Shyju E Edathipparambil v. Authorized Sale Officer, Neezhoor Service Co-Operative Bank Ltd., Kottayam & Manager, Neezhoor Service Co-Operative Bank Ltd., Neezhoor Branch, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940** ## **WP(C).No. 10430 of 2018** ## **PETITIONER:** **SHYJU.E EDATHIPARAMBIL HOUSE,NJEEZHOOR P.O., VAIKOM,KOTTAYAM.** **BY ADV. SRI.LALJI P.THOMAS** ## **RESPONDENTS:** **1 THE AUTHORIZED SALE OFFICER, NEEZHOOR SERVICE CO-OPERATIVE BANK LTD.NO. K-136 KOTTAYAM. 2 MANAGER NEEZHOOR SERVICE CO-OPERATIVE BANK LTD.NO. K-136 NJEEZHOOR BRANCH,KOTTAYAM.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.10430/2018 2 ## **JUDGMENT** The petitioner, who availed a loan for Rs.30,000/- from the second respondent Bank in the year 2011 vide loan account No.DCL-683, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the first respondent not to take any action against the petitioner and for a writ of mandamus restraining the respondents from pursuing any coercive steps in loan account No.DCL 683 and stay the proceedings, pending disposal of the case. 2. On 26.3.2018, when this Writ Petition came up for admission, notice by speed post was ordered to the respondents. 3. Heard the learned counsel for the petitioner. Despite service of notice, none appears for respondents 1 and 2. 4. The pleadings and materials on record would show that, in the year 2011, the petitioner availed a loan for Rs.30,000/- from the second W.P.(C) No.10430/2018 3 respondent Bank. On account of the default committed by the petitioner in effecting repayment,the Bank initiated recovery proceedings. Challenging the recovery proceedings, the petitioner filed W.P.(C) No.31961 of 2014. The said Writ Petition was disposed of by Exhibit-P2 judgment dated 28.11.2014 whereby he was permitted to pay the dues as on 20.10.2014 in monthly instalments. The said judgment reads thus : "1. The petitioner seeks keeping in abeyance of the recovery proceedings till the petitioner files an appeal from Ext.P1 award. Ext.P1 award is dated 27.11.2012. The petitioner was issued notice before the award was passed and the petitioner does not also have a contention that the award had not been communicated as provided under Rule 68 of the Co-operative Societies Rules. In such circumstance there could be no time granted since the Co-operative Tribunal would have no competence to condone the unreasonable delay that has occasioned in the above case. The said position is W.P.(C) No.10430/2018 4 declared by a decision of this Court in **2014(4)KLT 647 Gopinathan Nair v. Kerala** **Co-operative Tribunal** . 2. In such circumstance, the petitioner prays for installments. The respondentBank shall quantify the dues as on 20.12.2014 and issue a statement of accounts, in accordance with which the instalments shall be paid. The 1[st] instalment shall be paid on or before 01.01.2015 and thereafter; the due date of instalments falling on the 01[st] of each succeeding month. If default is committed in two consecutive instalments, then the recovery proceedings shall revive and continue. On the satisfaction of the dues as per the statement, the Bank shall give a statement of the future interest from 20.12.2014 and the same shall be settled as the 11[th] instalment” 5. Admittedly, the petitioner could not repay the dues in terms of Exhibit-P2 judgment of this Court whereby he has been directed to repay the entire dues in 11 monthly instalments. Thereafter, in the year 2018, the petitioner moved Exhibit-P3 representation before the second respondent Bank on W.P.(C) No.10430/2018 5 28.2.2018. 6. During the course of arguments, on a query made by this Court, the learned counsel for the petitioner would submit that, after Exhibit-P2 judgment of this Court, the petitioner did not repay the entire dues as on 20.10.2014, as per the direction contained in that judgment. The learned counsel would also submit that, no repayment has been made subsequent to Exhibit-P2 judgment. 7. As can be seen from Exhibit-P2 judgment, the recovery steps initiated by the second respondent Bank is pursuant to an award passed by the Arbitrator dated 27.11.2012. 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 W.P.(C) No.10430/2018 6 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 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 W.P.(C) No.10430/2018 7 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: **“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 W.P.(C) No.10430/2018 8 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 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 W.P.(C) No.10430/2018 9 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. 11. **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.10430/2018 10 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 requires to be dealt with for Contempt of Court for abusing the process of W.P.(C) No.10430/2018 11 the court. 12. Having considered the submission made by the learned counsel on both sides, with reference to the pleadings and materials on record, this Court finds that this Writ Petition is nothing, but an abuse of process of court. Having failed to comply with the conditions stipulated in ExhibitP2 judgment, whereby the petitioner was permitted to pay off the entire dues in 11 monthly instalments, he cannot file a second Writ Petition before this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. In the result, this Writ Petition is dismissed. Sd/- ## **ANIL K.NARENDRAN, JUDGE** W.P.(C) No.10430/2018 12 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE MEDICAL CERTIFICATE DATED 22.3.2018 ISSUED BY DR. SIJI VARGHESE, CIVIL SURGEON, CHC KOODALLOOR EXHIBIT P2. TRUE COPY OF THE JUDGMENT DATED 28.11.2014 IN W.P.(C)NO.31961/2014 OF THIS HONOURABLE COURT EXHIBIT P3. TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 28.2.2018** //True Copy// P.S. to Judge csl