K. VIJAYAKUMAR & K. ANIL KUMAR v. STATE OF KERALA & OTHERS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933** **WP(C).No. 18481 of 2011(I)** **----------------------------------** **PETITIONER(S):** **-------------------** **1. K.VIJAYAKUMAR,MEMBER MANAGING COMMITTEE, MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.T-2433, RESIDING AT MANGALATHUKONATHU VEEDU,PUTHUKULANGARA .P.O,NEDUMANGADU,THIRUVANANTHAPURAM-695541.** **2. K.ANIL KUMAR,MEMBER MANAGING COMMITTEE, MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.T-2433, RESIDING AT MANGALATHUKONATHU VEEDU,PUTHUKULANGARA .P.O,NEDUMANGADU,THIRUVANANTHAPURAM-695541.** **BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR** **RESPONDENT(S):** - **------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF CO-OPERATION SECRETARIAT,THIRUVANANTHAPURAM-659001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM-695001.** **4. MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO T-2433,MUNDELA.P.O,VELLANADU,THIRUVANANTHAPURAM, PIN-695543,REPRESENTED BY IT'S SECRETARY.** **5. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),NEDUMANGAD,THIRUVANANTHAPURAM, PIN-695543.** **AS** ## **WPC.NO.18481 /2011** **6. M.SASIDHARAN NAIR,MEMBER,MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.T-2433,NEDUMANGAD, THIRUVANANTHAPURAM,PIN-695543.** **7. D.MOHANAKUMARAN NAIR,MEMBER MANAGING COMMITTEE,MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO T-2433,RESIDIING AT IRAMATHU HOUSE, KOKOTHAMANGALAM,MUNDELA.P.O,NEDUMANGADU, THIRUVANANTHAPURAM-695543.** **8. L.SOMASEKHARAN,MEMBER MANAGING COMMITTEE MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.T-2433, RESIDIING AT PLAVARATHALA PUTHEN VEEDU,KALATHARA, MUNDELA.P.O,NEDUMANGADU,THIRUVANANTHAPURAM-695543.** **9. K.GIRIJAKUMARI,SECRETARY,MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.T-2433,MUNDELA.P.O, VELLANADU,THIRUVANANTHAPURAM,PIN-695543.** **R3 BY SRI. SOMASUNDARAM, GOVT. PLEADER** **R4 BY ADV. SRI.C.E.UNNIKRISHNAN R6 &7 ADV. SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SMT.M.G.AISHWARYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WPC.NO.18481/2011** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** - **P1: COPY OF THE DOCUMENT DATED 11/06/2011 FROM THE CHIEF ACCOUNTANT.** - **P2: COPY OF THE COMPLAINT SUBMITTED BEFORE THE 3RD RESPONDENT BY THE 7 MEMBERS.** - **P3: COPY COMMUNICATION DATED 7.6.2011.** - **P4: COPY OF THE NOTICE DATED 24.6.2011 ISSUED BY THE 3RD RESPONDENT UNDER RULE 44(3).** - **P5: COPY OF THE REPRESENTATION DATED 6.7.2011 BEFORE THE 1ST AND 2ND RESPONDENTS.** - **P6: COPY OF THE CERTIFICATE DATED 27.12.2008 ISSUED BY THE SECRETARY OF THE SOCIETY.** - **P7: COPY OF THE CERTIFICATE DATED 27.12.2008 ISSUED BY THE SECRETARY OF THE SOCIETY.** ## **RESPONDENTS EXHIBITS:** - **EXT.R6(A): COPY OF REPLY ISSUED TO THE 6TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT, DATED 09.07.2011.** - **EXT.R6(B): COPY OF ORDER NO. 9454/H1/09/G.EDN. DATED 11.11.2009.** - **EXT.R6(C): COPY OF THE CERTIFICATE DATED 25.6.2011 ISSUED BY 9TH RESPONDENT.** ## **/TRUE COPY/** **P.A.TO JUDGE** **AS** ## **P.N.RAVINDRAN, J.** ---------------------------------------------WP (C) No. 18481of 2011 ----------------------------------------------Dated this the 20[th] day of December, 2011 ## JUDGMENT The petitioners are members of the fourth respondent cooperative society. They are also members of the Managing Committee of the second respondent society which was constituted in the elections held on 11.1.2009. The seventh respondent herein was the President of the Managing Committee of the fourth respondent society. He was removed from office pursuant to a non-confidence motion passed against him on 27.6.2011. It is stated that the seventh respondent prevailed upon the Joint Registrar of Cooperative Societies (General), Thiruvananthapuram to take steps to disqualify the petitioners and thereupon Ext.P4 notice dated 24.6.2011 was issued calling upon the petitioners and other members of the Managing Committee of the fourth respondent society to show cause why they should not be disqualified under rule 44 (1) (c) (i) of the Kerala Co-operative Societies Rules, 1969. The instant writ petition was thereupon filed on 7.7.2011 challenging Ext.P4 show cause notice and seeking the following reliefs. - (i) call for the records leading to Ext.P4 and quash the same by issuing a writ of certiorari, any other writ, WP(C)No. 18481 of 2011 -2- order or direction; - (ii) issue a writ or mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3 not to appoint any Administrator/Administrative Committee in the place of the elected Committee; - (iii) issue a writ of mandamus or any other appropriate writ order or direction commanding the 3[rd] respondent to consider all the complaints raised by the petitioners, verify all the relevant documents and also afford an opportunity of hearing to the petitioners before taking any decision pursuant ot Ext.P4 notice. The main contention raised in the writ petition is that the petitioners are not in default either as borrowers or guarantors and they are not in any way disqualified. 2. In Ext.P4 showcase notice which is impugned in the writ petition it is stated that the second petitioner was continuously absent in the meetings of the Managing Committee held on 2.4.2011, 30.4.2011, 18.5.2011, 21.5.2011, 4.6.2011 and 11.6.2011 and is therefore disqualified under the bye laws of the fourth respondent society. In my opinion, the question whether the second petitioner was absent without reasonable cause and consequently he is WP(C)No. 18481 of 2011 -3- disqualified under the provisions of the bye laws of the society is a matter which requires an enquiry and therefore, it will be premature for this Court to pronounce finally upon the validity of the show cause notice in so far as it relates to the second petitioner. It is for the second petitioner to reply to the show cause notice and explain if he was absent on the five days referred to above, the reason why he was not present in the said meetings or if he was present to state and prove before the respondent that he was present. The question whether he had in fact received notice of the meeting of the Managing Committee that was held as alleged on the said dates will also have to be gone into. I therefore find no grounds to interfere with Ext.P4, in so far as it relates to the second petitioner. 3. As regards the first petitioner the only ground raised in Ext.P4 notice (paragraphs 3 and 5 thereof) is that he is surety to a loan availed by Sri.Rajendran Nair, member No.2517, and is thereby in default. The showcase notice however does not state whether a notice had been issued to the first petitioner, who was surety to Sri.Rajendran Nair either before or after the elections were held. However, the stand taken in the counter affidavit filed on behalf of the third respondent is that notice was given to the first petitioner on 24.6.2006 and on 25.10.2008 intimating him of default on the part of WP(C)No. 18481 of 2011 -4- the principal debtor in making repayment. The third respondent has also produced a copy of the MDS register and the notice register as Ext.R3(a) in support of the said contention. Additional respondents 6 and 7 have also filed a counter affidavit contending that if the originals of the MDS register and the notice register are produced it can be seen that notice was served on the first petitioner consequent on the default committed by the principal debtor to repay the loan. 4. Pursuant to the directions issued by this Court, the originals of the MDS register and notice register were made available. The MDS register discloses that the first petitioner was surety to a loan availed by Sri.Rajendran Nair, member No2571. The loan was sanctioned on 24.6.2006. Apart from stating that the first petitioner was in default as surety to the loan availed by Sri.Rajendran Nair, the respondents have no case in Ext.P5 show cause notice that he is in default to the society as the principal debtor. The original of Ext.R3(a) notice register discloses that on 25.10.2008, the sum of Rs.20/- was expended to sent notices to eight persons namely Sri.Rajendran Nair, Vijaya Kumar, Chandrasekharan Nair, Preethy Mahesh, Bhaskaran Nair, Vikraman Nair, V.Thampi and V.R.Praveen. It is evident from the entry regarding the expenditure incurred for sending notices to 8 persons that the notices were not send under registered post. This Court can WP(C)No. 18481 of 2011 -5- take judicial notice of the fact in the year 2008 registered notices could not have been sent to 8 individuals at a total expense of Rs.20/-. Therefore it can be safely concluded that no registered notice was issued to the first petitioner on 25.10.2008 as contended by the respondents. Though it is stated that on 24.6.2006 a registered notice was sent to the first petitioner, from the very fact that the loan itself was sanctioned only 24.6.2006 it can be safely held that there was no default on 24.6.2006. It is thus evident from the materials on record that no notice had been issued to the first petitioner at any point of time till the impugned show cause notice was issued calling upon him in his capacity as surety to the loan availed by Sri.Rajendran Nair to repay the loan. It cannot therefore be held that the first petitioner was in default to the fourth respondent society as on the date of issuance of Ext.P4 notice. The view that I have taken finds support in the decision of a learned Single Judge of this Court in **Salim v.Joint Registrar** 1998 (2) KLT 665 wherein this Court held that the disqualification under rule 44 (1) c (i) will accrue only after the expiry of one month from the date of receipt by the member concerned of a notice from the society and that such a notice has to be sent by registered post. The learned Special Government Pleader however contended relying on the decisions of the Apex Court in **State** WP(C)No. 18481 of 2011 -6- **of Uttarpradesh v. Shri Brahm Datt Sharma and another** (AIR 1987 SC 943) and **Anil Bhai M Pattel and Other v. Suryapur Bank** **Agent DBH Samity and other** (2007 (4) SCC 83) that when a show cause notice is issued under a statutory provision calling upon the person to whom the notice is issued to show cause why he should not be proceeded against, the Court should be reluctant to interfere unless the notice is seen to have been issued palpably without any authority of law. The learned Special Government Pleader contended that the purpose of issuing the show cause notice is to afford the person concerned an opportunity of hearing and once cause is shown the officer can consider the matter in the light of the facts placed before him and therefore interference by this Court at this stage will be premature. In my opinion the very decisions relied on by the learned Government Pleader himself justify the view that I have taken. The Apex Court has in **State of Uttarpradesh v. Shri Brahm Datt Sharma and another** (supra) held that the Court should be reluctant to interfere unless the notice is seen to have been issued palpably without any authority of law. It is evident from Ext.P4 show cause notice itself that the respondents have no case that the petitioner is liable other wise than as a surety. The respondents have no case that though a notice was sent to him by registered post consequent on the WP(C)No. 18481 of 2011 -7- default committed by principal debtor to repay the loan he did not repay the loan and therefore he is in default. Proceedings under rule 44 (1) (c) (i) can be initiated against a member of the Managing Committee of a co-operative society only if there is material before the Joint Registrar of Co-operative Societies to prima facie establish that the person to whom the show cause notice is issued is in default. In the instant case, a mere reading of Ext.P4 show cause notice would show that there is no tentative finding therein that first petitioner failed to repay the loan availed by principal debtor after receipt of a registered notice from the society and is therefore in default. In my opinion, the jurisdictional factors required to be established before initiating action under rule 44 (1) (c) (i) are significantly absent at least as regards the first petitioner. I accordingly overrule the objection raised by the learned Special Government Pleader and hold that challenge to Ext.P4 cannot be thrown out on the ground that it is only a show cause notice. I accordingly allow the writ petition and quash Ext.P4 to the extent it relates to the first petitioner. Needless to say it will be open to the respondents to proceed against the other persons to whom the notice has been issued after affording them an opportunity of being heard. The third respondent shall afford the second petitioner two WP(C)No. 18481 of 2011 -8- weeks time from today to file objections to Ext.P4 show cause notice. If the other persons on whom Ext.P4 notice has been served have not filed their objections till date, the Joint Registrar of Co-operative Societies shall afford them also two weeks time from today to file their objections. The Joint Registrar of Co-operative Societies shall thereafter hear the second petitioner and others concerned and take an appropriate decision thereon in accordance with law. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc //true copy// PA to Judge.