IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 34733 of 2009(J) -------------------------- PETITIONER(S): --------------- PRASAD M.P, MALAMANNEL, RANNI, PATHANAMTHITTA. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE RETURNING OFFICER, RANNI SERVICE CO-OPERATIVE BANK LTD., NO. 65, RANNI P.O., PATHANAMTHITTA. 2. THE RANNI SERVICE CO-OPERATIVE BANK, LTD., NO. 65, RANNI P.O., PATHANAMTHITTA. 3. N.K. RAJAN, MALAMANNEL VEEDU, MANDIRAM P.O., RANNI, PATHANAMTHITTA. ADV. SRI. MUHAMMED HAMEED GOVT. PLEADER SRI. K.S. MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2009, A/W. W.P.C.NO.34734/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 34733/2009 -------------------------------------------------------------------- EXT.P1 COPY OF THE ELECTION NOTIFICATION PUBLISHED IN THE MANGALAM DAILY DATED 15-11-2009. EXT.P2 COPY OF ORDER REJECTING PETITIONER'S NOMINATION PAPER. EXT.P3 COPY OF CIRCULAR DT. 27-2-2009. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 34733 & 33734 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th December, 2009. J U D G M E N T In both these writ petitions, the petitioners are candidates for election to the managing committee of the Ranni Service Co-operative Bank Ltd., No 65. Nomination papers submitted by them have been rejected on the ground that as sureties for loan amounts taken by third parties, amounts are due from the petitioners, since the principal debtor had committed default in payment of the instalment amount of the loan. According to the petitioners, the petitioners have never been put on notice as to any liability from their part on account of the principal debtor not having paid the instalment amounts. According to them, although for the principal debtor no notice is necessary unless a notice has been issued to the sureties, they cannot be deemed to be defaulters as contemplated under Rule 44(1)(c) of the Kerala Co-operative Societies Rules. They rely on the decision of a learned Single Judge of this Court in Kumaran v. Returning Officer, 1998(2) KLT 789. 2. This is opposed by the counsel for the Bank, who would contend that insofar as for the disqualification under 44(2), a notice to the sureties is specified and the said provision is conspicuously absent in Rule 44(1)(c), no notice is mandatory for attracting disqualification under Rule 44(1)(c). He relies on two Single Bench decisions of this Court in Narayana Pillai v. Joint Registrar, 1993 (1) KLT 218 and Ravi v. Kottayam Co-op. Urban Bank Ltd., 1993 (1) KLT 644. 3. I have considered the rival contentions in detail. 5. On a reading of the decision in Kumaran's case, I find that the learned Single Judge had considered the decisions relied upon by the 2nd respondent and had come to the following conclusion in respect thereof: W.P.C. Nos34733 & 34734/09. -: 2 :- “7. Counsel for the society further contends, based on the decision of this Court in Narayana Pillai v. Joint Registrar, (1993 (1) KLT 218) that the proviso to sub-rule 2(a) cannot have any application to sub-r. 1(c) and therefore, there arise no question of any notice being issued. On the other hand, a notice is required only when the guarantor, who is on the Board of Directors is to be regarded as a defaulter. This is another facet of the same contention as urged by the petitioner, which had been dealt with in the previous paragraphs. What is decided In Narayana Pillai's case was that “whether notice contemplated under the proviso to R. 44(2)(a) is mandatory in a case where a member of the society seeks election to become a member of the Managing Committee.” Obviously, the answer was 'No'. What the Division Bench decided in Abdul Rasheed's case was about a notice regarding the default. There arise no question of any time being given to such a defaulter for paying the amount. So, the notice, as contemplated in the proviso to sub-r. 2(a) does not have any application to the disqualification arising out of R. 44(1)(c). But a notice intimating him about the default by the principal debtor is still necessary as held by the Division Bench in Abdul Rasheed's case. 8. Moreover, the definition of the words, 'default' and 'defaulter' as contained in R. 2(d) and (e) of the Rules also makes it clear that the petitioner is neither a defaulter nor a person in default. The meaning of the word 'default' is failure of or defect or unable to do something which one is duty bound. The defaulter as per dictionary meaning is one who fails to settle an ordinary debt. The definition of the word default as per the said Rule is “failure on the part of any person, to repay to the financing bank or to any other society a loan or any other amount due to it within the time fixed for repayment.” Admittedly, no loan amount is due from the petitioner. The loan had been availed of by the principal debtor. As the society can of course demand from the petitioner, being a guarantor or surety, the amount due from the principal debtor, that will be only “other amount due” mentioned in the said definition clause. Before it became due, the petitioner has to be notified that such an amount is due from him. Therefore, before styling the petitioner as a defaulter, he shall be notified that some amount is due from him. Admittedly, no such notice has been issued to the petitioner. Otherwise he should have been a 'defaulter' which means “any person against whom a decree has been obtained”. In such case, perhaps no notice is necessary to even as held by this Court in Abdul Rasheed's case, as one stood notified by the decree passed against him. Admittedly the petitioner does not come within the term 'defaulter' as defined in R. 2(e).” I am in respectful agreement with the decision in Kumaran's case. W.P.C. Nos34733 & 34734/09. -: 3 :- That being so, it is clear that the nomination papers of the petitioners could not have been rejected on the ground of disqualification under Rule 44(1)(c). Accordingly, the impugned orders are quashed. The returning officer is directed to accept the nomination papers of the petitioners and to allow them to contest the election as valid candidates. The writ petitions are allowed as above. Sd/- S. Siri Jagan, Judge. Tds/