IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI MONDAY, THE 22^ND DAY OF MAY 2023 / 1ST JYAISHTA, 1945 WP(C) NO. 5764 OF 2022 PETITIONER:

THIRUVANANTHAPURAM NORTH CO-OPERATIVE SOCIETY LTD. NO.T-1531, KURAVANKONAM, KOWDIAR P.O., THIRUVANANTHAPURAM-3, REPRESENTED BY ITS SECRETARY, RADHEESH SASI.

BY ADVS.

SRI.D.SAJEEV SRI.LIGEY ANTONY RESPONDENTS:

1 THE EMPLOYMENT DIRECTOR, NATIONAL EMPLOYMENT SERVICE (KERALAM), EMPLOYMENT DIRECTORATE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 133.

2 THE INSPECTOR GENERAL & COMMISSIONER OF POLICE, CITY POLICE OFFICE, KOCHI CITY, ERNAKULAM, PIN-682 001.

3 SARMILA.I.J., MEMBER NO.861, STEVE DALE, MRA 129-A, MOOLAVILAKAM, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.

4 ASWIN KUMAR.K.S., MEMBER NO.862, STEVE DALE, MRA 129-A, MOOLAVILAKAM, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.

5 K.E.ABRAHAM, MEMBER NO.863, KALAPURAKKAL HOUSE, ERAMALLOOR P.O., CHERTHALA, ALAPPUZHA, PIN-638 387, (WORKING AS JR.SUPERINTENDENT, CITY POLICE OFFICE, KOCHI CITY, ERNAKULAM, PIN-682 001). 6 S.JAYASANKAR KUMAR, MEMBER NO.864, JAYA NIKETHANA, TEMPLE ROAD, VARKALA P.O., THIRUVANANTHAPURAM-695 141, (WORKING AS EMPLOYMENT OFFICER, EMPLOYMENT DIRECTORATE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 133).

BY ADVS.

SRI.LEEJOY MATHEW.V.

SRI.C.S.MANILAL SRI.S.NIDHEESH SMT.MABLE C.KURIAN, SR.GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2022, THE COURT ON 22.05.2023 DELIVERED THE FOLLOWING:

T.R. RAVI, J.

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W.P.(C)No.5764 of 2022 --------------------------------------------

Dated this the 22^nd day of May, 2023

JUDGMENT

Petitioner is a Co-operative Society registered under the Kerala Co-operative Societies Act,1969 (hereinafter referred to as the Act). The 3^rd respondent had availed of a loan and Ext.P1 is the loan application. Respondents 4 to 6 are the sureties for the loan. The sureties had produced non-liability certificates issued by their employers at the time of availing of the loan by the 3^rd respondent. The employers had also issued confirmation certificates in relation to the certificates. The sureties had consented to repay the loan from out of their salaries and properties, in case of default in payment by the 3^rd respondent. Exts.P9 and P10 agreements were also executed by the 4^th and 6^th respondents respectively, agreeing that in case of default and if their salary is not sufficient for the realisation of the dues, the same can be realized from the pensionary benefits and DCRG payable to them. The agreements are countersigned by their employers, undertaking to effect recovery of arrears from the benefits payable to the sureties and remit such amounts to the petitioner society.

2. The principal debtor committed default from the very beginning and the petitioner issued notices to respondents 3 to 6 asking them to remit the arrears within 10 days from the receipt of notice. Further notice was issued to respondents 3 to 6 demanding an amount of Rs.5,46,300/- and informing them that proceedings under Section 37(1)(2) of the Act will be initiated without further notice, in case of non-payment. Requests to deduct the amount from the salary were also issued to the 1^st respondent. The petitioner also issued Ext.P16 notice to the District Treasury Officer, Wayanad requesting to recover Rs.4,95,000/-from the pensionary benefit of the 4^th respondent towards arrears for the loan. The writ petition has been filed seeking direction for recovery.

3. The 6^th respondent has filed a counter-affidavit. It is contended that a writ petition will not lie to enforce a contractual liability based on the tripartite agreement. It is submitted that the petitioner has a statutory remedy under the Act as well as the remedy by means of a civil suit. It is further submitted that willingness for recovery from salary alone has been given and there is no consent to recover from DCRG or retirement benefits.

It is contended that DCRG or pension cannot be attached.

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