Pokker s/o Moidu v. The General Manager, Kotakkal Co-Operative Urban Bank Ltd and The Kotakkal Co-Operative Urban Bank Ltd

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939 WP(C).No. 37985 of 2017 (W) ---------------------------- PETITIONER: ----------------- POKKER, S/O. MOIDU, AGED 51 YEARS, KUNIKKAKATH HOUSE, PUTHOOR P.O, KOTTAKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.R.RANJITH (MANJERI) RESPONDENTS: ------------------------ 1. THE GENERAL MANAGER THE KOTTAKKAL CO-OPERATIVE URBAN BANK LTD, HEAD OFFICE, KOTTAKKAL, PIN - 676 503. 2. THE KOTTAKKAL CO-OPERATIVE URBAN BANK LTD, REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, KOTTAKKAL, PIN - 676 503. R1 & R2 BY ADV. SRI.P.J.DEVAPRASANTH,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37985 of 2017 (W) ---------------------------- ## **APPENDIX** ## PETITIONERS' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF DISCHARGE CARD OF THE FATHER IN LAW OF THE PETITIONER DATED 30-06-2017. EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS ------------------------------------- EXT.R1(A): COPY OF JUDGMENT DT.7.4.2017 IN WPC No.12528 OF 2017 OF THIS COURT. EXT.R1(B): COPY OF REPLY GIVEN TO THE PETITION BY THE RESPONDENT BANK ON 30.11.2017. TRUE COPY P.S.TO JUDGE dsn ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------W.P.(C)No.37985 of 2017 -----------------------------------------------** Dated this the 20[th] day of December, 2017 ## **JUDGMENT** The petitioner, who availed a business loan from the 2[nd] respondent-Bank, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent-Manager of the 2[nd] respondent-Bank to consider his representation, i.e., Ext.P2 dated 22.11.2017, as expeditiously as possible. The petitioner has also sought for a writ of mandamus commanding the respondents to grant 2 months time to pay the entire liability due to the 2[nd] respondent-Bank as prayed for in Ext.P2 representation. 2. Heard the learned counsel for the petitioner and also the learned counsel for the respondents. 3. The petitioner availed a business loan from the 2[nd] respondent-Bank for Rs.8,00,000/- on 8.9.2015 with a tenure of 60 months by mortgaging his immovable property comprised in Sy.No.228/1 of Othukkungal Village, Puthoor Amsom. The petitioner had earlier approached this Court in W.P.(C)No.12528 of 2016 seeking a writ of mandamus commanding the 2[nd] W.P.(C)No.37985 of 2017 :-2-: respondent Bank to permit him to pay off the overdue amount in respect of the very same loan account in equal monthly instalments and to regularise that loan account. In the said writ petition, the petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Bank to permit him to pay off the entire liability in equal monthly instalments. 4. Pursuant to the order dated 27.11.2017 of a learned Judge of this Court, the Judge's papers in W.P.(C)No.12528 of 2017 are placed along with the Judge's papers in this writ petition. The Judge's papers in W.P.(C)No.12528 of 2017 would show that, the petitioner had earlier approached this Court in that writ petition in view of the recovery proceedings initiated by the 2[nd] respondent Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The document produced as Ext.P1 in that writ petition was a notice dated 2.8.2016 issued by the 2[nd] respondent Bank under Section 13(4) of the SARFAESI Act. The document produced as Ext.P2 was a notice dated 21.3.2017 issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Manjeri whereby the petitioner W.P.(C)No.37985 of 2017 :-3-: was informed that an inspection of the petition schedule property, i.e., the mortgaged property, is scheduled to be held on 21.3.2017 at 3.00 pm, for taking vacant possession. The subject noted on the docket of the said writ petition, which was presented before the Registry on 6.4.2017, reads thus; “ **SARFAESI ACT** - Repayment of loan defaulted - For a direction to the respondent to permit the petitioner to pay off the overdue amount in equal monthly instalments and regularise the loan account.” 5. In paragraph 1 of that writ petition, the petitioner has averred as follows; “The above loan was in fact taken for business purpose and the petitioner has made some repayments also. But thereafter, due to extreme financial crisis, the repayments were defaulted and the bank initiated proceedings as per the provisions of SARFAESI Act.” 6. By the judgment dated 7.4.2017, this Court disposed of W.P.(C)No.12528 of 2017, whereby the petitioner was permitted to pay off the overdue amount of Rs.3,71,926/- in eight equal monthly instalments starting from 8.5.2017 and continued on the 8[th] of every succeeding month along with regular EMIs on the due dates and the accrued interest in every three months. In the said W.P.(C)No.37985 of 2017 :-4-: judgment it was made clear that, recovery shall be stayed on the instalments being regularly paid and on two defaults, it shall be resumed and that, if the arrears are paid up and so are the EMIs satisfied, then the account shall be regularised as per the original agreement. 7. The judgment of this Court dated 7.4.2017 in W.P. (C)No.12528 of 2017 reads thus; “Petitioner has approached this Court being faced with proceedings initiated by the respondent Bank under the SARFAESI Act. 2. The learned counsel for the respondent Bank submits that the petitioner had availed the loan in 2015 and there was no payment from the inception. The loan account was declared a Non Performing Asset on 08.12.2015. It is also submitted that the petitioner is a chronic defaulter and hence there could be no regularisation made of the ' petitioner s loan account. It is also submitted that the total arrears come to Rs.10,43,856/- in the account. 3. The learned counsel for the petitioner submitted that the ' - - petitioner s mother in law was suffering from cancer, considerable money was spent for her treatment and hence a lenient view may be taken. It is also submitted that the petitioner is ready and willing to pay the outstanding dues in installments and will also pay the regular monthly installments, if some time is granted. W.P.(C)No.37985 of 2017 :-5-: 4. According to the respondent Bank the overdue amounts would come to Rs.3,71,926/-. 5. Having regard to the fact that the petitioner has expressed willingness to repay the amount in installments, I am of the view that some indulgence can be shown to the petitioner and the following directions are issued. - (i) The petitioner shall pay the EMI of April 2017 on or before 28.04.2017. - (ii) The petitioner shall then pay the overdue amount of Rs.3,71,926/- in eight equal monthly installments starting from 08.05.2017 and continued on the 8[th] of every succeeding month along with regular EMIs on the due dates and the accrued interest in every three months. - (iii) Recovery shall be stayed on the installments being regularly paid and on two defaults, it shall be resumed. If the arrears are paid up and so are the EMIs satisfied, then the account shall be regularised as per the original agreement.” (underline supplied) 8. Thereafter, on 24.11.2017, the petitioner filed the present writ petition before this Court seeking a writ of mandamus commanding the 1[st] respondent-Manager of the 2[nd] respondentBank to consider Ext.P2 representation dated 22.11.2017 expeditiously, and also a writ of mandamus commanding the respondents to grant him 2 months' time to pay the entire liability W.P.(C)No.37985 of 2017 :-6-: due to the 2[nd] respondent-Bank as prayed for in Ext.P2. The subject noted on the docket of the present writ petition, which is presented before the Registry on 24.11.2017, reads thus; “ **Co-operative Societies Act** - For consideration of Exhibit P2 representation preferred by the petitioner before the respondents as expeditiously as possible however within a reasonable time frame fixed by this Hon'ble Court and to grant the petitioner a breathing time to dissolve his liability.” 9. In paragraph 1 of the present writ petition the petitioner has averred as follows; “The above loan was in fact taken for business purpose and the petitioner has made some repayments also. But thereafter, due to extreme financial crisis, the repayments were defaulted and the bank initiated proceedings as per the provisions of SARFAESI Act. The the petitioner approached this Hon'ble Court for a breathing time to pay of the entire liability in reasonable instalment facility, by filing W.P.(C)No.12528 of 2017. This Hon'ble Court was pleased to grant 8 instalments for payment of the overdue amount of Rs.3,71,926/-, vide order dated 7.4.2017.” 10. In paragraph 3 of the writ petition, the petitioner has averred that, as repayments could not be made as directed by this Court, the Bank is again trying to take possession of his property W.P.(C)No.37985 of 2017 :-7-: even without issuing a notice. 11. The petitioner has not chosen to produce along with this writ petition, a copy of the judgment of this Court dated 7.4.2017 in W.P.(C)No.12528 of 2017, wherein this Court has recorded the submission made by the learned counsel for the 2[nd] respondent Bank that, “the petitioner had availed the loan in 2015 and there was no payment from the inception. The loan account was declared a Non Performing Asset on 8.12.2015. The petitioner is a chronic defaulter and hence there could be no regularisation made of his loan account.” In paragraph 1 of this writ petition it is averred that, the loan was taken for business purpose and the petitioner has made some repayments also. 12. Pursuant to the order of this Court dated 8.12.2017, a counter affidavit has been filed by the respondents, wherein it has been stated that, ever since availing the loan, the petitioner did not remit any amount towards repayment of the loan. Hence the loan became NPA on 8.12.2015 itself and the Bank initiated recovery proceedings under the SARFAESI Act. The petitioner approached this Court in W.P.(C)No.12528 of 2017, which was disposed of by Ext.R1(a) judgment dated 7.4.2017, whereby he W.P.(C)No.37985 of 2017 :-8-: was permitted to repay the overdue amount in 8 equal monthly instalments commencing from 8.5.2017, along with regular instalments, and it was made clear that on two defaults recovery could be resumed. Even after Ext.R1(a) judgment the petitioner did not remit any amount towards repayment. Hence the Bank filed petition under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Manjeri for taking actual possession of the mortgaged property and the Advocate Commissioner appointed by the said court visited the property and required the petitioner to vacate the same. Then the petitioner moved Ext.P2 representation dated 22.11.2017 before the Bank and thereafter filed this writ petition before this Court on 24.11.2017. The Bank has already issued Ext.R1(b) reply dated 30.11.2017, whereby the petitioner was informed that in order to avoid eviction from the property in question, he has to pay off the entire liability in the loan account. 13. Pursuant to the order of this Court dated 8.12.2017, whereby the petitioner was directed to file an affidavit explaining the facts and circumstances in filing the second writ petition suppressing material facts, he has filed an affidavit dated W.P.(C)No.37985 of 2017 :-9-: 14.12.2017. In paragraph 3 of the said affidavit the petitioner has made an evasive statement that he made some repayments to the Bank as stated in the writ petition. The affidavit does not contain the details of such repayments made. Further, no explanation is forthcoming from the petitioner for non-production of a copy of the judgment of this Court dated 7.4.2017 in W.P. (C)No.12528 of 2017, wherein this Court has recorded the submission made by the learned counsel for the 2[nd] respondent Bank that, “the petitioner had availed the loan in 2015 and there was no payment from the inception”. On the other hand, in the counter affidavit filed by the respondents in this writ petition it has been stated that, ever since availing the loan, the petitioner did not remit any amount towards repayment of the loan. 14. As evident from the counter affidavit filed by the respondents, on account of the default committed by the petitioner in repayment of the dues in terms of Ext.R1(a) judgment in W.P.(C)No.12528 of 2017, the Bank filed petition under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Manjeri for taking actual possession of the mortgaged property. Accordingly, the Advocate Commissioner W.P.(C)No.37985 of 2017 :-10-: visited the property and required the petitioner to vacate the same. Then the petitioner moved Ext.P2 representation dated 22.11.2017 before the Bank and thereafter, he filed this writ petition before this Court on 24.11.2017. In the affidavit dated 14.12.2017, the petitioner has stated that, the present writ petition is filed before this Court noting the subject “Co-operative Societies Act” on the docket, as advised by his counsel. 15. Relying on Ext.P3 judgment of this Court dated 11.7.2017 in W.P.(C)No.22995 of 2017, the petitioner would point out that one P.Abdul Rahman Haji, who availed overdraft facility from the Malappuram District Co-operative Bank Ltd., who originally filed W.P.(C)No.31894 of 2016 noting the subject “SARFAESI Act” on the docket of that writ petition had obtained Ext.P3 judgment in W.P.(C)No.22995 of 2017 under the subject “Co-operative Societies Act”. 16. The aforesaid contention cannot be accepted. As held by the Apex Court 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 W.P.(C)No.37985 of 2017 :-11-: 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 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 W.P.(C)No.37985 of 2017 :-12-: 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. 17. 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. 18. 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 W.P.(C)No.37985 of 2017 :-13-: affidavit should be 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. 19. In the instant case, the conduct of the petitioner in approaching this Court in the present writ petition suppressing material facts from notice of this Court disentitle him from seeking discretionary relief in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner could not produce any material to show that after availing the loan in the year 2015, he had made any repayment. Admittedly, after the judgment of this Court dated 7.4.2017 in W.P.(C)No.12528 of 2017, the petitioner has not made any repayment. He has also not sought for any extension of time for making repayment, by filing an appropriate application in W.P. (C)No.12528 of 2016, within a reasonable time. 20. Viewed in the light of the law laid down by the Apex Court in the decisions referred to _supra_ , the conduct of the W.P.(C)No.37985 of 2017 :-14-: petitioner in approaching this Court with unclean hands, suppressing material facts from the notice of this Court cannot be viewed lightly. In such circumstances, I deem it appropriate to dismiss this writ petition, imposing a cost of 10,000/- ₹ (Rupees Ten Thousand only) payable to the 2[nd] respondent Bank within a period of 3 weeks from the date of receipt of a certified copy of this judgment. In the result, this writ petition stands dismissed as above. Sd/- **ANIL K. NARENDRAN JUDGE** DG