1. Heard Sri Sudeep Seth, learned Counsel for the petitioners, Sri Vivek Raj Singh, learned Counsel for the respondent Nos. 2 and 3 and Sri H.P. Srivastava, learned Additional Chief Standing Counsel. Through the instant writ petition under Article 226 of the Constitution of India, the petitioner challenges the notice dated 31.3.2003 issued u/s 91 of the U.P. Co-operative Societies Act, 1965 [hereinafter referred to as the "Act"] by District Assistant Registrar, Co-operative Societies, U.P., Lucknow (respondent No. 1), contained in Annexure No. 1 to the writ petition, requiring the petitioner to deposit Rs. 5,31,143/- within a period of one month, otherwise, the orders for sale of properties of the petitioners would be issued to recover the said amount. It was also provided that the petitioners may submit their reply, if any, by 18.4.2003 on any working day.

2. Shorn off unnecessary details, the facts of the case are that petitioner No. 1-Meesam Ammar Rizvi applied for commercial loan of Rs. 4,63,000/- from City Co-operative Bank Ltd., Ashok Marg, Lucknow for purchasing a Luxury Vehicle i.e. Car, which was sanctioned and disbursed to the petitioner No. 1 on 5.4.1999. In the said loan, petitioner No. 2-Anwar Rizvi was a guarantor.

3. According to petitioners, during the period from April, 1999 to March, 2001, petitioner No. 1 deposited an amount of Rs. 5,80,200/- through Cash in the Bank. Therefore, the entire outstanding loan amount was repaid by the petitioner No. 1 by March, 2001. According to him, petitioner No. 1 had deposited more amount than the outstanding loan dues but even then, the Secretary/Recovery Officer, City Co-operative Bank Ltd., Ashok Marg, Lucknow (respondent No. 2) issued a notice dated 8.6.2002 to the petitioners to deposit outstanding loan due of Rs. 4,06,454/-(Annexure No. 4 to the writ petition), to which petitioners, vide letters dated 25.7.2002 and 7.8.2002, demanded up-dated statement of accounts from the respondent No. 2.

4. According to petitioners, instead of furnishing updated statement of accounts, respondent No. 2 issued another notice dated 3.9.2002 to the petitioners, requiring from them to deposit Rs. 5,31,143/- towards outstanding dues within a week from the date of receipt of the notice, otherwise proceedings u/s 91 of the Act would be initiated against them and the dues would be realized by sale of the property of the petitioners. Thereafter, petitioners have again asked to furnish them updated statement of account to settle the matter vide letter dated 11.9.2002 but no heed was paid. However, the petitioner No. 1 had sent a detailed reply dated 21.9.2002 to the notice dated 3.9.2002, regarding invocation of Section 91 of the Act. Instead of considering the reply, the impugned recovery notice dated 31.3.2003 u/s 91 of the Act has been issued to the petitioners, which is highly arbitrary and unlawful.

5. Hence the instant writ petition.

Sri Sudeep Seth, learned Counsel for the petitioners submits that commercial loan granted by a Co-operative Society for purchase of Luxury Car is not subject to charge u/s 39 of the Act and as such, the property, which is not subject to charge u/s 39 of the Act, cannot be enforced u/s 91 of the Act. He submits that the petitioner has already deposited the entire outstanding loan dues to the respondent-Bank and as such, notice issued u/s 91 of the Act is illegal and arbitrary. In support of his submission, he has relied upon the judgment of the Apex Court in Recovery Officer, Lakhimpur and Others Vs. Ravindra Kaur (Smt) and Others, .

6. Per contra, Sri Vivek Raj Singh, learned Counsel for the respondent Nos. 2 and 3 submits that averments made in the counter affidavit that receipt dated 17.3.2001 showing the payment of Rs. 3,50,000/- and receipt dated 7.3.2001 for Rs. 20,000/- are forged and actually no money has been deposited, was strongly refuted by the petitioners in the rejoinder affidavit and as such, with the consent of the parties, a Division Bench of this Court, vide order dated 2.2.2006, directed the Divisional General Manager, Urban Bank Department, Reserve Bank of India, to make an enquiry in the matter and submit his report to this Court. In compliance of the order dated 2.2.2006, the Deputy General Manager, Reserve Bank of India, Urban Banks Department, Lucknow, inquired into the matter and submitted its report dated 20.3.2006.

7. While drawing attention to the inquiry report dated 20.3.2006, Sri Vivek Raj Singh submits that the Inquiry Officer, in his report dated 20.3.2006, has asserted that the alleged payment of Rs. 20,000/- and Rs. 3,50,000/- dated 7.3.2001 and 17.3.2001 in the car loan account of Meesam Ammar Rizvi i.e. petitioner No. 1 were not received by the Ashok Marg Branch of City Co-operative Bank Ltd., Lucknow. It has also been pointed out in the report dated 20.3.2006 that the cash receipt stamps put on the counterfoils dated 7.3.2001 and 17.3.2001 produced by the petitioner No. 1, are also apparently different from that put on the cash vouchers of Ashok Marg Branch of City Co-operative Bank, Lucknow on 7.3.2001 and 17.3.2001. Therefore, the documents, which have been annexed along with the writ petition by the petitioners in support of their case, are forged and fabricated documents and as such, he preferred an application for initiating proceedings u/s 340, Cr.P.C. against the petitioners.

8. We have heard learned Counsel for the parties and perused the records.

In order to adjudicate the matter to its logical end, we think it appropriate to reproduce the Enquiry Report dated 20.3.2006, which is as under:--

The undersigned came to know of the orders dated 02.02.2006 passed by the Honble High Court of Judicature at Lucknow Bench, Lucknow in above writ petition No. 2291 (M/B) of 2003 vide City Co-operative Bank Ltd., Lucknow letter No. HO./ADM/433/05-06 dated 22.02.2006. Accordingly, as directed the Honble High Court, I advised both the petitioners viz. Shri Meessam Ammar Rizvi and Shri Anwar Rizvi on 24.02.2006 to come to my office on 06.03.2006 at 11.00 a.m. along with all their original documents. Shri Meesam Ammar Rizvi called on me on 06.03.2006. However, Shri Anwar Rizvi did not come. Shri Meesam Ammar Rizvi showed me the original documents pertaining to his car loan a/c No. VEH-656 in question. I took photocopy of some of the counterfoils showing payments in cash in the above loan account. During the course of investigation Shri Rizvi told me that repayment instalments were generally collected by the bank from his house. He also told me that the sum of Rs. 3,50,000/- was paid in cash on 17.03.2001 through Shri Gorakh Nath Srivastav, the then CEO/Secretary of the bank, at his request to tide over the liquidity constraint being faced by the bank at the time. He also told me that receipt for the same was given to him after much persuasion. Shri Rizvi has also submitted copy of a sale deed dated 22.02.2001 showing receipt of Rs. 3,30,000/-in cash. After hearing the petitioners, I advised the City Co-operative Bank Ltd., Lucknow vide letter dated 06.03.2006 to provide certain information/documents. They gave me the information/documents vide their letter dated 17.03.2006. On the same day (17.03.2006) I scrutinized some of their relevant original documents and also talked to the bank officials. I have also gone through the writ petition, affidavits, counter-affidavits etc. filed by the parties to the dispute.

My observations are as under:--

Shri Meesam Ammar Rizvi had taken a car loan of Rs. 4,63,000/- on 05.04.1999 from the Ashok Marg branch of City Co-operative Bank Ltd., Lucknow. There is no dispute in this regard. There is also no dispute regarding the fact that Shri Rizvi has been making payment in his above loan account from time to time. The dispute is only regarding the cash payment of Rs. 20,000/- and Rs. 3,50,000/- alleged to have been made by Shri Meesam Ammar Rizvi in his above loan account on 07.03.2001 and 17.03.2001 respectively. In this connection, the attendance register of the Ashok Marg branch of the bank for the month of March, 2001 and its cash vouchers dated 07.03.2001 and 17.03.2001 show that one Shri Neeraj Anand had worked as cashier at the branch on both these dates whereas the counterfoils produced by Shri Rizvi bear the signature of two different persons. Signatures on the counterfoils dated 07.03.2001 and 17.03.2001 produced by Shri Rizvi are also apparently different from that of Shri Neeraj Anand who had worked as cashier of the branch on these dates. Moreover, the cash receipt stamps put on the counterfoils dated 07.03.2001 and 17.03.2001 produced by Shri Rizvi are also apparently different from that put on the cash vouchers of Ashok Marg branch of the bank on 07.03.2001 and 17.03.2001. Moreover, the cash scroll of Ashok Marg branch of the Bank also does not show any such cash receipt of Rs. 20,000/- and Rs. 3,50,000/- in the loan account of Shri Meesam Ammar Rizvi on 07.03.2001 and 17.03.2001 respectively. As per the bank records during the month of March 2001, Shri Rizvi had deposited Rs. 2000/- on 07.03.2001 and Rs. 15000/- on 20.03.2001 in his loan account.

In view of the foregoing, it is clear that both alleged payments of Rs. 20000/- and Rs. 3,50,000/- dated 07.03.2001 and 17.03.2001 in the car loan account of Shri Meesam Ammar Rizvi were not received by the Ashok Marg branch of City Co-operative Bank Ltd., Lucknow. As regards the contention of Shri Rizvi that payment of Rs. 3,50,000/- on 17.03.2001 was made through Shri Gorakh Nath Srivastav, the then CEO/Secretary of the bank, it is not possible to offer any comment because Shri Srivastav is no more alive to answer the charge. Moreover, Shri Rizvi also could not produce any documentary proof in this regard except the copy of a sale deed dated 22.02.2001 showing receipt of Rs. 3,20,000/- being the sale deed dated 22.02.2001 showing receipt of Rs. 3,20,000/- being the sale proceeds of his Mango/Guava orchards. The banks officials are also not aware of existence of any system in the bank for collection of payments from the customers house in those days.

9. From perusal of the above report dated 20.3.2006, it is clear that document, which has been annexed by the petitioners at Page No. 24 of the writ petition relating to deposit receipt of Rs. 3,50,000/-, is a fabricated document insofar as the said amount of Rs. 3,50,000/- was never deposited by the petitioners in the City Co-operative Bank. Even otherwise, Section 269T of the income tax Act prohibits repayment of loan in cash, if the amount is twenty thousands or more. Thus, we are of the opinion that the petitioners have preferred the instant writ petition with incorrect facts by annexing forged documents, just to gain undue advantage, in which, the petitioners got success when a Division Bench of this Court, on believing the assertion of the petitioners to be true, prima facie, stayed the recovery with respect to the loan taken by the petitioners for the purchase of car vide ad interim order dated 1.5.2003. In these backgrounds, we feel that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and it is the duty of the Courts to see that fraud is not perpetuated.

10. In Welcom Hotel and Others Vs. State of Andhra Pradesh and Others, , the Apex Court has held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.

11. In K.D. Sharma Vs. Steel Authority of India Ltd. and Others, , the Apex Court has held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that person approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayashree and Others Vs. Bhagwandas S. Patel and Others, .

12. From what we have mentioned above, it is clear that the petitioner has filed this writ petition with oblique motives and has not presented the correct facts just to gain undue advantage. Such type of act should always be discouraged and is highly deprecated. This is the case, where we thought to impose heavy cost so as to deter in indulging such activities again. Therefore, we do not find any justification to interfere with the recovery notice under challenge or entertain the petitioners prayer for setting aside the impugned recovery citation.

13. The writ petition is dismissed with cost, which shall be quantified as Rs. 2,50,000/-. The petitioners are directed to deposit the said cost before the Registry of this Court within a month from today, failing which, Registrar shall request the District Magistrate/Collector to recover the said cost as arrears of land revenue. On receipt of the said cost, the Registrar of this Court shall remit the said amount/cost in the account of Mediation and Conciliation Centre of this Court. As regard the application for initiating proceeding u/s 340 Cr.P.C. against the petitioners is concerned, it will be open for the respondents, if they so desire, to approach the Magistrate concerned.