M/S Maya Press Pvt. Ltd. And ... vs The Union Of India And 2 Ors.
2015 Latest Caselaw 1568 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- WRIT - C No. - 39655 of 2015
 

 
Petitioner :- M/S Maya Press Pvt. Ltd. And Another
 
Respondent :- The Union Of India And 2 Ors.
 
Counsel for Petitioner :- Krishna Mohan
 
Counsel for Respondent :- A.S.G.I.,Harshita Rani,Sachindra Upadhyay
 

 
Hon'ble Suneet Kumar,J.

The first petitioner is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at 281 Muthiganj Allahabad, the second petitioner is the Director of the Company. The petitioners have filed the present petition making a declaration that no other petition was filed for the same cause of action either before the Lucknow Bench of this Court or before this Court.

This Court on 20 July 2015 on an objection being raised by the respondents that the present petition is a second petition for the same cause of action which has been filed after dismissal of the special appeal, passed the following order:

"By means of present writ petition, the petitioners have prayed for rejecting the impugned recovery notice dated 22.5.2015 under Section 8-B (i) of the EPF & MP Act, 1952 and the Income Tax Act, 1961 issued by the respondent no.3 to the petitioner no.2 and further prayed for direction to the respondents to decide the petitioner's representation dated 11.1.2014and 4.7.2014 after affording due opportunity of hearing to the petitioners.

Shri Amit Negi, learned counsel for the contesting respondents states that the petitioner had earlier filed Writ Petition No.11936 of 2009 (M/s Maya Press (P) Ltd. & Anr. v. Union of India & Ors.) for quashing the warrant of arrest dated 26.11.2008 issued by the Recovery Officer, Employees Provident Fund Organization, Varanasi, pursuant to the recovery certificate issued under Section 8-C of the Employees Provident Fund and Misc. Provisions Act for recovery of Rs.71,81,297/-. This Court vide order dated 6.3.2009 had disposed of the writ petition with following observations:-

"The petitioners will file an application under Section 8-E of the Employees Provident Fund and Miscellaneous Provisions Act before the authorised officer seeking time to make the payment. This application shall be filed on or before the 31st March, 2009. If such an application is filed, the authority will pass appropriate orders on the said application expeditiously after affording an opportunity of hearing to the petitioners. In the meantime, the warrant of arrest dated 26.11.2008 shall remain in abeyance till the disposal of the petitioners' application provided the petitioners deposits a sum of Rs. twenty lac within four weeks from today.

The writ petition is disposed of.

A certified copy of this order shall be made available to the petitioners on payment of usual charges within 24 hours."

Shri Negi, learned counsel for the respondents submits that there is material concealment in the matter. Nowhere it has been averred regarding the previous writ petition. He further apprised to the Court that in compliance of the order passed by this Court the petitioner had also not deposited Rs.20 lacs within stipulated time and had filed Special Appeal No.670 of 2009 (M/s Maya Press (P) Ltd. & Anr. v. Union of India & Ors.) assailing the aforesaid order dated 6.3.2009. The special appeal was dismissed by order dated 6.5.2009. It is submitted that the petitioner had deliberately violated the earlier order even though the same had attained finality on the ground that the appeal was also rejected and as such no interference may be made in the present writ petition. This writ petition may be treated as second writ petition for the same cause of action.

Shri Krishna Mohan, learned counsel for the petitioners prays for week's time to obtain instructions in the matter. Put up this matter on 27.7.2015 as fresh."

Upon matter being taken up today, petitioners have filed an application to dismiss the writ petition as withdrawn. In paragraph 2 of the affidavit it has been averred that upon inspection of the records it transpires that the previous litigations was done by the second petitioner personally and the deponent is a pairokar and had no knowledge of previous litigations.

Paragraphs 1 and 2 of the application is as follows:

1. That the deponent is the pairokar on behalf of the petitioners in this writ petition. He had no knowledge of the previous litigations as such he could not brief the facts to the petitioners counsel and as such is fully acquainted with the facts of the case deposed to below.

2. That after getting intimations before this Hon'ble Court the deponent inspected the records and came to know that the previous litigations were done by the petitioner no. 2 personally, who is aged about 79 years and has been keeping ailing health and is unable to move from Kolkata to Allahabad.

Sri Amit Negi, learned counsel appearing for the respondents would submit that the averments made in paragraph 2 of the withdrawal affidavit is false. The affidavit was sworn by S.K. Bhattacharya, in earlier petition, therefore, it was in the knowledge of the second petitioner as well as the deponent/pairokar, that the previous round of litigation had attained finality.

The records of the earlier writ petition would reflect that the petitioners are the same and the affidavit of the petition was sworn by, Sri S.K. Bhattacharya son of Vasudev Bhattacharya, R/o 56, Rambag, District Allahabad as pairokar. The records would thus reveal that despite knowledge of the second petitioner, as well as the pairokar, the present petition was filed, a false affidavit has been filed in support of the petition and the withdrawal application.

The conduct of the second petitioner and the pairokar is gross misuse of the process of the Court, they have exposed themselves for prosecution and imposition of heavy cost.

"Fraud" means an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression "fraud" involves two element, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (Vide Vimla (Dr.) vs. Delhi Administration, AIR 1963 Sc 1572; and Indian Bank vs. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550).

A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representation, which he knows to be false, and injury ensures there from although the motive from which the representation proceeded may not have been bad. An act of fraud on Court is always viewed seriously. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata. (Vide Ram Chandra Singh vs. Savitri Devi, (2003) 8 SCC 319).

"Fraud is proved when it is shown that a false representation has been made (I) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false".

In Smt. Shrisht Dhawan Vs. Shaw Brothers, AIR 1992 SC 1555, the Court observed:

"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581, the Apex Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

Supreme Court in of Oswal Fats and Oils Limited vs. Additional Commissioner (Administrative), Bareilly Division (2010) 4 SCC 728 observed as follows:-

"20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."

The observations in A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430 are also apposite holding:-

43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.

43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.

43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.

43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."

In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, Supreme Court noticed an altogether new creed of dishonest litigants, have flooded the Court. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings.

Supreme Court in the case of V. Chandrashekaran and another vs. Administrative Officer and others [(2012) 12 SCC 133 observed that a petition or affidavit containing misleading or inaccurate statement amounts to abuse of process of Court, a litigant cannot take inconsistent positions. Paras 45, is extracted:-

"45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.

In view of the undisputed facts stated herein above, it is evident that the Director of the company has misused the forum in order to procure an order by filing petition after petition, admittedly, the outstanding dues of Rs. 70 lacs which is due against the petitioner-company for funds under Employees Provident Fund and Misc. Provision Act 1952 has not been paid till date though an undertaking was given in the recall application that the same would be deposited.

The petitioner being not an ordinary litigant is misusing the forum for procuring an order which otherwise is not tenable, being fully aware on the date of filing of the petition that the earlier round of litigation had attained finality.

In this view of the matter, the writ petition is dismissed with heavy cost of Rs. 1,00,000/- each to be recovered from the second petitioner and the pairokar Sri S.K. Bhattacharya, as arrears of land revenue by the District Magistrate, Allahabad.

The third respondent, the Assistant Regional Provident Fund Commissioner/Recovery Officer Allahabad is directed to recover the outstanding dues forthwith preferably within three months from the date of filing of certified copy of this order.

The Registrar General of the High Court Allahabad is directed to lodge first information report against the second petitioner, Ashok Mitra S/o Late Sri K.M. Mitra, (Director) M/s Maya Press Pvt. Ltd. C/o Mohar Ghosh and the pairokar, Sri S.K. Bhattacharya, S/o Sri Vasudeo Bhattacharya, R/o 56, Rambagh, Allahabad.

Subject to the above, the writ petition is dismissed.

Order Date :- 31.7.2015

S.Prakash