Bombay High Court
Ctr Manufacturing Industries ... vs Sergi Transformer Explosion ... on 30 October, 2012
Bench: B. P. Dharmadhikari
1 1282. 11-caa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
CIVIL APPELLATE JURISDICTION.
CIVIL APPLICATION NO. 1282 OF 2011
IN
APPEAL FROM ORDER NO. 102 OF 2011
CTR Manufacturing Industries Limited,
a company incorporated under the provisions
of the Companies Act, 1956, having registered
office at Nagar Road, Pune- 411 014. ... Applicant.
V/s.
1. Sergi Transformer Explosion Prevention
Technologies Private Limited,
of 324, Udyog Vihar-Phase IV,
Gurgaon, India.
2. Antoine Magnier, s/o Phillipe Magnier,
Director, Sergi Transformer Explosion
Prevention Technologies Private Limited,
having his office at 426, Udyog Vihar-
Phase IV, Gurgaon-122016, Haryana.
3. Dharmendra Tyagi,
Corporate Legal Manager,
Sergi Transformer Explosion Prevention
Technologies Private Limited,
having his office at 426, Udyog Vihar-
Phase IV, Gurgaon-122016, Haryana. ... Respondents.
Navroz Seervai, Senior Advocate with Gulnar Mistry;
Aakash Rebello; Amit Jajoo; and Atul Singh i/b. Paras
Kuhad & Associates for the applicant.
Atul Rajadhyaksha with S.Kher and C.Chavan i/b.
Ms.Rani Boazz for respondent Nos.1 and 2.
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CORAM: B.P.DHARMADHIKARI, J.
DATED : 30th October 2012.
JUDGMENT :
This Civil Application is filed in a disposed of Appeal
against order for action under S. 340 Cr.P.C. That appeal from order
arose out of Special Civil Suit No.1/2010 and has been disposed of by
this Court on 11th January 2011. This Court set aside the order dated
28th December 2010 passed by learned District Judge, Thane and
allowed the application of appellant therein (respondent in this civil
application) and permitted it to submit drawings to Delhi Transco
Limited (DTL). It directed that the said appellant should not take any
further steps for execution of contract except submission of drawings
till the decision of application filed by the appellant/ respondent No.1
herein below Exh.5 under order 39 rules 1 and 2 of Code of Civil
Procedure, 1908 (C.P.C.) (Said application below Exh.5 in special civil
suit was filed by present applicant/plaintiff who was respondent in that
appeal from order). It is not in dispute that later on temporary
injunction as prayed for came to be denied & the said application at
Exh.5 has been dismissed.
2. The present civil application is filed by respondent in that
appeal from order 102 of 2011 for recording of finding that an offence
under section 193 read with section 191 or section 209 of Indian Penal
Code, 1860 has been committed by the respondents and for making a
complaint in writing through competent officer of this Court to the
Magistrate of First Class having jurisdiction. Thus the application is
under section 195 read with section 340 of Cr.P.C.
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3. Effort of applicant is to show that on 9 th December 2010 it
had obtained orders from Thane Court in its civil suit restraining
respondent from taking any steps in relation to tender floated by DTL.
That order was served upon respondents on 14 th December 2010.
Appeal challenging that order was filed by respondents before this
Court on 20th December 2010 and that appeal was considered by
Vacation Judge on 24th December 2010. The Vacation Judge did not
interfere with the impugned order dated 9th December 2010 but
directed the trial Court to hear the parties and pass appropriate orders
on 27th December 2010. While obtaining this order and in the
proceedings, it was not disclosed to this Court that drawings were
already submitted by the respondent to DTL on 24 th December 2010.
This fact was not even pointed out to the trial Court on 27 th December
2010 during hearing. The trial Court, as per the direction issued by
this Court, heard parties and passed an order on 28 th December 2010
maintaining its earlier direction. That direction was then questioned
in Appeal No. 102/2011 and even in that appeal or during said
proceedings, which even ultimately decided by this Court on 11 th
January 2011, the fact that direction dated 9 th December 2010 was
violated and drawings were already submitted was not disclosed by the
present respondent who was appellant in the said appeal.
4. It is in this background that learned Senior Advocate Shri
Seervai appearing urges that a fact very relevant for consideration and
critical in exercise of jurisdiction to grant temporary injunction was
deliberately suppressed from this Court. Learned counsel submits that
the affidavit in support of said appeal from order is sworn by one
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Dharmesh Tyagi, Corporate Legal Manager of respondent and though
he is/was served with notice of present proceeding he has chosen not
to appear. Learned counsel contends that the said affidavit is by and
on behalf of appellant and, therefore, binding on all the respondents in
present proceedings. Attention has been invited on ground-(a) in the
memo of said appeal to show how denial of even an opportunity to
submit drawings & its adverse effect on the chances of present
respondents has been pressed into service to seek vacation of interim
direction. The statement made in Civil Application (St.)
No.33479/2011 that parties have been litigating since February 2010
on weekly basis before the District Court, Thane is also pointed out.
Attention is also invited to the fact that for said violation of interim
direction, proceedings under order 39 rule 2-A read with 2(11) of
C.P.C. are already instituted but then the scope thereof is entirely
different. Learned senior counsel has strongly relied upon the
assertions in paragraphs- 4, 17, 18, 19, 20 and 21 of the present civil
application.
5. In support of his contention, Shri Seervai has relied upon
following judgments:
Queen Empress v. Mehrban Singh (1884 6 All 626);
Sanjeev Kumar Mittal v. State 174 (2010) DLT 214; In Re: Suo
Motu Proceedings Against R.Karuppan, Advocate, (2001) 5 SCC 289;
K.Karunakaran v. T.V.Eachara Warrier, (1978) 1 SCC 18; Pritesh
v. State of Maharashtra, (2002) 1 SCC 253; Emperor v. Padam
Singh, AIR 1930 Allahabad 490; and Emperor v. Ratanchand
Dhannram, 1904 (6) BLR 886.
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6. Shri Rajadhyaksha, learned senior advocate counsel for
respondent Nos.1 and 2 in this civil application submits that interim
prayer before the trial Court was much wider and only part of it was
granted initially and the respondents were restrained only from actual
"selling". Thus, submission of drawings was not prohibited by that
order which occupied the field till 9.12.2010. Parties appeared before
the trial Court on several dates thereafter. In this background, on 9 th
December 2010, Trial Court was moved by present applicant- plaintiff
behind back of respondents and the order restraining them from taking
any steps in the matter was obtained. Learned senior counsel submits
that though this order was served upon the office of respondent No.1 at
New Delhi on 14th December 2010 and though appeal against it was
also filed before this Court, the officer who submitted drawings to DTL
was unaware of the said order or developments. He has invited
attention to the affidavit dated 1st May 2012 of one Rahul Chavan,
employee of respondent No.1. For very same purpose, attention is also
invited to the affidavit of one P.B.More dated 13 th July 2012. Affidavit
in rejoinder filed by respondent 2 Antoine Magnier dated 22 nd
September 2012 is also pointed out to show as to how that officer was
very busy & occupied, and could not pay attention to these details.
Learned senior counsel has urged that this was only a bona-fide error
which has not prejudiced the case of applicant in any way. Subsequent
affidavit in rejoinder filed by Rahul Chavan is pressed into service to
substantiate stand that it was a bona-fide mistake.
7. By way of abundant precaution, it was submitted that
interim order sought for by the applicant has been ultimately vacated
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and Hon'ble Apex Court has also permitted the respondents to
participate in the tender process. Learned counsel submits that, thus,
for an honest and bonafide mistake which has got no impact on
administration of justice, no action under section 340 of Cr.P.C. Read
with section 195 is called for. He has also relied upon various
precedents reference to which is being made little later in the course of
this judgment.
8. In his reply arguments, Shri Seervai has contended that
reason of honest and bonafide mistake by Shri Chavan is erroneous.
He points out that now said person is not in employment of the
respondents and he obliged them by giving letters or affidavits as they
wanted. The communication dated 9th November 2010 is signed by
said Chavan and sent to Manager (Stores) of DTL confirming that
M/s.Sergi India was in a position to execute the full project of DTL in
spite of legal proceedings going on against it. He states that this
knowledge has not been disputed by the respondents. He further
contends that reliance upon affidavit of Antoine Magnier dated 30 th
April 2012 or his later affidavit in an effort to show bonafide mistake is
equally erroneous. He points out the statement contained in affidavit
of Shri Chavan dated 1 st May 2012 that he had submitted drawings on
24th December 2010 as a routine purchase related activity. On 11 th or
12th January 2011, he was asked to submit drawings to DTL following
the order of High Court and, accordingly, he submitted those drawings
on 12th January 2011. The communication dated 12 th March 2010 sent
by respondent No.3 Shri Tyagi to DTL pointing out injunction order and
hope that it would be vacated is also pressed into service.
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9. I have perused all records in the light of rival contentions.
Perusal of affidavit dated 13th July 2012 filed by Shri P.B.More on behalf
of the applicant shows an assertion that drawings were not submitted
second time in January 2011 and statement made by respondents that
drawings were so submitted is false and malafide. It is claimed that
Shri Chavan by his letter dated 12th January 2011 has only informed
that drawings had already been submitted. The applicant claims that
respondent 2 Mr.Magnier, therefore, is making false and incorrect
statement on oath even before this Court.
10.
In K.Karunakaran v. T.V.Eachara Warrier (supra), the
Hon'ble Apex Court has held that in a proceeding under section 340(1)
of Cr.P.C., the reasons recorded in the principal case, in which a false
statement has been made have a great bearing and indeed action is
taken having regard to the overall opinion formed by the Court in an
earlier proceedings. At an enquiry held by the Court therein,
irrespective of the result of the main case, the only question is whether
a prima facie case is made out which, if unrebutted, may have a
reasonable likelihood to establish the offence and whether it is also
expedient in the interest of justice to take such action. The parties like
present respondents may choose to place all their material before this
court at this stage but then they are not estopped from disclosing it
later during trial, in case prosecution is sanctioned by this court.
Observations of this Court in this order are not detrimental and
relevant during trial. The enquiry is only to afford a locus
poenitentiae to a person at that stage. Only prima facie opinion is
required to be reached by this court and challenge is required to be
established during trial. In Pritesh v. State of Maharashtra (supra),
8 1282. 11-caa
the Hon'ble Apex Court has observed that merely because power is
given to the Court under section 340 of Cr.P.C., it does not mean that
the Court should as a matter of course make a complaint. But once
the Court decides to do so, it should record a finding to the effect that
on the fact situation it is expedient in the interest of justice that offence
should be further probed into. Absence of preliminary enquiry by the
Court does not vitiate a finding reached and aim of preliminary enquiry,
if held, is not to find out whether particular person is guilty or not. In
Motu Proceedings Against R.Karuppan, Advocate (supra), the Hon'ble
Apex Court has found that justice dispensation system would be
wrecked if statutory restrictions are not imposed upon the litigants,
who attempt to mislead the court by filing and relying upon the false
evidence. If the result of the proceedings are to be respected, these
issues before the courts must be resolved to the extent possible in
accordance with the truth. The common law pr0position is also
appreciated by Hon'ble Apex Court in paragraph- 14 of this judgment
and thereafter in paragraph-15, law in India relating to offence of
perjury as defined in section 191 and Chapter XI of I.P.C. is also noted.
Hon'ble Apex Court has observed that unscrupulous litigants are found
daily resorting to utter blatant falsehood in the courts which pollutes
the judicial system. Hon. Court observes that if the system is to
survive, effective action is the need of time.
11. In Emperor v. Padam Singh (supra), the Division Bench
of Allahabad High Court has found that an express provision of law
required defendant to confirm the truth of statement made by him in
written statement and if that verification is found false, section 191
itself declares him a person giving false evidence. The meaning of
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word "evidence" in other sections may have different connotations but
those words in section 191 and 193 have same meaning. In Emperor
v. Ratanchand Dhannram (supra), plea of signing Darkhast when it
was blank is held not sufficient to avoid penalties attached under
section 193 of I.P.C. The Division Bench has found that through
verification, Court is made to believe that statement of facts made are
true and correct. In Queen Empress v. Mehrban Singh (supra), it
has been held that essence of crime of perjury is not how it may injure
the party to the litigation but how it may deceive or mislead the Court.
Judgment of learned single Judge of Delhi High Court reported in
Sanjeev Kumar Mittal v. State (supra) also considers these aspects
and reiterates the same view. It has been found that it is the duty of
the parties to disclose true and correct facts to the Court. The
provisions of order VI rule 16 dealing with verification of pleadings are
also looked into. It has also been observed that the person submitting
false verification can be proceeded against in contempt and also for an
offence of perjury. Reluctance of Court's to prosecute for perjury is
found to encourage parties to make false averments.
12. In the light of arguments, it is also necessary to refer to the
judgments relied upon by Shri Rajadhyaksha, learned senior counsel
for respondent Nos.1 and 2. The judgment of the Apex Court in
Chajoo Ram v. Radhey Shayam, AIR 1971 SC 1367 shows that
before sanctioning prosecution for perjury, the Court must be satisfied
that there is prima facie case for deliberate falsehood on a matter of
substance and that there is a reasonable foundation for the charge.
The judgment reported in Santokh Singh v. Izhar Hussain, AIR 1973
SC page 2190 reveals that the High Court has to be cautious while
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ordering prosecution for such offence as frequent prosecutions often
tend to defeat the purpose & therefore, only in glaring cases of
deliberate falsehood where conviction is highly likely that the Court
should direct prosecution. In K.T.M.S.Mohd and another v. Union
of India, AIR 1992 SC 1831, the Hon'ble Apex Court has pointed out
two conditions namely the Court must be of opinion that it is expedient
in the interest of justice that enquiry should be made into offence and
the offence must be in respect of document produced and/or given in
the evidence in a proceeding of that Court. Same principle is reiterated
in B.K.Gupta v. Damodar H. Bajaj, (2001) 9 SCC 742. Judgment in
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
shows that the expediency is normally judged by the Court by weighing
not the magnitude of injury suffered by the person affected by such
forgery or forged document, but having regard to the effect or impact,
such commission of offence has upon administration of justice.
Judgment in Rugmini Ammal v. V.Narayana Reddiar, AIR 2008 SC
895 also lays down that purpose of preliminary enquiry is to find out
whether it is expedient in the interest of justice to order prosecution.
In Patel Laljibhai Somabhai v. State of Gujrat, (1971) 2 SCC 376,
the underlined purpose and the object of legislature in creating bar to
direct cognizance of such grievance is found to be to save the accused
persons from vexatious or baseless prosecutions inspired by feelings of
vindictiveness on the part of his adversary and also to avoid confusion
which is likely to arise on account of conflicts between the findings of
Courts in which forged documents are produced or false evidence is led
and the conclusions of criminal courts dealing with the private
complaint. In R.S.Sujatha v. State of Karnataka, 2011 (5) SCC 689,
the earlier judgment reported in Pritish v. State of Maharashtra, AIR
11 1282. 11-caa
2002 SC 236 pointing out the purpose of preliminary enquiry is cited
with approval in paragraph-11 thereof. In Mannala Sardarmal Jain
v. Kishan Jodhraj Maharaj, AIR 1959 MP 264, standard of proof
required in cases of perjury is looked into. In AIR 1957 AP 832 (In Re:
Balabhadra Narayudu), the prosecution is found to have been
sanctioned on an immaterial fact. In John Peter v. State, AIR 1953
TRAV-CO 343, the purpose of prosecution is held to be not to satisfy
private grudge of a litigant. In Keramat Ali v. Emperor, AIR 1928
Cal. 862, on facts the ordering of prosecution is found not expedient.
In Vimala v. Ranjini Murugan, 1988 (2) Crimes 124, again it is
found that purpose of such prosecution is not to assist adversary and
not to further private revenge.
13. In Bhagirathibai v. Emperor, AIR 1926 Nag 141,
reasonable possibility of conviction is found to be a decisive test. In
Asgarali s/o Mulla Ibrahimjee Musalman v. Emperor, AIR (29)
1942 Nagpur 80, the intention of person charged with offence is held
an essential ingredient. Judgments reported in Veerappa Shivappa
Horadi v. Krishna Triyambak Deshpande, 1977 CRI.L.J. 1367,
Anandi Prasad v. Emperor, AIR 1934 Oudh 65 also lay down same
law. In Taj Mohammad v. Emperor, AIR 1928 Lah 125;
Ramgobind v. Kind Emperor, AIR 1924 Patna 381; and
Maharashtra State Electricity Distribution Co.Ltd. v. Datar
Switchgear Ltd., 2010 (159) Com.Cases 545 (SC), same principles
have been applied. However, this law is laid down while deciding the
matter in challenge after finding by competent criminal court. There
the orders passed by Court under section 340 of Cr.P.C. were not
questioned. Yardsticks will be different when prosecution is being
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ordered under S. 340 & when challenge is to verdict delivered at the
end of such prosecution. Maharashtra State Electricity Distribution
Co.Ltd. v. Datar Switchgear Ltd. (supra), the Hon'ble Apex Court has
found that false statement in declaration by a company does not render
its Chairman automatically guilty.
14. In Esher Singh v. State of Andhra Pradesh, AIR 2004 SC
3030, the Hon'ble Apex Court has considered proof required for
establishing criminal conspiracy where challenge was to a conviction by
a competent criminal Court. The question whether criminal conspiracy
was proved or not needs to be appreciated in the light of evidence
which comes before the criminal Court. In K.T.M.S.Mohd v. Union
of India (supra), the Hon'ble Apex Court has, after considering the
evidence on record, appreciated the same to find out whether
appellant Nos.1 and 2 before it knew that third appellant had
intentionally fabricated false evidence or had willfully submitted a false
return before IT. The Hon'ble Apex Court has noted that this was not a
case of complainant at all. This law also needs to be applied by a
competent Court when matter goes to it for trial. In Kehar Singh v.
The State (Delhi Admn.) AIR 1988 SC 1883, the controversy
considered is again after regular trial and in the light of evidence
adduced. In Dadasaheb Bapusaheb Naik v. State of Maharashtra.
1982 CRI.L.J. 856, the learned single of this Court has considered the
standard of proof required to establish criminal conspiracy in a criminal
appeal. In Maharashtra State Electricity Distribution Co.Ltd. v.
Datar Switchgear Ltd. (supra), the challenge has been considered
after the judgment of this Court under section 482 of Cr.P.C. declining
to quash criminal complaint.
13 1282. 11-caa
15. In Maksud Saiyed v. State of Gujrat, 2008 (5) SCC 668 is
again after judgment by High Court setting aside criminal prosecution
and investigation. It has been found that Penal Code does not contain
any provision for attaching vicarious liability to/on part of Managing
Director or Director of the Company when the accused is company.
The Magistrate, before whom complaint was filed, therefore ought to
have examined whether complaint contained necessary material to
make the Director personally liable. In Maharashtra State Electricity
Distribution Co.Ltd. v. Datar Switchgear Ltd. (supra), same law has
been followed and it was noted that there was no allegation that
Chairman participated in or was managing arbitration proceedings.
He was, therefore, held not liable for false statement made before the
arbitral tribunal.
16. The facts presented to this Court reveal that the
submission of drawings to DTL on 24 th December 2010 despite
communication of restraining order on 14 th December 2010 is accepted
by respondent 1 & 2. The fact that said submission of drawings was
not pointed to this Court in a challenge presented to it & decided in
winter vacation on the very same date or then in later proceedings till
delivery of judgment therein on 11th January 2011 is not in dispute.
This Court has to find out whether the respondents have given probable
reasons for their inability to place said fact on record and impact, if any,
of its non-disclosure.
17. The Managing Director of respondent No.1- Shri Antoine
Magnier is respondent No.2 in the present proceeding. His reply
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affidavit dated 30th April 2012 assumes importance. Apart from
pointing out his heavy pre-occupation, programme to leave India for his
country for Christmas celebration, his affidavit also discloses that after
receipt of purchase order from DTL, he had issued necessary oral orders
to various departments to meet the purchase order requirements but to
stop short of "selling" the product in dispute to DTL. He has expressly
mentioned that he was aware of legal opinion given to Sergi by its
lawyer in context of order of the trial Court dated 5 th February 2010.
In this proceeding, we are not concerned with the said legal opinion.
This affidavit, therefore, shows knowledge of the fact to respondent 1,2
& all concerned that product could not have been sold and all other
steps were permitted. The said officer, thereafter in paragraph-8.7 of
that affidavit shows knowledge of order dated 9 th December 2012
preventing Sergi from taking any step whatsoever in relation to DTL
purchase orders. This knowledge is acquired on 14 th December 2010.
Seriousness & drastic nature of change brought about is well
understood & hence, in affidavit, grievance is made by him about
obtaining such an order ex parte. He, then, immediately instructed the
Legal Manager to rush to Mumbai and co-ordinate with the Sergi
lawyer to have that order vacated. Thus the urgent need felt by him
to get that order vacated has also come on record. In the light of the
earlier "oral orders" the change brought about in the situation by order
dated 9th December 2010 has struck respondent No.1- company and
respondent No.2 and it made efforts to get that order vacated.
However, the affidavit does not show any steps taken by either
respondent No.1 or respondent No.2 to stop violation of latter order
dated 9th December 2010 after 14th December 2010. The drawings/
designs have been submitted by Shri Chavan on 24 th December 2010
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and he claimed ignorance of directions issued by the trial Court on 9 th
December 2010. It is important to note that Shri Chavan is presently
not in employment of respondent No.1. Its Legal Manager, who is
respondent No.3 in the present proceeding is also not in employment.
The affidavit filed by said Antoine Magnier, therefore, shows only oral
directions issued by him on earlier occasion to see that the Court orders
are not breached by actually selling the product to DTL. His affidavit
discloses steps taken by him to get later order dated 9.12.2010 vacated
as it altered the situation to the prejudice of respondent 1 , but then he
has not taken any steps to prohibit its breach for violation. Whether
this omission is accidental or deliberate is an issue which cannot be
resolved in this proceeding. The law on point is well settled and this
Court can only express prima facie opinion. Its conclusion is not
binding when actually trial Court trial Court is competent criminal
Court. This defence of oral order to stop "short of selling" and then
the alleged later omission to issue instructions to others not to take any
steps in the light of court order dated 9 th December 2010 itself appears
to be doubtful. In any case, it may be the defence in criminal trial &
burden to substantiate it is upon respondent Nos.1 and 2.
18. Shri Chavan, the ex-employee of respondent No.1, in his
affidavit has urged that on 24th December 2012, when he submitted
drawings, he was not aware of order dated 9 th December 2010. His
affidavit also shows that after the order of this Court dated 11 th January
2011, on 12th January 2011, he has submitted drawings. It is not his
case that DTL demanded drawings twice. If the drawings were already
submitted on 24th December 2010, there was no need to submit it again
on 12th January 2011. The applicant has specifically come up with the
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contention that drawings were submitted only once. The respondents
have not produced on record any communication with which drawings
were submitted to M/s.DTL on 24th December 2010. If the drawings
were already submitted, on 12 th January 2011 the respondents would
have informed M/s.DTL that drawing were already submitted on 24 th
December 2010. They could have also informed about the restraining
orders, in ignorance of which, drawings were "inadvertently" submitted
and its dilution or vacation by the High Court on 11 th January 2011.
Such a disclosure would have been more desirable to show the
bonafides of respondents in the matter. There is no attempt to point
out to this Court the fact that submission of drawing in violation of
interim directions was communicated by the respondents or by Shri
Chavan to M/s.DTL.
19. If on 12th January 2012 Shri Chavan resubmitted the
drawings, he ought to have or could have immediately informed his
seniors/superiors about the first submission thereof already on 24 th
December 2010. Thus the circumstances in which drawings were
inadvertently submitted on 24th December 2010 would have then come
on record in normal course of events. In that event, the respondents
could have also pointed out that inadvertent submission to this Court
by filing proper affidavit even though the appeal from order was
disposed of on 11th January 2011. There is no such effort by the
respondents. Though this is not a conclusive application of mind, in any
way, at this stage it deserves to be given due importance.
20. As held by Hon'ble Supreme Court in Seema Arshad
Zaheer v. Municipal Corporation of Greater Mumbai, 2006 (5)
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SCC 282, the remedy of injunction is an equitable remedy and plaintiff,
who does not approach the Court with clean hands or suppresses
material facts, can be denied that relief. This judgment has been
followed by learned single Judge of this Court in Harcharanjit Singh
Thind (Capt.) v. Deeksha Thind, 2008 (3) Mh.L.J. 587 and by me
in General Manager, Central Railway v. Mehmooda Shikshan and
Mahila Gramin Bahuuddeshiya Sanstha, Nagpur, 2010 (6) Bom.C.R.
828 : 2011 (2) LJS 168. Thus, if material facts are suppressed by a
party invoking said jurisdiction, the relief can be declined to it. Here
the affidavits filed by respondents show knowledge of court litigation
and they accept that it was being fought on weekly basis since February
2010. They are also aware that only part of the relief claimed as
interim relief by present applicant/ plaintiff was initially granted on 5 th
February 2010 and all of a sudden it was modified drastically on 9 th
December,2010. The emergent situation resulting therefrom after 14 th
December and hence hurried steps taken by them to have that order
vacated have also come on record. Thus, the respondent- company
has, all the while, attempted to demonstrate that order prohibiting it
from taking any steps in the matter was unjust and needed forthwith
vacation. In the process, they did not point out the fact that drawings
were already submitted on 24 th December 2010. On the contrary, they
have again resubmitted the drawings on 12 th January 2011 after High
Court orders without reference to the earlier submission on 24 th
December 2010. The applicant has urged that there is no resubmission
on 12th January 2011 and the drawings were already submitted on 24 th
December 2010.
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21. It is not necessary, at this stage, to resolve this factual
dispute & issue. Now the fact of submission of drawings on 24 th
December 2010 is accepted. The respondents have not pointed out
that after the said resubmission they have informed M/s.DTL that
earlier submission of drawings on 24 th December 2010 was contrary to
Court orders. In injunction jurisdiction, when a party applies for grant
of temporary injunction or for its vacation, its highhanded or
disrespectful conduct is definitely relevant. The fact that drawings
were already submitted on 24 th December 2010 ought to have been
disclosed to this Court. This Court in that event would have applied its
mind appropriately and taken a suitable view of the matter. The fact
relevant in the exercise of that jurisdiction has not been pointed out to
this Court. Actual impact the said fact may have on the findings
recorded in the judgment dated 11 th January 2011 is again not very
important. The suppression of relevant facts and therefore denial to
other side to point out its impact or then inability of this Court to
consider its effect is the only relevant aspect in this jurisdiction & at this
juncture. The present respondents continued to question the modified
order dated 9.12.2010 by urging that denial of an opportunity to it to
take even preliminary steps was unjustified. Conclusion that a fact
relevant for administration of justice was held back & this Court was
prohibited from looking into a relevant event is, therefore, the most
significant facet in the present matter. The contention of learned senior
advocate Shri Rajadhyaksha that original plaintiff or present applicant
who seeks the prosecution is trade rival of respondents or has no stake
in contract with M/s. DTL is totally irrelevant.
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22. Discussion above shows that a case for filing complaint
under section 340 of Cr.P.C. read with section 195(1)(b) for filing
misleading affidavit and for not disclosing true and correct facts to this
Court is made out. Respondent No.2- Antoine Magnier as also
Mr.Chavan have independently filed their affidavits in this proceeding
unequivocally stating that nothing material relevant has been
concealed. Same discloser is also made by respondent No.3- Mr.Tyagi
in affidavit filed for respondent 1 Company in Appeal from Order
No.102/2011 which has been decided on 11 th January 2011. It is
expedient & the events noted above also indicate after this preliminary
inquiry, a need for investigation into alleged offences under Section
195(1)(b) of Cr.P. C. to see that facts vital in exercise of any jurisdiction
are not suppressed by parties. Thus by such suppression as also by
declaring that nothing material has been concealed from this Court,
prima facie, an offence under section 193 read with section 191 or
section 209 of Indian Penal Code, 1860 appears to have been
committed by the respondents which deserves to be inquired into by
the competent judicial magistrate.
23. The Registrar (Judicial) attached to this Court is, therefore,
directed to draw & make appropriate complaint before competent
Court having jurisdiction for offences mentioned in S. 195(1)(b) Cr.P.C.,
supra. The respondent No.1- Company thorough its authorized or
competent officer as also its director i.e. respondent No.2 shall file
undertaking before this court personally undertaking to appear before
the trial Court in the said proceeding on first date scheduled for their
appearance by it & as per law. Said undertaking/ bond to be executed
by them for said purpose in the sum of Rs.50,000/- each shall be filed
20 1282. 11-caa
in the registry of this Court within three weeks from today & shall be
sent to concerned court of Magistrate.
24. The trial Court to proceed further in the matter in
accordance with law uninfluenced by the observations made by this
Court above.
25. Civil Application No.1282/2011 is, accordingly, allowed to
that extent.
Learned Senior Advocate Shri Rajadhyaksha, at this stage,
seeks stay of the present order for a period of six weeks. The request is
being strongly opposed by Shri Seervai, learned Senior Advocate for the
applicant.
27. In the interest of justice, the request made by Shri
Rajadhyaksha is accepted. The order is stayed for a period of six
weeks. The interim order shall cease to operate automatically
thereafter.
(B.P.DHARMADHIKARI, J.)
Sanjay Nanoskar, P.S.
