Kerala High Court
Sailaja.V vs Represented Financial Enterprises Ltd on 11 January, 2016
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937
WP(C).No.1080 of 2006 (C)
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PETITIONER :
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SAILAJA.V.,
USHUS HOUSE, DEVANAGAR,
KIZHAKKUMBHAGOM, KAZHAKKUTTAM P.O.,
THIRUVANANTHAPURAM.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.K.A.BALAN
SRI.M.K.PRADEEP KUMAR
RESPONDENTS :
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1.REPRESENTED FINANCIAL ENTERPRISES LTD.,
KERALA STATEBY ITS MANAGING DIRECTOR, "BHADRATHA",
P.B.No.510, MUSEUM ROAD, THRISSUR 680 020.
2.KERALA
THE BRANCH MANAGER,
STATE FINANCIAL ENTERPRISES LTD.
NEYYATTINKARA MAIN BRANCH, NEYYATTINKARA,
THIRUVANANTHAPURAM.
3.OFFICE
THE SPECIAL DEPUTY TAHSILDAR (RR),
KERALAOF THE SPECIAL DEPUTY TAHSILDAR (RR),
STATE FINANCIAL ENTERPRISES LTD.,
'AKSHAYA' SHOPPING COMPLEX, NEYYATTINKARA.
R1,2 BY ADV. SRI.RAJU JOSEPH, ADDL.SC.,KSFE LTD.
R, BY ADV. SRI.M.L.SAJEEVAN, SC, KSFE LTD.
R1-R3 BY ADV. SRI.ANTONY M. AMBAT
R2 BY SRI.C.V.ALEXANDER
BY SRI.ASOK M.CHERIYAN, SC, K.S.F.E. LTD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-01-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.1080 of 2006 (C)
APPENDIX
PETITIONER'S EXHIBITS :-
EXT.P1 : COPY OF THE NOTICE No.SDT/NTA/5072 TO
5077/04-05 DTD.28.11.2005 FROM THE 3RD
RESPONDENT SPECIAL DEPUTY TAHSILDAR (RR), KSFE
LTD., NEYYATTINKARA.
EXT.P2 : COPY OF THE NOTICE No.SDT/NTA/5072, 5073, 5076
AND 5077/04-05 DTD.21.1.2008.
RESPONDENTS' EXHIBITS :- NIL.
True copy
P.A to Judge
ANIL K.NARENDRAN, J.
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W.P.(C)No.1080 of 2006
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Dated this the 11th day of January, 2016
JUDGMENT
The petitioner, who had subscribed three tickets bearing Nos.55, 56 and 57 in Chitty No.20/02 conducted by the Kerala State Financial Enterprises Ltd., the 1st respondent herein, through its Neyyattinkara Main Branch, and availed a loan for 1,00,000/- each against Ticket Nos.55 and 56 with Chitty Loan Nos.NCL.1952/02 and 1953/02, has approached this Court in this Writ Petition seeking a writ of certiorari to quash Ext.P1 notice of sale of immovable property dated 28.11.2005 issued by the 3rd respondent, under the provisions of the Revenue Recovery Act, demanding a sum of 6,00,000/- together with interest @13.5% from 12.10.2002, along with 5% collection charge and notice charge, and for other consequential reliefs.
2. In paragraph 9 of the Writ Petition the petitioner has stated that she is stood as surety for M/s.K.Sivarajan and K.Sreekumar in respect of Chitty Loan Nos.1953, 1954, 1956 and 1957. Paragraph 9 of the Writ Petition reads thus:- W.P.(C).No.1080 of 2006 2
"It is true that the petitioner was also a surety for M/s.K.Sivarajan and K.Sreekumar in chitty loans Nos.NCL.1956 & 1957 and 1953 & 1954 respectively. It was not known to the petitioner that the aforesaid loanees had also defaulted payment of the installments of the loan. Therefore, she was also not aware of the amount due from them."
3. On 12.1.2006, this Court passed an order, in view of the undertaking made on behalf of the petitioner to settle her liability, which reads thus:-
"Even though petitioner is a borrower-cum-guarantor, and petitioner's property can be proceeded against for recovery of the loan taken by the petitioner and the loan for which petitioner stood as a surety, I feel there is substance in the petitioner's argument that other borrowers also should be made to pay for the liability due from them. In the circumstances, and in view of the undertaking made by the petitioner to settle liability due from her, there will be direction to the respondents not to proceed with sale of petitioner's property for six weeks on condition that the petitioner will deposit Rs.2 lakhs (Two lakhs) on or before 12.2.2006. If petitioner does not remit Rs.2 lakhs, 3rd respondent will be free to proceed for sale of the petitioner's property immediately after default. There will also be a direction to respondents 2 and 3 to proceed for recovery against the borrower for whom the petitioner stood as a W.P.(C).No.1080 of 2006 3 surety immediately by attachment and sale of movable and immovable properties of them and file a report in this Court."
4. Later, by order dated 19.3.2008, taking note of the fact that the petitioner has remitted 2,00,000/- on 12.2.2006, this Court granted stay of further proceedings pursuant to Ext.P2 notice for sale of immovable property dated 21.1.2008 issued by the 3rd respondent demanding a sum of 3,88,018/-, for a period of three months. Thereafter the said order of stay was extended until further orders on 18.6.2008.
5. Respondents 1 and 2 have filed a statement dated 1.1.2007 contending, inter alia, that the recovery steps initiated against the petitioner are perfectly legal. Later as directed by this Court by order dated 19.3.2008, respondents 1 and 2 filed an additional statement dated 30.3.2012. Paragraph 4 of the said additional statement reads thus:-
"4. As per the direction of this Hon'ble Court, enquiries were made about the assets of the co-debtors Sri.Sreekumar who is the husband of the petitioner was found to be in possession of 22.70 Ares in Sy.No.310/01 of Kazhakoottam Village (the subjet matter of the Petition) which was attached. Sri.Sivarajan is not in W.P.(C).No.1080 of 2006 4 possession of any assets. ....."
6. In view of the stand taken by respondents 1 and 2 in the additional statement dated 30.3.2012 this Court by order dated 23.11.2015 directed the petitioner to file an appropriate affidavit explaining the circumstances in which the Writ Petition was filed without disclosing the true facts. The said order reads thus;
"The petitioner, who had subscribed three chitts conducted by the Kerala State Financial Enterprises Ltd. and stood as surety for chitty loans of two others has filed this Writ Petition seeking a Writ of Certiorari to quash Ext.P1 sale notice issued by the third respondent and for other consequential reliefs.
2. In Para.9 of the Writ Petition, the petitioner has also stated that she stood as sureties for M/s.K.Sivarajan and Sri.K.Sreekumar, in respect of chitty loan Nos.NCL.1953 & 1954 and 1956 & 1957 respectively. She has stated further that, she is not aware whether the aforesaid persons had also defaulted payment of the installments of the loan.
3. A statement has been filed on behalf of respondents 1 and 2, dt.01-01-2007, which was followed by an additional statement by the said respondents, dated 30-03-2012. In Para.4 of the additional statement, the respondents have stated that 'Sri.K.Sreekumar' referred to in Para.9 of the Writ Petition is none other than the husband of the petitioner. Though the additional statement was filed on 02-04-2012, after giving copy to the learned counsel for the petitioner, the petitioner has not chosen to file any reply.
4. Prima facie, it appears that the petitioner has approached W.P.(C).No.1080 of 2006 5 this Court in this Writ Petition suppressing the materials facts from the notice of this Court.
5. The learned counsel for the petitioner seeks time to get instructions and to file an appropriate affidavit of the petitioner explaining the circumstances in which this Writ Petition was filed without disclosing the true facts."
7. Now the petitioner has filed an additional affidavit dated 1.1.2016 stating that, during the pendency of this Writ Petition the liability towards the 1st respondent has been settled and that the Writ Petition has become infructuous. Paragraphs 4 and 5 of the affidavit read thus:-
"4. It is respectfully submitted that I had not approached this Honourable Court suppressing any material fact from the notice of this Honourable Court. In the document which had been pledged with the 1st respondent, I was shown as the daughter of Savithri. Non mentioning of my relationship with Sri.K.Sreekumar was not wilful. It was under the bonafide belief that my relationship with Sri.K.Sreekumar had no relevance as far as the adjudication of the dispute involved in the Writ Petition was concerned that the same was not mentioned. I did not stand to gain anything by not mentioning about my relationship with Sri.K.Sreekumar and I also did not actually gain anything.
5. I regret the omission and unconditionally apologise to this Hon'ble Court for the misunderstanding and inconvenience caused. "
W.P.(C).No.1080 of 2006 6
8. I heard the arguments of the learned counsel for the petitioner and also the learned Standing Counsel for the 1st respondent.
9. The learned Standing Counsel for the 1st respondent on instructions would submit that, the petitioner had already settled his liability in respect of the chitty/loan transaction referred to in the Writ Petition.
10. The pleadings on record, which I have already extracted hereinbefore, makes it explicitly clear that the petitioner has approached this Court in this Writ Petition suppressing material facts and obtained an interim order against the recovery proceedings. In spite of the specific order passed by this Court dated 23.11.2015, the petitioner has not chosen to file a proper affidavit explaining the circumstances in which the Writ Petition was filed without disclosing the true facts.
11. Merely for the reason that at the time of final hearing the Writ Petition has become infructuous, since the petitioner had already settled her liabilities with the 1st respondent, the Writ Petition is not liable to be dismissed on that ground. Once it is found W.P.(C).No.1080 of 2006 7 that the petitioner has approached this Court with unclean hands, suppressing material facts from the notice of this Court, this Court has ample power to impose cost while dismissing the Writ Petition.
In such circumstances, though the Writ Petition has become infructuous, I deem it appropriate to dismiss the same with a cost of 10,000/-, which the petitioner shall pay within a period of one month from the date of receipt of a certified copy of this judgment to the Kerala State Legal Services Authority. If the petitioner commits default in paying the aforesaid sum of 10,000/- within the time limit stipulated above, it would be open to the Kerala State Legal Services Authority to recover the said amount by taking recourse to the machinery under the Revenue Recovery Act.
Sd/-
ANIL K.NARENDRAN, JUDGE skj True copy P.A to Judge