Jos S/o. Minattil Lonappan and Rosily W/o. Minattil Jos V. Asst. Registrar of Co-operative Societies Ayyanthole and Thrissur Co-operative Agricultural Rural Development Bank No.329 and Sale Officer the Thrissur Co-operative Agricultural & Rural Development Bank Ltd.

WP(C)/2655/2018

AI Insights

The case involves petitioners Jos and Rosily, who had availed four loans from the second respondent Co-operative Bank in 2010. They sought to quash a sale notice issued by the third respondent and requested the court to allow them to renew the loan and pay off arrears in monthly installments. The court initially granted an interim stay on the sale notice, conditional upon a deposit. However, during the proceedings, it was revealed that the property offered as security was already sold, and the confirmation of sale was pending. The bank's counsel indicated a willingness to accept full repayment within a reasonable time in installments, but the petitioners could only afford Rs.5,000 per month. The court, referencing the principles of equity and the need for candid disclosure of facts, dismissed the petition, emphasizing that the petitioners did not come with clean hands.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 799066 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 07-09-2018
• Assessment Year: misc
• Other Referred Cases: Prestige Lights Limited v. State Bank of India, K.D. Sharma v. Steel Authority of India Ltd., R v. Kensington Income Tax Commissioners
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: DHANYA ASHOKAN; M R VENUGOPAL
• Assessee Lawyers: DILIP AKKARA
• Keywords: Monthly Installments; Sale Notice; Writ of Certiorari; Loan Renewal; Equity Jurisprudence

Judgement Text

"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. 2655 of 2018 PETITIONERS: 1 JOS S/O. MINATTIL LONAPPAN, KOOTTALA P.O,THRISSUR 680 652 2 ROSILY W/O. MINATTIL JOS,KOOTTALA P.O, THRISSUR 680 652 BY ADV. SRI.DILIP J. AKKARA RESPONDENTS: 1 ASST. REGISTRAR OF CO-OPERATIVE SOCIEITES AYYANTHOLE, THRISSUR 680 003 2 THE SECRTARY THRISSUR CO-OPERATIVE AGRICULTURAL RURAL DEVELOPMENT BANK NO.329,THRISSUR 680 004 3 SALE OFFICER THE THRISSUR CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.,THRISSUR 680 004 BY ADVS. SMT.DHANYA P.ASHOKAN SRI.M.R.VENUGOPAL OTHERS PRESENT: SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER. 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.2655/2018 2 JUDGMENT The petitioners, who availed four loans from the second respondent Co-operative Bank, vide loan account Nos.NFS 1202, MCJL 2, MCCS and TSCC 21, in the year 2010, have filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exhibit-P1 sale notice dated 9.12.2017 issued by the third respondent sale officer and seeking an appropriate order or direction permitting them to renew Exhibit-P1 loan. The petitioners have also sought for other consequential reliefs, including an appropriate writ, order or direction permitting them to pay off the arrears in monthly instalments and regularise the loan account. 2. On 24.1.2018, when this Writ Petition came up for admission, the learned Government Pleader took notice for the first respondent and urgent notice on admission by speed post was W.P.(C) No.2655/2018 3 ordered to respondents 2 and 3. On 24.1.2018, this Court granted an interim stay of the operation of Exhibit-P1 sale notice, for a period of one month on condition that the petitioner deposits a sum of Rs.50,000/- with the second respondent Bank within a week. 3. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for the first respondent and also the learned counsel for the second respondent Bank. Despite service of notice, none appears for the third respondent Sale Officer. 4. The learned counsel for the second respondent Bank, on instructions, would submit that the property offered by the first petitioner as security having an extent of 3.11 cents (1.26 Ares) in R.Sy.No.67/9 of Panacheri Village was put for sale and confirmation of sale is now pending. The learned counsel would also submit that the petitioners have not chosen W.P.(C) No.2655/2018 4 to move an application to set aside the sale. The learned counsel would submit further that, if the petitioners are prepared to pay off the entire dues within a reasonable time, the second respondent Bank is prepared to permit them to repay the amount in monthly instalments. 5. The learned counsel for the petitioners would submit that the petitioners can effect repayment only at the rate of Rs.5,000/- per month. 6. 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 W.P.(C) No.2655/2018 5 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. 7. 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 W.P.(C) No.2655/2018 6 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 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: W.P.(C) No.2655/2018 7 \"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) 8. 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 W.P.(C) No.2655/2018 8 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. 9. 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 W.P.(C) No.2655/2018 9 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 requires to be dealt with for Contempt of Court for abusing the process of the court. W.P.(C) No.2655/2018 10 10. Having considered the submission made by the learned counsel on both sides this Court finds that the petitioners are not entitled for any reliefs sought for in this Writ Petition. The second respondent Bank cannot be forced to accept repayment of the liability in monthly instalments amounting to Rs.5,000/-. In the result, the Writ Petition fails and the same is accordingly dismissed. Sd/- ANIL K. NARENDRAN JUDGE W.P.(C) No.2655/2018 11 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF SALE NOTICE DATED 9-12- 2017 ISSUED BY 3RD RESPONDENT EXHIBIT P2 PHOTOCOPY OF RECEIPT NO. 14 DATED 30- 05-2017 FOR AN AMOUNT OF RS. 15,000/- ISSUED BY 2ND RESPONDENT. //True Copy// P.S. To Judge csl "