IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 26826 of 2008(R) ------------------------------------ PETITIONER : ---------------- T.M.REJI THOTTATHIL PARAMBIL, NELLIKUZHI P.O., KOTHAMANGALAM 686691. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENTS : ------------------- 1. THIRUVANANTHPURAM CO-OPERATIVE SOCIETY LTD.NO.T.1530,SANKAR BUILDING, SREEKANDESWARAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THIRUVANANTHAPURAM TALUK TAXI DRIVERS CO-OPERATIVE SOCIETY LTD.NO.T.723, FORT, THIRUVANANTHAPURAM-23 REPRESENTED BY ITS SECRETARY 3. THE SUPERINTENDENT STATE MUSEUM AND ZOO, TRISSUR. 4. K.SURESH,'AMRUTHA-AISWARYA, AMMA GARDENS, ERATTAKALUNKU,MALAYINKEEZHU. 5. B.PREMACHANDRAN, PCT 7473,,'VAISAKAHAM' MANALUVILA, EDAKKODE, NEMAM P.O., THIRUVANANTHAPURAM. ADV. SRI.D.SAJEEV- R2 SR.GOVERNMENT PLEADER SRI.K.C.SANTHOSH - R3 SRI.T.RAJASEKHARAN NAIR - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26826 of 2008(R) APPENDIX PETITIONER'S EXHIBITS :- EXT.P1: TRUE COPY OF THE NOTICE DATED 02.12.2005 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXT.P2: TRUE COPY OF THE LETTER DATED 29.05.2007 SENT BY THE 1ST RESPONDENT EXT.P3: TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 16.01.2007 EXT.P4: TRUE COPY OF THE NON-LIABILITY CERTIFICATE ISSUED TO THE PETITIONER DATED 04.03.2004 EXT.P5: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE PETITIONER FROM ASWINI HOSPITAL PVT. LTD., THRISSUR EXT.P6: TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 2ND RESPONDENT DATED 06.07.2007. RESPONDENTS EXHIBITS :- EXT.R1(a): THE TRUE PHOTOCOPY OF THE LOAN APPLICATION SUBMITTED BY THE 4TH RESPONDENT EXT.R1(b): THE TRUE PHOTOCOPY OF THE DETAILS OF THE SURETIES FURNISHED BY THE 4TH RESPONDENT EXT.R1(c): THE TRUE PHOTOCOPY OF THE NOTICE SENT TO THE 4TH RESPONDENT BY THE 1ST RESPONDENT SOCIETY EXT.R1(d): THE TRUE PHOTOCOPY OF THE JOINT UNDERTAKING EXECUTED BY the PETITIONER EXT.R1(e): THE TRUE PHOTOCOPY OF THE WRITTEN UNDERTAKING THAT WAS SIGNED AND GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT SOCIETY EXT.R1(f): THE TRUE PHOTOCOPY OF THE NON-LIABILITY CERTIFICATE ALONG WITH THE WRITTEN UNDERTAKING OF THE PETIITONER AND THE 4TH RESPONDENT WP(C).No. 26826 of 2008(R) EXT.R1(g): THE TRUE PHOTOCOPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE ADMINISTRATIVE OFFICER EXT.R1(h): THE TRUE PHOTOCOPY OF THE SURETY BOND EXECUTED BY THE 4TH RESPONDENT EXT.R1(i): THE TRUE PHOTOCOPY OF THE DEMAND NOTICE SENT BY THE THIS RESPONDENT TO THE EMPLOYER OF THE PETITIONER -TRUE COPY- P.A. TO JUDGE pac THOTTATHIL B. RADHAKRISHNAN, J. ================================ W.P.(C).No.26826 of 2008 - R =============================== Dated this the 5th day of November, 2008. J U D G M E N T Ext.P3 relates to a facility availed by the 5th respondent from the 2nd respondent. That was issued on 16.1.2007. Now the counsel for the 2nd respondent states that the said transaction has been regularised and Ext.P3 is not in force. This is recorded. In so far as the transaction of the petitioner and the 1st respondent is concerned, the petitioner is a surety for the loan availed by the 4th respondent. Ext.R1(f) is an agreement between the petitioner and the 1st respondent in terms of Section 37 of the KCS Act. A perusal of the counter affidavit and the documents produced therewith will show that the loan availed by the 4th respondent is only one on the basis of support of surety. Obviously therefore, the petitioner cannot claim for any relief against the action in terms of Section 37 of the Act. The plea of the petitioner that another co-applicant surety is not being proceeded against also cannot be considered without the said person being on the array. Even if there is no surety, the bank W.P.(C).No.26826 of 2008 - R 2 should be left with the choice to proceed against any surety or the principal debtor from whom the money is recoverable. In the result, while repelling the contentions of the petitioner against recovery at the instance of the 1st respondent and recording that there is no recovery at the instance of the 2nd respondent, this writ petition is ordered directing that the 1st respondent will also take appropriate steps as may be found necessary for recovery from the 4th respondent and any other co- surety. Subject to the aforesaid direction, all other prayers are refused. THOTTATHIL B. RADHAKRISHNAN, JUDGE bkn/-