Jaibin.K.J. v. The Secretary, Head Office Branch, Chendamangalam Service Co-Operative Bank Ltd & The Chief Executive Officer, Chendamangalam Service Co-Operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** ## **WP(C).No. 16124 of 2018** ## **PETITIONER:** **JAIBIN.K.J., AGED 42 YEARS,S/O.JOSEPH, KALLUNKAL HOUSE, CHERIYAPAZHAPPILLYTHURUTH, GOTHURUTH P.O., NORTH PARAVOOR, ERNAKULAM** **BY ADV. SMT.P.V.SOBHANA** ## **RESPONDENTS:** **1 THE SECRETARY, HEAD OFFICE BRANCH, CHENDAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO.132, CHENDAMANGALAM P.O., NORTH PARAVOOR,ERNAKULAM, PIN-683 512. 2 THE CHIEF EXECUTIVE OFFICER, CHENDAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO.132, CHENDAMANGALAM P.O., NORTH PARAVOOR, ERNAKULAM, PIN-683 512. BY ADV. SRI.A.N.SANTHOSH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16124 of 2018** -2- ## **JUDGMENT** The petitioner, who availed a loan for Rs.8,00,000/from Chendamangalam Service Co-operative Bank Limited, in the year 2014, vide loan account No.111/13, for business purpose, by mortgaging his property having an extent of 23 cents comprised in old Sy.No.45/1 (New Re.Sy.No.508/11) in Chendamangalam Village, agreeing to repay the same, within a period of 5 years, 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 extend the benefit of One Time Settlement Scheme. The further relief sought for is an order directing the respondents to consider Ext.P1 representation and include his debt in the One Time Settlement Scheme, thereby exempting him from payment of interest, penal interest, etc. 2. On 28.06.2018, when this writ petition came up for consideration, it was submitted by the learned counsel for the 1[st] respondent Bank that the total liability as on 26.04.2018 in respect **WP(C).No.16124 of 2018** -3- of the loan availed by the petitioner comes to Rs.12,08,154/-. The learned counsel for the petitioner sought adjournment and accordingly, the matter was ordered to be listed on 03.07.2018. 3. On 03.07.2018, the learned counsel for the petitioner submitted that, the 1[st] respondent Bank may be directed to file a statement regarding the loan amount outstanding. Accordingly, the 1[st] respondent Bank was directed to file a statement as to the details regarding the loan amount outstanding and also the particulars of the repayment already made by the petitioner, after availing loan in the year 2014. 4. On 11.07.2018, a counter affidavit has been filed on behalf of the 1[st] respondent Bank, wherein it has been stated that, though the petitioner has availed business loan for - Rs.8,00,000/ on 24.02.2014 , he has not even paid a single instalment. A true copy of the loan-personal ledger in respect of the loan availed by the petitioner is placed on record as Ext.R1(a). In the counter affidavit, it has also been stated that, **WP(C).No.16124 of 2018** -4- during the 1[st] week of May, the petitioner submitted a petition in the nature of Ext.P1 before the 1[st] respondent Bank seeking to wipe off the liability by including his loan under OTS Scheme. Since there was no OTS Scheme available as on the date of submission of Ext.P1, the 1[st] respondent Bank is not in a position to consider that representation. 5. On 13.07.2018, during the course of arguments, the learned counsel for the petitioner could not point out any scheme available as on the date of Ext.P1 application by the petitioner for availing OTS facility, in order to settle his dues towards the 1[st] respondent Bank, in respect of the loan transaction in question. After arguing for some time, the learned counsel for the petitioner sought adjournment and accordingly, the writ petition was ordered to be listed on 16.07.2018. 6. On 13.07.2018, the petitioner has filed as 'Bench Mark' the reply affidavit of the petitioner; I.A.No.12653 of 2018 seeking an order to implead the Assistant Registrar of Co-operative Societies, North Paravoor as additional 3[rd] respondent; and **WP(C).No.16124 of 2018** -5- I.A.No.12654 of 2018 to accept Exts.P3, P3(a) and P4 as additional documents. The document marked as Ext.P3 is a representation dated 12.07.2018 of the petitioner, addressed to the Assistant Registrar of Co-operative Societies, North Paravoor and Ext.P3(a) is the postal receipt. Ext.P4 is the loan-personal ledger in respect of a house repair loan availed by one Neena Joy. The petitioner is one of the sureties to that loan transaction. 7. On 16.07.2018, this writ petition was adjourned to 17.07.2018, a submission was made on behalf of the learned counsel for the petitioner that, settlement talks are going on with the 1[st] respondent Bank and as such, the petitioner is not interested in prosecuting the matter further. It was also submitted that, a memo to dismiss the writ petition as not pressed is being filed. 8. Heard the learned counsel for the petitioner and also the learned counsel for the 1[st] respondent Bank. Despite service of notice, none appeared for the 2[nd] respondent. 9. Admittedly, there is no One Time **WP(C).No.16124 of 2018** -6- Settlement Scheme, whereby the petitioner can avail the benefit of waiver of interest. The petitioner is also not prepared to pay off the total dues in monthly instalments, within a reasonable time, despite the fact that the learned counsel for the 1[st] respondent Bank has offered settlement of liability by way of monthly instalments. 10. The fact that after availing business loan for Rs.8,00,000/- on 24.02.2014, the petitioner has not made even a single repayment has not been disclosed in the writ petition. The only averment made in paragraph 2 of the writ petition is that, unfortunately, the petitioner was not able to repay the loan amount as agreed. Therefore, the pleadings and materials on record would make it explicitly clear that the petitioner is a chronic defaulter and the said fact was suppressed in this writ petition. 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 **WP(C).No.16124 of 2018** -7- 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. 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 ## **WP(C).No.16124 of 2018** -8- 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 appellant-Company 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 obtain relief on an ex parte statement he should made a full and **WP(C).No.16124 of 2018** -9- 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) 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 **WP(C).No.16124 of 2018** -10- facts, is not entitled for any reliefs. 14. 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 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 **WP(C).No.16124 of 2018** -11- applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. 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 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. 15. 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 **WP(C).No.16124 of 2018** -12- 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 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. 16. 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. 17. Though this is a fit case in which the writ petition has to be dismissed imposing cost on the petitioner, having considered the submission made by the learned counsel for the petitioner that the petitioner is a person from flood affected area, I deem it appropriate to permit the petitioner to withdraw this writ petition and the writ petition is accordingly dismissed as withdrawn. It is made clear that this judgment will not stand in the way of the petitioner approaching the 1[st] respondent Bank and seeking settlement of dues in **WP(C).No.16124 of 2018** -13- accordance with law, considering the fact that he is a person from flood affected area. Sd/- **ANIL K.NARENDRAN** **JUDGE** **bpr** **//TRUE COPY// P.A. TO JUDGE**