Bombay High Court
Harshelle Travels And Anr vs Capri Global Capital Ltd on 3 March, 2023
Bench: K.R. Shriram, Shri Arif Doctor
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PURTI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRASAD ORDINARY ORIGINAL CIVIL JURISDICTION
PARAB
Digitally signed by
PURTI PRASAD
PARAB
Date: 2023.03.04
15:50:35 +0530
INTERIM APPLICATION NO. 187 OF 2023
IN
WRIT PETITION NO. 4570 OF 2022
Harshelle Travels
Through its Proprietor
Praveen Bhaskar Rao and Anr. ....Applicants/
Original Petitioners
V/s.
Capri Global Capital Limited ...Respondent
----
Mr. B.G. Saraf a/w Mr. Dilip H. Shukla i/b Mr. Suhas G. Shetty for
Applicants/Original Petitioners.
Mr. R.L. Motwani for Respondent.
----
CORAM : K.R. SHRIRAM &
ARIF S. DOCTOR, JJ.
(IN CHAMBER)
DATED : 3rd MARCH 2023
P.C. :
1. The application is to extend the time granted on 19 th October
2022 to petitioner to deposit the balance amount of Rs.15,00,000/-.
Mr.Saraf states that Rs.5,00,000/- was deposited on the date fixed by the
court, i.e., 21st October 2022 but the remaining Rs.10,00,000/- was not
deposited. Petitioner wants that period extended.
2. The order passed on 19th October 2022 reads as under :
1 Petitioner is impugning order dated 05 th September
2022 passed by Debts Recovery Appellate Tribunal,
Mumbai whereby Petitioners' Appeal came to be dismissed
for not making timely deposit of the mandatory deposit for
filing Appeal.
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2 According to Petitioners, the amount to be deposited
was Rs.25,00,000/- (Rupees Twenty Five Lakhs only) out of
which Rs.10,00,000/- (Rupees Ten Lakhs only) was paid on
time. The second installment of Rs.5,00,000/- (Rupees Five
Lakhs only) was to be deposited on 01st September 2022
but could not be deposited since there was bereavement in
the family, i.e., a very close relative of Petitioner No.2 died
on 18th August 2022.
3 Mr. Shukla states that the entire balance amount of
Rs.15,00,000/- (Rupees Fifteen Thousand only) payable is
available and will be deposited before the end of this week,
i.e., 21st October 2022.
4 Subject to making this deposit, the Appeal stands
restored, and consequently the impugned order dated 05 th
September 2022 will also stand quashed and set aside.
5 If the entire balance amount is not so deposited, this
order passed by us will not come into effect and Petitioner
will not be given any opportunity to seek any extension.
6 Petition disposed. No order as to costs.
7 We clarify that we have not made any observations on
the merits of the matter.
8 All rights and contentions are kept open.
3. This application was moved before the bench that has the
present assignment and that bench by an order dated 9 th February 2023
observed that the application is in effect in the nature of review. Applicant
therefore applied to the Hon'ble The Acting Chief Justice who reconstituted
this bench only for this matter.
4. The petition had been filed impugning an order dated 12 th
August 2022 passed by the Debts Recovery Appellate Tribunal, Mumbai
(DRAT) in which paragraph no.6 reads as under :
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6. Considering the entire facts and circumstances, in this
case, I find that the Appellants are entitled to indulgence
considering the that they have attempted payments even
after receiving notice under Sec. 13(2); and considering
the impecunious situation of the Appellants, I do not insist
on payment of 50% of the amount towards pre-deposit.
Interests of justice would be met if the Appellants are
directed to deposit a sum of Rs.25,00,000/- (Rs. Twenty
Five Lakhs only) towards pre-deposit for entertaining this
Appeal. The Appellants shall deposit a sum of
Rs.10,00,000/- (Rs.Ten Lakhs only) on or before
18.08.2022 and the rest of the amount shall be deposited
in three equal installments of Rs.5 Lakhs each within a gap
of two weeks each. The second installment shall be paid
on or before 01.09.2022, the third installment shall be
paid on or before 15.09.2022, and the fourth installment
shall be paid on or before 29.09.2022. In case of default in
payment of any of the above referred installments, the
Appeal stands dismissed automatically.
5. Thereafter, as petitioner failed to pay the installments granted
by the DRAT, the appeal got dismissed by the self operative order. Hence,
this Writ Petition was filed.
6. We showed indulgence to petitioner and allowed the Writ
Petition on 19th October 2022 by granting time to pay only because
petitioners' counsel made a statement to the court that the entire balance
amount of Rs.15,00,000/- payable was available and will be deposited
before 21st October 2022. In fact for that reason only we included
paragraph no.5 in the said order dated 19th October 2022 and stated that
the entire balance if not so deposited, the order passed by us will not come
into effect and petitioner will not be given an opportunity to seek any
extension. Still petitioner deposited only Rs.5,00,000/- and then until 30 th
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November 2022 sits quiet and takes out this Interim Application which is
heard today. We find petitioner has only abused the indulgence given by
this court. It was a blatantly false statement that was made to the court
when Mr. Shukla stated on 19th October 2022 that amount of Rs.15,00,000/-
was available and it will be paid on or before 21 st October 2022. Mr. Saraf
states that it was made on instructions, which means it is petitioner who
had played the fraud. Even in this Interim Application no acceptable reason
is given. Applicant states that due to demise of his father-in-law he could
not concentrate and manage his business which resulted in tremendous
financial difficulties. He does not state in the application the date on which
his father-in-law died and even copy of the death certificate has not been
annexed to the application. In our view, this was because, as recorded in
our order dated 19th October 2022, Mr. Shukla had stated at the hearing
there was bereavement in the family, i.e., a very close relative of Petitioner
No.2 died on 18th August 2022. In the petition, by which applicant had
sought extension to make the conditional deposit, the same excuse had been
taken. It is stated father-in-law of Petitioner No.2 (the applicant herein)
died on 18th August 2022. Therefore, this is a bogus excuse being taken
once again now.
7. The second excuse given is thereafter it was Diwali festival and
petitioner was unable to recover money from customers because Mr. Saraf
states the customers were doing Chopadi Pujan. But Diwali was in the week
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beginning 24th October 2022 and on 19th October 2022 petitioner through
his counsel informed the court that Rs.15,00,000/- was available and will be
paid on 21st October 2022.
8. Therefore, the entire attempt of petitioner is not only to mislead
respondent but more seriously to mislead this court. Therefore, we are not
inclined to entertain this Interim Application.
9. The observations of the Hon'ble Supreme Court in S.P.
Chengalvaraya Naidu V/s. Jagannath (Dead) by LRS1 are relevant in this
context. The court observed :
"The Courts of law are meant for imparting justice between
the parties. One who comes to the Court must come with
clean hands ......... We have no hesitation to say that a
person whose case is based on falsehood, has no right to
approach the Court. He can be summarily thrown out at
any stage of the litigation".
The Apex Court and this Court have, on many occasions, stated that if
a party comes to the Court with unclean hands, which in this case applicant
has, the party should be dealt with very strongly and substantial costs also
should be imposed on the party. The conduct of applicant intends
to impede and prejudice the administration of justice. Judiciary is the
bedrock and handmaid of orderly life and civilized society. In Sciemed
Overseas Inc. V/s. BOC India Ltd. 2 the Apex Court has lamented about the
unhealthy trend in filing of affidavits which are not truthful. Paragraph 2 of
1. (1994) 1 SCC 1
2. 2016 AII SCR 370
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the said judgment reads as under :
"2. A global search of cases pertaining to the filing of a
false affidavit indicates that the number of such cases that
are reported has shown an alarming increase in the last
fifteen years as compared to the number of such cases prior
to that. This is illustrative of the malaise that is slowly but
surely creeping in. This 'trend' is certainly an unhealthy one
that should be strongly discouraged, well before the filing
of false affidavits gets to be treated as a routine and normal
affair."
Kuldip Singh, J. (as he then was) in S.P. Chengalvaraya Naidu
(Dead) by LRS (Supra) in paragraph 5 observed :
"5. ................ We are constrained to say that more often
than not, process of the Court is being abused. Property-
grabbers, taxevaders, bank loandodgers and other
unscrupulous persons from all walks of life find the Court
process a convenient lever to retain the illegalgains
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."
10. Interim Application dismissed with costs in the sum of
Rs.50,000/- (Rupees Fifty Thousand Only) to be paid to respondent within
one week from today. If this cost is not paid within one week to respondent,
respondent may recover this cost from petitioner along with other debts
which has to be recovered.
(ARIF S. DOCTOR, J.) (K.R. SHRIRAM, J.)
Purti Parab
