JUDGMENT : 1. Heard learned advocate Ms. Sangeeta Pahwa for the petitioners and learned Senior Advocate Mr. R.S. Sanjanwala with learned advocate Mr. Nikunt Raval for the respondent No. 1. Though served no one appears for respondent No. 2 – Mr. Divyen Vasantrai Raithatha. 2. Having regard to the controversy involved which is in narrow compass and with the consent of learned advocates for the respective parties the matter is taken up for final hearing. 3. Rule returnable forwith. Learned advocate Mr. Nikunt Raval waives service of notice of rule on behalf of the respondent No. 1 – Bank. As the respondent No. 2 has chosen not to appear before the Court pursuant to the notice issued by this Court, there is no need to issue Rule to the said respondent. 4. By this petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 03.05.2021 passed by the Debt Recovery Appellate Tribunal (for short ‘DRAT’) in Appeal No. 74 of 2019 as well as the order dated 08.05.2019 passed by the Debt Recovery Tribunal – II, Ahmedabad (for short ‘DRT’) in Securitisation Application No. 226 of 2018. 4.1 The petitioners have filed Securitisation Application No. 226 of 2018 challenging the securitisation action of the respondent – Bank under the provisions of the Securitisation and Reconstruction of Financial Assests and Enforcement of Security Interest Act, 2002 (for short the ‘SARFAESI Act’). 4.2 It is the case of the petitioners that the petitioner No. 2 is a partnership firm having two partners i.e. petitioner No. 1 holding 55% of the shares and respondent No. 2 holding 45% of the shares. The respondent – Bank sanctioned an overdraft facility of Rs. 2.7 crores to the petitioner No. 2 in the year 2011. 4.3 According to the petitioners, there were various disputes between the partners of the petitioner No. 2 firm. It appears that the respondent No. 2 addressed letter dated 16.09.2016 to the respondent – Bank for taking action on account of the mismanagement found in the account of the firm with the respondent – Bank. Thereafter, the petitioners also addressed a letter dated 19.09.2016 stating that the petitioners wish to repay the outstanding dues of the respondent – Bank. It appears that the respondent No. 2 addressed letter dated 16.09.2016 to the respondent – Bank for taking action on account of the mismanagement found in the account of the firm with the respondent – Bank. Thereafter, the petitioners also addressed a letter dated 19.09.2016 stating that the petitioners wish to repay the outstanding dues of the respondent – Bank. By another letter dated 18.10.2016, the petitioner No. 2 firm requested the bank that about 70 lakhs have been repaid and they were in the process of repayment of the remainder amount. 4.4 In response to the letter dated 18.10.2016, the respondent – Bank freezed the account of petitioner No. 2 on 10.11.2016 followed by a letter dated 11.11.2016 stating that it would release the property papers in favour of the owner of the property and handover the property documents to the owner of the property. 4.5 The petitioners thereafter filed a Civil Suit before the Civil Court, Rajkot against the respondent – Bank being aggrieved by the freezing of the account. The respondent – bank thereafter defreezed the account on 27.12.2016. As the account of the petitioner No. 2 firm became Non-Performing Asset (NPA), on 31.01.2017, the respondent – Bank issued a notice under section 13(2)(1) of SARFAESI Act on 17.04.2017. The petitioners thereafter filed a reply on 13.06.2017 raising the objections which was rejected by letter dated 01.07.2017 by the respondent – Bank. The petitioners thereafter preferred Securitisation Application before the Debt Recovery Tribunal – II, Ahmedabad being SA No. 226 of 2018. The DRT heard the matter from time to time and by order dated 08.05.2019 dismissed the Securitisation Application on the ground of material suppression by the petitioners. 4.6 Being aggrieved, the petitioners challenged the order of the DRT before the DRAT by preferring the Appeal No. 74 of 2019. The DRAT also by order dated 03.05.2021 dismissed the appeal filed by the petitioners confirming the order passed by the Tribunal. Feeling aggrieved, the petitioners have preferred this petition. 5. Learned advocate Ms. 4.6 Being aggrieved, the petitioners challenged the order of the DRT before the DRAT by preferring the Appeal No. 74 of 2019. The DRAT also by order dated 03.05.2021 dismissed the appeal filed by the petitioners confirming the order passed by the Tribunal. Feeling aggrieved, the petitioners have preferred this petition. 5. Learned advocate Ms. Sangeeta Pahwa for the petitioners submitted that the Tribunal without considering the case of the petitioners on merits dismissed the Securitisation Application only on the ground that the petitioners initially did not disclose the proceedings between the partners under section 9 of the Arbitration and Conciliation Act, 1996 as well as the Arbitration Petition filed before this Court which was withdrawn by the respondent No. 2. It was further submitted that the Tribunal ought to have considered the merits of the matter and should not have dismissed the Securitisation Application only on the ground of material suppression inasmuch as the facts with regard to the Arbitration proceedings pending between the partners has no relevance with regard to the action undertaken under the provisions of the SARFAESI Act. 5.1 Learned advocate Ms. Pahwa has also submitted on merits that the action of the respondent – Bank to freeze the account at the instance of respondent No. 2 is also illegal. It was also pointed out that the action undertaken by the respondent – Bank under the SARFAESI Act are contrary to the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘MSME Act’) which provides an opportunity to the petitioner firm which is a Medium and Small Scale Enterprise for restructuring its outstanding dues. Learned advocate Ms. Pahwa also invited the attention of the Court to the various correspondence between the petitioner and the respondent – Bank whereby the petitioner has informed the respondent – Bank that the petitioners are ready and willing to repay the outstanding dues. 5.2 The reliance placed upon by the learned advocate for the petitioner upon the decision in the case of Mayar (H. K.) Ltd and Others Vs. 5.2 The reliance placed upon by the learned advocate for the petitioner upon the decision in the case of Mayar (H. K.) Ltd and Others Vs. Owners and Parties, Vessel M. V. Fortune Express and Others reported in (2006) 2 SCC 100 is concerned, the same would not be applicable in the facts of the case more particularly, when it is not in dispute that the petitioners have not referred to or even produced the proceedings of Arbitration before the Tribunal in the Liquidation Application at any point of time and it is only when the Tribunal called upon the petitioners, a courtesy affidavit is filed on behalf of the petitioners referring to such documents, and proceedings and thereby the petitioners have kept the Tribunal in dark and therefore said judgment will not be helpful to the petitioners. 6. On the other hand, learned Senior Advocate Mr. R.S. Sanjanwala submitted that the petitioners have admittedly not come with clean hands before the Tribunal and have suppressed the facts with regard to the Arbitration proceedings under Section 9 as well as filing of petition before this Court and only when the respondent – Bank along with its reply submitted the order passed under section 9 of the Arbitration Act, the Tribunal called upon the petitioners to provide explanation and thereafter the petitioners filed the affidavit before the Tribunal and therefore the Tribunal has rightly rejected the Securitisation Application on the ground of material suppression by the petitioners. 6.1 It was further submitted that the petitioners have also not placed on record before the Tribunal the disputes which was going on between the partners of the petitioners since 2013 as is evident from the order passed under section 9 of the Arbitration and Conciliation Act, 1996. It was therefore submitted that when the respondent – Bank has taken action against the petitioner No. 2 firm on the basis of the letter dated 16.09.2016 received from the respondent No. 2 who is also the partner of the petitioner No. 2 firm, the Tribunal has rightly dismissed the Securitisation Application holding that there is material suppression of facts by giving cogent reasons in support of such decision arrived at by the Tribunal. 6.2 It is further submitted that there are concurrent findings arrived at by the Tribunal as well as the Appellate authority and hence, no interference be made by this Court while exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India. 7. Having heard the learned advocates for the respective parties and having gone through the material on records, it would be germane to refer to the findings arrived at by the Tribunal in the impugned order dated 08.05.2019 which reads as under:- “14. I have given anxious consideration to the matter and considered the material on record in view of relief claimed by applicants and it is admitted fact that in their pleadings neither the applicants nor the respondent bank disclosed about filing of applications under section 9 of Arbitration and Conciliation Act. Further in the affidavits filed before this Tribunal reproduced above, the applicants submitted that there was no concealment of facts as the matter was amicably settled between the applicants and Mr. Divyan Vasant Rai Raithatha who filed application under section 9 of Arbitration and Reconciliation Act and SCA before Hon'ble High Court. The applicants alongwith affidavit placed on record copy of SCA & order by Hon'ble High Court. 15. Neither the applicants nor Bank has placed on records any alleged compromise between the applicants and Shri Divyan Vasant Rai Raithatha. As discussed supra, this Tribunal gave opportunity to applicants to disclose facts in relation to dispute between the parties. The applicants apart from the NPA have also challenged the validity of security interest and have claimed that Shri Divyan Raithatha has no right in the property. Despite of the said that applicant no.1 and Shri Divyan Raithatha jointly mortgaged the property belonging to applicant no.2 to secure the credit facilities. 16. It is a material facts that for fair adjudication of this case, as the accounts were freezed at the instance of Mr Divyan Vasant Rai Raithatha, the partner the applicant No.2, it is alleged that he was minority partner and guarantor. Further, there is dispute regarding validity of security interest as raised by applicants in respect of properties of applicant no.2. Effect of concealment of certain facts differs from case to case and effect may be minor in a particular case, but the said facts can be an important factor in other case having different facts and circumstances. Further, there is dispute regarding validity of security interest as raised by applicants in respect of properties of applicant no.2. Effect of concealment of certain facts differs from case to case and effect may be minor in a particular case, but the said facts can be an important factor in other case having different facts and circumstances. Even in different case having similar facts and circumstances, gravity of particular facts can be different in the given sequence of facts in a said case. The concealment of facts may not have any impact on the merits of the case and can be ignored by the Court being not material, but the concealment even of minor fact having material impact on the merits of the case qua relief claimed would be proved as fatal to the case under given circumstances. In this case since beginning it is a case of applicants that Mr. Divyan Vasant Rai Raithatha wrote a letter to the Bank and Bank acted on his letter and freezed accounts and it is admitted case of the respondent bank that account was freezed at the instance of one of the partners. Parties initially failed to disclose proceedings and orders passed under section 9 of Arbitration and Conciliation Act in their pleadings and from the material available on record, when this Tribunal afforded an opportunity to applicants to explain their conduct and applicants who have come with affidavits narrated above. But B surprisingly neither the applicants nor bank disclosed the contents of such compromise. Neither the applicants have disclosed the terms of said compromise nor it is case of the applicants that the said Shri Divyan Vasant Rai Raithatha ever wrote any letter to the bank to withdraw his allegations or he continued with guarantee given by him to secure the loan. Need not to say that Shri Divyan Vasant Rai Raithatha was/is not only the partner of the applicant No.2, but he was/is guarantor in his individual capacity and also mortgaged the property being partner of applicant no.2 and now applicant nos.1 & 2 are disputing validity of security interest. Need not to say that Shri Divyan Vasant Rai Raithatha was/is not only the partner of the applicant No.2, but he was/is guarantor in his individual capacity and also mortgaged the property being partner of applicant no.2 and now applicant nos.1 & 2 are disputing validity of security interest. So, if guarantor has written a letter to the bank or partners of the firm has written a letter to the bank about misuse of funds and subsequently the said partner also preferred one application under section 9 of Arbitration and Conciliation Act before competent court invoking the arbitration clause which could result into closure of partnership business and further said partner also filed SCA before Hon'ble High Court and ultimately withdrew SCA upon some compromise. Terms of said compromise under given circumstances has great importance on the merits of the case qua relief claimed in this S.A. before this Tribunal and applicants were under obligations to disclose the said compromise and place on record all other relevant materials before this Tribunal and non discloser of said facts would come within the ambit of concealment of material facts and it can be safely said that applicants have not come to this Tribunal with clean hands. Height of the things can be gathered from the averment made in para 6 of the affidavit reproduced above wherein it is said that the said dispute between partners and their subsequent resolutions have no bearings on the operation of the account. Need not to say that in this S.A. Shri Divyan Raithatha is neither applicant nor respondent and admittedly said person is having 45% share in the partnership firm with applicant no.2. Further, the applicants have not disclosed that upon compromise Shri Divyan Raithatha has been/had been admitted into routine business and if said person has admitted into the business he should have been one of the applicants before this Tribunal against the action of the bank and if Shri Divyan Raithatha upon said compromise got himself retired from the business it has its own bearings on the loan, property mortgaged property, guarantee-cum-power and on merits of the case. So, it is totally misconceived that the said dispute and subsequent compromise would not have any bearings on the operations of this loan account. So, it is totally misconceived that the said dispute and subsequent compromise would not have any bearings on the operations of this loan account. Huge amount of public money is involved and the applicants cannot be allowed to decide what is, irrelevant for the purposes of adjudication of this case. They were required to place on record all material facts and certainly said compromise is a material fact in its own. So on that account the securitization application as filed by the applicant is liable to be dismissed on the ground that applicants have not come to this Tribunal with clean hands. It was a conscious and deliberate concealment, infact reflects that their mind and heart was not clean. It is a conscious and deliberate act to word of this Tribunal from real & true spirit. The law as held by Hon'ble Supreme court in the case of V. Chandrasekaran v. Administrative Officer reported in 2012 (4) R.C.R.(Civil) 588 is fully applicable to present case. 34. The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852 ; Nooruddin v. (Dr.) K.L. Anand, 1995 (2) R.R.R. 556 : (1995) 1 SCC 242 ; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236 ). 35. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. 35. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court. 36. In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114 , this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 37. The truth should be the guiding star in the entire judicial process. "Every trial is a voyage of discovery in which truth is the quest". An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677 ; and Amar Singh v. Union of India, 2011 (5) R.C.R.(Civil) 386 : (2011) 7 SCC 69 ). 38. In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), 2012 (2) Recent Apex Judgments (R.A.J.) 6 : 2012 (2) R.C.R. (Civil) 441 : (2012) 5 SCC 370 ), this Court taking note of its earlier Tr judgment in Ramrameshwari Devi v. Nirmala Dett, 2011(3) R.C.R.(Civil) 932 : 2011 (4) Recent Alex Judgments (R.A.J.) 390 : (2011) 8 SCC 249 held: "False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent." The Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon, false pleadings and forged or fabricated documents in the records furnished by them to the court. 39. In view of the above, the appellants have disentitled themselves for any equitable relief. 7.1 From the above reasons given by the Tribunal, it appears that the Tribunal has been swayed away by the fact that the petitioner did not disclose, nor placed on record the proceedings between the petitioners and the respondent No. 2 under section 9 of the Arbitration and Conciliation Act. It also appears that the Tribunal has been annoyed because of the non-disclosure of such facts before the Tribunal as according to the Tribunal such facts would have gone to the root of the matter as one of the contention raised by the petitioners before the Tribunal was with regard to the letter written by the respondent No. 2 – partner intimating the Bank not to permit any further transactions in the account of the petitioner No. 2 firm. It appears that the Tribunal after considering the law on material suppression has come to the conclusion that the petitioners are guilty of concealment of material facts and documents and are also guilty of filing distorted, incomplete and factual affidavit to their convenience and keep the Tribunal in dark about the real facts. It appears that the Tribunal after considering the law on material suppression has come to the conclusion that the petitioners are guilty of concealment of material facts and documents and are also guilty of filing distorted, incomplete and factual affidavit to their convenience and keep the Tribunal in dark about the real facts. 7.2 From the above, observations made by the Tribunal, it is not in dispute that the petitioners have not disclosed the proceedings of arbitration under the Arbitration Act between the petitioners and respondent No. 2, nor the petitioners have disclosed before the Tribunal about the application made by the respondent No. 2 under section 11 before this Court which was withdrawn on the ground of compromise, neither the petitioners referred in the Securitisation Application made before the Tribunal about the compromise which has been referred to in the order passed by this Court, nor the petitioners have stated so in the present petition also with regard to such compromise arrived at between the parties. When a query was put before learned advocate Ms. Pahwa about such compromise, it was submitted that there was no such compromise and that it was only the respondent No. 2 who unilaterally made a statement before this Court that a compromise is arrived at between the parties. Be that as it may, the fact remains that the petitioners have made suppression of facts before the Tribunal and therefore, the Tribunal has rightly come to the conclusion that there is suppression of material by the petitioners and in that view of the matter, the Tribunal has rightly dismissed the Securitisation Application. 7.3 The DRT has also considered this aspect in the impugned order as under:- “10. It is clear from correspondence that there are internal disputes between partners. S.A. is filed by firm which is signed by Appellant No.1 herein. Records also disclose that Arbitration Proceedings are initiated and there was a settlement. These facts are not disclosed. Nothing the same Tribunal below gave opportunity to Appellants, but Appellants have not properly utilized such opportunity. Declaring account as N.P.A. a condition precedent for initiating action under SARFAESI Act, when Appellants challenge action of Bank in declaring the account as N.P.A. and Bank took shelter of the letter of one of the partner of firm, minimum expected from firm is to explain the dispute between partners and the proceedings that took place between partners. Declaring account as N.P.A. a condition precedent for initiating action under SARFAESI Act, when Appellants challenge action of Bank in declaring the account as N.P.A. and Bank took shelter of the letter of one of the partner of firm, minimum expected from firm is to explain the dispute between partners and the proceedings that took place between partners. So as rightly pointed out by Bank Advocate, such facts are relevant in deciding the issue involved in S.A., namely action of bank in declaring account as N.P.A. Tribunal below has considered all these aspects and rightly recorded a finding that Appellants suppressed material facts. I do not find any wrong in the order of Tribunal below or with the approach of Tribunal below. On a scrutiny of material papers, I have no hesitation in holding that Tribunal below rightly dismissed S.A. and that there are no grounds to interfere with the order of Tribunal below.” 8. In view of the above concurrent findings on fact, the petition is devoid of any merits and is accordingly dismissed. Rule is discharged.