HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP (C) No. 2155/2025 CM No. 5701/2025 Reserved On:11th of September, 2025. Pronounced On: 24th of September, 2025. Gulzar Ahmad Dar, Age: 46 Years S/O Gh. Mohd. Dar R/O Chilipora, Shopian. … Petitioner(s) Through: - Mr Tariq M. Shah, Advocate. V/s Jammu and Kashmir Bank Ltd., Through its Authorized Officer, Asaf Rasool Kinu, Assistant General Manager, Presently posted as Cluster Head District Shopian. … Respondent(s) Through: - Mr Shafqat Nazir, Advocate. CORAM: Hon’ble Ms Justice Sindhu Sharma, Judge Hon’ble Mr Justice Shahzad Azeem, Judge (JUDGMENT) Shahzad Azeem-J: 01. The Petitioner has invoked the extraordinary Writ jurisdiction of this Court under Article 226 of the Constitution of India, questioning the legality of Order dated August 12, 2024 passed by the learned Chief Judicial Magistrate, Shopian [CJM, Shopian] in terms of Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [“the SARFAESI Act”]. 02. For the present, the relevant facts lie in a short compass. WP (C) No. 2155/2025 CM No. 5701/2025 03. The Petitioner said to have availed the total Cash Credit Facility (CCF) of Rs. 27.88 lacs against the securities in the shape of hypothecation of stock and collateral security of registered mortgage in the shape of land measuring 02 Kanals and 09 Marlas along with double storied residential house constructed on land measuring 01 Kanal and 18 Marlas falling under Khasra No. 162/44, Khata No. 42 and Khewat No. 13, and another 11 Marlas of land falling under Khasra No. 168/109, Khata No. 45 and Khewat No. 13 situated at Village Chilipora Shopian standing in the name of the Petitioner herein, namely, Gulzar Ahmad Dar S/O Ghulam Mohammad Dar R/O Chilipora, Shopian. 04. Since, the Petitioner failed to maintain his loan accounts, therefore, same were declared as Non-Performing Assets (NPAs) on October 19, 2022, with the total outstanding balance of Rs.28.94 lacs, as a consequence thereof, the Respondent-Bank initiated process for enforcement of its security interest under the provisions of the SARFAESI Act by issuance of demand notice dated February 27, 2023 under Section 13 (2), followed by possession notice dated June 17, 2023 under Section 13 (4) of the SARFAESI Act, respectively. 05. According to the Petitioner, this action of the Respondent- Bank came to be assailed by way of Writ Petition bearing WP (C) No. 1804/2024 and, vide Order dated August 12, 2024, the Court directed that upon payment of 50% outstanding dues to be deposited with the Respondent-Bank within a period of two weeks, no coercive proceedings shall be initiated against the Petitioner. The Respondent-Bank also filed Objections. 06. The grievance of the Petitioner is that the CJM, Shopian has passed the Order dated August 12, 2024 under Section 14 of the SARFAESI Act, without observing the mandatory requirement of Section 14 (1) and proviso thereto of the SARFAESI Act and also the action of the Respondent-Bank is challenged, inter alia, on the ground that the same is in WP (C) No. 2155/2025 CM No. 5701/2025 violation of Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 [“the Rules of 2002”]. 07. The Petitioner has also contended that the secured creditor did not file the mandatory affidavit containing the particulars, as required under the provisions of the SARFAESI, Act, therefore, the Order under challenge is bad in law and, thus is liable to be set aside. 08. According to the Petitioner, the Respondent-Bank also did not consider his representation/ objections filed under Section 13 (3-A) of the SARFAESI Act, therefore, the action of the Bank, in seeking assistance of the Court as well as the initiation of the action against the secured assets in terms of the SARFAESI Act, is bad in law. 09. Be it noted that when, on September 02, 2025, the matter came up before the Court, Mr Shafqat Nazir, learned Counsel for the Respondent- Bank, raised a preliminary objection, as to the maintainability of this Petition, on the ground that the Petitioner has already filed a Writ Petition bearing WP (C) No. 1804/2024 on the same cause of action, which is pending adjudication. Accordingly, the record of Writ Petition-WP (C) No. 1804/2024 was called and also record of the Bank was summoned. 10. In the backdrop of preliminary objection as to the maintainability of the Writ Petition, the matter was heard at the threshold. 11. Heard and considered. Perused the record. 12. Indisputably, as on date, two Writ Petitions are pending adjudication before this Court, viz.; WP (C) No. 1804/2024 and WP (C) No. 2155/2025, respectively, between the same parties and in respect of same secured assets. 13. On perusal of the record of WP (C) No. 1804/2024, it transpires that the Petitioner has questioned the demand notice dated February 27, 2023 issued under Section 13 (2) and possession notice dated WP (C) No. 2155/2025 CM No. 5701/2025 June 17, 2023 issued under Section 13 (4) of the SARFAESI Act, respectively. 14. However, it is noteworthy that the Petitioner, inter alia, has also sought a ‘Writ of Mandamus’, seeking direction to the Respondent- Bank not to conduct auction of the mortgaged property in accordance with the notice of possession dated June 17, 2023. This prayer of the Petitioner assumes importance, rather, forms the fulcrum of whole of the controversy for the reason shortly enumerated hereinafter. 15. The Respondent-Bank had filed Objections to WP (C) No. 1804/2024, wherein they had, inter alia, taken a specific ground that the proceedings under Section 14 of the SARFAESI Act have been initiated against the Petitioner in respect of the secured assets and, in this regard, Order dated August 12, 2024 came to be passed by the CJM, Shopian. It has been further specifically averred in the Objections that the Petitioner, despite being in knowledge of the said Order, consciously did not challenge the same. 16. In the Objections, it is also specifically stated that the Petitioner has filed a representation dated March 24, 2023 in response to notice issued under Section 13 (2) of the SARFAESI Act, which was duly replied in terms of reply bearing reference No. JKB/1APM/Pul/2023 dated March 31, 2023, copy whereof is also attached with the Writ Petition. Perusal of the reply dated March 31, 2023, in response to the representation of the Petitioner, reveals that same has been duly communicated to the Petitioner in terms of the postal receipts attached therewith, but this fact is concealed by the Petitioner. 17. The impugned Order herein dated August 12, 2024 came to be passed by the learned CJM, Shopian and same was relied upon by the Respondent-Bank in its Objections to WP (C) No. 1804/2024, way back in WP (C) No. 2155/2025 CM No. 5701/2025 2024, but the Petitioner did not choose to assail the same, for reasons best known to him. 18. Further ground of challenge to the impugned Order dated August 12, 2024 is that the secured creditor did not comply with the statutory requirement of Section 14 (1) of the SARFAESI Act and also did not file the mandatory affidavit, besides raised the issue of non-compliance of Rules 8 and 9 of the Rules of 2002. 19. Although, the Petitioner did not give the details of the alleged contraventions of the statutory provisions, but raised wholesale assertions, nonetheless, in view of having the advantage of navigated through the relevant record, we took upon ourselves to find out as to whether or not the Respondent-Bank complied with the statutory requirements. 20. The perusal of record reveals that the application moved by the Respondent-Bank under Section 14 of the SARFAESI Act before the CJM, Shopian is duly accompanied by the affidavit filed by Asaf Rasool Kenu, Assistant General Manager, posted as Cluster Head, Shopian, Authorized Officer under the SARFAESI Act. The Authorized Officer has given the minute details of the loan amount as well as the failure of the borrower to repay the loan amount and resultant initiation of action by the secured creditor under the provisions of the SARFAESI Act. It is, thus only after drawing satisfaction, the CJM, Shopian passed the impugned Order, so as to assist the secured creditor in taking over possession of secured assets. 21. Perusal of record further makes it conspicuous that the secured creditor in the notice dated June 17, 2023 specifically drew the attention of the borrower to the provision of sub-section (8) of Section 13 of the SARFAESI Act and same is got published in the daily newspapers; “Daily Aftab” “Rising Kashmir” and “Kashmir Uzma”, respectively. 22. The Bank record also contains the valuation of the secured assets, which was assessed by the approved valuer of the Bank. WP (C) No. 2155/2025 CM No. 5701/2025 23. Most surprisingly, we had also come across the summons issued in case No. OA/1503/2024, which appears to have been filed by the Respondent-Bank before the DRT against the Petitioner herein as a proprietor in respect of same secured assets, but the Petitioner, despite having knowledge of the pendency of the proceedings before the DRT, not only invoked the Writ jurisdiction of this Court, but, also did not disclose this fact. 24. Now, coming to the Writ Petition on hand, there is no denial to the fact that on the same cause of action, the Petitioner has filed Writ Petition WP (C) No. 1804/2024, in which not only notices under Sections 13 (2) and 13 (4) of the SARFAESI Act, respectively, came to be challenged, but a specific prayer is also made that the Respondents be directed not to conduct the auction of the mortgaged property in accordance with the notice of possession dated June 17, 2023. 25. It was on the basis of these pleadings, the Court has shown indulgence and, by way of interim relief, vide Order dated August 12, 2024, subject to payment of 50% of the outstanding dues, the Bank was directed not to take any coercive action against the Petitioner. 26. It has been specifically recorded thereafter in the Order dated August 18, 2025 that the Petitioner did not comply with the Order dated August 12, 2024. At the same time, the Petitioner also did not disclose in the instant Writ Petition as to whether he complied with the Order dated August 12, 2024 passed in WP (C) No. 1804/2024, although, the fact remains that he did not deposit the 50% of the outstanding amount. 27. It is settled law that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary in nature and it is imperative that the Petitioner approaching the Writ Court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. If the WP (C) No. 2155/2025 CM No. 5701/2025 Petitioner withholds some vital or relevant material in order to gain advantage over the other side, then he would be guilty of playing fraud with the Court as well as with the opposite parties which cannot be countenanced. In this regard, a reference can be made to the Judgment of the Hon'ble Supreme Court passed in case titled “K. Jayaram Vs. Bangalore Development Authority & Ors., (2022) 12 SCC 815”. 28. In “K. D. Sharma Vs. Steel Authority of India Ltd. & Ors., (2008) 12 SCC 481”, the Hon’ble Supreme Court has held as under: “36. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating ‘We will not listen to your application because of what you have done’. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it”. 29. Again, the Hon'ble Supreme Court in “Udyami Evam Khadi Gramodyog Welfare Sanstha Vs. State of UP, (2008) 1 SCC 560”, has reiterated that “a writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law”. 30. There is no reference in the instant Petition whether the Petitioner has complied with the Order dated August 12, 2024 passed in WP (C) No. 1804/2024, whereby the Respondent-Bank was directed not to take coercive action, subject to depositing of 50% of the outstanding amount, however, after availing the interim relief of protection, the Petitioner has not only shown the non-compliance, but, again had mustered the courage to invoke the extraordinary Writ jurisdiction of the Court, which is not only equitable jurisdiction, but is discretionary in nature. WP (C) No. 2155/2025 CM No. 5701/2025 31. Therefore, ex-facie, this circuitous route appears to have been adopted to avoid the condition of pre-deposit, therefore, the Petitioner’s conduct being reprehensible on account of concealment, distortion and withholding of vital facts, thus, the Petitioner has engaged in fraud upon the Court. 32. It is of utmost importance that, while invoking the discretionary jurisdiction of this Court, the Petitioner is duty bound to take all the care and to ensure to not make any statement which is inaccurate, untrue or misleading. In exercising the equitable jurisdiction, the Court, of course, takes statements of fact and grounds of fact contained in the memo of petition at their face value and it would be unfair to betray the confidence of the Court by making a statement which is untrue and misleading. 33. To conclude, in view of the facts borne out of the record, there remains no iota of doubt that the Petitioner has invoked the extraordinary and equitable jurisdiction of this Court by concealment, mis-representation and distortion of facts and, thus the Petitioner has cheeks to invoke the discretionary jurisdiction of the Court during the pendency of first Writ Petition and without complying with the interim Order passed in WP (C) No. 1804/2024, as such, it amounts to playing the fraud on the Court as well as abuse of the process of Court, therefore, the Petitioner is not entitled to the extraordinary, equitable and discretionary relief. 34. Having regard to the above discussion, we are of the considered opinion that the Petition is marred by concealment and distortion of facts, inasmuch as the Petitioner did not approach the Court with clean hands. Accordingly, the present Petition is dismissed with costs of Rs. 50,000/- (rupees fifty thousand only) to be deposited by the Petitioner before the Registry in the Litigants Welfare Fund within a period of four weeks from today, for which purpose, the Registry shall maintain an index and, in case the costs are not deposited by the Petitioner within the WP (C) No. 2155/2025 CM No. 5701/2025 stipulated period of time, the Registry shall place the said index before the Court for further orders. 35. Interim direction(s), if any subsisting as on date, shall stand vacated. 36. Record of WP (C) No. 1804/2024 be detached, while as, the record produced by the Respondents shall be returned to them through their Counsel, with due dispatch. (Shahzad Azeem) (Sindhu Sharma) Judge Judge SRINAGAR September 24th, 2025 “TAHIR” i. Whether the Judgment is approved for reporting? YES. Tahir Manzoor Bhat I attest to the accuracy and authenticity of this document