WPMS/1610/2021
2021 Latest Caselaw 3061 UK

                Office Notes,
             reports, orders or
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      Date                                       COURT'S OR JUDGES'S ORDERS
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                                  WPMS No. 1610 of 2021
                                  Hon'ble Sharad Kumar Sharma, J.

(Through Hybrid Mode)

Mr. Dharmendra Barthwal, Advocate for the petitioner.

Mr. Rakesh Kunwar, Addl. C.S.C. for the State of Uttarakhand.

Mr. N.S. Pundir, Advocate for respondent No. 2.

The petitioner admittedly happens to be the borrower of loan, who has taken a loan to the tune of Rs.10 lacs, from the respondent No. 2 on 25th November, 2013, and for the purposes of procuring of the said loan, he has mortgaged his property which was lying in Plot Nos. 71 and 72, in khata No. 62, having an area of 10975 square feet in East Jhandi Chaur, Tehsil Kotdwar, District Pauri Garhwal.

On issuance of the recovery citation, as a consequence of the initiation of the proceedings under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002, the petitioner had earlier approached the Writ Courts and have preferred a Writ Petition (M/S) No. 2599 of 2018, in which, the Coordinate Bench of this Court on 31st August, 2018, had passed an interlocutory order, considering the bona fide which was then expressed by the petitioner, by an interim order dated 31.08.2018, directed the petitioner to deposit Rs.2 lacs, within a period of two weeks. It was directed that the said amount deposited, would be accepted by the Bank and will not prejudice the rights of the petitioner to get the Writ Petition, decided on merits. It was further directed that no coercive action would be taken by the respondents, against the petitioner. The petitioner, on his own wisdom has chosen to place the said order on record only.

In the instant Writ Petition, he has rather prayed for quashing of the order dated 13th May, 2021, which has been passed by the District Magistrate, while exercising his jurisdiction under Section 14 of the Act, and as a consequence of the culmination of the proceedings under Section 13 (2) and 13 (4), to be read with Rule 8, as framed under the Rules, of the SARFAESI Act.

The said Writ Petition, which was earlier preferred by the petitioner was finally disposed of by the Coordinate Bench of this Court by the judgment dated 26th November, 2018, and that too by recording the consent of both the parties for recovering the remaining amount in 24 equal instalments. The directions, as issued by the judgment dated 26.11.2018, relevant part is extracted as under :-

"With the consent of both the parties, writ petition stands disposed with the direction that the respondent bank shall recover the remaining amount in twenty four equal monthly installments or in the number of installments, agreed between the parties, spread over for a period of two years. It is made clear that the first installments shall be paid by the petitioner on or before 26.12.2018. It is further made clear that last installment shall also carry the cumulative interest. In case of any single default by the petitioner in making payment, the respondent bank shall be at liberty to initiate fresh recovery proceedings against the petitioner. It is further made clear that no recovery charges shall be recovered from the petitioner."

Its this order of 26th November, 2018, has not been placed on record, for the reason best known to the petitioner, and as per the opinion of this Court, it was a deliberate act, for not making the Court aware with the true facts, that for the same recovery proceedings, there was already an instalment fixed by the Coordinate Bench, admittedly, and quite obviously too, on the commission of default for non compliance of the judgment dated 26th November, 2018 (which has not been disclosed in the Writ Petition), the impugned recovery proceedings have been issued on 13th May, 2021.

Since this Writ Petition happens to be based upon a concealment of the material fact, which has a direct bearing on the issues, it will have a direct bearing on the writ petition itself and when the Writ Petition takes the shape of being a second Writ Petition, almost for the same question and cause of action, and particularly when the petitioner himself has availed the facility of depositing the amount in instalments, second Writ Petition at his behest would not be maintainable.

Hence, this Writ Petition is dismissed with cost of Rs.10,000/- to be deposited by the petitioner in the Advocate Welfare Fund of the High Court Bar Association, of the High Court Uttarakhand.

(Sharad Kumar Sharma, J.) Dated 13.08.2021 Shiv