Smt. Savita Goel vs The Debt Recovery Tribunal, ...
2013 Latest Caselaw 6 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.24
 

 
Writ Petition No. 1260 of 2013 (M/B)
 

 
Smt. Savita Goel				............ Petitioner
 

 
Versus
 
The Debts Recovery Tribunal, Lucknow
 
and others 					.............Opposite parties
 

 
*********
 
Hon'ble Rajiv Sharma, J.

Hon'ble Saeed-Uz-Zaman Siddiqi, J.

The instant writ petition was disposed of finally by the following judgment and order dated 14.2.2013 :

"Heard learned Counsel for the petitioner and Sri Abhay Kumar, learned Counsel for the respondent-Bank.

Learned Counsel for the petitioner submits that petitioner has filed Securitization Application along with an application for interim relief before the Debts Recovery Tribunal but as the post of Presiding Officer of Debts Recovery Tribunal, Lucknow is lying vacant since September, 2012 and as such, interim relief application has not been decided till date. He submits that the opposite parties are adamant to take physical possession of the properties in question with the help of police officials under Section 14 of the Act.

Considering the peculiar facts and circumstances of the case, we provide that till disposal of the interim relief application, status quo as it exists today shall be maintained by the parties. We hope and trust that the Tribunal shall make earnest endeavour in deciding the interim relief application, expeditiously.

The writ petition stands disposed of finally."

Thereafter, the petitioner has preferred an application for correction of the order dated 14.2.2013 (C.M. Application No. 17463 of 2013), which was allowed by the following order dated 25.2.2013 :

"This is an application for correction of the order dated 14.2.2013, praying therein that due to typographical error, in place of word "Appeal", words "Securitization Application", in place of word "Sale", words "take physical possession and in place of "learned Recovery Officer", words "police officials under section 14 of the Act" have wrongly been mentioned in the judgment and order dated 14.2.2013.

As the error in the judgment and order dated 14.2.2013 is typographical in nature, we allow the application and words "Securitization Application" mentioned in second line of paragraph 2 of the judgment and order dated 14.2.2013 shall be read as "Appeal"; words "take physical possession of" mentioned in 6/7 line of paragraph 2 of the judgment and order dated 14.2.2013 shall be read as "sale"; and words "police officials under Section 14 of the Act" mentioned in 7/8 line of paragraph 2 of judgment and order dated 14.2.2013 shall be read as "learned Recovery Officer".

The judgment and order dated 14.2.2013 is corrected to the above extent only."

Now, Sri Abhay Kumar, learned Counsel for the opposite party No.2 has preferred an application for modification of the order dated 14.2.2013 (C.M. Application No. 2096 of 2013).

Heard Sri Dinesh Kumar, learned Counsel for the petitioner and Sri Abhay Kumar, learned Counsel for the opposite party No. 2-Bank on the Application for modification of the order dated 14.2.2013 (C.M.Application No. 2096 of 2013).

Sri Abhay Kumar, learned Counsel for the opposite party No.2-Bank/applicant submits that in order to realize outstanding dues from the petitioner, applicant/bank preferred original application, bearing No. 45 of 2002, before the Debts Recovery Tribunal, Lucknow, under Section 19 of the Recovery of Debts Due to Bank and Financial Institution Act, 1993, in which notices were issued. In response to the notice, the defendants including petitioner, who was defendant No.4 in the said original application, appeared and filed their written statement/objection through their counsel. The Debts Recovery Tribunal, after hearing the parties and going through the records, allowed and decreed the original application in favour of the Bank vide decree dated 3.7.2008. Subsequently, after the lapse of two years, petitioner has preferred a writ petition, bearing No. 1462 (M/S) of 2010, before this Court and the same was dismissed vide following order dated 19.3.2010 :

"Heard Mr. Gyan Singh Chauhan, learned counsel for the petitioner and Mr. S.H. Zaidi, learned counsel for the Bank.

The petitioner has challenged the order dated 3rd of July, 2008, passed by the Debts Recovery Tribunal, Lucknow, whereas Mr.Zaidi, learned counsel for the Bank raised objection against the maintainability of the writ petition on the ground that the order impugned is appellable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 before the Debts Recovery Appellate Tribunal, Allahabad. Mr. Chuahan informs that in the Appellate Tribunal the post of Presiding Officer is vacant, therefore, the occasion arose to file the writ petition before this court.

Since there is a provision of filing of appeal against the order impugned, on account of vacancy of the posting of Member in the Tribunal, I am not inclined to entertain the writ petition on the ground of availability of alternative statutory remedy, therefore, the writ petition is dismissed. However, It is provided that if the appeal is filed and no Member is available in Tribunal to decide the appeal, the opposite party No.1 i.e. the Union of India shall make necessary arrangement for decision of appeal within two months from the date of production of a certified copy of this order before him."

Sri Abhay Kumar, learned Counsel for the applicant submits that even after liberty being granted by this Court vide order dated 19.3.2010, the petitioner did not file the said appeal till date and as such, the decree dated 3.7.2008 has attained its finality. He submits that D.R.C. Case No. 122 of 2008 was proceeded with by the learned Recovery Officer, Debts Recovery Tribunal, Lucknow for the execution of Recovery Certificate dated 3.7.2008 passed by the Presiding Officer, Debts Recovery Tribunal, Lucknow in Original Application No. 45 of 2002. The said proceeding of execution was pending before the Recovery Officer since 2008 and E-Auction Sale Notice was also published by the Recovery Officer for sale of mortgage property, to which the petitioner preferred objection dated 22.1.2013, challenging the auction notice issued by the Debts Recovery Tribunal. He submits that the said objection preferred by the petitioner was rejected by the Recovery Officer vide order dated 12.2.2013.

Reiterating the above submissions, Sri Abhay Kumar, learned counsel for the applicant submits that at the time of hearing of the writ petition on 14.2.2013, the petitioner has mislead this Court insofar as respondent Bank has never initiated any proceeding under SARFAESI Act to enforce the securities in the above case/account and as such, the question of taking possession of the property with the help of police officials did not arise at all. Further the applicant/bank, as stated hereinabove, had in fact filed Original Application No. 45 of 2002 before the Debts Recovery Tribunal, Lucknow for the realization of loan amount against the petitioner and other borrowers but the petitioner has not stated the above facts in the memo of the writ petition. Thus, the petitioner had obtained the orders dated 14.2.2013 and 25.2.2013 by misleading the Court and as such, the orders dated 14.2.2013 and 25.2.2013 be recalled and the writ petition be dismissed with heavy costs.

Learned Counsel for the petitioner did not dispute the fact that decree dated 3.7.2008 has not been challenged by the petitioner in any forum and as such, the same has attained finality.

On perusal of the averments made in the writ petition, it is clear that the petitioner has not disclosed in the memo of the writ petition about the decree dated 3.7.2008 and other material, facts as disclosed by the learned Counsel for the Bank. Therefore, it is beyond doubt that the petitioner has concealed the above facts and obtained the order dated 14.2.2013 and 25.2.2013 by suppressing the material facts and misleading the Court. 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.

In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc. AIR 1983 SC 1015, 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.

In K.D. Sharma v. Steel Authority of India Ltd. and Ors., [2008 (12) SCC 481], 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 the petitioner 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. Jayshree and Ors. v. Bhagwandas S. Patel and Ors.: (2009) 3 SCC 141.

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 practice 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 petitioner's prayer for setting aside the entire proceedings pending before the Debts Recovery Tribunal, Lucknow.

Under these circumstances, we recall the orders dated 14.2.2013 and 25.2.2013 and the writ petition is dismissed with cost, which shall be quantified as Rs.10,000/- (Rupees Ten Thousand). It will be open for the opposite parties to proceed in accordance with law. The petitioner is directed to deposit the said cost before the Registry of this Court within two months 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.

Applications stand disposed of finally.

Order Date : 22.3.2013

Ajit/-