Dismissed

M/S Goraya Packaging through Its Proprietor v. Presiding Officer Debts Recovery Tribunal Dehradun

Uttarakhand HC8 Mar 2021WPMS/132/2021

Case brief

AI extract

What is this about?

The High Court of Uttarakhand dismissed a writ petition seeking to quash a recovery certificate issued under the RDB Act and later coercive measures by a bank. The court held that the petitioner deliberately concealed the fact that he had previously approached this court regarding the same dispute, violating the principle of coming with clean hands.

What did the court decide?

Writ petition dismissed; petitioner ordered to deposit Rs. 50,000 into the Chief Minister Covid-19 Relief Fund, restoreable by the Collector if not deposited.

M/S Goraya Packaging through Its Proprietor Vs… — Banking and Recovery | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 132 of 2021

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M/s Goraya Packaging …....Petitioner Vs.

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Presiding Officer, Debts Recovery Tribunal, Dehradun & another

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…..Respondents

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Ms. Gurbani Singh, Advocate holding brief of Mr. Vibhor Maheshwari, Advocate for the petitioner.

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Mr. Siddhartha Jain, Advocate, for the respondent no.2.

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Hon’ble Sharad Kumar Sharma, J (Oral)

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The petitioner had filed this writ petition for the following relief:-

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“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.

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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.”

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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”.

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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

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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.

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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:-

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“(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;

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(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

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bank in respect of the petitioner’s mortgaged property described in the notice;

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(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;

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(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.”

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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.

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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.

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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

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to be a deliberate concealment, and not coming to the court with cleans hands.

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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.

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(Sharad Kumar Sharma, J.) 08.03.2021

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NR/

M/S Goraya Packaging through Its Proprietor v. Presiding Officer Debts Recovery Tribunal Dehradun

Case brief

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M/S Goraya Packaging through Its Proprietor v. Presiding Officer Debts Recovery Tribunal Dehradun

Case brief

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What did the court decide?

What the court decided

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