HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.17086 of 2004 Date : 03.02.2011 Between : K.V.L.N.Prasad. …..Petitioner And The Deputy Registrar of Co-operative Societies/Divisional Co-operative Officer, Secunderabad & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.17086 of 2004 ORDER : This writ petition is filed with the following prayer: a) To declare the proceedings in Form No.14(b), dated 01.7.2004, issued by the 1st respondent, as illegal, arbitrary, without jurisdiction, without authority of law, and consequently, set aside the same; and b) To declare that Award in Case No.3290 of 2003, dated 20.12.2003, passed by the 1st respondent is not applicable and cannot be enforced against the petitioner, since the petitioner was not made party to the said proceedings, and consequently, restrain the respondents herein from enforcing the said Award against the petitioner. The 2nd respondent herein is registered under the A.P. Co-operative Societies Act, 1964 (hereinafter referred to as ‘the APCS Act’) and is doing banking business. M/s.Sri Satya Ad Visions, the proprietary concern of one Mr. I. Srinivasa Rao, has obtained a loan amount of Rs.1,72,000/- for purchasing LCD Projector and the petitioner is the guarantor for the said loan. Though there is some dispute with regard to guarantee also, it is not necessary to delve into the same in the present writ petition. On the ground that the said Srinivasa Rao has not repaid the loan amount, the 2nd respondent-Bank has approached the 1st respondent-Deputy Registrar of Co-operative Societies, by making an application for issuance of certificate under Section 71(1) of the APCS Act against Mr. I.Srinivasa Rao, who is the proprietor of M/s.Sri Satya Ad Visions, so as to recover the same from him. It is to be noticed that the petitioner is not made party to the said proceedings. The Deputy Registrar of Co- operative Societies, Secunderabad Division, on the application filed by the 2nd respondent-Bank, has issued certificate under Section 71(1) of the APCS Act, certifying that an amount of Rs.2,18,616/-, is due, as arrears to the 2nd respondent-Bank and that the said Bank is entitled to recover the same as arrears. Though there is no certification so far as the petitioner is concerned, based on the certificate obtained against Sri I. Srinivasa Rao, who is the proprietor of M/s.Sri Satya Ad Visions, the 2nd respondent-Bank has applied to the 1st respondent to enforce the same against the petitioner, who is an employee of the 3rd respondent-Bank, and recover an amount of Rs.2,44,902/- by attaching his salary. Consequently, the 1st respondent has initiated proceedings under Rule 52(b) of the APCS Rules and ordered for attachment of salary of the petitioner. Aggrieved by such notice and also seeking the relief that the Award cannot be executed against him, the petitioner has filed the present writ petition. Mainly, it is the case of the petitioner that there is no certificate or any Award or order against him for execution, in the absence of which, it is not open for the 2nd respondent-Bank, to seek attachment of salary by invoking provisions under Rule 52 of the APCS Rules. Counter affidavit is filed by the respondents, wherein, it is stated that the petitioner is guarantor for the loan obtained by M/s.Sri Satya Ad Visions from the 2nd respondent-Bank and is well aware of the proceedings, including the letter of guarantee, dated 09.07.2001 and also the promissory note, dated 09.07.2001, which is executed in the capacity of the guarantor, as such, he cannot escape from his liability. Further, it is stated that though there is certification issued under Section 71(1) of the APCS Act, and the petitioner was also served with notice, dated 23.02.2004, he has not taken any steps to see that the loan amount is paid by the principal borrower. Primarily, the claim against the petitioner is defended on the ground that inspite of being aware of the proceedings under Section 71(1) of the APCS Act, he has not taken steps to question such certification, and therefore, he is not entitled to seek the relief as prayed for in this writ petition. Heard learned counsel for the parties. The learned counsel for petitioner has placed on record, the certificate issued under Section 71(1) of the APCS Act, by the Deputy Registrar of Co-operative Societies, from which, it is clear that the said certificate is issued only against Sri I.Srinivasa Rao S/o.Satyanarayana, who is the proprietor of M/s.Sri Satya Ad Visions, but the petitioner herein was not impleaded as party-respondent to the said proceedings. Even from a reading of the operative portion of the said order, it is clear that the amount mentioned therein is due as arrears to the Bank from Sri I.Srinivasa Rao, the proprietor of M/s.Sri Satya Ad Visions only. In the counter, the respondents have not disputed the allegation of the petitioner that he is not a party to the proceedings. Rule 52 of the APCS Rules prescribes the procedure for execution of the decrees or orders under the APCS Act. In the instant case, it is to be noticed that so far as the petitioner is concerned, there is no order or certification or any decision to recover any amount from him. In the absence of any certification against the petitioner, based on the certificate obtained under Section 71(1) of the APCS Act against the principal borrower, namely, Sri I.Srinivasa Rao, it is not open for the respondents to execute the same against the guarantor under Rule 52 of the Rules. In that view of the matter, as the Award, dated 20.12.2003, is confined only to the principal borrower, the same cannot be enforced against the petitioner, and there appears no basis for initiation of proceedings under Rule 52 of the APCS Rules, for attachment of petitioner’s salary, who is working with the 3rd respondent-Bank. For the aforesaid reasons, the writ petition is allowed, and the impugned notice, dated 01.07.2004, issued in Form 14(b), is set aside. It is further declared that the Award proceedings in Case No.3290 of 2003, cannot be enforced against the petitioner. No costs. ______________________ R. SUBHASH REDDY, J 3rd February 2011 ajr