Wpc v. In Commissioner Of Income Tax V. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940WP(C).No. 33924 of 2016 PETITIONER: ANIYAMMAAGED 51 YEARSW/O. THOMAS A.N, KANJIRAVILAPUTHENVEDU,THENGUMKAVU, PATHANAMTHITTA. BY ADVS.SRI.SAIJO HASSANSMT.DEVI.R.SENSSMT.P.PARVATHYSRI.BENOJ C AUGUSTINSRI.U.M.HASSANSRI.VISHNU BHUVANENDRAN RESPONDENTS: 1THE SPECIAL SALE OFFICER, JANATHA SERVICE CO OPERATIVE BANK GROUPASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE, PATHANAMTHITTA - 680 691.2JANATHA SERVICE CO-OPERATIVE BANK LIMITEDNO.1042, LAKKOOR, REPRESENTED BY ITS SECRETARY,KONNI,PATHANAMTHITTA - 689 691.BY ADVS.SRI.M.H.ASIF ALISRI.S.MUHAMMED HANEEFFSRI.T.SAILESH KUMAR OTHER PRESENT: SMT C.S SHEEJA,SENIOR GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner and her husband stood asguarantors for availing a loan for Rs.1,75,000/-by one Bhaskaran, from the 2[nd] respondent Bank,offering as security her property having an extentof 5 cents in Re-survey No.328/11 of PramadamVillage, Konny Taluk, Pathanamthitta. The petitioner has filed this writ petition underArticle 226 of the Constitution of India, seekinga writ of certiorari to quash Ext.P1 award dated11.07.2012 in A.R.C.No.829/2012 and Ext.P2 auctionnotice dated 25.07.2016, issued by the 1[st] respondent Special Sale Officer. The petitionerhas also sought for a writ of mandamus commandingthe respondents to give extension of time andinstalment facility to pay off the loan arrears. 2. On 24.10.2016, when this writ petition came up for admission, this Court issued noticebefore admission by speed post to respondents,returnable within two weeks. An interim order was passed staying all further proceedings pursuant toExt.P1 award and P2 auction notice for a period ofthree weeks. The said interim order was extendeduntil further orders on 17.11.2016. 3.On 10.09.2018, when this writ petition came up for consideration, the learned Counsel forthe 2[nd] respondent Bank, on instructions, submittedthat the total liability as on 01.08.2018, inrespect of the loan transaction in question, comesto Rs.4,81,000/-. 4.Heard the learned counsel for the petitioners and also the learned Counsel for the 2[nd] respondent Bank. Despite service of notice,none appears for the 1[st] respondent. 5.The pleadings and materials on record would show that on 12.02.2009, the petitioner andher husband Thomas, stood as guarantors in a loanavailed by one Bhaskaran, from the 2[nd] respondentBank. In the said loan transaction, the propertyof the petitioner, having an extent of 5 cents, comprised in Re.Survey No.328/11 of PramadamVillage in Konny Taluk was offered as security.On account of the default committed in remittingthe monthly instalments, the 2[nd] respondent Bankfiled A.R.C.No.829/2012 before the Arbitrator. ByExt.P1 award dated 11.07.2012, A.R.C.No.829/2012was allowed by passing an award for Rs.2,39,088/-,together with future interest, at the rate of 17%per annum. Even after the award, no repayment waseffected. In such circumstances, the 1[st] respondentSpecial Sale Officer issued Ext.P2 auction noticeon 25.07.2016. 6.In this writ petition, the petitioner haschallenged Ext.P1 award passed by the Arbitratorand also Ext.P2 demand notice issued by the 1[st]respondent Special Sale Officer. 7.Ext.P1 award passed by the Arbitrator isone under Section 70 of the Kerala Co-operativeSocieties Act, 1969, in an Arbitration case filedby the 2[nd] respondent Bank under Section 69 of the 7.Ext.P1 award passed by the Arbitrator isone under Section 70 of the Kerala Co-operativeSocieties Act, 1969, in an Arbitration case filedby the 2[nd] respondent Bank under Section 69 of the Act. If the petitioner was feeling aggrieved byExt.P1 award, she could have approached the Co-operative Arbitration Court by filing an appealunder Section 82(1)(e) of the Act. On the otherhand, if the petitioner has got a case that thesaid award is an exparte award, then she couldhave filed an application before the Arbitrator toset aside that award, in view of the law laid downby this Court in Rema Devi and Others v. JointRegistrar (General) of Co-operative Societies,Ernakulam and Another [2016(3)KHC 645]. At anyrate, the belated challenge made against Ext.P1award dated 11.07.2012, in this writ petitionfiled on 21.10.2016 cannot be entertained underthe extraordinary jurisdiction of this Court underArticle 226 of the Constitution of India. 8.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Courtreiterated that, non-entertainment of a writpetition under Article 226 of the Constitution of India when an efficacious alternative remedy isavailable is a rule of self-imposed limitation. Itis essentially a rule of policy, convenience anddiscretion rather than a rule of law. Undoubtedly,it is within the discretion of the High Court togrant relief under Article 226 of the Constitutionof India, despite the existence of alternativeremedy. However, High Court must not interfere ifthere is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing thesame, unless he has made out an exceptional casewarranting such interference or there existssufficient ground to invoke the extraordinaryjurisdiction under Article 226. 9.In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that,whenever an adverse order is passed against aperson, unless the same is challenged before theappropriate forum, within the prescribed time limit, the said order will become final. 10. As far as the challenge made againstExt.P2 demand notice issued by the 1[st] respondentSpecial Sale Officer is concerned, the learnedCounsel for the 2[nd] respondent Bank on instructionswould submit that, the total liability as on01.08.2018, in respect of the loan transaction inquestion, comes to Rs.4,81,000/-. The learnedCounsel would also submit that, after availingloan for Rs.1,75,000/- on 12.02.2009, neither thepetitioner nor the borrower or the other surety,who is none other than her husband, have chosen tomake any repayment. 11. In this writ petition, the petitionersought for installment facility to repay theentire dues. Though this writ petition was pendingbefore this Court for nearly two years, thepetitioner has not chosen to bring up the matterfor appropriate orders to pay off the dues inmonthly instalments. In the absence of any serious challenge made against the demand made in Ext.P2auction notice, the only relief the petitioner canseek in this writ petition is repayment of theentire dues in monthly instalments, within areasonable time. 12. The learned Counsel for the 2[nd] respondentBank would submit further that, on account of thepersistent default committed by the petitioner,the bank is not prepared to offer her anyinstallment facility to pay the entire dues. The learned Counsel would submit that, if thepetitioner is prepared to pay off the entire dues,within a period of one month, the Bank is preparedto keep in abeyance the recovery steps till then. 13. Having considered the submissions made by challenge made against the demand made in Ext.P2auction notice, the only relief the petitioner canseek in this writ petition is repayment of theentire dues in monthly instalments, within areasonable time. 12. The learned Counsel for the 2[nd] respondentBank would submit further that, on account of thepersistent default committed by the petitioner,the bank is not prepared to offer her anyinstallment facility to pay the entire dues. The learned Counsel would submit that, if thepetitioner is prepared to pay off the entire dues,within a period of one month, the Bank is preparedto keep in abeyance the recovery steps till then. 13. Having considered the submissions made by the learned Counsel on both sides, this Courtfinds absolutely no ground to interfere withExt.P1 award and also Ext.P2 demand notice. Thefact that no repayment, whatsoever, was made afteravailing the loan from the 2[nd] respondent Bank on 12.02.2009 is not disclosed in the writ petition.On the other hand, it is averred in paragraph 2 ofthe writ petition that the borrower has been dulypaying loan instalments as per the terms of theloan agreement. 14. In Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449] the Apex Courtreiterated that a prerogative remedy is not amatter of course. Therefore, in exercisingextraordinary power, a writ court will indeed bearin mind the conduct of the party who is invokingsuch jurisdiction. If the applicant does notdisclose full facts or suppresses relevantmaterials or is otherwise guilty of misleading thecourt, the court may dismiss the action withoutadjudicating the matter. The rule has been evolvedin larger public interest to deter unscrupulouslitigants from abusing the process of court bydeceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are notcandidly stated or are suppressed or aredistorted, the very functioning of the writ courtswould become impossible. 15. In Prestige Lights' case (supra) the Apex Court held further that, under Article 226 of theConstitution of India, the High Court isexercisingdiscretionaryandextraordinaryjurisdiction. Over and above, a Court of Law isalso a Court of Equity. It is, therefore, ofutmost necessity that when a party approaches aHigh Court, he must place all the facts before theCourt without any reservation. If there issuppression of material facts on the part of the applicant or twisted facts have been placed beforethe court, the writ court may refuse to entertainthe petition and dismiss it without entering intomerits of the matter. Paragraphs 33 and 34 of thesaid judgment read thus: “33.It is thus clear that though theappellant-Company had approached the High Court under Article 226 of theConstitution, it had not candidlystated all the facts to the Court. TheHigh Court is exercising discretionaryand extraordinary jurisdiction underArticle 226 of the Constitution. Overand above, a Court of Law is also aCourt of Equity. It is, therefore, ofutmost necessity that when a partyapproaches a High Court, he must placeall the facts before the Court withoutany reservation. If there issuppression of material facts on thepart of the applicant or twisted factshave been placed before the Court, theWrit Court may refuse to entertain thepetition and dismiss it withoutentering into merits of the matter.34. The object underlying the aboveprinciple has been succinctly statedby Scrutton, L.J., in R v. KensingtonIncome Tax Commissioners, [(1917) 1 KB486 : 86 LJ KB 257 : 116 LT 136 (CA)],in the following words:"It has been for many years therule of the Court, and onewhich it is of the greatest importance to maintain, thatwhen an applicant comes to theCourt to obtain relief on an exparte statement he should madea full and fair disclosure ofall the material facts - facts,not law. He must not misstatethe law if he can help it - thecourt is supposed to know thelaw. But it knows nothing aboutthe facts, and the applicantmust state fully and fairly thefacts, and the penalty by whichtheCourtenforcesthatwhen an applicant comes to theCourt to obtain relief on an exparte statement he should madea full and fair disclosure ofall the material facts - facts,not law. He must not misstatethe law if he can help it - thecourt is supposed to know thelaw. But it knows nothing aboutthe facts, and the applicantmust state fully and fairly thefacts, and the penalty by whichtheCourtenforcesthat 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 takenon the faith of the imperfectstatement." (Emphasis supplied) 16. It is well settled that, a litigant who invokes the extraordinary jurisdiction of thisCourt under Article 226 of the Constitution mustcome with clean hands and clean objects. Thejudicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process,particularly, in public law remedy. In writproceedings, the court places implicit faith onthe parties and their pleadings, as it does not indulge in any fact finding or roving enquiry ofwhat has been asserted. Since Article 226 of theConstitutionofIndiaespousesequity jurisprudence, a litigant who has approached theCourt with unclean hands, without disclosing fullfacts, is not entitled for any reliefs. 17. Having considered the pleading and materials on record, conclusion is irresistiblethat this writ petition is nothing but an abuse ofprocess of court, which cannot be entertained inexercise of the discretionary jurisdiction of thisCourt under Article 226 of the Constitution ofIndia. As already noticed, after availing loan forRs.1,75,000/- on 12.09.2009, neither the borrowernor the petitioner or the other surety, who isnone other than her husband, has chosen to make any repayment. The said fact is not disclosed in the writ petition. In the result, this writ petition fails and the same is accordingly dismissed. It is made clear that this judgment will not stand in the way of the 2[nd] respondent Bank granting one month's time to the petitioner to pay off the entire dues, as submitted by the learned counsel for the Bank, if a proper application to that effect is made by the petitioner within a period of one week from the date of receipt of a certified copy of this judgment. Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS:EXHIBIT P1TRUE COPY OF THE AWARD DATED 11.7.2012.EXHIBIT P2 TRUE COPY OF THE AUCTION NOTICE ISSUED BY THE 1ST RESPONDENT DATED 25.07.2016RESPONDENTS' EXHIBITS: NIL // TRUE COPY // PA TO JUDGE RR