[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION {LODGING} NO.1729 OF 2008 Mrs. Lucille V. Ayyer .... Applicant/ Petitioner Vs. State of Maharashtra & Ors. .... Respondents Sri V. Mishra i/b M/s. V. Mishra & Associates for the Applicant/Petitioner. Ms Madhubala Kajale, AGP, for the Respondent No.1. Sri K.V. Tembe for the Respondent No.2. CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI A.A. SAYED, JJ. DATED: DATED: DATED: JULY 17, 2008 P.C: P.C: P.C: 1. Taken on board on request. 2. Heard. By the present petition the applicant/petitioner is challenging the order dated 5-4-2008 passed by the learned Chief Metropolitan Magistrate and further seek direction to the respondent No.2 to refrain from taking possession of Flat No.1/13, Twinkle Start CHS Ltd., 3rd Floor, Ghatla Road, Chembur, Mumbai-400 071, as also for stay of the order passed by the learned Chief Metropolitan Magistrate in the said case on 5-4-2008. It is the case of the petitioner that she is a housewife and resides in the said flat and she [2] stood guarantor in relation to the loan amount granted in favour of M/s. Laxmi Graphics by the respondent No.2 for the business of printing and packaging. As the said flat was taken as a collateral security for the said loan and the respondent No.3, who is the Assistant Registrar in the Court of the Metropolitan Magistrate, Bandra, Mumbai through notice dated 30-6-2008 threatened to take possession of the said flat on 11-7-2008, the petitioner obtained a copy of the order of the learned Metropolitan Magistrate on 14-7-2008 and it is her case that she had never received any notice from the respondent No.2 under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, hereinafter called as "the said Act". She, therefore, moved an application before the learned Metropolitan Magistrate on 10-7-2008 for recall of the order dated 5-4-2008. However, the Court adjourned the matter till 14-7-2008. It is her case that she had never received any notice from the Bank under the said Act. She, however, states that she stood as a guarantor and offered her flat as a collateral security. Considering the provisions of Section 13(2) of the said Act, no proceedings could have been initiated against the guarantor under the said provisions of law and yet the learned Metropolitan Magistrate is proceeding against the petitioner and in relation to the said flat under the said provisions of [3] law. The petitioner’s daughter is studying in final year MBBS and if the respondent-Bank takes possession of the flat, it would cause irreparable loss to the petitioner and her daughter. The petitioner has further stated that the borrower is ready and willing to make payment in instalments in a stipulated time. Hence she has filed the present petition. 3. The respondent-Bank, on the other hand, has stated that the petitioner has not come to the Court with clean hands in as much as that she has suppressed relevant fact that her husband is the borrower and he had filed Writ Petition Lodging No.1630 of 2008 challenging the same order and on 9-7-2008 the petition was rejected with costs of Rs.50,000/-, when the petitioner therein expressed desire to withdraw the petition unconditionally and it was accordingly allowed to be withdrawn without any costs. It is further case on behalf of the said respondent that considering the provisions of law comprised under Section 2(1)(f) of the said Act, the expression "borrower" includes guarantor and the petitioner being guarantor, the action which is contemplated under Section 13(10) of the said Act is permissible and there is no illegality committed by the learned Magistrate by passing the impugned order. 4. As rightly submitted on behalf of the respondents, [4] the petition is liable to be dismissed on the ground of suppression of relevant facts itself in the petition. Neither the petition nor the annexures thereto anywhere disclose that the husband of the petitioner, who is the borrower, had filed a petition being Writ Petition Lodging No.1630 of 2008 and that the same was withdrawn on 9-7-2008. The petitioner is, undisputedly, the wife of the person who had filed the said Writ Petition Lodging No.1630 of 2008. Besides, the present petition on the face of it discloses that the petitioner had full knowledge about all the dealings between her husband and the Bank and all the steps taken by her husband in relation to the loan amount and the steps taken by the Bank for recovery of the said loan amount. The para 15 of the present petition clearly states that "15. The Petitioners says that her husband requested to Bank to give him time as he is working daily 14 to 16 hours daily to get the work and within stipulated time as mentioned in the Minutes of Consent Order dated 5/9/2008 he will clear the dues, but Respondent No.2 refused to listen." This apparently discloses that the petitioner had full knowledge about the earlier petition which was filed and [5] indeed the learned Advocate for the petitioner did not contend at any point of time about lack of knowledge to the petitioner of the earlier petition filed by her husband. In fact, the very same Advocate representing the petitioner herein had represented her husband in the said petition. 5. At this stage, the learned Advocate for the petitioner sought leave to withdraw the petition. 6. In normal circumstances, we would have permitted the parties to withdraw the petition. However, in the case in hand, no such permission can be granted as the petitioner has not only tried to mislead the Court by suppressing important facts in the petition but has also wasted the public time and had tried to obtain order of the Court by suppressing relevant facts. Considering the conduct of the petitioner, we do not find it appropriate to allow the petitioner to withdraw the petition at this stage. It is to be noted that even on the earlier occasion while dealing with the Writ Petition Lodging No.1630 of 2008 which was filed by the husband of the petitioner, the learned Advocate for the petitioner had sought to withdraw that petition only after we had almost made it clear that the petition would be rejected with costs of Rs.50,000/- and not prior thereto. In such circumstances, the prayer for [6] withdrawal of the petition is rejected. 7. The learned Advocate appearing for the respondent-Bank is also justified in contending that Section 2(1)(f) clearly defines the term "borrower" under the said Act to include guarantor. Being so, the provisions of Section 13, which apply to the borrower, would also apply to the guarantor. 8. Being so, we find no illegality committed by the learned Chief Metropolitan Magistrate in passing the impugned order. In the facts and circumstances of the case, therefore, the petition is rejected with exemplary costs of Rupees One Lakh. The costs shall be deposited in the Registry within a period of eight weeks and on deposit thereof, the same shall be credited to the account of the Maharashtra State Legal Services Authority. (A.A.Sayed, J.) (R.M.S.Khandeparkar, J.) sjs/J8wpl1729.8 sjs/J8wpl1729.8 sjs/J8wpl1729.8