Point of Law: Surety cannot be disqualified under Rule 44 (1) of the Kerala Cooperative Societies Rules, solely on the ground that the debtor has not discharged his debt, unless if the surety was informed of the default and there was a demand from the surety

JUDGMENT :

1. Petitioner herein is a member of the 4th respondent society with membership No.552. He submitted nomination for the ensuing election to the managing committee. Scrutiny of the nomination paper was held on 26/2/2021. On that day, petitioner's application was rejected on the premise that he was a defaulter. According to the petitioner, he had availed a credit facility from the 4th respondent society. Petitioner contended that he had discharged the entire liability in November 2020 and was issued with Ext.P2 receipt as well as Ext.P3 loan closure certificate dated 18/11/2020. In Ext.P3 it is stated that the petitioner does not have any liability.

2. Learned counsel for the petitioner invited my attention to the Division Bench decision of this court in Abdul Rasheed v. State of Kerala (1988 KHC 137) wherein it was held that surety cannot be disqualified under Rule 44 (1) of the Kerala Cooperative Societies Rules, solely on the ground that the debtor has not discharged his debt, unless if the surety was informed of the default and there was a demand from the surety .

3. The petitioner has a specific contention that he is neither a defaulter nor a notice as surety ever served on him. Though the learned standing counsel for the society as well as the learned standing counsel for the election commission tried to contend that the petitioner is a defaulter and the application was rejected on valid ground and that an award is also pending against the petitioner, the details of the award and whether any notice was served on the petitioner are not forthcoming. Petitioner cannot be called upon to establish that he has not been served with notice, which is a negative fact.

4. Having considered the above facts, I feel that rejection of nomination is without any definite and cogent materials. Hence, necessarily nomination is liable to be accepted. However, in the absence of any specific materials to establish whether a notice was issued to the petitioner or not which still remains a disputed fact, I am inclined to direct the petitioner to file an affidavit before the returning officer asserting that he is not a defaulter and notice of demand has not been served on him. On filing of such affidavit, nomination paper will stand restored and he will be permitted to contest the election.

5. The writ petition is allowed as above.