IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 24379 of 2006(B) ----------------------------------------- PETITIONER(S): -------------------------- SASIDHARAN NAIR V., BUILDING INSPECTOR, GURUVAYUR MUNICIPALITY, GURUVAYUR, THRISSUR. BY ADV. MR.S.ABDUL RAZZAK RESPONDENT(S): ---------------------------- 1. THE TRIVANDRUM CO-OPERATIVE URBAN BANK LTD. NO.1959, REPRESENTED BY ITS MANAGER, THYCAUD BRANCH, THYCAUD P.O.,THIRUVANANTHAPURAM. 2. THE ASSISTANT REGISTRAR, CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. A. SATHEESH KUMAR, T.C.NO.14/1716, `GOKUL FOREST LANE', THIRUVANANTHAPURAM. 4. THE SECRETARY, GURUVAYUR MUNICIPALITY, GURUVAYUR,THRISSUR DISTRICT. *ADDL.R5 IS IMPLEADED: R5. THE SECRETARY, PATHANAMTHITTA MUNICIPALITY, PATHANAMTHITTA P.O. (*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 20/01/2009IN IA.10199/2007) R1 BY ADV. MR.GEORGE POONTHOTTAM R4 BY ADVS.MR.K.K.CHANDRAN PILLAI, MR.SAVIO JOY. ADDL.R5 BY ADV.MR.V.K.SUNIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24379/2006 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF REQUISITION DTD. 17/06/06 FOR CONTINUING RECOVERY FROM PETITIONER'S PAY ISSUED BY R1. EXT.P2: COPY OF THE LAST PAY CERTIFICATE OF THE PATHANAMTHITTA MUNICIPALITY ISSUED TO THE PETITIONER. EXT.P3: COPY OF THE LAST PAY CERTIFICATE OF THE THIRUVANANTHAPURAM CORPORATION ISSUED TO THE PETITIONER. EXT.P4: COPY OF APPLICATION NO.ARC/303/06 DTD. 11/01/2006 OF R1 BEFORE R2. EXT.P5: COPY OF PETITIONER'S REPLY DTD. 24/04/06 SUBMITTED BEFORE R1. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE CERTIFICATE OF SALARY LIABILITY. /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.24379 of 2006-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of January, 2009. JUDGMENT “CR” 1.The petitioner, employed with a local authority, is a guarantor for a loan availed by the third respondent from the first respondent, a co- operative bank. He executed an agreement to which Section 37 of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the “KCS Act”, applies. Thereby, the creditor may require the petitioner's employer to deduct amounts due to it from the petitioner's emoluments. In exercise of that covenant, supported by the law contained in Section 37 of the KCS Act, the first respondent creditor issued Ext.P1 to the petitioner's employer, seeking deduction at the rate of Rs.2,000/- per month from the petitioner's salary. This is under challenge. WP(C)24379/2006 -: 2 :- 2.The question whether there is any outer limit for the amounts that could be recovered by recourse to Section 37 of the KCS Act is well settled by the decision of this Court in Tvm. Co-op. A.& R.D.Bank Ltd. v. State of Kerala [2004 (2) KLJ 85]. 3.However, the learned counsel for the petitioner, very persuasively, argued that the aforesaid precedent was rendered without pithily considering the question as to whether Section 60 of the Code of Civil Procedure, 1908, hereinafter, the “CPC”, particularly, proviso (i) under sub-section (1) thereof, has any impact on the right of a co- operative society to invoke Section 37(1) of the KCS Act. It is also argued that there is an incorporation of Section 60 of CPC by reference, going by the provision of Rule 77 of the Kerala Co-operative Societies Rules, 1969, hereinafter, the “KCS Rules”. Accordingly, it is argued that with reference to Rule 77 of the KCS Rules, the total amount that could be recovered by recourse WP(C)24379/2006 -: 3 :- to Section 37(1) of the KCS Act is limited by proviso (i) under Section 60(1) of CPC. 4.Section 60 of the CPC and Rule 77 of the KCS Rules relate exclusively to the realm of attachments, in the course of execution of a decree, award or other concluded measures and also in certain cases, to attachments before judgment. Proviso (i) to Section 60(1) of the CPC and the proviso thereto provide that the salary, to the extent of the first one thousand rupees and two- thirds of the remainder, shall not be liable to attachment or sale, in execution of any decree other than a decree for maintenance; subject further to the prescription as against continuous attachment as governed by the proviso to proviso (i). Section 60 CPC falls in Part II of that Code relating to Execution and is grouped under the sub-heading Attachment. It is that provision that is incorporated by reference as per Rule 77 of the KCS Rules. That Rule falls in Chapter XI of the KCS Rules, which chapter relates to Execution for WP(C)24379/2006 -: 4 :- Decisions, Awards and Orders. A reading of Rule 77 of the KCS Rules would also categorically show that it applies only where salary or allowance or wages forms the movable property to be attached. Therefore, the provision in proviso (i) of Section 60(1) CPC and the proviso thereto would apply only to attachments under the KCS Rules by virtue of Rule 77 of those Rules. 5.Section 37(1) of the KCS Act operates notwithstanding anything contained in any law for the time being in force. That non obstante clause, which is part of a primary legislation, would override any other provision contained in any law for the time being in force. Even in that view of the matter, Rule 77 of the KCS Rules, which essentially is a piece of subordinate legislation whereby Section 60 of the CPC gets incorporated by reference, would, in no way, touch the flow of the incidents of Section 37(1) of the KCS Act. 6.That apart, what is authorized under Section 37 WP(C)24379/2006 -: 5 :- (1) is the competence of the employer of a debtor to deduct from the salary or wages payable to the debtor, such amounts which may be required to be deducted on the basis of an agreement that may be entered into by a society which gives credit in favour of that debtor. Precisely, all that Section 37(1) does is to recognize agreements between co- operative societies and their debtors and to give further statutory authority for the employer of any debtor who has entered into an agreement which would fall within the scope of Section 37(1), to make deduction from the salary acting on the request of the creditor society on the basis of such agreement. 7.The word “agreement” in Section 37(1) is essentially an agreement which has to stand the test of law. No vitiating element is pointed out in defeasance of the agreement in question. All that is projected is as to whether the existence of that agreement would be in violation of Section 60 of the CPC and thereby Rule 77 of the KCS WP(C)24379/2006 -: 6 :- Rules. This cannot be because, there is no law forbidding a person from agreeing to pay amounts, which belong to him, to another person, particularly to one to whom money is due. Therefore, if one agrees that amounts due to him may be paid to another in discharge of liabilities, such an agreement does not fall within any of the vitiating elements referred to in the provisions of the Indian Contract Act, 1872 or elsewhere relating to contracts. Pausing for a movement on Section 23 of the Contract Act, it can be easily ensured that such a contract is not opposed to public policy. There could, therefore, be no inhibition in its enforcement. 8.In the aforesaid view of the matter, the concepts of “attachment” and “execution” are totally away from the context of Section 37 of the KCS Act and when an agreement is available to generate a demand in exercise of that provision, necessary consequences have to follow. In the absence of any limit being fixed in Section 37 of the KCS Act, as WP(C)24379/2006 -: 7 :- to the quantum of amount for deduction from the salary of a particular person at a particular point of time, there can be no such inhibition being read into such statutory prescription. The challenge fails. 9.For the aforesaid reasons, I am also in complete agreement with the law laid by this Court in Tvm. Co-op. A.& R.D.Bank Ltd(supra). 10.On facts, it needs to be noticed that the request for deduction is only at the rate of Rs.2,000/- per month. The salary certificate of the petitioner shows that his total drawal was around Rs.8,330/- at that time. The deductions which are reflected are essentially those towards enjoyments he had availed. Therefore, even if I were to probe a little deeper to find out whether there is any contradiction between Section 37(1) of the KCS Act and Article 21 of the Constitution and also basic human rights, no such situation exists in the case in hand and therefore, that WP(C)24379/2006 -: 8 :- issue is left open. For the foregoing reasons, the writ petition fails. The same is accordingly dismissed. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/