Even though the amount has been released under the recovery certificate, the writ petition is not infructuous: High Court of Delhi.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 05th July 2021 LPA 292 2020 & C.M.25368 2020 SHRI SATYAWAN Through Ms.Meghna De Advocate. ..... Appellant SOUTH DELHI MUNICIPAL CORPORATION & ANR. ..... Respondents Through Mr.Arun Arun Birbal with Mr.Sanjay Singh Advocates for HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J.The appeal has been heard by way of video conferencing. Present appeal has been filed challenging the order dated 28th August 2020 in W.P.(C) No.7933 2014. Appellant also seeks dismissal of the said writ petition on the ground that the same is infructuous. Learned Counsel for the Appellant submits that the impugned order erroneously proceeds by treating the pendency of a restoration application as a stay of execution of the Recovery Certificate dated 16th September 2014. She submits that the learned Single Judge has wrongly held that the Recovery Certificate cannot be executed even though the writ petition quashing the same had been dismissed. She LPA 292 2020 states that the order embarks on a roving and fishing enquiry by seeking affidavits from the Appellant the SDM and State Bank of India in absence of any writ petition or stay order which is against the procedure established by law. Having heard learned counsel for the appellant this Court is of the view that the appeal in essence challenges the learned Single Judge’s order directing the appellant and Labour Commissioner to reply to certain factual queries as to how the amount under the Recovery Certificate was released. It is pertinent to mention that in the writ petition filed by the SDMC there was stay of the execution of the Recovery Certificate in favour of the appellant. However as the writ petition was dismissed in default the amount was released under the Recovery Certificate despite an application for restoration of the writ petition being pending before the learned Single Judge. Subsequently as the writ petition was restored the learned Single Judge vide the impugned order asked certain factual queries as to how the said amount was released. This Court is of the view that the learned Single Judge vide impugned order has not treated the pendency of the restoration application as stay of execution of the Recovery Certificate dated 16th September 2014. Further the learned Single Judge has not held that the Recovery Certificate cannot be executed even though the writ petition quashing the same had been dismissed. Also the impugned order does not embark on a roving and fishing enquiry. This Court is of the view that even though the amount has been released under the Recovery Certificate the writ petition is not LPA 292 2020 infructuous. In our view the learned Single Judge was entitled to raise the queries that she has done in paragraph 9 of the impugned order. Moreover the learned Single Judge has not arrived at any firm conclusion in the impugned order. Consequently the impugned order calls for no interference. Accordingly the present appeal along with pending application is dismissed. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J NAVIN CHAWLA J JULY 05 2021 LPA 292 2020 

Summary: A writ petition had been filed for a release of amount under recovery certificate, and in default, the writ petition gets dismissed, whereas the amount had been released under the Recovery Certificate despite an application for restoration of the writ petition was pending. Then, in such a case even if the amount has been released under the recovery certificate, still the writ petition won’t be infructuous. A divisional Judge bench comprising Hon’ble Justice Manmohan and justice Navin Chawla, in the matter of Shri Satyawan Vs. South Delhi Municipal Corporation and Anr. (LPA 292/2020), dealt with an issue where an appeal had been filed challenging the order passed in a writ petition. In the present case, the appellant had challenged the order passed in the writ petition and seeks dismissal of the said writ petition, stating the ground that such writ petition is infructuous. The counsel for the appellant submitted that the single judge who passed the order had wrongly held that where the writ petition regarding the recovery certificate has been quashed and dismissed, then such recovery suit can not be executed. The counsel also pointed that the impugned order treated the pendency of a restoration application as a stay of execution of the Recovery Certificate. Further, the counsel submitted that the single judge stated that “the order begins with a roving and fishing enquiry by seeking affidavits from the appellant, The SDM and the State Bank of India, in absence of any writ petition or stay order, which is against the procedure established by law”. After hearing the contentions, the court observed that that the single judge had not treated the pendency of the restoration application as a stay of execution of the Recovery Certificate as well as had also not held that the Recovery Certificate cannot be executed even though the writ petition quashing the same had been dismissed. Further, the court stated that the single judge was rightly entitled to raise questions on the release of the amount.  Further, the court held that- “even though the amount has been released under the Recovery Certificate, the writ petition is not infructuous”. Thereby the court dismissed the appeal along with the pending application.