Jayalakshmi d/o Parukutty Amma and Gopalakrishnan v. Muvattupuzha Primary Co-operative Agriculture and Rural Development Bank Ltd and Kanayannur Primary Co-operative Agriculture and Rural Development Bank Group

# **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. 2280 of 2018** ## **PETITIONER:** **JAYALAKSHMI D/O.PARUKUTTY AMMA AND GOPALAKRISHNAN,AGED 52, ARAYANICHIVATTIL, PUTHENPURAYIL,PERUMBAVOOR P.O.** **BY ADVS. SMT.R.RANJINI SRI.M.ASHOK KINI** ## **RESPONDENTS:** **1 MUVATTUPUZHA PRIMARY CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK LTD.NO.4389 ARAKUZHA ROAD, MUVATTUPUZHA - 686 661,REPRESENTED BY ITS SPECIAL SALES OFFICER. 2 SENIOR CO-OP. INSPECTOR/SPECIAL SALES OFFICER KANAYANNUR PRIMARY CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK GROUP, MUVATTUPUZHA - 686 661.** **BY ADVS. SRI.BRIJESH MOHAN KUM.NEETU VINOD SRI.K.JAJU BABU (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.2280 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who availed three loans from the 1[st] respondent Bank, vide loan account Nos.CC545, SCC488 and FC236, offering as security her property having an extent of 25 cents, comprised in Survey No.495/5 and 495/10/2 of Muvattupuzha Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 sale proclamation dated 8.12.2017 issued by the 2[nd] respondent Special Sale Officer and seeking a writ of mandamus commanding the respondents to issue correct statement of accounts for loan Account Nos.C.C.545, S.C.C.No.488 and F.C.No.236, showing the actual amount due from the petitioner and permit her to pay off the actual amount due, in 10 equal monthly instalments. 2. On 22.1.2018 when this writ petition came ## **W.P.(C)No.2280 of 2018** ## **:-3-:** up for admission, this Court issued urgent notice on admission by speed post to the respondents, returnable in three weeks. This Court granted an interim stay of all further proceedings pursuant to Ext.P2 sale proclamation for a period of one month, on condition that the petitioner deposits a sum of Rs.25,000/- with the 1[st] respondent Bank within two weeks. 3. Heard the learned counsel for the petitioner and also the learned counsel for the 1[st] respondent Bank. Despite service of notice, none appears for the 2[nd] respondent Special Sale Officer. 4. Learned counsel for the 1[st] respondent Bank on instructions would submit that despite the order of this Court dated 22.1.2018, the petitioner has not chosen to pay a sum of Rs.25,000/- within the period of two weeks from that date. The learned counsel would also point out that the details of ## **W.P.(C)No.2280 of 2018** ## **:-4-:** the actual liability in respect of each loan accounts were furnished to the petitioner in Ext.P1 demand notice dated 17.10.2017, which was followed by Ext.P2 sale notice dated 8.12.2017 demanding a sum of Rs.2,70,243/- together with future interest from 8.12.2017. 5. The learned counsel for the petitioner would submit that the petitioner could not remit a sum of Rs.25,000/- in terms of the interim order of this Court and that she is unable to pay the dues in Ext.P2 in monthly instalments as she is in acute financial crisis. During the course of arguments, the learned counsel for the petitioner could not raise any serious dispute as to the amount demanded in Ext.P1 demand notice, followed by Ext.P2 sale notice. 6. Having considered the submissions made by the learned counsel for the petitioner and also the ## **W.P.(C)No.2280 of 2018** **:-5-:** learned counsel for the 1[st] respondent, this Court finds that there is lack of bonafide on the part of the petitioner in approaching this Court in this writ petition, invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The averments in the writ petition are to the effect that the petitioner requires only a reasonable time to repay the dues covered by the three loan accounts. The petitioner approached this Court on 22.1.2018, seeking instalment facility to pay off the actual dues in 10 equal monthly instalments, when the property was put for sale on 24.1.2018 by Ext.P2 sale notice dated 8.12.2017. The petitioner obtained an interim order of stay on 22.1.2018 on condition that she deposits a sum of Rs.25,000/- with the 1[st] respondent Bank within two weeks. Once the sale stands adjourned on the basis of the conditional order of stay, she has not ## **W.P.(C)No.2280 of 2018** ## **:-6-:** chosen to pay Rs.25,000/- in terms of the said order. The conduct of the petitioner in not remitting a sum of Rs.25,000/- in terms of the order of this Court dated 22.1.2018 and not bringing up this writ petition for the last more than 8 months, either for extension of time for payment of that amount or for further orders, would show that the intention of the petitioner 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 ## **W.P.(C)No.2280 of 2018** ## **:-7-:** 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 applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with ## **W.P.(C)No.2280 of 2018** ## **:-8-:** '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 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 by the learned counsel on both sides, in the light of the law laid down in the decision cited supra, conclusion is irresistible that this writ petition is nothing but an abuse of process of the Court, which can only be dismissed. ## **W.P.(C)No.2280 of 2018** **:-9-:** In the result, this writ petition fails and the same is dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** ami/7.9.18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. THE PHOTOCOPY OF NOTICE DATED 17.10.2017 ISSUED TO THE PETITIONER EXHIBIT P2. THE PHOTOCOPY OF THE AUCTION PROCLAMATION DATED 8.12.2017, ISSUED BY THE 2ND RESPONDENT. //TRUE COPY// P.A.TO JUDGE** **ami/**