TaxTMI 
TaxTMI 
2008 (7) TMI 851
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....mercial Parameters (Part-I) and (ii) Price Bid (Part-II). Price bid of the tender was to be opened only after opening of the Techno-Commercial Parameters and if the bidder was found qualified. In response to the first notice dated June 5, 2000, 19 tender papers were sold. The authorities, however, received response only from 10 persons. Techno-Commercial Parameters (Part-I) was opened and it was found that only one bidder, namely, M/s Ores India Pvt. Ltd. (respondent NO. 2 herein) was qualified. The process, therefore, had to be cancelled because for opening of Price Bid (Part-II), minimum three Techno-Commercially qualified offers ought to have been there as per Clause 7.7 of Purchase/Contract Procedure, 2000. Re-tender was, therefore, issued on September 8, 2000, but it was also required to be cancelled owing to 'no perceptible improvement' in the situation. The tender was floated for the third time, which was unsuccessful. The fourth notice inviting tenders was issued on January 22, 2001. It met with the same fate. Then fifth time, tenders were invited on May 7, 2001 wherein the appellant was found eligible and qualified. His bid was the lowest. The said bid was accepted and the....
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....lant to decide disqualification of respondent No. 2. Miscellaneous Cases 9 and 10 of 2005 were also said to have been filed requesting the High Court to dispose of matters in view of compromise and settlement arrived at between the parties. 5. The High Court by the impugned order dated February 16, 2005, disposed of all the applications on the basis of the settlement said to have been arrived at between the parties which was duly recorded in the order wherein the present appellant was also a partyrespondent. The appellant came to know that fraud had been committed by the respondents upon him as well as upon the Court. He, therefore, filed Miscellaneous Case No. 63 of 2005 on June 28, 2005 to recall the order dated February 16, 2005 alleging inter alia that fraud has been perpetrated by the opposite party on him as well as on the Hon'ble Court. A prayer was also made to investigate the matter by Central Bureau of Investigation (CBI) or Vigilance Authorities. Since nothing was done by the High Court, he again approached this Court by filing Special Leave Petition which was registered as Special Leave Petition (Civil) No. ...... of 2006 (CC 2486 of 2006). The said petition came up ....
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.... also revoked and withdrawn Power of Attorney issued in favour of Ramesh and, obviously therefore, he had no authority to represent the appellant and could not have appeared either before SAIL for negotiations for him or entered into any compromise or settlement on behalf of the appellant. It was also contended that though for a substantial long period, application for recalling of order instituted by the appellant had not come on Board and he had to approach this Court making grievance about non-hearing of the matter, there was no progress whatsoever. It was only after the order passed by this Court and affording an opportunity to the respondent stating that if he would not appear, an appropriate order would be passed that respondent No. 2 got the matter hurriedly disposed of in the High Court. It was also the allegation of the appellant that at the time of hearing of Miscellaneous Cases, a new advocate appeared on his behalf who was not engaged by the appellant. Some blank papers on which the appellant might have singed earlier came to be utilized for the purpose of making applications for settlement showing that the appellant was agreeable to such settlement; the settlement was ....
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.... the appellant nor he could insist continuance of the contract. The counsel, therefore, submitted that the appeal should be dismissed by this Court. 11. Even otherwise, according to the counsel, no communication was sent at any point of time by the appellant to SAIL that though earlier he had issued Power of Attorney in favour of Ramesh of Rithwik Projects, it was subsequently withdrawn or revoked and that he would not represent the appellant in future before SAIL. On the contrary, though notice was issued by SAIL and received by the appellant, he did not remain present and sent a communication to SAIL that Ramesh of Rithwik Projects would represent him. It was, therefore, not open to the appellant thereafter to turn round and make wild allegations against SAIL nor is he entitled to any relief. 12. On behalf of respondent No. 2 - M/s Ores India Pvt. Ltd., the counsel contended that no case whatsoever has been made out by the appellant so as to interfere with the order passed by the High Court. According to the counsel, in fact SAIL had obliged appellant which was clear from the facts and proved from the decision in the Review Petition by the High Court. When 4th tender notice....
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....claimed Chief Justice Edward Coke of England before about three centuries. Reference was made by the counsel to a leading decision of this Court in S.P. Chengalvaraya Naidu (Dead) by Lrs. V. Jagannath (Dead) by Lrs. & Ors., (1994) 1 SCC 1 wherein quoting the above observations, this Court held that a judgment/decree obtained by fraud has to be treated as a nullity by every Court. 16. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry & Ors. V. Govt. of A.P. & Ors., (2007) 4 SCC 221. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: "It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order -by the first Court or by the final Court- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings". 17. The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at....
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....ted or abruptly discontinued during the said period. It was over in 2005 by efflux of time. What was done by SAIL was to implement the order of High Court in connection with tender notice No. 4 which was not acted upon. In that process, parties were called for negotiations, offer of respondent No.2 was accepted and work was given to him. It is, therefore, not correct to say that the appellant had suffered. The appellant wanted to continue the work even though the period of tender notice No. 5 was over and he had taken the benefit thereunder. The appellant had no right or reason to make grievance so far as tender notice No. 4 was concerned. Hence, the appellant is not entitled to any relief. 22. We find considerable force in the argument of the learned counsel. From the record, it is clear that tender notice No.4 was wrongly ignored and no process thereunder was undertaken by SAIL. What was granted to the appellant was a contract under tender notice No.5. The appellant was working under tender notice No.5. Meanwhile, the review of respondent No.2 against tender notice No.4 was allowed and after the order passed by this Court dismissing Special Leave Petitions, SAIL implemented th....
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....has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement". (emphasis supplied) 26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application bec....
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.... not come with candid facts and 'clean breast' cannot hold a writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court. 30. Let us consider some important decisions on the point: 31. In State of Haryana v. Karnal Distillery, (1977) 2 SCC 431, almost an agreed order was passed by the Court that on expiry of the licence for manufacturing of liquor on September 6, 1976, the distillery would cease to manufacture liquor under the licence issued in its favour. Then, the Company ....
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....fact, at one stage we were inclined to refer the District Judge's report both to the Medical Council as well as the Bar Council for appropriate action but we refrained from doing so as the petitioners' counsel both on behalf of his clients as well as on his own behalf tendered unqualified apology and sought mercy from the Court. We, however, part with the case with a heavy heart expressing our strong disapproval of their conduct and behaviour..." (emphasis supplied) 35. In Welcom Hotel v. State of A.P., (1983) 4 SCC 575, certain hoteliers filed a petition in this Court under Article 32 of the Constitution challenging the maximum price of foodstuffs fixed by the Government contending that it was uneconomical and obtained ex parte stay order. The price, however, was fixed as per the agreement between the petitioners and the Government but the said fact was suppressed. 36. Describing the fact as material, the Court said: "Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court". 37. In Agricultural & Process Food Products v. Oswal Agro Furnae, (1996) 4 SCC 297, the petitioner filed a petition in the....
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....icers were promoted who were not made parties to the petition. 42. In affidavit-in-rejoinder, once again, the stand taken by the petitioner was sought to be justified. It was stated: "The deponent had no knowledge of the writ petition filed before the High Court of Andhra Pradesh, hence as soon as it came to his knowledge the same has been withdrawn. Secondly, the petitioners even today do not know the names of all such 58 candidates who have been promoted/favoured". It was contended on behalf of the Bank that even that statement was false. Not only the petitioner- Federation was aware of the names of all the 58 officers who had been promoted to the higher post, but they had been joined as party- respondents in the writ petition filed in the Karnataka High Court, seeking stay of promotion of those respondents. It was, therefore, submitted that the petitioner had not come with clean hands and the petition should be dismissed on that ground alone. 43. 'Strongly disapproving' the explanation put forth by the petitioner and describing the tactics adopted by the Federation as 'abuse of process of court', this Court observed: "There is no doubt left in our minds that the p....