BY AD v. G.SUDHEER

BY ADVS. V.G.ARUN V.JAYA RAGI(K/3390/1999) R.HARIKRISHNAN (KAMBISSERIL)(K/993/2012) NEERAJ NARAYAN(K/332/2016) AVANEETH S.R.(K/306/2021) SRI.DHEERAJ A.S., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.9014/2023 : 3 : N. NAGARESH, J. ````````````````````````````````````````````````````````````` W.P.(C) No.9014 of 2023 ````````````````````````````````````````````````````````````` Dated this the 9th day of January, 2024 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner is Kidarakuzhi Service Co-operative Bank Limited. The petitioner has approached this Court seeking to direct respondents 1 to 3 not to disburse pensionary benefits of the 4th and 5th respondents without clearing the liability towards the petitioner-Bank under Ext.P1 loan. The petitioner has further sought to direct the 3rd respondent to recover dues towards the petitioner from the salary of the 5th respondent as per Ext.P11.

2. The petitioner states that respondents 4 and 5 are members of the petitioner-Co-operative Bank. The 4th respondent availed a loan of ₹4 lakhs from the petitioner on

17.11.2017. The 5th respondent is the wife of the 4th W.P.(C) No.9014/2023 : 4 : respondent and is working as Assistant Director in the District Development Department under the Scheduled Castes Development Department. The 5th respondent stood as surety for repayment of the loan availed by the 4th respondent.

3. The 4th respondent committed default and at present a total amount of ₹4,74,665/- is due to the petitioner- Bank. In spite of demand notices sent, respondents 4 and 5 have not repaid the loan. As the 4th respondent was about to retire from service on superannuation, the petitioner sent Ext.P9 salary recovery request to the 2nd respondent on

30.09.2021.

4. The petitioner also filed ARC No.2852/2021 before the Registrar of Co-operative Societies and the Assistant Registrar General of Co-operative Societies, Neyyattinkara allowed the ARC as per Ext.P10 Award. The petitioner states that the 5th respondent is about to retire from service on 30.05.2025. The petitioner therefore submitted Ext.P11 request to the 3rd respondent seeking to recover a sum of W.P.(C) No.9014/2023 : 5 : ₹10,000/- per month from the salary of the 5th respondent.

5. In the meanwhile, respondents 2 and 3 are about to issue No Liability Certificate to the 4th and 5th respondents. Respondents 2 and 3 are also taking steps to disburse pensionary benefits of the 4th and 5th respondents. The petitioner states that respondents 4 and 5 are deliberately evading repayment of loan and respondents 2 and 3 are supporting them to escape from the liability.

6. Respondents 4 and 5 entered appearance and resisted the writ petition. The 4th respondent submitted that after availing the loan, he was confronted with certain financial crunch which resulted in non-payment of loan instalments. The 4th respondent retired from service on

31.05.2023. The 4th respondent submitted that going by the provisions of Section 37 of the Kerala Co-operative Societies Act, retiral benefits will not come under the radar of attachment or withholding by any authority. The 4th respondent cannot be deprived of his pension. W.P.(C) No.9014/2023 : 6 :

7. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 and 3 and the learned counsel for respondents 4 and 5.

8. Section 37 of the Kerala Co-operative Societies Act provides that notwithstanding anything contained in any law for the time being in force, a member of a Society may execute an agreement in favour of the Society providing that his employer shall be competent to deduct from the salary or wages payable to him by the employer such amount as may be specified in the agreement and to pay the amounts so deducted to the Society in satisfaction of any debt or other demand owing by the member to the Society. In such cases, the employer shall, if so required by the Society by requisition in writing and so long as such debt or demand or any part of it remains unpaid, make the deduction in accordance with the agreement and pay the amounts so deducted to the Society within seven days from the date of deduction. W.P.(C) No.9014/2023 : 7 :

9. As far as the 4th respondent is concerned, he has retired on superannuation on 31.05.2023. Therefore, there is no question of making any deduction from the salary or wages payable to the 4th respondent. Ext.P3 certificate of salary liability in respect of the 4th respondent would also indicate that the 4th respondent has consented to recover such amounts only from the salary at source or assets. As Section 37 contemplates only recovery from salary or wages, the petitioner cannot legally insist that amounts due to the petitioner should be deducted from the pensionary benefits of the 4th respondent.

10. At the same time, the 5th respondent is to retire from service only on 30.05.2025. The 5th respondent has signed Ext.P4 agreement for recovery from pay indicating that such amounts as may be fixed by the Bank from time to time can be recovered from her salary. Therefore, the 3 rd respondent is bound to deduct dues as required by the petitioner. The petitioner has submitted Ext.P11 requisition in this regard. W.P.(C) No.9014/2023 : 8 : The writ petition is therefore disposed of directing the 3rd respondent to recover dues to the petitioner from the salary of the 5th respondent as per Ext.P11 and pay the same to the petitioner-Bank. However, it is made clear that the petitioner will be free to resort to any other proceedings for recovery of amounts due from respondents 4 and 5. aks/06.01.2024 Sd/- N. NAGARESH, JUDGE W.P.(C) No.9014/2023 : 9 : APPENDIX OF WP(C) 9014/2023 PETITIONER'S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 . COPY OF THE LOAN APPLICATION THE COPY OF THE SURETY AGREEMENT COPY OF THE CERTIFICATE OF SALARY LIABILITY OF THE 4TH RESPONDENT COPY OF THE SALARY CERTIFICATE OF THE 5TH RESPONDENT COPY OF THE LETTER NO 247/2017 COUNTERSIGNED BY THE 2ND RESPONDENT COPY OF THE LETTER NO 246/2017 COUNTERSIGNED BY THE 3RD RESPONDENT COPY OF THE NOTICE DT 1/1/2020 DEMAND NOTICE DATED 1/1/2020 ISSUED BY PETITIONER COPY OF THE SALARY RECOVERY REQUEST UNDER SECTION 37 OF CO-OPERATIVE SOCIETIES ACT ISSUED BY PETITIONER TO THE 2ND RESPONDENT COPY OF THE AWARD OF THE ASSISTANT REGISTRAR(GENERAL) OF COOPERATIVE SOCIETIES ,NEYYATTINKARA COPY OF THE SALARY RECOVERY REQUEST UNDER SECTION 37 OF CO-OPERATIVE SOCIETIES ACT ISSUED BY PETITIONER TO 3RD RESPONDENT ON 6/4/2022