IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 WP(C).No. 19072 of 2010(H) --------------------------------------- PETITIONER: ------------------- K.G.BHASKARAN, OTTAPLACKAL COLONY (KULAKKATTIL),AYARKUNNAM, KOTTAYAM DISTRICT. BY ADV. SRI.JOSE J.MATHAIKAL. RESPONDENTS: ------------------------ 1. THE RETURNING OFFICER, AYARKUNNAM SERVICE COOPERATIVE BANK LTD.NO.4147, AYARKUNNAM P.O.,KOTTAYAM..(THE UNIT INSPECTOR OF CO-OPERATIVE SOCIETIES, PUTHUPPALLY UNIT AR (G ) ,KOTTAYAM) PIN- 686 564. 2. THE AYARKUNNAM SERVICE CO-OPERATIVE BANK LTD.NO.4147,AYARKUNNAM P.O.,KOTTAYAM, REPRESENTED BY ITS SECRETARY. 3. THE THIRUVANCHOOR SERIVCE CO-OPERATIVE BANK.THIRUVANCHOOR P.O.,KOTTAYAM, DISTRICT REPRESENTED BY ITS SECRETARY, PIN – 686 037. 4. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM – 695 024. R1 BY SR. GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 19072 OF 2010 H ----------------------------------------------------------- Dated this the 23rd June, 2010. JUDGMENT The petitioner has filed this writ petition challenging the action of the first respondent in rejecting the nomination submitted by the petitioner for the reason that he is a defaulter. 2. The petitioner belongs to a Scheduled Caste community. He had availed a loan of Rs.1,000/- from the third respondent society on 8/10/1992. The Government through the Registrar of Co-operative Societies has issued Ext.P3 circular directing that all loans availed by members of scheduled castes and scheduled tribes up to an amount of Rs.25,000/- should be written off and has further directed that all steps for the recovery of such loans shall be kept in abeyance. According to the petitioner in view of the above circular, the petitioner is not a defaulter to the third respondent society. The petitioner is also a member of the second respondent society whose elections are scheduled to be held on 27/6/2010. Since he was not a defaulter, the petitioner had submitted a nomination to contest as a candidate for election to the Board of Directors. However, his nomination was rejected at the time of WPC 19072/2010 2 scrutiny for the reason that the petitioner was a defaulter to the third respondent society. 3. Subsequent to the filing of this writ petition as per I.A.8904/2010 the petitioner has produced copy of a Government Order dated 12/11/2009 wherein the Government has directed the loans taken by members of the scheduled castes and scheduled tribes up to a limit of Rs.25,000/- to be written off. According to the counsel for the petitioner, Ext.P4 has been issued by the third respondent society, in accordance with the above direction. Therefore the petitioner prays for the issue of appropriate directions permitting him to contest the election, declaring that he is not a defaulter. 4. Learned senior Govt. Pleader on instructions submits that the petitioner was a defaulter to the third respondent society. Since amounts were due from him, the bank has initiated proceedings against him and an award was obtained in ARC 5561/95. The award was put in execution and E.P.1491/97 is pending before the Assistant Registrar, Kottayam. Since the award and execution proceedings are still pending it is submitted that the petitioner can be considered only as a defaulter in terms of the Co- operative Societies Rules 1969 (the 'Rules' for short). WPC 19072/2010 3 5. I have heard Mr. Jose J.Matheikel who appears for the petitioner as well as the the senior Govt. Pleader Mr. K.C.Santhosh Kumar. I have perused the records of the case and have considered the rival contentions anxiously. 6. Rule 44(1) contains the disqualification of members for being elected to a committee. Rule 44(1)(c) is the relevant provision applicable in this case. The relevant portion of Rule 44 is extracted below:- “44. Disqualification of membership of committee.---(1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he:- a) xxx xxx xxx b) xxx xxx xxx c) (i) is in default to the society or to any other society in respect of any loan or loans taken by him or loan in which he had stood surety, for such period, as is prescribed in the byelaws of the society concerned or in any case for a period exceeding three months or is a defaulter to the society or to any other society.” 7. As per the above provision, a person who is a defaulter to the society or to any other society suffers from the disqualification to contest. The word 'defaulter' has been defined in Section 2(e) of the Rules as follows:- WPC 19072/2010 4 “Defaulter means any Co-operative Society against which or any person against whom a decree has been obtained.” 8. In view of the above definition, it is clear that the petitioner is a defaulter for the reason that an award has been obtained against him by the third respondent. According to the counsel for the petitioner, since Ext.P5 has already been issued by the Government, it is clear that his debt would be written off completely. It is also pointed out that since Ext.P4 shows that the society itself has requested for the amount to be written off, he does not suffer from any disqualification. The above argument cannot be accepted for the reason that there is already an award passed by a competent authority against the petitioner and execution proceedings are pending against him for recovery of amounts due to the third respondent. There is no material placed before me to show what exactly is the amount for which the award has been passed or for what amount the execution proceedings have been initiated. At any rate, it cannot be presumed that the award and execution proceedings would vanish on the issue of Ext.P5 Government order. The petitioner would cease to be a defaulter only on the Government accepting the request of the third WPC 19072/2010 5 respondent society and on the issue of appropriate proceedings discharging the petitioner from the liability. Until such proceedings are issued, the petitioner continues to be a defaulter. Therefore, as on the date of the scrutiny, 16/6/2010 there cannot be any doubt that the petitioner was a defaulter to the third respondent society. Therefore, the rejection of his nomination is justified. In view of the above the writ petition fails and is accordingly dismissed. K. SURENDRA MOHAN Judge jj WPC 19072/2010 6