IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WPC.No. 22395 of 2009 (T) ========================= PETITIONER(S) ============= RAMACHANDRAN,P, S/O.PADMANABHAN, AGED 60 YEARS, BRANCH MANAGER (RETIRED), VAIKOM MORNING & EVENING BRANCH, KOTTAYAM DISTRICT CO-OPERATIVE BANK LIMITED., KOTTAYAM RESIDING AT CHALUVELIL HOUSE, VADAYAR PO., THALAYOLAPPARAMBU, KOTTAYAM DISTRICT-686 605. BY ADVS.SMT.REKHA VASUDEVAN, SRI.P.A.KUMARAN. RESPONDENT(S) ================= 1. THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, DISTRICT CO.OPERATIVE BANK BUILDING, PB.NO.140, KOTTAYAM 686 001. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE JOINT REGISTRAR OF CO.OPERATIVE SOCIETIES (GENERAL), KOTTAYAM. *ADDL.R4 IMPLEADED: R4. O.N.KRISHNAN, OLAPPURACKAL, K.S.PURAM, KADUTHURUTHI, KOTTAYAM. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 27/09/2010 IN I.A.NO.13140/10) R1 BY ADV.SRI.T.A.SHAJI, SC, KOTTAYAM DIST.CO-OP.BANK, BY ADV.SMT.P.K.RADHIKA R2 & R3 BY GOVERNMENT PLEADER SRI.JITHESH ADDL.R4 BY ADV. SRI.NIRMAL V NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2011 , THE COURT ON 23/12/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.22395/2009 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER DTD. 6/01/2000 ADDRESSED TO THE 1ST RESPONDENT BY THE PETITIONER. P2: COPY OF THE APPLICATION DTD. 13/3/2000 ALONG WITH THE AGREEMENT EXECUTED BY THE PETITIONER AS GUARANTOR. P3: COPY OF THE APPLICATION DTD.22/06/2001 ALONG WITH THE AGREEMENT EXECUTED BY THE PETITIONER. P4: COPY OF THE REPRESENTATION DTD. 18/11/2002 ALONG WITH THE COPY OF THE ACKNOWLEDGEMENT CARD. P5: COPY OF THE REPRESENTATION DTD. 25/11/2002 SUBMITTED BY THE PETITIONER ALONG WITH ANOTHER. P6: COPY OF THE ORDER NO.E.S.T.926/2003-04 DTD. 10/09/2003 ISSUED BY THE 1ST RESPONDENT. P7: COPY OF THE REPRESENTATION DTD. 12/2/2007 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P8: COPY OF THE REPRESENTATION DTD. 15/2/2007 SUBMITTED BY MR.KRISHNAN. P9: COPY OF THE RESOLUTION DTD. 10/04/2007 OF THE COMMITTEE OF THE 1ST RESPONDENT BANK. P10: COPY OF THE LETTER DTD. 10/04/2007 ISSUED BY THE KOTTAYAM DISTRICT ` CO-OPERATIVE BANK EMPLOYEES CO-OPERATIVE SOCIETY TO THE 1ST `` RESPONDENT. P11: COPY OF THE REPRESENTATION DTD. 10/04/2007 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P12: COPY OF THE NOTICE NO.EST/50/2007-08 DTD. 13/04/2007 ISSUED BY THE 1ST RESPONDENT BANK. P13: COPY OF THE INTERIM ORDER DTD.28/01/2008 OF THE HON'BLE LOK AYUKTA. P14: COPY OF THE ORDER NO.EST/11/2/2007-08 DTD. 29/02/2008 ISSUED BY THE 1ST RESPONDENT. P15: COPY OF THE LETTER NO.P10/04/2008-09 DTD. 15/04/2008 ISSUED BY THE PUBLIC INFORMATION OFFICER. P16: COPY OF THE ORDER DTD. 16/03/2009 OF THE LOK AYUKTA. P17: COPY OF THE JUDGMENT DTD. 7/04/2008 IN WP(C) NO.36554 OF 2007 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss A.M.SHAFFIQUE, J. ----------------------------------------------------------- W.P.(C) No. 22395 of 2009 – T ----------------------------------------------------------- Dated this the 23rd day of December, 2011 J U D G M E N T The petitioner retired from service on 31.01.2007. He was the guarantor of one Mr.Krishnan, in respect of cash credit and overdraft facilities sanctioned by the 1st respondent bank. The petitioner now challenges Ext.P14 by which liability had been fixed on the petitioner at Rs.2,33,011/- and recovering the said amount from the gratuity of Rs.3,50,000/-. According to the petitioner, the respondents have no authority to recover any amount from the gratuity payable to the petitioner . The 1st respondent has inter alia contended that the petitioner had executed an agreement with the Bank by which permission had been granted to the Bank to recover even amounts from the Death-cum-Retirement Benefit (DCRG). The said portion of the agreement is extracted in paragraph 8 of the counter affidavit of the 1st respondent as hereunder: 2 W.P.(C) 22395/2009 “I, P. Ramachandran, the Kottayam District Co- operative Bank Ltd., Kottayam agree to pay and satisfy to you two days after demand upto the amount hereinafter mentioned all moneys and liabilities already advanced, paid, incurred on such account or which you may at any time advance pay or incur together with interest which may be or become payable in connection there nevertheless that my liability on the guaranty shall not exceed in the whole the sum of Rs.1,00,000/- (Rs.One lakh only) and interest therein at the rate of 12% per annum from the date on which demand for payment shall have been made by you upon me”, that the guarantee shall be a continuing guarantee and in full course until te borrower have cleared the liability in full.”. “I hereby understand and agree the Bank is at liberty to realize the amount due under the above Cash credit/Overdraft account and also any other sum due to the Bank on account of the said Cash Credit/Overdraft account opened in favour of the borrower from both my salary and assets”. 3 W.P.(C) 22395/2009 2. The counsel for the 1st respondent also relies upon the judgment of this Court reported in Manni v. Divisional Forest Officer (2008 (4) KLT 955) to contend that if the employee gives a consent to the creditor organization unconditionally agreeing for recovering any amount from the retirement benefits it will be sufficient compliance of Ruling 1 of R.3 Part III K.S.R. 3. The counsel for the petitioner relying upon a Division Bench judgment in Surendran v. Mavelikara Primary Cooperative Agrl. & R.D.Bank Ltd. (2005(4) KLT 619), contends that no such agreement as envisaged in the judgment in Manni's case had been given by the petitioner. The petitioner had, in the said agreement only permitted the Bank to recover the amount from the salary and assets. In so far as, the petitioner had retired and no salary is payable, DCRG cannot be the subject matter of recovery of any amount due to a creditor. In Surendran's case (supra), the Division Bench considered the question as to whether the word 'salary' includes DCRG under S.37 of the Cooperative Societies Act, 1969 and found that the salary does not include DCRG. The 4 W.P.(C) 22395/2009 Division Bench had also indicated that as per Ruling I Rule 3 Part III K.S.R. permits recovery from DCRG only with the consent of the employee concerned in writing. 4. I do not think that there is any material to show that the petitioner had agreed in writing that any amount payable to him as DCRG can be recovered from the gratuity. Even the words 'assets' does not include DCRG. As such the petitioner is entitled for the reliefs prayed for. Since the recovery is wrongful the 1st respondent is liable to pay interest for the delayed payment which I fix at 9% from the date when the DCRG has become payable. The writ petition stands allowed as follows: (i) The 1st respondent is directed to pay the balance amount of DCRG, i.e. Rs.2,33,011/- to the petitioner with interest at the rate of 9% per annum from the date when the amount has become due till payment. (ii) The payment may be made within a period of one month from the date of receipt of a copy of this judgment. A.M. SHAFFIQUE, JUDGE rka 5 W.P.(C) 22395/2009