2015 (1) TMI 1459 - HC - Indian Laws

Court Sets Aside Consent Decree, Appoints Receiver, Orders Expedited Hearing

The court set aside the consent decree dated 16th September 2012, appointed a court receiver to take possession of the suit premises, and directed the ... Appointment of the court receiver in respect of the suit premises - Whether there was any prima facie substance in the allegations of fraud made by the petitioners in both the writ petitions before the learned trial judge played upon the court by respondent no. 1 in collusion with the alleged constituted attorney of Mr. Peter Drego or not? - whether the learned trial court could have taken cognizance of such allegations of fraud committed upon the court and could have set aside the consent decree obtained by respondent no. 1 from the trial court based on such fabricated and fraudulent documents in the applications filed by the petitioners? HELD THAT:- A perusal of the record indicates that in the said suit, the respondent no. 1 had also filed a Notice of Motion bearing no. 1948 of 2012 inter alia praying for an order and injunction against the said M/s. Drego Enterprises from in any manner interfering with or disturbing with the alleged physical possession of the respondent no. 1 in respect of the suit premises and/or dispossessing the respondent no. 1 and/or his family members otherwise than by due process of law. Roznama dated 16th August, 2012 indicates that the trial court granted ad-interim injunction as prayed in terms of prayer (a) of the draft notice of motion. The alleged constituted attorney of the defendants agreed that the defendant would not dispossess the plaintiff - A perusal of the Roznama dated 14th September, 2012 indicates that respondent no. 1 was present through her advocate. One Mr. A.D. Thakur advocate appears to have been tendered his vakalatnama on behalf of the defendant and the same was taken on record. A perusal of the record clearly indicates that the material produced before the trial court was more than sufficient to establish the fraud committed by respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi upon the court in obtaining consent decree. There was a gross abuse of process of law and of court by the respondent and the said Mr. Shamsuddin Kasamali Qureshi. A perusal of the entire order makes it abundantly clear that the trial judge has taken a very casual approach in the matter while considering serious allegations of fraud committed upon the court though more than sufficient material has been produced by the petitioners to indicate the systematic fraud played upon the court by the respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi - when the application was made by the petitioners for setting aside the consent terms on the ground that there was no power of attorney on the record or proceedings, the trial court did not bother to look into the seriousness of such allegations and to look into as to how the vakalatnama of Mr. Shamsuddin Kasamali Qureshi came to be taken on record without original power of attorney and how could such consent terms on behalf of the registered partnership firm be taken on record of the court and the seal of the court was affixed on such fraudulently obtained consent decree. Whether any of the petitioners filing miscellaneous application for setting aside and/or stay of consent decree had locus to file such application for the relief's as claimed under section 151 of the Code of Civil Procedure or under any other provisions of law? - HELD THAT:- It is held that it would not be equitable to confer a benefit on a party who is a beneficiary of such order and decree obtained by fraud. A person whose case is based on falsehood has no right to approach to the court and can be summarily throughout at any stage of litigation. Even in the said judgment of this court, the petitioner who had applied for setting aside the order passed by this court was not a party to the said proceedings in which the order granting letters of administration was passed by this court and had brought to the notice of the court that the fraud was committed upon the court - Once the allegation of fraud, fabrication or concealment is brought to the notice of the court, which is alleged to have been committed by the opposite party to the proceedings on court, it becomes the duty of the court to look into such allegation whether any such order has been obtained by the party from the court by practicing a fraud, fabrication or concealment. The court can take action even suo moto if comes to the conclusion that an order is obtained fraudulently or by making false suggestion or by concealment of such fact by a party and can set aside such order. The petitioners have made out a case for appointment of the court receiver in respect of the suit premises in view of the clear case of fraud practiced upon the court by the respondent no. 1 in obtaining the consent decree and in committing gross abuse of process of law and of court - Petition allowed. Issues Involved:1. Validity of the consent decree dated 16th September 2012.2. Allegations of fraud and forgery by the respondent.3. Locus standi of the petitioners to challenge the consent decree.4. Applicability of Section 151 of the Code of Civil Procedure, 1908.5. Appointment of a court receiver for the suit premises.Detailed Analysis:1. Validity of the Consent Decree:The petitioner challenged the consent decree dated 16th September 2012, alleging it was obtained fraudulently. The decree was based on consent terms signed by the respondent and Mr. Shamsuddin Kasamali Qureshi, who claimed to be the constituted attorney of M/s. Drego Enterprises. However, no power of attorney was filed or referenced in the court records. The court found that the decree was obtained without proper authority and was based on fraudulent claims.2. Allegations of Fraud and Forgery:The petitioner presented evidence that Mr. Shamsuddin Kasamali Qureshi, a former peon of M/s. Drego Enterprises, had forged documents and misrepresented himself as the constituted attorney of the firm. The court noted multiple FIRs against Mr. Qureshi for forgery and fraud. The respondent's claim of having paid Rs. 2,60,000 to M/s. Drego Enterprises was unsupported by any proof of payment. The court concluded that the consent decree was obtained through fraud and forgery.3. Locus Standi of the Petitioners:The petitioners, being the rightful owners of the suit premises under a registered agreement for sale, had their names recorded in the society's records. The court held that they had the locus standi to challenge the consent decree as they were directly affected by the fraudulent actions of the respondent and Mr. Qureshi. The court rejected the trial judge's view that the petitioners had no locus standi.4. Applicability of Section 151 of the Code of Civil Procedure, 1908:The court held that it has inherent powers under Section 151 of the Code of Civil Procedure to set aside orders obtained by fraud. The court emphasized that it is its duty to prevent abuse of its process and to ensure justice. The court cited several judgments, including the Supreme Court's decision in Indian Bank vs. M/s. Satyam Fibres (India) Pvt. Ltd., affirming its inherent powers to recall orders obtained by fraud.5. Appointment of a Court Receiver:Given the fraudulent nature of the consent decree and the need to protect the suit premises, the court appointed a court receiver to take forcible possession of the suit premises. The receiver was directed to seal the premises until the disposal of the suit and for four weeks thereafter.Conclusion:The court set aside the consent decree dated 16th September 2012 and restored the suit to file. It appointed a court receiver to take possession of the suit premises and directed the trial court to expedite the hearing of the suit. The respondent was ordered to pay costs to the petitioners. The court rejected the respondent's request for a stay on the appointment of the court receiver.