MADANAMOHANAN KARTHA Vs. ELAMKULAM SERVICE CO OP BANK

JUDGEMENT

(1.) The petitioner in O.P. No. 6581 of 1982 is the appellant. The 1st respondent is the Elamkulam Service Cooperative Service Bank Ltd., and the 2nd respondent, the Joint Registrar of Cooperative Societies, Kottayam. The Original Petition was filed challenging the order of the 2nd respondent Ext. P8 dated 29-10-1982 declaring that the petitioner had ceased to be a member of the Board of Directors of the 1st respondent Society with effect from 5-10-1980 under R.44(1)(c)(i) read with R.44(2)(a) of the Kerala Cooperative Societies Rules, 1969. The Original Petition was dismissed in limine. Hence this appeal.

(2.) Shorn of the unnecessary details, the facts necessary for disposal of this appeal are as hereunder. The petitioner was elected to the Board of the 1st respondent in June 1980. He assumed office on 1-7- 1980. He had stood a surety in respect of a chitty subscribed by one P. M. Mathew. The amount payable to the 1st respondent Society under the surety bond had to be paid on or before 4-10-1980 including the three months grace period. The amount was in default and was paid only on 23-12-1981. This led to Ext. P4 notice from the 1st respondent calling upon the appellant to show cause why the declaration that he had ceased to be a member of the Board should not be made. Ultimately, Ext. P8 order was passed declaring that the appellant had ceased to be member of the Board with effect from 5-10-1980. It is this order that was challenged before the learned Judge.

(3.) From Ext. P8 it is clear that the declaration was made under R.44(1)(c) read with R.44(2). The challenge against Ext. P8 stated in the Original Petition and repeated before us is as follows: R.44(1) deals with disqualification of a member from being elected. R.44(1)(c) deals with the default that such a member commits to the society or any other society in respect of any loan or loans taken by him or loan in which he has stood surety or such member being sentenced for any offence other than an offence of a political character etc. The petitioner's counsel submits that he does not come within the mischief of the disqualification mentioned in this rule. According to him, he does not come within the mischief of R.44(2)(a) either because disqualification under sub-r.(1) does not attach itself to him. In other words, the contention raised by the appellant's counsel is that R.44(2)(a) cannot be pressed into service to disqualify his election since there was no disqualification attached to him when he was elected. It is this disqualification that is mentioned in R.44(2)(a). He further submits that neither clause (b) nor clause (c) of R.44(2) applies to him. According to him, by the time Ext. P8 order was passed P.M. Mathew had paid the amount (that is on 23-12-1981), and as such when proceedings were taken there was no default so far as he was concerned. Even before Ext. P4 show cause notice was issued the principal debtor had paid the amount and as such R.44(2)(a) cannot be pressed into service to disqualify him. For this contention he strongly relies upon a Division Bench decision of this Court in Thomman v. State of Kerala ( 1978 KLJ 987 ).