Avara Haji v. Secretary, Ariyur Service Co-operative Bank Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940** ## **WP(C).No. 26882 of 2018** ## **PETITIONER/S:** **AVARA HAJI AGED 69 YEARS, KATTUKANDAN HOUSE, KULIKKILIYAD P.O, KOTTAPURAM,PALAKKAD DISTRICT.** ## **BY ADV. SRI.C.K.RAMAKRISHNAN** ## **RESPONDENT/S:** - **1 THE SECRETARY, ARIYUR SERVICE CO-OPERATIVE BANK LTD.NO.F 1566 KOTTOPPADAM P.O, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-675 995** - **2 INSPECTOR FOR ARBITRATION & EXECUTION NO.1 MANNARKKAD, PALAKKAD DISTRICT. PIN-678 582** - **3 THE SALE OFFICER OFFICE OF THE INSPECTOR FOR ARBITRATION & EXECUTION NO.1,MANNARKKAD, PALAKKAD DISTRICT, PIN-678 582.** - **4 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** **BY ADVS. SRI.K.T.THOMAS SRI.MATHEW B. KURIAN** ## **SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 26882 of 2018** **2** ## **JUDGMENT** The petitioner, who availed a loan for ₹3,00,000/- form the 1st respondent Service Cooperative Bank on 23.08.2001, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 reply dated 25.07.2018 issued by the Secretary of the said Bank. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent Bank to settle the matter through one time settlement on the basis of Ext.P2 application dated 23.07.2018; Ext.P1 judgment dated 02.12.2016 in W.P.(C).No.8593 of 2010 and also Ext.P4 Circular No.9/2017 dated 24.01.2017 and Ext.P5 Circular No.6/2018 dated 02.02.2018 issued by the Registrar of Co-operative Societies. 2. On 08.08.2018, when this writ petition came up for admission, the petitioner was directed to serve a copy of this writ petition to the learned **WP(C).No. 26882 of 2018** **3** counsel who represented the 1[st] respondent Bank in the connected writ petition. 3. A counter affidavit has been filed on behalf of the 1[st] respondent opposing the reliefs sought for in this writ petition. The petitioner has also filed a reply affidavit. 4. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent Bank and also the learned Senior Government Pleader appearing for the 4[th] respondent. 5. The learned counsel for the petitioner would submit that, the petitioner is prepared to pay off the entire dues towards the 1[st] respondent Bank, if the Bank permits him to settle the dues in terms of Ext.P4 or Ext.P5 one time settlement scheme. 6. Per contra, the learned counsel for the 1[st] respondent Bank, after making specific reference **WP(C).No. 26882 of 2018** **4** to paragraphs 4 to 8 of the counter affidavit, would point out that this writ petition is nothing but an attempt made by the petitioner to protract the recovery steps initiated by the Bank based on the award passed by the Arbitrator in ARC.No.1030 of 2003, which has been modified by the Cooperative Tribunal by its judgment dated 27.06.2009. Paragraph 4 to 8 of the counter affidavit filed by the 1[st] respondent read thus: _"4. The petitioner had availed Non Agricultural Medium Term (NAMT) loan of Rs.3 lakhs from the Ariyur Service Co-operative Bank Ltd.( herein after referred to as the Bank) on 23.08.2001 and on his failure to repay the loan amount, the bank filed Arbitration Case No. ARC 1030 of 2003 and the Arbitrator passed an award in favour of the Society. The petitioner challenged the award before the Co-operative Tribunal without success. Petitioner then approached this Honorable Court by filing W.P. (C)No.11604/2005 and the judgment dated 18.07.2008, this Honorable Court set aside the order passed by the Tribunal on the ground that the petitioner was not given an effective opportunity of hearing. During the pendency of the writ petition, the petitioner made a_ **WP(C).No. 26882 of 2018** **5** _- payment of Rs.1,00,000/ towards loan account. After remand, the Co-operative Tribunal passed judgment dated 27.06.2009 produced modifying the award by allowing the bank to realize an - amount of Rs.4,24,227/ with interest at 12% - per annum on Rs.3,00,000/ from the date of suit till realization and costs. The petitioner was allowed to clear the liability in ten equal monthly installments and in default of 2 consecutive installments, the bank was allowed to realize the entire amount with interest and costs. The petitioner failed to pay the amount in installments as ordered by the Tribunal and thus forfeited the facility for installment payment._ _5. Petitioner challenged the judgment of the Co-operative Tribunal by filing W.P.(C) No.22728/2009, which was dismissed by this Honorable Court vide judgment dated 11.08.2009. True copy of judgment dated 11.08.2009 in W.P.(C)No.22728/2009 is produced herewith and marked as_ _**EXHIBIT-R1(a).** There was no appeal - from Ext R1(a) judgment and the Award passed by the Co-operative Tribunal has become final._ _6. Later, the petitioner filed W.P.(C) No.8593/2010 seeking to avail the benefit of One Time Settlement Scheme. While W.P.(C)No. 8593/2010 was pending, the bank pointed out that the total amounts due from the petitioner as per the Award modified by the Co-operative Tribunal was Rs.9,60,167/- and after deducting_ **WP(C).No. 26882 of 2018** **6** _Rs.1,00,000/- paid by the petitioner, an amount of Rs.8,60,167/- was due. The bank stated that it was willing to offer a remission of Rs.2,98,032/- leaving the net amount payable at Rs.5,62,135/-. This Honorable Court passed on order dated 22.03.2011 ordering that it will be - open to the petitioner to pay Rs.5,62,135/ towards full and final settlement of the loan account. The petitioner took the matter in writ Appeal and the writ Appeal was closed with the observation that there is no merit in the writ Appeal._ _7. Without making any payments in terms of the interim order of this Honorable Court, the petitioner filed W.P.(C).No.11794/2011 seeking enquiry under Section 65 of the Kerala Cooperative Societies Act,1969 based on a cheque alleged to have been issued by the former secretary of the bank. Yet another writ petition was filed by the petitioner, viz; W.P. (C).No 17435/2011 on 27.06.2011 challenging the sale notice issued by the sale officer for sale of the immovable property of the petitioner. W.P.(C).Nos.8593/2010, 11794/2011 and 17435/2011 were heard together and by ExtP1 common judgment dated 02.12.2016, this Honorable Court was pleased to dismiss W.P. (C).Nos.11794/2011 and 17435/2011. W.P.(C).No 8593/2010 was disposed with the direction that if any One Time Settlement Scheme is implemented by the bank, the bank shall give_ **WP(C).No. 26882 of 2018** **7** ## _such benefit to the petitioner._ _8. Aggrieved by Ext-R1(b) common judgment, petitioner filed writ Appeal Nos. 898/2017, 908/2017 and 939/2017 and a Division Bench of this Honorable Court vide common judgment dated_ _19.07.2019 was pleaded to dismiss the writ appeals and retaining the right of the petitioner to avail OTS facility if any implemented by the bank.” (Underline supplied)_ 7. The pleadings and materials on record would show that despite the award passed by the Arbitrator, which stand modified by the judgment of the Co-operative Tribunal, the 1[st] respondent Bank is yet to recover the amount due from the petitioner. The only remittance made by the petitioner is for a sum of 1,00,000/-, made₹ during the pendency of W.P.(C).No.11604 of 2005. The award passed by the Arbitrator, as modified by the judgment of the Co-operative Tribunal, has attained finality on 11.08.2009 by Ext.R1(a) judgment of this Court in W.P.(C).No.22728 of 2009. 8. A reading of Exts.P4 and P5 circulars **WP(C).No. 26882 of 2018** **8** relied on by the petitioner would show that, for one time settlement of dues, the Registrar of Cooperative Societies has issued those circulars in the years 2017 and 2018. The one time settlement scheme as per Ext.P4 Circular was in force till 31.03.2017 and the scheme as per Ext.P5 Circular was in force till 25.03.2018. The said facts are not in dispute. In such circumstances, in this writ petition filed on 07.08.2018, the petitioner cannot claim any benefit under the aforesaid schemes. 9. It is not in dispute that, the dismissal of W.A.Nos.898, 899 and 939 of 2017 by the judgment of the Division Bench dated 19.07.2019 was after reserving the right of the petitioner to avail one time settlement facility, if any, implemented by the 1[st] respondent Bank. During the course of arguments, the learned counsel for the petitioner could not point out any one time settlement scheme available for settlement of the dues towards the **WP(C).No. 26882 of 2018** **9** 1[st] respondent Bank. 10. The learned counsel for the 1[st] respondent Bank, on instructions, would submit that at present, there is no one time settlement scheme to settle the dues in respect of the loan availed by the petitioner. The learned counsel would also point out that, at this point of time, the 1[st] respondent Bank is also not prepared to grant any instalment facility to the petitioner, since he has not chosen to make any repayment after the remittance of 1,00,000/- during the pendency of₹ W.P.(C).No.11604 of 2005; despite the fact that the award passed by the Arbitrator, as modified by the judgment of the Co-operative Tribunal has attained finality on 11.08.2009 by Ext.R1(a) judgment of this Court in W.P.(C).No.22728 of 2009. The learned counsel would also point out that the claim made by the petitioner in W.P. (C).No.8593 of 2010 for availing the benefit of the one time settlement scheme was declined and **WP(C).No. 26882 of 2018** **10** the writ appeal filed by the petitioner was closed declining interference. ## 11. In **Prestige Lights Limited v. State Bank** **of India [(2007) 8 SCC 449],** the Apex Court reiterated that a prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts **WP(C).No. 26882 of 2018** **11** would become impossible. ## 12. In **Prestige Lights' case (supra)** the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. Paragraphs 33 and 34 of the said judgment read thus: _“33.It is thus clear that though the appellantCompany had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of_ **WP(C).No. 26882 of 2018** **12** _the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter._ _34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 (CA)], in the following words:_ _"It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has_ **WP(C).No. 26882 of 2018** **13** _taken on the faith of the imperfect statement." (Emphasis supplied)_ 13. It is well settled that, a litigant who invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution must come with clean hands and clean objects. The judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process, particularly, in public law remedy. In writ proceedings, the court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Article 226 of the Constitution of India espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled for any reliefs. 14. Having considered the submissions made by the learned counsel on both sides and also the pleadings and materials on record, in the light of **WP(C).No. 26882 of 2018** ## **14** the law laid down in the decisions referred to supra, this Court finds that this writ petition is nothing but an abuse of process of Court, which can only be dismissed by imposing cost. Accordingly, this writ petition is dismissed, imposing a cost of 10,000/- (Rupees Ten thousand₹ only) on the petitioner, payable to the Kerala Stage Legal Service Authority. If the petitioner is not remitting the said amount within three weeks from the date of receipt of a certified copy of this judgment, the said Authority shall take steps to recover the said amount by invoking revenue recovery proceedings, in accordance with law. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** **WP(C).No. 26882 of 2018** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO. 8593/2010 OF THIS HON'BL COURT.** **EXHIBIT P2** **TRUE COPY OF THE PETITION FOR ONE TIME SETTLEMENT DATED 23.07.2018 WITH THE ACKNOWLEDGEMENT BY THE PETITIONER.** **EXHIBIT P3** **TRUE COPY OF THE REPLY LETTER DATED 25.07.2018 ISSUED BY THE SECRETARY TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR FORMULATED BY THE GOVT OF KERALA" NAVAKERALEEYAM KUDISSIKA NIVARANAM - 2017" (CIRCULAR NO.9/2017) DATED 24.01.2017.** - **EXHIBIT P5** - **TRUE COPY OF THE CIRCULAR FORMULATED BY THE GOVT OF KERALA" NAVAKERALEEYAM KUDISSIKA NIVARANAM - 2018" (CIRCULAR NO.6/2018) DATED 02.02.2018.** ## **RESPONDENT'S/S EXHIBITS: NIL** - **EXHIBIT R1 A** **TRUE COPY OF JUDGMENT DATED 11/8/2009 IN WP(C) NO.22728/2009** ## **AV/17/10**