You may refer link below https://drive.google.com/open?id=1T7y4TwEX-FXuPXpcBxWz4zUh8yldK8rYKBPv7CbeoWw I have wrote it fast but all information is accurate to my knowledge and/or understanding. Please go through it and give us your precious legal opinion. We have probably not found a competent enough lawyer for us hence we may communicate someone from you all here to take our case. So please respond and guide us properly,
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HC has passed order keeping options open and directed bank to file fresh affidavit before magistrate
2) HC has not rejected your contentions
3) wait for filing of affidavit by bank
4) then you can file reply opposing demand for bank to take physical possession
5) wait for magistrate to pass order
Since only a interim order is only passed and they are permitted to file fresh affidavit, you can argue out the matter in the next hearing and an further affidavit of reply can be file answering that specific point relating to bank blaming you on giving the DRT affidavit copy to DM so in case the council argues the matter on merits and the writ is disposed of then the high court can vacate the earlier interim order.
So its better to argue the Writ on merit and let HC pass order and decide it finally. the issue that bank is misleading can be brought before the high court the high may vacate the interim stay order.
Thanks a lot for your precious opinion. It is the final HC order I feel. I have updated the question with required information. Please go through it again. Please guide us on our option.1) What can we do about Bank lying at court 2) IF magistrate finds Banks copy of DRT affidavit sufficient for decision then SARFAESI sec 14 (3) says " No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority". In view of this what can we do to keep the magistrates decision intact from high court's decision of setting it aside.3)Bank is trying to take benefit of its own wrong doing here of not submitting the clear 9 point affidavit in 187 days it had. Bank should not be benefited from their own wrong doing. Please guide and extremely sorry for my late update upon this...
If bank has suppressed material facts it is not entitled to any reliefs
2) you can file appeal against HC order before SC order
3) it is well settled law that person who has not come to court with clean hands is not entitled to any reliefs
If you are unsatisfied by the high court’s decision, a further appeal can be made to the Supreme Court of India. The guidelines for these appeal processes are provided by the Articles 132 to 136.
Article 136 of the Indian Constitution, allows the Supreme Court to grant special leave to appeal against any judgment or order in any matter or case, made by any court or tribunal in the country. The Supreme Court is vested with the absolute power of interpretation of the constitution being the ultimate guardian of it.
if the high court has disposed off the writ then the order should be challenged and further the wrong doing of the bank should be brought on record. Further the order need to be perused specifically on what ground there petition is allowed to challenge it on merits. Further if they are only given opportunity to present fresh affidavit before the DM so you are at liberty to object there claim under fresh affidavit and can persuade the DM to reject there fresh application for physical possession as the NPA was not done in accordance with RBI guidelines and the bank has not followed proper procedure.
See you can challenge the order of HC further you are at liberty to contest bank section 14 application for physical possession.
Article 136 of the Indian Constitution reads as follows:
136.Special leave to appeal by the Supreme Court.—(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
The principle governing the exercise of power by the Supreme Court under article 136 has been summed up by the Court itself in Ganga Kumar v. State of Bihar, AIR 2005 SC 3123: (2005) 6 SCC 211: JT 2005 (6) SC 356 as follows:
(i) The powers of the Supreme Court under article 136 of the Constitution are very wide but in criminal appeals the Supreme Court does not interfere with the concurrent findings of the fact save in exceptional circumstances.
(ii) It is open to the Supreme Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly.
(iii) It is open to the Supreme Court to invoke the power under article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
(v) The appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.
Therefore, your case is a fit case for filing a SLP in supreme court as material concealment of facts amounts to fraud being played on the court and such matters are not taken lightly by Higher Court. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief, which in the present case is a material fact and caused grave miscarriage of justice to you, therefore, going to Supreme Court will be beneficial for your interests.
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1. Is it possible to give the writ petition number?
2. I would like to read the entire order
3. You have only informed about operative part of the order
4. High court has kept all contentions of parties open. So its not that you are left remediless
The said facts which were supressed and the court was misled should be brought before the HC court in order to setside the order. You can try to file a review Petition with all the said facts on record which you state the it has been misled by bank. If not then Appellate Court is remedy
