IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 16719 of 2008(M) --------------------------------------- PETITIONERS: ------------------- 1. SHAMEEM S.N., NAZEEMA MANZIL, PULLICHIRA P.O., MAYYANADU, KOLLAM. 2. NUJUMUDEEN.A., NAJEEMMANZIL, VALIYAVILATHEKKETHIL, MAYYANADU, KOLLAM. 3. MAHEEN.H., MAYA BHAVAN, THEKKUMKARA, PULLICHIRA P.O., KOLLAM. 4. KAVIRAJAN V., SHONA BHAVAN, ACKOLIL, MAYYANADU PO., KOLLAM. 5. ISHA BEEVI, KALEELAZHIKATHU, THATTAMALA P.O., KOLLAM. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) RESPONDENTS: ----------------------- 1. RETURNING OFFICER, MAYYANADU REGIONAL CO-OPERATIVE BANK LTD.NO.94, MAYYANADU, KOLLAM. 2. MAYYANADU REGIONAL CO-OPERATIVE BANK LTD.NO.94, MAYYANADU, KOLLAM. REPRESENTED BY ITS SECRETARY. *ADDL. RESPONDENTS 3 TO 21 ARE IMPLEADED. 3. ANTO THOMAS, PUNNAVILA VEEDUKAKKOTTUMOOLA \ KOLLAM. 4. KOCHANIYAN PILLA KINATTINKARA, MAYYANADU, ERAVIPURAM, KOLLAM. 5. M.BASHEER KUTTY, KALEELAZHIKATHU VEEDU UMAYANALLOOR P.O., KOLLAM. 6. D.BALACHANDRAN, SUNATHI BHAVAN, ERAVIPURAM, KOLLAM. W.P.(C) NO.16719/2008 7. A.K.BAIJU, BAIJU VIHAR, PULLICHIRA, KOLLAM. 8. BHASKARAN NAIR K., SATHEESH NIVAS, NADUVILAKKARA, KOLLAM. 9. BHASKARAN PILLAI K., KALEEKKAL KIZHAKETH VADAKKUMKARA PADINJARETHU, KOLLAM. 10. B.RAJENDRAN NAIR, PATTATHIL VEEDU, KAKKATHOPPU, KOLLAM. 11. SHAMSUDHEEN S. CHARUVILA PUTHEN VEEDU, MAYYANADU P.O. 12. K.SURENDRAN, VAYALUVEETTIL KIZHAKKETHIL, KOLLAM. 13. JALALUDHEEN T.PULLIYIL VEEDU, MAYYANADU. 14. THAJUDHEEN KUTTY A. THAYYIL VEEDU, MAYYANADU KOLLAM. 15. M.NOUSHAD, MANKUZHIVADAKKETHIL, VALATHUNAL, KOLLAM. 16. RADHAKRISHNA PILLAI R. SARASWATHI VILASAM VALATHUNNAL, KOLLAM. 17. LAKSHMANAN PILLAI R.SARASWATHI BHAVAN, AYIRAMTHENGU KOLLAM. 18. SASIDHARAN L. MEMBER NO.17120 MAYYANADU REGIONAL CO- OP. BANK NO.94, KOLLAM. 19. SAJI C. ANAND, VINU VIHAR, THEKKEVILA, KOLLAM. 20. LAKSHMANAN, THEKKETHEDIYIL, MAYYANADU, KOLLAM. 21. INDIRAKUTTY, THOPPIL VEEDU, MAYYANADU R2 BY ADV. SRI.P.RAVINDRAN (SR.) R2 BY ADV. SRI.ANIL SIVARAMAN BY GOVERNMENT PLEADER SMT.ANEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)NO.16719/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE NOTIFICATION ISSUED BY THE IST RESPONDENT. EXT.P2 SERIES:- COPIES OF THE ACKNOWLEDGEMENT ISSUED BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS EXT.R2(a):- COPY OF THE APPLICATION FOR WITHDRAWL DT. 26.7.05. EXT.R2(b):- COPY OF THE RECEIPT DT. 11.8.2005. EXT.R2(c):- COPY OF THE AWARD DT. 30.12.2005. EXT.R2(d):- COPY OF THE AGREEMENT DT. 13.6.2005. /TRUE COPY/ P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P.(C).No.16719 OF 2008 ------------------------------------------- Dated this the 12th day of June, 2008 JUDGMENT Five petitioners challenge the rejection of their nominations in an election to the committee of a co-operative society, on a ground of disqualification, attributed to each of them. 2. Today, it is well conceded that the 5th petitioner was not even a member of the society, going by the records of that institution, which shows that the 5th petitioner had been removed from the rolls at her request and was paid the share value also. The 4th petitioner does not dispute that there is an arbitration award against him in relation to a case where he was a surety for a loan transaction. Therefore, he is a defaulter. Thus, the issue survives only in relation to contentions as regards petitioners 1 to 3. WPC.16719/08 Page numbers 3. A counter affidavit is placed on record by the second respondent society, placing therewith different documents, exhibits R2(a) to R2(d). There is no reply affidavit and reference is made even by the petitioners through their learned counsel to Ext.R2(d) produced along with the counter affidavit as a typical loan document governing the transaction between the society and petitioners 1 to 3. 4. The uncontroverted statement in para 4 of the counter affidavit shows that petitioners 1 to 3 respectively defaulted payment to the loan accounts in question. Those materials evidently show that it is indisputable that petitioners 1 to 3 were in default in repaying the different instalments fixed for repayment in terms of the loan transaction. Ext.R2(d) shows that the repayment had to be made in 60 instalments. 5. Going by the law governing credit transactions, every default in repayment of an instalment is a default that gives the creditor a cause of action to recover. Therefore, the jural relationship between a creditor and a debtor has every default, WPC.16719/08 Page numbers as a situation where the rights of parties can be considered. Adverting to Rule 2 (d) of the Kerala Co-operative Societies Rules, 1969, hereinafter, 'the Rules' for short, which defines 'default', it can be seen that the failure on the part of any person, to repay a loan within the time fixed for repayment is a default. In a case where the relationship between the parties are governed by an agreement which contains provision for repayment in different instalments, the failure to repay each instalment would amount to failure to repay such portion of the loan. This is sufficient for a creditor even to recall the entire loan. The petitioner's contention that the concept of default as defined in Rule 2 (d) of the Rules is available only after efflux of the entire loan period, is therefore unsustainable. 6. Learned counsel for the petitioners made reference to the decision of the Division Bench of this Court in Surendran Nair v. State of Kerala [2004 (1) KLT 407], wherein, after noticing the definition of 'default' and 'defaulter' in Rules 2 (d) and 2 (e) of the Rules respectively, it has been laid down in the context of Rule 44 (1) (c) (i) read with Rule 44 (2), that to hold that a WPC.16719/08 Page numbers member of a committee is subsequently disqualified, it should be proved that he was in default for a period of three months and such disqualification of a member who has already been elected could not be found without issuing prior notice. Based on the views of the Division Bench as stated in para 8 of the judgment, learned counsel for the petitioner argued that the time fixed for repayment of a loan should be taken as the expiry of the entire period fixed for repaying the loan. Such an argument is just not available having regard to the fact that the default happens as and when each instalment in a facility is defaulted, in cases where the loan facility is extended on condition of repayment in instalments. The writ petition hence fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.