A writ petition had been filed for a release of amount under recovery certificate, and in default, the writ petition gets dismissed, whereas the amount had been released under the Recovery Certificate despite an application for restoration of the writ petition was pending. Then, in such a case even if the amount has been released under the recovery certificate, still the writ petition won’t be infructuous. A divisional Judge bench comprising Hon’ble Justice Manmohan and justice Navin Chawla, in the matter of Shri Satyawan Vs. South Delhi Municipal Corporation and Anr. (LPA 292/2020), dealt with an issue where an appeal had been filed challenging the order passed in a writ petition.
In the present case, the appellant had challenged the order passed in the writ petition and seeks dismissal of the said writ petition, stating the ground that such writ petition is infructuous. The counsel for the appellant submitted that the single judge who passed the order had wrongly held that where the writ petition regarding the recovery certificate has been quashed and dismissed, then such recovery suit can not be executed. The counsel also pointed that the impugned order treated the pendency of a restoration application as a stay of execution of the Recovery Certificate. Further, the counsel submitted that the single judge stated that “the order begins with a roving and fishing enquiry by seeking affidavits from the appellant, The SDM and the State Bank of India, in absence of any writ petition or stay order, which is against the procedure established by law”.
After hearing the contentions, the court observed that that the single judge had not treated the pendency of the restoration application as a stay of execution of the Recovery Certificate as well as had also not held that the Recovery Certificate cannot be executed even though the writ petition quashing the same had been dismissed. Further, the court stated that the single judge was rightly entitled to raise questions on the release of the amount.
Further, the court held that- “even though the amount has been released under the Recovery Certificate, the writ petition is not infructuous”. Thereby the court dismissed the appeal along with the pending application.