Pradip Surajmal Gandhi Proprietor Nayan Motors v. The State of Maharashtra Through Its Principal Secretary and Others

ORDER i] The respondent no.2 to deposit the amount of Rs. 35 lakh, which is principal amount, that was borrowed by respondent no.2 from the applicant – Dwarkadas Mantri Nagri Sahakari Bank Ltd., Beed, within a period of four weeks from today. ii] If the aforesaid amount is not deposited, this Court will pass appropriate order of not only canceling the anticipatory bail, but also taking steps for obtaining possession from respondent no.2. iii] Put up this matter on 22nd April, 2019." 13 of 23 (( 14 )) WP-9456-2023 judgment

¶16Needless, to say that, being aggrieved by said order, the present Petitioner has approached before the Hon'ble Apex Court by filing Special Leave to Appeal (Cri.) No.3854 of 2019. However, on

02.05.2019, the Hon'ble Apex Court has dismissed said Special Leave to Appeal. Since, the Petitioner did not comply with the order dated

20.03.2019 passed by this Court, Respondent No.4 had filed application for cancellation of Bail No.79 of 2018. On 03.03.2022, the Single Judge of this Court and set aside the order dated

11.05.2018 passed by the learned Additional Sessions Judge, Shrirampur, in Criminal Miscellaneous Application No. 83 of 2018 arising out of in Crime No. I-138 of 2018 with the direction to the Petitioner to surrender before the Investigating Officer of Shrirampur Police Station. However, the Petitioner has not disclosed the fact that, he trespassed over the sealed property by breaking the seal and the registration of an offence against him for such illegal acts. So also, he has not disclosed about filing of A.C.B. No. 79 of 2018 by the Respondent Bank and passing of order in respect of depositing of Rs. 35,00,000/- principal amount within stipulated period and on failure to deposit the amount his anticipatory bail was cancelled. He has also not disclosed the fact about the dismissal of Special Leave Petition 14 of 23 (( 15 )) WP-9456-2023 judgment (Criminal) No.3854 of 2019 by the Hon'ble Supreme Court on 02-05-2019.

¶17It seems that, the Respondent No.4 Bank approached to the District Collector, Ahmednagar for the second time with an application u/s 14 of the SARFAESI, Act. The Petitioner again filed W. P. No.3649 of 2023 before this Court with the prayer for issuance of directions. Accordingly, on 30.03.2023, this Court passed an order and directed the District Magistrate, Ahmednagar to decide the representation dated 14.12.2018 in the light of the judgment passed in Writ Petition No.10069 of 2022, as expeditiously as possible and in any case, within a period of six weeks from the service of the order. It is, therefore, apparent that, the petitioner has suppressed material facts from this court and played "hide and seek", which is not at all pardonable. The conduct of the Petitioner is covered by the law laid down by the Hon'ble Supreme Court in Kishore Samrite vs State of Uttar Pradesh and others, (2013) 2 SCC 398 and Bhaskar Laxman Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society and others, (2013) 11 SCC 531.

¶18It is needless to say that on 15.11.2017, the State Government has issued a Government Resolution and made the one 15 of 23 (( 16 )) WP-9456-2023 judgment time settlement scheme applicable in respect of co-operative banks registered under the Maharashtra Cooperative Societies Act to reduce N. P. A. As per the said Government Resolution, doubtful loss or N.P.A were to be considered. The said scheme was up to 31.03.2018. But it was extended up to June 2022. As per Clause 7 of the said Government Resolution dated 15.11.2017, the financial institutions were required to consider the date of N. P. A. account by following the procedure prescribed therein. As per clause 8, the loan borrower and the financial institutions were required to ascertain the specific amount by considering ledger balance (Principal + interest) minimum 5%. As per the said scheme, the loan borrower was required to deposit 25% accrued amount in 11 installments, however, if the loan borrower failed to deposit 25% within a period of one month, in that circumstances, it would be presumed that, the loan borrower has declined the offer. As per Clause 9 (B) all the institutions would be required to apply scheme of O. T. S. without any discrimination.

¶19On 16.03.2016, the State Government issued a circular and extended the scheme as a last chance till 31.03.2017. Indeed, the Petitioner submitted an application seeking O. T. S. scheme. On 16 of 23 (( 17 )) WP-9456-2023 judgment

19.05.2023, Respondent No.4 - financial institution passed an order and rejected the request of the Petitioner on the ground that the Petitioner bank had already seized secured assets/mortgaged property after obtaining the order from the District Magistrate under Section 14 of the SARFAESI, Act. The Petitioner had broken the seal and illegally entered on the seized property. Though the Petitioner was granted sufficient opportunity for repayment of loan, but it remained unpaid. The price of the property is more than the loan amount and the Petitioner is avoiding to repay the loan, so also the RBI imposed ban upon Respondent No.4 as per the provisions and Section 35-A of the Banking Regulation Act. In the case of Bijnor Urban Cooperative Bank Limited, (supra), the loan borrower cannot claim grant of benefits of OTS scheme as of right and the same is subject to fulfillment of the eligibility criteria mentioned in the scheme. The Hon'ble Apex Court in the case of Bijnor (supra), has observed in paragraphs 8 and 9 as under:- "8. Therefore, as per the guidelines issued, the grant of benefits of OTS Scheme cannot be prayed as a matter of right and the same is subject to fulfilling the eligibility criteria mentioned in the scheme. The defaulters who are ineligible under the OTS Scheme are mentioned in Clause 2, reproduced hereinabove. A willful defaulter in repayment of loan and a 17 of 23 (( 18 )) WP-9456-2023 judgment person who has to paid even a single installment after taking the loan and will not be able to pay the loan will be considered in the category of "defaulter" and shall not be eligible for grant of benefit under the OTS Scheme. Similarly, a person whose account is declared as "NPA" shall also not be eligible. As per the guidelines, the Bank is required to constitute a Settlement Advisory Committee for the purpose of examining the applications received and thereafter the said Committee has to take a decision after considering whether a defaulter is entitled to the benefit of OTS or not after considering the eligibility as per the OTS Scheme. While making recommendations, the Settlement Advisory Committee has to consider whether efforts have been made to recover the loan amount and the possibility of recovery has been minimised, meaning thereby if there is possibility of recovery of the amount, either by initiating appropriate proceedings or by auctioning the property mortgaged and/or the properties given as a security either by borrower and/or by the guarantor, the application submitted by the borrower for grant of benefit under the OTS Scheme can be rejected.

¶9In the present case, despite the fact that it was specifically pointed out before the High Court by way of counter-affidavit that (i) the recovery proceedings under the SARFAESI Act are pending, (ii) the borrower and her husband have availed two credit facilities and both the loan accounts are maintained regularly and the money is being deposited on regular basis; (iii) the Settlement Advisory Committee concluded that the borrower is enjoying a good financial status and the secured assets are sufficient in case if any recovery is to be made and by auctioning the mortgaged property the bank can recover the entire loan amount, the High Court failed to consider the aforesaid aspects in their true perspective and has issued a writ of mandamus as if the grant of benefit under the OTS Scheme can be claimed as a matter of right."

¶21In the case in hand, though the Petitioner has been given sufficient opportunities to repay the loan amount, the Petitioner failed 18 of 23 (( 19 )) WP-9456-2023 judgment to do so. Earlier also, the proceeding under the SARFAESI, Act was initiated against the Petitioner. He had also filed two (unsuccessful) writ petitions against Respondent No.4 financial institution. Therefore, it appears that the Petitioner is not willing to repay the loan and has succeeded in frustrating the recovery attempts of the Bank by filing petitions after petitions, on one or other ground.

¶22In view of above discussion, We do not find that, the Petitioner is entitled for OTS as per G.R. 31-08-2021 issued by the State Government. So also, action on the part of the Respondent Bank does not appear violative of principles of natural justice and no fundamental right of the petitioner has violated. Rather, the Petitioner has taken law in his hands and shown the courage of breaking the seal and taking possession of the mortgaged property. There are several facts that have been deliberatedly suppressed by the Petitioner.

¶23In the case of Bhaskar Laxman Jadhav ( supra ), while considering the suppression of the facts, the Hon'ble Supreme Court held that, it is not for a litigant to decide what fact is material for adjudicating a case. It is the obligation of a litigant to disclose all the facts of his case. 19 of 23 (( 20 )) WP-9456-2023 judgment

¶24In the case of Kishore Samrite ( supra ), the Hon'ble Supreme Court has clearly held that it is the bounden duty of the Court to ensure that a dishonest attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful unauthorized or unjust gain to any one as a result of the abuse of the process of law and one way to curb this tendency is to impose punitive costs. It is further held that, no litigant can play "hide and seek" with the court. Facts ought to be disclosed as the Court knows the law, but not the facts, unless they are disclosed by the litigant. One, who prays for justice, must come with clean hands to the Court and should not indulge in suppression or concealment of material facts which is impermissible.

¶25The Hon'ble Apex Court in the case of K. Jayaram vs Bangalore Development Authority and Others(2022) 12 SCC 815 has Held in (Para 10) as under:

¶10it is well settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the 20 of 23 (( 21 )) WP-9456-2023 judgment court as well as with the opposite parties which cannot be countenanced.

¶26In the present case, the petitioner has suppressed fact about trespassing over the sealed mortgaged property by breaking the seal/lock for which an FIR was already registered again him. The petitioner also suppressed about obtaining anticipatory bail from the Court of Sessions, and the Order dated 20-03-2019 passed by the Single Bench of this Court and imposition of condition about deposit of 35 Lakhs within 4 weeks with the Respondent Bank. Further he also suppressed the fact of filing of Special Leave Petition No. 3854 of 2019 before the Hon'ble Apex Court and it's dismissal on 02-05-2019. Hence by this petition, the petitioner has not only wasted the time of the court, but also mislead the Court and attempted to play fraud on this Court. Such type of litigant requires to be dealt with by a firm hand and no leniency can be shown to them.

¶27Therefore, considering the observations made in Bhaskar Laxman Jadhav (supra), Kishor Samrite (supra) and K. Jayaram (supra), this Petition is dismissed with cost of Rs.2,00,000/- (Rupees Two Lakhs). The Petitioner shall deposit the above said cost with the Registry of this Court within a period of 30 days from today, failing which, we direct the District Collector, Ahmednagar to initiate action 21 of 23 (( 22 )) WP-9456-2023 judgment against the petitioner under the provisions of the Maharashtra Land Revenue Code and to recover said amount as arrears of land Revenue.

¶28After the amount as directed above is deposited, the Registry of this Court shall transmit the same to the following Institutions as under:- Sr. No. Name of Institution Amount

to

be transmitted

¶1The

Library

of

Advocate's Association of Bombay High Court, Bench at Aurangabad Rs. 25,000/-

¶2Advocates' Association of Bombay High Court, Bench at Aurangabad Rs. 25,000/-

¶3Infant India, Anandwan, 659/Infant Hill, Infront of Bindusara Dam, N.H. 211, Pali, Beed – 431122. Mobile - 9422693585/9822456411 Canara

Bank

A/c.

No. 3773201000011, IFS Code:CNRB0003773 Rs. 25,000/-

¶4Orphanage home i.e. "Shantivan", Arvi, Tq.Shirur Kasar, District Beed, in the name of "Bhavani Vidhyarthi Kalyan Pratishthan, Arvi" by way of electronic transfer (State Bank of India, Branch Shirur (Kasar), Account No.33446000963, IFSC Code : SBIN0005995). Rs. 25,000/-

¶5The Government Medical College and Hospital

(GHATI)

at Chhatrapati Sambhajinagar. Rs. 50,000/-

¶6The Government Cancer Hospital at Chhatrapati Sambhajinagar. Rs. 50,000/- 22 of 23 (( 23 )) WP-9456-2023 judgment

¶29Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ] SMS 23 of 23

WP-9456-2023 judgment.odt IN THE HIGH COURT O F JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9456 OF 2023 Pradip s/o Surajmal Gandhi Proprietor – Nayan Motors, Age: 68 years, Occu. Business, R/o Vardhaman Hsg. Society, Ward No.7, Canal road, Shrirampur, Tq. Shrirampur, District Ahmednagar … PETITIONER VERSUS 1. The State of Maharashtra Through its Principal Secretary, Co-operation, Marketing & Textile Deptt., Mantralaya, Mumbai – 400 032 2. Commissioner & Registrar for Co-operation, New Central Building, 2nd Floor, Pune. 3. Additional Registrar (Admn.) Co-operative Societies, MS, Pune 4. Chairman, Administrative Board, Dwarkadas Mantri Nagari Co.op, Bank Ltd., Jalna Road, Beed 5. Chief Executive Officer, Dwarkadas Mantri Nagari Co.op. Bank Ltd., Jalna Road, Beed 6. Tahasildar, Tahsil Office, Shrirampur, Dist. Ahmednagar … RESPONDENTS .… 1 of 23 2024:BHC-AUG:385-DB (( 2 )) WP-9456-2023 judgment Mr. S. S. Thombre, Advocate for Petitioner Mr. P. K. Lakhotiya, AGP for Respondent Nos. 1 to 3 Mr. N. P. Bangar, Advocate for Respondent Nos. 4 and 5 .… CORAM : RAVINDRA V. GHUGE AND Y. G. KHOBRAGADE, JJ. RESERVED ON PRONOUNCED ON : : 07.12.2023 10.01.2024 JUDGMENT (Per:- Y. G. Khobragade, J.) :- 1. Rule. Rule made returnable forthwith. With the consent of both sides, the matter is heard finally. 2. By the present Petition under Article 226 of the Constitution of India, the Petitioner has prayed for issuance of Writ of Mandamus, directing Respondent Nos. 4 and 5 to grant benefit of One Time Settlement (O. T. S.) to him to clear the outstanding loan in view of Government Resolution dated 31.08.2021. 3. Shri Thombre, learned Counsel appearing for the Petitioner canvassed that, the Petitioner had obtained loan in the year 2004 to the tune of Rs. 35,00,000/- from the Respondent No. 5 Dwarkadas Mantri Nagari Co-Op, Bank Ltd., Jalna Road, Beed. 2 of 23 (( 3 )) WP-9456-2023 judgment However, the Petitioner failed to repay the loan amount. Hence it was declared NPA (Non Performance Assets). The Respondent no. 5 Bank is under control of the Reserve Bank of India ( in short R. B. I.). Respondent No 5 is required to follow the guidelines issued by the R. B. I. from time to time. On 05.01.2022, the Respondent No.5 Bank issued a public notice as per the resolution issued by the State Government on 13.08.2021. As per the public notice, the scheme of One Time Settlement (OTS) was introduced w.e.f. 05.01.2022 in order to clear the outstanding loans for the defaulters/borrowers. Therefore, on 10.03.2022, the Petitioner submitted an application to Respondent No.5 praying for extension of benefit of one time settlement scheme (OTS) and repay the outstanding loan amount. In reply to that application, Respondent No.5 issued a communication dated 14.03.2022 and informed the Petitioner about inclusion of his name in the list of O. T. S. scheme. Therefore, on 21.06.2022, the Petitioner submitted a representation to Respondent No.5 that, his loan account has been included in the O. T. S. Scheme list and also deposited 5% amount of the outstanding loan. 4. The learned Counsel appearing for the Petitioner submits that, by a communication dated 14.03.2022, the Petitioner was 3 of 23 (( 4 )) WP-9456-2023 judgment informed that, an amount of Rs.53,77,174/- is outstanding against the Petitioner (deducting 5% amount of the O. T. S.) i.e. Rs.2,22,431/- which was deposited by him on 10.03.2022. Thereafter, on 19.05.2022, the Petitioner deposited an amount of Rs.7,77,569/- vide cheque bearing No.656809 drawn on H. D. F. C. bank and on 02.06.2022, an amount of Rs.10,00,000/- deposited, but an amount of Rs.55,99,595/- is still shown as outstanding amount against the Petitioner by miscalculation of interest. Thereafter, the Petitioner also prayed to the Respondent No.5 for grant of six installments to pay outstanding loan. 5. The learned Counsel appearing for the Petitioner further submits that, though, the Petitioner is entitled for getting benefit of O. T. .S