G.K.Misra, J. - (1.) THE Petitioner is a member of the Aska Co -operative Urban Bank Ltd. An election was held to the office of the Board of Management of the Society. The Petitioner filed his nomination on 4 -10 -1974. The nomination was rejected. Election was held. Opposite parties 4 to 10 were duly declared to have been elected. The writ application has been filed by the Petitioner under Article 226 of the Constitution for quashing the order rejecting his nomination and for setting aside the election of opposite parties 4 to 10 and for a direction that there should be a fresh election.
(2.) A counter -affidavit has been filed on behalf of the State of Orissa (Opposite party No. 1) and Election Officer, Aska Cooperative Urban Bank Ltd. (opposite party No. 2). Opposite party No. 6. one of the Director, has also filed a counter affidavit. All of them take their stand on Section 28(3)(e) of the Orissa Co -operative Societies Act, 1962 (hereinafter to be referred to as the Act) in support of the order rejecting the nomination. Section 28(3)(e) runs thus: 28(3) No person shall be eligible to become a Member or President of the Committee of a society if he xx xx xx (e) has failed to make any payment to the society or to any other society in respect of any loan granted to him by such society for such period as may be prescribed in the bye -laws of the society which has advanced the loan or in any case for a period exceeding six months: The non -eligibility would be with reference to the date of filing the nomination. It is admitted in the counter affidavits that the Petitioner has not incurred any loan from the society. It is, however, averred that Antarjyami Jena and Gourhari Jena incurred loans from the society and the Petitioner stood surety for them. There is no dispute that these loans were outstanding by the date of the filing of the nomination by the Petitioner. The short question is whether the Petitioner's case is hit by Section 28(3)(e) of the Act. It is remarkable to notice that the default must relate to a loan granted to the person seeking election. On the admitted case that the Petitioner was a surety in respect of the loans taken by Antarjyami Jena and Gourhari Jena he did not incur any loan from the society. The society did not grant any loan to him.
(3.) DOUBTLESS the liability of the surety is co -extensive with the liability of the debtor in respect of a loan incurred. But such a liability in no circumstance can be invoked for holding that a loan was granted to the Petitioner. The two concepts are entirely different. Antarjyami Jena and Gourhari Jena incurred the loans. Petitioner has not incurred any loan though his liability to pay up the loan subsists.;