Latha C vs Department Of Space Employees ...
2021 Latest Caselaw 857 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                       WP(C).No.16744 OF 2020(P)


PETITIONER/S:

                LATHA C.,
                AGED 49 YEARS,
                W/O. SALIM , TC 19/1284, METHOTTUKUZHY VEEDU,
                POOJAPPURA, KUNJUMMOODU, KARAMANA P.O.
                THIRUVANANTHAPURAM 695 002. WORKING AS PERSONAL
                SECRETARY, CLSG/CMS, VSSC, ISRO P.O.,
                TRIVANDRUM 695 022.

                BY ADVS.
                SRI.K.SHAJ
                SRI.C.IJLAL
                SMT.UMMUL FIDA

RESPONDENT/S:

      1         DEPARTMENT OF SPACE EMPLOYEES HOUSING COOPERATIVE
                SOCIETY LTD.NO.T.766,
                VRC, VSSC, ISRO P.O., TRIVANDRUM 695 022, REPRESENTED
                BY ITS SECRETARY.

      2         SECRETARY,
                DEPARTMENT OF SPACE EMPLOYEES HOUSING COOPERATIVE
                SOCIETY LTD. NO. T. 766, VRC, VSSC, ISRO P.O.,
                TRIVANDRUM 695 022.

      3         PRESIDENT,
                DEPARTMENT OF SPACE EMPLOYEES HOUSING COOPERATIVE
                SOCIETY LTD. NO. T. 766, VRC, VSSC, ISRO P.O.
                TRIVANDRUM 695 022.

                R1 TO R3 BY ADVS. SRI.P.SUBAIR KUNJU
                                  SRI.N.ANAND


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16744 OF 2020                  2




                                    JUDGMENT

The petitioner is an employee of the Vikram Sarabhai Space Centre,

Thiruvananthapuram. The 1st respondent is the Department of Space Employees

Housing Co-operative Society Ltd., a Society registered under the Kerala Co-

operative Societies Act, 1969 and the rules framed thereunder. The petitioner is

stated to have availed a loan of Rs.15 lakhs from the 1st respondent Society and

four of her co-workers stood as guarantors. The guarantors are not parties to this

writ petition. The petitioner states that her husband fell seriously ill and this

resulted in her committing default in payment of the instalments. It is contended

that the 2nd respondent took steps to realize the amount due to the society from

the petitioner as well as the guarantors. Being aggrieved, the petitioner is stated

to have filed a representation before the Joint Registrar of Co-operative Societies.

The Registrar is stated to have passed Ext.P6 order directing the petitioner to issue

a consent letter in favour of the 1st respondent giving her consent to remit the

amount from her pension benefits and also for recovering the amount from the

salary of the petitioner. She states that in accordance with the orders passed by

the Registrar, the petitioner submitted Ext.P7 representation before the 2nd

respondent. However, the 2nd respondent attached the salaries of guarantors in

blatant violation of Ext.P6 order. It is in the afore circumstances that the petitioner

has approached this Court seeking to quash Ext.P2 order ordering attachment of

the salary of the petitioner and her guarantors and also for a further direction to

the respondents to refrain from realizing the pending dues from the salaries of the

guarantors and for incidental reliefs.

2. The respondents have filed a counter. It is contended that by virtue

of Section 128 of the Contract Act, the liability of the surety is co-extensive with

that of the principal debtor and hence, none of the prayers sought for by the

petitioner can be granted. It is stated that the aggrieved persons are not even

before this Court and hence, this petition itself is not maintainable. It is stated that

the outstanding amount as on 18.11.2020 is Rs.10,44,762/- and the overdue

amount is Rs.2,17,962/-.

3. I have considered the submissions advanced. Under Section 126 of

the Indian Contract Act, a contract of guarantee is a contract to perform the

promise or to discharge the liability of a third person if he defaults on his loan

payment. An enforceable guarantee presupposes a jural relationship between the

creditor, the principal debtor and the surety. Section 128 of the Act makes the

surety's liability coextensive. As the surety's liability is joint and several, besides

being coextensive, the creditor can proceed against the guarantor without first

proceeding against the principal debtor. The only rider is that the liability of the

surety can never be greater than the liability of the principal debtor. In view of the

above, the contention of the petitioner that the respondent can never proceed

against the surety for realization of the dues cannot be accepted. Furthermore,

none of the sureties are before this Court raising any contention against the

recovery from their salaries.

4. At this stage, Smt. Ummul Fida, the learned counsel appearing for the

petitioner, submitted that the salary of the petitioner has been raised to Rs.

1,16,590/- per month from August, 2020 and she would be able to clear off the

dues if an opportunity is granted. Notwithstanding the contentions taken by her in

this writ petition, it is prayed that the petitioner be permitted to clear the overdue

amount which comes to about Rs.2 lakhs in 10 equal monthly instalments. The

learned counsel also submits that the instalment shall be paid in addition to the

regular EMIs which she is bound to pay. If the petitioner is able to pay the amount

as aforesaid, the realisation of amounts from her sureties be kept in abeyance.

5. Sri. Anand, the learned standing counsel appearing for the

respondents, has opposed the grant of 10 instalments. He submits that indulgence

can be granted to the petitioner provided the outstanding dues are cleared along

with the regular dues in five equal instalments.

6. Having considered the entire aspects and the submissions advanced,

I find that the overdue amount as on date is about Rs. 2 lakhs. Records reveal

that the husband of the petitioner is suffering from head and neck cancer and is

undergoing treatment. The petitioner is due to retire only in 2026. In that view of

the matter, I am of the considered opinion that the petitioner can be granted an

opportunity to clear the arrears.

Resultantly, this writ petition is disposed of directing the respondents to

grant the petitioner an opportunity to clear the overdue amount in ten equal

instalments, the first of which shall be payable on 15.2.2021. The petitioner shall

pay the regular EMIs simultaneously. If payment as aforesaid is made regularly, the

respondents shall not realize any amount from the salaries of the guarantors.

However, if the petitioner commits two successive defaults, the benefit granted to

the petitioner will stand withdrawn and the respondents may reinitiate the recovery

proceedings and realize the amount from the petitioner as well as her sureties.

This petition is disposed of.

SD/-

RAJA VIJAYARAGHAVAN V

JUDGE sru

APPENDIX PETITIONER'S/S EXHIBITS:

 EXHIBIT P1              A TRUE COPY OF THE PAY SLIP OF THE
                         PETITIONER FOR THE MONTH OF JUNE, 2020
                         ISSUED BY HER EMPLOYER.

 EXHIBIT P2              A TRUE COPY OF THE ORDER PASSED BY THE
                         RESPONDENTS TO RECOVER THE DUES BY SALARY
                         ATTACHMENT ORDER AGAINST THE PETITIONER
                         AND GUARANTORS.

 EXHIBIT P3              A TRUE COPY OF THE SALARY SLIP FOR THE
                         MONTH OF JUNE, 2020 OF A GUARANTOR OF THE
                         PETITIONER, ABLE C. KURIAN.

 EXHIBIT P4              A TRUE COPY OF THE SALARY SLIP FOR THE
                         MONTH OF JUNE, 2020 OF A GUARANTOR OF THE
                         PETITIONER ANTONY NEETHI MANICKAM.

 EXHIBIT P5              A TRUE COPY OF THE PETITION FILED BY THE
                         PETITIONER BEFORE THE JOINT REGISTRAR OF
                         THE COOPERATIVE SOCIETIES (GENERAL),
                         THIRUVANANTHAPURAM.

 EXHIBIT P6              TRUE COPY OF THE ORDER DATED 15/06/2020
                         PASSED BY THE JOINT REGISTRAR OF THE
                         COOPERATIVE SOCIETIES (GENERAL),
                         THIRUVANANTHAPURAM.

 EXHIBIT P7              A TRUE COPY OF THE CONSENT LETTER DATED
                         23/06/2020 ISSUED BY THE PETITIONER TO
                         THE FIRST RESPONDENT.


 RESPONDENT'S/S EXHIBITS:

 EXHIBIT R2(a)       TRUE COPY OF THE STATEMENT OF ACCOUNT
                     DATED 18.11.2020.



                                    //TRUE COPY//     P.A.TO JUDGE