TaxTMI 
TaxTMI 
2022 (12) TMI 44
X X X X Extracts X X X X
X X X X Extracts X X X X
.... aforesaid submissions. (Emphasis Supplied) 3. Shri Shekhar Sharma, learned counsel for the petitioner submits that the impugned auction notice dated 23.5.2022 (Annexure P/16) is issued under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, 'Securitisation Act') read with the relevant rules. 4. The learned counsel for the petitioner pursuant to a query urged that petitioner doesn't have remedy of approaching DRT by filing proceedings under Section 17 of the Securitisation Act. 5. Learned counsel for the petitioner by taking this Court to the order of previous round of litigation passed in W.P. No.7509/2013 (UCO Bank vs. State of M.P.) decided on 28.4.2022 urged that the impugned auction notice is issued with a view to circumvent this order of Division Bench dated 28.4.2022. The another query of the Court was that although it appears that the lis before this Court in W.P. No.7509/2013 was different and not related to the auction of the property, the petitioner can still raise this ground/point before the DRT by availing the alternative statutory remedy. Apart from above in W.P. No.7509/20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the Bank further submits that petitioner approached this Court in W.P. No.18389 of 2012 assailing the action of Commercial Tax Department as well as the similar auction proceedings initiated by the Bank. The petition was listed before the Division Bench on 13.01.2015. The same counsel represented the petitioner. This Court declined interference and permitted the petitioner to avail the statutory remedy under Section 17 of the Securitisation Act. The relevant portion of the order dated 13.01.2015 was read out. 12. It is further pointed out that in para-2 of the present writ petition, the petitioner was required to disclose about all previous rounds of litigation filed before any legal forum with utmost clarity. The petitioner was also required to file the relevant order which was outcome of any such proceeding. The petitioner has given an incorrect, incomplete and improper declaration in para-2 of the petition. In view of conduct of petitioner, the petition deserves to be dismissed with cost. 13. Shri Shekhar Sharma, learned counsel for the petitioner to counter this in rejoinder submissions urged that there is no suppression of fact on behalf of the petitioner. Shri Sharma,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rised Ramesh of Rithwik Projects to appear on his behalf. Ramesh duly appeared at the time of consideration of bids. Bid of Respondent 2 was found to be lowest and was accepted and the contract was given to him (under Tender Notice 4). The said contract had nothing to do with Tender Notice 5 and the contract thereunder had been given to the appellant herein and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Court clearly, candidly and frankly. 34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim . ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit." (emphasis supplied) 38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of justice." In Dalip Singh v. State of Uttar Pradesh and others, (2010) 2 SCC 114, the Apex Court held in para 7 as under :- 7. In Prestige Lights Ltd. v. SBI it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is dutybound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R. v. Kensington Income Tax Commissioners, and observed: (Prestige Lights Ltd. case, SCC p. 462, para 35) In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erately disclosed the real facts because those facts are against him. The conduct of the petitioner cannot be appreciated. He suppressed the material facts and misled the Court by suppressing necessary, important and full facts. 21. In a catena of judgments including Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449, the Apex Court held in para 35 as under :- 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 16. On the ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s been given by the petitioner in para-2 reads as under :- "The petitioner declares that the matter regarding which this petition has been made is not pending in any court, authority or tribunal." 20. A plain reading of requirement of declaration as per High Court Rules leaves no room for any doubt that petitioner was required to disclose about previously instituted proceedings relating to same subject matter instituted before any Court, Authority and Tribunal. This disclosure is essential in para-2 of the petition and in addition, it can be disclosed in remaining portion of the body of petition. Pertinently, neither in para-2 of petition nor in the entire body of writ petition, petitioner has chosen to disclose about filing of W.P. No.18389/2012. In addition, as per the requirement of para-2 of prescribed format, petitioner was required to file the relevant order to show the outcome of previously instituted litigation. Sadly, reliance is placed on an additional reply filed in a different litigation i.e. W.P. No.7509/2013. That disclosure, in a reply filed in a previous matter, by no stretch of imagination can serve the requirement of declaration about the previous round of l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of litigation and in this litigation is same, it was all the more necessary and obligatory on the part of the petitioner to disclose the entire facts and history of previous rounds of litigation with accuracy and precision. We may hasten to add with pains that when repeatedly question arose during admission hearing of this matter regarding availability of alternative remedy, Shri Shekhar Sharma did not apprise us that for the very same question relating to Auction notice of same property, he approached this Court in W.P. No.18389/2012 and this Court declined interference under Article 226 of the Constitution because of availability of alternative statutory remedy. The relevant portion of said order reads thus :- "Even though Shri Shekhar Sharma, learned counsel for the petitioner has tried to emphasize that the remedy available under section 17 and 18 of the Act of 2002 is not a efficacious remedy, but we are of the considered view that as the action taken in the matter is nothing but one under Section 13 read with section 14 of the Act of 2002. There is a statutory remedy of appeal available under Section 17 before the Debt Recovery Tribunal and thereafter further appea....