Sucy George v. The Thrissur Co-Operative Agricultural & Rural Development Bank Ltd., Sale Officer, Joint Registrar of Co-Operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940** ## **WP(C).No. 22003 of 2018** ## **PETITIONER/S:** **SUCY GEORGE AGED 52 YEARS W/O.GEORGE,IDIYANAL HOUSE,VETTUKAD, THRISSUR. BY ADV. SMT.S.MUMTAZ** ## **RESPONDENT/S:** |**1**|**THE TRISSUR CO OPERATIVE AGRICUTLURAL & RURAL**| |---|---| ||**DEVELOPMENT BANK LTD. 329**| ||**AYYANTHOL BRANCH,REPRESENTED BY ITS**| ||**MANAGER,AYYANTHOL, THRISSUR, PIN- 680554**| |**2**|**SALE OFFICER**| ||**THE TRISSUR CO OPERATIVE AGRICUTLURAL & RURAL**| ||**DEVELOPMENT BANK LTD. 329,HEAD OFFICE, THRISSUR, PIN-**| ||**680 554**| |**3**|**JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES**| ||**OFFICE OF THE JOINT REGISTRAR OF CO-OP SOCIETIES,**| ||**THRISSUR, PIN- 680 554.**| ||**BY ADVS.**| ||**SMT.DHANYA P.ASHOKAN**| ||**SRI.M.R.VENUGOPAL**| ## **OTHER PRESENT:** ## **SRI K.P. HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 22003 of 2018** **2** ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 sale notice dated 29.05.2018 issued by the 2[nd] respondent Sale Officer and seeking an order directing respondents 1 and 2 to pass orders on Ext.P2 representation dated 07.06.2018, as early as possible. 2. On 04.07.2018, when this writ petition came up for admission, this Court issued urgent notice on admission by speed post to respondents 1 and 2 returnable by two weeks. The learned Government Pleader took notice on admission for the 3[rd] respondent. 3. A counter affidavit has been filed on behalf of the 1[st] respondent Bank opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] **WP(C).No. 22003 of 2018** **3** respondent Bank and also the learned Senior Government Pleader appearing for the 3[rd] respondent Joint Registrar of Co-operative Societies. Despite service of notice, none appears for the 2[nd] respondent Sale Officer. 5. Going by the averments in the writ petition, the petitioner availed a loan for 17 lakhs from₹ the 1[st] respondent Bank in the year 2013 for construction of her house. The tenure of the loan was fixed as 15 years. The petitioner availed the loan by mortgaging her property having an extent of 2.02 Ares, comprised in Survey No.531/P of Kainnur Village in Thrissur Taluk. After availing the loan facility, the petitioner had been paying the loan amount without any default till the end of 2015. Thereafter, due to illness of her husband, she had to spent huge amounts for his treatment. Hence, there occurred default in repayment of the loan amount and the Bank initiated recovery proceedings against her. It is also averred in the writ **WP(C).No. 22003 of 2018** **4** petition that, though arbitration proceedings were initiated against the petitioner, no notices have been issued to her and she did not get any information regarding the same. Without serving a copy of the award passed by the Arbitrator, the 2[nd] respondent Sale Officer initiated proceedings in E.P.No.13 of 2015 and issued Ext.P1 sale notice dated 29.05.2018 demanding a sum of 25,56,000/-₹ together with future interest from 24.05.2018. As per Ext.P1 notice, the sale of the property mortgaged was scheduled to be held on 29.06.2018. On receipt of Ext.P1 notice, the petitioner submitted Ext.P2 request dated 07.06.2018 and thereafter, moved this Court in this writ petition seeking various reliefs. 6. In the counter affidavit filed by the 1[st] respondent it has been stated that the petitioner is only a co-obligant in five loans availed by her son Sijo George, for a total sum of 15 lakhs, for₹ constructing a new house. The said loan was availed **WP(C).No. 22003 of 2018** **5** on 25.07.2013. In addition to this, a cash credit facility for a sum of 1,00,000/-; a consumer loan₹ for 1,00,000/-; and a Swaraj Credit Card loan for₹ ₹50,000/- were availed by him on 25.07.2013. He also availed a gold purchase loan for 3,00,000/-₹ on 09.01.2014. All these loans were availed by petitioner's son Sijo George, who is a resident of the very same house occupied by the petitioner and her husband, who stood as co-obligants in the loan transactions. The petitioner's son Sijo had earlier approached this Court in W.P.(C).No.27303 of 2017 seeking an order to quash a sale notice dated 13.07.2017 issued by the 2[nd] respondent Sale Officer (Ext.P3 in that writ petition) under Section 20 of the Kerala Co-operative Agricultural and Rural Development Bank Act, read with Rule 8(C) of the Rules made thereunder. Subsequently, the petitioner's son deposited a sum of 1,70,000/-₹ before the 1[st] respondent Bank based on the interim order of this Court in that writ petition, though **WP(C).No. 22003 of 2018** **6** the interim order was to deposit a sum of ₹2,00,000/- on or before 17.08.2017. The said writ petition was later disposed of by the judgment dated 19.09.2017, whereby the petitioner's son was directed to pay the balance amount of 30,000/-₹ within three weeks from the date of receipt of a certified copy of that judgment and the balance liability in 15 equated monthly instalments starting from 25.10.2017. However, the petitioner's son failed to comply with the conditions stipulated in the judgment of this Court dated 19.09.2017 in W.P.(C).No.27303 of 2017. Therefore, the 1[st] respondent Bank would contend that the conduct of the petitioner in approaching this Court in this writ petition, suppressing the above facts, is only with an intention to delay the sale proceedings. The learned counsel for the 1[st] respondent Bank would point out that, in terms of Ext.P1 sale notice, sale has already been conducted on 29.06.2018. **WP(C).No. 22003 of 2018** **7** ## 7. 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 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. ## 8. In _**Prestige Lights' case (supra)**_ the Apex Court held further that, under Article 226 of the **WP(C).No. 22003 of 2018** **8** 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: _“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_ **WP(C).No. 22003 of 2018** **9** _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 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)_ 9. It is well settled that, a litigant who invokes the extraordinary jurisdiction of this **WP(C).No. 22003 of 2018** **10** 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. 10. 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 **WP(C).No. 22003 of 2018** ## **11** 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. 11. 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 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. 12. Having considered the submissions made by the learned counsel on both sides with reference to the pleadings and materials on record and taking **WP(C).No. 22003 of 2018** **12** note of the law laid down in the decisions referred to supra, the conclusion is irresistible that the present writ petition is nothing but an abuse of process of the court, which cannot be entertained. It is in respect of the very same loan transaction, the petitioner's son Sijo George, who is the borrower, had approached this Court in W.P. (C).No.27303 of 2017. Though he has not fully complied with the interim order granted by this Court, the said writ petition was disposed of by the judgment dated 19.09.2017, whereby he was directed to pay the balance amount of 30,000/- in₹ terms of that interim order within three weeks from the date of receipt of a copy of the judgment and the balance dues in the loan account in 15 equal monthly instalments commencing from 25.10.2017. 13. The averments in the counter affidavit filed by the 1[st] respondent Bank would show that petitioner's son, who is the borrower, has not chosen to make even a single remittance after the **WP(C).No. 22003 of 2018** ## **13** judgment of this Court dated 19.09.2017 in W.P. (C).No.27303 of 2017. Nearly one year after the disposal of that writ petition, the petitioner has filed this writ petition, wherein it has been stated that she borrowed a sum of 17,00,000/- from₹ the 1[st] respondent Bank in the year 2013, for constructing her house. The fact that the said loan is one availed by the petitioner's son, who had earlier approached this Court in W.P.(C).No.27303 of 2017 and secured the judgment dated 19.09.2017, whereby he has been directed to pay the dues in 15 equal monthly instalments commencing from 25.10.2017 is not disclosed in this writ petition. The petitioner has also suppressed the fact that after the said judgment, not even a single remittance has been made in the loan account in question. 14. Viewed in the light of the law laid down in the decisions referred to supra, the conduct of the petitioner in filing this writ petition suppressing **WP(C).No. 22003 of 2018** **14** the material facts disentitles her from seeking discretionary relief under Article 226 of the Constitution of India. In such circumstances, this writ petition fails and the same is, accordingly, dismissed, imposing a cost of 10,000/- (Rupees Ten thousand only) on the₹ petitioner, payable to the 1[st] respondent Bank, within one month from the date of receipt of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE NOTICE DATED 29.5.2018 ISSUED BY 2ND RESPONDENT TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE REQUEST LETTER SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 7.6.2018** **AV/3/10**