IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 33405 of 2008(B) -------------------------- PETITIONER(S): --------------- V.RAJASEKHARAN NAIR, MEMBER NO.3347, UZHAMALAKKAL SERVICE CO-OPERATIVE BANK LTD NO.298, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ------------- 1. THE RETURNING OFFICER(UNIT INSPECTOR, KATTAKKADA UNIT, O/O. ASST.REGISTRAR OF CO-OPERATIVE SOCIETIES (G), NEDUMANGAD), UZHAMALAKKAL SERVICE CO-OPERATIVE BANK LTD. NO.298, THIRUVANANTHAPURAM DISTRICT. 2. THE UZHAMALAKKAL SERVICE CO-OPERATIVE BANK LTD.NO.298, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY THE SECRETARY. R1 BY GOVT.PLEADER SRI.K.C.SANTHOSHKUMAR. R2 BY ADV. SRI.M.SREEKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-11-2008, THE COURT ON 20-11-2008 DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.33405 of 2008-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of November, 2008. JUDGMENT “CR” 1.Petitioner submitted nomination for election, notified as per Ext.P1, to the committee of the 2nd respondent co-operative bank. Ext.P3 evidences that his nomination was rejected on the ground that he was in default to the bank as on the date of submission of the nomination and though he is shown to have deposited Rs.8,875/- on 7-11-2008 towards interest, he is in default, going by the ledger. That is under challenge. 2.The petitioner says that the loan account was closed on payment of interest as evidenced by Ext.P2 and renewed in his favour on 7-11-2008. Ext.P2 evidences only payment of interest. It does not disclose the alleged closure of the loan account. WP(C)33405/08 -: 2 :- 3.The other pleadings in paragraphs 2 to 4 of the writ petition are that an amount of Rs.1 lakh was sanctioned under the Kissan Credit Card account in favour of the petitioner and that the loan has been renewed on 7-11-2008. He also relies on entries in Ledger No.8 of the bank as recorded in page 38 of the same. His further contention is that while the petitioner's nomination has been rejected on the ground of default in repayment of loan, the nomination paper of one Sainulabdeen has been accepted, though it ought to have also been rejected, if the grounds of rejection of the nomination of the petitioner were true. He contends that he was not in default to the bank as on 10-11-2008 as the loan account was closed on 7-11-2008 and renewed for one year from 7-11- 2008 and that the action taken against his interest and that in favour of Sri.Sainulabdeen are only because such person is a candidate belonging to a particular political party. The merits of the contention of the petitioner WP(C)33405/08 -: 3 :- regarding the closure of the loan account; granting of a fresh loan etc.,are not matters that should gain the attention of the writ court since they would be available for consideration in an election dispute under Section 69 of the Kerala Co-operative Societies Act, 1969, hereinafter, the “Act”. I do not intend to foreclose the petitioner on any such ground, depriving him of opportunity to have his case on that issue considered by the competent arbitrator, though the bank, following the interim direction granted at the time of admission, has made available loan register. 4.Apart from the aforesaid fact situation, another ground of challenge is on the plea that no notice was given to the petitioner calling upon him to pay any amount due or payable to the 2nd respondent. In fact, this is the only objection raised, which could be considered as one on undisputed facts. The issue raised, as one of law, is that the petitioner was not given any WP(C)33405/08 -: 4 :- notice calling upon him to pay any amount due or payable to the 2nd respondent. This issue has to be resolved with reference to Rule 44 of the Kerala Co-operative Societies Rules, 1969, hereinafter, the “Rules”. Rule 44 has three sub- rules of which (1) and (2) are relevant. Clause (c)(i) of sub-rule (1) prescribes a rule as to ineligibility for being elected. Indisputably, that does not provide for any notice being issued to the person in default. Sub-rule (2) provides the statutory compulsion as to cessation of office on incurring any of the disqualifications enumerated thereunder. Clause (c) of sub-rule (2) provides that a member of a committee shall cease to hold his office as such, if he is subsequently seen to be disqualified under sub-rule (1), on the date of election. The proviso immediately occurring after that clause enjoins that the disqualification under sub-clause (i) of clause (c) of sub-rule (1) shall be deemed to be accrued only after the expiry of a period of one month from the date of receipt, by the member WP(C)33405/08 -: 5 :- concerned, of a notice from the society, demanding him to clear off the defaulted amount specified therein and on failure of remittance of such amount within the said period. For one thing, that is a proviso only to clause (c) of sub-rule (2) to Rule 44. As rightly pointed out by the learned counsel for the bank, each of the clauses under sub-rule (2) is followed by a proviso and therefore, it has necessarily to be held that the proviso at the foot of Rule 44(2) (c) applies only to that clause and cannot be imported into Rule 44(1)(c)(i) which, as already noticed, prescribes ineligibility for being elected. The learned Government Pleader is also right in pointing out that the proviso at the foot of Rule 44(2)(c) only postpones the effect of disqualification of a member of a committee, with reference to Rule 44(1)(c)(i) read with Rule 44(2)(c), until the expiry of a period of one month from the date of receipt, by the member concerned, of a notice from the society, demanding him to clear off the defaulted amount WP(C)33405/08 -: 6 :- and remittance is not made within the said period. Such proviso at the foot of Rule 44(2)(c) is wholly irrelevant and inapplicable to the eligibility criteria fixed in Rule 44(1)(c)(i) for a member of a society to be eligible for being elected or appointed as a member of the committee of that society. I may also notice that the definition of the term “default” in Rule 2(d) of the Rules also does not provide for any demand, refusal or failure for reaching the status “default”, which is nothing but failure in terms of Rule 2(d) of the Rules. Therefore, the contention of the petitioner that he ought not to have been treated as a defaulter because no notice was issued to him calling upon him to pay any amount due or payable to the society, is unsustainable. Ground B in the writ petition fails. Subject to what is stated in the immediately preceding paragraph and repelling the contention of the petitioner in that regard, this writ WP(C)33405/08 -: 7 :- petition is dismissed leaving open all other contentions on merits, to be raised, if necessary, before the competent authority in terms of Section 69 of the Act. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/191108