IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 31876 of 2008(T) ----------- -------------------------- PETITIONER: ------------------- RAJU.P.K, ATTENDER, GOVERNMENT HOMOEO DISPENSARY, KALLASSERY, THIRUVANVANDOOR, CHENGANNUR, PATHANAMTHITTA (DIST). BY ADV. SRI.M.K.SHASHI KUMAR RESPONDENTS: ------------------------ 1. THE THIRUVALLA GOVERNMENT EMPLOYEES' CO-OPERATIVE BANK LIMITED NO.A213,REPRESENTED BY ITS SECRETARY, THIRUVALLA. 2. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, PATHANAMTHITTA DISTRICT. 3. THE ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION OFFICE, THIRUVALLA. 4. SMT.P.R.KUTTIAMMA, POONJODIYIL HOUSE, NIRANAM, THEKKUMBHAGOM, NIRANAM, THIRUVALLA. 5. THE MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, THIRUVANVANDOOR, CHENGANNUR. R1 BY ADV. SRI.P.C.SASIDHARAN R2, R3 & R5 BY GOVERNMENT PLEADER SRI.I.V.PRAMOD SRI.P.VIJAYAKUMAR FOR R4 SRI.C.R.REGHUNATHAN FOR R4 SRI.M.V.ASHIM FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31876 OF 2008-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 19.10.91 ISSUED BY THE DIST. MEDICAL BOARD EXT.P2 CERTIFICATE NO.B2.282/2001/K/DIS DATED 18.4.2002 ISSUED BY THE TAHSILDAR, THIRUVALLA EXT.P3 TRUE COPY OF THE INTIMATION WITH REF.NO.028/NIL/78/DT.20.9.08 ISSUED FROM THE KSFE OFFICE, THIRUVALLA BRANCH TO THE 5TH RESPONDENT EXT.P4 TRUE COPY OF THE SALARY CERTIFICATE DATED 1.10.08 OF THE PETITIONER. EXT.P5 TRUE COPY OF THE REPRESENTATION DT.30.10.06 MADE BY THE PETITIONER AND THE OTHER SURETY SHRI.PONNAPPAN TO THE 1ST RESPONDENT EXT.P6 TRUE COPY OF THE REPRESENTATION DT.30.10.06 MADE BY THE PETITIONER AND PONNAPPAN TO THE 3RD RESPONDENT. EXT.P7 TRUE COPY OF THE LETTER NO.E2-718/99 DTD.10.9.08 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT EXT.P8 TRUE COPY OF THE DEMAND NOTICE NO.SOL 7/2008 DATED 25.9.2008 BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT EXT.P9 TRUE COPY PF THE RECOVERY NOTICE DT.13.8.08 ISSUED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT EXT.P10 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE 5TH RESPONDENT ON 29.9.08. RESPONDENTS' EXHIBITS: EXT.R4(A) TRUE COPY OF ORDER IN O.P.(G&W) 42/03 DATED 21.6.2005 EXT.R4(B) TRUE COPY OF THE LETTER DATED 30.9.2008 / TRUE COPY / THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P.(C) No.31876 of 2008 ------------------------------------------- Dated, this the 30th day of January, 2009 JUDGMENT The petitioner is one of the brothers of Smt.J.Radhamani who died on 27.11.2000. Her husband also died on 27.3.2001. They left behind their minor son Rahul. His paternal grandmother filed O.P.(G&W) No.42 of 2003 before the District Court, Pathanamthitta. Ext.R4(a) order was passed appointing the paternal grandmother Kuttyamma as the guardian of the person and property of the minor Rahul with a direction to maintain proper accounts. 2. Smt.Radhamani had availed a loan from the first respondent Society. The writ petitioner was a surety to that transaction. As of now, the Society has initiated action under Section 37 of the Kerala Co-operative Societies Act, for short 'the Act', and the petitioner is obliged to pay at the rate of Rs.3000/- per month from his salary towards the debt on account of the said loan. 3. The petitioner's case is that Smt.Radhamani died while working as a Typist in the Government Service and her retiral benefits including D.C.R.G. could be proceeded against. He also states that Smt.Radhamani's estate includes certain items of immovable properties which could also be proceeded against. He has accordingly made Ext.P5 representation before the Society indicating the properties which W.P.(C) No.31876 of 2008 2 according to him belonged to Smt.Radhamani. 4. The liability of the surety is in terms of the contract and the statutory provisions. The petitioner does not dispute the execution of an agreement in terms of Section 37 of the Act. The petitioner states that he is physically handicapped and has a family to maintain. But the fact remains that the creditor society has to reach at the amount which is due to it. If recovery proceedings are enforced against the petitioner in terms of Section 37 of the Act and recoveries effected, he becomes one who will be entitled to contribution and restitution from the principal debtor or her estate. Therefore, it is not as if the petitioner is without any remedy. 5. In so far as the retiral benefits and other assets which fall as the estate of late Radhamani is concerned, they enure to be assets which could be treated, prima facie, as one over which her minor son Rahul would have rights. Therefore, dealing with those properties without the sanction and leave of the District Court may not be permissible, even if his guardian Kuttiamma is to deal with those properties and the retiral benefits outstanding, though judicial determination and enforcement of recovery could be made as against the estate. 6. Having regard to what is aforesaid, in the fitness of things, it is directed that if the petitioner seeks any relief in relation to the estate of late Radhamani or her retiral benefits over which her minor son W.P.(C) No.31876 of 2008 3 Rahul has a claim, that could be done only upon appropriate orders from the Court under the Guardian of Wards Act which issued Ext.R4(a) order. The Society would be at liberty to continue with the recovery proceedings against the petitioner. However, as of now, the monthly recovery would stand reduced to Rs.2000/- which may be enhanced to Rs.3000/- after a period of six months. The petitioner would also be at liberty to seek reduction in interest and other total outstanding. The Society shall also make an endeavour to have the recoveries against the estate of late Radhamani, if possible, having regard to the total outstanding. Writ petition is disposed of as above. THOTTATHIL B.RADHAKRISHNAN, JUDGE vns