IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2580 OF 2008 Sandeep Jawahar Shah ...Petitioner V/s. The Ratnakar Bank Ltd. & Anr. ...Respondents ...... Ms.Pallavi N.Dabholkar with Mr.G.S.Godbole for Petitioner. Mrs.Medha R.Behere for Respondent No.1. Mr.P.G.Sarda i/b Mr.I.M.Khairdi for Respondent No.2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 24, 2009. MARCH 24, 2009. MARCH 24, 2009. P.C. 1. This Petition under Article 227 of Constitution of India questions the correctness of the order dated 8th February 2008 passed below Exhibit No.48 and purshis below Exhibit 53 in Special Darkhast No.10 of 2006, whereby, the Executing Court issued arrest warrant against the Petitioner for non-payment of Rs.5,83,800/- (Rupees : 2 : Five Lakhs Eighty-three Thousand Eight Hundred) on the finding that having regard to the tenor of the decree, the Petitioner/Defendant No.1 was liable to first satisfy the decree and only after all his assets were exhausted, the execution of decree could proceed against the other Defendants for recovery of remainder amount. 2. This Petition has been pending since April 2008 on account of issuance of notice for admission. The matter was fully heard on 20th January 2009 when peremptory opinion was recorded that the defence of the Petitioner that he has no means, has been rightly turned down by the Executing Court. As a matter of fact, the Petition could have been dismissed on the basis of that opinion on the same day. However, indulgence was shown to the Petitioner, as the Petitioner showed willingness to pay back the decretal amount to the Respondent No.1 Bank and explore the possibility of one time settlement. When the matter was taken up for hearing on 28th January 2009, it is the Petitioner who made statement that another Defendant/Respondent No.2 herein was willing to pay : 3 : 50% of the decretal amount. That statement was stoutly refuted by the Counsel appearing for Respondent No.2 as incorrect. Nevertheless, as the Petitioner submitted that he was willing to settle the matter and discuss with the Bank to find out amicable solution, once again, indulgence was shown and hearing of the Petition was deferred. The Petitioner thereafter gave counter proposal to the Bank which was unacceptable to the Bank. The Petitioner, however, maintained his stand that he had no source of income although he conceded that he was presently gainfully employed. To reassure the correctness of the stand taken by the Petitioner, he was called upon to produce his income-tax returns. The Petitioner did produce his income-tax returns for the three assessment years. However, as I found force in the stand taken by the Respondent No.1 that the income-tax returns may not disclose his real income as he was engaged in business ostensibly in the name of his wife in the name of Ratnadeep Dental Laboratory, in which the Petitioner claims to be working as an employee and drawing a meagre salary. In that context, the Petitioner was called upon to file affidavit of his : 4 : wife to disclose her source of income and also to produce certificate of Chartered Accountant to support that position. The Petitioner has filed affidavit of his wife but has not produced certificate of Chartered Accountant to support his stand though he was specifically directed to do so. That position is recorded in the orders dated 13th February 2009 and 16th February 2009. 3. Since the Court indicated its mind, that in the fact situation of the present case, it was not possible to show any indulgence to the Petitioner, the Petitioner once again through Counsel requested for time, so that, he can explore the possibility of settlement with the Bank by giving a realistic proposal. Once again, indulgence was shown to the Petitioner to avail of that option. However, when the matter was listed on 27th February 2009, I was convinced that the Petitioner was not coming forward with clean hands. In that, the Bank had given offer to the Petitioner to pay the outstanding dues as one time settlement. For that, the Bank went to the extent of reducing the interest rate from 18% per annum to 14% per : 5 : annum. However, it was obvious that the Petitioner wanted to only gain time and to protract the matter taking advantage of the interim protection given to him and was not showing any inclination to come with a realistic proposal for settlement. That position can be discerned from the orders dated 27th February 2009 and 2nd March 2009. The Petitioner, however, has now given a counter proposal to the Respondent Bank that he would pay the amount in instalments of only Rs.10,000/- (Rupees Ten Thousand Only) per month and the last instalment in the sum of Rs.3,55,000/- (Rupees Three Lakhs Fifty-five Thousand) will be paid on 21st July 2012. This proposal has, therefore, been justly rejected by the Respondent Bank. 4. In terms of order dated 2nd March 2009, the Petitioner was directed to remain personally present in Court on the next date of hearing. The Court was more than convinced that the attempt of the Petitioner was to only protract the proceedings and avail of the interim protection available to the Petitioner in terms of the order passed by this Court. Instead of appearing before the Court on : 6 : 23rd March 2009, he chose to send intimation through his Advocate that he was unable to attend, as his grandmother has since been hospitalised. Except mentioning this bare fact, no details are mentioned as to what is the ailment for which the grandmother is hospitalised, more so, admitted in which hospital. The information provided in the intimation is absolutely vague. I have noted in my order dated 23rd March 2009 that it is not the case of the Petitioner that there is no other family member who can take care of the grandmother, who is allegedly hospitalised. Once again by way of indulgence, hearing of the Petition was deferred till today to give one more opportunity to the Petitioner to remain present in Court. 5. Today, the Counsel for the Petitioner candidly informs that inspite of intimation of the direction of the Court, the Petitioner has not chosen to attend the Court even today. 6. Taking overall view of the matter, on account of the conduct of the Petitioner throughout the proceedings as is observed in various orders : 7 : and also on the finding already recorded that it is not as if the Petitioner has no means to pay the decretal amount, the only option is to dismiss this Petition with cost quantified at Rs.10,000/- (Rupees Ten Thousand) to be paid by the Petitioner to the Respondent No.1 Bank within two weeks from today, failing which, it will be open to the Respondent No.1 Bank to proceed against the Petitioner to recover the said amount and/or any other appropriate action, as may be advised. 7. Needless to observe that interim protection given to the Petitioner stands vacated forthwith and it will be open to the Respondent No.1 Bank to proceed against the Petitioner in accordance with law. A.M.KHANWILKAR, J.