A suit related to revenue recovery is barred if fraud is not properly pleaded, and seeking accounts requires establishing a right to such relief.

JUDGMENT

P.B.Suresh Kumar, J.

This appeal is preferred against the decree and judgment dated 30.07.2009 in O.S.No.46 of 2005 on the files of the Court of the Subordinate Judge, Attingal. The appellants were the plaintiffs in the suit. The State and the Excise Commissioner were defendants 1 and 2 respectively in the suit.

2. The plaintiffs were the licensees of a few toddy shops under Chirayinkeezh Excise Range for the period from April, 2000 to March, 2001. The plaintiffs obtained the right to conduct the toddy shops referred to above for a sum of Rs.4 crores payable in ten instalments by way of kist. According to the plaintiffs, even though they were remitting the kist promptly, their licence was cancelled on 20.10.2000. It was alleged by the plaintiffs that thereafter, in collusion with a few other abkari contractors who are hostile towards plaintiffs, the defendants falsified the accounts of the transaction the plaintiffs had with the defendants and initiated proceedings for realisation of huge amounts from them under the Kerala Revenue Recovery Act (the Act). It is stated by the plaintiffs in the plaint that even though the amount of kist payable by them upto 20.10.2000 was only Rs.2,33,33,333/-, they have paid by then Rs.2,40,54,000/-, Rs.7,20,667/-being in excess. The suit was filed in the circumstances for a direction to the defendants to furnish a true and correct account of the kist paid and to be paid by the plaintiffs for the period from April, 2000 to October, 2000 and allowing the plaintiffs to realise Rs.7,20,667/- or such other amounts as may be ascertained by the court, after rendition of the accounts, from the defendants. A decree of permanent prohibitory injunction restraining the defendants from initiating proceedings under the Act for realisation of kist in respect of the toddy shops was also sought.

3. A written statement was filed on behalf of the second defendant, mainly contending that the suit is not maintainable in the light of Section 72 of the Act. It was also contended in the written statement that the plaintiffs have not paid the kist as per the terms of the agreement from August, 2000 and although the kist payable by the plaintiffs for August, 2000 and September, 2000 were adjusted from the security deposit furnished by the plaintiffs, they have not replenished the security deposit and it is in the said circumstances that the licence was cancelled on 20.10.2000. The averment in the plaint that remittances made by the plaintiffs as on the date of cancellation of the licence were in excess of the amounts payable by them, was denied in the written statement.

4. The court below found that the plaintiffs have not made out a case of fraud on the part of the defendants and the suit is, therefore, barred by Section 72 of the Act, insofar as it relates to the injunction sought against the proceedings under the Act. Despite the finding aforesaid, the court below went on to consider the question whether the plaintiffs have paid any amount in excess as pleaded by them and found that the plaintiffs could not establish that any amount has been paid by them in excess. As noted, the plaintiffs are aggrieved by the decision of the court below.

5. Heard the learned counsel for the plaintiffs as also the learned Government Pleader.

6. The fact that Section 72 of the Act bars a suit in respect of a question arising between the collector and the defaulter relating to the execution, discharge or satisfaction of a written demand issued under the said statute has not been disputed by the learned counsel for the plaintiffs. He, however, contended that the suit being one instituted prior to the amendment to Section 72 with effect from 12.12.2005, the same is not barred under the said provision in as much as the plaintiffs attribute fraud on the part of the defendants in initiating proceedings under the Act. Even if the suit is barred under Section 72 insofar as it relates to the relief claimed against the revenue recovery