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2006 DIGILAW 149 (DEL)

RAJIV PODDAR v. CANARA BANK

2006-01-20

MADAN B.LOKUR

body2006
MARKANDEYA KATJU, C. J. ( 1 ) THIS writ petition has been filed for a writ of certiorari to quash the impugned order dated 15th June, 2005 passed by respondent No. 4, Debt Recovery tribunal-I , Delhi in M. A. No. 53/2005 in O. A. No. 409/1996 (Canara Bank v. Sagar Construction Co. Pvt. Ltd.) and to delete the name of the petitioner from the recovery certificate. ( 2 ) HEARD learned counsel for the parties and perused the records. ( 3 ) THE respondent No. 1, Canara Bank, filed original Suit No. 27/1987 in the delhi High Court for recovery of Rs. 12,35,250. 95 against respondents No. 2 and 3 and one Shri G. D. Poddar, who died during the pendency of the suit on 8th august, 1992. Copy of the plaint is Annexure `p? to the writ petition. ( 4 ) IT is alleged in paragraph 2 of the petition that the said suit was compromised by respondents No. 1,2 and 3. Shri G. D. Poddar had died before the compromise was effective. An application for recording the compromise was filed before the Debt Recovery Tribunal on behalf of respondents No. 1 to 3. The petitioner was the Director of respondent No. 2, M/s. Sagar Construction Co. Pvt. Ltd. True copy of the compromise application is `annexure-P1 ). The Court by order dated 28th May, 1993 passed a decree in terms of the compromise vide annexure-P2 ). ( 5 ) IT has been alleged in paragraph 5 of the petition that there was no judgment or decree against the present petition, Shri Rajiv Poddar, and hence the decree cannot be executed against him. ( 6 ) IT is alleged in paragraph 9 of the petition that in 1995, the respondent/bank took out execution of the said decree being Execution Application No. 57/1995 and in the said Execution Application, it impleaded petitioner as Judgment debtor No. 3 although there was no decree against the petitioner. Ultimately, an order had been passed directing issuance of recovery certificate for a sum of rs. 51,59,883. 85 against the petitioner and respondents No. 2 and 3. True copy of the recovery certificate is `annexure-P6?. ( 7 ) THE petitioner on 4th December, 2002 filed an objection petition under Section 25 read with Section 29 of The Recovery of Debts due to Banks and Financial institutions Act, 1993 vide annexure-P7 . 51,59,883. 85 against the petitioner and respondents No. 2 and 3. True copy of the recovery certificate is `annexure-P6?. ( 7 ) THE petitioner on 4th December, 2002 filed an objection petition under Section 25 read with Section 29 of The Recovery of Debts due to Banks and Financial institutions Act, 1993 vide annexure-P7 . The petitioner also filed an application for amendment of the recovery certificate and to delete his name from the said certificate. However, that application was rejected by order dated 15th June, 2005 vide `annexure-P9?. Aggrieved, this writ petition has been filed in this Court. ( 8 ) A counter-affidavit has been filed by respondent No. 1 and we have perused the same. ( 9 ) IN paragraph 1 of the same, it is stated that the petitioner has a right to appeal under Section 20 of the Act. ( 10 ) IN paragraph 2 of the counter-affidavit, it is stated that the proceedings had been transferred to the Debt Recovery Tribunal. It is stated therein that in the compromise filed, the petitioner and respondents No. 2 and 3 admitted the claim of the respondent No. 1/bank and also the mortgage of the property bearing no. C-3, Kailash Colony, New Delhi. ( 11 ) IN paragraph 3, it is stated that the petition is liable to be dismissed on the ground of laches. The petitioner has concealed material facts from this court that the petitioner and respondents No. 2 and 3 were duly served by a notice dated 2nd January, 1998 issued by the Recovery Officer, D. R. T.-I, Delhi, for 27th January, 1998. On 27th January, 1998, one Shri M. K. Sharma, Liaison officer of respondent No. 2 appeared on behalf of all the certificate debtors, including the petitioner. On 27th January, 1998, adjournment was sought on behalf of the petitioner and other certificate debtors and the matter was adjourned for 17th February, 1998. ( 12 ) ON 17th February, 1998, an Advocate appeared on behalf of the petitioner and certificate debtors and stated that the amount can be paid by 25th February, 1998, and when his request was rejected, he requested for one day s time to make payment. The Recovery Officer attached the property mentioned in the notice dated 2nd January, 1998 and gave the certificate debtors time to make payment till 25th February, 1998 failing which proclamation of sale will be issued. The Recovery Officer attached the property mentioned in the notice dated 2nd January, 1998 and gave the certificate debtors time to make payment till 25th February, 1998 failing which proclamation of sale will be issued. Copy of the order dated 17th February, 1998 is annexure-II . ( 13 ) IT is stated in para 5 of the counter-affidavit that the petitioner and respondents No. 2 and 3 have been playing hide and seek in the recovery proceedings for many years. The petitioner has been regularly watching the proceedings and he was able to avoid service despite the best efforts of respondent No. 1/bank, and it was only when warrants of arrest against the petitioner were issued on 31st October, 2002, that he immediately appeared through his counsel. ( 14 ) IN paragraph 8, it is stated that the petitioner has concealed material facts and hence the petition is liable to be dismissed on this ground alone. The petitioner has deliberately not stated that he is a Director of the respondent no. 2/company and that he in his individual capacity as well as Director of respondent No. 2 along with respondents No. 2 and 3 entered into a compromise with respondent No. 1/bank wherein he had undertaken to repay the dues of the bank. The petitioner has concealed the fact that he is a legal heir of late shri G. D. Poddar, defendant No. 2 in the suit and is also son of Smt. Vijaya poddar, respondent No. 3 herein. The petitioner has deliberately and mala fide given the wrong address of his mother and has also refused to divulge any details about himself as well as of respondents No. 2 and 3. ( 15 ) IN paragraph 9, it is stated that the petitioner deliberately and mala fide gave his address of Calcutta whereas he has been residing in Delhi and owns various assets, cars, etc. which fact is also evident from his Income-tax returns. ( 16 ) IT is stated in the counter-affidavit that the compromise decree was passed by the Court on the affidavit sworn by the petitioner. The petitioner, who is the son of respondent No. 3, Smt. Vijaya Poddar, and one of the legal heirs of late Shri. G. D. Poddar, personally undertook to repay the entire admitted claim of the respondent No. 1/bank and swore an affidavit in that regard. The petitioner, who is the son of respondent No. 3, Smt. Vijaya Poddar, and one of the legal heirs of late Shri. G. D. Poddar, personally undertook to repay the entire admitted claim of the respondent No. 1/bank and swore an affidavit in that regard. On the basis of that affidavit and the statement made by respondents No. 3 and 3, the decree dated 28th May, 1993, was passed on the compromise application filed by the parties. However, even thereafter, the petitioner and respondents No. 2 and 3 failed to make payments under the compromise decree despite their undertaking. Hence, the respondent No. 1/bank had to file an Execution Petition before this court. ( 17 ) AFTER the transfer of the petition from the High Court to the D. R. T. , the petitioners and respondents No. 2 and 3 were duly served with notice and they duly appeared on 27th January, 1998 and 17th February, 1998 wherein they sought time to repay the entire debts of the respondent No. 1/bank. However, they deliberately did not do so and in fact the petitioner as well as respondent No. 3 shifted and changed their addresses without informing their whereabouts to the court or to the respondent No. 1/bank. It is only after much efforts and spending lots of money that the respondent No. 1/bank could ascertain their addresses and warrants of arrest were issued against the petitioner. ( 18 ) ON the facts of the case, we are of the opinion that this petition is liable to be dismissed on the ground that the petitioner has not come with clean hands in view of the facts stated in the counter-affidavit. He has concealed the fact that he entered into a compromise along with respondents No. 2 and 3 with the respondent No. 1/bank but thereafter did not make the payments under the compromise. He has also concealed the fact that he is a Director of the respondent No. 2/company and son respondent No. 3 and legal heir of late Shri. G. D. Poddar. He has deliberately given false addresses and has been shifting and changing addresses to avoid making payments. ( 19 ) THUS, this is not a fit case for exercise of discretion under Article 226 of the Constitution. The petition is dismissed. .