiffs and for their default in conducting the three shops, they are liable in damages to the defendant and the defaulted kist amounts are recoverable as damages for breach of contract.

4. The Trial Court found the suit defective for want of a proper notice under S.80, CPC. The question as to whether the plaintiffs are guilty of breach of contract and whether they are liable in damages to the defendant was not considered by the Trial Court. The Trial Court did not also consider the question as to whether the defendant is entitled to recover the balance kist amounts as damages for breach of contract. The suit was dismissed based on the finding relating to the validity of the notice under S.80, CPC. In appeal by the plaintiffs the lower appellate court found that Ext. A1 evidences a proper notice under S.80, CPC. and the suit is not defective for want of notice. The lower appellate court however confirmed the decree of the Trial Court and dismissed the appeal holding that the defendant is entitled to recover the balance amounts due to the defendant under the agreements between the parties by resorting to revenue recovery proceedings.

5. Ext. B4 is the file relating to the revenue recovery proceedings, produced by the defendant. The requisition by the Assistant Excise Commissioner, Trichur to the District Collector, Trichur under S.69(2) of the Revenue Recovery Act for recovery of the amounts due from the 1st plaintiff in respect of toddy shop No. 17 is at page 9 of the file. The requisition shows the total amount due as Rs. 5437.50 ma