Commissioner Of Central Excise vs Anuj Vohra
2003 Latest Caselaw 308 Del

ORDER

C.K. Mahajan, J.

1. By way of the present application the applicant seeks modification of the order dated 7th February, 2003 whereby the order dated 14th August 2002 passed by the Joint Secretary to the Government of India was stayed. It was contended before the Court that in terms of Section 129DD(b) of the Customs Act, 1962 the petitioner was not given notice of the revision filed by the applicant against the order of the Commissioner of Customs (Appeals) and as such the impugned currency was released to the applicant/respondent No. 2 on payment of redemption fine and penalty.

2. It is brought to the notice of the Court that the applicant/respondent No. 2 has already filed a Writ Petition being CWP No. 8002/2002 in this Court on 10th December, 2002 seeking direction to the Department of Customs to release the impugned currency in terms of order dated 14th August, 2002. The following order was passed in the said Writ Petition on 11th December, 2002 :-

"CW No. 8002/2002

Issue notice to the respondents to show cause as to why rule nisi be not issue, returnable on 10-2-2003. Notice be also issued in CM for the date fixed.

Mr. Nishakant Pandey accept notice on behalf of the respondents.

Learned Counsel for the respondent states that he would seek instructions and in case there are no tenable objections he will the currency released in compliance with the order passed in Revision Petition on or before the next date.

Renotify on 10-2-2003.'

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3. The present petition has been filed by the petitioner on 28th January, 2003. The petitioner has concealed the fact that the applicant has already filed the aforesaid CWP No. 8002/2002 and obtained the interim order.

4. Reply to the application has been filed by the petitioner wherein it is stated that inadvertently the fact of pendency of CWP No. 8002/2002 was not mentioned and it was a lapse on the part of the petitioner which is not deliberate.

5. After hearing Counsel for the parties and perusing the records I am of the view that the petitioner has deliberately concealed the fact of pendency of the CWP No. 8002/2002 and the order passed therein to obtain interim orders.

6. It is settled law that when an order is obtained by fraud and/or by not disclosing complete facts to the Court, the Court is empowered to review/recall its earlier order.

7. The Supreme Court in S.P. Chengalvarya Naidu (dead) by LRs. v. Jagannath (dead) by Lrs. and Ors. held that :-

"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 Court of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. 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..... 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 cheating intended to get an advantage...."

8. Counsel for the petitioner concedes that the fact filing of the earlier writ petition and the order dated 11th December, 2002 passed therein has not been disclosed in the present petition. The petitioner was duty bound to apprise the Court about the fact that the applicant has already filed a Writ Petition in this Court. The petitioner deliberately suppressed the aforesaid fact and obtained an interim order on 7th February, 2003. There is not an iota of an averment by the petitioner in the present writ petition that the applicant/respondent has already preferred CWP No. 8002/2002. The petitioner has thus abused the process of the Court by not disclosing the material facts. The petitioner is, therefore, guilty of suppression.

9. Suppression of material fact by itself is a sufficient ground to decline the discretionary relief. A party must approach the Court with clean hands and disclose all material facts which may in one way or the other have direct bearing on the outcome of the case. A person guilty of concealment of material facts is not entitled to discretionary relief. He must make honest disclosure of all relevant statements of facts, and non-disclosure thereof would amount to an abuse of the process of the Court.

10. In the aforesaid circumstances the application is allowed and the interim order passed on 7th February, 2003 is recalled.

CWP No. 999/2003:

List for hearing on 15th July, 2003