Civil Appeal Nos. 7395-7396 of 1997

1. The appellant in these appeals was declared elected to the Kerala Legislative Assembly from No. 139, Neyyattinkara constituency in an election held on April 27,1996. Two election petitions were filed-one by a voter in that constituency and another by a defeated candidate who had secured the next highest number of votes to the appellant and in his petition a claim was also made for the declaration that he was duly elected.

2. In the election petition filed by the voter the election of the appellant was challenged on the ground that he was disqualified for being chosen as a member of the Legislative Assembly as he was an undischarged insolvent within the meaning of Art.191(1)(c) of the Constitution of India, at the time of filing of his nomination, at the time of his election and even on the date of the filing of the election petition. In the petition filed by the defeated candidate, in addition to the aforesaid ground of disqualification of the appellant, he also alleged that the appellant had indulged in corrupt practices within the meaning of S.123 of the Representation of the People Act, 1951 (hereinafter referred to as 'the R.P.Act').

3. The High Court upheld the contention of the Election Petitioners that the appellant had incurred the disqualification under Art.191(1)(c) of the Constitution and declared his election to the Kerala Legislative Assembly as void. The High Court, however decided against Election Petitioner on the allegation of corrupt practices. Hence there are two sets of appeals - two by the returned candidate in regard to invalidation of his election to the Assembly and the other by Election Petitioner with regard to findings recorded as to corrupt practices.

4. The principal issue to be decided in this case is whether the appellant is disqualified for being chosen as a member of the Legislative Assembly on the ground that he is an undischarged insolvent and whether his election could be declared to be void under S.100 of the R.P. Act. The pleadings raised in this regard are that the appellant is a partner of a registered firm by name "Kavitha Printers" along with P.A. Thomas, Smt. Krishnamma and Gopeendra Nath; that the said firm borrowed a sum of Rs.3,16,000/- from the Kerala Financial Corporation, Thiruvananthapuram; that the partners of the firm did not repay the loan in spite of the repeated demands; that the revenue recovery proceedings were initiated against the appellant in terms of certificate dated April 22,1994 issued by the District Collector, Thiruvananthapuram and at that time the total liability of the partners of the firm was amounting to Rs.10,62,000/-; that the appellant failed to settle his liability with Kerala Financial Corporation till the filing of his nomination papers and he was unable to pay the debts in the ordinary course of business as and when they became due; that the demand notice issued by the Tahsildar for the purpose of revenue recovery also stood returned on account of the closure of the business of the firm; that the appellant absented himself from the office of the firm and deliberately avoided service of notice upon him; that the appellant was not in a position to repay anything more than Rs.3 lakhs on behalf of the firm and, therefore, he was disqualified from being chosen as a member of the State Legislature as he was an undischarged insolvent, that thereby his election has

become void in terms of Art.191(1)(c) of the Constitution. In the written objections filed, the appellant admitted that he was a partner of the firm along with certain others who are mentioned in the petition, but claimed that he retired form the partnership as per the report filed on July 20, 1985 before the Registrar of Firms. It was contended that having severed relationship with the firm, he had no knowledge or information as to the plea that the partners of the firm did not repay the loan in spite of the repeated demands. He pleaded that he did no