Chandran P.K. v. Thrissur Corporation Employees' Co-operative Society Ltd. and Special Sale Officer, SCB Group

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** ## **WP(C).No. 23711 of 2018** ## **PETITIONER:** **CHANDRAN.P.K S/O KRISHNAN, AGED 66 YEARS, PALLIKKAT HOUSE, VALAPPAYA, MEDICAL COLLEGE P.O., THRISSUR-680 596** **BY ADV. SRI.SURAJ.S** ## **RESPONDENTS:** - **1 THE THRISSUR CORPORATION EMPLOYEES' CO OPERATIVE SOCIETY LTD.NO. R. 38, CORPORATION OFFICE COMPOUND, THRISSUR-680001, REPRESENTED BY ITS SECRETARY.** - **2 THE SPECIAL SALE OFFICER SCB GROUP, KURIYACHIRA, ASSISTANT REGISTRAR (GENERAL) OFFICE, AYYANTHOLE, THRISSUR -680003** **BY ADV. SRI.A.D.RAVINDRA PRASAD** ## **OTHER PRESENT:** **SRI K.P.HARISH,SENIOR GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2018, ALONG WITH WP(C).24498/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.23711 and 24498 of 2018 :-2-: ## **J U D G M E N T** The petitioner, who availed a loan for Rs.3 lakhs from Thrissur Co-operative Employees' Cooperative Society, by mortgaging the property having an extent of 76 cents in Survey Nos.433/1 and 434 (Re-survey No.9/49) of Valappaya village, Thrissur District, has filed W.P.(C)No.23711 of 2018 under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 statement of accounts dated 17.1.2018 issued by the 1[st] respondent Society and Ext.P7 sale notice dated 12.6.2018 issued by the 2[nd] respondent Special Sale Officer. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent Society to issue a statement of the loan account in question. On 13.7.2018 when this writ petition came up for admission, notice on admission by special messenger was ordered to respondents returnable by 20.7.2018. ## W.P.(C)Nos.23711 and 24498 of 2018 :-3-: 2. On 20.7.2018, without disclosing the pendency of W.P.(C)No.23711/2018, the petitioner filed W.P.(C)No.24498/2018 through another counsel, seeking a writ of certiorari to quash Ext.P2 sale notice dated 12.6.2018 issued by the 4[th] respondent Special Sale Officer (which is Ext.P7 in W.P. (C)No.23711/2018). The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Society to issue a detailed statement of accounts in respect of the loan transaction covered by Ext.P2, (a relief similar to relief No.(ii) in W.P. (C)No.23711/2018). Other reliefs are also sought for in W.P.(C)No.24498 of 2018. 3. When W.P.(C)No.24498/2018 came up for admission as 'today' motion on 20.7.2018 at 1.45, this Court issued notice on admission by speed post to respondents 3 to 5, returnable within three weeks. The learned Government Pleader took notice ## W.P.(C)Nos.23711 and 24498 of 2018 **==> picture [34 x 8] intentionally omitted <==** on admission for respondents 1 and 2. This Court granted interim stay of all further proceedings pursuant to Ext.P2 sale notice for a period of one month, on condition that the petitioner deposits a sum of Rs.60,000/- with the respondent Society within ten days. 4. On 23.7.2018, when W.P.(C)No.23711/2018 came up for consideration, this Court passed the following order ; “Pursuant to the order of this Court dated 20.07.2018, the 2[nd] respondent Special Sale Officer (Junior Co-operative Inspector, Office of the Assistant Registrar (General), Thrissur) is personally present in Court along with relevant files. 2. It is reported by the learned counsel for the petitioner and also the learned Senior Government Pleader that the very same petitioner has filed W.P.(C).No.24498 of 2018 before this Court on 20.07.2018 as 'today motion' through another lawyer, in which, this Court granted an interim order of stay. The ## W.P.(C)Nos.23711 and 24498 of 2018 **==> picture [34 x 8] intentionally omitted <==** learned counsel, who filed W.P.(C).No.24498 of 2018 without knowing the pendency of this writ petition, is also present before this Court. List this writ petition along with W.P. (C).No.24498 of 2018 for further consideration tomorrow (24.07.2018) at 10.15 a.m. It is submitted by the learned counsel who represents the petitioner in this writ petition that, he has already instructed the petitioner that he should be personally present before this Court on 24.07.2018. The said submission is recorded. The personal appearance of the 2[nd] respondent Special Sale Officer is dispensed with. However, the original files shall be retained by the learned Senior Government Pleader.” 5. On 24.7.2018 when both the writ petitions were listed before this Court, the petitioner was personally present in Court. This Court passed an order dated 24.7.2018 in W.P.(C)Nos.23711 and 24498 of 2018 and the operative portion of the said order reads thus; ## W.P.(C)Nos.23711 and 24498 of 2018 **==> picture [34 x 8] intentionally omitted <==** “5. After considering the pleadings and materials on record, the submissions made by the petitioner, who appeared in person and also the submission of the learned counsel for the respondent Bank, this Court deems it appropriate to direct the petitioner to file an affidavit explaining the facts and circumstances and also to show cause why appropriate proceedings shall not be initiated against him for approaching this Court by suppressing material facts. The said affidavit shall be placed on record by 30.07.2018. 6. It would be open to the learned counsel for the respondent Bank to file counter affidavit, if any, in both the writ petitions.” 6. A counter affidavit has been filed by the 1[st] respondent Society in W.P.(C)No.23711/2018. An affidavit has been filed on behalf of that Society, which is the 3[rd] respondent in W.P.(C)No.24498 of 2018, to which the petitioner has filed a reply affidavit. 7. Today when the case is taken up for further consideration, Sri.R.Suraj Kumar, the learned ## W.P.(C)Nos.23711 and 24498 of 2018 :-7-: counsel for the petitioner in W.P.(C)No.24498/2018 seeks permission to withdraw this writ petition, based on the instructions received from the petitioner, as stated in the reply affidavit filed today as 'Bench Mark'. 8. Heard the respective counsel appearing for the petitioner in W.P.(C)Nos.23711 and 24498 of 2018, the learned Senior Government Pleader appearing for the State and the official respondents, and also the learned counsel for the respondent Co-operative Society. 9. The pleadings and materials on record would show that the petitioner has made a calculated attempt to suppress the material facts by filing W.P.(C)No.24498 of 2018, without disclosing the pendency of W.P.(C)No.23711 of 2018. The fact that the second writ petition, i.e., W.P. (C)No.24498/2018 is one filed by another counsel, ## W.P.(C)Nos.23711 and 24498 of 2018 :-8-: as instructed by the petitioner, is not in dispute. In the affidavit filed pursuant to the orders of this Court, the petitioner has absolutely no case that the pendency of W.P.(C)No.23711 of 2018 was ever disclosed to the learned counsel who filed - W.P.(C)No.24498/2018. The averments in the said affidavit would also indicate that the filing of the second writ petition i.e., W.P.(C)No.24498/2018 was also not disclosed to the learned counsel who filed the first writ petition i.e., W.P. (C)No.23711/2018. Moreover, the question as to whether the petitioner has complied with the order of this Court dated 20.7.2018 in W.P. (C)No.24498/2018 by depositing Rs.60,000/- with the respondent Society within ten days, is seriously in dispute, going by the pleadings and materials on record. ## 10. In **Dhananjay Sharma v. State of Haryana and** ## W.P.(C)Nos.23711 and 24498 of 2018 :-9-: **others (1995) 3 SCC 757** the Apex Court held that filing of false affidavit, or making false statement on oath in courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions, because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. 11. In **Muthu Karuppan, Commissioner of Police,** **Chennai v. Parithi Ilamvazhuthi and another [(2011) 5 SCC 496],** the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a strong hand. In **Sciemed Overseas Inc.** **v. BOC India Limited and others (2016) 3 SCC 70]** , W.P.(C)Nos.23711 and 24498 of 2018 :-10-: the Apex Court held that the observations in **Muthu Karuppan's** case (cited supra) was made in the context of contempt of court proceedings, the view expressed must be generally endorsed to preserve the purity of judicial proceedings. 12. 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 W.P.(C)Nos.23711 and 24498 of 2018 :-11-: 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. 13. 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. ## W.P.(C)Nos.23711 and 24498 of 2018 **==> picture [41 x 8] intentionally omitted <==** 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 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 ## W.P.(C)Nos.23711 and 24498 of 2018 :-13-: 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) 14. 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 ## W.P.(C)Nos.23711 and 24498 of 2018 :-14-: 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. 15. 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 '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 ## W.P.(C)Nos.23711 and 24498 of 2018 :-15-: 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 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 ## W.P.(C)Nos.23711 and 24498 of 2018 **==> picture [41 x 8] intentionally omitted <==** 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. 16. In **Usha Nanthini v. Regional Transport Authority, Palakkad and another [2018 (2) KHC 89]** this Court held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India by suppressing material facts and making false statements,such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately. In such cases this Court has ample power to decline the permission sought for withdrawal of the writ ## W.P.(C)Nos.23711 and 24498 of 2018 :-17-: petition.Dismissal of such writ petitions imposing exemplary costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. 17. The law laid down by this Court in **Usha** **Nanthini's case** _(supra)_ has been affirmed by a Division Bench of this Court in W.A. No.455 of 2018. In the result, these writ petitions are dismissed imposing a cost of Rs.20,000/- on the petitioner, which shall be paid to the Kerala Legal Services Authority, an authority constituted under the Legal Services Authorities Act, 1987 to provide free legal service to the weaker sections of the society. Such payment shall be made within one month from the date of this judgment. In case the petitioner fails to pay the said amount within the time limit specified as above, it would be open to W.P.(C)Nos.23711 and 24498 of 2018 :-18-: the Kerala State Legal Services Authority to recover the said amount by initiating revenue recovery proceedings against the petitioner and his assets, in terms of G.O.(Ms) No.107/2011/RD dated 26.2.2011, by which the provisions under the Revenue Recovery Act, 1968 were made applicable to the recovery of amounts due from any person or class of persons to the said Authority. Registry shall communicate a copy of this judgment to the Member Secretary, Kerala State Legal Services Authority, Kochi, for information. Sd/- **ANIL K.NARENDRAN** **JUDGE** ami/4.9.18 W.P.(C)Nos.23711 and 24498 of 2018 :-19-: **WP(C).No. 23711 of 2018** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY STATEMENT OF ACCOUNT OF**| |---|---| ||**THE PETITIONER MAINTAINED WITH SBT AS**| ||**ON 1.6.2005**| |**EXHIBIT P2**|**A TRUE COPY OF THE JUDGMENT DATED**| ||**24.7.2017 IN W.P.C. NO. 36019 OF 2008**| |**EXHIBIT P3**|**A TRUE COPY OF THE NOTICE FOR HEARING**| ||**DATED 13.10.2017**| |**EXHIBIT P4**|**A TRUE COPY OF THE LETTER DATED**| ||**25.10.2017 ISSUED TO THE PETITIONER**| ||**BY THE 1ST RESPONDENT**| |**EXHIBIT P5**|**A TRUE COPY OF THE ORDER DATED**| ||**17.1.2018 ISSUED BY THE 1ST**| ||**RESPONDENT**| |**EXHIBIT P6**|**A TRUE COPY OF THE NOTICE DATED**| ||**15.2.2018 ISSUED TO THE PETITIONER BY**| ||**THE 2ND RESPONDENT**| |**EXHIBIT P7**|**A TRUE COPY OF THE SALE NOTICE DATED**| ||**12.6.2018**| W.P.(C)Nos.23711 and 24498 of 2018 :-20-: ## **WP(C).No. 23711 of 2018** **RESPONDENTS' EXTS: EXHIBIT R1(a) A TRUE COPY OF THE AWARD DATED 4.3.2006 EXHIBIT R1(b) A TRUE COPY OF THE ORDER IN W.P. (C)NO.19456/2007 OF THE COURT OF KERALA, DATED 1.8.2007 EXHIBIT R1(c) A TRUE COPY OF THE STATEMENT DATED 25.8.2007. EXHIBIT R1(d) A TRUE COPY OF THE LETTER DATED 30.6.2008 ISSUED BY THE PETITIONER EXHIBIT R1(e) A TRUE COPY OF THE LETTER DATED 5.12.2008 EXHIBIT R1(f) A TRUE COPY OF THE LETTER DATED 30.11.2009 EXHIBIT R1(g) A TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 19.1.2018. EXHIBIT R1(h) A TRUE COPY OF THE LETTER DATED 17.1.2018. EXHIBIT R1(i) A TRUE COPY OF THE DETAILED STATEMENT OF ACCOUNT DATED 17.1.2018 EXHIBIT R1(j) A TRUE COPY OF THE ORDER OF THE HIGH COURT DATED 29.1.2018 IN CONTEMPT COURT (CIVIL) NO.2073/2017 IN W.P. (C)NO.36019 OF 2008. A TRUE COPY OF THE SALE ADVERTISEMENT EXHIBIT R1(k) DATED 11.7.2018.**