Mohammed Rafeeque C.P vs Thennala Service Co-Operative ...
2022 Latest Caselaw 11667 Ker

WP(C) NO. 17877 OF 2012             1



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
                          WP(C) NO. 17877 OF 2012
PETITIONER/S:

               MOHAMMED RAFEEQUE C.P.
               AGED 37 YEARS
               S/O.HAMEED.C.P., CHELLAPPADATH HOUSE, TANUR.P.O.,
               MALAPPURAM DISTRICT.

               BY ADV SRI.AVM.SALAHUDIN



RESPONDENT/S:

      1        THENNALA SERVICE CO-OPERATIVE BANK LTD.
               P.O.VALAKKULAM, MALAPPURAM DISTRICT.676508

      2        THE PRINCIPAL
               B.Y.K.V.H.S.S., VALAVANNUR.P.O., MALAPPURAM
               DISTRICT.676551

      3        MOHAMMED SAHEER.P.
               S/O.MOHAMMED, POKKAT HOUSE, EDARIKKODE.P.O.,
               MALAPPURAM DISTRICT.676501

               BY ADVS.
               SRI.K.M.FIROZ - R1
               SMT.M.SHAJNA




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17877 OF 2012                 2




                       P.V.KUNHIKRISHNAN, J
                   ---------------------------------------
                     W.P.(C) No. 17877 of 2012
                    --------------------------------------
             Dated this the 20th day of December, 2022


                                 JUDGMENT

The above writ petition is filed with following prayers :

     (i)     "To set aside Exhibit P1
     (ii)    To declare that Exhibit P1 is illegal, arbitrary and opposed
     to the principles of natural justice.

(iii) To grant such other and further reliefs as are warranted by the circumstances of this case and deemed proper in the interest of justice." [SIC]

2. The petitioner is a Lab Assistant in BYKVHS School at

Valavannur, Malappuram. He stood as a surety in a loan availed

by the 3rd respondent from the 1st respondent-Society. Apart

from the petitioner, one Abdul Salam was also another surety.

He is no more. When the 3rd respondent failed to repay the loan

amount, the 1st respondent directed the 2nd respondent to

recover an amount of Rs.7,500/- per month from the salary of

the petitioner as per Ext.P1. The petitioner challenged the same.

Challenging Ext.P1, this writ petition is filed.

3. Heard the learned counsel for the petitioner and the

respondent.

4. Admittedly, the petitioner is a surety in the loan

transaction. The liability of the petitioner and the principal

debtor is same. The grievance of the petitioner is that without

taking steps against the principal debtor-3 rd respondent, the 1st

respondent is proceeding against the petitioner. That is the

discretion of the 1st respondent-Society. But in the interest of

justice, there can be a direction to the 1 st respondent to proceed

against the 3rd respondent also simultaneously. This Court

cannot find fault with the 1st respondent for issuing Ext.P1.

Therefore, there can be a direction to the 1st respondent to

proceed against the 3rd respondent also simultaneously. I also

make it clear that if any amount is recovered from the

petitioner, the petitioner is free to take appropriate steps

against the 3rd respondent to recover the same.

Therefore, this writ petition is disposed of with the

following directions :

1) The 1st respondent while taking action against the

petitioner to recover the amount will simultaneously take

action against the 3rd respondent also.

2) If any amount is recovered from the salary of the

petitioner, the petitioner is free to proceed against the 3 rd

respondent to recover the same by resorting appropriate

steps in accordance to law.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX

PETITIONER'S EXHIBITS :

EXT.P1        TRUE COPY OF THE INTIMATION DATED 23.7.2012 SENT BY

THE 1ST RESPONDENT TO 2ND RESPONDENT

EXT.P2        SALARY CERTIFICATE DATED 31.7.2012 ISSUED BY PRINCIPAL

BYKVHSS VALAVANNUR MALAPPURAM



RESPONDENT'S EXHIBITS       :

Exhibit R1(a)- A true        copy of the application along      with
agreement executed by        the principal debtor together      with
sureties

Exhibit R1(b) True copy of the certificate - and copy of the agreement executed by the writ petitioner counter signed by the Second respondent

Exhibit R1(c) True copy of the award in Claim No. 1012/11 passed under Section 70 of 1 the Kerala Co-operative Societies Act,

Exhibit R1(d) True copy of the summons issued in claim No. 1012/2011 together with endorsements made evidencing receipt of summons on the writ petitioner

Exhibit R1(4) True copy of the notice issued to the 2nd respondent by the Secretary of 1st respondent dated 9.4.2012