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M.C. Abdullah Kutty Vs. the Deputy Registrar of Co-operative Societies, Trichur and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Election
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 476 of 1973
Judge
Reported inAIR1974Ker92
ActsKerala Co-operative Societies Rules, 1969 - Rule 44
AppellantM.C. Abdullah Kutty
RespondentThe Deputy Registrar of Co-operative Societies, Trichur and ors.
Appellant Advocate P.K. Shamsuddin and; K.A. Abdulsalam, Advs.
Respondent Advocate V.M. Navanar and; K.C. Sankaran, Advs.
DispositionPetition allowed
Excerpt:
- - 1970 and they were paid off in full by the petitioner on 1-7-1970 itself, well within the period of three months mentioned in rule 44 (1) (c) (i). it cannot therefore be said that the petitioner has;.....societies act at an election held on 21-6-1970. in november 1970 the 4th respondent who is a member of the society appears to have moved the deputy registrar of co-operative societies. tri-chur -- the 1st respondent, for declaring the petitioner as disqualified for a membership of the company even on the date on which he was elected on the ground that the petitioner was in default of repayment of two loans advanced by the society in respect of which repayment had already become due prior to the date of the election. the 1st respondent thereupon issued a notice to the petitioner under rule 44 (2) (a) of the kerala co-operative societies rules. 1969 as per ext. p2 dated 4-3-1971 calling upon the petitioner to file his objections, if any, why he should not be declared to be.....
Judgment:
ORDER

V. Balakrishna Eradi, J.

1. The petitioner was elect-ed as a member of the Board of Directors of the Nattika Firka Co-operative Rural Bank Ltd. which is a society registered under the Madras Co-operative Societies Act at an election held on 21-6-1970. In November 1970 the 4th respondent who is a member of the society appears to have moved the Deputy Registrar of Co-operative Societies. Tri-chur -- the 1st respondent, for declaring the petitioner as disqualified for a membership of the company even on the date on which he was elected on the ground that the petitioner was in default of repayment of two loans advanced by the society in respect of which repayment had already become due prior to the date of the election. The 1st respondent thereupon issued a notice to the petitioner under Rule 44 (2) (a) of the Kerala Co-operative Societies Rules. 1969 as per Ext. P2 dated 4-3-1971 calling upon the petitioner to file his objections, if any, why he should not be declared to be disqualified to be a member of the committee of the society on the ground that he had defaulted payment of two instalments in repaying a loan advanced by the society. Ext. P3 is a copy of the objections filed by the petitioner. On 16-4-1971 the 1st respondent passed the order Ext. P4 declaring the petitioner as disqualified to be a member of the Director Board of the society and directing that he should cease to be a member of the Board from the date on which the disqualification had been incurred. Under a mistaken impression that an appeal lay against the said order before the Kerala Co-operative Tribunal the petitioner approached the Tribunal by filing an appeal before it That appeal was dismissed by the Tribunal as per its order evidenced by Ext. P9 holding that no appeal lay to it from an order passed by the Deputy Registrar under Rule 44 (3). Thereafter the petitioner made an attempt to obtain redress from the State Government by filing an appeal before the Government under Section 83 of the Kerala Co-operative Societies Act 1969 But that appeal was reject-ed by the Government as per the order Ext P 11 for the reason that that was barred by time. Thereafter the petitioner has come up with this writ petition seeking to quash the order Ext. P4 passed by the 1st respondent declaring him as disqualified for membership of the Board of Directors of the society.

2. The disqualification alleged against the petitioner is based on the fact that certain amounts payable by him under two loan transactions evidenced by Exts. P7 and P7-A wherein the petitioner had undertaken liability as a surety for the borrowers had been discharged only on 1-7-1970 whereas under the bonds the two loans had to be repaid within a period of 12 months from the date on which they were advanced Both the loans were advanced on the 11th April, 1969 and they were repayable either in two instalments or in lump within a total period of one year. The amounts were, therefore, repayable on or before the 11th April 1970. It is admitted that the petitioner fully paid off the amounts due under the two transactions on 1-7-1970. The question is whether by reason of the delay on his part in paying off the amounts during the period between 11-4-1970 and 1-7-1970 the petitioner can be said to have incurred a disqualification for membership of the Board of Directors of the Society under Rule 44 (1) (c) (1) of the Kerala Co-operative Societies Rules. 1969. The relevant portion of that rule runs thus:--

'44 (1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under Section 28 if he:

** ** *

(c) (1) is in default to the society or to any other society in respect of any loan or loans taken by him or loan in which he has stood surety, for such period, as is prescribed in the bye-laws of the society concerned or in any case for a period exceeding three months or is a defaulter to the society or to any other society.' It is clear from the wording of the rule that the disqualification thereunder is not incurred immediately on a default being, committed in the repayment of a loan taken by the concerned member or in respect of which he has stood surety. The disqualification will be attracted only if the default continued for a period exceeding three months unless a different lesser period is prescribed in the bve-laws of the societv concerned. In the present case it is not contended on behalf of the respondents that there is any provision in the bye-laws of the societv prescribing a different or lesser period for attracting the disqualification. That being the case, the petitioner can be said to have incurred a disqualification under Rule 44 (1) (c) (i) only if he had been in default in respect of the loan for a period exceeding three months. From the narration of facts already given above it will be seen that the two loans became repayable on the 11th April. 1970 and they were paid off in full by the petitioner on 1-7-1970 itself, well within the period of three months mentioned in Rule 44 (1) (c) (i). It cannot therefore be said that the petitioner has; incurred a disqualification for membership of the committee under Rule 44 (1) (c) (i). The contrary view taken by the Deputy Registrar in the order Ext. P4 is manifestly incorrect and his action in declaring the petitioner as disqualified for membership of the Board of Directors of the society in purported exercise of his powers under Rule 44 (3) on the ground that the petitioner had incurred a disqualification under Rule 44 (1) (c) (i), is illegal and without jurisdiction.

3. Ext P4 will therefore stand quashed and the petitioner will be entitled to be restored to membership of the society on the basis that he has not suffered any disqualification by reason of the short delay in the repayment of the two loans in question. The original petition is allowed as above.

The parties will bear their respective costs.


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