CW 9609/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.9609/2008 M/s Cross Country Hotels Ltd Versus Union of India & Ors. Date of Order ::: 17/04/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Ajay Kr. Bajpai, for petitioner (Company) Mr. Kamla Kar Sharma, Standing Govt. Counsel, for respondents-UOI. Instant petition has been filed assailing communications dt.14th & 19th August, 2008 (Ann.4 & 5) whereby respondent No.3 (Tourism Finance Corporation Ltd. (“TFC”) authorised its Officer U/s 13(12) of Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (“Act, 2002”) for taking over possession of secured assets referred to in Ann.II to the demand notice dt.08/01/2003 served on petitioner-Company either by himself or through agencies as deemed necessary U/s 13(4) of Act, 2002. However, respondents took possession of properties through their authorised officer on 22/08/2008. While issuing notices on 24/10/08, Co- ordinate Bench of this Court passed ex parte order ad infra: “Meanwhile, operation of the office orders dated 14/08/08 (Ann.4) and 19/08/08 (Ann.5) shall remain stayed. Further, in case the petitioner submits CW 9609/08 //2// the notorised undertaking within a period of fifteen days from today, for payment of Rs.10 lacs (Rupees Ten lacs) per month for a period of one year, then the possession of the seized property shall be restored to the petitioner on depositing first instalment of Rs.10 lacs. The subsequent eleven monthly instalments of Rs.10 lacs shall be paid by the 15th of each month, failing which the interim order shall stand vacated automatically without reference to this Court.” Against interim order (supra), respondents straight away preferred Special Leave to Appeal (Civil)-26738/2008 before Apex Court. It appears that initially on 25/11/2008, the Apex Court directed both the parties to maintain status quo, which was made absolute while disposing of Civil Appeal No.51/09 (arising out of SLP(C)-26738/08) alongwith Civil Appeal No.49/09 (arising out of SLP(C)-5541/2006) filed by petitioner Company vide common order dt.05/01/09 (Ann.1) and further requested this Court to hear out the parties and pass appropriate order as expeditiously as possible, preferably within a period of three weeks from the date of communication of this order. However, respondents filed their reply to writ petition on 12/02/09, to which rejoinder was CW 9609/08 //3// filed by petitioner on 09/03/2009. Since pleadings were not complete by that time, matter could not be heard. Respondents granted financial assistance, which were indisputably disbursed to petitioner in between the period from 1992 to 1996; and last financial assistance was extended to petitioner on 25/04/1996, by that time, a total sum of loan disbursed was Rs.10.23 Crores. It appears that on account of defaults having been allegedly committed, respondents recalled the petitioner Company vide notice dt.18/12/1998 demanding payment of Rs.12,25,09,154/- being due & payable to respondents as on 15/10/98, which the petitioner failed to pay, as such respondents vide letter dt.22/06/1999 invoked personal guarantees calling upon its guarantors to make payment of outstanding dues of petitioner. But on all efforts having failed to make recovery of the dues payable by petitioner Company, respondents filed Org. Appl.-26/2000 before Debt Recovery Tribunal (I), New Delhi (“DRT”) on 17th January, 2000. In the meantime, Act, 2002 came into force – in pursuance whereof, notice dt.08/01/03 (Ann.3) U/s 13(2) of Act, 2002 was served upon petitioner Company calling upon to pay a sum of Rs.27,76,65,559/- being due as on 27/12/02. CW 9609/08 //4// However, petitioner Company filed two interim applications (1) IA-185/2003 seeking stay of action initiated under Act, 2002 and the other (2) IA-186/03 seeking production of few documents from respondents, which was partly allowed directing respondents to file only one document viz. General Condition No.GC-1/91 and prayer for rest of documents as sought for by petitioner was rejected by DRT vide order dt.19/11/03. However, main grievance raised herein is that dispute with regard to recovery of amount is already pending before DRT New Delhi where in counter-claim, re-calling notice dt.08/01/03 U/s 13(2) of Act, 2002 for outstanding amount as on 27/12/2002 was also questioned by way of Interim Appl.-185/2003; in such circumstances, Office orders issued by respondents on 14th & 18thAugust, 2008 (Ann.4 & 5) – pursuant to which taking possession of the property U/s 13(4) of Act, 2002 is unreasonable and unwarranted. In their reply, respondents inter-alia averred that they had already taken over possession of the property in exercise of powers U/s 13(4) of Act, 2002 on 22/08/2008 – against which petitioner Company has availed statutory remedy of appeal U/S 17 of Act, 2002 in October, 2008, which is still lying in defect – for CW 9609/08 //5// removal whereof, no efforts were made by petitioner Company so as to get appeal, itself, ripen for consideration on merits by appellate Tribunal for reasons best known to it. It has also been averred by respondents that against action of taking over possession of property by respondents U/s 13(4) of Act, 2002 on 22/08/08, petitioner Company preferred CWP-6707/2008 before High Court of Delhi praying therein for maintenance of status quo ante as on 22/08/08, wherein after issuance of notices on 12/09/08 and after hearing the parties, Counsel for petitioner withdrew writ petition with liberty to avail of appropriate remedy available under law and accordingly, CWP-6707/2008 was dismissed with liberty as prayed for by petitioner vide order dt.16/09/08 of High Court of Delhi. Counsel for respondents herein submits that the fact (supra) of having availed of parallel remedy by way of civil writ petition before High Court of Delhi and of filing appeal U/s 17 of Act, 2002 has been deliberately concealed by petitioner Company which dis-entitles him from invoking extra ordinary jurisdiction of this Court U/Art.226 of Constitution. Counsel for respondents further submits that once petition with the same grievance has CW 9609/08 //6// already been dismissed, may be at the request of petitioner Company and remedy of appeal U/s 17 of Act, 2002 against impugned action has been availed, atleast 2nd petition for self same grievance is otherwise not maintainable and deserves to be rejected. On the other hand, Counsel for petitioner has tried to convince this Court that instant petition was filed earlier to CWP-6707/08 before High Court of Delhi; as such there was no concealment and that apart, in instant petition, letters (Ann.4 & 5) by which respondents authorised their officer to take possession U/s 13(4) of Act, 2002 are under challenge whereas before High Court of Delhi, possession having been taken over by respondents on 22/08/08 was prayed for restoring back to petitioner-Company. I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. Documents dt.14th & 19th August, 2008 (Ann.4 & 5) impugned herein are mainly office orders authorising Officer of respondents (TFC) to take possession on its behalf of secured assets either by himself or through agency as deemed necessary U/s 13(4) of Act, 2002. With this authorization vide orders (Ann.4 & 5) petitioner Company cannot be said to CW 9609/08 //7// be aggrieved at all in instant petition but at the same time, could be said to be aggrieved on account of possession of its property having been taken over on 22/08/08 by respondents authorized officer/agent in exercise of powers U/s 13(4) of Act, 2002, as has been mentioned in para 15 of instant petition. Yet while seeking relief in prayer clause petitioner company only prayed for quashing of Orders (Ann.4 & 5) and for release of property. It is immaterial as to which writ petition was filed earlier among two either before High Court at Delhi or High Court of Rajasthan. But this fact remained un-controverted from material on record that CWP-6707/08 was filed before High Court of Delhi, with the prayer ad infra: “Prayer : In the circumstances, it is most respectfully prayed, your Lordships may graciously be pleased to issue writ of Mandamus or any other writ or direction directing the respondent to maintain status quo ante as on 22/08/2008 existing between the parties and restrain the respondent from parting with possession of the hotels of the petitioner company namely (1) Hotel Bikaner Palace, Village Himnmataser, Tehsil & district Bikaner, Rajasthan (3) Hotel Sonar Garh Fort located at Jaisalmer, Rajasthan and (3) CW 9609/08 //8// Hotel Mukundgarh Fort, Heritage Hotel, Mukundgarh district Jhunjhunu Rajasthan or pass other or further writ, order or direction as may deem fit and proper.” In writ petition (supra), notices were issued on 12/09/08 and matter was posted for 16/09/08 when after parties were heard, Counsel for petitioner Company requested to withdraw writ petition with a liberty to avail of appropriate remedy under law as is evident from order dt.16/09/08 of Delhi High Court ad infra: “16/09/2008 - Present: Mr. SK Sinha, for the petitioner Mr. Rajeev Mehra & Mr. Sanjay Bhatt, Advs., for respondent. WP(C) NO.6707/2008 Learned Counsel for the petitioner wishes to withdraw this writ petition with liberty to take appropriate remedy in accordance with law. Dismissed as withdrawn, with liberty as prayed for.” At the same time, indisputably, while instant petition came up before this Court for admission 24/10/2008, petitioner Company was having knowledge of the fact that its CWP-6707/08 had already been dismissed by High Court of Delhi vide order dt.16/09/08 (supra). It was expected from petitioner to disclose this fact or to have brought it to the notice of this Court when matter came up for consideration on 24/10/08 and subsequently on 27/01/09; and by concealing CW 9609/08 //9// material fact before this Court, succeeded in getting ex parte stay order on 24/10/08. However, ex parte order was assailed by respondents (TFC) by way of filing Civil Appeal No.51/09 (arising out of SLP(C)-26738/08) which was disposed of alongwith Civil Appeal No.49/09 (arising out of SLP(C)-5541/2006) filed by petitioner Company vide common order dt.05/01/09(Ann.1) whereby ex parte order dt.25/11/2008 passed by the Apex Court directing to maintain status quo, was made absolute. In considered opinion of this Court, petitioner-Company has concealed material fact from this Court which certainly dis-entitles it from invoking extra ordinary jurisdiction U/Art.226 of Constitution and that apart, after withdrawing CWP-6707/08 from High Court of Delhi, as informed to this Court, petitioner Company has preferred appeal U/s 17 of Act, 2002 before Debts Recovery Appellate Tribunal, New Delhi, which is statutory remedy available under law and in view whereof, instant petition is otherwise not maintainable and deserves to be dismissed. Consequently, writ petition fails and is hereby dismissed. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.9/9609CW08Rsr1704.doc