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2019 Supreme(Ker) 564
IN THE HIGH COURT OF KERALA AT ERNAKULAM
HRISHIKESH ROY, ANIL K.NARENDRAN, JJ.
Babu C.G., S/o. Gangadharan and Ors - Appellant
Versus
The South Indian Bank Ltd and Ors - Respondent
WA.No.1841 of 2019
Decided On : 21-08-2019
Advocate Appeared:
For the Appellant : Sri.Praveen K. Joy, Sri.T.A.Joy, Sri.E.S.Saneej, Sri.M.P.Unnikrishnan, Smt.M.K.Samyuktha, Sri.N.Abhilash, Smt.M.R.Eshrath Bai, Smt.Beena Joseph, Smt.Sreelekha. P
For the Respondent: Sri. K.K. Chandran pillai
IMPORTANT POINTS
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 Art.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.
Headnote:
Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act-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.
Statement of facts:
The appellant was a partner of M/s. Catrix Luminants & Solar Systems. The said Firm secured loan from the 1st respondent Bank. When the loan repayment could not be made by the borrowers, the Bank initiated recovery proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act.
Finding of the court:
The litigant had obtained equitable relief from the writ court through suppression and misrepresentation, we deem it appropriate to impose cost of Rs.25,000/-[Rupees Twenty Five thousand only] on the appellant. The cost amount be remitted to the High Court Legal Services Authority within two weeks failing which steps for revenue recovery be initiated.
Result: Dismissed
JUDGMENT :
HRISHIKESH ROY, J.
1. Heard Sri. Praveen K. Joy, learned counsel for the appellants/writ petitioner. Sri. K. K. Chandran Pillai, the learned senior counsel appears for the South Indian Bank.
2. The appellant was a partner of M/s. Catrix Luminants & Solar Systems. The said Firm secured loan from the 1st respondent Bank. When the loan repayment could not be made by the borrowers, the Bank initiated recovery proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act [hereinafter referred to as “SARFAESI Act”].
3. Faced with the Bank's two notices for possession issued on 01.11.2017 (for the property in the resurvey No. 20/6 in the Kannambara II village of Alathur taluk and in respect of the property in the Re. Survey No. 47/6 of Vadakkencherry I village in Alathur taluk), earlier, the W.P.(C) No. 35471 of 2017 was filed by the same litigant. In that proceedings, the prayer of the borrower was to permit him to remit the outstanding loan dues, in easy installments. Accepting the said proposition of the borrower, the learned Judge disposed of the W.P.(C) No. 35471/2017 on 29.11.2017, with the following directions:
“...................................................................................................
(i) The total amount outstanding from the petitioner to the respondent bank, is stated to be Rs.7,18,00,000/-. Accordingly, if the petitioner pays the aforesaid amount of Rs.7,18,00,000/-together with accrued interest and other charges in 15 equal and successive monthly instalments commencing from 11.12.2017, the recovery steps initiated against the petitioner by the respondent bank shall be kept in abeyance.
(ii) It is made clear that, if the petitioner commits a default in respect of any of the instalments, he will lose the benefit of this judgment and the respondent bank will be free to continue the recovery proceedings against him from the stage at which they presently stand.
(iii) The respondent bank shall furnish the petitioner with an up-to-date statement, of the dues position together with interest, within ten days from today so as to enable the petitioner to discharge the liability in accordance with the directions in this judgment. …..................................................................................................”
4. As it appears, the borrower failed to repay the loan dues in terms of the above installment facility granted in the W.P.(C) No. 35471/2017. For such default, the bank resumed the recovery proceedings under the SARFAESI Act, as was permitted by the Court in its judgment in the W.P.(C) No. 35471/2017.
5. Facing the above and the imminent dispossession of the secured assets, the 2nd writ petition, i.e., W.P.(C) No. 41567/2018 was filed by the borrower with prayer for restraining the bank from taking forceful possession of the residential property of the petitioner, comprised in the resurvey No. 20/6 of Kannambara II village and the movie theater comprised in the resurvey No. 46/6 of Vadakkencherry village, of Alathur Taluk.
6. In the 2nd Writ Petition, the litigant did not disclose the earlier case and the installment accommodation granted to him, in the W.P.(C) No.35471/2017. The suppression was brought to the Court's notice by the Bank's lawyer. Even then, borrower asserted emphatically that he will pay off the entire loan liability without fail by 31.01.2019 and in order to convince the bank and the Court of his bonafide, he made an unilateral offer to surrender the key of secured asset the very next day i.e. on 01.02.2019, if he fails to pay off the loan dues.
7. The Court showed indulgence to the borrower by allowing him to wipe off the loan liability within a short period. The learned Judge directed that the writ petitioner will pay off entire outstanding [Rs.7.3 crore as on 20.12.2018] along with applicable charges and interest, on or before 31.01.2019. In turn, the Bank was directed not to take any action under the SARFAE
