Biji John v. Nalunakkal Service Co-operative Bank Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **WP(C).No. 27030 of 2018** **PETITIONER:** **BIJI JOHN AGED 45 YEARS** **W/O.JOHN VARGHESE, NEELAMCHIRA HOUSE, VAKATHANAM P.O., KOTTAYAM DISTRICT. PIN - 686 538.** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS:** **1 NALUNNAKKAL SERVICE CO-OPERATIVE BANK LTD NO.296, REPRESENTED BY ITS SECRETARY,VAKATHANAM, KOTTAYAM DISTRICT, PIN - 686 538.** **2 SECRETARY NALUNNAKKAL SERVICE CO-OPERATIVE BANK LTD. NO.296,VAKATHANAM P.O., KOTTAYAM DISTRICT, PIN 686 538. 3 SPECIAL SALE OFFICER O/O.THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,CHANGANACHERRY, KOTTAYAM DISTRICT, PIN - 686 101.** **BY ADVS. REJI GEORGE SRI.BINOY DAVIS OTHER PRESENT: SMT C.S SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.27030 Of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who availed a loan from the 1[st] respondent Co-operative Bank on 15.10.2014 for a sum of Rs.15 lakhs, vide loan account No.1176/1415, by mortgaging her property having an extent of 4.86 Ares in Survey Nos.192/1/13, 269/4B, 269/5A in Vakathanam Village, Vakathanam Kara, Changanacherry Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Special Sale Officer to keep in abeyance all further proceedings pursuant to Ext.P1 notice dated 10.7.2018. The petitioner has also sought for a writ of mandamus commanding the respondents to permit her to clear the entire dues to the 1[st] respondent Bank by way of instalments. 2. On 9.8.2018 when this writ petition came up for admission, this Court issued urgent notice on ## **W.P.(C)No.27030 Of 2018** ## **:-3-:** admission by special messenger to respondents 1 to 3 returnable by 16.8.2018. This Court granted an interim stay of recovery proceedings pursuant to Ext.P1 sale notice for a period of three weeks on condition that the petitioner deposits a sum of Rs.2 lakhs out of Rs.22,34,510/- demanded in the sale notice, with the 1[st] respondent Bank, within a period of two weeks. 3. On 20.8.2018, based on I.A.No.1 of 2018 filed by the petitioner, seeking enlargement of time, this Court extended the time limit stipulated in the order dated 9.8.2018, by a further period of two weeks from 23.8.2018. 4. Today when the case is taken up for further consideration, it is submitted by the learned counsel for the petitioner that the petitioner could not remit the aforesaid amount of Rs.2 lakhs within the extended time granted by this Court. ## **W.P.(C)No.27030 Of 2018** ## **:-4-:** 5. Learned counsel for the 1[st] respondent Bank on instructions would submit that the total liability as on 17.8.2018 comes to Rs.22,34,510/-. The learned counsel would also point out that the petitioner has not raised any serious dispute as to the total amount outstanding as per Ext.P2 statement of accounts. 6. Having considered the submissions made by the learned counsel on both sides, this Court finds that the petitioner has not raised any serious disputes as to his liability, as reflected in Ext.P2 statement of accounts. In paragraph 5 of the writ petition, the petitioner has stated that he requires only a breathing time to settle the amount covered by Ext.P2. Indulgence was shown by granting interim stay on 9.8.2018 of the recovery proceedings pursuant to Ext.P1 notice, on condition of the petitioner depositing Rs.2 lakhs within two ## **W.P.(C)No.27030 Of 2018** ## **:-5-:** weeks. The time prescribed in the said order was later enlarged by the order dated 20.8.2018 by two weeks from 23.8.2018. However, the petitioner failed to deposit that amount, by availing the extension of time granted by this Court. The conduct of the petitioner would show that her intention in filing this writ petition was only to protract the recovery proceedings initiated by the 1[st] respondent Bank. 7. In **K.D. Sharma v. Steel Authority of India** **Ltd. [(2008) 12 SCC 481],** the Apex Court held that the party who invokes the extraordinary jurisdiction of the Apex Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to ## **W.P.(C)No.27030 Of 2018** **:-6-:** 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". In the said decision, the Apex Court held further that, if the primary object as highlighted in **R. v. Kensington Income Tax Commissioners [(1917) 1 KB 486]** is kept in mind, an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with 'soiled hands'. If the applicant does not disclose all the material facts fairly and truly but states ## **W.P.(C)No.27030 Of 2018** ## **:-7-:** them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for Contempt of Court for abusing the process of the court. 8. Having considered the submissions made on both sides and in the light of the law laid down in the decision cited supra, the conclusion is irresistible that the writ petition is nothing but an abuse of process of this Court, which can only be dismissed. In the result, this writ petition fails and the same is dismissed. Consequently, the interim order ## **W.P.(C)No.27030 Of 2018** ## **:-8-:** granted on 9.8.2018, which was extended on 20.8.2018 will stand vacated. Sd/- **ANIL K.NARENDRAN JUDGE** ami/7.9.18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: A TRUE COPY OF THE NOTICE DATED 10.07.2018. EXHIBIT-P2: A TRUE COPY OF THE STATEMENT OF ACCOUNT OF BIJI JOHN IN NALUNNAKKAL SERVICE COOPERATIVE BANK LTD. IN NALUNNAKKAL BRANCH. //TRUE COPY// P.A.TO JUDGE ami/**