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RAM NARAIN versus B.M. BANK

High Court of Judicature at Allahabad

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Ram Narain v. B.M. Bank - WRIT - C No. 6581 of 1994 [2007] RD-AH 13766 (8 August 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.35

Civil Misc. Writ Petition No. 6581 of 1994

Ram Narain

Vs.

Branch Manager, Bank of Baroda & Ors,.

*********

Hon. Dilip Gupta, J.

This writ petition has been filed for fixing installments for payment of the loan advanced to the petitioner by the respondent Bank. A further prayer has been made that the auction sale made on 4th February, 1994 may not be confirmed.

The petitioner did not implead the person in whose favour the auction sale was made. On 14th February, 1994, this petition was disposed of finally and the order is quoted below:-

"Heard counsel for the parties.

If the petitioner pays an amount of Rs. 1,54,722.60 p. (Recovery certificate, Annexure-1 to the writ petition), minus recovery charges to the Bank of Baroda Branch Haswa District Fatehpur in four equal installments, recovery proceedings against the petitioner shall be kept in abeyance.

The first installment shall be payable on or before 15th May, 1994 and subsequently after every three months.

If the petitioner fails to deposit the amount as directed above, it will be open to the respondents to recover the outstanding dues from the petitioner in accordance with law.

Subject to the conditions mentioned above, the recovery proceedings against the petitioner shall remain stayed and auction proceedings, if not already confirmed, shall not be confirmed.

With the aforesaid directions, the writ petition is disposed of finally."

Soon after the passing of the aforesaid judgment and order, the auction purchaser moved an application with a prayer that he may be impleaded as respondent no. 3 in the writ petition and the judgment and order dated 14th February, 1994 may be recalled as the petitioner had not disclosed the filing of the two earlier writ petitions which had been filed in respect of the recovery made for non-payment of the instalments of the same loan. On 16th March, 1994 the impleadment application was allowed and the judgment and order dated 14th February, 1994 was recalled. A counter affidavit has also been filed by the Bank.

The facts as they emerge from the pleadings of the parties indicate that the petitioner had taken a loan from the respondent-Bank in the year 1986 for purchase of a tractor. The petitioner, however, failed to deposit the installments as a result of which the Bank requested the Collector to recover the balance amount of Rs. 1,33,522.60/- from the petitioner as arrears of land revenue and a citation was thereafter issued by the Collector. Certain agricultural plots of the petitioner were thereafter attached on 14th January, 1992 and the sale proclamation of the attached property was also made mentioning that the auction shall take place on 17th March, 1992. It is at this stage that the petitioner filed Writ Petition No. 8511 of 1992 (Ram Narain Vs. Bank of Baroda, & Ors.) which was disposed of finally by the judgment and order dated 24.2.1992 and the same is as follows:-

"The petitioner took a loan from Bank of Baroda and recovery has been issued in respect of the same.

After hearing learned counsel for the petitioner, I direct that the balance amount still due against the petitioner may be recovered in installments. The first installment of 1/3rd of the total balance amount due will be payable within one month from today and the balance in two equal installments payable by 30th April, and 31st May, 92 respectively. If these installments are paid in time, the recovery shall remain stayed. However, if any of the installments are not paid in time, the whole amount will become due immediately. If the installments are paid in time, the recovery charges shall not be payable by the petitioner.

With these observations, the petition is disposed of."

In view of the aforesaid judgment dated 24.2.1992, the auction proposed to be held on 17th March, 1992 was not held. The petitioner, however, did not comply with the terms of the judgment and order passed by this Court as the installments were not  deposited by him. The Authorities then issued another sale proclamation on 11th August, 1993 fixing 14th September, 1993 for auction of the attached land. The arrears had in the meantime increased to 1,54,722.60/- and it was this amount which was mentioned in the notice dated 11th August, 1993. The petitioner then filed the second writ petition being Writ Petition No. 43423 of 1993 (Ram Narain Vs. State of U.P. & Ors.,) which was disposed of by means of the judgment and order dated 23rd September, 1993 and the same is as follows:-

"The petitioner is aggrieved by the issuance of the recovery notice dated 11.8.93 for a sum of Rs. 1,54,722.60/-. The petitioner states that he has deposited Rs. 37,000/- earlier but the same has not been taken into consideration. All the agricultural plots and the tractor of the petitioner are under attachment. If the petitioner pays the entire arrears of the Bank, minus recovery charges in four equal quarterly installments, his attached property shall not be put to auction. The first installment shall be payable from 15th December, 1993 and thereafter the petitioner may approach the Bank and ask for the revised upto date statement. If the statement given by the Bank is less than the amount mentioned in the recovery notice then from the subsequent installments the petitioner shall make payments accordingly. If the petitioner fails to comply with the order of this Court in payment of any installments then the respondents shall proceed to recover the balance amount from the petitioner in accordance with law.

With the aforesaid directions the writ petition is disposed of finally."

It needs to be mentioned that the auction proposed to be held on 14th September, 1993 was not held and was postponed to 15th October, 1993. It could also not held on 15th October, 1993 in view of the judgment and order dated 23rd September, 1993 passed by this Court in the second writ petition filed by the petitioner. The Additional District Magistrate then called for a report as to whether the petitioner had made the deposit of the first installment by 15th December, 1993 as directed by this Court but when the report was submitted that this installment had not been deposited by the petitioner, another notice was issued on 4th January, 1994 fixing 4th February, 1994 for auction of the attached property of the petitioner. The auction was then held on 4th February, 1994 and the bid of respondent no. 3 for Rs. 1,20,000/- was accepted. Respondent no. 3 initially deposited 1/4th of the auction amount on 4th February, 1994 and the balance amount was also deposited on 17th February, 1994.

It is thereafter that the petitioner filed the present third petition on 11th February, 1994 with a prayer that the Court may fix the installments for payment of the loan and the sale that had taken place on 4th February, 1994 may not be confirmed. In the petition, the petitioner merely stated that he took a loan for purchasing the tractor from the respondent-Bank in the year 1986 but as he could not pay the installments, the sale proclamation dated 4th January, 1994 was issued fixing 4th February, 1994 as the date for auction of the property. The petitioner also made a statement in paragraph 5 of the writ petition that he was prepared to deposit the amount of Rs. 1,54,722.60/- if some installments were fixed by the Court. What has to be noticed is  that in this third petition the petitioner did not make any mention about the filing of the earlier two writ petitions in this Court. This third petition was disposed of by means of the judgment and order dated 14th February, 1994 which has been referred to above. However, when the correct facts were brought to the notice of the Court by respondent no. 3, who filed the impleadment application along with the counter affidavit, this Court allowed the impleadment application and recalled the judgment and order dated 14th February, 1994.

I have heard Sri R.B. Singh, learned counsel for the petitioner and Sri S.C. Srivastava, learned counsel for the respondent-Bank. Sri A.K. Sand, learned counsel has appeared for the auction purchaser.

A preliminary objection was raised by the learned counsel for the respondents that this third petition should be dismissed with heavy costs as  the petitioner did not deliberately disclose in the petition that he had filed two earlier writ petitions which were in respect of the recovery made against the same loan.

Learned counsel for the petitioner, however, submitted that since this third petition was directed against the notice dated 4th January, 1994 which had been issued for sale of the attached property on 4th February, 1994, it was not necessary to mention about the earlier two writ petitions since this notice was not under challenge in the earlier two writ petitions, that had been filed by him.

It is not in dispute that the petitioner had taken loan from the respondent-Bank for purchase of a tractor. It is also not in dispute that as the petitioner had failed to deposit the installments, the citation for recovery of the amount of Rs. 1,33,522.60/- was issued by the Tehsildar under Section 280 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the 'Act'). Subsequently five agricultural plots belonging to the petitioner which were pledged in favour of the respondent-Bank were also attached on 22nd January, 1992. The sale proclamation was then issued fixing 17th March, 1992 for auction of the attached property. It is at this stage that the petitioner filed the first writ petition being Writ Petition No. 8511 of 1992 and this Court disposed of the petition with a direction that the petitioner may deposit the balance amount due in three installments. The petitioner, however, did not deposit the installments as directed by this Court as a result of which another sale proclamation was issued on 11th August, 1993 fixing 15th September, 1993 and the arrears so shown was Rs. 1,54,722.60/-. The petitioner then filed the second Writ Petition No. 43423 of 1993 which was disposed of by this Court by means of the judgment and order dated 23rd September, 1993 again giving liberty to the petitioner to make the payment in four quarterly installments. It was further mentioned that if the petitioner pays the entire arrears of the Bank, the attached property shall not be put to auction. The petitioner, however, did not deposit the installments as directed by this Court and when the sale notice dated 4th January, 1994 was issued fixing 4th February, 1994 for auction of the attached property, he filed the present petition. The attached land was subsequently put to auction and the sale was also confirmed and the sale certificate was issued in favour of the respondent no. 3.

The third petition was filed in respect of the same loan and in respect of the recovery that was being made for non-payment of the installments to the Bank. When the first petition had been filed, the citation had been issued and thereafter the land of the petitioner had also not only been attached but sale proclamation had also been issued fixing 17th March, 1992. It is because of non-payment of the installments fixed by this Court in its judgment and order dated 23rd February, 1992 that the recovery was again sought to be made by issuing another sale proclamation fixing 14th September, 1993. However, when the petitioner failed to deposit the installments as directed in the judgment and order dated 23rd September, 1993 of this Court in the second writ petition filed by the petitioner, the sale proclamation was issued for the third time on 4th January, 1994 fixing 4th February, 1994 for auction of the attached land. It cannot, therefore, be doubted that it was imperative for the petitioner to have made a mention in the third writ petition about the fact that he had earlier filed two writ petitions in which this Court had granted him liberty to deposit the amount in installments as this was a material and relevant fact. The first prayer made in this writ petition is for fixing the installments and the second prayer is for not confirming the auction that had taken place on 4th February, 1994. In such circumstances, the contention of the learned counsel for the petitioner that since the third petition was for the relief that the auction sale held on 4th February, 1994 may not be confirmed it was not necessary for the petitioner to mention about the filing of the earlier two writ petitions cannot be accepted. It also needs to be mentioned that in paragraph-7 of the rejoinder affidavit the petitioner has stated that he had informed the counsel appearing for the petitioner about the filing of the earlier two writ petitions but due to pure inadvertence this fact was not mentioned in this writ petition.

A person who approaches the High Court for invoking the equitable extraordinary jurisdiction under Article 226 of the Constitution must come with clean hands and must not conceal any material facts. This is what has been observed by the Supreme Court in The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852.

In  Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898, State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781 and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Supreme Court observed that it would amount to abuse of the process of the Court if a petition contains misleading and inaccurate statement to achieve an ulterior purpose.

A Full Bench of this Court in Asiatic Engineering Co. Vs. Achhru Ram & Ors., AIR (38) 1951 Allahabad 746 observed:-

"In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by Courts in our country when parties seek the aid of the extraordinary powers granted to the Court under Art. 226 of the Constitution. A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements & from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts. ..........."

In M/s. S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., 2004 AIR SCW 2987  the Supreme Court observed:-

"As a general rule, suppression of material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken."

In this connection reference may also be made to the decision of the Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors,. JT 1993 (6) SC 331, wherein it has been  observed:-

"The court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."

The Supreme Court in Raj Kumar Soni & Anr. Vs. State of U.P. & Anr. JT 2007 (5) SC 114 again observed:-

"It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Parties are not entitled to choose their own facts to put-forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority."

As seen above, the petitioner had concealed material and relevant facts from this Court as he had not disclosed the filing of the earlier two writ petitions. He had deliberately misled the Court for giving him the relief with a calculated attempt to hamper the due course of administration of justice. Thus, in view of the aforesaid decisions of the Supreme Court, this petition should not be heard on merits and it should be dismissed only on the ground that the petitioner had concealed materials and relevant facts from this Court while filing this petition.

Learned counsel for the petitioner also contended that pursuant to the judgment and order dated 14th February, 1994 the petitioner also deposited the entire amount and so the auction notice should be set aside. As pointed out above, the petitioner cannot be permitted to raise this issue. In the supplementary affidavit filed on behalf of the Bank it has been admitted that after the judgment and order dated 14th February, 1994, the petitioner deposited Rs. 1,61,400/- with the respondent Bank. It has, however, also been stated that a communication dated 26th August, 1994 was sent by the Bank to the petitioner mentioning therein that on the basis of the sale of the attached property the Bank had received an amount of Rs. 1,08,392/- on 7th June, 1994 and, therefore, the petitioner was entitled to receive an amount of Rs. 68,457.50/- which he could collect from the Bank on any working day. It is, therefore, clear that the Bank had clearly informed the petitioner that he could collect the amount of Rs. 68,457.50/- on any working day, but for reason best known to the petitioner, he did not collect the amount.

Learned counsel for the respondents also urged that not only should this petition be dismissed but this is a fit case where heavy costs should be imposed upon the petitioner.

A Division Bench of this Court in Krishak Sahkari Avas Samiti Ltd. Vs. State of U.P. & Anr., 2003 (52) ALR 777 after placing reliance upon the Full Bench decision of this Court in Asiatic Engineering (supra) observed that writ jurisdiction should not be exercised in favour of a person who does not come with clean hands and since in that case the petitioner had not come with clean hands and had suppressed very material facts, the Court dismissed the petition after imposing a cost of Rs.50,000/-.

The Supreme Court in Mahendra Baburao Mahadik & Ors. Vs. Subhash Krishna Kanitkar & Ors. 2005 AIR SCW 1579, also imposed a cost of Rs. 50,000/- upon the appellants who had made an attempt to mislead the Court. The relevant observation is as follows:-

54. ............... Having regard to the facts that the Appellants have sought to mislead this Court, we think it appropriate to impose costs upon them. The Appellants are hereby directed to deposit a sum of Rs. 50,000/- (Rupees Fifty Thousand) with National Legal Services Authority within four weeks from date and deposit the receipt thereof in the Registry of this Court."

In view of the aforesaid decisions, this petition should be dismissed with a cost of Rs. 50,000/-. Learned counsel for the petitioner, however, vehemently urged that the petitioner is a poor person and he should not be saddled with such a heavy cost. Looking to the facts and circumstances of the case, it would be appropriate if cost of Rs. 10,000/- is imposed upon the petitioner for deliberately concealing material facts from this Court regarding the filing of the earlier two writ petitions. As pointed above, the petitioner is entitled to receive an amount of Rs. 68,457.50/- from the Bank and in such circumstances, the respondent-Bank shall return the aforesaid amount after deducting the amount of Rs. 10,000/-.

The writ petition is, accordingly, dismissed with cost of Rs. 10,000/-. This amount of Rs. 10,000/- shall be sent by the respondent-Bank by Bank Draft to the Registrar General of this Court within a period of one month which shall be deposited in the Account of Mediation and Conciliation Centre. The Bank Draft should be drawn in favour of Registrar General, Account Allahabad High Court Mediation and Conciliation Centre. The balance amount of Rs. 58,457.50/- shall be refunded to the petitioner by the Bank also within a period of one month.  

Date: 8.8.2007

NSC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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