wp11365.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 11365 OF 2010 Amarsinh Jotyajirao Jadhavrav ...Petitioner Versus Union of India and others ...Respondents ..... Shri. D.B. Thoke, Advocate for Petitioner. Shri. B.L. Sagar Killarikar, Advocate for Respondent No.1. Shri. N.V. Gaware, advocate for respondent No.3 Shri C.K. Shinde, advocate for respondent No.4 Shri P.R. Patil, advocate for respondent No.5. ..... CORAM: NARESH H. PATIL AND S.V. GANGAPURWALA, JJ. DATE : 14TH FEBRUARY, 2011. PER COURT : 1 Heard. 2 The petitioner participated in the tender process for auction of respondent No.4 Jagdamba Sahakari Sakhar Karkhana Limited. The auction proceedings were initiated by respondent No.3 under the wp11365.10 2 provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is the contentions of the learned counsel for the petitioner that earlier three writ petitions were filed bearing Nos. 5293 of 2010, 5255 of 2010 and 5171 of 2010 in respect of second tender notice. By order dated 6.7.2010, the Division Bench (Coram P.V. Hardas and N.D. Deshpande, JJ.) had dismissed those petitions. The Special Leave petition was preferred from the said judgment and order passed by the High Court on 6.7.2010. On 7.9.2010, the Apex Court in the case of Rashtriya S.K. Sange Vs. State of Maharashtra and others, passed following order;- “ Issue notice on the Special Leave Petition returnable in four weeks. Notice be effected on the respondents both by way of usual service and also by way of Dasti. The Respondents will be entitled to file their respective counter affidavits to the Special Leave Petition within three weeks. Rejoinder, if any, may be filed within a week thereafter. Since Mr. Shivaji M. Jadhav appears and submits that he has instructions to appear on behalf of the respondent nos. 2 & 3, service on the said respondents is dispensed with. In the meantime, the wp11365.10 3 Bank will be entitled to continue with the tender process for sale of the assets of the respondent No.4 and to sell the same. The sale proceeds realized therefor shall be kept by the Bank in a separate account, until further orders. This interim order is being passed having regard to the fact that there is an Award in favour of the petitioner granted by the Labour Court for the sum of Rs.4.90 Crores, which is also a charge on the property in question.” 3 It is submitted that there was third round of auction proceedings undertaken by the respondent bank. The petitioner alongwith others participated in the tender process. After the first round there was second round of negotiations held on 30.10.2010, which is referred to as the second round final meeting of the tenderers. The petitioner by written communication dated 30.10.2010, addressed to respondent No.3 bank offered bid for an amount of Rs.22.40 Crores. The petitioner filed an application before the Debt Recovery Tribunal, Aurangabad on 25.11.2010. By order dated 1.12.2010, the Presiding Officer, Debt Recovery Tribunal, rejected the urgent circulation sought by the petitioner in respect of hearing of the application. The wp11365.10 4 petitioner filed the present writ petition on 10.12.2010. The prayer clause D-1 came to be amended as per the leave granted by this Court on 15.12.2010. The prayer clauses read as under:- “A) This writ petition may kindly be allowed. B) Record and proceedings of this case be called for. C) By appropriate writ, order or direction the respondent No. 2 Presiding Officer Debts Recovery Tribunal, Aurangabad may kindly be directed to hear the Securitization Application of the applicant having lodging No.231 of 2010. D) During the pendency and final hearing all the parties may kindly be directed to maintain the status quo in respect of the assets pertaining to Shri Jagdamba Sahakari Sakhar Karkhana Ltd. Karjat, District Ahmednagar. D-1) By appropriate writ, order or directions, the petitioner may kindly be allowed to participate in the further process of wp11365.10 5 negotiations and also be permitted to tender his offer accordingly. E) Any other equitable relief to which the petitioner is entitled may kindly be granted.” 4 By an order dated 15.12.2010, the Division Bench of this Court (Coram: Gavai and Borde, JJ.) by way of ad-interim order directed that the respondent No.3 bank shall not finalize the auction and maintain the status quo as on that day. The respondent No.5 filed affidavit in reply. The Learned counsel Shri P.R. Patil submits that the petition is required to be dismissed on account of suppression of material facts from this Court. It is submitted by the counsel that the petitioner was aware of earlier Special Leave Petition filed before the Apex Court and the order passed therein. Reliance is placed on minutes of the meeting drawn on 19.10.2010, wherein the petitioner was present as one of the participants of the tender process. The counsel submits that in the second and final meeting, respondent No. 5 was found to be highest bidder and accordingly the tender of respondent No.5 was accepted. The authorized Officer of respondent No.3 Ahmednagar District Central Co-operative Bank Limited, wp11365.10 6 Ahmednagar certified the sale of movable and immovable property of Shri Jagdamba Sahakari Sakhar Karkhana Limited by drawing panchnama. The possession of the said factory was handed over in favour of respondent No.5 on 15.11.2010 at 1.00 p.m. 5 The learned counsel appearing for the Bank submits that the petitioner was aware of the proceedings of the tender process. He participated in the meeting. He must be aware of the completion of sale and handing over of possession of the factory and inspite of the same, the petitioner has suppressed these material facts from this court. The learned counsel appearing for respondent No.5 submits that due to the order of status quo, respondent No.5 could not take effective steps though the sale proceeds was complete in their favour and due to that they suffered loss to them for which the petitioner shall be held solely responsible. 6 The learned counsel for the petitioner submits that only plea with which he had approached this Court was to direct the Debt Recovery Tribunal to entertain his application. The petitioner was not aware of the completion of sale proceeds, issuance of sale certificate and handing over of the possession. wp11365.10 7 7 We have perused the material placed before us. The orders passed by the Apex Court, High Court and the ad-interim order passed by this Court in the present petition. We have considered the submissions of the learned counsel appearing for the contesting respondents. Prima facie, we are not convinced with the submissions of the learned counsel for the petitioner that the petitioner had no occasion to know that the sale of the factory was complete and possession was handed over. The petitioner ought to have taken abundant precaution before filing the petition in this Court invoking extra ordinary writ jurisdiction of this Court. The petitioner had not only prayed for directions to the Debt Recovery Tribunal but by amending the prayer clause had sought direction to allow him to participate in further process of negotiations and permit him to tender his form. We find that the sufficient material is placed before the Court to suggest that prior to filing of this petition i.e. on or before 10.12.2010, the sale certificate was issued by the respondent No.3 Bank in favour of respondent No.5 and the possession of the factory was also handed over. 8 From the material placed on record we find that, the petitioner had suppressed material facts from this Court. The petitioner failed to wp11365.10 8 disclose in the petition that he had participated in the negotiations after submission of tender. The respondents have brought these facts to the notice of the Court. 9 In the light of the documents placed on record and the submissions advanced by the learned counsel appearing for the respondents, we find that petition deserves to be dismissed with costs. Accordingly we dismiss this petition with costs quantified at Rs. 15,000/-. The cost amount of Rs.15,000/- shall be deposited by the petitioner within a period of two weeks from today with the High Court Bar Association Library, Bench at Aurangabad. 10 At this stage, the counsel for the petitioner prays that the observations made by this court in this order shall not affect the application filed by the petitioner before the Debt Recovery Tribunal. We do not find it necessary to make such observations. The prayer stands rejected. *****