Binu T.V. v. Ernakulam District Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** ## **WP(C).No. 3439 of 2019** ## **PETITIONER:** **BINU T.V., AGED 44 YEARS, THEVARKATTU PUTHANPURAM, MUTHOLAPURAM, KOOTHATTUKULAM, ERNAKULAM - 686 665.** **BY ADVS. SRI.B.RAGUNATHAN SRI.M.SALIM SRI.V.M.JACOB** ## **RESPONDENTS:** - **1 ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY GENERAL MANAGER, ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, KAKKANAD, KOCHI-682 030.** - **2 BRANCH MANAGER, ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD., KOOTHATTUKULAM BRANCH, KOOTHATTUKULAM, ERNAKULAM-686 665.** - **3 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KAKKANAD, ERNAKULAM, KOCHI-682 030.** - **4 ASSISTANT REGISTRAR (GENERAL)/SPECIAL SALE OFFICER, KAKKANAD, ERNAKULAM, KOCHI-682 030. SRI.N.RAGHURAJ SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 3439 of 2019** -2- ## **JUDGMENT** The petitioner, who availed a loan for Rs.10,00,000/from the 1[st] respondent District Co-operative Bank in the year 2009, for purchasing a plot having an extent of 97 cents comprised in survey No.132/5A of Elanji Village of Koothattukulam, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Bank to allow him to settle the dues in loan account No.579/178 in easy instalments. 2. On 05.02.2019, when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondent District Co-operative Bank, representing respondents 1 and 2, sought time to get instructions. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent District Co-operative Bank, representing respondents 1 and 2, and also the learned Senior Government Pleader appearing for respondents 3 and 4. **WP(C).No. 3439 of 2019** -3- 4. The learned counsel for the petitioner would submit that the petitioner availed a loan for Rs.10,00,000/in the year 2009 for the purpose of purchasing a plot having an extent of 97 cents, offering as security, the said property and the residential building constructed thereon. On account of the default committed by the petitioner, the 1[st] respondent Bank initiated arbitration proceedings, which culminated in an award passed by the 4[th] respondent Arbitrator in ARC No.139 of 2011. Even after the award, the petitioner could not make any payment, which has resulted in recovery proceedings being initiated in E.P.No.19 of 2013 by the 4[th] respondent Special Sale Officer, by the issuance of Ext.P1 sale notice, whereby the petitioner is informed that the sale of the property in question will be held on 07.02.2019 at 4.30 p.m. 5. The petitioner moved a representation before the 3[rd] respondent Joint Registrar, who has issued Ext.P2 communication dated 21.01.2019 to the General Manager of the 1[st] respondent District Co-operative Bank, whereby the **WP(C).No. 3439 of 2019** -4- Bank was directed to extend the benefit of One Time Settlement Scheme to the petitioner and intimate the said fact to that office. Thereafter, the 1[st] respondent has issued Ext.P3 notice, whereby the petitioner has been asked to deposit a sum of Rs.22,32,076/- by availing the benefit of One Time Settlement, on or before 07.02.2019, in terms of the One Time Settlement Scheme for the year 2018-19. As per Ext.P3, if the petitioner opts for One Time Settlement, the total benefit that can be extended to him comes to Rs.3,48,746/-. 6. During the course of arguments, the learned Standing Counsel for the 1[st] respondent Bank would submit that, if the petitioner is prepared to pay 50% of the settlement amount in Ext.P3, i.e., 50% of Rs.22,32,076/on or before 15.02.2019 and the balance 50% on or before 28.02.2019, he can avail the benefit of that Scheme. The learned Standing Counsel would also submit that, since the petitioner has not chosen to make even a single remittance - after availing a loan for Rs.10,00,000/ in the year 2009, he **WP(C).No. 3439 of 2019** -5- cannot be extended the benefit of payment of the entire dues in reasonable monthly instalments. 7. The fact that, after availing a loan for Rs.10,00,000/- in the year 2009, the petitioner has not made even a single repayment for the last nearly 10 years is not disclosed in the writ petition. Therefore, conclusion is irresistible that the petitioner has approached this Court in this writ petition with unclean hands, suppressing material facts from the notice of this Court. 8. The learned counsel for the petitioner would submit that the petitioner is prepared to pay 25% of the amount mentioned in Ext.P3, within one month from this date and for payment of the balance amount, he requires six months. 9. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. (2018 (3) SCC 85)** , the Apex Court held that loans by financial institutions are granted from public money generated at the tax payer's expense. Such loans does not become the property of the **WP(C).No. 3439 of 2019** -6- person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. 10. 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 **WP(C).No. 3439 of 2019** -7- stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 11. 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 the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that_ **WP(C).No. 3439 of 2019** -8- _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 taken on the faith of the imperfect statement." (Emphasis supplied)_ **WP(C).No. 3439 of 2019** -9- 12. In view of the law laid by the Apex Court in the decision referred to _supra_ , the petitioner, who is a chronic defaulter, cannot seek any indulgence of this Court, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India for repayment of the dues towards the 1[st] respondent Bank. 13. In the instant case, the 1[st] respondent Bank has already offered the benefit of the One Time Settlement Scheme to the petitioner by issuing Ext.P2. The settlement of liability under One Time Settlement Scheme is governed by the provisions of that Scheme and the eligibility of the respective defaulter. When the validity of the said Scheme will expire on 28.02.2019, the petitioner cannot seek instalment facility beyond the said period for payment of the dues. 14. The learned Standing Counsel for the 1[st] respondent District Co-operative Bank would submit that, on account of the introduction of One Time Settlement, the sale scheduled to be held on 07.02.2019 as per Ext.P1 sale **WP(C).No. 3439 of 2019** -10- notice stands adjourned. The learned Standing Counsel would also submit that, if the petitioner is not discharging the liability in terms of the offer made in Ext.P2, the Bank will proceed further with the sale of the property, in accordance with law. In the result, the writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 3439 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TENDER NOTICE OF PROPERTY IN EP NO.19/2013 OF ASSISTANT REGISTRAR/SPECIAL SALE OFFICER ERNAKULAM DISTRICT CO-OPERATIVE BANK. EXHIBIT P2 TRUE COPY OF LETTER NO.AEL/94/2019 DATED 21/1/2019 OF JOINT REGISTRAR CO-OPERATIVE SOCIETIES(GENERAL) ERNAKULAM. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 28/1/2019.** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY// P.A. TO JUDGE**