Full Judgment Text
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CASE NO.:
Appeal (civil) 5637 of 2007
PETITIONER:
Udyami Evam Khadi Gramodyog Welfare Sanstha and another
RESPONDENT:
State of U.P. and others
DATE OF JUDGMENT: 05/12/2007
BENCH:
S.B. Sinha & J.M. Panchal
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 5637 OF 2007
[Arising out of SLP (Civil) No. 3265 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. Extent of Superior Courts’ jurisdiction to dismiss a writ petition for
alleged suppression of material fact is involved in this appeal which arises
out of a judgment and order dated 19.07.2006 passed by the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in WP No. 4274 (M/B)
of 2006.
3. Basic fact of the matter is not in dispute.
Appellant is a cooperative society (Samiti). It applied for loan for
establishment of an industry for manufacturing ’Aluminum Pottery’ from the
respondents. A loan of Rs. 5,24,000/- was sanctioned in the year 1991. A
Sum of Rs. 3,09,000/- was released by the respondents. Again, a sum of Rs.
90,000/- was sanctioned in 1996. It filed an application for grant of loan of
Rs. 22,00,000/- under the ’Consortium Bank Credit Scheme’ for establishing
an unit for manufacturing P.V.C. Shoe Sole. A sum of Rs. 16,20,000/- was
sanctioned and Rs. 13,20,000/- was released. The Samiti allegedly defaulted
in making payments. Recovery proceedings were initiated against the
Samiti. Several writ petitions were filed by it questioning the legality
thereof.
4. A purported public interest litigation was also filed wherein Suresh
Chandra Sharma (Appellant No. 2 herein) was also a party; praying for the
following reliefs:
"i) to hold the provisions of Section 35A of the
U.P. Khadi & Village Industries Board Act,
1960\005to be unconstitutional and declaring the
same ultra vires the provisions of Articles 14, 21
and 300A of the Constitution of India;
ii) issue a writ, order or direction in the nature
of Certiorari to quash the recovery certificates
dated 14.9.05, 19.7.05 and 10.9.2002 contained in
Annexures Nos. 4,5 and 6 issued by U.P. Khadi
and Gramodyog Board, Lucknow.
iii) issue a Writ, order or direction in the nature
of Mandamus commanding the opposite party Nos.
2,3 and 4 to get recovery of amount due against the
members of Petitioners society through due
process of law other than recovery the same as
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arrears of land revenue\005"
5. It appears some other writ petitions were also filed by the appellant, as
would appear from the counter affidavit filed on behalf of the respondents.
However, fresh recovery proceeding had been initiated which were
not the subject matter of challenge in the writ petitions filed by the Appellant
before the High Court.
6. A fresh writ petition was filed. The same has been dismissed by
reason of the impugned judgment holding that the appellants have
suppressed the material fact, viz., filing of four writ petitions on the same
cause of action and, thus, it was not maintainable. Appellants are, thus,
before us.
7. Mr. Uma Datta, learned counsel appearing on behalf of the appellants,
would submit that the statement made by the writ petitioners that no other
writ petition was filed on the same cause of action was correct as from a
perusal of the four writ applications, reference whereof was made by the
High Court in its impugned judgment, it would appear that they were filed
on different causes of action.
8. Mr. S. Wasim A. Qadri and Mr. Girdhar G. Upadhyay, learned
counsel appearing on behalf of the respondents, on the other hand, submitted
that in different writ petitions, the petitioners questioned the recovery
proceedings, citations and sale of the property, as orders were passed at
different stages of the same recovery proceedings.
9. Although the prayers made in the four writ applications are apparently
different, having gone through the writ applications, it became evident that
the core issue in each of the matter centers round recovery of the amount
advanced to the appellants by the bank. Evidently, orders passed in different
stages of the proceedings as also new proceedings based upon fresh
calculation on interest on the principal sum had been in question from time
to time. As indicated hereinbefore, even a public interest litigation was filed
wherein also Appellant No. 2 was a party. Maybe that validity of Section
35A of the U.P. Khadi and Village Industries Board Act, 1960 was one of
the issues raised therein but even the recovery proceeding was the subject
matter thereof.
10. In the public interest litigation, Section 35A of the U.P. Khadi and
Village Industries Board Act, 1960 was challenged on the premise that even
the cooperative societies were required to take recourse to the provisions of
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
Such a contention has expressly been rejected by this Court in Greater
Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. and Others [(2007) 6
SCC 236].
11. As the law operating in the field has recently been laid down by this
Court in Arunima Baruah v. Union of India and Others [(2007) 6 SCC 120]
in the following terms, it is not necessary to reiterate the same over again.
However, therein in the peculiar fact of the matter, it was observed:
"20. In this case, however, suppression of filing of
the suit is no longer a material fact. The learned
Single Judge and the Division Bench of the High
Court may be correct that, in a case of this nature,
the court’s jurisdiction may not be invoked but that
would not mean that another writ petition would
not lie. When another writ petition is filed
disclosing all the facts, the appellant would be
approaching the writ court with a pair of clean
hands, the court at that point of time will be
entitled to determine the case on merits having
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regard to the human right of the appellant to access
to justice and keeping in view the fact that judicial
review is a basic feature of the Constitution of
India."
12. Respondent Nos. 2 and 3 in their counter-affidavit have drawn our
attention to an order dated 12.06.2003 passed by the high Court in writ
petition No. 25359 of 2003 wherein it was observed:
"this is the sixth writ petition against recovery. In
the fifth Writ Petition No. 22933 of 2003, auctions
of residential houses No. 22 has been stayed by
this Court. Now the other properties are sought to
be auctioned/sold. I do not find any prima facie
case made out to interfere in the matter of recovery
at this stage"
13. The said writ petition have also been dismissed by an order dated
06.12.2005 by a Division Bench of the Allahabad High Court.
14. In their counter-affidavit, the respondents stated:
"21. That in reply to the events mentioned against
03.06.2003 and 09.06.2003 it is submitted that the
sale proclamation was necessary legal proceeding
since even after citation had been issued, the
payment of the amount under recovery had not
been made. In this view of the matter, the writ
petition which was of the same nature as the earlier
writ petitions was not only misconceived but was
also abuse of process of court by the Samiti. It is
pertinent to state here that the recovery certificates
which were issued on 14.09.2005 and 19.07.2005
since by that time, the further interest on the loan
amount had accrued which required issue of fresh
recovery certificates. However, the recovery
certificates dated 10.09.2002 had been issued
earlier before filing of the writ petition. In view of
the facts, it is submitted that there was no occasion
for the petitioner no. 2 joining hand with so-called
Sanstha, the petitioner no. 1 challenged these
recovery certificates. The challenge, which was
made by the petitioners before the Lucknow
Bench, Allahabad, High Court was clearly an
abuse of the process of Court."
In the said counter-affidavit, it has further been disclosed that after
being unsuccessful in their attempt to stall the recovery proceedings against
the Samiti, a fictitious welfare Sanstha, namely, Udhyami Evam Khadi
Gramodyog Welfare Sanstha was started by Appellant No. 2.
We, therefore, are of the opinion that the attempt on the part of the
appellants herein must be termed as ’abuse of the process of law’.
15. A writ remedy is an equitable one. A person approaching a superior
court must come with a pair of clean hands. It not only should not suppress
any material fact, but also should not take recourse to the legal proceedings
over and over again which amounts to abuse of the process of law.
In Advocate General, State of Bihar v. M/s. Madhya Pradesh Khair
Industries and Another [(1980) 3 SCC 311], this Court was of the opinion
that such a repeated filing of writ petitions amounts to criminal contempt.
16. For the reasons aforementioned, there is not merit in this appeal which
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is dismissed accordingly with costs. Counsel’s fee quantified at Rs. 50,000/-