Uttarakhand High Court
M/S Goraya Packaging vs Presiding Officer on 8 March, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 132 of 2021
M/s Goraya Packaging .......Petitioner
Vs.
Presiding Officer, Debts Recovery Tribunal, Dehradun & another
.....Respondents
Ms. Gurbani Singh, Advocate holding brief of Mr. Vibhor Maheshwari, Advocate for the
petitioner.
Mr. Siddhartha Jain, Advocate, for the respondent no.2.
Hon'ble Sharad Kumar Sharma, J (Oral)
The petitioner had filed this writ petition for the
following relief:-
"A. Issue a writ in nature of certiorari or any other
appropriate writ, direction or order for quashing of recovery
certificate of Rs.1,93,08,483.72 ps. (Rupees One Crore Ninety
Three Lacs Eight Thousand Four Hundred Eighty-Three and
paisa Seventy-two only)/- issued by the respondent no.1,
Annexure no.1 to the present petition.
B. Issue a writ in nature of mandamus or any other
appropriate writ, direction or order to the respondents to not to
harass the petitioner or take any coercive measures against the
petitioner, including his arrest and sealing of his house."
2. Consequently, the petitioner has prayed for the quashing
of the recovery proceedings, which was instituted against him as a
consequence of the decision, which was rendered by Debts Recovery
Tribunal, Dehradun in OA No.263 of 2018 "Punjab National Bank
Vs. M/s Goraya Packaging and others".
3. The facts which are also apparent from the records of the
writ petition are that in fact the Debts Recovery Tribunal had already
settled the controversy by fixing the liability for remittance of the
amount vide judgment dated 22.01.2020 and accordingly the recovery
certificate under Section 19 (22) of the Recovery of Debts and
Bankruptcy Act, 1993 has directed to be issued. This judgment has
not been the subject matter of the challenge at the behest of the
petitioner in the present writ petition. Hence it would amounts to that
the petitioner has submitted to the judgment of the Debts Recovery
Tribunal dated 22.01.2020. Hence to the nature of the relief sought for
in the writ petition cannot be granted until and unless, the said
judgment is put to scrutiny before the competent superior appellate
forum.
4. When the writ petition was argued, the learned counsel
for the petitioner has expressed that the petitioner is willing to
discharge his financial liability, as had been settled by the DRTA vide
its judgment dated 22.1.2020 and hence, the petitioner has prayed for
relief, as already quoted above. When the matter was taken up on
05.03.2021 as fresh, the learned counsel for the respondent bank had
brought the fact on record by placing documents that the petitioner
has not approached, before this Court with clean hands for the reason
being that as against the proceedings initiated against the petitioner
under Section 13 (2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (in
short "Act") for recovering the same disputed amount, consequently,
resulting into taking over the possession under sub-section (4) of
Section 13 of the Act on 17.05.2018. The petitioner had approached
this Court by filing a writ petition being WPMS No.2797 of 2018
"M/s /s Goraya Packaging and others Vs. PNB, wherein, the petitioner
had molded the relief in other manner, which read as under:-
"(i) Issue a writ, order or direction in the nature of certiorari
quashing the Notice dated 26.02.2018, issued under Section
13(2) of the SARFAESI Act 2002, by the respondent bank, in
respect of the petitioner's mortgaged property described in the
Notice;
(ii) Issue a writ, order or direction in the nature of certiorari
quashing the possession notice dated 17.05.2018, issued under
Section 13(4) of the SARFAESI Act 2002, by the respondent
bank in respect of the petitioner's mortgaged property described
in the notice;
(iii) Issue a writ, order or direction in the nature of mandamus
directing the respondent bank to allow the petitioner no.2 to
arrange for the funds to repay the borrowed loan amount by
running the unit or by selling some assets in open market;
(iv) Issue a writ, order or direction in the nature of mandamus
directing the respondent nos.1 and 2, not to take any action
against the petitioners, in respect of the property described in
Notices dated 25.02.2018 & 17.05.2018, issued under section
13(2) & 13 (4) of the SARFAESI Act, 2002."
5. In the said writ petition, the relief No. 3 would be
relevant where the petitioner had prayed that he may be permitted to
repay the loan by arranging the funds by selling the Unit himself.
6. The Coordinate Bench of this Court had disposed of the
writ petition vide judgment dated 26.09.2018 with a direction to the
petitioner to approach the appropriate forum for redressal of his
grievances. The facts pertaining to filing of the earlier writ petition,
judgment rendered on it by this Court on 26.09.2018, were concealed
and not pleaded in the present writ petition. Though the deponent of
both the writ petitions Mr. Gurbagh Singh had sworn the pleadings.
7. I am of the view that this is apparently the deliberate
concealment because the grant of any relief as sought for in the
subsequent writ petition i.e. WPMS No.132 of 2021, had direct nexus
to the earlier judgment of this Court dated 26.09.2018 and the present
writ petition preferred by the petitioner and it was the honourous duty
of the petitioner to have disclosed the true complete and correct fact in
the present writ petition. Not coming before this Court with clean
hands and praying for the relief, which in case, if granted would have
resulted into overriding impact of the judgment dated 26.09.2018
which was earlier passed by this Court in WPMS No.2797 of 2018
and the judgment rendered by the DRTA, Dehradubn would amount
to be a deliberate concealment, and not coming to the court with
cleans hands.
8. Consequently, while dismissing this writ petition on the
pretext of the fact that the petitioner has deliberately concealed the
facts of having earlier approached this Court, the writ petition is
dismissed with a cost of Rs.50,000/- (Rupees Fifty Thousand Only)
which is to be paid by the petitioner and shall be deposited in the
Chief Minister Covid-19, Relief Fund, Uttarakhand and the proof of
the deposit should be placed on the records of the writ petition being
WPMS No.132 of 2021 lest failing which, the said amount would be
recovered by the Collector, Dehradun from the petitioner by the
concerned District Magistrate, as the arrears of land revenue.
(Sharad Kumar Sharma, J.)
08.03.2021
NR/
