Indian Kanoon - Search engine for Indian Law

18. Therefore, petitioner has filed W.P.No.22195 of 2021 for a declaration that it is not open to the Debts Recovery Tribunal-1, Hyderabad, to entertain O.A.No.204 of 2020 under the 1993 Act after first initiating proceedings under the SARFAESI Act.

STAND OF RESPONDENT/SBI:

19. Respondent/SBI has filed counter affidavit in both Writ Petition Nos. 23067 of 2019 and 27138 of 2019. At the outset respondent/SBI has stated that there is serious suppression of material facts by the petitioner which are at two stages-suppression of material facts prior to withdrawal of possession notices dated 16.04.2018 and 29.05.2018; and suppression of material facts subsequent to withdrawal of possession notices dated 16.04.2018 and 29.05.2018. Insofar the first stage is concerned, petitioner had approached this Court by filing W.P.No.22775 of 2018 challenging the possession notices dated 16.04.2018 and 29.05.2018. On 14.07.2018 this Court dismissed W.P.No.22775 of 2018 on merit. In the meanwhile, petitioner had approached the Debts Recovery Tribunal-II, Hyderabad (Tribunal) under Section 17 of the SARFAESI Act challenging the possession notices dated 16.04.2018 and 29.05.2018 which was registered as S.A.No.275 of 2018. In the said securitization application, petitioner filed three Interlocutory Applications, one after the other, being I.A.No.3968 of 2018, I.A.No.6263 of 2018 and I.A.No.427 of 2019.

30. It is stated that petitioner has not complied with any of the conditions imposed by the Tribunal in the orders dated 24.08.2018 (passed in I.A.No.3968 of 2018, 28.12.2018 (passed in I.A.No.6263 of 2018) and 01.02.2019 (passed in I.A.No.427 of 2019).

31. None of these facts which are material and relevant have been mentioned by the petitioner in any of the three Writ Petitions.

32. Not content with the above suppression of material facts, it is contended that there is further suppression of material facts subsequent to withdrawal of possession notices dated 16.04.2018 and 29.05.2018. These two possession notices were withdrawn by respondent/SBI on 19.02.2019. Thereafter fresh possession notice was issued to the petitioner on 22.02.2019 under Section 13 (4) of the SARFAESI Act whereafter respondent/SBI issued e-auction sale notice dated 29.05.2019 proposing to hold auction sale of schedule properties on 10.07.2019.

63. In the light of the above discussion, issue No.3 is answered against the petitioner.

64. This brings us to the fourth issue i.e., ISSUE NO.4:-

Is there any suppression of material facts by the petitioner? And if so, whether the same would disentitle the petitioner to any relief from the Writ Court?

65. We have already noted that there is serious suppression of material facts by the petitioner. Petitioner has not mentioned about filing of S.A.No.275 of 2018 as well as I.A.Nos.3968 of 2018, 6263 of 2018 and 427 of 2019 in the said securitization application. Petitioner has also not mentioned about the conditional stay orders passed by the Tribunal in the said I.As on 24.08.2018, 28.12.2018 and 01.02.2019 as well as the fact that it has not complied with the conditions imposed by the Tribunal in those orders. Further, petitioner has not mentioned about filing of W.P.Nos.22775 of 2018, 31208 of 2018, 39508 of 2018 and 13873 of 2019 which were all dismissed by this Court.

67. Supreme Court in PRESTIGE LIGHTS LIMITED Vs. STATE BANK OF INDIA9, held that a prerogative writ remedy is not available as a matter of course. In exercising its extra-ordinary powers, a writ Court would need to bear in mind the conduct of the party invoking such jurisdiction. If the applicant does not disclose full facts or suppresses material facts or is otherwise guilt of misleading the Court, the Court may dismiss the action without adjudicating the matter.

68. In K.D.SHARMA Vs. STEEL AUTHORITY OF INDIA LIMITED10, Supreme Court held as follows: