The Adhyapaka Co-Operative Bank Ltd. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943** **WP(C) NO. 5651 OF 2021** ## **PETITIONER:** THE ADHYAPAKA CO-OPERATIVE BANK LTD.NO.A-300 PUTHUSSERY.P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT,PIN-689602. REPRESENTED BY ITS SECRETARY. BY ADVS. M.M.MONAYE SHRI.M.PAUL VARGHESE SMT.NIRMALA P.V. ## **RESPONDENTS:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY SECRETARY TO GENERAL EDUCATION,EDUCATION| ||DEPARTMENT,THIRUVANANTHAPURAM-695001.| |2|DIRECTORATE OF GENERAL EDUCATION,| ||THIRUVANANTHAPURAM-695014.| |3|ACCOUNTANT GENERAL OF KERALA,| ||OFFICE OF THE ACCOUNTANT GENERAL OF| ||KERALA,THIRUVANANTHAPURAM-695001.| |4|DEPUTY DIRECTOR OF EDUCATION,| ||EDUCATION DEPARTMENT,KOTTAYAM DISTRICT,KOTTAYAM-686001.| |5|DISTRICT EDUCATION OFFICER,| ||OFFICE OF THE DEO,NSS BUILDING,| ||KOTTAYAM-686001.| |6|DIRECTOR,DIRECTORATE OF TREASURIES,| ||GOVERNMENT OF KERALA,| ||THIRUVANANTHAPURAM-695014.| |7|TREASURY OFFICER,SUB TREASURY,| ||MAVELIKKARA.P.O, ALAPPUZHA DISTRICT-690101.| |8|TREASURY OFFICER,| ||SUB TREASURY,KOTTAYAM.P.O,| ||KOTTAYAM DISTRICT-686001.| **WP(C) NO. 5651 OF 2021 -2-** 9 THE HEAD MASTER, CMS HIGHER SECONDARY SCHOOL, PALLAM.P.O, KOTTAYAM DISTRICT, PIN-686007. 10 MATHEW K PHILIP, S/O PHILIPOSE.K.P,MOUNT VILLA', EAST OF RAILWAY STATION,MAVELIKKARA.P.O, ALAPPUZHA DISTRICT-690101. 11 RAJESHKUMAR.D, S/O DASAPPAN PILLAI,VADASSERILPUTHENVEEDU, MUTHUKULAM,KARTHIKAPPALLY, ALAPPUZHA DISTRICT,PIN-690506. 12 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,KOTTAYAM DISTRICT-686001. BY ADVS. BY SMT.MABLE C. KURIAN, SENIOR GOVERNMENT PLEADER SRI.ABRAHAM GEORGE JACOB SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.A.R.DILEEP SHRI.AKSHAY R SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) No.5651 of 2021** **= = = = = = = = = = = = = = = = = = Dated this the 11[th] day of November, 2021** ## **J U D G M E N T** The petitioner is an employees’ co-operative society. The 10[th] respondent is an employee under the 9[th] respondent. The 10[th] respondent availed a loan from the petitioner Society. At the time of availing the loan, he executed a consent deed (Ext.P2), agreeing to have the loan amount recovered from his salary. He along with the 11[th] respondent and another guarantor Dileep Kumar, executed Ext.P3 guarantee deed whereunder it was agreed to have the loan amount cleared off from their retirement benefits. 2. On the retirement of the 10[th] respondent, since the loan amount was outstanding, Exts.P4 and P5 requests were made by the petitioner Society to the 9[th] and 4[th] respondents respectively, seeking recovery from his retirement benefits. To the said request, the 4[th] respondent replied vide Ext.P6 communication to the effect that, in terms of Clause-7 Part III of the ## **W. P. (C) No.5651 of 2021** **==> picture [34 x 10] intentionally omitted <==** Government Order dated 04.05.2019 (Ext.P7), recovery from the retirement benefits could be effected only if a consent for recovery is given 'at the time of retirement'. It is aggrieved thereby, the petitioner is before this Court. 3. Heard Sri.M.M.Monaye, learned counsel for the petitioner, Sri.Abraham George Jacob, the learned counsel for the 9[th] respondent, Sri.George Varghese, learned counsel for the 10[th] respondent, and Smt.Mable C. Kurian, learned Senior Government Pleader. 4. Ruling No.1 of Rule 3 of Part III KSR reads thus:- “Amounts due from a Government employee or pensioner to Government Companies, Local Bodies, Cooperative Societies, etc., though not treated as Government dues may be recovered from the death-cum-retirement gratuity payable to him with his consent in writing.” 5. The right to have the amounts due to a Co- operative Society recovered from the retirement **W. P. (C) No.5651 of 2021** -: 3 :- benefits, on a written consent having been given at the time of availing of loan has been upheld by this Court in _**Surendran v. Mavelikkara Primary Co-operative Agricultural and Rural Development Bank Ltd. [2005 (4) KLT 619],**_ in _**Manni v. Divisional Forest Officer [2008 (4) KLT 955]**_ and in _**K.Velukkutty and another v. KSRTC and Others [judgment dated 22.10.2013 in WPC 3487/2010].**_ In _**Manni's**_ case this Court held that, the execution of a security bond containing a consent for recovery from the retirement benefits would also amount to a consent under Ruling 1 to Rule 3 of Part III KSR. It was further held that, such consent need not always be in favour of the Department and that consent given to the creditor is sufficient compliance of Ruling 1 of Rule 3 Part III of KSR. 6. The loan in question was availed on 21.03.2012. Ext.P7 Government Order was issued only on 04.05.2019. It cannot any rate be made to apply for loans sanctioned prior to that. Therefore, I do not think that the challenge against the validity of clause-7 in Part III **W. P. (C) No.5651 of 2021** -: 4 :- in Ext.P7 Government Order, which insist for consent to be obtained at the time of retirement, need be gone into in the present case. Hence, notwithstanding Ext.P7, the amounts due to the petitioner Society is liable to be recovered in terms of Ext.P3 consent. 7. The 10[th] respondent-borrower urged various contentions before this Court; the quantum of loan is disputed, which according to him is only Rs.2 lakhs while the petitioner claims it to be Rs.3.5 lakhs. Drawing my attention to Exts.P2 and P3, the learned counsel contends that there is overwriting in the figures. On a bare glance at the documents, I am not convinced of the contention. Moreover, the amount has been written in words also. Here it is to be noticed that, Ext.P11 is an award obtained by the petitioner against the 10[th] respondent with regard to the loan transaction. In view of Ext.P11 it is not open for the 10[th] respondent to raise a further dispute regarding the quantum before this Court. The learned counsel for the **W. P. (C) No.5651 of 2021** -: 5 :- petitioner drew my attention to Ext.P10 report by the Assistant Registrar, prepared in an inquiry made on the complaint by the 10[th] respondent on the very same contention. In Ext.P10 report it has been stated that, the amount of Rs.3,50,000/- was credited in the Savings Bank Account of the 10[th] respondent and the same was withdrawn by him using a withdrawal slip on 21.03.2012. Suffice to notice that, the dispute on the quantum is not available to the 10[th] respondent at this stage and in this proceedings. 8. It is next contended that, Ext.P3 is only a guarantee obtained and not a written consent as required under Ruling No.1 of Rule 3 of Part III KSR. The said issue has already been settled by this Court in _Manni’s_ case referred to supra. The further contention that in view of the award passed, the only remedy available to the petitioner is to execute the award and not to fall upon Ext.P3, has no substance. There is no estoppel or election of remedies. The rights under Ext.P3 is not **W. P. (C) No.5651 of 2021** -: 6 :- lost merely because an award has been obtained. _**(See Trivandrum Co-operative Agricultural Rural Development Bank v. State of Kerala [2004 (2) KLJ 85])**_ . Accordingly, it is declared that the petitioner is entitled to have the recovery effected in terms of Ext.P3 consent deed, and respondents 4 and 9 are directed to effect recovery in terms thereof for payment to the petitioner. Writ petition disposed of. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 5651/2021** ## PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE LOAN APPLICATION DATED| |---|---| ||10.02.2012 SUBMITTED BY MATHEW .K.PHILIP| |EXHIBIT P2|TRUE COPY OF THE EMPLOYMENT CERTIFICATE,WITH| ||A CONSENT OF RECOVERY,DATED 10.02.2012| |EXHIBIT P3|TRUE COPY OF THE CONSENT DATED 21.03.2012| ||EXECUTED BY 10TH RESPONDENT AND SURETIES| |EXHIBIT P4|TRUE COPY OF THE NOTICE SENT BY THE| ||PETITIONER DATED 09.10.2018| |EXHIBIT P5|TRUE COPY OF THE NOTICE SENT BY THE| ||PETITIONER DATED 13.05.2019 TO DEPUTY| ||DIRECTOR OF EDUCATION| |EXHIBIT P6|TRUE COPY OF THE LETTER DATED 12.02.2021 OF| ||THE 4TH RESPONDENT| |EXHIBIT P7|TRUE COPY OF THE G.O.(FIN)55/2019 DATED| ||04.05.2019| |EXHIBIT P8|TRUE<br>COPY<br>OF<br>THE<br>JUDGMENT<br>IN| ||WP(C)NO.2880/2018 DATED 01.07.2019| |Exhibit P9|A TRUE COPY OF THE LETTER OF THE PETITIONER| ||SOCIETY DATED 21.01.2020.| |Exhibit P10|A TRUE COPY OF THE REPORT OF THE UNIT| ||INSPECTOR<br>OF<br>CO-OPERATIVE<br>SOCIETIES,| ||MALLAPPALLY DATED 29.06.2020.| |Exhibit P11|A TRUE COPY OF THE AWARD IN ARC 6/2021 DATED| ||27.03.2021.| -----