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2016 (4) TMI 875 - MADRAS HIGH COURT

2016 (4) TMI 875 - MADRAS HIGH COURT - TMI - Suppression of material facts - Held that:- In the case on hand, the petitioner has not only suppressed material facts, but he has also made an attempt to mislead the Court, as if the appeal is pending. Even the restoration petition stated to be in SR stage. We are not inclined extend the equitable remedy under Article 226 of the Constitution of India and issue a Mandamus, as prayed for. Accordingly, the Writ Petition is dismissed. However, it is open .....

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demanding to pay a sum of ₹ 28,37,853.46, failing which, possession was directed to be surrendered, is stated to have filed SA.SR.No.1326 of 2012 before the Debt Recovery Tribunal, Madurai, with delay. 2. According to the petitioner, Lakshmi Vilas Bank Limited, Madurai / respondent No.2, took time to file counter. Thereafter, respondent No.2, has published a sale-cum-auction notice, dated 20.01.2016, proposing to conduct a Tender-cum-auction, on 02.03.2016. Coming to know of the sale noti .....

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well as the Registry and mentioned the urgency ,his case has was not taken up and posted for hearing for the past four weeks,. The petitioner has further contended that the appeal has not been taken up for hearing. Contending inter alia that pending appeal, the subject property is sought to be sold by way of tendercum- auction, on 02.03.2016, he has sought for a Writ of Mandamus, forbearing the Authorized Officer, Lakshmi Vilas Bank Limited, Madurai / Respondent No.2, not to proceed with the sal .....

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e taken up and during the interregnum period, the subject property is sought to be sold by the Lakshmi Vilas Bank Limited, Madurai / respondent No.2, we permitted Mr.A.Chandrakumar, learned counsel appearing for the petitioner to serve the entire case papers on the learned counsel appearing for Lakshmi Vilas Bank, Dindigul. 5. Adverting to the averments, Mr.S.Devaraj, learned counsel appearing for the Bank submitted that it is true that SA.SR No.1326 of 2012, has been filed challenging the posse .....

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disclosing the dismissal of SASR.No.1326 of 2012 filed against the possession notice, dated 18.04.2012, issued under Section 13(4) of the SARFAESI Act, 2002, the present writ petition has been filed, seeking for a Mandamus, directing the Lakshmi Vilas Bank Ltd. / respondent No.2, not to proceed with the sale notice, dated 20.01.2016. 6. Mr.S.Devaraj, learned counsel appearing for the respondents further submitted that for the suppression of the material fact, the petitioner should not be extende .....

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6 of 2012, has been dismissed on 04.01.2016 has not been disputed, on the contra, the petitioner is aware of the same. Thus the fact remains that SASR.No.1326 of 2012 itself has been dismissed by the Debt Recovery Tribunal, Madurai. Going through the averments made in the supporting affidavit and after hearing the learned counsel for the bank, it is abundantly clear that the petitioner has not disclosed full facts, on the contra, the dismissal of SASR.No.1326 of 2012 has been suppressed. Added f .....

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rties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question. 12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, s .....

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trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question. 13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first c .....

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re is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief. With some doubt they said: We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be an equitable remedy. When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think t .....

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use I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connec .....

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the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is fo .....

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sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fra .....

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necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff s demerits. (ii) In Prestige Lights Ltd., v. State Bank of India reported in 2007 (8) SCC 449, at Paragraphs 33, 34 and 35, it has been held as follows: 33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not .....

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ourt may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: "(I)t 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 .....

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tement". (emphasis supplied) 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest t .....

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