M/s. Sri Vishnu Steels and Another vs Union Bank of India and Others

Sanjay Kishan Kaul, C.J.—The petitioner No. 1, partnership firm, consists of two partners, out of which one of the partner petitioner No. 2

has filed the present writ petition under Article 226 of the Constitution of India seeking to assail the notices issued by the respondent-Bank under

Sections 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter

referred to as ''the said Act'') on the ground that the notice u/s 13(4) has been issued without deciding the objections of the petitioners dated

16.10.2013. The second prayer made is for setting aside the order dated 16.12.2013 passed by the Debt Recovery Tribunal (DRT) whereby

interim prayer has been declined to the petitioner in the application filed u/s 17(1) of the said Act. The counsel for respondents No. 1 to 3 being

the Union Bank of India and its officers (caveators) is present in Court and states that he kept his short reply ready which we have taken on

record.

We at the inception of the hearing put it to the learned counsel for the petitioners as to why the petitioners were not taking recourse to the

remedy of appeal before the Debt Recovery Appellate Tribunal (DRAT) as provided under the said Act read with the judgment in Mardia

Chemicals Ltd. Vs. Union of India (UOI) and Others Etc. Etc., The answer of learned counsel for the petitioners was that it would cause

unnecessary financial burden on the petitioner as they would be called upon to make pre-deposit the payment and the issue was a simple one of a

notice being issued u/s 13(4) of the said Act without deciding the objections filed to the notice u/s 13(2) of the said Act.

Learned counsel for the petitioners submitted that since the respondent-Bank was on caveat, it can be verified from them whether they have

decided objections of the petitioner and the petitioner would be out of court if that had been done.

It is pointed out by learned counsel for the Bank that objections had been filed on the letter head of the firm running into more than 50 pages by

Saurabh Gupta, the other partner of the firm. These objections purport to be on behalf of the firm as well as Shri Saurabh Gupta. The respondent-

Bank dealt with these objections and a detailed reply was sent through a counsel dated 30.10.2013 running into about 28 pages. The despatch

receipt by speed post has been placed on record alongwith tracking report showing delivery. A copy of this reply has also been sent to the

petitioner No. 2, the other partner of the firm. It is thus, submitted that it is a falsehood on the part of the petitioner to contend that no reply has

been sent while the fact is that a reply has been received even by petitioner No. 2 to the notice sent on behalf of petitioner No. 1 and the other

partner.

Learned counsel faced with the aforesaid position submits that insofar as the petitioner No. 2 is concerned, he had sent objections dated

16.10.2013 which are also on the letter head of petitioner No. 1 and running into about 41 pages. He contends that some of the objections are not

identical and in any case, he was entitled to the decision of his objections separately.

We raised a query as to where in the petition it has not been averred that this is the position i.e. separate notices were filed by the two partners

both purportedly on behalf of the partnership firm themselves and that the petitioner had received the reply to the objections dealing with the same,

but qua the objections filed by the other partner of the partnership firm. Learned counsel for the petitioner concedes that this has not been so set

out in the petition.

We heard learned counsel for the petitioner at length and also learned counsel for the caveator.

We are of the view that the manner in which this writ petition has been filed is clearly an endeavour to hoodwink and overreach the proceedings

before the present Court. The order is attempted to be snatched from this Court by professing as if the objections filed by the borrowing entity

have not been dealt with which is the mandate of the Mardia Chemicals Ltd. case (supra) and without dealing with the objections, notice u/s 13(4)

of the said Act has been issued. The facts are otherwise. There could not have been two objections on part of the firm. There could have been

only one objection. If the partners or guarantors wanted to raise separate objections, it was open for them to have done so. We are not

commenting in this case how and why two set of objections were filed on two consecutive dates, but prima-facie it appears that an endeavour was

to cause confusion as both of them are on the letter head of petitioner No. 1 firm and purport to have been sent on behalf of the firm and petitioner

No. 2 and the other partner Mr. Saurabh Gupta are admittedly real brothers.

We are of the view that in any case the petitioner has right to file an appeal before the DRAT and in view of the aforesaid, there is no ground for

this Court to interfere under Article 226 of the Constitution of India.

We must, however, strongly deprecate the endeavour of the petitioner to give half facts before this Court and file misleading pleadings. It is

trite to say that in any proceedings and much more in discretionary remedy proceedings under Article 226 of the Constitution of India, a party must

come with clean hands before this Court disclosing all the facts. The facts as set out before us show that this salutary principle has been grossly

violated. We thus, are also of the view that present proceedings being abuse of process of Court, petitioner must be burdened with exemplary

costs quantified at Rs. 50,000/-. The costs be deposited with the Mediation and Conciliation Centre of the High Court within a period of fifteen

days from today. The writ petition is accordingly dismissed.