[Cites 11, Cited by 0]
Kerala High Court
Dr Binu Harriet Ivan vs State Of Kerala on 22 January, 2026
2026:KER:5318
WP(C) NO. 19117 OF 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 22ND DAY OF JANUARY 2026 / 2ND MAGHA, 1947
WP(C) NO. 19117 OF 2024
PETITIONER/S:
DR BINU HARRIET IVAN, AGED 54 YEARS
D/O.LATE S.IVAN, RESIDING AT: 'SURABHI', T C 18/886,
KUNNAPUZHA, THIRUVANANTHAPURAM-
(WORKING AS : ASSISTANT DIRECTOR, FARM INFORMATION
BUREAU, KOWDIAR P.O, THIRUVANANTHAPURAM), PIN - 695032
BY ADV SRI.A.S.SHAMMY RAJ
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATION, KERALA GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE JOINT REGISTRAR (GENERAL)
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, THYCAUD P.O,
THIRUVANANTHAPURAM, PIN - 695014
3 THE ASSISTANT REGISTRAR (GENERAL)
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, CO-OPERATIVE UNION BUILDING, STATUTE,
THIRUVANANTHAPURAM, PIN - 695001
4 GOVERNMENT EMPLOYEES CO-OPERATIVE SOCIETY LTD NO.43
PULIMOODU, THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY, PIN - 695011
5 THE SECRETARY
GOVERNMENT EMPLOYEES CO-OPERATIVE SOCIETY LTD NO.43,
PULIMOODU, THIRUVANANTHAPURAM, PIN - 695011
2026:KER:5318
WP(C) NO. 19117 OF 2024 2
6 THE PRINCIPAL INFORMATION OFFICER
FARM INFORMATION BUREAU, KOWDIAR P.O,
THIRUVANANTHAPURAM, PIN - 695003
7 BABU.K
WORKING AS : FIELD OFFICER, DISTRICT LIVESTOCK FARM,
KUDAPPANAKUNNU, THIRUVANANTHAPURAM
(RESIDING AT : KISALAYA, THOTTIN VADAKKU, CHAVARA P.O,
KOLLAM DISTRICT), PIN - 695043
8 SREEKALA.S
ANASWARAM, D.N.R.A-16A, DURGA NAGAR, PEROORKADA,
THIRUVANANTHAPURAM, PIN - 695005
BY ADVS.
GOVERNMENT PLEADER
SRI.GIGIMON ISSAC
SRI.K.SIJU
SHRI.TOBIAS TOGI MATHEW
SMT.ANJANA KANNATH
SMT. MARIYA JOSE
SMT. RESMI THOMAS (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) NO. 19117 OF 2024 3
JUDGMENT
The petitioner was one of the sureties for the loan
availed by the 7th respondent from the 4th respondent. The
petitioner is before this Court being aggrieved by the fact that
the 4th respondent-Society is proceeding against the petitioner
without taking any steps against the 7th respondent. It is also
the contention of the petitioner that if at all recovery can be
effected from the salary of the petitioner, the same will be
subject to the limits under Section 60 of the Code of Civil
Procedur, 1908. The petitioner further contends on the
strength of the judgment of this Court in James Varghese V.
State of Kerala and Others; 2012 (4) KHC 251 and the
judgment of the Supreme Court in Pawan Kumar Jain V.
Pradeshiya Industrial and Investment Corporation of
U.P.Ltd and Others; (2004) 6 SCC 758 , that the Society
could not have proceeded against the petitioner to the exclusion
of the 7th respondent-principal debtor. It is submitted that, in
James Varghese (supra), this Court had observed that, there
cannot be an unfair advantage to the principal debtor by the
Society not proceeding against the principal debtor and
proceeding only against the guarantor. It is submitted that, in
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Pawan Kumar Jain (supra), the Supreme Court has taken the
view that proceedings cannot be initiated against the property
of the guarantor unless the property of the principal debtor is
first sold out.
2. Learned counsel appearing for the 4th respondent-
Society submits that the first point taken by the petitioner is
covered against her by the judgment of this Court in
Sasidharan Nair V. Vs. Trivandrum Cooperative Urban
and Others 2009 (2) KLT 280. It is submitted that, this Court
in the aforesaid judgment has taken the view that where
proceedings are initiated in terms of the provisions contained in
Section 37 of the Kerala Co-operative Societies Act, 1969
(hereinafter referred to as 'the KCS Act'), the limits of
attachment or recovery with reference to the provisions of
Section 60 CPC are not applicable. It is submitted that the
judgment of the Supreme Court in Pawan Kumar Jain (supra)
was on an appreciation of the provisions of the U.P. Public
Moneys (Recovery of Dues) Act, 1972 and on the facts of that
case and the judgment cannot be said to be laying down any
absolute principle of law, which has to be followed by this
Court while deciding the above writ petition. It is submitted
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that the other judgment relied on by the learned counsel
appearing for the petitioner, which is James Varghese
(supra) categorically holds that the liability of the guarantor is
co-extensive with that of the principal debtor. On facts, it is
submitted that the 4th respondent-Society has initiated steps
against the 7th respondent also.
3. Having heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the 4 th
respondent -Society, I am of the view that the learned counsel
appearing for the 4th respondent -Society is right in contending
that the petitioner cannot be heard to contend that the limits of
attachment/recovery in terms of the provisions contained in
Section 60 of CPC are applicable when proceedings are initiated
against the petitioner under Section 37 of the KCS Act. The
very same question was considered by this Court in
Sasidharan Nair (supra), where this Court, following an
earlier judgment of this Court in TVM. Coop. A&R.D Bank
Ltd V. State of Kerala; ILR 2004 (3) Ker. 282 held as
follows:-
''6.That apart, what is authorized under Section
37 (1) is the competence of the employer of a debtor to
deduct from the salary or wages payable to the debtor, such
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amounts which may be required to be deducted on the basis
of an agreement that may be entered into by a society which
gives credit in favour of that debtor. Precisely, all that
Section 37(1) does is to recognize agreements between
cooperative societies and their debtors and to give further
statutory authority for the employer of any debtor who has
entered into an agreement which would fall within the scope
of Section 37(1), to make deduction from the salary acting
on the request of the creditor society on the basis of such
agreement.
7.The word "agreement" in Section 37(1) is
essentially an agreement which has to stand the test of law.
No vitiating element is pointed out in defeasance of the
agreement in question. All that is projected is as to whether
the existence of that agreement would be in violation of
Section 60 of the CPC and thereby Rule 77 of the KCS Rules.
This cannot be because, there is no law forbidding a person
from agreeing to pay amounts, which belong to him, to
another person, particularly to one to whom money is due.
Therefore, if one agrees that amounts due to him may be
paid to another in discharge of liabilities, such an agreement
does not fall within any of the vitiating elements referred to
in the provisions of the Indian Contract Act, 1872 or
elsewhere relating to contracts. Pausing for a movement on
Section 23 of the Contract Act, it can be easily ensured that
such a contract is not opposed to public policy. There could,
therefore, be no inhibition in its enforcement.
8.In the aforesaid view of the matter, the concepts
of "attachment" and "execution" are totally away from the
context of Section 37 of the KCS Act and when an
agreement is available to generate a demand in exercise of
that provision, necessary consequences have to follow. In
the absence of any limit being fixed in Section 37 of the KCS
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Act, as to the quantum of amount for deduction from the
salary of a particular person at a particular point of time,
there can be no such inhibition being read into such
statutory prescription. The challenge fails.
9.For the aforesaid reasons, I am also in complete
agreement with the law laid by this Court in Tvm. Co-op.
A.& R.D.Bank Ltd(supra).''
It is true that, in the judgment of this Court in James Varghese
(supra), this Court observed in Paragraph No.12 that there
cannot be an unfair advantage to the principal debtor by
proceeding only against the guarantors. However, the very
same judgment categorically holds that the liability of the
guarantor is co-extensive with that of the principal debtor. The
judgment of the Supreme Court in Pawan Kumar Jain (supra)
does not appear to lay down any binding precedent and the
directions issued in that case appear to proceed on the basis of
the provisions contained in U.P. Public Moneys (Recovery of
Dues) Act , 1972, and on the facts of the case.
4. Therefore, I find no grounds made out for
interference with the proceedings initiated against the
petitioner. However, in the facts and circumstances of the case
and to ensure that there is no undue advantage to the 7 th
respondent, it is directed that the 4 th respondent shall take
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earnest efforts to recover the amounts due to it from the 7 th
respondent also.
The writ petition is dismissed subject to the above
direction.
Sd/-
GOPINATH P.
JUDGE
ajt
2026:KER:5318
WP(C) NO. 19117 OF 2024 9
APPENDIX OF WP(C) NO. 19117 OF 2024
PETITIONER EXHIBITS
Exhibit P1 COPY OF AWARD DATED 31-12-2022 PASSED BY THE
ARBITRATOR IN ARC.NO.10112/22
Exhibit P2 COPY OF COMMUNICATION/ LETTER NO.TGECS/ DATED
02-02-2024 ISSUED BY THE 5TH RESPONDENT TO
THE 6TH RESPONDENT
Exhibit P3 COPY OF REPRESENTATION DATED 28-02-2024
SUBMITTED BY THE PETITIONER BEFORE THE 5TH
RESPONDENT
Exhibit P4 COPY OF COMMUNICATION NO.JRGTVM/1442/2023-ST
L DIS 503 DATED 26-03-2024 SENT BY THE SECOND
RESPONDENT TO THE 3RD RESPONDENT
Exhibit P5 COPY OF REPRESENTATION DATED 08-04-2024
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT
RESPONDENT EXHIBITS
Exhibit R4(a) True copy of the notice dated 19-10-2019
issued Under Section 37 of KSC Act
