K.S. Sanjeev vs P. Vasudevan
2025 Latest Caselaw 4482 Ker

Kerala High Court

K.S. Sanjeev vs P. Vasudevan on 25 February, 2025

                                         1
OPC 38/25




                                                                2025:KER:18300
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                    THE HONOURABLE MR.JUSTICE BASANT BALAJI

          TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946

                             OP(C) NO. 38 OF 2025

          OS NO.6 OF 2008 OF ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL

                               COURT, CHERTHALA


PETITIONER/S:

               K.S. SANJEEV,
               AGED 54 YEARS
               S/O C.V.SUSEELAN, KONCHERRIL HOUSE, CHERTHALA SOUTH MURI,
               CHERTHALA SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA
               DISTRICT., PIN - 688524


               BY ADV P.T.SHEEJISH


RESPONDENT/S:

      1        P. VASUDEVAN,
               AGED 72 YEARS
               S/O LATE. APPUKUTTAN MENON, HOUSE NO.223, SECTOR-15A, NOIDA
               DISTRICT, UTTAR PRADESH., PIN - 222162

      2        M/S TG. POLYMERS AND COMPANY,
               MUHAMMA PO., MUHAMMA, ALAPPUZHA DISTRICT ., PIN - 688525

      3        MINIMOL,
               AGED 59 YEARS
               D/O PAUL, THANNIKKAL HOUSE, CHARAMANAGLAM MURI,
               THANNERMUKKOKM SOUTH VILLAGE, CHERTHALA TALUK, MUHAMMA.PO,
               ALAPPUZHA DISTRICT., PIN - 688525

      4        LISAMMA VARGHEESE,
               AGED 74 YEARS
               W/O PAUL, THANNIKKAL HOUSE, CHARAMANAGLAM MURI,
               THANNERMUKKOKM SOUTH VILAGE, CHERTHALA TALUK, MUHAMMA PO.,
               ALAPPUZHA DISTRICT., PIN - 688525

      5        TAX RECOVERY OFFICER
                                       2
OPC 38/25




                                                              2025:KER:18300
            INCOME TAX CIRLCE-1,INCOME TAX OFFICE, ALAPPUZHA, ALAPPUZHA
            DISTRICT., PIN - 688011

      6     TAHSILDAR CHETHALA,
            TALUK OFFICE, CHETHALA PO, CHETHALA, ALAPPUZHA DISTRICT.,
            PIN - 688524

      7     STATE OF KERALA,
            REPRESENTED BY DISTRICT COLLECTOR-ALAPPUZHA, COLLECTORATE,
            ALAPPUZHA DISTRICT., PIN - 688001


            BY ADVS.
            PRAVEEN.K.JOY
            JOBY CYRIAC
            KURIAN K JOSE(K/001510/2019)
            DEVIKA T.R.(K/001079/2024)



OTHER PRESENT:

            GP SRI. S. UNNIKRISHNAN


      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
                                           3
OPC 38/25




                                                                   2025:KER:18300
                                 JUDGMENT

(Dated this the 25th day of February 2025)

This Original Petition is filed to call for the records leading to

Ext.P5 and to set aside the coercive proceedings pursuant to Ext.P2

Order in E.P. No. 40/2015 in O.S. No 06/2008, on the files of the Sub

Court, Cherthala, till the disposal of Ext.P4.

2. The petitioner was the 2nd defendant in O.S.No. 06/2008

on the files of the Sub Court, Cherthala, filed by the respondent for

recovery of Rs.1 crore. Ext P1 judgment in O.S. No. 06/2008, directed

the petitioner to pay Rs. 1,10,15,000/- with 9% interest per annum.

3. Subsequently, the respondent had initiated execution

proceedings as E.P. No. 40/2015, resulting in Ext.P2 order dated

20.02.2018, in favour of the respondent. Previously, O.P. (C) No.

554/2018 and CRP No. 325/2018, filed by the petitioner, were

disposed of by this Court. Due to changed circumstances and

financial difficulties, the petitioner filed Insolvency Petition I.P. No.

1 of 2024 as Ext P3 before the Sub Court, Cherthala, which is pending

2025:KER:18300 consideration. Along with Ext.P3, the petitioner filed Ext.P4, an

application to stay the coercive proceedings pursuant to Ext.Nos.P1

and P2, until the disposal of Ext.P3. Due to financial hardships, the

petitioner has been unable to satisfy the judgment debt.

4. Thereafter, the Sub Court, Cherthala, has issued a warrant

against the petitioner in E.P. No. 40/2015, with the case now

scheduled for return of notice, as evidenced by Ext.P5. Aggrieved by

the coercive proceedings as reflected in Ext.P5, the petitioner filed

this Original Petition.

5. The counsel for the petitioner has contended that the

proceedings pursuant to Ext.Nos.P1 and P2 orders issuing warrant by

the court below, that too while Ext P3 petition is pending, is illegal

and arbitrary. He further argued that the lower court ought to have

considered the fact that the petitioner has gone insolvent making him

unable to pay the respondent, as per Ext.P1 judgment. It also resulted

in sudden shift in the circumstances which resulted in heavy financial

constraints to the petitioner. Moreover, he was a businessman

2025:KER:18300 confronting severe financial hardships due to which he had to shut

down all his business and hence is now left with no means to pay off

the decree debt. Thus, the counsel submits that the coercive

proceedings pursuant to Ext.Nos.P1 and P2, not to be proceeded with,

without taking consideration of Ext.P3 petition.

6. The first respondent filed their counter refuting the

averments of the petitioner. It was contended that this original petition

was filed suppressing material facts. According to the respondent

counsel, the averments made by the petitioner in para 2 of the

affidavit to this original petition that he has not filed any other original

petitions before this Court for similar relief earlier, is a false assertion.

7. As mentioned earlier, the first respondent being the decree

holder, has filed E.P.No.40/2015, which was allowed in 2018, in his

favour, on finding by the trial court that the petitioner had sufficient

means to pay off the decree debt. Thereafter, in 2021, the petitioner

herein filed Insolvency Petition as I.P.No. 01/2021 before the Sub

Court, Cherthala, along with a petition as I.A. No.01/2021, to stay

2025:KER:18300 further proceedings in the abovesaid E.P. The petitioner then

approached this court by O.P.(C) 2300/2022, seeking speedy disposal

of the said I.A within a time frame. This court by Ext R1(a), disposed

of the above O.P.(C), ordering a speedy disposal within one month

after affording opportunity to the respondents therein to file

objections. As per the direction of this Hon'ble Court, the Trial Court

by Ext.R1(b) order, stayed the issuance of warrant alone, pending

disposal of the insolvency proceedings I.P. No. 01/2021.

8. The petitioner herein filed 2 cases before this court

challenging the proceedings in Execution and the order in the E.P as

O.P. (C) No. 554/2018 and CRP No.325/2018. He has also filed an

O.P(C) No.1038/2023 before this court, challenging the stay granted

by the trial court in I.A. No. 01/2021 in I.P. No .01/2021. Since the

insolvency petition is pending before the insolvency court right from

the year 2021, a direction was issued to take up the issue without

further delay in the matter and thereby all these cases were disposed

of by Ext.R1(C) common order dated 02/06/2023.

2025:KER:18300

9. As per this order, the Sub Court has considered I.P. No

01/2021 including the maintainability, and dismissed the same by Ext.

R1(d) dated 05/01/2024. Thereafter, the petitioner again approached

this Court by filing O.P.(C.) No.278/2024, challenging Ext R1(d)

order, which was also disposed of by this Court vide Ext.R1(e) order,

dated 28/02/2024, directing the petitioner to avail the statutory

remedy, that is to approach the District Court, under section 79 of the

Insolvency Act,1955. Further, without challenging Ext.R1(d) order

under section 79 of the Act, the petitioner has again come up with

another Insolvency Petition before the trial Court as I.P. No 01/2024,

for the same relief, which is not maintainable.

10. Now, suppressing all these aspects, the petitioner came

before this Court filing the present O.P.(C). The counsel for the first

respondent also contended that a litigant who invokes the jurisdiction

under Art.227 of the Constitution of India, must come with clean

hands and objects and nobody would be allowed to abuse the judicial

process at any cost. Hence, prays that the petition may be dismissed

2025:KER:18300 as not maintainable.

11. Heard the counsels appearing on either sides.

12. The counsel for the respondents relied on the dictum laid

down by the Apex court in Prestige Lights Limited v. State Bank

of India [(2007) 8 SCC 449], wherein it was held that if the applicant

under Article 227 of the constitution of India, does not disclose the

full facts or suppresses relevant materials or is otherwise guilty of

misleading the court, the Court may dismiss the action without even

adjudicating the matter. Misrepresentation or concealment justifies

dismissal, regardless of the merits of the case. This rule has been

evolved in larger public interest to deter unscrupulous litigants from

abusing the process of Court by deceiving it.

13. Reliance has also been placed in K.D. Sharma v. Steel

Authority of India Ltd [(2008) 12 SCC 481], which also stands on

the same footing that a person approaching the Court should be frank

and truthful and shall not be having any reservation of facts, even if

they are against them.

2025:KER:18300

14. The apex court in Manohar Lal v. Ugrasen and others

[(2010 11 SCC 557], held thus:-

"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".

15. In the case at hand, on a perusal of the counter filed by the

respondent as well as the Exhibits produced on that note, concealment

of material facts by the petitioner are so evident. It is worthwhile to

mention that without challenging Ext R1(d) before the proper forum,

the petitioner again approached this Court by the present O.P (C), that

too by suppressing the history of disposals from various Courts.

16. Thus, it is well settled that a person who invokes the

extraordinary jurisdiction of this Court under Article 227 of the

Constitution of India must come with clean hands and clean objects

2025:KER:18300 as the judicial proceedings are sacrosanct and nobody should be

allowed to abuse the judicial process. Hence, taking note of the above

facts and circumstances, the suppression of facts by the petitioner

herein and the judicial precedents in the above aspect, I am of the firm

opinion that the petitioner who has approached this Court with

unclean hands, without disclosing facts in its entirety, is not entitled

for any reliefs as sought for in this petition. Hence, this Original

Petition is dismissed with cost of Rs.25,000/- and the petitioner herein

is directed to remit the said cost of Rs.25,000/- (Rupees twenty five

thousand only) to the Kerala State Legal Services Authority, High

court of Kerala, Ernakulam, within two weeks from today and if the

cost in not paid as directed, revenue recovery proceedings shall be

initiated.

In the result, the Original Petition (C) is dismissed.

Sd/-

BASANT BALAJI JUDGE dl/

2025:KER:18300 APPENDIX OF OP(C) 38/2025

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF JUDGMENT IN O.S.NO.6/2008 PASSED BY SUB COURT, CHERTHALA ON 30.11.2011

Exhibit P2 THE TRUE COPY OF ORDER DATED 20.02.2018 PASSED BY THE COURT OF SUBORDINATE JUDGE, CHERTHALA IN EXECUTION PETITION NO. 40/2015 IN O.S.NO.6/2008

Exhibit P3 TRUE COPY OF THE INSOLVENCY PETITION VIDE OP.(INSOLVENCY) NO. 1 OF 2024 FILED BY THE PETITIONER BEFORE THE SUB COURT, CHERTHALA DATED 14/11/2024

Exhibit P4 TRUE COPY OF THE AFFIDAVIT AND STAY PETITION

OF 2024 FILED BY THE PETITIONER BEFORE THE SUB COURT, CHERTHALA DATED 14/11/2024

Exhibit P5 TRUE COPY OF THE DAILY STATUS DATED 14/11/2024 AS UPDATED IN THE OFFICIAL E-COURT WEBSITE OF THE SUB COURT, CHERTHALA IN EP NO.40/2015 IN

RESPONDENT EXHIBITS

Exhibit R1(b) True copy of the order in I.A. No.1/2021 in I.P.No.1/ 2021 dated 23.12.2022 of Sub Court, Cherthala

Exhibit R1(a) True copy of the order in OPC No.2300/2022 dated 29.11.2022

Exhibit R1(c) True copy of the common order in OPC No.1038/2023 and other cases dated 02.06.2023

Exhibit R1(d) True copy of the order dated 05.01.2024 in IP No.01/2021 of Sub Court, Cherthala

Exhibit R1(e) True copy of the order in OPC No.278/2024 dated 28.02.2024