Sajeev Thomas and Others v. The Special Sale Officer, Kooroppada SCB Group and Anikkad Regional Farmers Service Co-Operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940 WP(C).No. 21149 of 2018** ## **PETITIONERS:** |**1**|**SAJEEV THOMAS**| |---|---| ||**AGED 56 YEARS, S/O.V.T.THOMAS (LATE),PULLATTU**| ||**VALIYAVEETTIL, ELAMBALLI,ANIKKAD, KOTTAYAM - 686 503.**| |**2**|**RAJEEV THOMAS**| ||**AGED 58 YEARS, S/O.V.T.THOMAS (LATE),PULLATTU**| ||**VALIYAVEETTIL, ELAMBALLI,ANIKKAD, KOTTAYAM - 686 503.**| |**3**|**THARA THOMAS**| ||**AGED 45 YEARS, D/O.V.T.THOMAS (LATE),PULLATTU**| ||**VALIYAVEETTIL, ELAMBALLI,ANIKKAD, KOTTAYAM - 686 503.**| |**4**|**VALSAMMA JERALA**| ||**AGED 50 YEARS, D/O.V.T.THOMAS (LATE),PULLATTU**| ||**VALIYAVEETTIL, ELAMBALLI,ANIKKAD, KOTTAYAM - 686 503.**| |**5**|**JESSY ABRAHAM**| ||**AGED 55 YEARS, D/O.V.T.THOMAS (LATE),PULLATTU**| ||**VALIYAVEETTIL, ELAMBALLI,ANIKKAD, KOTTAYAM - 686 503.**| |**6**|**TOM SAJEEV**| ||**AGED 28 YEARS, S/O.SAJEEV THOMAS,PULLATTU**| ||**VALIYAVEETTIL, ELAMBALLI,ANIKKAD, KOTTAYAM - 686 503.**| ||**BY ADVS.**| ||**SRI.C.Y.VINOD KUMAR**| ||**KUM.D.MINI RAJAN**| ## **RESPONDENTS:** |**1**|**THE SPECIAL SALE OFFICER**| |---|---| ||**KOOROPPADA SCB GROUP,OFFICE OF THE ASSISTANT**| ||**REGISTRAR OF CO-OPERATIVE SOCIETIES(G)**| ||**KOTTAYAM P.O, KOTTAYAM - 686 006.**| W.P.(C) No.21149/2018 2 **2 ANIKKAD REGIONAL FARMERS SERVICE CO-OPERATIVE BANK LTD.NO.3867** **ANICKAD P.O, PALLIKKATHODU, KOTTAYAM-686 503 REPRESENTED BY ITS BRANCH MANAGER.** **BY ADV. SRI.LIJI.J.VADAKEDOM** ## **OTHERS PRESENT:** **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21149/2018 3 ## **JUDGMENT** The petitioners along with others have availed a loan for a total sum of Rupees One Crore Fifty Lakhs from the second respondent Bank in the year 2010 for purchasing property, agreeing to repay the loan amount in one year. The details of the loan transactions, as stated in the counter affidavit filed by the second respondent reads thus : **==> picture [407 x 123] intentionally omitted <==** total extent of 2 Hectres 64 Ares and 71 sq. mtrs. of property was mortgaged with the second respondent Bank. The details of the property offered as security, as stated in the counter affidavit filed by the second respondent Bank reads thus : **==> picture [342 x 100] intentionally omitted <==** W.P.(C) No.21149/2018 4 3. On account of the default committed in repayment of the loan amount, the second respondent Bank initiated recovery proceedings against the borrowers and also the legal heirs of late V.T.Thomas and his wife Eliyamma Thomas. The second respondent Bank filed 11 arbitration cases on 12.8.2013. In those arbitration cases, awards were passed by the Arbitrator on 19.11.2014. In order to execute those awards, the second respondent Bank filed Execution Applications on 30.9.2015. As per the counter affidavit filed by the second respondent Bank, the total dues as on 30.6.2018 comes to Rs.2,28,28,877/-. When recovery proceedings are initiated by the issuance of Exhibits-P1 to P11 demand notices issued in the execution side, the petitioners have moved this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exhibits-P1 to P11 demand notices and seeking a writ of mandamus commanding the respondents to regularise the loan account and permit them to repay the overdue amount, as on the date of filing of the Writ Petition, in 12 equal monthly instalments. 4. On 27.6.2018, when this Writ Petition came up W.P.(C) No.21149/2018 5 for admission urgent notice by special messenger was ordered to respondents 1 and 2. 5. After the filing of the counter affidavit by the second respondent Bank, a reply affidavit has been filed by the petitioners, wherein it has been stated that the averments in the Writ Petition as to the tenure of the loans was made with a mistaken impression that the loan was availed for a period of 15 years. 6. Heard the learned counsel for the petitioners and also the learned counsel for the second respondent Bank. Despite service of notice, none appears for the first respondent Special Sale Officer. 7. During the course of arguments, the learned counsel for the second respondent Bank would submit that, though an Adalat was conducted on 11.9.2018, the matter could not be settled. In the absence of any concrete proposal made by the petitioners for repayment, within a reasonable time, nothing materialised in that Adalat. 8. The learned counsel for the petitioners would submit that the petitioners are not in a position to pay off the entire dues and they require some time for W.P.(C) No.21149/2018 6 effecting repayment. On a specific query made by this Court, the learned counsel for the petitioners would submit that the petitioners are not in a position to offer a substantial amount towards initial payment, in order to show their bonafides. 9. The pleadings and materials on record would show that, the total amount due to the second respondent Bank comes to Rs.2,28,28,877/- as on 30.6.2018. The total repayment made by the petitioners, after availing a loan for Rupees One Crore Fifty Lakhs in the year 2010, is a around Rs.1,50,000/-. In paragraph 4 of the Writ Petition, the petitioners have averred that the first petitioner has no intention to evade payment of the loan amount and he requires breathing time to clear the loan amount in instalments. ## 10. 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 W.P.(C) No.21149/2018 7 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. 11. 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 W.P.(C) No.21149/2018 8 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, W.P.(C) No.21149/2018 9 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. 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) 12. 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 W.P.(C) No.21149/2018 10 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'. 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 W.P.(C) No.21149/2018 11 requires to be dealt with for Contempt of Court for abusing the process of the court. 13. Having considered the pleadings and materials on record in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that this Writ Petition is nothing but an abuse of process of the court. The petitioners are not entitled for any relief in this Writ Petition, in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. In the result, the Writ Petition fails and it is accordingly dismissed. Sd/- ## **ANIL K.NARENDRAN JUDGE** csl W.P.(C) No.21149/2018 12 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE NOTICE NO. 190/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE NOTICE NO. 191/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE NOTICE NO.192/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE NOTICE NO.193/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE NOTICE NO. 194/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE NOTICE NO. 195/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTICE NO. 196/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE NOTICE NO. 197/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE NOTICE NO. 198/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P10 TRUE COPY OF THE NOTICE NO. 199/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P11 TRUE COPY OF THE NOTICE NO. 200/12 DATED 19.01.2018 ISSUED BY THE 1ST RESPONDENT.** //True Copy// P.S. to Judge csl