Kalpana Mondal vs Bengal Srachi Housing Development Ltd.

C. Viswanath, Presiding Member

This appeal is directed against the order of the West Bengal State Consumer Disputes Redressal Commission, Commission, Kolkata (hereinafter referred to as "the State Commission) dated 18.12.2019 in CC/664/2018.

The State Commission took up for consideration application filed by the Complainant under Section 13 (3B) of the Consumer Protection Act, 1986 whereby the Complainant made a prayer to direct the Opposite Party not to cancel the allotment and not to transfer, sale or create any third party interest over the subject flat situated in Tower Maze at Greenwood Nest Complex at Plot No.3085, Mouza-Ghuni, Rajarhat, P.S.-New town, District North 24 Parganas till disposal of the Complaint. Having heard the respective parties and going through the record, the State Commission observed that the Complainant was successful in lottery for allotment of a flat measuring 807 sq. ft. at a price of Rs.13,95,000/-. However, due to non-fulfilment of the terms & conditions, Opposite Party No.1/Developer cancelled the agreement and refunded the amount paid by the Complainant as earnest money/part consideration. The State Commission observed that this material fact had been supressed by the Complainant in the Complaint and it is well settled that a person who approaches the Court of law must come with clean hands. If not, he should be thrown out of litigation at any stage. In view of the above, the Complaint was rejected and the interim order passed earlier was vacated.

Heard the Learned Counsel for the Appellant and carefully perused the record. It is seen that the Complainant had deliberately supressed the fact of cancellation of the flat on 22.08.2018 and refund of the advance paid with interest @ 12% due to non-payment of instalments, without taking any cancellation charges as per the terms & conditions attached to the application form. The subsequent communications clearly reflect that the Complainant had duly received the said cancellation letter and the cheque. The Complainant supressed this information in the Complaint and also in IA/978/2018. He obtained an ex-parte order on 10.10.2018 for not creating any third party interest in respect of the said flat, which was already cancelled. In the case of Bhriguram De Versus State of West Bengal & others, W.P. 16748 (W) of 2018 decided on 03.08.2018, Hon'ble Calcutta High Court observed that suppression of material facts would disentitle a litigant to any relief. Doors of justice should be closed to those who supress the material fact. It was held as under: -

"...Fraud and justice never dwell together. They are alien to each other. Fraud pollutes the sanctity, regularity, orderliness and solemnity of the judicial proceedings. It is the bounden duty of the Court to keep the stream of justice absolutely clean.

......

"For him to get justice, it is required that he comes before this court with clean hands. Suppression of all the 'leaves' that he has taken and admitted to is a material fact that is relevant in the present case as he is challenging the salary overdrawn by him, as a result of the unsanctioned leave taken by him in the school.

Without producing these documents in Court, he has tried to create an impression that great injustice has been done to him by the school authorities for stopping the salary overdrawn on account of leave.

......

Courts have consistently taken the view that one who approaches the Court must come with clean hands. It is the bounden duty of the Court to keep the stream of justice absolutely clean. Anyone who approaches must give full and fair disclosure of all the materials. The Courts must not allow anyone to abuse the court process. In case the petitioner conceals anything that is known to be material such an action would lead to an inference of fraud, and even if not fraud, definitely would lead to a presumption that the petitioner has not approached the court with clean hands.

....The principle of uberrima fides - abundant good faith - as stated in The King -v- The General Commissioners for the purposes of the Income Tax Acts for the District of Kensington reported in (1917) 1 KB 486 applies in the present case. A petitioner who does not bring on record the relevant true facts before the court, does not deserve to get any relief from the court

... It is to be further noted that the writ jurisdiction is a discretionary jurisdiction and the court applying its judicial discretion may refuse to entertain this writ petition when appraised of the facts that the writ petitioner has not acted uberrima fides.

.......The Courts of law are meant for imparting justice between the parties. One, who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of litigation.

...... A fraud is an act of deliberate deception with the design of securing something by taking advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage of another........ A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."

In view of the foregoing discussion, I find no illegality or infirmity in the order passed by the State Commission. As the Complainant had not approached the State Commission with clean hands, the State Commission had rightly rejected the Complaint. The impugned order passed by the State Commission is perfectly justified and does not warrant interference in appellate jurisdiction. The Appeal fails and is hereby dismissed in limine.