M.K Thankamma vs Special Sale Officer, Office of the Assistant Registrar of Co-operative Societies (General), Kottayam; Ettumanoor Service Co-operative Bank

## **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. 9703 of 2015** ## **PETITIONER/S:** **M.K THANKAMMA AGED 55 YEARS W/O. JOSE, PANNIKUZHIYIL HOUSE, KANAKKARY P.O., ETTUMANOOR - VIA, KOTTAYAM DISTRICT.** **BY ADV. SRI. BABU JOSEPH KURUVATHAZHA** ## **RESPONDENT/S:** **1 SPECIAL SALE OFFICER OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), KOTTAYAM-686 002.** **2 ETTUMANOOR SERVICE CO-OPERATIVE BANK NO.4069 ETTUMANOOR P.O., KOTTAYAM DISTRICT-686 631, REPRESENTED BY ITS SECRETARY.** **BY ADVS. SRI.KOSHY GEORGE SRI. NITHIN SUNNY ALEX** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.09.2018, ALONG WITH WP(C).NO.39834 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** **W.P.(C).No.9703 of 2015 : The petitioner, who** **availed a loan for ₹75,000/from the 2nd** **respondent Service Co-operative Bank in the year** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **2** **2005, has filed this writ petition seeking a writ of certiorari to quash Ext.P1 demand notice in E.A.No.322/14 issued by the 1[st] respondent Special Sale Officer. The further relief sought for in this writ petition is a writ of mandamus commanding the 2[nd] respondent to consider and dispose of Ext.P2 representation dated 01.03.2015.** **2. On 26.03.2015 when this writ petition came up for admission, the learned Government Pleader took notice for the 1[st] respondent and this Court issued urgent notice to the 2[nd] respondent.** **3. W.P.(C).No.39834 of 2017 : The petitioner in W.P.(C).No.9703 of 2015 has filed this writ petition, during the pendency of that matter, seeking a writ of certiorari to quash Ext.P1 auction notice in E.A.No.322 of 2014 and Ext.P3 notice dated 30.11.2017 issued by the 2[nd] respondent Special Sale Officer. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to permit her to clear the** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **3** **arrears as per Exts.P1 and P3 upon such terms as this Court deem fit.** **4. On 11.12.2017, when W.P.(C)No.39834 of 2017 came up for admission, urgent notice on admission by speed post was ordered to the respondents returnable within two weeks. This Court granted an interim stay of all further proceedings pursuant to Exts.P1 and P3 notices for a period of one month, on condition that the petitioner deposits a sum of ₹25,000/before the 1st respondent Bank on or before 12.12.2017.** **5. On 20.08.2018 when W.P.(C)No.39834 of 2017 came up for further consideration, it was submitted by the learned counsel for the 1[st] respondent Bank that the petitioner has not complied with the condition stipulated in the order of this Court dated 11.12.2017, whereby she has been directed to deposit a sum of 25,000/- on₹ or before 12.12.2017. Based on the submission made by the learned counsel for the 1[st] respondent Bank that the petitioner had earlier approached this** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **4** **Court in W.P.(C).No.9703 of 2015 seeking the very same relief, the Registry was directed to list both writ petitions on 21.08.2018.** **6. Heard the respective counsel appearing for the petitioner in both the writ petitions and also the learned counsel for the respondent Bank.** **7. The learned counsel for the respondent Bank on instructions would submit that though the petitioner had made certain remittance after availing the loan in the year 2005, she defaulted payment of most of the monthly instalments. It is also submitted that on account of the default committed by the petitioner in effecting repayment, the Bank initiated arbitration proceedings, which culminated in the award dated 29.10.2012 in A.R.C.No.1006 of 2012. By the said award, the petitioner was directed to pay a sum of ₹1,21,707/-, together with interest at 15% for the principal amount of 75,000/- from 30.10.2012 to₹ the respondent Bank. The petitioner challenged the said award of the Arbitrator in Appeal No.67 of** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **5** **2014, which was allowed by the judgment dated 31.03.2015 of the Kerala Co-operative Tribunal, whereby the matter was remanded to the Arbitrator for fresh disposal. After remand, the Arbitrator passed a fresh award and it is in execution of the said award that proceedings have been initiated against the petitioner.** **8. Having considered the submissions made by the learned counsel on both sides, this Court finds that, despite the interim order granted by this Court in W.P.(C)No.39834 of 2017, whereby further proceedings pursuant to Exts.P1 and P3 were ordered to be stayed for a period of one month, the petitioner has not chosen to remit the sum of 25,000/-. The petitioner has not even₹ filed an application seeking extension of the time stipulated for making such payment. The pleadings and materials on record would show that the pendency of W.P.(C).No.9703 of 2015 was never disclosed by the petitioner in her second writ petition, i.e., W.P.(C).No.39834 of 2017. In the** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **6** **affidavit accompanying to W.P.(C).No.39834 of 2017, the petitioner has stated that she has not filed any petition before this Court seeking similar reliefs.** **9. In Dhananjay Sharma v. State of Haryana and 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.** **10. 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** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **7** **effectively curbed with a strong hand. In Sciemed Overseas Inc. v. BOC India Limited and others (2016) 3 SCC 70], 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.** **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 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** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **8** **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 entertain the petition and dismiss it without entering into merits of the matter. Paragraphs 33 and 34 of the said judgment read thus:** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **9** **“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 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._ **WP(C).Nos. 9703 of 2015 & 39834 of 2017** ## **10** _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 facts, is not entitled for any reliefs.** **14. The law laid down by this Court now stands** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **11** **affirmed by the judgment of the Division Bench of this Court dated 03.08.2018 in W.A. No.1592/2018** **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 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** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** ## **12** **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 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** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** ## **13** **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.** **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.** **18. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that the writ petitions filed by the petitioner are nothing but an abuse of process of the Court. There is total lack of** _**bona fides**_ **on the part of the petitioner in approaching this Court, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.** **In such circumstances, these writ petitions** **WP(C).Nos. 9703 of 2015 & 39834 of 2017** **14** **stand dismissed with a cost of 10,000/- (Rupees₹ Ten thousand only) payable by the petitioner to the respondent Bank, within a period of one month from the date of receipt of a certified copy of this judgment. In case of default in paying the amount of cost, the respondent Bank shall recover the same by initiating appropriate proceedings against the petitioner.** ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE DEMAND NOTICE BEARING NO.EA 322/14 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 COPY OF THE REPRESENTATION DTD.1.3.2015 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS.** ## **RESPONDENTS' EXHIBITS : NIL** **AV/11/9** **TRUE COPY** **P.A.TO JUDGE**