Neelima Bagaria vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 3828 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 9th August, 2011
+                          W.P.(C) 6877/2009

         NEELIMA BAGARIA                                       ..... Petitioner
                     Through:             Mr. T.K. Ganjoo, Sr. Adv. with Mr.
                                          Pallav Saxena, Adv.

                                     Versus

    GOVT. OF NCT OF DELHI & ORS.              ..... Respondents
                 Through: Ms. Sangeeta Sondhi, Ms. Nitika
                           Aggarwal & Mr. Ashish Virmani,
                           Adv. for R-1.
                           Mr. Nikhil Rohatgi & Mr. Nakul
                           Mohta, Adv. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may               Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?              Not necessary

3.       Whether the judgment should be reported             Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. CM No.6843/2011 has been filed by the petitioner for revival of the

writ petition which was disposed of on 27th August, 2010. The said

application came up before this Court first on 13 th May, 2011 when notice

thereof was ordered to be issued to the respondents.

2. The petitioner applicant thereafter filed CM No.7734/2011 seeking

inter alia stay of the action initiated by the respondent no.3 Standard

Chartered Bank (Bank) under the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest (SARFAESI) Act,

2002. The said application came up before this Court on 27 th May, 2011.

Vide ex parte order of that date it was directed that no further steps be

taken in terms of the possession notice dated 13 th May, 2011 issued by the

Bank.

3. CM No.10360/2011 was filed by the Bank for vacation of the ex

parte order. The said application came up before the Court on 21 st July,

2011 when the same was directed to be treated as the reply of the Bank to

CM No.7734/2011 of the petitioner for stay.

4. The matter was listed on 3rd August, 2011. It was the contention of

the Bank on that date that the petitioner had suppressed material facts from

CM No.7734/2011 to obtain ex parte order and owing to which ex parte

order the Bank had been unable to take possession of the property. After

hearing the counsels on that date and being prima facie of the opinion that

the petitioner had indulged in abuse of process of this Court, the ex parte

order dated 27th May, 2011 was vacated and the petitioner directed to

appear in person before this Court today.

5. The petitioner has appeared today in person and has also filed CM

No.11635/2011 for vacation of the order dated 3 rd August, 2011 and inter

alia seeking restoration of the order dated 27 th May, 2011 granted earlier.

6. The senior counsel for the petitioner has contended that the

petitioner has not indulged in any suppression. Attention is invited to

S.J.S. Business Enterprises (P) Ltd. v. State of Bihar (2004) 7 SCC 166,

in para 14 whereof the Apex Court observed that non-disclosure of a suit

with respect to the same cause of action in a writ petition under Article 226

of the Constitution of India does not amount to suppression since parallel

remedies can be availed of in law and further since availability of

alternative remedy is not an absolute bar to the maintainability of a writ

petition under Article 226. Attention is also invited to para 15 of the

judgment where the Apex Court observed that withdrawal of a proceeding

does not constitute res judicata. The senior counsel for the petitioner has

thus contended that the non-disclosure by the petitioner in CM

No.7734/2011 of withdrawal on 19 th November, 2010 of W.P.(C)

7707/2010 earlier preferred by the petitioner, also challenging the

proceedings under the SARFAESI Act, does not amount to suppression.

7. The judgment cited by the senior counsel for the petitioner has no

application to the present case. The present is not a case of a suit having

been suppressed by the petitioner. The petitioner did not disclose to this

Court while seeking the ex parte order in CM No.7734/2011 that she had

earlier invoked the jurisdiction under Article 226 of the Constitution of

India and had been unsuccessful in the same. W.P.(C)7707/2010 was

withdrawn after the petitioner failed to convince this Court of merit

thereof. The reasoning given by the Apex Court in S.J.S. Business

Enterprises (P) Ltd. (supra) would not apply to the facts of the present

case in as much as the present is not a case of alternative/parallel remedies

but of the petitioner having availed of remedy under Article 226 twice

without disclosing the factum of having been unsuccessful in the earlier

round.

8. The senior counsel for the petitioner has next contended that the

Bank had an opportunity to appear since advance copy had been given to it

of CM No.7734/2011 and having chosen not to appear cannot complain of

concealment. I do not find any merit in the said contention also. The non

appearance of the Bank is of no avail; the suppression practiced by the

petitioner is of the facts from the Court and not from the respondents. A

person who approaches the Court especially for a discretionary relief as

under Article 226 Constitution of India owes a duty to the Court to make a

complete disclosure and cannot be heard to plead that the opposite party

ought to have made a disclosure and the fact that the opposite party can

make disclosure does not relieve a party of himself/herself making a clean

breast of the state of affairs.

9. The senior counsel for the petitioner has next contended that the

challenge in the earlier writ petition was on entirely different grounds.

Attention is invited to W.P.(C)7707/2010 wherein the petitioner had

disclosed about the present writ petition.

10. However what we are concerned with over here is the disclosure in

the present proceedings and not the disclosure in W.P.(C) 7707/2010.

11. As far as the argument of the challenge in the two petitions being on

different grounds is concerned, it is not open to a litigant to file successive

petitions for same relief albeit on different grounds. Moreover, a litigant

cannot choose what to disclose to the Court and what not to disclose. The

present was not a case where the filing of W.P.(C) 7707/2010 can be said

to be so extraneous to CM No.7734/2011 to be not within the

contemplation of the petitioner for disclosure. It cannot be disputed that the

remedy claimed in both proceedings was the same i.e. to stall the action

under SARFAESI Act initiated by the Bank. In fact it appears that had the

petitioner been successful in W.P.(C)7707/2010 the occasion for filing CM

No.7734/2011 may not have arisen. What is being urged today before this

Court, that the filing of W.P.(C)7707/2010 and withdrawal thereof would

not have come in the way of the petitioner being entitled to the interim

relief ought to have been urged on 27 th May, 2011 when ex parte relief

was claimed from this Court and it ought to have been left to the Court at

that stage to accept or reject the said contention of the petitioner. The

charge of suppression cannot be defended by contending that the petitioner

was entitled to relief even if had made the disclosure.

12. The senior counsel has with reference to paras 2&3 of the order

dated 3rd August, 2011 contended that the impression given to the Court on

that date was that the petitioner was in possession of the property or by

obtaining the ex parte order aforesaid had delayed parting with possession

of the property. It is further stated that W.P.(C) 952/2011 referred to in

para 3 of the order dated 3rd August, 2011 was withdrawn by the Bank

itself and without any statement by the petitioner herein.

13. It was informed to this Court during the hearing on 3 rd August, 2011

by the Bank that the possession of the property was with the Recovery

Officer of the DRT and was to be delivered by the Recovery Officer to the

Bank. It thus cannot be said that there was any misrepresentation by the

Bank on that day. Similarly what is recorded in para 3 of the order is the

comprehension by this Court of the argument on that date. Moreover, the

misrepresentation even if any by the Bank cannot relieve the petitioner of

her guilt.

14. The senior counsel for the petitioner has also contended that the

Bank moved the application for vacation of ex parte order after as many as

45 days. In my opinion the said factor is also irrelevant.

15. The senior counsel has lastly contended that the error in not

disclosing the factum of W.P.(C) 7707/2010 is bona fide. It is stated that

the petitioner is a housewife and is not actively involved in the business

affairs which are looked after by her husband. The petitioner present in

person states that her husband has not accompanied her to the Court today.

The counsel for the Bank at this stage informs that the stand taken by the

petitioner today is contrary to the stand taken by the petitioner and her

husband before Debt Recovery Tribunal (DRT) that their relationship is

strained and that they are not living together.

16. The counsel for the petitioner states that the stand before DRT is of

the husband having deserted the petitioner at an earlier point of time.

17. Having found the petitioner to have indulged in suppression of facts,

she cannot be held to be entitled to the relief of pursuing this petition, even

if her application for revival of this writ petition otherwise had any merits.

For the same reasons, I also do not find any merit in the application of the

petitioner for restoration of the order dated 27 th May, 2011.

18. As far as the punishment to be meted out to the petitioner is

concerned, I tend to accept the contention of the senior counsel for the

petitioner of the facts having remained to be informed to this Court owing

to a bona fide mistake. Considering the said fact and further considering

that the counsel advising the petitioner is a young professional, I tend to

put the matter to quietus by imposing punishment on the petitioner of

payment of `1 lac to be deposited with Delhi High Court Legal Services

Authority. The same be done within four weeks. If the proof of payment is

not deposited with the Registry within four weeks, the matter to be re-

listed for appropriate directions.

The applications are disposed of

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 9, 2011 pp