R.N.BISWAL, J. W.P.( C) NO.3898 OF 2009 (Decided on 26.07.2011) RABINDRANATH SAMAL …..…Petitioner. .Vrs. MEMBER CO-OPERATIVE TRIBUNAL & ORS. ………Opp.Parties. ORISSA CO-OPERATIVE SOCIETIES ACT, 1962 (ACT NO.2 OF 1963) – S.28(3)(e). For Petitioner - M/s. Biswanath Dash, Mr. S.Ratha. For Opp.Party - M/s. N.R.Samal (O.P.4) M/s. P.C.A. Biswal, B.P.Das (O.P.3) M/s. Sarat Ch. Panda, M.K.Mazumdar, R,Das Nayak, Ch. A.K.Das, G.C.Nath, P.K.Nayak & S.Mohanty (O.Ps.5,6 & 7) M/s. Biplab K.Dash, J.Sahoo, S.R.Subudhi, B.M.Mohapatra,B.K.Das, J.P.Rath & B.K.Mohanty (O.P.2) R.N.BISWAL,J. The sole question that arises for consideration is whether the petitioner is a defaulter in terms of Clause (e),Sub-section(3) of Section 28 of the Orissa Co-operative Societies Act (hereinafter referred as ‘Act’) so as to be ineligible to contest for the office of President of the Committee of Areikana Service Co-Operative Society Ltd ,Areikana under Jajpur district, (hereinafter referred as ‘Society’). 2. Petitioner, opp.party no.2 and some others contested for the office of member of Committee of the Society in the election held on 4.11.2007. Petitioner and opp.party no.2 were elected as members of Committee of the Society. The Election Officer issued programme for election to the office of President of the Committee and as per the programme, 27.11.2007 was fixed for filing of nomination by the intending candidates from amongst the members of the Committee .The petitioner and opp.partyno.2 alone filed nomination for the office of President of the Committee. The election was held on 28.11.2007 and the petitioner having secured highest number of votes was declared to be the president of the committee. It is alleged that during scrutiny of nominations opp.partyno.2 challenged the candidature of the petitioner on the ground that he was a defaulter in terms of Clause (e)sub-Section (3) of Section 28 of the Act, but, the Election Officer did not pay any heed to it and allowed the petitioner to contest the election. So opp.party no.2 filed Election Dispute Case No.55 of 2007 under Section 67-B of the Act before learned Member, Co-operative Tribunbal, Orissa, Bhubaneswar challenging the election of the petitioner. As per the case of the opp.party no.2 before the Member Co- operative Tribunal, Orissa, Bhubaneswar, petitioner availed Cash Credit loan of Rs.40,000/- on 31.1.1996 from Badachana Branch of Cuttack Central Co-operative Bank Ltd, Cuttack. As he failed to repay the dues in spite of several notices, Dispute case no.259 of 2001 was instituted against him before the competent authority and a decree was passed for Rs.1,74,166/- on 4.7.2007. He did not clear up the dues till 26.11.2007 and thereafter. According to opp.party no.2, the petitioner was not eligible to contest for the office of member or President of the Committee of the society. So, he filed the aforesaid Election Dispute with prayer to declare the election of the petitioner as member and President of the Committee of the Society to be void and to declare him (opp.party no.2) as the elected president of the said committee. 3. The petitioner in his written statement before learned Member, Co-operative Tribunal inter alia contended that the management of Cuttack Central Co-operative Bank Ltd offered him to avail the benefit under One Time Settlement Scheme and accordingly, he availed it. He entered into an agreement with the said bank as per the Scheme on 13.12.2007. Once the One Time Settlement Scheme was accepted, all the past defaults are waived. He paid a sum of Rs.7,000/- on 22.10.2007 and Rs.4500/- on 26.11.2007. So, he prayed to dismiss the Election Dispute. 4. On the basis of pleadings of the parties, learned Member Co-operative Tribunal framed four issues. To establish his case. Plaintiff-opp.party no.2 examined two witnesses and the Defendant-petitioner also examined same number of witness. After assessing the evidence on record, learned Member, Co-operative Tribunal held that Ext.7 obtained under the R.T.I. Act proved that the bank in their letter dated 18.2.1998 demanded payment of loan amount of Rs.40,000/- from the petitioner- defendant. Admittedly, he did not pay the same, let alone, within three months. The O.T.S. Scheme cannot erase the past default and accordingly allowed the Election Dispute, declared the election of the petitioner-defendant as void and further declared the plaintiff-opp.partyno.2 as the duly elected President of the Committee vide judgment and order dated 7.5.2009. Being aggrieved with the said judgment and order, defendant-petitioner preferred the present writ petition. 5. Learned counsel appearing for the petitioner submits that once the parties entered into a fresh agreement under the O.T.S. Scheme, even if the petitioner did not pay the dues of the bank despite notice, he cannot be considered as defaulter. So, the finding of the learned Member, Co-operative Tribunal is bad in law. 6. On the other hand, learned counsel appearing for opp.party no.2 contends that since the petitioner failed to pay the dues within three months of the notice under Annedxure-7 and thereafter, he became a defaulter in terms of the provision contained under Clause(e)Sub-section(3)of Section 28 of the Act. As he could not repay the dues and the loan became a NPA, offer was made to him to avail the benefit under the O.T.S.Scheme. Only because he paid Rs.7000/- in one occasion and Rs.4,500/- in another occasion, his earlier default cannot be waived. So the learned Member, Co- operative Tribunal rightly allowed the Election Dispute. Clause (e), Sub-section-(3) of Section 28 of the Act reads as follows: “(3)No individual shall, whether by himself or as a representative of the Society, be eligible for being chosen or for continuing as a member or the President or as the Vice-President, if any of the Committee of a Society, if he Xx xx xx xx Xx xx xx xx 2 Xx xx xx xx (e) has failed to pay any amount due, whether in cash or in kind, to the Society; its Financing Bank, or any other Society, on account of any loan or otherwise within three months from the date of notice by the Society or the Financing Bank concerned for payment of such dues; Provided that nothing in this clause shall debar any such person from being chosen as member or President if he makes payment of the dues before the date of filing his nomination at an election of any Society.” 7. In the present case, admittedly, a sum of Rs.1,74,166/- was decreed against the petitioner by the competent authority on 4.7.2007. It is also an admitted fact that he did not repay the same despite notice under Annexure-7 dated 10.3.2009 issued to him. As found from Ext.E, the agreement was entered into between the petitioner and the Central Co-operative Bank, Cuttack on 13.12.2007 under the OTS scheme. As per the agreement, he has to pay eleven instalments at the rate of Rs.2800/- per month starting from 15.1.2008 to 15.11.2008 and another instalment of Rs.2,867/- on 15.12.2008. He paid a sum of Rs.7000/- on 22.10.2007 and Rs.4500/- on 26.11.2007. The date of filing of the nomination for the office of President of the Committee was fixed on 27.11.2007, perhaps to be eligible to file the nomination, he paid the aforesaid amount in two occasions, but as stated earlier the agreement between the petitioner and the Central Co-operative Bank, Cuttack under the OTS scheme was entered into on 13.12.2007- much after the filing of the nomination. So, on the date of filing of the nomination for election to the office of President of the committee, the petitioner was defaulter in terms of Clause(e), Sub-section (3) of Section 28 of the Act. The subsequent agreement between the petitioner and the Central Co-operative Bank, Cuttack can not waive the default of the petitioner. 8. Accordingly the writ petition stands dismissed being devoid of merit. In view of dismissal of the writ petition, Misc. Case No.3110 of 2009 stands dismissed and the interim order is vacated. Writ petition dismissed. 3