The borrowers are before this court for laying a

challenge to the coercive loan recovery proceedings

instituted under the provisions of SARFAESI Act, 2002.

They were granted reprieve vide interim order dated

26.07.2023 which reads as under:

“Counsel for the petitioners submits

that his clients would pay 50% of the amount

outstanding namely Rs.64,00,000/- [i.e.,

Rs.32,00,000] within one week and on such

payment being made, the possession of the

property should be restored to his client. He

also undertakes to come out with the plan of

repayment of the remainder.

Call this matter on 4.8.2023 for further

hearing. If payment is not made, Writ

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Petition would be dismissed on that ground

itself”.

2.

Thereafter extension was granted vide order

dated 04.08.2023 which reads as under:

“This Court vide order dated 26.07.2023 has

said as under:

“Counsel for the petitioners submits that

his clients would pay 50% of the amount

outstanding

namely

Rs.64,00,000/-

[i.e.,

Rs.32,00,000] within one week and on such

payment being made, the possession of the

property should be restored to his client. He

also undertakes to come out with the plan of

repayment of the remainder.

Call this matter on 4.8.2023 for further

hearing. If payment is not made, Writ Petition

would be dismissed on that ground itself”.

Counsel

for

the

respondent-bank

complains that the condition subject to which

reprieve was granted has not been complied

with by making payment of the stipulated

amount

and

therefore

writ

petition

be

dismissed Consistently with a catena of

decisions of Apex Court. He has also produced

a copy of judgment dated 05.01.2023 passed

by a Co-ordinate Bench of this Court in

petitioner’s W.P.No.15613/2022 in respect of

very same loan. The Court has to have say of

the counsel for the petitioner who is absent.

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Call this matter on 11.08.2023 to enable the

counsel for petitioner to come and make

submission. Interim order granted earlier is

extended till next date of hearing”.

3. Learned Panel Counsel appearing for the bank

submits that the petitioners were before this Court last

year in W.P.No.15631/2022 for a similar relief and a Co-

ordinate Bench of this Court vide judgment dated

05.01.2023 had granted a period of five months for

making payment of outstanding amount. Paragraph 9 of

the judgment reads as under:

“9. In the aforesaid facts and circumstances,

I deem it appropriate to dispose the petition

with a direction to the petitioners to deposit

the entire amount as is offered by him,

within five months from the date of receipt of

copy of this order, failing which, it would be

open to the respondent-Bank to initiate

proceedings in accordance with law”.

4. Learned Panel Counsel vehemently complains

that the petitioners have not paid any amount despite the

judgment of last year in the above writ petition and also in

spite of two interim orders passed in this petition and

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therefore, he contends that they do not deserve any

leniency at the hands of this court. At this stage, counsel

for the petitioners have moved a memo seeking leave to

withdraw the petition arguing that his clients have already

applied for OTS benefit. The memo reads as under:

“Now the Respondent Bank agreed for OTS

proposal. Hence, the Petitioner withdraw this

Writ Petition.

Therefore prays that the above writ petition

may be disposed as not press.”

6. Ordinarily, this court would not deny leave to

withdraw petitions of the kind since that right is essentially

of the dominant litis in the light of SHEELA BARSE vs.

UNION OF INDIA, (1988) 4 SCC 226. However that is not

the Thumb Rule. Where the conduct of the litigant is

culpable, leave to withdraw is not accorded. The above

narrative shows that petitioners’ conduct is blameworthy

qua the Respondent-bank. Therefore this request for

withdrawal of the petition is rejected and petition being

thoroughly devoid of merits, is dismissed with a cost of

Rs.5,000/-