IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 WP(C).No. 23080 of 2011(H) ---------------------------------------- PETITIONER(S): ------------------------ A. MUHAMMED RISA, AGED 40 YEARS, S/O.M. ALIYARKUNJU, KOPPATHIL VEEDU, KAITHODU.P.O, NILAMEL, KOLLAM DISTRICT ACCOUNTANT, KOTTANADU GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ESM.KABEER SRI.A.SHAJEEL SMT.P.DEEPA MOHAN RESPONDENT(S): ---------------------------- 1. C.V. THOMAS, ASWATHI, NETTAYAM.P.O, THIRUVANANTHAPURAM.PIN-691 537 2. IDUKKI DISTRICT PANCHAYATH EMPLOYEES CO-OPERATIVE SOCIETY LIMITED NO.1.193, NEDUMKANDAM.P.O, REPRESENTED BY ITS SECRETARY.685 553 3. UDAYAMPEROOR GRAMAPANCHAYATH, REPRESENTED BY ITS SPECIAL GRADE SECRETARY, UDAYAMPEROOR.P.O.,PIN-682 307 4. KOTTANAD GRAMAPANCHAYATH, REPRESENTED BY ITS SECRETARY, KOTTANAD.P.O, PATHANAMTHITTA DISTRICT.PIN-689 615 5. THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM.PIN-695 001 R5 BY GOVERNMENT PLEADER SRI.MOHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.23080/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE REQUEST MADE BY THE 2ND RESPONDENT TO RECOVER FROM THE SALARY OF THE PETITIONER DATED 20/12/2010. P2 COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 26/10/2010. P3 COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 5TH RESPONDENT DATED 26/04/2011. P4 COPY OF THE COVERING LETTER ALONG WITH EXHIBIT P3 APPLICATION BEFORE THE 5TH RESPONDENT DATED 26/04/2011. P5 COPY OF THE REQUEST FROM THE 2ND RESPONDENT TO THE 4TH RESPONDENT TO RECOVER RS.5000/- PETITIONER'S SALARY DATED 22/07/2011. P5(A) COPY OF THE REQUISITION TO RECOVERY RS.5000/- FROM AUGUST ONWARDS DATED 22/07/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 23080 OF 2011 -------------------------- Dated this the 24th day of August, 2011 J U D G M E N T The petitioner is an employee of the fourth respondent grama panchayat. The first respondent herein is an employee of the third respondent grama panchayat. The first respondent availed a loan from the second respondent co-operative society in the year 2006. The petitioner is admittedly a surety to the said loan transaction. When the first respondent defaulted repayment of the loan, the secretary of the second respondent society sent a letter dated 23.10.2010 to the secretary of the third respondent grama panchayat requesting the secretary to recover the amount payable by the first respondent from his salary. The secretary of the third respondent grama panchayat thereupon sent Ext.P2 letter dated 26.10.2010 to the secretary of the second respondent society informing him that after 24.10.2008 the first respondent has not reported for duty, that he was paid salary only till 31.3.2009 and that in the place of the first respondent another officer has been appointed as Junior Superintendent. The second respondent was also informed that WPC No.23080/2011 2 in such circumstances it is not possible to attach the salary payable to the first respondent. 2. The secretary of the second respondent society thereupon sent Ext.P1 letter dated 20.12.2010 to the secretary of the fourth respondent grama panchayat, wherein the petitioner is employed, requesting the secretary of the fourth respondent grama panchayat to recover from the salary of the petitioner, who is a surety to the loan transaction, the sum of Rs.3,000/- per mensem from December 2010 onwards. The petitioner thereupon submitted Ext.P3 representation dated 26.4.2011 before the Director of Panchayats which was forwarded to the Director of Panchayats by the secretary of the fourth respondent grama panchayat along with Ext.P4 letter dated 26.4.2011. In Ext.P3 representation, the petitioner requested the Director of Panchayats to direct that the amount repayable by the first respondent to the second respondent society should be recovered from the Provident Fund of the first respondent or the gratuity payable to him. While matters stood thus, the secretary of the second respondent society sent Ext.P5 letter dated 22.7.2011 to WPC No.23080/2011 3 the secretary of the fourth respondent grama panchayat along with a requisition under sub section (2) of section 37 of the Kerala Co-operative Societies Act (hereinafter referred to as 'the Act' for short) to recover from the salary of the petitioner the sum of Rs.5,000/- per mensem and to remit it with the second respondent society for the purpose of recovering the amounts due from the first respondent and the petitioner. In this writ petition, the petitioner challenges Ext.P5 and seeks the following reliefs: “(i) to call for the records relating to Exhibits P1 to P5 (a) and to issue a writ of mandamus directing the 4th respondent not to recover from the salary of the petitioner pursuant to Exhibit P5. (ii) To issue any writ, order or direction directing the respondents 2 to 4 to take steps to realise the outstanding loan amount of the 1st respondent from his provident fund, gratuity or from the landed properties. (iii) To issue a writ of mandamus or any other writ, order or direction directing the 5th respondent to consider and dispose of Exhibit P3 representation as expeditiously as possible.” It is contended that when the first respondent the principal debtor possessed immovable properties and amounts are due to him by way of Provident Fund and gratuity there is no reason WPC No.23080/2011 4 why the petitioner, the surety of the loan transaction, should be proceeded against. 3. The petitioner is admittedly a surety to the loan transaction. Under section 126 of the Indian Contract Act his liability is co-extensive with that of the principal debtor. At the time the first respondent availed the loan from the second respondent society, the petitioner had executed an agreement in favour of the second respondent society whereby he authorised his employer or the officer disbursing his salary to deduct from his salary such amount as is specified for the purpose of repaying the loan availed by the first respondent. It was based on the said agreement that Ext.P5 communication was issued along with a requisition under sub section (2) of section 37 of the Act. That apart, section 37(2) of the Kerala Co-operative Societies Act stipulates that “On the execution of such an agreement, the employer or the officer disbursing the salary or wages of any such member as is referred to in sub section (1) shall, if so required by the society by requisition in writing and so long as such debt or demand or any part of it remains unpaid, make the WPC No.23080/2011 5 deduction in accordance with the agreement and pay the amounts so deducted to the society within seven days from the date of the deduction.” Such being the situation, the challenge to Ext.P5 is in my opinion misconceived and without merit. The petitioner, who was surety to the loan transaction has to repay the loan availed by the first respondent and thereafter sue him for contribution. I therefore find no grounds to entertain the writ petition. The writ petition fails and is accordingly dismissed. P.N.RAVINDRAN, (JUDGE) vps