Smt. Bittan Devi vs Bank of Boroda and others

Hon''ble Shri Justice Sujoy Paul

In this petition filed under Article 226 of the Constitution, the petitioner has prayed for following reliefs:

It is, therefore, humbly prayed that this Hon''ble Court may kindly be pleased to allow this petition land be further pleased to issue the writ in the nature of mandamus or any other appropriate writ order or direction to grant the following reliefs to the petitioner:

(i) That, the auction proceedings in regard to the property of the petitioner may kindly be quashed.

(ii) That, the respondents may kindly be further directed to not to dispossess the petitioner from the property in question, in the interest of justice.

(iii) That, any other relief, which is suitable in the facts and circumstances of the case in favour of the petitioner may also be granted in the interest of justice.

(iv) That, the cost of this petition may also be awarded to the petitioner.

Shri Bansal, Learned Counsel for the petitioner submits that petitioner is neither borrower nor guarantor and she has been misled by respondents No. 2 and 3. Shri Bansal submits that although auction notice was issued vide Annexure P-7, by Annexure P-8 the date of auction is modified for 24.03.2012.

In para 2 of the petition, the petitioner has given following declaration:

The petitioner declares that no other proceedings on the same subject matter have been instituted in any other Court, authority or Tribunal.

In para 3 of the petition, the petitioner has given following declaration:

The petitioner declares that no other statutory or other remedies are available to them for ventilating their grievances.

At this stage, Shri Pradeep Shrivastava, Advocate for the Bank produced an application u/s 17(1) of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ''the SARFAESI Act'') for the perusal of this Court. The said application shows that the petitioner has already preferred an appeal before the Debts Recovery Tribunal. It is also clear from the documents that the said Tribunal has issued notice on 16.03.2012. This petition is filed on 20.03.2012. Thus, before filing of present writ petition, petitioner had already preferred an appeal before the Tribunal. Petitioner has, thus, deliberately suppressed the fact of preferring of appeal and made incorrect declaration in the body of petition. In this view of the matter, I am of the considered view that the petitioner has not approached this Court with clean hands. One has to approach the Court with clean hands, clean mind, clean heart and clean objective. The person approaching the Court by suppressing the fact cannot be permitted to address the Court on merits.

In a recent judgment in Manohar Lal (D) by Lrs. Vs. Ugrasen (D) by Lrs. and Others, , the Apex Court held as under:-

The present appellants had also not disclosed that land allotted to them falls in commercial area. When a person approaches a court of equity in exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution, he should approach the court not only with clean hands but also with clean mind, clean heart and clean objective. "Equally, the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice". Who seeks equity must do equity.

In Amar Singh Vs. Union of India (UOI) and Others, the Apex Court held as under:-

Apart from the aforesaid, in the writ petition which was filed on 21-1-2006, there is no mention of the fact that the petitioner gave a statement u/s 161 of the Code of Criminal Procedure in connection with the investigation arising out of FIR lodged on 30-12-2005. From the records of the case it appears the petitioner gave Section 161 statement on 13-1-2006. In the writ petition there is a complete suppression of the aforesaid fact. A statement u/s 161 is certainly a material fact in a police investigation in connection with an FIR. The investigation is to find out the genuineness of those very documents on the basis of which the writ petition was moved. In that factual context, total suppression in the writ petition of the fact that the petitioner gave a Section 161 statement in that investigation is, in our judgment, suppression of a very material fact.

It is, therefore, clear that the writ petition is frivolous and is speculative in character. this Court is of the opinion that the so-called legal questions on tapping of telephone cannot be gone into on the basis of a petition which is so weak in its foundation.

Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.

In Dalglish v. Jarvie, (1850) 2 Mac & G 231, the Court, speaking through Lord Langdale and Rolfe B., laid down: (Mac & G p. 231 ER 89)

It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward.

In Castelli v. Cook, (1849) 7 Hare 89, Vice-Chancellor Wigram, formulated the same principles as follows: (Hare p. 94: ER p. 38)

... a plaintiff applying ex parte comes (as it has been expressed) under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.

(Emphasis Supplied)

In Republic of Peru v. Dreyfus Bros. & Company, 38 Ch D 348, Kay, J. reminded us of the same position by holding: (LT p. 803)

... If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made.

In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. v. Kensington Income Tax Commr., ex p Princess de Polignac, (1917) 1 KB 486 (CA), K.B. Scrutton, L.J. formulated as under: (KB p. 514)

... and it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- facts, not law. He must not misstate the law if he can help it-the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that 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 taken on the faith of the imperfect statement.

It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by the principles of "uberrima fides".

The aforesaid requirement of coming to court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain Vs. Badri Das, , Welcom Hotel and Others Vs. State of Andhra Pradesh and Others, G. Narayanaswamy Reddy (dead) by L.Rs. and another Vs. Government of Karnataka and another, , S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, , Prestige Lights Ltd. Vs. State Bank of India, Sunil Poddar and Others Vs. Union Bank of India, , K.D. Sharma Vs. Steel Authority of India Ltd. and Others, , G. Jayashree and Others Vs. Bhagwandas S. Patel and Others, , and Dalip Singh v. State of U.P., (2010) 2 SCC 141.

In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far-reaching effect. We, therefore, repeat those principles here again: (SCC pp. 116-17, paras 1-2)

For many centuries Indian society cherished two basic values of life i.e. ''satya'' (truth) and ''ahimsa'' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, mis-representation and suppression of facts in the court proceedings.

In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

However, this Court is constrained to observe that those principles are honoured more in breach than in their observance.

In the aforesaid factual backdrop, it is clear that the petitioner has deliberately suppressed the fact from this Court and has not approached with clean hands. This kind of speculation and suppression of fact cannot be appreciated. The temple of justice cannot be permitted to be converted into asylum of frivolous and unscrupulous litigants.

In the light of aforesaid, I am not inclined to invoke the equity and discretionary jurisdiction of this Court under Article 226 of the Constitution for a litigant, who has indulged in speculative litigation and has not approached this Court with clean hands. At this stage, Shri Bansal intends to withdraw the petition. The said prayer is rejected. Interference is declined. Petition is dismissed. Petitioner shall pay Rs. 2000/- as costs to the Bank. However, it is made clear that this Court has not expressed any opinion on the merits of the case and petitioner is at liberty to prosecute the appeal pending before the Debts Recovery Tribunal.