B.K. Sharma, J.
1. By means of this writ petition filed in 2004, the petitioners have made a challenge to the order dated 9.7.1998 passed in O.A. No. 13/1997 by the Debts Recovery Tribunal, Guwahati (hereinafter referred, to as 'the Tribunal').
2. According to the petitioners, the impugned order dated 9.7.1998 has been passed ex-parte. While the petitioner No. 2 is a Company registered under the Indian Companies Act, 1956, the petitioner No. 1 is one of its Directors. They are aggrieved by the proceeding in O.A. No. 13/1997 initiated and completed by the Tribunal by the impugned order dated 9.7.1998.
3. The occasion for the petitioners to file the instant writ petition on 3.2.2004 arose when the petitioners came to know about the legal notice published in the issue of the newspaper called 'Daily Telegraph' dated 18.11.2003. The specific averment made in Para-5 of the writ petition is that with the publication of the notice, the petitioners came to know that a debt recovery proceeding was pending against them and so also, the private pro forma Respondents No. 6 to 9. By the said notice, the petitioners as well as the proforma-respondents were asked to appear before the Tribunal on 22.12.2003 and to show cause as to why they should not be committed to civil prison in course of execution of certificate in question.
4. In Para-6 of the writ petition, the petitioners have stated that they were stunned to see the notices and immediately proceeded to Guwahati from Calcutta and enquired about the proceeding in the Tribunal. The statements have been made to the effect that the petitioners had shown the cause stating, inter alia, that after declaration of the petitioner-Company as a sick Company, for reconstruction, the matter has been referred to the B.I.F.R. and prayed for time to examine the matter. In Para-7 of the writ petition, it has been stated that the writ petitioner No. 1 applied for certified copy of the impugned order dated 9.7.1998 passed in O.A. No. 13/1997 and also the certificate issued on the basis of the order.
5. The specific averment made is that, it is only on receipt of the copy of the order, the petitioners could come to know about the same and issuance of certificate thereof on the basis of the application filed by the respondent-Bank under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. The petitioners have annexed the copies of the order dated 9.7.1998 and the certificate thereof issued under Section 19(7) of the Act for Rs. 6,07,12,784/- being the principal amount and interest therein @ 15% per annum from 3.5.1997 till realization and Rs. 1,60,000/- as cost of the proceeding.
6. The petitioners, while referring to the various provisions of the Act towards assailing the proceeding before the Tribunal, which eventually came to an end with the passing of the impugned order dated 9.7.1998 and the issuance of the certificate as aforesaid, have stated that in Para-8 of the writ petition that, the petitioners never received any notice from the Tribunal. It has been stated in this paragraph that had the petitioners been served with notice, they would have responded to the proceeding before the Tribunal by filing objection. Thus, according to the petitioners, there has been violation of the principle of natural justice towards passing the impugned order dated 9.7.1998.
7. The petitioners have also stated that by a purported decision of the BIFR (Board of Industries and Financial Reconstruction), the petitioner-Company has been held as a sick industrial company as understood under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985. Apprehending that a winding of proceeding might be initiated and taken up against the petitioner-Company, the recognized Labour Union preferred the writ application being Civil Rule No. 1463/1995. According to the petitioners, the same is still pending and the proceeding before the B.I.F.R. is under the order of stay passed in the said writ proceeding.
8. In view of the pendency of the writ petition as well as appointment of the Industrial Re-construction Bank of India Limited as party agency for preparation of a scheme, as contemplated under Section 18 of the S.I.C. Act for taking measures for construction, revival or rehabilitation of sick industrial company, the recovery proceeding was not maintainable. In Para-24 of the writ petition, the petitioners have made the following statements:
24. That a Civil Rule numbered as C.R. No. 5997/98 challenging proceeding before Debt Tribunal came up before the Hon'ble Court for hearing along with other similarly connected matters and this Hon'ble Court by a common Judgment disposed of all these application by holding that all these proceeding which were pending before Learned Tribunal were directed to file before Civil Court. And as the proceeding O.A. No. 57/98 was disposed of by the Learned Tribunal this Hon'ble Court by that order directed to proceed with the matter.
9. From the aforesaid statements, although it is not discernible that it was the petitioners who had filed the writ petition, however, in Para-26 of the writ petition, it has been stated that after filing of the writ petition, although the proceeding was pursued by the Managing Director of the Company, but due to suffering from certain disease in March, 1999, he had to remain in hospital for treatment and thus, he could not remain in touch with the case regularly. In Para-28 of the writ petition, the following statements have been made:-
28. That the writ petitioners beg to state that the said order dtd. 9.7.98 has been passed without hearing the writ petitioner No. 1 and without issuing any notice. Thereby it violated the principles of natural justice.
10. It is in the aforesaid backdrop of the case projected by the petitioners, the prayer made is for setting aside and quashing of the final order passed on 9.7.1998 in O.A. No. 13/1997. After filing of the writ petition, the petitioners filed supplementary affidavit on 1.3.2004 in which, reiterating the stand in the writ petition that the petitioners were not aware of the proceeding before the Tribunal, it has been stated that it is only through legal notice dated 18.11.2003, the petitioners could come to know about the proceeding before the Tribunal in O.A. No. 13/1997. It has been stated in the additional affidavit that in the proceeding before the B.I.F.R., it was recorded that the respondent-Bank had shown interest towards rehabilitation package of the Company to give a last chance.
11. In Para-8 of the supplementary affidavit, it has been stated that in the proceeding before the B.I.F.R., the order was passed on 9.2.2004, but the petitioners could not be present as no notice was served on them. In the order, it was recorded that it would be just, equitable and in public interest if the Company wound up in terms of Section 20(1) of the Act. According to the petitioners, the impugned order dated 9.7.1998 is not implementable as the proceeding was initiated without the consent of the BIFR.
12. The respondent-Bank has filed the affidavit-in-opposition contending, inter alia, that the instant writ petition is barred by res judicata. It has also been contended that the writ petition having been filed with full of suppression of material fact, the same is liable to be dismissed. In Para-4 of the affidavit, the respondents have pointed out that in the proceeding before the Tribunal, the petitioner-Company appeared by filing Misc. Case No. 1/1997, but subsequently, did not press the same. Thus, according to the respondent-Bank, it is a travesty of truth on the part of the petitioners to say that they were not aware of the proceeding before the Tribunal.
13. In Para-7 of the affidavit, the respondent-Bank detailing the particulars relating to the proceeding before the Tribunal has denied the contentions of the petitioners that they for the first time came to know about the proceeding before the Tribunal after publication of the legal notice dated 22.12.2003. Referring to the notice issued by the Recovery Officer for liquidation of mortgaged property and also other properties of the petitioner-Company putting the same to auction sale, it has been stated that the said auction sale did not materialize as the petitioners in the meantime illegally transferred the entire mortgaged property to a third party. According to the respondent-Bank, it is in such circumstances, the notice was issued to the petitioners and the proforma-respondents to disclose their assets, but they failed to do so. Consequently, the impugned legal notice was issued asking them to show cause as to why they should not be sent to civil prison.
14. It has been categorically stated by the respondents in their affidavit that after the impugned order passed by the Tribunal and on receipt of the attachment order dated 29.4.1999, the petitioner No. 1 and the proforma-Respondent No. 8 informed the Recovery Officer of the Tribunal that the properties mentioned in the order did not belong to them. It has also been stated that the petitioner No. 1 informed the District Commissioner, Dibrugarh by his letter dated 15.11.2000 that the proforma-Respondent No. 6 illegally and without any authority, knowledge and consent of the Directors and shareholders of the Company, disposed of several properties and siphoned huge amount of money. It was also informed that the Company had the huge liability to the respondent-Bank for which the Bank had obtained the decree against the Company.
15. Referring to the above, it has been contended by the respondent-Bank that the whole thrust of the petitioners in filing the writ petition that they were not aware of the proceeding before the Tribunal is an attempt to hoodwink the Court for a favourable order.
16. In Para-9 of the counter affidavit, referring to the order passed by the Tribunal, it has been point out that the petitioner-Company upon responding to the proceeding in the Tribunal, filed an application before the Tribunal on 25.8.1999, inter alia, stating that summons were issued to them and others connected with the Company. Thus, according to the respondent-Bank, the whole basis of the claim made in the writ petition being based on false statements regarding receipt of notice, the writ petition is liable to be dismissed on that score alone. According to the respondent-Bank, the proceeding before the B.I.F.R. is of no bar towards execution of the order passed by the Tribunal. The respondent-Bank has also contended that the present writ petition is not maintainable in view of there being alternative remedy by preferring an appeal before the prescribed authority.
17. The petitioners have filed a further affidavit on 7.8.2007 stating that the orders passed by the B.I.F.R. on 9.2.2004 towards winding up of the Company in terms of Section 20 of the S.I.C.A. Act, 1985 was received by them only on 25.7.2007.
18. I have heard Mr. P.G. Baruah, learned senior counsel assisted by Mr. R. Baruah, learned Counsel for the petitioners as well as Mr. A. Phukan, learned Counsel representing the respondent-Bank. According to Mr. Baruah, learned Counsel for the petitioners, the respondents in their affidavit having not pleaded the plea of res judicata, they are precluded from raising the same. Placing reliance on the decision of the Apex Court in : [1993]1SCR340 Maharashtra Tubes Limited v. State Industrial and Investment Corporation of Maharashtra Limited and : AIR2000SC2553 M/s Patheja Bros. v. ICICI Ltd., Mr. Baruah, learned Counsel has submitted that the entire proceeding before the Tribunal is vitiated, more particularly, when no notice was served on the petitioners. According to Mr. Baruah, learned Counsel for the petitioners, in view of the provisions of Section 22 of the SIC Act, no proceeding before the Tribunal could have been initiated and finalized.
19. Mr. A. Phukan, learned Counsel for the respondent-Bank, on the other hand, while forcefully resisting the writ petition on ground of being barred by principle of res judicata and there being suppression of material fact, also argued that the petitioners cannot frustrate the decree obtained by the respondent-Bank by dubious means. Leaving aside the merit of the case, which according to him, overwhelmingly titles in favour of the respondent-Bank, in view of the availability of alternative remedy under the provisions of the Act itself, the writ petition is not maintainable, he submitted. He has placed reliance on the decision of the Apex Court as reported in (2006) 9 SCC 252 (State Bank of India v. Allied Chemical Laboratories) : (2006)ILLJ332SC State Bank of India v. K.C. Tharakan : AIR2005SC446 (U.P. State Road Transport Corporation) : AIR2006SC1846 State of Karnataka v. All India Manufactures Organization) and : AIR2005SC3165 Ishwar Dutt v. Land Acquisition Collector.
20. Before proceeding with the matter and adjudication of the same on merit, I first deal with the two primary objections raised by Mr. Phukan, learned Counsel for the respondent-Bank. The objections raised are that the instant writ petition is barred by the principle of res judicata and that there being suppression of material fact regarding receipt of notice from the Tribunal, the writ petition is liable to be dismissed on that score alone.
As noticed above, there is no direct statement made in the writ petition regarding filing of the earlier writ petition being Civil Rule No. 5997/1998 by which the same very order which has been put to challenge in this writ petition was challenged. Para-24 of the writ petition has been quoted above.
21. From the said statements, really speaking, it is not discernible that it was the petitioners who had filed the said writ petition. In the writ petition, the challenge made was to the same very order i.e. the order dated 9.7. 1998 passed in O.A. No. 13/1997. The writ petition was dismissed by judgment and order dated 16/20.8.1999. The writ petition was dismissed as follows:-
Civil Rule No. 5997/98: This matter also has been disposed of by the Tribunal vide order dt. 9.7.98 in O.A. No. 13/97. In that view of the matter the Certificate Officer can recover the amount due under the guidance and supervision of the Presiding Officer as indicated above. Accordingly, this writ application shall stand rejected.
22. After the dismissal of the writ petition filed by the petitioners, they approached the Apex Court by filing Special Leave Petition being SLP(C) No. 5397/2000. The appeal was dismissed by the Apex Court by order dated 11.9.2000. Thus, the challenge made to the order assailed in this proceeding was earlier rejected in the earlier proceeding initiated by the petitioners. The same has attained finality after dismissal of the appeal preferred by the petitioners by the Apex Court. Suppressing all these, the petitioners have filed the instant writ petition and on the strength of the interim order passed, they are still exempted from the huge liability at the cost of the public money.
23. To quell any doubt, I have called for the records of the earlier writ petition filed by the petitioners. On perusal of the writ petition, it is seen that the prayer made in the earlier writ petition is to set aside and quash the same very proceeding before the Tribunal. In the writ petition, correspondences with the Industrial Reconstruction Bank of India, had also been referred to. The present writ petition, more or less, is the replica of the earlier writ petition. In Paras 3 and 4 of the earlier writ petition, the following statement was made:
3. That the respondent instituted a proceeding under the Recovery of Debts, due to Bank and Financial Institution Act, 1993 in short 'Recovery Act' against the writ petitioner for recovery of a certain amount before the Debts Recovery Tribunal, Guwahati. The said proceeding has been numbered as O.A. No. 13/97
4. That the Recovery Tribunal issued a summon purportedly under Section 19(3) of the Recovery Act and it has been served upon the petitioner as well as other persons and directed them to appear within 30 days from the date of receipt of the aforesaid notice dt. 14.5.97. A copy of the said notice is annexed herewith and marked as Annexure-1.
24. From the above statement in the earlier writ petition, there is no manner of doubt that the petitioner-Company received notice from the Tribunal, but yet, for the purpose of the present proceeding, it has denied receipt of notice. The false statement regarding non-receipt of notice stares on the face of it and it is so glaring that the learned Counsel for the petitioners, on being pointed out of the same, had no answer.
25. There is another aspect of the matter. The petitioners after filing of the aforesaid writ petition being Civil Rule No. 5997/1998 on 17.11.1998, filed an application being Misc. Case No. 649/1999. In the application, it was stated that inadvertently certain legal and constitutional grounds could not be taken in the writ petition which were very much necessary. However, there is no indication as to what were the legal and constitutional grounds. With such statement, the prayer made in the application was to allow the petitioner to amend the writ petition. By order dated 4.6.1999, the application was allowed with the following order:
Having heard the learned Counsel for the petitioner and after going through the petition, the petitioner is allowed to amend the petition in the Civil Rule No. 5997/1998 and the amended petition which has already filed be treated as main writ petition.
26. On the basis of the aforesaid order dated 4.6.1999, the petitioner pursued the purported amended writ petition in Civil Rule No. 5997/1998. In the name of amendment of the earlier writ petition without indicating the amendments in Misc. Case No. 649/1999, the petitioner made various changes in the writ petition even to the extent of mentioning the original application before the Tribunal as 0.A. No. 57/1998 instead of O.A. No. 13/1997 which was originally mentioned in the un-amended writ petition.
27. From the aforesaid factual position, there is no manner of doubt that the petitioners played fraud with this Court. Taking advantage of the order passed in the aforesaid miscellaneous application, the petitioners virtually filed another writ petition, although the grounds urged, more or less, remained the same. The petitioners could not have done so with the prayer in the Miscellaneous application for incorporating certain constitutional and legal grounds. Even the Cause Title of the writ petition was drastically changed. The prayers made in the unamended writ petition were as follows:
It is, therefore, most respectfully prayed that Your Lordships may graciously be pleased to admit this petition, call for the record, issue notice calling upon the respondents to show cause as to why--
1) a writ in the nature of Mandamus and/or any other appropriate writ, or Direction of the like nature commanding the respondents to cancel, forebear and not to take any action in pursuance of O.A. No. 13/97;
2) a Writ in the nature of Certiorari and/or any other appropriate Writ, Direction of Order of the like nature for quashing the order dt. 19.12.97 and the consequent proceeding No. OA 13/97 shall not be issued and after hearing the cause or causes that may be shown, Your Lordships may be pleased to make the rule absolute.
Your petitioner further prays that pending the hearing of the consequent proceeding of the Case No. OA. 13/97 may kindly be stayed.
28. Even assuming that the petitioners had no knowledge about the proceeding before the Tribunal, but such deficiency of knowledge was up to the stage of filing the earlier writ petition being Civil Rule No. 5997/1998.
29. However, having regard to the statements made in the said writ petition, it cannot be said that they had no knowledge about the proceeding. They unsuccessfully resisted the proceeding before the Tribunal, which has since attained finality after dismissal of the SLP filed by it. The same matter cannot be re-agitated by filing a second writ petition, as has been done by the petitioners. Their entire effort is to thwart the proceeding before the Tribunal and recovery of debt by the respondent-Bank. The petitioners cannot absolve themselves from the liability to pay the dues to the Bank, which needless to say involves public money and public interest.
30. Annexure-'B' to the counter affidavit is the letter dated 19.5.1999 addressed to the Recovery Officer of the Tribunal by none other than the petitioner No. 1, who has also sworn the affidavit in support of the instant writ petition. The letter was addressed in reference to the proceeding before the Tribunal in O.A. No. 13/1997. In the letter, it was clearly mentioned that the attachment order passed by the Recovery Officer was received by the petitioner No. 1. However, it was contended that the property mentioned in the notice did not belong to the petitioner No. 1 and consequently, a request was made to take immediate step for sale of assets of the petitioner Company for realization of dues. Similar response was made by Annexure-'C communication dated 3.6.1999 by the pro forma- Respondent No. 8. There is also no denial on the part of the petitioners that they appeared before the Tribunal by filing Misc. Case No. 1/1997 clearly stating receipt of the notice from the Tribunal. It is another thing that they did not press the application and refrained from appearing and participating in the proceeding before the Tribunal.
31. Throughout the writ petition, the petitioners have not obliquely stated about their participation in the proceeding before the Tribunal, subsequent abandonment and their response to the notices issued by the Recovery Officer. Instead, they have made bold statement that they never received any notice from the Tribunal and that they were not aware of the proceeding before the Tribunal.
32. The very first paragraph of the earlier writ petition (amended) being Civil Rule No. 5997/1998 was to the effect that the proceeding before the Tribunal was not maintainable in view of the provisions of Section 22 of the SIC Act. It is not understood as to how on the same very ground, a second writ is maintainable. It is also not understood as to how the argument could be advanced that the writ Court should be oblivious of the fact of the earlier writ petition to reject the plea of res judicata in absence of any plea to that effect in the counter affidavit.
33. As a general rule, the suppression of material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Court to deter a litigant from abusing the process of Court by deceiving it. A petitioner has no right to move Court for enforcement of his fundamental right on a petition containing misleading and inaccurate statements and if he files such a petition, the Court will dismiss it. In the instant case, there is no manner of doubt that the petitioners made a calculated and designed suppression of material facts in order to secure admission of the writ petition and the interim relief.
34. Had the facts mentioned above been disclosed, the same would have disentitled to petitioners to the extra-ordinary remedy, or in case would have materially affected the merits on both the interim and ultimate relief claimed. Full and true disclosure of the facts are the essential to invoke the extra-ordinary jurisdiction of this Court. The petitioners with the suppression of material fact not only got the writ petition admitted, but also obtained the interim order dated 25.5.2004, which is now operative for the last more than 3 years and as a consequence, the respondent-Bank has been deprived of the huge amount payable by the petitioners.
35. There is another aspect of the matter. The petitioners by filing the instant writ petition on 3.2.2004 has assailed the order of the Tribunal passed on 9.7.1998. Leaving aside the plea of res judicata and suppression of material fact, the writ petition is grossly belated. The only explanation furnished is that the petitioners did not receive any notice from the Tribunal and the said proceeding came to their knowledge only with the issuance of the legal notice dated 18.11.2003. When it is on record that the petitioners had the knowledge of the proceeding before the Tribunal and in fact, they appeared before the Tribunal and also unsuccessfully challenged the same in the earlier round of litigation, such plea is wholly unacceptable.
36. The methodology adopted by the petitioners, so far successfully, is only to see that the respondent-Bank cannot recover its dues from the petitioners. The proceeding before the Tribunal came to an end with the final order passed on 9.7.1998. The earlier writ petition was filed on 17.11.1998 (unamended/3.6.1999) (amended) i.e. after finalization of the proceeding before the Tribunal. For the last about 10 years, the petitioners have successfully avoided the decree obtained by the respondent-Bank. For their such action, in ultimate analysis, it is the public money and for that matter, public exchequer which has suffered.
37. The decisions on which Mr. Baruah, learned Counsel for the petitioners has placed reliance are on the issues raised in the earlier writ proceeding, but did not find favour of this Court as well as the Apex Court. On the other hand, the decisions on which Mr. Phukan, learned Counsel for the respondent-Bank has placed reliance are on the principles relating to res judicata, suppression of material fact, alternative remedy etc. The decisions lend support to the submissions made by Mr. Phukan, learned Counsel for the respondent-Bank. In view of my above finding, the said decisions need not be discussed.
38. For all the foregoing reasons, discussions and conclusions, the writ petition is dismissed. Interim order passed on 25.5.2004 stands vacated. A cost of Rs. 25,000/- is awarded against the petitioners.
.