Court No. - 34
Case :- WRIT - C No. - 6369 of 2019 Petitioner :- Onkar Tiwari @ Omkar Tiwari Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Baijant Kumar Mishra Counsel for Respondent :- C.S.C.,Ashish Agrawal
Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Baijant Kumar Mishra, Advocate, for petitioner and Sri Ashish Agarwal, Advocate, for respondent-Bank.
2. Petitioner is admittedly a defaulter and that too indulgence was granted by this Court when petitioner earlier approached this Court in Writ Petition No. 9391 of 2018 decided on 14.03.2018 wherein on undertaking given by petitioner, following order was passed with the consent of parties:
“Heard learned counsel for the petitioner, Sri Ashish Agrawal, who has accepted notice on behalf of respondents-bank no. 2 and 3 and learned Standing Counsel for the State respondent.
Petitioner availed the cash credit facility to the tune of Rs.23,75,000/ from the respondent-bank. Admittedly, there was a default in repayment of the loan amount. Thereafter the respondent-bank initiated proceedings under the SARFAESI Act, 2002 for recovery of outstanding dues, which is under challenge in this petition.
Learned counsel for the petitioner states that on account of stringent financial situation petitioner could not maintain the payment schedule and now he is willing and ready to deposit the entire outstanding dues if he is permitted to do so in four equal instalments. Sri Ashish Agrawal, learned counsel appearing for the respondents-bank has no objection to the aforesaid facts.
After considering the submission and perusing the records, the writ petition is disposed of with the direction that further recovery proceeding against the petitioner shall be kept in abeyance with liberty to the petitioner to deposit the demanded amount in four equal instalments. The first instalment shall be paid by 30th April, 2018, second instalment by 31st August, 2018, third instalment by 31st December, 2018 and the last instalment by 30th April, 2019. After deposit of third instalment, the bank shall issue a calculation chart showing the outstanding interest which the petitioner shall be under liability to pay till the date of depositing last instalment and the same shall be deposited by the petitioner along with last instalment.
Any amount deposited by the petitioner after issuance of the demand notice shall be adjusted.
It is made clear that in case of default in payment of any of the instalment as directed aforesaid, this order shall stand automatically vacated and the respondents will be at liberty to realize the entire amount in accordance with law.”
3. Admittedly, time schedule permitted by Court for payment of outstanding dues of the Bank has not been adhered to and petitioner has committed default. When he sought further indulgence from Bank, Bank has rejected the same by order dated 01.02.2019.
4. Admittedly, petitioner's solemn undertaking given to this Court has not been observed and adhered to, therefore, such a person who has not come to this Court with clean hands and has already breached the undertaking given to this Court, in our view, is not entitled for any further indulgence under Article 226.
5. Moreover, in fact this writ petition is nothing but a second writ petition in respect to recovery of same loan and therefore it also amounts to gross abuse of process of law.
6. The writ petition therefore deserves to be dismissed with cost.
7. Dismissed with cost of Rs. 5,000/-.
Order Date :- 26.2.2019 PS