Vijayan V.K vs Ernakulam District Co-Operative ...
2022 Latest Caselaw 885 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                             &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
  FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
                     WA NO. 26 OF 2022
AGAINST THE JUDGMENT IN WP(C) 14200/2021 OF HIGH COURT OF
                          KERALA
APPELLANT/3RD RESPONDENTS IN W.P.(C):

          VIJAYAN V.K.
          AGED 54 YEARS
          SECRETARY (IN CHARGE), GOVERNMENT SERVANTS CO-
          OPERATIVE SOCIETY LTD. NO.146, MUVATTUPUZHA -
          686 661.
          BY ADVS.
          C.ANIL KUMAR
          A.K.PREETHA
RESPONDENTS/PETITIONER & RESPONDENTS 1 &2 IN W.P.(C):

    1     ERNAKULAM DISTRICT CO-OPERATIVE EMPLOYEES'
          HOUSING SOCIETY LTD. NO.E933, REPRESENTED BY ITS
          SECRETARY, SITARAM COMPLEX, 1ST FLOOR, CHITTOOR
          ROAD, KACHERIPADY, KOCHI 682018.
    2     THE JOINT REGISTRAR (GENERAL)
          OFFICE OF THE CO-OPERATIVE JOINT REGISTRAR,
          KAKKANAD, ERNAKULAM - 682 030.
    3     THE PRESIDENT
          GOVERNMENT SERVANTS CO-OPERATIVE SOCIETY
          LTD.NO.146, MUVATTUPUZHA - 686 661.
          BY ADV.JAMES ABRAHAM,
          V.K.SUNIL, SR.GOVERNMENT PLEADER

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Writ Appeal No.26 of 2022             2




             P.B.SURESH KUMAR & C.S.SUDHA, JJ.
              -----------------------------------------------
                   Writ Appeal No.26 of 2022
              -----------------------------------------------
           Dated this the 21st day of January, 2022


                              JUDGMENT

P.B.Suresh Kumar, J.

This writ appeal is directed against the judgment

dated 5.10.2021 in W.P.(C) No.14200 of 2021. The appellant

was the third respondent in the writ petition.

2. The appellant has availed three term loans

from the first respondent Co-operative Society, among others,

on the undertaking of the third respondent who is the salary

disbursing officer of the appellant, that the amounts due in

respect of the loans would be recovered from the salary of the

appellant. The appellant has committed default in paying the

instalments of the loans and the third respondent has not

effected recovery despite the requests made by the first

respondent. The first respondent, in the circumstances,

requested the second respondent to issue appropriate

directions to the third respondent to effect recoveries from the

salary of the appellant as undertook by him. Since there was no

action on the said request, the writ petition was filed seeking

directions to the second respondent to direct the third

respondent to effect recoveries from the salary of the appellant

as undertook by him.

3. Having regard to the fact that the appellant is

due to retire from service on 31.01.2023, the learned Single

Judge disposed of the writ petition directing the third

respondent to effect recovery from the salary of the appellant

at the rate of Rs.21,500/- per month for the first respondent. It

was made clear in the judgment that the same will not preclude

the appellant from settling the liability otherwise with the first

respondent. The appellant is aggrieved by the said decision of

the learned Single Judge.

4. Heard the learned counsel for the appellant.

5. The learned counsel for the appellant did not

dispute the liability of the appellant. According to the learned

counsel, pending disposal of the writ petition, the appellant has

remitted a sum of Rs.20,000/- on 04.10.2021 and in the light of

the said payment, it was unnecessary for the learned Single

Judge to order recovery at the rate of Rs.21,500/- per month. It

was also contended by the learned counsel that the writ

petition is not maintainable.

6. There is no dispute to the fact that the

appellant has not paid the instalments of the loans as agreed.

In the circumstances, the mere fact that the learned Single

Judge has not taken note of the one time payment stated to

have been effected by the appellant is not a ground to interfere

with the direction of the learned Single Judge to deduct the

salary at rate of Rs.21,500/- per month, for there cannot be any

deduction once the liability is over and if at all there is any

attempt to deduct more amount than what is due for liquidating

the liability, the appellant would be free to bring the said fact to

the notice of the third respondent. Coming to the contention

raised by the learned counsel for the appellant as to the

maintainability of the writ petition, it is seen that the appellant

has not raised such a contention in the writ petition. Having not

raised the contention of maintainability in the writ petition,

according to us, the appellant cannot be heard to contend for

the first time in the appeal that the writ petition is not

maintainable, especially on the facts of this case where the

learned Single Judge has granted only an equitable relief to the

first respondent, the petitioner in the writ petition.

The writ appeal, in the circumstances, is devoid of

merits and the same is, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

YKB