V.T. Francis and Alice Francis v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **WP(C).No. 5015 of 2018** ## **PETITIONERS:** **1 V.T. FRANCIS AGED 65 YEARS, S/O. THOMAS, VADAYATTU HOUSE, POONJAR THEKKEKARA VILLAGE,CHOLATHADAM MURI, MEENACHIL TALUK,KOTTAYAM DISTIRCT-686581** **2 ALICE FRANCIS AGED 60 YEARS, W/O.FRANCIS,VADAYATTU HOUSE, POONJAR THEKKEKARA VILLAGE,CHOLATHADAM MURI, MEENACHIL TALUK,KOTTAYAM DISTIRCT-686581** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SETHURAM DHARMAPALAN SRI.SUNIL KUMAR A.G** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS REGISTRAR OF CO-OPERATIVE SOCIETIES, NEAR CENTRAL STADIUM, THIRUVANANTHAPURAM-695001** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),CIVIL STATION,KOTTAYAM-686002** - **3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) MEENACHIL,PALA-686575.** - **4 THE SPECIAL SALE OFFICER INSPECTOR OF CO-OPERATIVE SOCIETIES,POONJAR S.C.B GROUP, ERATTUPETTA-686652** W.P.(C) 5015/2018 2 **5** **ERATTUPETTA BLOCK URBAN CO-OPERATIVE SOCIETY LTD. NO.1016 HEAD OFFICE, ERATTUPETTA BLOCK URBAN CO-OPERATIVE SOCIETY BUILDING, ERATTUPETTA-686652,REPRESENTED BY IS SECRETARY.** **BY ADVS. R5 BY SRI.CYRIAC KURIAN SRI.SUJITH MATHEW JOSE** ## **OTHERS PRESENT:** **R1 TO R3 BY SRI N.B.SUNIL NATH, GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) 5015/2018 3 ## **JUDGMENT** The petitioners, who availed two loans for Rs.1.5 lakhs each from the fifth respondent Co-operative Society on 12.8.2010 by mortgaging their property having an extent of 48.22 Ares comprised in Sy.No.52/116/5, 116/2327/5 of Mannam Kara, Poonjar Thekkekara Village in Meenachil Taluk, have filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash ExhibitsP1 and P2 notices issued to the petitioners by the fourth respondent Special Sale Officer and seeking a writ of mandamus commanding the fifth respondent to allow them to regularise the loan account. The petitioners have also sought for other consequential reliefs. 2. On 22.2.2018, when this Writ Petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 3. Urgent notice on admission by speed post was ordered to respondents 4 and 5, returnable within three weeks. This Court granted an interim stay of all recovery proceedings pursuant to Exhibits-P1 and P2 for a period of one month on condition that the petitioners deposit a sum of Rs.2,00,000/- with the fifth respondent Society within a period of two weeks. 3. On 26.3.2018, when this Writ Petition came up for further consideration, it was submitted by the learned counsel for the fifth W.P.(C) 5015/2018 4 respondent Bank that the petitioners have not paid any amount in terms of the interim order of this Court dated 22.2.2018. In such circumstances, by order dated 26.3.2018, it was made clear that there is no interim stay of further proceedings and that, the interim stay granted on 22.2.2018 is not effective since the order was a conditional order. 4. The fifth respondent has filed a statement dated 12.3.2018 opposing the relief sought for in this Writ Petition. 5. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 to 3 and also the learned counsel for the fifth respondent Society. Despite service of notice, none appears for the fourth respondent Special Sale Officer. 6. Going by the averments in the Writ Petition, the petitioners availed financial assistance from the fifth respondent Society for agricultural purpose and the accounts were being serviced properly. In the Writ Petition it has also been stated that substantial amounts were also paid by the petitioners and thereafter, for reasons beyond the control of the petitioners, the same fell in arrears and the fifth respondent initiated recovery proceedings. Paragraph 2 of the Writ Petition reads thus : “2. It is submitted that the petitioner availed financial assistance from fifth respondent Bank for agricultural purposes and the accounts were being serviced properly. The amounts were availed by mortgaging the W.P.(C) 5015/2018 5 properties mentioned above. Substantial amounts were also paid by the petitioners. Thereafter for reasons beyond the control of petitioners, the same fell in arrears and the fifth respondent initiated recovery proceedings under the Kerala Co-operative Societies Act and Rules for realising the amounts due to it. The reasons and difficulties were also narrated by petitioners. Even then the petitioners were threatened with coercive steps. The petitioners have repeatedly asked the fifth respondent to provide a statement of accounts, but this was never given.” 7. A statement dated 12.3.2018 has been filed on behalf of the fifth respondent, wherein it has been stated that after availing a loan for Rs.1,50,000/- each on 12.8.2010, the petitioner has not chosen to make any remittance after paying the first instalment. Paragraphs 2 and 3 of the said statement reads thus : “2. It is submitted that petitioners availed a loan of an amount of Rs.1,50,000/- (1.5 lakhs) each on 12.8.2010 on condition of repayment of the loan amount in 60 equal monthly instalments. That is, in monthly instalments of Rs.2500 + interest per month. But the petitioners failed to comply with the agreement after paying the first instalment alone. Thereafter, no amount was paid by the petitioners, despite several demands made by the Society. Ultimately the Society filed ARC before the third respondent. Finally an arbitration award was passed by the third respondent after complying with the due process of law. Thereafter, the fourth W.P.(C) 5015/2018 6 respondent issued P1 and P2 demand demand notices to the petitioners for realisation of the entire amount. At this stage petitioners filed the present Writ Petition before this Honourable Court and obtained an interim order dated 22.2.2018, on condition that petitioners shall deposit a sum of Rs.2,00,000/- before the fifth respondent Society within a period of two weeks. The said order of this Honourable Court is not complied till this day. 3. It is further submitted that outstanding amount of Rs.6,27,714/- is due to the Bank as on 28.2.2018 by the petitioners.” 8. The petitioners have not chosen to file a reply affidavit refuting the averments in the statement filed on behalf of the fifth respondent. 9. The pleadings and materials on record would show that the present Writ Petition is nothing but an abuse of process of court and the petitioners have approached this Court suppressing material facts from the notice of this Court. 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 or is otherwise guilty of misleading the W.P.(C) 5015/2018 7 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 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 W.P.(C) 5015/2018 8 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 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. 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 W.P.(C) 5015/2018 9 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. 13. 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 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** W.P.(C) 5015/2018 10 **[(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 the court. 14. 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. 15. 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 W.P.(C) 5015/2018 11 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. 16. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that this is a fit case which is to be dismissed by imposing cost. Accordingly, the Writ Petition is dismissed imposing a cost of Rs.10,000/- payable by the petitioners to the fifth respondent Society, within one month from the date of receipt of a certified copy of this judgment, failing which the fifth respondent will be entitled to receive the same by initiating appropriate proceedings. Sd/- **ANIL K. NARENDRAN JUDGE** W.P.(C) 5015/2018 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE NOTICE IN E.A.NO.595 OF 2015 DTD. 25.01.2018 ISSUED BY 4TH RESPONDENT TO 1PETITIONER** **EXHIBIT P2:** **TRUE COPY OF NOTICE IN E.A.NO.592 OF 2015 DTD, 25.01.2018 ISSUED BY 4TH RESPONDENT TO 2ND PETITIONER** //True Copy// P.S. To Judge csl