Nabeesa v. State of Kerala and others

# **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. 11262 of 2018** ## **PETITIONER:** **NABEESA** **AGED 55 YEARS** **W/O.LATE SULAIMAN, EDAVANAKATT, NELLIPARAMBATH HOUSE, KANDAMKULAM.P.O.** **BY ADV. SMT.E.V.MOLY** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM- 687 001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM.** - **3 KODUNGALLUR TALUK PRIMARY CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, KODUNGALLUR P O-680664 REPRESENTED BY ITS MANAGER.** - **4 SALE OFFICER KODUNGALLUR TALUK PRIMARY CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, KODUNGALLUR P O-680664.** ## **OTHER PRESENT:** ## **SMT MABLE C.KURIAN,GOVERNMENT PLEADER** **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.11262 of 2018** ## **:-2-:** ## **J U D G M E N T** The husband of the petitioner availed a loan for Rs.5,25,000/- from the 3[rd] respondent Cooperative Bank in the year 2011 by mortgaging her property having an extent of 10 cents comprised in Survey No.657 of Methala Village, Kodungalur Taluk. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 sale notice dated 26.2.2018 issued by the 4[th] respondent Sale Officer and seeking a writ of mandamus commanding the 3[rd] respondent Bank to permit her to pay off the overdue amount in reasonable instalments and regularise the loan account. The petitioner has also sought for other consequential reliefs. 2. Heard the learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent Bank. ## **W.P.(C)No.11262 of 2018** ## **:-3-:** 3. Learned counsel for the petitioner would submit that the petitioner is not in a position to pay the overdues in monthly instalments and she may be granted atleast 6 months' time to pay off the overdues. 4. Learned counsel for the 3[rd] respondent Bank would submit that in respect of the loan transaction covered by Ext.P3 sale notice, the total overdues as on 31.3.2018 would come to Rs.7,53,475/- and the total liability as on that date would come to Rs.9,66,398/-. Learned counsel would also point out that the petitioner's son one Rahim had earlier approached this Court in W.P. (C)No.3080/2016, seeking a writ of mandamus commanding the 4[th] respondent Bank to permit him to pay off the dues in monthly instalments. The said writ petition was disposed of vide Ext.P2 judgment dated 7.7.2016, whereby he was permitted to clear ## **W.P.(C)No.11262 of 2018** ## **:-4-:** the overdue amount in eight equal monthly instalments commencing from 25.8.2016. However, after Ext.P2 judgment, not even a single repayment has been made towards the liability in the loan account in question. 5. Having considered the submissions made by the learned counsel on both sides, this Court finds that there is total lack of bonafides on the part of the petitioner in approaching this Court, seeking instalment facility for repayment of liability in the loan transaction in question. Having failed to comply with the conditions stipulated in Ext.P2 judgment of this Court dated 7.7.2016 in W.P.(C)No.3080/2016, the petitioner herein, who is another legal heir of the deceased borrower, cannot seek instalment facility, in exercise of discretionary jurisdiction of this Court under Article 226 of the Constitution of ## **W.P.(C)No.11262 of 2018** ## **:-5-:** India, by filing another writ petition. Even now the petitioner is not prepared to make even a single repayment to show her bonafides. 6. 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 ## **W.P.(C)No.11262 of 2018** ## **:-6-:** 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 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 ## **W.P.(C)No.11262 of 2018** ## **:-7-:** 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. 7. Having considered the submissions made on both sides and in the light of the law laid down in the decision cited supra, the conclusion is irresistible that the writ petition is nothing but an abuse of process of this Court, which can only be dismissed. 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** **TRUE COPY OF THE RELEVANT PAGES OF THE RATION CARD.** ## **W.P.(C)No.11262 of 2018** **:-8-:** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WP(C) NO.3080/2016. EXHIBIT P3 TRUE COPY OF THE SALE NOTICE. //TRUE COPY// P.A.TO JUDGE** ## **ami/**