Judgment : The prayer in this writ petition is to quash the judgment made in C.M.A. (CS) No. 77 of 1999 dated 20.2.2001 on the file of the second respondent. 2. The case of the petitioner is that he served as Special Officer-cum-Sub Registrar of the Samuelpuram Employees Co-Operative Housing Society and he retired from service on 30.6.1993. While the petitioner served as Special Officer of the said Society from 20.12.1989 to 30.6.1993, the Housing and Urban Development Corporation (HUDCO) sanctioned a loan of Rs.30 lakhs to the Society for giving loans for construction of 67 houses by its members. Petitioner was-in-charge of the construction work and the said houses were constructed during the petitioner’s tenure, by utilizing the said sanctioned loan amount. 3. In the year 1993, inspection was ordered under Section 82 of the Tamil Nadu Co-Operative Societies Act, 1983, and during the said inspection, alleged omissions and commissions were found out. Petitioner was allowed to retire on 30.6.1993 on attaining the age of superannuation, without any adverse remarks. According to the petitioner, the said inspection was made behind the back of the petitioner, i.e., after his retirement. Based on the said inspection, surcharge notice under Section 87 of the Tamil nadu Co-Operative Societies Act, 1983, was issued to the petitioner on 3. 1998 for the alleged loss of Rs. 1,89,309/-. The said amount was arrived at seven times more than the actual loss. The petitioner sent reply on 30.3.1998 and stated that after five years of retirement the said notice was issued and therefore one month time was sought, for perusal of the records and to submit his reply. On 6. 1998 petitioner submitted his reply to the notice dated 3. 1998. According to the petitioner, the first respondent without considering the explanation submitted by him, ordered to pay a sum of Rs. 1,69,259.22 insofar as item Nos. 1, 6 and 7 are concerned and exonerated as to the items 2 to 5 are concerned. The Board of Directors were directed to initiate action for recovery of the said amount. 4. Being aggrieved, the petitioner preferred C.M.A. (CS) No. 77 of 1999 before the second respondent under Section 152 of the Act and contended that there was procedural irregularities in the surcharge proceedings and the said appeal was also dismissed on 20.2.2001, thereby the order of surcharge passed by the first respondent was confirmed. 4. Being aggrieved, the petitioner preferred C.M.A. (CS) No. 77 of 1999 before the second respondent under Section 152 of the Act and contended that there was procedural irregularities in the surcharge proceedings and the said appeal was also dismissed on 20.2.2001, thereby the order of surcharge passed by the first respondent was confirmed. The said order is challenged in this writ petition on three grounds viz., copy of the report of inspection made under Section 82 was not furnished to the petitioner and the last sanction of loan having been made on 212. 1990, the period of seven years to initiate any surcharge proceedings expired on 212. 1997 and therefore, the initiation of surcharge proceedings on 3. 1998 is time barred. Further, no willful negligence/omission was proved for ordering recovery under Section 87 of the Act. 5. The first respondent filed counter affidavit by stating that inspection report made under Section 82 was enclosed along with surcharge notice and the petitioner never complained that he was not served with copy of the enquiry report. The petitioner being In-charge of the administration of the affairs of the Society, when commissions and omissions have happened, he is bound to pay the financial loss sustained by the Society. When HUDCO fixed interest at 12.5% p.a., the petitioner fixed Interest at 11.5% and thereby the, Society sustained loss. Similarly, the petitioner paid Rs. 1,00,000/- to the Contractor engaged for the electrical work and the said amount was excessive than estimated amount. Therefore, it is contended that the order of surcharge is just and proper. 6. The learned counsel for the petitioner argued that the surcharge proceedings having been Initiated after the statutory period mentioned under Section 87(1) of the Act, the entire proceedings is illegal and further no willful negligence or omission was proved to initiate surcharge proceedings under Section 87 of the Act. 7. The learned Additional Government Pleader on the other hand submitted that the inspection was ordered in the year 1993 under Section 82 and if the said date is considered as starting point for limitation, the notice issued on 3. 1998 is well within the limitation period. The Society having sustained loss due to the omission of the petitioner, the petitioner is bound to pay the loss sustained by the Society as rightly held by the second respondent. 8. 1998 is well within the limitation period. The Society having sustained loss due to the omission of the petitioner, the petitioner is bound to pay the loss sustained by the Society as rightly held by the second respondent. 8. I have considered the rival submissions of the learned counsel for the petitioner as well as the learned Additional Government Pleader. 9. Admittedly the petitioner retired from service on 30.6.1993. The last loan sanctioned by the petitioner was on 212. 1990. Even though inspection under Section 82 was ordered in the year 1993, (the date and month is not mentioned either in the report or in the counter affidavit the surcharge notice under Section 87(1) of the Act was issued to the petitioner only on 3. 1998. Section 87 proviso states that no surcharge action shall be commenced under sub-section (1) of Section 87 after the expiry of seven years from the date of any act or omission referred to in the said sub-section. As rightly contended by the learned counsel for the petitioner, Section 87(1) contemplates initiation of surcharge proceeding within seven years from the date of any act or omission. Admittedly the omission, even according to the first respondent has happened on 212. 1990 and seven year period was over as early as on 212. 1997. Thus, the surcharge notice issued under Section 87 on 3. 1998 is beyond the period of seven years. 10. The very same issue camp up for consideration before this Court in S.S. Viswanathan v. Deputy Registrar of Co-operative Societies, Tiruvarur (1991) 1 LW 480 , wherein this Court held that the starting point of limitation is the date of irregularity/omission and the Cause notice having been issued after a period of six years (as it was under Section 71 of the old Act) the whole initiation was held illegal The words used in the proviso is ‘prohibition in nature’. The negative words having been used in the said provisions, it is to be held as mandatory, as held by the Supreme Court in the decisions M. Pentiah v.Muddala Veeramallappa AIR 1961 SC 1107 and Nasiruddin v Sita Ram Agarwal AIR 2003 SC 1543 : (2003) 2 SCC 577 (2003) 2 MLJ 35. 11. The learned counsel for the petitioner is also right in contending that the allegations levelled against the petitioner is mere omission and not willful omission. 11. The learned counsel for the petitioner is also right in contending that the allegations levelled against the petitioner is mere omission and not willful omission. Section 87(1) clearly states that there shall be willful negligence/omission and if the same is proved, surcharge proceedings can be initiated. The said issue was considered in series of decisions of this Court. (a) In Sathyamangalam Co-Operative Urban Bank Limited v. Deputy Registrar of Co-Operative Society and Another (1980) 2 MLJ 17, this Court considered the scope of earlier Section viz., Section 71 of the Tamil Nadu Co-operative Societies Act, 1961, which is analogous to Section 87 of the Act, 1983 and held that mere negligence is not sufficient to initiate surcharge proceedings. (b) A Division Bench of this Court in P. Karuppiah v. Deputy Registrar of Co-operative Societies (1989) WLR 272 considered the very same aspect and in paragraph 3 held as follows: “3. The second aspect canvassed by the learned counsel for the appellant is that, assuming that the petitioner was cast with specific responsibility or obligation or duty with reference to the remittances and withdrawals, yet, the alleged acts and omissions with which the appellant was charged, could not be said to have been tainted with ‘wilful negligence’, which has been construed by pronouncements of the Court as meaning something done either by commission or omission, in a deliberate and reprehensible manner, with reckless callousness and with a supine indifference, and not by accident or Inadvertence without taking due care and precaution ordinarily expected from a reasonable and prudent man under the existing circumstances. Learned counsel for the appellant took the trouble of citing before us pronouncements of a number of single Judges of this Court. Learned counsel for the appellant would submit it that even in the field of inference, there is no possibility of characterizing the alleged acts and omissions on the part of the appellant as tainted with ‘wilful negligence’. We would have gone into this question, but we find that the answer given by us with regard to the first contention in favour of the appellant has served his purpose and we are of the view that for the present case we need not trouble ourselves with regard to this aspect. We would have gone into this question, but we find that the answer given by us with regard to the first contention in favour of the appellant has served his purpose and we are of the view that for the present case we need not trouble ourselves with regard to this aspect. The learned single Judge, we find, has omitted to take note of the crucial aspect with regard to the casting of specific responsibility or duty or obligation on the appellant with regard to remittances and withdrawals. As we have already pointed out, there is no material evidence exposed in this case, showing that position, in the absence of the said position being made out against the appellant, it is not possible to sustain the proceedings which culminated in the mulcting of the liability on the appellant. Taking note of this feature, we are obliged to interfere, in writ appeal and accordingly the writ appeal is allowed, the order of the learned single Judge is set aside and the writ petition W.P. 1955 of 1978 is allowed. We make no order as to costs both in the writ petition and in the writ appeal.” (c) The above decision was followed in the decisions Chockappan v. Special Tribunal for Co-operative Cases (1999) 1 MLJ 587 and M. Sambandam v. Deputy Registrar (Credit) Co-Operative Societies, Mylapore, Madras (1999) 3 MLJ 310 : 1999(4) LLN 483. (d) In M. Chella Nadar v. Deputy Registrar of Co-Operative Societies, Thuckalai and post, K.K. District 2002 WLR 198, the very same issue of scope of Section 87 was considered and similar surcharge proceeding was quashed. (e) The above decisions are followed in the decision S. Marimuthu v. Deputy Registrar of Co-Operative Societies (Housing) Madurai Circle (2006) 4 MLJ 86 . (f) Recently, a Division Bench of this Court in the decision K. Ajay Kumar Gosh v. Tribunal for Co-operative Cases, Nagercoil (2009) 4 MLJ 992 set aside the order of surcharge and in paragraph 20 held thus at p. 996 of MLJ: “20. In the light of the decisions referred to above. (f) Recently, a Division Bench of this Court in the decision K. Ajay Kumar Gosh v. Tribunal for Co-operative Cases, Nagercoil (2009) 4 MLJ 992 set aside the order of surcharge and in paragraph 20 held thus at p. 996 of MLJ: “20. In the light of the decisions referred to above. It is clear that to pass surcharge order under Section 87 of the Act, appellants should have done an actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with a supine indifference, without taking due care and caution ordinarily expected from a reasonable and prudent man under those existing circumstances. In the absence of such categorical finding by the respondents, it is not possible to mulct the appellants with the loss caused to the society.” 12. In the light of the above findings and having regard to the decisions cited supra, I am of the firm view that the surcharge proceedings initiated against the petitioner is barred by limitation and no willful negligence/omission having been proved, the impugned order is liable to be set aside and the petitioner is entitled to succeed. The writ petition is allowed. No costs.