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2018 DIGILAW 2152 (RAJ)

Madhulika Singh v. State of Rajasthan

2018-10-29

DINESH MEHTA, SANGEET LODHA

body2018
JUDGMENT : 1. The appellant has preferred the present intra court appeal against the judgment and order dated 20.09.2018 passed by learned Single Judge, whereby her writ petition has been dismissed with a cost of Rs. 1,00,000/-. 2. The facts appertain to the present appeal are that the appellant had filed a writ petition seeking quashment of the order dated 23.5.2017, vide which the District Magistrate, Udaipur in exercise of the power under Section 14 of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the Act of 2002") had ordered police assistance for recovery of possession of the mortgaged property. 3. The respondent Bank filed a reply to the said writ petition and opposed the maintainability of the writ petition inter alia on two counts; (i) the petitioner has suppressed the material fact of filing a suit for the same relief and (ii) availability of alternative remedy of appeal under Section 17 of the Act of 2002. 4. In view of the provision of appeal for redressal of the appellant's grievance in the form of Section 17 of the Act of 2002, so also finding the appellant to be guilty of suppression of material fact, learned Single Judge dismissed the appellant's writ petition with a cost of Rs. 1,00,000/-. 5. Learned counsel for the appellant at the outset submitted that though the fact of filing of civil suit has not been mentioned, but the same had no material bearing on the writ petition, more particularly as the plaint ultimately stood rejected by the trial Court in exercise of the power under Order VII Rule 11 of the Code of Civil Procedure. 6. Learned counsel for the appellant submitted that it was a mere non-disclosure of a fact, which cannot be construed to be a concealment of material fact, as the appellant has not taken any advantage of such non-disclosure. In relation to the remedy by way of appeal under Section 17 of the Act of 2002, learned counsel for the appellant submitted that the appeal under Section 17 of the Act of 2002 cannot be said to be an efficacious remedy, in face of the stand of the appellant that no security interest had been created qua the disputed property, possession whereof was sought to be taken by the respondent Bank. 7. Mr. 7. Mr. Ravi Bhansali, learned Senior Counsel on the other hand representing the respondent Bank submitted that it was incumbent upon the appellant to have disclosed all the facts relating to the present case and filing of the suit and dismissal thereof was a relevant fact, and it was necessary for the appellant to state the same. It was also submitted that the appellant has raised various disputed questions of fact in her writ petition, which cannot be gone into by the High Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 8. Having considered the rival submissions and after perusing the material available on record, we are of the firm view that the appellant writ petitioner was guilty of non-disclosure of material fact. The fact that the petitioner had already filed a suit for the same relief, was a relevant rather pertinent fact, disclosure whereof was indispensable. The petitioner herself cannot decide the relevance or effect of such non-disclosure and then justify her stand. It was a case of availing of two remedies simultaneously and we find that disclosure of the factum of filing the civil suit was fundamental. 9. In our opinion, learned Single Judge has rightly refused to exercise his extra ordinary jurisdiction in view of the alternative remedy available under the provisions of the Act of 2002. There are catena of decisions of Hon'ble Supreme Court holding that the High Court should refrain from exercising its jurisdiction under Article 226 of the Constitution of India in the matters relating to enforcement of security and interest; as effective and efficacious remedy is available under the Act of 2002 itself. A beneficial reference of the recent judgment in case of Authorized officer, State Bank of Travancore and Others Vs. Mathew K.C., (2018) 3 SCC 85 , relied upon by learned Single Judge can be made in this regard. 10. Notwithstanding the fact that we do not find any error in the judgment of learned Single Judge, as far as the dismissal of the writ petition is concerned, we feel that the cost of Rs. 1,00,000/- imposed by learned Single Judge for the guilt of misrepresentation and concealment of facts is slightly on higher side and the same needs to be reduced. 11. 1,00,000/- imposed by learned Single Judge for the guilt of misrepresentation and concealment of facts is slightly on higher side and the same needs to be reduced. 11. In the totality of the facts and circumstances of the present case, we deem it appropriate to reduce the cost of Rs. 1,00,000/- to Rs. 25,000/-. The order of learned Single Judge, thus stands modified to the extent of the cost only; remaining part of the order including the mode of depositing the cost and other stipulation(s) in relation thereto shall remain unaltered. The special appeal stands disposed of accordingly.