Kunhiraman Lijin Nivas V. The Assistant Registrar (General) of Co-operative Societies, Kuthuparamba, Kannur and Mattannur Co-operative Rural Bank Ltd. No.F 1228

WP(C)/14399/2015

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The petitioner, Kunhiraman Lijin Nivas, had availed a loan of Rs.10 lakhs from the 2nd respondent, Mattannur Co-operative Rural Bank, in 2010. Following default in repayment, an award (Ext.P1) was issued by the Assistant Registrar of Co-operative Societies on 25.04.2013. The petitioner filed a writ petition seeking to quash this award and to allow repayment in installments, which was initially stayed. However, the petitioner later decided to withdraw the petition after reaching a settlement with the bank. The court, citing the petitioner's failure to disclose material facts and the abuse of the writ process, dismissed the petition and imposed costs.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 799068 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-07-2018
• Assessment Year: misc
• Other Referred Cases: Rema Devi and others v. Joint Registrar (General) of Co-operative Societies, Ernakulam and another, K.D. Sharma v. Steel Authority of India Ltd., Usha Nanthini v. Regional Transport Authority, Palakkad and another
• Laws Referred To: Kerala Co-operative Societies Act, 1969
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: GRASHIOUS KURIAKOSE; GEORGE MATHEWS; BIMAL NATH
• Assessee Lawyers: SUMAN CHAKRAVARTHY; K R RIJA
• Keywords: Ex-parte award; Loan default; Settlement; Writ of Certiorari; Writ of Mandamus
• Section: 226; 82(1); 70(6)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 WP(C).No. 14399 of 2015 PETITIONER(S) KUNHIRAMAN LIJIN NIVAS, KOODALI AMSOM, MUTTANNUR DESOM, VADUVANKULAM PO, EDAYANNUR, KANNUR DIST. BY ADVS.SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): 1. THE ASSISTANT REGISTRAR (GENREAL)OF CO-OPERATIVE SOCIETIES, KUTHUPARAMBA, KANNUR-670 001. 2. MATTANNUR CO-OPERATIVE RURAL BANK LTD. NO.F 1228, REP.BY ITS SECRETARY, MATTANNUR, KANNUR - 670 702. R2 BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) R2 BY ADV. SRI.GEORGE MATHEWS R BY SRI. BIMAL K. NATH SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14399 of 2015 (Y) APPENDIX PETITIONER(S)' EXHIBITS EXT.P1 - TRUE COPY OF THE AWARD IN ARC 2714/2012-13 DTD.25/04/13 EXT.P2 - TRUE COY OF THE EP 10/15 BEFORE THE SUB COURT KANNUR. TRUE COPY P.S. TO JUDGE. acd ANIL K. NARENDRAN, J. ------------------------------------------- W.P.(C)No.14399 of 2015 ---------------------------------------------- Dated this the 23rd day of July, 2018 JUDGMENT The petitioner, who availed a loan from the 2nd respondent Co-operative Bank for a sum of Rs.10 lakhs, in the year 2010, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to keep in abeyance the proceedings pursuant to Ext.P1 award dated 25.04.2013 in A.R.C.No.2714/2012-13 of the 1st respondent Assistant Registrar of Co-operative Societies, enabling him to pay off the loan amount in monthly instalments. The petitioner has also sought for a writ of certiorari to quash Ext.P1 award. 2. On 12.5.2015, when this writ petition came up for admission, this Court admitted the matter on file and issued urgent notice to the respondents. This Court has also granted an interim stay of operation of Ext.P1 award for a period of three months. The said interim order was extended until further orders on 12.08.2015. 3. On 18.7.2018, when this writ petition came up for consideration, it was pointed out by the learned Senior counsel for the 2nd respondent Bank that after the filing of W.P.(C)No.14399/2015 2 the writ petition, the petitioner has not chosen to make any payment. The learned counsel for the petitioner sought time to get instructions. Accordingly, the writ petition is listed today for further consideration. 4. Today, when the case is taken up for consideration, the learned counsel for the petitioner has filed a memo dated 23.07.2018 to dismiss the writ petition as not pressed and the said memo reads thus: “This Writ Petition is filed against Ext.P1 award and seeking time to pay back the loan amount in sufficient installments. On 18.07.2018, when I contacted the petitioner, he has instructed me to close the writ petition, since he has arrived at a settlement with the 2nd respondent bank and he is not intending to proceed with this writ petition. Hence, this writ petition may be closed as not pressed.” 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1st respondent Assistant Registrar of Co-operative Societies and also the learned Senior Counsel for the 2nd respondent Bank. 6. The learned Senior Counsel for the 2nd respondent Bank would point out that after availing the loan in the year 2010, the petitioner has not made even a single repayment towards principal and that, Ext.P1 award of the W.P.(C)No.14399/2015 3 1st respondent Arbitrator is one dated 25.04.2013. 7. As already noted, one of the reliefs sought for in this writ petition is a writ of certiorari to quash Ext.P1 award dated 25.04.2013 of the 1st respondent Arbitrator in exercise of his powers under sub section (6) of Section 70 of the Kerala Co-operative Societies Act, 1969. If the petitioner was aggrieved by Ext.P1 award, the remedy open to him was to file an appeal before the Co-operative Tribunal against that award, as provided under clause (e) and sub-section (1) of Section 82 of the said Act, 1969. If the petitioner has a case that Ext.P1 award is an ex parte award, he could have approached the 1st respondent Arbitrator seeking an order to set aside that award. In Rema Devi and others v. Joint Registrar (General) of Co-operative Societies, Ernakulam and another [2016 (3) KHC 645], this Court held that the Arbitrator has the power to set aside an ex-parte award and such a power is inherent in the exercise of the jurisdiction by a quasi judicial body. At any rate Ext.P1 award passed by the Arbitrator cannot be challenged by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. W.P.(C)No.14399/2015 4 Moreover, the challenge made in this writ petition against Ext.P1 award dated 20.05.2013 is highly belated, inasmuch as, the petitioner filed this writ petition only on 11.05.2015. 8. In paragraph 3 of the writ petition, it is averred that the petitioner was always ready and willing to settle the dues to the 2nd respondent Bank if sufficient opportunity was given to him. It is also averred that the petitioner failed to repay the monthly instalments promptly only because of his ill-health and fall in business and there is no deliberate attempt on his part in delaying the payments. In the writ petition, the petitioner has not disclosed the fact that after availing the loan in the year 2010, the petitioner has not made even a single repayment towards principal. 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 W.P.(C)No.14399/2015 5 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 [(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 W.P.(C)No.14399/2015 6 with for Contempt of Court for abusing the process of the court. 10. In Usha Nanthini v. Regional Transport Authority, Palakkad and another [2018 (2) KHC 89] this Court held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India by suppressing material facts and making false statements, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately. In such cases this Court has ample power to decline the permission sought for withdrawal of the writ petition. Dismissal of such writ petitions imposing exemplary costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. 11. The law laid down by this Court in Usha Nanthini's case (supra) has been affirmed by a Division Bench of this Court in W.A. No.455 of 2018. 12. Having considered the submission made by the learned counsel on both sides, with reference to the pleadings and materials on record, and also the law laid W.P.(C)No.14399/2015 7 down in the decisions referred to as above, the conclusion is irresistible that the petitioner cannot be permitted to withdraw this writ petition at this point of time. 13. In the result, this writ petition is dismissed imposing a cost of 10,000/- (Rupees Ten Thousand only) ₹ on the petitioner, payable to the 2nd respondent Bank, within a period of one month from the date of receipt of a certified copy of this judgment. Consequently, the interim order of stay granted by this Court on 12.05.2015, which was extended until further orders on 12.08.2015 will stand vacated. sd/- ANIL K. NARENDRAN, JUDGE. acd "