SHAJI K.M S/O K.K.MADHAVAN v REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM; ARBITRATION AND EXECUTION INSPECTOR OFFICE, MEENACHIL; THODANAL SERVICE CO-OPERATIVE BANK LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 11TH DAY OF OCTOBER 2018 / 19TH ASWINA, 1940** ## **WP(C).No. 19520 of 2018** ## **PETITIONER/S:** **SHAJI K.M S/O.K.K.MADHAVAN, AGED 50** **YEARS,EDAPPATTU(KALLUKUNNATHU) HOUSE,MEVIDA KARA AND P O, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENT/S:** - **1 REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695001.** - **2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES MEENACHIL, PALA P O,PIN-686575.** - **3 ARBITRATION AND EXECUTION INSPECTOR OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MEENACHIL, PALA P O,PIN-686575.** - **4 THE THODANAL SERVICE CO-OPERATIVE BANK LTD NO.1351, THODANAL P O, KOTTAYAM DISTRICT, PIN-686573, REPRESENTED BY ITS SECRETARY.** - **BY ADV. SRI.P.C.SASIDHARAN** - **BY SMT. MABLE C.KURIEN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 19520 of 2018** **2** ## **JUDGMENT** The petitioner, who availed a loan for ₹5,00,000/- from the 4th respondent Co-operative Bank on 13.03.2013 after mortgaging his property having an extent of 13.86 Ares in Survey No.77/3 A (R.S.No.140/12 in Block No.39) and 01.89 Ares in Sy.No.130/1A (R.S.No.66/6) of Meenachil Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 and P6 demand notices dated 04.05.2018 issued by the 3[rd] respondent and seeking a declaration that the petitioner is entitled to get permission to pay the dues towards the 4[th] respondent Bank in instalments. The further relief sought for is a writ of mandamus commanding the respondents to keep in abeyance the sale of the properties pursuant to Ext.P6 sale notice dated 04.05.2018 issued by the 2[nd] respondent Arbitrator cum sale officer, after Exts.P7 and P8 representations dated 07.06.2018 submitted before **WP(C).No. 19520 of 2018** **3** the 4[th] respondent are considered and disposed of. 2. On 13.06.2018, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 3. This Court issued notice by speed post to the 4[th] respondent and granted an interim stay of further proceedings pursuant to Ext.P6 for one month, on condition that the petitioner remits an amount of 75,000/-₹ within one week. 3. A counter affidavit has been filed by the 4[th] respondent, wherein it has been stated that on account of the default committed by the petitioner in repaying the loan amount, arbitration proceedings were initiated against him, which culminated in Ext.R4(a) award dated 09.10.2014 passed by the 2[nd] respondent Arbitrator in ARC No.1733/14. Despite the award passed by the Arbitrator, the petitioner has not chosen to make any repayment and it was in such circumstances **WP(C).No. 19520 of 2018** **4** that coercive proceedings were initiated in E.A.No.453 of 2015. On receipt of notice in the execution petition, the petitioner remitted a sum of ₹40,000/on 26.10.2016. Thereafter, no remittance was made. In the counter affidavit, it has also been stated that the remittance of ₹40,000/- on 26.10.2016 is the only repayment made by the petitioner after availing a loan for ₹5,00,000 on 13.03.2013. 4. A reply affidavit has been filed by the petitioner, wherein it has been stated that there is a prospective purchaser for his property having an extent of 34 cents for a consideration of ₹10,60,000/-. A reading of the reply affidavit filed by the petitioner would indicate that the prospective buyer has some financial constrain to remit the entire sale consideration, since his money is lying in fixed deposit with the 4[th] respondent Bank. ## 5. Heard the learned counsel for the **WP(C).No. 19520 of 2018** **5** petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2 and also the learned counsel for the 4[th] respondent. Despite service of notice, none appears for the 3[rd] respondent Arbitrator and Execution Inspector. 6. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P5 and P6 demand notices invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 7. As borne out from the pleadings and materials on record, though the petitioner availed the loan for 5,00,000/- in the year 2013, the₹ only repayment made is the remittance of 40,000/-₹ on 26.10.2016. On account of the default committed by the petitioner in repaying the loan amount, the 4[th] respondent Bank initiated arbitration proceedings, which culminated in an award passed by the Arbitrator, i.e., Ext.R4(a) dated **WP(C).No. 19520 of 2018** ## **6** 09.10.2014 for a sum of 5,97,579/- together with₹ interest and cost. Despite the award passed by the Arbitrator, the petitioner has not chosen to make any remittance. The award passed by the Arbitrator has attained finality in the absence of any appeal filed by the petitioner under Section 82(1)(d) of the Act. Therefore, the petitioner is a chronic defaulter, inasmuch as, after availing a loan of ₹5,00,000/- in the year 2013, he has made only a remittance of ₹40,000/on 26.10.2016. The petitioner has also not complied with the condition stipulated in the order of this Court dated 13.06.2018, whereby he was directed to deposit a sum of 75,000/- within one week from₹ that date. He has also not filed any application seeking extension of the time limit prescribed in that order to make such remittance. The conduct of the petitioner would show total lack of _bonafides_ on his part and this writ petition is nothing but an abuse of process of the Court. **WP(C).No. 19520 of 2018** **7** ## 7. On a specific query made by this Court, the learned counsel for the petitioner would submit that the petitioner is not having the financial capacity to repay the total dues demanded in Exts.P5 and P6 in monthly instalments within a reasonable time. ## 8. 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 deceiving it. The very basis of the writ **WP(C).No. 19520 of 2018** **8** 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. ## 9. 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).No. 19520 of 2018** **9** _“33.It is thus clear that though the appellantCompany 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. But it knows nothing about the facts, and the applicant must state fully and fairly the_ **WP(C).No. 19520 of 2018** **10** _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)_ 10. 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. Having considered the submissions made by the **WP(C).No. 19520 of 2018** **11** learned counsel on both sides and 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 attempt made by the petitioner to stall the process of recovery initiated by the 4[th] respondent Bank in terms of Ext.R4(a) award passed by the Arbitrator in the year 2014. In such circumstances, this writ petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF PRESCRIPTION DATED 09-082014 ISSUED FROM AIMS EXHIBIT P2 TRUE COPY OF THE DISCHARGE CARD ISSUED FROM THE MEDICAL COLLEGE HOSPITAL KOTTAYAM.** **WP(C).No. 19520 of 2018** **12** **EXHIBIT P3 TRUE COPY RECEIPT DATED 26-10-2016 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P4** - **TRUE COPY OF THE ACKNOWLEDGEMENT CARD ISSUED FROM THE OFFICE OF THE CHIEF MINISTER.** - **EXHIBIT P5 TRUE COPY OF EA DEMAND NOTICE DATED 0405-2018.** - **EXHIBIT P6 TRUE COPY OF SALE NOTICE DATED 04-052018** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 07-06-2018 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 07-06-2018 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF REPRESENTATION DATED 10.072018 OF THE PETITIONER** - **EXHIBIT P10 TRUE COPY OF THE REPLY DATED 28.07.2018 OF THE 4TH RESPONDENT** ## **RESPONDENTS' EXHIBITS :** **EXT.R4(a) TRUE COPY OF THE AWARD IN A.R.C.NO.1733 OF 2014** ## **AV/20/10**