Gita Mittal, J.@mdashThis petition was filed under the provisions of Section 11(5) of the Arbitration & Conciliation Act, 1996 for appointment of an arbitrator. In the petition, in para 7 of the petition, the petitioner has stated thus:
(X) That as per Item No. (18) of the Schedule to the loan agreement (Annexure "A-2") the place of arbitration is New Delhi. The notice of demand as well as the notice nominating the Sole Arbitrator were issued from Delhi. Therefore, this Hon''ble Court has territorial jurisdiction to entertain this application.
Along with the petition, a photocopy of the agreement has been filed by the plaintiff which is supported by a schedule purportedly signed by both parties to the present petition.
2. It is to be noted that this petition was originally filed before the Additional District Judge, Delhi where it remained pending from 23rd September, 2005 till 7th December, 2005. By an order made by the learned Additional District Judge on 7th December, 2005, having regard to the Constitutional Bench pronouncement of the Apex Court in
3. The respondents have filed a reply before this Court opposing the application. It has been pointed out that prior to the invocation of the jurisdiction of this Court at Delhi, the petitioner had filed an Arbitration Petition No. 529/2004 before the High Court of Judicature at Bombay u/s 9 of the Arbitration and Conciliation Act, 1996 in respect of the disputes and differences which are the subject matter of the present case. In this petition also reliance was placed on the agreement dated 2nd January, 2003 and the arbitration clause which is relied upon by the petitioner before this court. It is pointed out by the respondent that the petitioner concealed the factum of the filing of the petition at Mumbai which was a relevant and material fact in the proceedings before this court. Additionally, the respondent has pointed out that the petitioner has committed fraud and forgery and has made insertions in the agreement dated 2nd January, 2003. It is pointed out that the petitioner had placed reliance on a copy of the agreement dated 2nd January, 2003 wherein several columns including column 18 in the schedule were blank. Thus, there was no place for arbitration agreed upon or fixed in the agreement dated 2nd January, 2003 which had been actually entered into between the parties. For this reason because the agreement dated 2nd January, 2003 was signed and executed between the parties at Mumbai, the petitioner had invoked the jurisdiction of the High Court at Mumbai by way of the petition u/s 9 of the Arbitration and Conciliation Act, 1996 in 2004 at Mumbai.
4. The respondents has taken a strong objection to the conduct of the petitioner inasmuch as before this court, the very agreement which was relied upon and filed before this Court contains interpolations. So far as the place of arbitration is concerned, it is pointed out that the petitioner has inserted "New Delhi" in column 18 in the copy of the agreement which has been placed before this Court and has been relied on in the present proceedings.
5. Learned Counsel for the petitioner today makes an oral request that in view of the objections taken by the respondent with regard to the territorial jurisdiction of this Court and having regard to the fact that the agreement was actually made and executed at Mumbai, he has instructions to withdraw the present petition with liberty to take appropriate action in respect to the cause of action and subject matter thereof. This request is vehemently opposed by the respondents. It is contended that the prayer is malafide and legally impermissible and deserves to be rejected.
6. Having heard learned Counsel for the parties, the oral request to withdraw the petitioner with leave to file appropriate proceedings on the same subject matter has to be tested on the basis of the applicable law and the record of the present case.
7. There are two aspects to the present matter. One is the act of interpolations in the agreement dated 2nd January, 2003 which has been relied upon by the petitioner. The second aspect relates to the failure to mention the particulars of the arbitration petition No. 529/2004 which was filed by this very petitioner in the High Court of Judicature at Mumbai.
So far as the second aspect is concerned, it cannot be contended that the same is not a material fact. The very fact of the petitioner in having invoked the jurisdiction of the High Court of Judicature at Mumbai, would have put the courts at Delhi to notice with regard to the lack of territorial jurisdiction of the Courts at Delhi. Not only was the petitioner required to give the full particulars and details thereof, but the petitioner was also required to place the facts relating to the proceeding and the result thereof before this court.
8. A stand has been taken in the rejoinder filed by the petitioner which is dated 2nd June, 2006 to the effect that this petition No. 529/2004 was withdrawn with liberty to file a fresh one and that the withdrawal of the petition does not have a bearing on the maintainability of the present petition.
9. I am afraid this is not so. The concealment by the petitioner in the facts which have come to light now is deliberate and is intended to prevent the courts at Delhi from gaining knowledge with regard to the jurisdictional bar has stipulated u/s 20 of the Code of Civil Procedure.
10. It is also evident that the petitioner has indulged in judicial adventurism. It has failed to get any relief before the High Court at Mumbai. For this reason, the petition was withdrawn from that court and the present petition has been filed seeking another relief and remedy. Such concealment of material facts and judicial adventurism has been repeatedly deprecated by the Apex Court. In this behalf, useful reference can be made to the observations of the Apex Court on such conduct of parties. In
11. By the manner in which first respondent was filing repeated applications and procuring orders from a learned Single Judge of the High Court instead of filing as many appeals to the Division Bench, the State of Bihar filed an application for committing the respondents for contempt of court alleging that by their conduct, the respondents were obstructing the administration of justice and interfering with the due process of judicial proceedings in the Patna High Court. This application was found by the High Court of Patna to be beyond limitation and consequently was not considered. In the appeal before the Apex Court, the court held thus:
7. xxx But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage". Per Frank Furter, J. in Offutt v. U.S. (1954) 348 US 11.
"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope". Per Judge, Curtis-Raleigh quoted in Jennison v. Baker (1972) 1 All ER 997
8. In Halsbury''s Laws of England, (4th Edn., Vol. 9, Paragraph 38), there is a brief discussion of when abuse of the process of the Court may be a punishable contempt. It is said:
38. Abuse of process in general. The Court has power to punish as contempt any misuse of the court''s process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court''s officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt.
Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt.
12. The court held that the filing of the application by the respondent was an abuse of the process of court calculated to obstruct the due course of judicial proceedings and administration of justice and was Therefore criminal contempt of court.
13. Similar conduct on the part of Skipper Construction Company arose for consideration before the Apex Court in JT 1995 2 SC 391 Delhi Development Authority v. Skipper Construction and Anr. In this case, a writ petition filed by the Skipper Construction Company Private Limited being CPW No. 2371/1989 was decided by a judgment of the Delhi High Court on 14th January, 1991. The SLP assailing the same being SLPC No. 186/1991 was dismissed by the Supreme Court on 25th January, 1993 thereby confirming the judgment of the Delhi High Court. The Skipper Construction Company Private Limited after the dismissal of the SLP thereafter filed a suit being suit No. 770/1993 practically for the same relief which form the subject matter of the earlier writ petition CWP No. 2371/1989. The Apex Court was called upon to consider the conduct of this company. In its judgment reported at
51. Yet, the prayers, above stated, are made in the suit. The only semblance of defense that is put forth is the suit came to be filed armed with the legal advice. WE are afraid such a plea is worthless. As stated above, in the case of a criminal contempt, the intention or motive is irrelevant. Therefore, even assuming bona fide the contemners thought they could file the suit because it was "legally opined" that the writ was not a substitute, the so-called bona fides are totally irrelevant.
52. The filing of the suit No. 770 of 1993 is nothing but a willful action on the part of the contemners to underline the dignity of this Court and the majesty of law. The conduct of the contemners tends to bring the authority and administration of law into disrespect or even disregard. It equally tends to interfere with or prejudice the litigants during the litigation. Abuse of the process of court calculated to hamper the due course of judicial proceeding or the orderly administration of justice is a contempt of court. In
while we are conscious that every abuse of the process of court may not necessarily amount to contempt to court, abuse of the process of the court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of court. It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of Order 6, Rule 16 or in some other manner. But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and effects the interest of the public in the administration of justice.
55. Thus, we are clearly of the opinion that the contemners are guilty of criminal contempt as defined u/s 2(c) of the Act.
67. Before parting with this case, we may add:
Judiciary is the bed rock and handmaid of orderly life and civilised society. If the people would lose faith in justice imparted by the highest court of the land, woe to be to orderly life. The fragment of civilised society would get broken up and crumble down.
14. A Division Bench of this Court in
11. xxx In the application for ad-interim injunction filed Along with the said suit the respondent after making a grievance about the appellant having permitted use of the lawn to the outsiders for marriages and other functions which resulted in obstructions to the free and unrestricted access and approach to the cottage, did not mention anything about the Court having not granted any stay in favor of the respondent.
14. Was it not obligatory on the part of the respondent to disclose to the Court that in an earlier suit filed by it, the Court had not granted any stay in its favor and if on such a disclosure having been made the Court still granted stay in favor of the respondent it could be said that the respondent had not concealed any material fact from the Court? But not mentioning anything about the Court having not granted any stay in similar circumstances in favor of the respondent in the earlier suit, it appears to us that the respondent had not only concealed material facts from the Court but had also tried to over-reach the Court. Being unsuccessful in obtaining stay in Suit No. 3064/96, it was not permissible to the respondent to file the subsequent suit and seek the same relief which had not been granted to it in the earlier suit.
16. In our opinion, it was obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing before it, may be Hon''ble the Single Judge was persuaded not to grant any ex parte stay in favor of the respondent. Moreover, in a suit for specific performance of an agreement to register the agreement of lease, it appears to us that the plaintiff could not claim an injunction which had already been claimed in Suit No. 3064/96. We are, Therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over reaching the Court.
21. We are of the view that an attempt has been made by the respondent to over-reach the Court and the respondents have played fraud upon the Court as well as upon the opposite party and is thus clearly guilty of contempt. Respondents cannot be heard in the case unless it purges itself of the contempt so committed and in our view it can only be if we non-suit the respondents in Suit No. 261/97. While, Therefore, we do not propose to take action against the respondent for contempt except to issue a warning to respondent No. 2 to be more careful in future, we direct the dismissal of the suit (being Suit No. 261/97) itself. While, Therefore, allowing this appeal, we dismiss Suit No. 261/97 and dispose of the contempt petition in the above terms.
15. Before this court, the intention of the petitioner in his act of concealment of the material fact of having invoked the jurisdiction of the courts at Mumbai and also effecting interpolations and thereby forgery in the agreement dated 2nd January, 2003 is to harass and oppress the respondent against whom it had set up a monetary claim into defending a litigation in a court which had no jurisdiction. A fraudulent claim has been made before the courts at Delhi that the courts at Delhi had jurisdiction and Therefore the prayer seeking reference of the dispute is a completely false and vexatious claim.
16. The Apex Court upon receipt of such a claim has repeatedly laid down the stringent parameters which are to be followed by the courts while considering such petitions. In
5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif''s Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, Order VII Rule 11, C.P.C. Taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X. C.P.C. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.
It is dangerous to be too good.
6. The trial Court in this case will remind itself of Section 35A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.
7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. the Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation in to easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shir Ramasesh for his young can dour and correct advocacy.
17. It is also necessary to notice the observations of the Apex Court while considering another act of fraudulent concealment of the material facts and filing of fraudulent litigation. In the pronouncement reported at
12. The appellant had admittedly knowledge of the eviction petition filed by respondent No. 1 against his brother respondent No. 1 (sic). On the facts of the case, it was over simplification for the first appellate court to observe that what transpired between the appellant and his brother was of no consequence in so far as the appellant is concerned. It is evident that the appellant was set-up by his brother after having lost in the eviction petition up to High Court and the suit was filed in the year 1976 during the pendency of the execution proceedings of the eviction order. We fail to understand what appellant was doing from 1968 up to 1976. The net result of all this has been that despite lapse of nearly 30 years since filing of the eviction petition, respondent No. 1 was unable to recover the possession and that is despite the respondent No. 1 having succeeded up to High Court in the eviction case nearly a quarter century ago. For the aforesaid reasons we dismiss the appeal with costs.
13. It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious notices of and curbed by passing appropriate orders and issuing necessary directions including imposition of exemplary costs. As noticed, despite eviction order having become final nearly a quarter century ago, respondent No. 1 still could not enjoy the benefit of the said order and get possession because of the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs payable by the appellant to respondent No. 1 at Rs. 25,000/-
It had thus been mandated that it is the duty of the court to nip such litigation and practice in the bud and to ensure that the stream of justice is kept clear and unpolluted.
18. So far as the forging of documents so as to gain any kind of advantage is concerned, the Apex Court has deprecated such conduct in the most stringent terms. In
21 5.The High Court, in our view, fell into patent error. The short question before the High court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who''s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another''s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own violation, executed the registered release deed (Ex. B-15) in favor of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the oppose party.
19. On this aspect, in
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.
20. The action in forging and fabricating a document which is filed in court with the motive of deceiving or defrauding the court has been held to be interfering with the administration of justice and amounting to contempt of court. In
1. The stream of administration of justice has to remain unpolluted so that purity of court''s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, Therefore, required to be well taken care of to maintain the sublimity of court''s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings, or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.
xxx xxx xxx xxx
5. The real question is whether filing of the aforesaid forged and fabricated document amounts to contempt. According to Shri Ganguli, appearing for Anil Kumar, this does not. Let it be seen whether the contention advanced by Shri Ganguli is tenable.
7. There being no decision of this Court (or for that matter of any High Court) to our knowledge on this point, the same is required to be examined as a matter of first principle. Contempt jurisdiction has been conferred on superior courts not only to preserve the majesty of law by taking appropriate action against one howsoever high he may be, if he violates court''s order, but also to keep the stream of justice clear and pure (which was highlighted more than two and half centuries ago by Lord Hardwickes, L.C. in St. James''s Evening Post case) so that the parties who approach the courts to receive justice do not have to wade through dirty and polluted water before entering their temples. The purpose of contempt jurisdiction was summarised as below b Lord Morris in Attorney General v. Times Newspapers Ltd.
In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted.
8. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that ''Satyameva jayate'' (truth alone triumphs) is an achievable aim there; or ''Yato Dharmstato Jaya'' (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of courts.
12. In the Privy Council case titled Moses Amado Taylor, Re which was on appeal from the Supreme Court of Sierra Leone, what had happened was that the appellant, a barrister, who had enrolled as solicitor of the Supreme Court of the said Colony, applied to the Acting Chief Justice for a warrant settlement, despite his owing some money to his client. This prayer was rejected. Subsequently, an application was made to one of the police magistrates for a warrant for the arrest of the same person upon a criminal charge of assault and a warrant was issued accordingly. As the Acting Chief Justice had earlier refused the warrant, the Supreme Court felt that the entire proceeding initiated by the appellant was an abuse to the process of justice and it was held that the appellant, by initiating the criminal proceedings, was influenced by the intention of defying the Acting Chief Justice who refused the civil warrant of arrest; and being of this view the appellant was held guilty of contempt and his name was ordered to be removed from the roll of barristers and solicitors of the Supreme Court in question, apart from being fined. On appeal being preferred to the Privy Council, it was held that as the evidence did not show any intent to defraud on the part of the appellant no contempt was committed; at the most he had committed an irregularity for which some pecuniary penalty was adequate punishment. The importance of this case for our purpose is that had the Privy Council felt satisfied about intent to defraud, the appeal would have been dismissed and the view taken by the Supreme Court of Sierra Leone that the appellant was guilty of contempt would have been upheld. What emerges from this decision is that if a person does anything to defraud the court, he commits is contempt.
14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with aforesaid means rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, Therefore, guilty of contempt.
21. In a Division Bench pronouncement in 1988 RLR 481 Vinod Kumar Gambhir v. Power Finance Corporation, the court held that abuse of legal process deserves dismissal of the petition with exemplary costs. In this case costs of Rs. 50,000/- was imposed on a petitioner who made false averments against counsel and sought to abandon responsibility for the cause done and the pleadings filed by the counsel on his behalf.
22. Perusal of the photocopy of the agreement placed before the court at Mumbai and this Court would show that columns 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 are all blank in the agreement which was filed at Mumbai. In the photocopy of the agreement placed before this Court finds that all these columns have been filled up. It would be useful to notice the same in extenso:
Column No. Entry in agreement filed at Mumbai Entry in copy filed in
present case
11. Current Dishonour charges Rs.
for each dishonour of a PDC Blank
1000/-
12. Current swap Charges Rs.
per PDC exchanged Blank
500/-
13. Amount mentioned in Clause [4.1]
of the Agreement Blank
-- --
14. Number of EMIs mentioned in
Clause [4.1] of the agreement Blank
-- --
15. Current Pre-payment charges Blank
80/-
16. Period mentioned in Clause
[5.4(ix)] of the Agreement
[ ] days Blank
-- --
17. Purpose of the Loan Blank
BUSINESS
18. Place of Arbitration Blank
NEW DELHI
19. Agreement subject to
exclusive jurisdiction of
the Courts at Blank
-- --
20. Address of the Company
for the purposes mentioned
in Clause [12] of the Agreement Blank
4A, Link Road, New Delhi
In the replication filed to the respondent''s reply, there is no semblance of regret with regard to the acts done on the part of the petitioner. In this behalf, so far as the allegation of forgery on the part of the petitioner are concerned, it has been stated thus:
2. That para 2 of the reply affidavit is incorrect and denied. It is vehemently denied that the present application filed u/s 11(5) of the Arbitration and Conciliation Act, 1996 ("the Act") is not maintainable. Petition referred to in para 2 of the Reply Affidavit was filed u/s 9 of the Act and not u/s 11(5) of the Act as alleged. the said Petition bearing No. 529/2004 was withdrawn with liberty to file a fresh one. The scope of the said petition and relief claimed therein were totally different from the scope of the present petition and the relief claimed herein. Withdrawal of the said petition u/s 9 does not have any bearing on the maintainability of the present petition filed u/s 11 of the Act.
23. At this stage it becomes necessary to consider the effect of the request made on behalf of the petitioner to withdraw this petition with liberty to file a fresh petition on the same subject matter and cause of action. It has been submitted on behalf of the petitioner that in view of the objection taken by the respondent the petitioner may be permitted to withdraw this petition. In the pronouncements noticed by this Court hereinabove, it has been repeatedly held that it is the duty of the court to nip in the bud the malaise of forgery and fraud on the part of the litigant. In
24. The petitioner has admittedly filed the present case placing reliance on a photocopy where it has effected several interpolations noticed above. There is interpolation so far as place of arbitration is concerned. This interpolation has been obviously effected with the intent of conferring territorial jurisdiction to entertain and adjudicate upon the subject matter of the petition on this Court which the court otherwise did not have. The petitioner has contended that even if this interpolation was made, it was not made with the intention of defeating any rights on the merits of the disputes of the respondent. In my view, the fraud of a party on the court would be much worse than fraud on the party. While fraud on an individual affects only the individual, fraud on judicial process and the court pollutes the entire administration of justice. The same has undoubtedly much graver and far reaching consequences than fraud on an individual. The court has held that forging or altering of courts documents and other deceits of like kind are punishable as serious contempts. Fraud on court was considered and dealt with by the Apex Court in Ram Chandra Singh v. Savitri Devi and Ors. (supra) and Chandra Shashi v. Anil Kumar Verma (supra) wherein it was held that anyone who takes recourse to fraud, deflects the course of judicial proceedings and thereby interferes with the administration of justice. The Apex Court specifically held that such persons are required to be properly dealt with. They are not only to be punished for the wrong done but also so as to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.
25. In the instant case, the petition was filed in the District Courts on or around 23rd September, 2005. The respondents were served with the summons. In view of the pronouncement of the Apex Court in
The petitioner placed reliance on an agreement and invoked the jurisdiction of the High Court of Mumbai. Thereafter it has been submitted by the petitioner that that petition was withdrawn. It is apparent that the entire conduct of the petitioner was to compel the respondents to litigate within the jurisdiction of this Court fully knowing that the respondents reside and work for gain at Mumbai. The petitioner is residing and working for gain as per its address given in the array of parties at Delhi. The petitioner is also fully conscious of the fact that except for the interpolation by it, no part of the cause of action has arisen within the jurisdiction of this Court and this Court does not have the territorial jurisdiction to entertain the present petition.
26. The petitioner has also concealed the fact of having filed a petition u/s 9 of the Arbitration and Conciliation Act, 1996 at Mumbai. This certainly amounts to concealment of a material fact in the circumstances noticed above. The entire conduct of the petitioner in the present matter is Therefore reprehensible and deserves to be condemned in the most stringent terms.
27. From a distillation of the principles laid down by the Apex Court in the binding and authoritative pronouncements noted hereinabove, it is well settled that the action of a party who uses forged and fabricated documents amounts to contempt. It is also well settled that such conduct is not only to be deprecated in the most stringent terms but requires to be nipped in the bud. In Advocate General, State of Bihar v. Madhya Pradesh Khair Industries case (supra), the court held that apart from the power to punish for misuse of the courts process, the court has extensive alternative powers to prevent the abuse of process by striking out or staying proceedings or by prohibiting taking of further proceedings without leave. In
28. Before this court, at the stage of final argument, Realizing that the game was up, a totally malafide request is made seeking leave to withdraw the petition with leave to file a fresh petition. It is well settled that a party has to approach the court with clean hands. Grant of liberty to file a petition is in the discretion of the court. Leave can be given only to sue a fresh cause of action only in circumstances mentioned in Sub-rule 3 of Rule 1 of Order 23. The court has to be satisfied that the suit shall fail on account of a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit. Undoubtedly, a petition which is brought fraudulently and by forgery and which is rendered not maintainable for the reason of the same, cannot be considered to be a case of a petition failing by reason of a formal defect. Certainly no ground has been laid for permitting the plaintiff to file a fresh suit on the subject matter. Only an oral request is made. In the instant case, the petition is a gross abuse of judicial process and in the light of the principles laid down by the Apex Court, the petitioner cannot be permitted to withdraw the petition with leave to file a fresh one on the basis of a forged and fabricated agreement.
In this behalf, reference is invited to the pronouncement of the Division Bench of this Court in
It has to be held that the request for withdrawal and for leave to sue on the same cause of action and subject matter is dishonest and malafide and cannot be granted.
29. In view of the afore noticed principles, the petitioner cannot be permitted to withdraw the petition in the face of its conduct which has been brought to the notice of the court and this petition deserves to be only dismissed.
30. The matter however cannot rest here. It is apparent that the petitioner has caused the respondents to incur heavy expenses and to contest litigation in a city where they do not reside or work for gain. The petition was filed in the district courts wherein it was contested by the respondents and thereafter in the jurisdiction of this court. Having regard to the entire conspectus and facts noticed above, in my view, punitive and exemplary costs deserve to be imposed on the petitioner for its conduct in effecting the interpolations in the agreement and placing reliance on the same before this Court as well as in compelling the respondents to contest litigation which it knew was not maintainable within the jurisdiction of this court. The petitioner also deliberately and mala fide concealed a material facts while filing the present petition. The petitioner has deliberately wasted precious court time with impunity and without remorse. Therefore, whether dismissal or withdrawal, the petitioner cannot be permitted to get away without compensation to the respondents and the justice system. The matter has been listed before this Court on several dates and before the District Courts before that. Such conduct has not only to be condemned but it is necessary to impose such costs as would deter the petitioner and others like it from resorting to such tactics.
Therefore, while dismissing the petition I hereby impose punitive and exemplary costs on the petitioner of Rs. 1,20,000/- The petitioner shall apportion the costs which have been awarded equally between the respondents, the Delhi High Court Lawyers'' Social Security & Welfare Fund and the National Legal Aid Fund (NALSA). The costs shall be deposited by the petitioner within four weeks. Proof of deposit of the costs shall be placed before this court.
List this matter for reporting compliance and consideration of any further action if is to be taken so far as the conduct of the petitioner afore noticed which has been placed before this Court is concerned, on 21st August, 2006.
Intimation of the costs imposed and the direction to deposit the same be sent to the Delhi High Court Lawyers'' Social Security & Welfare Fund and the National Legal Aid Fund (NALSA).
