B. Vijayakumar v. Paravur S.N.V. Regional Co-operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940 WP(C).No. 13320 of 2018** ## **PETITIONER/S:** **B.VIJAYAKUMAR AGED 46 YEARS, S/O S.BHALAKRISHNAN, THEKKE CHARUVILA VEEDU, VELLIYAM WEST.P.O.-691540, KOLLAM DISTRICT.** **BY ADV. SRI.MANOJ RAMASWAMYRR** ## **RESPONDENT/S:** **1 THE PARAVUR S.N.V. REGIONAL CO-OPERATIVE BANK LTD NO. 1685 PARAVUR, KOLLAM DISTRICT-691301, REPRESENTED BY THE SECRETARY. 2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES ARBITRATOR-CUM-SALE OFFICER, PARAVUR S.N.V.R.C.BANK LTD.NO.1685, PARAVUR,KOLLAM DISTRICT-691301.** **R1 BY ADV. SMT.ANUROOPA JAYADEVAN R2 BY SMT.MABLE C.KURIEN,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 13320 of 2018 2** ## **JUDGMENT** **The petitioner who availed a loan for Rs.15,00,000/- from the first respondent Cooperative Bank in the year 2016 for purchase of land, vide loan account No.OL 17056, by mortgaging his property having an extent of 8.80 Ares in Survey No.203/3 in Velliyam Village, Kottarakkara Taluk at Kollam District has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondent Bank to consider Ext.P3 application dated 10.01.2018 and allow him to remit the entire dues in installments within a reasonable period. The petitioner has also sought for a writ of certiorari to quash Ext.P2 award dated 25.10.2017 in ARC.No.153/2017 and a writ of mandamus commanding the respondent to keep in abeyance all further proceedings pursuant to Ext.P2 award till the disposal of Ext.P3 application.** **2. On 12.4.2018,when this writ petition came** **WP(C).No. 13320 of 2018 3** **for admission, this Court admitted the matter on file and issued notice to first respondent. The learned Government Pleader took notice for the second respondent.** **3. A counter affidavit has been filed by the first respondent, opposing the reliefs sought for in this writ petition. Though, the said counter affidavit is filed on 9.5.2018, the petitioner has not chosen to file a reply affidavit.** **4. Heard the learned counsel for the petitioner and also the learned counsel for the first respondent Bank.** **5. The petitioner, who availed a loan of Rs.15,00,000/- from the first respondent Bank in the year 2015, vide loan account No.OL 17056, has filed this writ petition with an averment that he had remitted substantial amount towards the loan account and sought some time to settle the transactions. However, there was no response or settlement initiative from the Bank. The averments to that effect are contained in paragraph 3 and** **WP(C).No. 13320 of 2018 4** **Ground A of the writ petition. In ground D of the writ petition, the petitioner has also stated that he was ready and willing to remit a sum of Rs. 50,000/- within a period of 30 days from the order of this Court.** **6. As can be seen from the counter affidavit filed by the first respondent Bank, the petitioner was sanctioned loan for Rs.15,00,000/-, vide loan account No.OL 17056, on 30.03.2016 at 14% interest to be repaid within 5 years, with a penal/overdue interest at 2%. The petitioner executed Gehan/ Mortgage in favour of the first respondent Bank mortgaging 08.80 Ares of land in Survey No.203 in sub division 3 in Veliyam Village in Kollam District. As the petitioner has not remitted any amount towards the loan amount and interest he was informed on 30.06.2016 and 14.10.2016 by phone and on 15.07.2016 and 29.09.2016 he was personally informed about the dues. As he has defaulted repayment of the loan amount, the Society filed arbitration case on 9.11.2016. The arbitrator** **WP(C).No. 13320 of 2018 5** **passed Ext.P2 award in ARC.No.153/2017 on 15.10.2017 allowing the first respondent bank to recover an amount of Rs.16,35,280/- with 16% interest from 9.11.2016 and other expenses from the petitioner and his assets mortgaged to the Bank. The award has become final in the absence of any appeal filed by the petitioner before the Kerala Co-operative Tribunal. As per the counter affidavit of the first respondent Bank, the total liability as on 30.5.2018 was Rs.19,75,467/-.** **7. The pleadings and materials on record make it explicitly clear that, despite the fact that the petitioner has not chosen to make any repayment after availing the loan amount of Rs.15,00,000/from the first respondent Bank on 30.03.2016, the petitioner has moved this writ petition with absolutely incorrect statement of facts, wherein it is averred that he has remitted substantial amount. Though a copy of the counter affidavit filed by the first respondent Bank is served on the learned counsel for the petitioner on 9.5.2018, the** **WP(C).No. 13320 of 2018 6** **petitioner has not chosen to file a reply affidavit refuting the averments contained therein.** **8. 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 would become impossible.** **9. In Prestige Lights' case (supra) the Apex** **WP(C).No. 13320 of 2018 7** **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 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** **WP(C).No. 13320 of 2018 8** **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 taken on the faith of the imperfect statement." (Emphasis supplied)** 10. **It is well settled that, a litigant who invokes the extraordinary jurisdiction of this** **WP(C).No. 13320 of 2018 9** **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.** **11. Having considered the submissions made by the learned counsel on both sides, this Court finds that the petitioner, who has approached this Court in the writ petition, suppressing material facts from the notice of this Court is not entitled for any discretionary relief under Article 226 of the Constitution of India. This writ petition is nothing but an abuse of process of court, which can** **WP(C).No. 13320 of 2018 10** **only be dismissed imposing cost.** **12. In such circumstances, this writ petition is dismissed imposing a cost of Rs.10,000/- payable to the Kerala State Legal Services Authority within two weeks, from the date of receipt of a copy of this judgment.** **13. In case the petitioner fails to pay the said amount within the time limit specified as above, it would be open to the Kerala State Legal Services Authority to recover the said amount by initiating revenue recovery proceedings against the petitioner and her assets, in terms of G.O (Ms)No.107/2011/RD dated 26.2.2011, by which the provisions under the Revenue amounts due from any person or class of persons to the said Authority.** **Registry shall communicate a copy of this order to the Member Secretary,Kerala State Legal Services Authority, Kochi.** **Sd/-** **ANIL K.NARENDRAN, JUDGE** ACM **WP(C).No. 13320 of 2018 11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PASS BOOK (RELEVANT PORTION) EXHIBIT P2 TRUE COPY OF THE AWARD VIDE PROCEEDINGS DATED 25.10.2017 EXHIBIT P3 TRUE COPY APPLICATION SUBMITTED BEFORE THE BANK DATED 10.01.2018.** **RESPONDENT(S)' EXHIBITS** : **NIL** //TRUE COPY// PA TO JUDGE