The duty of a litigant to disclose all material facts and the bank's right to protect its recovery were the central legal points established in the judgment.

JUDGMENT :

Jaswant Singh, J.

The petitioner has preferred this writ petition to challenge the notice dated 07.10.2021 issued under Section 13(4) of the SARFAESI Act, 2002 (for short “the Act, 2002”) whereby symbolic possession of the mortgaged property was undertaken, prayed for to keep the E-auction scheduled on 28.10.2021 in abeyance and to further direct the Opposite Party/Bank to consider the OTS proposal of the petitioner.

2. The brief facts of the case are that the petitioner, i.e., Mr. Dipti Prasad Das availed a Cash Credit limit loan of Rs.5 crores from the Opposite Party/Bank on 28.06.2013 by mortgaging his immovable property located at Plot No.166/2027, 166/2031/2205, 163/567/2030, 166/656/2029, Khata No.157/297/A at Mouza Bhagababatipur, Chandaka to secure the loan. Due to financial indiscipline, the loan account was classified as NPA on 10.02.2016. Further, a demand notice under Section 13(2) of the Act, 2002 was issued on 18.02.2016 recalling outstanding amount of Rs.5,60,48,436.80 as on 31.01.2016. It is the claim of the petitioner that a notice under Section 13(4) of the Act, 2002 was initially issued on 12.10.2017 taking symbolic possession of the mortgaged property. The petitioner had also sent an OTS proposal to the Opposite Party/Bank on 29.12.2018 which was approved and the petitioner was asked to deposit Rs.4,03,10,401/- (Four Crores Three Lakhs Ten Thousand Four Hundred One Rupees) to settle the loan account. The said OTS Scheme also provided that the settled amount must be paid within 90 days of conveying the approval of OTS to the borrower (petitioner). Further if the whole payment is not made within 90 days, the borrower (petitioner) was required to pay interest at the rate 9.25% on reducing balance basis from the date of conveying approval till the date of final payment. The petitioner was only able to deposit Rs.40,50,000/- (Forty Lakhs Fifty Thousand Rupees) within the stipulated time. It is the claim of the petitioner that further proceedings only began on 07.10.2021 whereby the Opposite Party/Bank again issued a notice under Section 13(4) of the Act, 2002 demanding an outstanding amount of Rs.9,27,73,120.50 as 30.09.2021 and also fixing the auction date on 28.10.2021 with a reserve price of Rs.2,95,00,000/-.

3. The petitioner also claims that the Opposite Party/Bank has come up with a new OTS Scheme namely “SASTRA CIR NO 31”, dated 30.06.2021 and he is eligible under such Scheme.

4. During the course of hearing, the Opposite Party/Bank filed a detailed counter affidavit dated 15.11.2021 in reply to the writ petition filed by the petitioner. The said affidavit revealed certain startling facts. It provided that the petitioner has suppressed the fact of his approaching this Court vide writ petitions bearing W.P.(C) No.13569 of 2016, W.P.(C) No.14143 of 2016, W.P.(C) No.23310 of 2017 and W.P.(C) No.18622 of 2019 seeking a similar remedy with respect to the same property. Further, it is submitted vide the same affidavit dated 15.11.2021 that the petitioner has failed to comply with any of the orders or directions passed in the above writ petitions by this Hon’ble Court.

5. It is pertinent to refer to each of the writ petitions separately in order to decide the case.

(i) W.P.(C) No.14143 of 2016 and W.P.(C) No.13569 of 2016 were filed by the petitioner to challenge the earlier symbolic possession notice dated 26.07.2016 and the E-auction notice dated 09.08.2016 issued by the Opposite Party/Bank. The relevant order dated 22.06.2017 of this Court disposing of both the cases is produced below:

“Learned counsel for opp.party-Bank submits that inspite of paper publication of e-auction notice, because of the pendency of the writ petition, no offer has been received by the Bank. Therefore, auction of the petitioner’s mortgaged property could not be held on the date fixed. He also contends that no further action has yet been taken in the matter.

Considering the submissions and in view of the fact that the auction could