Evam Khadi Gramodyog Welfare Sanstha and Another Vs. State of U.P. and Others  Insc 1223 (5 December 2007)
Sinha & J.M. Panchal
APPEAL NO. 5637 OF 2007 [Arising out of SLP (Civil) No. 3265 of 2007] S.B.
SINHA, J :
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.
Basic fact of the matter is not in dispute.
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.
purported public interest litigation was also filed wherein Suresh Chandra
Sharma (Appellant No. 2 herein) was also a party; praying for the following reliefs:
to hold the provisions of Section 35A of the U.P. Khadi & Village
Industries Board Act, 1960to be unconstitutional and declaring the same ultra vires
the provisions of Articles 14, 21 and 300A of the Constitution of India;
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.
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
arrears of land revenue"
appears some other writ petitions were also filed by the appellant, as would
appear from the counter affidavit filed on behalf of the respondents.
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
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.
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.
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
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.
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.
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].
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.
therein in the peculiar fact of the matter, it was observed:
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 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."
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:
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
The said writ petition have also been dismissed by an order dated 06.12.2005 by
a Division Bench of the Allahabad High Court.
their counter-affidavit, the respondents stated:
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."
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.
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'.
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.
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.