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2014 DIGILAW 907 (DEL)

M/s. R. L. Varma v. Kotak Mahindra Bank

2014-03-14

HIMA KOHLI

body2014
JUDGMENT Hima Kohli, J. (Oral) 1. The present petition has been filed by the petitioner praying inter alia for staying the hands of the respondent/Bank from selling/auctioning the two properties, i.e., a residential premises bearing House No.A-123, New Friends Colony, New Delhi and a commercial property measuring 8160 sq. ft. situated on the 4th floor of Gopal Dass Bhawan, Barakhamba Road, New Delhi. 2. Counsel for the petitioner states that the present petition had to be filed as the respondent/Bank has issued an auction notice dated 15.2.2014 in respect of the subject properties and the auction thereof is fixed for tomorrow, i.e., on 15.3.2014 at 10.30 AM. It is the contention of the learned counsel for the petitioner that the reserved price of the subject properties fixed in the auction notice is far below the prevailing circle rates published by the government and therefore, the said auction ought to be stayed and the properties should be directed to be sold at the prevalent market rates. 3. A pointed query has been posed to the counsel for the petitioner as to why has the present petition been filed at the eleventh hour when the public notice in question was issued on 15.2.2014, but there is no satisfactory explanation offered by him. 4. Learned counsel for the respondent/Bank, who appears on advance copy, submits that the present writ petition is yet another attempt on the part of the petitioners to somehow or the other scuttle the auction proceedings that are fixed for tomorrow and even earlier such attempts had been made by them. He states that in any case, the present petition filed by Smt. Aruna Verma, mother of Sh.Dhruv Verma, the authorized representative of the HUF, is not maintainable as she does not have any authority to file such a petition. 5. Counsel for the petitioner informs the court that no doubt Shri Dhruv Verma is the authorized representative of the HUF, but he is presently in judicial custody in a criminal case and is therefore unavailable and due to urgency in the matter, Smt. Aruna Verma had to file an affidavit in support of the present writ petition. 6. 5. Counsel for the petitioner informs the court that no doubt Shri Dhruv Verma is the authorized representative of the HUF, but he is presently in judicial custody in a criminal case and is therefore unavailable and due to urgency in the matter, Smt. Aruna Verma had to file an affidavit in support of the present writ petition. 6. Counsel for the respondent/Bank hands over a set of documents, including the orders passed by the Division Bench in WP(C)No.7653/2011 entitled ‘Smt. Vinanti Seth vs. Kotak Mahindra Bank Ltd. & Ors.’, wherein the petitioner HUF was impleaded as respondent No.2 and Smt. Aruna Verma was impleaded as respondent No.6 and all the parties were duly represented in the aforesaid proceedings. He points out that the relief sought in the aforesaid writ petition is identical to the relief being sought in the present writ petition and after the Division Bench had heard the parties at length, the aforesaid writ petition was disposed of, vide order dated 21.10.2011, on agreed terms whereunder the petitioner and her family members had agreed to make payments to the respondent/Bank in terms of the consent decree dated 3.2.2011 (Annexure P-6) passed by the Presiding Officer, DRT. But, they had grossly defaulted in abiding by the obligations undertaken by them and later on, the respondent/Bank had proceeded to take steps to dispose of the subject properties to adjust the moneys received towards the outstanding loan amount payable by the petitioners. 7. Counsel for the respondent/Bank states that in WP(C)No.7653/2011 the petitioner herein and the family members had agreed to make arrangement for payment of the defaulted installments along with overdue interest thereon by selling portions of the commercial space at Gopal Dass Bhawan and when the respondent/Bank agreed to the aforesaid proposal, the Division Bench had directed that the sale proceeds would be routed through the respondent/Bank directly and the remaining portion of the commercial space at Gopal Dass Bhawan would continue to remain mortgaged with respondent/Bank, apart from the residential property situated at New Friends Colony. 8. 8. It is stated that the respondents No.2 to 6 therein had agreed to make the payments to the respondent/Bank within 60 days reckoned from 21.10.2011 and it was clarified that in case of any default on their part, the respondent/Bank would be entitled to process the auction sale of both, the commercial space and the residential property, under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In view of the settlement arrived at between the parties and the undertakings given by the respondents therein, the writ petition was dismissed as withdrawn. At the same time, the Division Bench had observed that the parties were made fully aware of the consequences of any breach of the statements. 9. Counsel for the respondent/Bank states that the petitioner and the family members had grossly defaulted in abiding by the undertakings given by them to the Division Bench and on 20.12.2011, they had filed an application in WP(C) No.7653/2011, registered as CM No.19848/2011, for extension of time. In the course of hearing of the aforesaid application, the Division Bench had observed that the petitioner herein and the family members had concealed material facts from the Court and they had not informed the Court that portions of the mortgaged property had been agreed to be sold by them to third parties, after the mortgage was created. 10. Vide order dated 10.2.2012, the Division Bench had deprecated the conduct of the petitioner herein (respondent No.2 in the aforesaid writ petition) and the respondents No.3 to 6, and observed that there was non-disclosure of rights created by them in the mortgaged properties at the stage of creation of mortgage and the same was not even brought to the notice of the Court. Shri Dhruv Verma, the authorized representative of the petitioner herein, was directed to file an affidavit giving the correct factual position, a perusal whereof had compelled the Division Bench to observe that the respondents therein had not only cheated and misled the respondent/Bank, but had tried to overreach the Court by failing to disclose the creation of third party interest in respect of various portions of the commercial space at Gopal Dass Bhawan. As a result, the aforesaid application for extension of time filed in WP(C)No.7653/2011, was dismissed, while imposing costs of Rs1.00 lac on the applicant. As a result, the aforesaid application for extension of time filed in WP(C)No.7653/2011, was dismissed, while imposing costs of Rs1.00 lac on the applicant. Further, it was made clear that the respondents No.2 to 6 therein as also the petitioner would allow the auction to proceed without any obstruction and physical possession of the residential premises would be handed over to the respondent/Bank on 15.2.2012. 11. Learned counsel for the respondent/Bank states that the costs imposed on the applicant were not paid but pursuant to the order dated 10.2.2012 passed by the Division Bench, physical possession of the residential premises was taken over by the respondent/Bank and now that the respondent/Bank has fixed a date for conducting the auction sale of the subject property, the petitioner has filed the present misconceived petition, yet again trying to stall the said auction proceedings. 12. Copies of the documents handed over by the counsel for the respondent/Bank, including the orders passed in various proceedings and the list of dates and events, are taken on record. 13. A pointed query has been posed to the learned counsel for the petitioner as to whether all the aforesaid orders passed in respect of the subject properties find mention in the writ petition and if not, have the copies thereof been placed on record. Counsel for the petitioner responds by stating that his client had given him limited instructions and he was not informed about the earlier orders passed in WP(C) No.7653/2011. 14. It is settled law that when a party approaches the High Court and seeks the invocation of its jurisdiction under Article 226 of the Constitution of India, it must place on record all the relevant facts before the Court without any reservation. In exercising its discretionary powers and extraordinary jurisdiction under Article 226 of the Constitution of India, the High Court not only acts as a court of law, but also as a court of equity. Therefore, in case of a deliberate concealment or suppression of material facts on the part of the petitioner or if it transpires that the facts have been so twisted and placed before the Court, so as to amount to concealment, the writ court is well entitled to refuse to entertain the petition and dismiss it without entering into the merits of the matter. [Refer: Prestige Lights Ltd. vs. State Bank of India & K.D.Sharma Vs. [Refer: Prestige Lights Ltd. vs. State Bank of India & K.D.Sharma Vs. SAIL (2007) 8 SCC 449 & (2008) 12 SCC 481]. 15. In the case in hand, the petitioner has maintained complete silence on the previous litigations with the bank in respect of the subject properties and the orders passed by the Division Bench in WP(C)No.7653/2011. In the writ petition, reference has only been made to the proceedings initiated by the respondent/Bank before the DRT and not to the petition filed by Smt. Vinanti Seth D/o Smt. Aruna Verma wherein comprehensive orders have been passed by the Division Bench reflecting the conduct of the petitioner herein and the family members of the HUF. 16. In view of the aforesaid conduct of the petitioner in deliberately concealing the relevant orders passed in other proceedings from the Court and withholding material information which has a direct bearing on the relief prayed for in the present proceedings, this Court declines to entertain the present petition, which is accordingly dismissed, along with the pending applications, with costs of Rs20,000/-imposed on the petitioner. The costs shall be paid to the respondent Bank through counsel within two weeks with a copy of the receipt placed on record within one week thereafter.