IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 22700 of 2009(F) -------------------------- PETITIONER(S): --------------- P.K.RAVI, PALAMOOTTIL HOUSE, PAYYANAMON P.O., KONNI. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------- 1. STATE CO-OPERATIVE ELECTION COMMISSIONER, THIRUVANANTHAPURAM. 2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL) CIVIL STATION, PATHANAMTHITTA. 3. ASSISTANT REGISTRAR (GENERAL), KOZHENCHERRY CO-OPERATIVE CIRCLE, PATHANAMTHITTA, (ELECTORAL OFFICER, KONNI RCB LTD., KONNI P.O., PATHANAMTHITTA). 4. RETURNING OFFICER, KONNI REGIONAL CO-OPERATIVE BANK LTD., KONNI P.O. (OFFICE INSPECTOR, ASSISTANT REGISTRAR (GENERAL) OFFICE, PATHANAMTHITTA). 5. KONNI REGIONAL CO-OPERATIVE BANK LTD. NO.3833, KONNI P.O., PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY. 6. SHYLAJA, SECRETARY, KONNI REGIONAL CO-OPERATIVE BANK LTD., KONNI P.O., (MEDAYIL HOUSE, PARAKODE P.O.). 7. K.SAINUDEEN, SECRETARY, KONNI REGIONAL CO-OPERATIVE BANK LTD., KONNI P.O., (VALIYAKALAYIL HOUSE, MANGARAM P.O., KONNI). 8. RAMACHANDRAN.A, MEMBERSHIP NO.897, KONNI RCB, KONNI P.O., PATHANAMTHITTA. MR.K.S.MOHAMMED HASHIM, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.22700/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE IDENTITY CARD SHOWING THAT THE PETITIOENR IS A MEMBER OF THE SOCIETY WITH MEMBERSHIP NO.1889. P2 : COPY OF NOTIFICATION RELATING TO ELECTION PUBLISHED IN MATHRUBHUMI DAILY DATED 24/07/2009. P3 : COPY OF RECEIPT DATED 06/08/2009 ISSUED BY THE SECRETARY. P4 : COPY OF LETTER DATED 24/06/2009 FROM ADDITIONAL REGISTRAR. P5 : COPY OF FINAL LIST OF CANDIDATES. P6 : COPY OF REPRESENTATION. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.22700 of 2009 --------------------------------- Dated, this the 13th day of August, 2009 J U D G M E N T The petitioner is a member of a Scheduled Caste, and is a member of the 5th respondent, a Co-operative Bank. Ext.P1 is his identity card. Election to the Board of Directors of the Bank has been notified to be held as per Ext.P2. As per the Schedule fixed, nominations were to be submitted by 05/08/2009, scrutiny was on 06/08/2009 and the election is to be held on 18/08/2009. 2. The petitioner submitted his nomination. But, however in Ext.P5, the final list of candidates, his name was not included. Thereupon, he filed Ext.P6 representation to the Assistant Registrar and no response was forthcoming, and therefore, this writ petition is filed. The first prayer sought in this writ petition is to direct respondents to accept the nomination submitted by him, and permit him to contest the election. The petitioner also seeks a declaration that the General Body and the election process to be held on 18/08/2009 is illegal. WP(C) No.22700/2009 -2- 3. As far as the rejection of his nomination is concerned, the petitioner submits that the rejection has been ordered on the basis that he is a defaulter to the Society. The petitioner states that he was a surety to a loan of Rs.5,000/- availed of by one of the members of the Bank. It is stated that although as per Ext.P4 circular, the liability is liable to be written off, and the principal debtor has already settled the liability, as is evident from Ext.P3 receipt. He also contends that in terms of the provisions contained in Rule 44 of the Kerala Co-operative Societies Rules, unless a demand is made on the surety, and a period of 30 days has expired, the surety cannot be treated as a defaulter. The learned counsel contends that there is no such notice and therefore, he is not a defaulter and in this context, reliance is placed on the judgments of this Court in Abdul Rasheed v. State of Kerala (1988(1) KLT 190) and in Ravi v. Kottayam Co-op. Urban Bank Ltd. (1993(1) KLT 644). 4. As far as the rejection of the nomination submitted by the petitioner is concerned, Rule 44(1)(c) of the Kerala Co-operative Societies Rules provides that a person in default to the Society in respect of any loan availed of by him or loan in which he is a surety WP(C) No.22700/2009 -3- for the period specified therein or is a defaulter to the Society or to any other Society, is ineligible for being elected or appointed as a member to the Board of Directors of the Society. However, the proviso to the Rule states that disqualification under Rule 44(1)(c) referred to above shall be deemed to have accrued only after the expiry of a period of one month from the date of receipt by the member concerned of a notice from the Society demanding him to clear all the defaulted amount specified therein, and he fails to remit or cause to remit the amount within the said period. This position is also confirmed by the judgments relied on by the learned counsel for the petitioner. 5. However, the learned Government Pleader has received instructions from the Returning Officer, and referring to the files, it is submitted that after the nominations were filed, the Electoral Officer forwarded a list of candidates to the Bank seeking clarification as to whether any one of them is a defaulter. It is seen that in the response given by the Bank, the name of the petitioner was indicated as a defaulter, and that it was informed that notice has already been issued to him. The learned Government Pleader WP(C) No.22700/2009 -4- with reference to the documents submits that the notice so issued was on 13/03/2009. If that be the position, since the liability was settled only on 06/08/2009, as on 05/08/2009, when the nomination was submitted, the petitioner was in default and therefore Rule 44(1)(c) fully applies to his case. 6. The learned counsel further contends that in view of the definition contained under Rule 2(e), unless a decree is obtained, even a surety in default cannot be a defaulter to be ineligible to be a candidate in the election. A reading of Rule 44(1)(c) shows that a person 'in default' and also a 'defaulter' are both ineligible to be elected to the Managing Committee of a Society. Rule 2(d) defines “Default” and Rule 2(e) defines “Defaulter”. While a failure to repay a loan or any other amount due to a Society within the time specified for repayment is a “Default”, to be a “Defaulter” there must be decree against the person concerned. In this case, as on 05/08/2009, despite notice, the petitioner had failed to pay the amount due to the Bank. If so, as on the date of filing nomination, the petitioner was in default and consequently, the ineligibility is attracted. WP(C) No.22700/2009 -5- 7. Therefore, having regard to the materials that are produced by the learned Government Pleader, I do not think that this Court, exercising the powers under Article 226 of the Constitution of India, will be justified in interfering with the decision of the Electoral Officer. Necessarily, the matter requires appreciation of the facts and evidence, which can be done only in a statutory proceedings. Therefore, leaving open the contentions raised and the remedies available to the petitioner, I dismiss the writ petition. (ANTONY DOMINIC, JUDGE) jg