K SURENDRAN NAIR Vs. STATE OF KERALA
LAWS(KER)-2003-12-116
HIGH COURT OF KERALA
Decided on December 08,2003

K Surendran Nair Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) When this appeal came up for admission, Sri. T.R. Ramachandran Nair entered appearance for respondent No. 4, Sri. S.P. Aravindakshan Pillai took notice for respondent No. 3 and the learned Government Pleader took notice for respondents 1 and 2. The appeal itself was heard.
(2.) The petitioner in O.P. 10627 of 2003 has filed this appeal challenging the judgment of the learned Single Judge dated 1.7.2003 dismissing the Original Petition filed by him. The appellant was elected as one of the members of the Board of Directors of the Trivandrum Regional Cooperative Milk Producers Union (TRCMPU for short) in the election held on 31.8.2000. He was elected as the Chairman of the Board of Directors also. On 20.10.2000 the third respondent filed a petition before the second respondent for a declaration that the appellant is disqualified to continue as the Board Member of TRCMPU alleging that the appellant had disqualification to contest the election due to default as he had not repaid a loan of Rs.29,92,000/- taken from the Parassala Branch of the Trivandrum District Cooperative Bank (hereinafter referred to as the Bank). It was also alleged that the District Cooperative bank had filed an Arbitration Case, No. 22/96, against the appellant and others and that case was still pending. Along with the petition, he produced a copy of the certificate issued by the 4th respondent Bank addressed to the Returning Officer of TRCMPU Ltd. Originally the petition was dismissed. The third respondent filed O.P. 62 of 2001 before this Court. This Court set aside the order passed by 2nd respondent and directed him to reconsider the petition and dispose of the same on its merits after giving the appellant an opportunity to file his objections. The second respondent after considering the petition filed by the third respondent and the objection filed by the appellant found that the appellant was in default and declared that he was disqualified to be a member of the Board of Directors. Against the order of the second respondent the appellant filed an appeal before the first respondent but the said appeal was dismissed. Thereupon the appellant filed O.P. 20929 of 2002. The learned Single Judge dismissed the Original Petition. The appellant filed W.A. 1986 of 2002 challenging the judgment rendered by the learned Single Judge. A Division Bench of this Court allowed the appeal, set aside the orders passed by the second respondent and the appellate authority and remanded the matter for fresh consideration in accordance with law. After remand, on the request of the third respondent certain documents were called by the second respondent from the District Cooperative Bank. The second respondent again passed an order holding that the appellant was in default on the date of his election and hence disqualified to be a member of the Board of Directors. The appellant filed an appeal before the Government. That appeal was dismissed. Thereafter he challenged those orders in O.P. 10627 of 2003. The learned Single Judge found that the statutory authority had examined the matter thoroughly and the appellate authority also considered the matter as is expected from an authority exercising such power. It was further found that there is no error of law on the application of Rules with reference to the facts that had been presented before them and dismissed the Original Petition. That judgment is under challenge in this Writ Appeal.
(3.) The appellant was a partner of a firm Josgo Tiles and Clay Products, a firm registered under the provisions of the Indian Partnership Act. In Ext. P2 it is admitted that there were three partners in that firm. They are, the appellant Sri. K.Surendran Nair, Sri.Y.John and Sri.R.Manoharan Nair. The firm had availed a loan of Rs.29,92,000/- from the Parassala Branch of Trivandrum District Cooperative Bank for running a factory. The factory was situated in one acre and forty cents of land comprised in Survey No. 463/2A of Parasuvakkal Village. According to the appellant, the unit and the entire land wherein the factory was situated were mortgaged to the Bank as collateral security. It is admitted that another 2 acres of property belonging to the partners were also mortgaged to the Bank. According to the appellant, the firm took a decision to stop the business and made Ext. P3 request to the Bank to take possession of the factory and the properties mortgaged, sell the same and realise the debt utilising the sale proceeds. The case put forward by the appellant is that in spite of several demands, the Bank did not sell the properties mortgaged and adjust the amount towards the loan advanced by the Bank. According to the appellant, value of the securities offered was more than Rs. 81 lakhs. His specific case is that if the properties were sold and the amount adjusted towards the debt due to the Bank, the appellant will not be liable to pay any amount to the Bank; but, amount will be due to him from the Bank. According to the appellant the second respondent ought to have adjudicated that issue and found that no amounts were due to the Bank.;


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