TaxTMI 
TaxTMI 
2015 (1) TMI 1459
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....oner for setting aside the consent terms and decree of consent terms both dated 16th September, 2012 obtained by the respondent Ms. Prabha Ganpat Borkar alias Ms. Prabha Dinesh Kannan. By consent of parties, both the petitions were heard together and are being disposed of by a common order. Some of the relevant facts pertaining to the subject matter of both these writ petitions and civil application are as under:- 2. I shall first summarise the relevant facts in the Writ Petition No. 4797 of 2013. M/s. Drego Enterprises which was a registered partnership firm and which is the petitioner in Writ Petition No. 11790 of 2013 constructed a building Flushel Apartment in the year 1973 consisting of ground plus 7 floors with total 14 flats, two flats on each floor. In the year 1975, Flushel Premises Co-op. Society Ltd. was formed. Out of the 14 floors, the said M/s. Drego Enterprises had sold 12 flats save and except two flats on 7th floor which were retained to distribute and appropriate to its family members/property owners. It is the case of the petitioner that 1974 onwards all outgoings, electric bills, society bills, taxes were paid by the Drego family till the sale of the two flats ....
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....amsuddin Kasamali Qureshi appeared before the City Civil Court and consented for grant of ad-interim injunction against the said M/s. Drego Enterprises and in favour of the respondent no. 1. 7. On 16th September, 2012, the respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi filed consent terms in the said suit thereby said M/s. Drego Enterprises allegedly agreed to grant various rights in favour of the respondent no. 1 herein. It is the case of the petitioner that the said Mr. Shamsuddin Kasamali Qureshi who fraudulently claimed himself to be an alleged constituted attorney of the said M/s. Drego Enterprises did not file any power of attorney alleged to have been issued in his favour by Mr. Peter Drego. It is the case of the petitioner that no such power of attorney was even referred in the consent decree or the consent terms. There was no alleged power of attorney on the record of the City Civil Court. 8. It is the case of the petitioner that on 1st October, 2012 the respondent no. 1 tried to break into the suit premises but was prevented by the society members. Some of the members and also the aunt who was the member of the society called the petitioner. The petitione....
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....l court came to be set aside and the said writ petition was allowed and the matter was remanded back for re-hearing of the said Miscellaneous Application No. 20 of 2012. 13. Before the trial court in the said suit, M/s. Drego Enterprises through one of his partner Mr. Kenneth Drego also filed a separate Miscellaneous Application (4 of 2013) inter alia praying for setting aside the consent decree and for other relief's. The said Miscellaneous Application No. 4 of 2013 filed by M/s. Drego Enterprises was heard alongwith Miscellaneous Application No. 20 of 2012 which was filed by the petitioner. By an order dated 9th May, 2013 the learned trial judge dismissed the Miscellaneous Application No. 20 of 2012 which was filed by the petitioner and adjourned the Miscellaneous Application No. 4 of 2013 to 12th June, 2013. On 9th May, 2013, the stay application made by the petitioner for continuation of the order dated 6th October, 2012 and 23rd November, 2012 was rejected by the learned trial judge. 14. On 10th May, 2013 the petitioner made further application for continuation of the ad-interim order. The said application was partly considered by recording the undertaking of the respond....
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....emises were transferred and assigned to Sharon Lilian Gonsalves (flat G-1) and Horace Kevin Gonsalves (flat G-2). The said agreement was signed by Ms. Jessica Peter Drego on behalf of M/s. Drego Enterprises. 20. It is the case of the petitioner that since 2006 Sharon and Horace were in exclusive use, occupation and possession of the suit flat and had been paying society maintenance charges for the same. Flushel Society has already transferred shares and two flats Sharon Lilian Gonsalves (flat G-1) and Horace Kevin Gonsalves (flat G-2) in the AGM of the society held on 10th August, 2011. The society transferred shares in respect of the said two flats on 12th January, 2012. 21. It is the case of the petitioner that in the year 2012 when Horace and Sharon were not in India, the respondent no. 1 trespassed into the suit premises forcibly and created havoc in the society. When the members of the society obstructed the entry of respondent no. 1, the respondent no. 1 produced a copy of the consent terms of the City Civil Court signed by the alleged constituted attorney of Mr. Peter Drego and stating that the respondent no. 1 was the true owner of the suit flat. The members of the societ....
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....n which the respondent no. 1 placed reliance on allegedly executed the agreement in the year 1974 with respondent no. 2 was itself fraudulent document. The said alleged agreement was not even registered. The respondent no. 1 could not show any consideration alleged to have been paid in respect of the suit premises to the respondent no. 2. The promoters had filed an application for registration of the society after the alleged execution of the agreement in favour of the respondent no. 1. It is not in dispute that the suit premises were always shown in the name of the respondent no. 2 from the year 1974 till 2002. The respondent no. 1 could not show any proof of any payment alleged to have been made by the respondent no. 1 to the society or showing any proof of making any application to the society for the membership. The respondent no. 1 also could not produce any proof of showing her possession in respect of the suit flats from 1974 to 2002. 24. The learned counsel submits that since the date of the petitioner becoming member of the society in respect of the suit flats, admittedly the petitioner started paying all out-goings and other charges in respect of the suit flats to the so....
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....act Act, 1872 would not be deemed to be lawful within the meaning of the said rule. Under Order XXIII Rule 3-A, no suit is maintainable to set-aside a decree on the ground that compromise on which the decree is passed, was not lawful. It is submitted that the petitioner having interest in the subject matter of this suit and though was a necessary party to the suit was not impleaded as a party defendant and the respondent no. 1 having committed fraud upon the court in respect of the subject matter of the suit in which the petitioner had interest, the petitioner had locus to challenge such decree obtained fraudulently and to bring to the notice of the court fraud committed by a party to the suit upon the court. 28. The learned counsel submits that since M/s. Drego Enterprises who was admittedly a party defendant in the suit before the trial court, had informed the court that the petitioner had right, title and interest in the suit properties, the trial court ought to have impleaded the petitioner as a party to the suit. The learned counsel placed reliance on section 44 of the Indian Evidence Act, 1872 and would submit that any party to a suit or other proceeding may show that any ju....
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....he wife of the said Peter Drego and who had executed an agreement in favour of the petitioner on behalf of M/s. Drego Enterprise had filed a complaint with the concerned police station of the said Peter Drego missing from Goa. The concerned police station had also certified that the said Peter Drego was missing and was not traceable. It is submitted that even if any such power of attorney was executed by Peter Drego, the same was not executed on behalf of M/s. Drego Enterprise and at most it could have considered as if executed by the said Peter Drego in his personal capacity. It is submitted that even the alleged power of attorney was executed contrary to the provisions of the Partnership Act, 1932 and could not be acted upon. 33. The learned counsel invited my attention to the alleged power of attorney alleged to have been executed in the year 1996 and would submit that though the name of the Bombay was already changed to Mumbai one year prior to the date of execution of the alleged power of attorney, in the power of attorney the address mentioned of Peter Drego was of Bombay. It is submitted by the learned counsel that neither the said power of attorney was registered nor the c....
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.... and to pass appropriate orders under section 151 of the Code of Civil Procedure, 1908. SUBMISSIONS OF THE PETITIONER IN W.P. NO. 11790 OF 2013. 37. Mr. Chatterjee, the learned senior counsel for the petitioner submits that there was no agreement entered into between the petitioner and the respondent. Even the copy of the said alleged agreement of 1974 would indicate that the respondent was minor. The petitioner did not receive any consideration of Rs. 1.00 lakh, as alleged in the said agreement. The learned senior counsel invited my attention to the consent terms filed by the respondent allegedly with the petitioner before the trial court and would submit that no alleged consideration of Rs. 2,60,000/- alleged to have been paid by cheque or otherwise to the petitioner or has been received by the petitioner. 38. The learned senior counsel placed reliance on the reports submitted by the police pursuant to the police investigation carried out and would submit that even according to the said report, no cheque of Rs. 2,60,000/- cleared in the account of the petitioner or was debited to the account of the respondent. The trial court did not consider the police report though such repo....
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....to come to court with a true case and prove it by true evidence". 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 courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains 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. 6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. 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 a cheating intended to get an advantage. Jagannath was worki....
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.... any caveat and thus have no locus to file these petitions for revocation of the grant of succession certificate under Section 263 of the Act. 14. Insofar as the issue of locus standi raised by Mr. Kumbhakoni, learned senior counsel is concerned, Mr. Korde, learned senior counsel does not dispute that the petitioners are not the legal heirs of the said deceased. It is also not disputed that in the petitions filed by the petitioners, the petitioners have disputed the alleged title in respect of the deceased testator. The learned senior counsel, however, submits that even if this Court comes to the conclusion that the petitioners have no caveatable interest in the estate of the deceased, the petitioners are entitled to urge and bring to the notice of the Court that the letters of administration have been fraudulently obtained by the respondent by concealment of material facts. 15. In my view, Mr. Kumbhakoni, learned senior counsel is right in his submission that a party who has no caveatable interest and claims interest adverse to the alleged interest of the deceased testator could not have maintained a caveat. The question, however, that arises for consideration of this Court is....
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....obtained fraudulently or by making false suggestion or by concealment of such fact, it is duty of Court to set aside such grant." 43. The learned senior counsel also placed reliance on the judgment of this Court delivered on 6th May, 2014 in Notice of Motion No. 765 of 2009 Suit No. 4816 of 2000, in the case of Chandrabhan Chunilal Agarwal vs. Sharad by son of Ramgopal Radhavallabh Agarwal & Ors. and in particular paragraphs 71, 72 and 73, which read as under:- "71. In so far as submissions of the learned counsel for the intervener that the defendants and the plaintiff are trying to convert the notice of motion as suit for possession against the intervener and the same are thus not maintainable is concerned, in my view since the fraud is committed by the plaintiffs and the intervener on this court, this court has power to recall any such orders passed by this court which are obtained by any party fraudulently and by committing fraud upon this court by exercising inherent powers. Separate suit for setting aside such orders obtained by committing fraud is not required. In my view, such orders can be set aside and/or recall in the notice of motion in the same suit. 72. From the j....
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....ncerned, would submit that the petitioner had no locus to file any application before the trial Court under Section 151 of the Code of Civil Procedure, 1908 and under any other provisions. It is submitted that the Court has no power to take recourse to section 151 to set aside the consent decree. My attention is invited to the provisions of Order XXIII Rule 3 and Order XXIII Rule 3A and it is submitted that when the proviso to Order XXIII Rule 3 was inserted w.e.f. 1st February 1997 and the Order XXIII Rule 3A was also inserted by the Legislature, Order XLIII Rule 1 Clause (m) came to be deleted. It is submitted by the learned counsel that proviso to Order XXIII Rule 3 applies only to a party to the suit and not to a third party. In view of prohibition under Order XXIII Rule 3A, the parties are prohibited from filing a suit even if the decree is unlawful. The said provision is thus available only to a party to the suit and not to an outsider. 45. It is submitted that the petitioner admittedly not being a party to the suit and/or the consent decree was not prohibited from filing a separate suit for alleging fraud, if any, committed by the party to the suit in obtaining the consent ....
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....ported in (2006) 5 Supreme Court Cases 566; 2) Daljit Kaur and Anr. Vs. Muktar Steels Pvt. Ltd. & Ors., reported in 2014(2) SCJ 128; 3) Arjun Singh Vs. Mohindra Kumar & Ors., reported in (1964) 5 SCR 946; and 4) Padam Sen & Anr. Vs. State of Uttar Pradesh, reported in (1961) 1 SCR 884. 48. Reliance is placed on paragraphs 16 and 17 of the judgment in the case of Pushpa Devi Bhagat (dead) through L.R. Vs. Rajinder Singh and Ors. (supra) which read thus:- "16. Section 96 provides for appeals from original decrees. Sub-section (3) of Section 96, however, provided that no appeal shall lie from a decree passed by the court with the consent of the parties. We may notice here that Order 43 Rule 1(m) of CPC had earlier provided for an appeal against the order under Rule 3 Order 23 recording or refusing to record an agreement, compromise or satisfaction. But Clause (m) of Rule 1 Order 43 was omitted by Act 104 of 1976 with effect from 1.2.1977. Simultaneously, a proviso was added to Rule 3 Order 23 with effect from 1.2.1977. We extract below the relevant portion of the said proviso: "Provided that where it is alleged by one party and denied by the other that an adjustment or sati....
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.... case of Daljit Kaur and Anr. Vs. Muktar Steels Pvt. Ltd. & Ors. (supra) which reads thus:- "14. The pivotal issue that arises for consideration is whether in the present case the appeal could have been preferred against the judgment and decree passed by the learned trial Judge. As is evincible, the lower appellate court as well as the High Court has placed reliance on Pushpa Devi Bhagat (supra) to come to hold that the appeal was not maintainable. In Pushpa Devi Bhagat (supra) a two-Judge Bench, dealing with a contention canvassed for the first time before this Court that the appeal before the first appellate court or before the High Court was not maintainable as there was a consent decree, permitted the contention to be raised and heard both parties on that score. In the context, it referred to Rules and of Order XXIII and analyzing the said provisions summed up the statement of law emerging from Order that (i) no appeal is maintainable against a consent decree having regard to the specific bar contained in Section Code of Civil Procedure; (ii) no appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the d....
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....ode. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. We shall confine our attention to the topic on hand, namely applications by defendants to set aside ex parte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX, Rule 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record ....
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....e might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX, Rule 7 and Order IX, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code con....
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....epresent the firm and to execute power of attorney in favour of a third party to represent them and take an action on behalf of the firm under Sections 18 and 19 of the Indian Partnership Act, 1932. In support of this submission, learned counsel placed reliance on the following judgments:- 1) J.J.L.B. Engineers and Contractors through its partner Balabeersingh Vs. Manmohan Harijinder & Associates & Anr., reported in 2001(3) Bom. C.R. 577; and 2) Sanganer Dal and Flour Mill Vs. F.C.I. and Ors., reported in (1992) 1 Supreme Court Cases 145. 53. Reliance is placed on paragraph 8 of the judgment in the case of J.J.L.B. Engineers and Contractors through its partner Balabeersingh (supra) which reads thus:- "8. Section 19(2)(a) of the Partnership Act clearly provides that in the absence of any usage or custom of trade to the contrary the implied authority of the partner does not empower him to submit a dispute relating to the business of the firm to arbitration. There is no dispute that the matter which was referred to the arbitration was relating to the business of the appellant's firm. Clause 14 of the Partnership Deed of the appellant empowers four partners of the firm inclu....
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....al. Then crucial question is whether a valid contract which was not repudiated as per law, binds the other partners? Our answer is yes. It is not in dispute that the contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitration. Therefore, the reference made by the Addl. District Judge under Section 20 of the Arbitration Act is perfectly within the jurisdiction and in terms of the contract. It is not the case of the partners that the firm is not carrying on the business of the supply of Dal and that Satya Narain, as found by the Trial Court, was authorised to do business on behalf of the firm." 55. It is submitted that the learned trial Judge has rightly rendered a finding that M/s. Drego Enterprises was not in existence. Learned counsel submits that though the firm technically continued to be in existence and the petitioner in Writ Petition No. 11790 of 2013 continued to be a partner of the said firm, the fact remains that the said firm was defunct. Other partners had already left India for decades. Mr. Peter Drego was thus authorised to execute power of attorney. Various correspondence were placed on record which were alleged to ha....
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....ce thus can be placed by the petitioner on such statement made before police officer. It is submitted that the learned trial Judge, therefore, rightly did not consider any such statement made before the police officer. 58. In so far as the judgment relied upon by Mr. Chatterjee, learned senior counsel for the petitioner in Writ Petition No. 11790 of 2013 is concerned, learned counsel made an attempt to distinguish the said judgment. In so far as the judgment of this Court in the case of Peter John D'Souza (supra) is concerned, it is submitted that in that judgment, this Court considered the powers of testamentary Court under Section 263(b) and (c) of the Indian Succession Act, 1925 which are the enabling provisions. It is submitted that in view of the admitted position that the Will was suppressed though the same was within the knowledge of the respondents, this Court exercised powers and set aside the grant. The facts of this case, however, are different. In so far as the judgments of this Court in the cases of Chandrabhan Chunilal Agarwal (supra) is concerned, learned counsel submits that the facts before this Court in the said judgment is totally different and not applicabl....
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....rroneously held that in absence of particulars of fraud or deception, merely by submitting that the power of attorney is forged, it could not be held that the fraud is played upon the Court and on the said fraud, order of decree shall be set aside. It is submitted that the application for intervention has been dismissed by the learned trial Judge on the ground that a stranger cannot interfere or intervene in the application for setting aside the decree under Order XXIII Rule 3 of the CPC. Though the petitioner was a party-defendant to the suit, the learned trial Judge rejected the said application on the ground that the petitioner was a stranger to the suit and could not apply for setting aside the consent decree. 62. Ms. Khan, learned counsel for the petitioner in Writ Petition No. 4797 of 2013 in rejoinder submits that the petitioner had not applied for intervention and for appropriate relief's on the ground that the respondent no. 1 had committed a fraud upon the petitioner but applied on the ground that the respondent no. 1 had obtained such consent decree fraudulently by practicing a fraud upon the court and abused the process of Court. It is submitted that Section 151 of....
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....e of respondent no. 1 that the earlier agreement of leave and license which was to be valid till 2016 was terminated before execution of Agreement for Sale dated 27th December 2013. The respondent no. 1 has violated the status-quo order passed by this Court. In these circumstances, the learned counsel submits that to preserve the valuable property which is subject matter of these proceedings, it would be appropriate, if the Court Receiver of this Court is appointed with all powers to take forcible possession of the suit property from the alleged licensee, the alleged purchaser, from respondent no. 1 or anybody else found in possession of the suit property and the suit premises be directed to be sealed. REASONS AND CONCLUSIONS 65. With the assistance of the learned counsel appearing for the parties, I have gone through the records and proceedings of this matter. The annexures to the proceedings filed and compilation filed in this proceedings were forming part of the record before the learned trial judge. The question that arises for consideration of this court is whether there was any prima facie substance in the allegations of fraud made by the petitioners in both the writ petiti....
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.... of the premises would be handed over to her shortly. 69. It was the case of the respondent no. 1 that on 15th August, 2002, the respondent no. 1 made payment in the sum of Rs. 2,60,000/- as alleged to have been demanded by the said M/s. Drego Enterprises. The respondent no. 1 also placed reliance upon the receipt dated 1st September, 2002 alleged to have been issued by the said M/s. Drego Enterprises through Mr. Peter Drego. It is alleged by the respondent no. 1 that she thereafter collected from the said M/s. Drego Enterprises the keys of the suit premises and took possession of the suit premises and since then she had been in use, occupation and possession of the suit premises. In the said plaint, the respondent no. 1 has alleged that two ladies started coming to the suit premises and demanded that they would be forcibly entering into the suit premises. Respondent no. 1 lodged a complaint with the Khar Police Station on 9th August, 2012. In the said complaint addressed to the Khar Police Station, the respondent no. 1 did not disclose the name of the persons who were allegedly threatening the respondent no. 1 to vacate the suit premises. 70. A perusal of the plaint further indi....
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....rned advocate appearing for the parties informed the court that they had arrived at an amicable settlement and were intending to file consent terms. The trial court took the said consent terms signed by the plaintiff and the alleged constituted attorney of the defendant alongwith their respective advocates on record. The trial court disposed of the said suit in terms of the consent terms and ordered that the decree be drawn accordingly. A perusal of the record indicates that no power of attorney was even relied upon by the said Mr. Shamsuddin Qureshi, the alleged constituted attorney of Mr. Peter Drego who was then partner of M/s. Drego Enterprises. There was no reference to the alleged power of attorney at all in any of the Roznama on record of this proceedings. Even when the consent terms are taken on record by the trial court, there was no endorsement made whether the trial court had seen the original power of attorney of the said Mr. Peter Drego in favour of Mr. Shamsuddin Qureshi who was working as a peon once upon a time in the office of M/s. Drego Enterprises. A perusal of the record also does not indicate that any writ of summons or any other notice was served upon M/s. Dre....
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....elf as constituted attorney and had signed the consent terms without any authority at all. The said power of attorney had been established as fraudulent in charge-sheet in MECR 1/2006 by DCB/CID showing that the respondent no. 1 and the said Mr. Shamsuddin Qureshi had cheated the court, played fraud, practised deceit with help of forged documents and attempted to misappropriate valuable properties. 76. In the said miscellaneous application, the petitioner also referred to another important fact which is not in dispute that the said Mr. Shamsuddin Qureshi had filed a complaint at Churchgate Police Station on 27th January, 2007 to the effect that he had alleged to have lost the alleged power of attorney. Though admittedly Mr. Shamsuddin Qureshi did not have any original of the alleged power of attorney with him, admittedly on the date of filing vakalatnama or on the date of filing consent terms, how could he represent M/s. Drego Enterprises or file any consent terms on its behalf. 77. The petitioners also placed on record that the respondent no. 1 and her husband were apprehended for serious FEMA crime in July 2002 before the trial court. The petitioners also brought on record the ....
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....given to him by Mr. Peter Drego was lost in the year 2007 and he had made a complaint to the Churchgate Police Station on 27th January, 2007 which was registered as Crime NO. 5/2007 under section 379 of Indian Penal Code. He also urged that since 2002 Mr. Peter Drego was missing. He also admitted that on complaint filed by the aunt of the complainant, he was arrested and was later released on bail. The charge-sheet filed against him is pending. The State Government also opposed the said anticipatory bail application filed by the said Mr. Shamsuddin Kasamali Qureshi. It was also urged by the State Government that though the said applicant had produced copy of the power of attorney, the original was to be recovered. The disputed power of attorney was held to be invalid by the Industrial Court, yet the same was used by the said Mr. Shamsuddin Kasamali Qureshi in the proceedings filed before the City Civil Court at Dindoshi. Several other criminal cases were registered against the said Mr. Shamsuddin Kasamali Qureshi for various offences committed by him. 81. In the said order, the learned Sessions Judge took cognizance of the fact that the said Mr. Peter Drego was admittedly missing ....
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....ession since 2002 or that in furtherance of agreement of 1974, she had applied for becoming member of the society in respect of the suit premises. A perusal of the plaint filed by her in the Bombay City Civil Court indicates that she had applied for simpliciter injunction in respect of the suit premises by fraudulently impleading only M/s. Drego Enterprises. The respondent no. 1 could not show any record for satisfaction of this court that the said M/s. Drego Enterprises, the only defendant in the said suit was served with any notices and/or writ of summons in the said suit. The alleged constituted attorney Mr. Shamsuddin Kasamali Qureshi appeared on the first day before the trial court and agreed for ad-interim injunction against M/s. Drego Enterprises. Within one month from the date of such ad-interim order, the respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi entered into consent terms purportedly representing the defendants i.e. M/s. Drego Enterprises and conferred various alleged rights in favour of respondent no. 1 in respect of the suit premises thereby conferring her alleged ownership based on the 1974 documents though the suit was simpliciter was for grant of ....
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....ned counsel appearing for the respondent no. 1 could not produce any such document for satisfaction of this court though an opportunity was repeatedly rendered to the respondent no. 1. In my view, the alleged agreement of 1974 and other two agreements which are relied upon by the respondent no. 1 are ex-facie fabricated and fraudulent. 88. In my view, the respondent no. 1 who has prima facie criminal antecedent and Mr. Shamsuddin Kasamali Qureshi also having criminal antecedent, once these material facts alongwith documents were brought on record before the trial court by both the petitioners in support of their plea that the fraud has been committed upon the court by the respondent no. 1 and Mr. Shamsuddin Kasamali Qureshi, the trial court in my view could not have ignored all these crucial facts and the documents while considering the miscellaneous application filed by the petitioners in setting aside the decree obtained by fraud committed upon the court by the respondent no. 1 and Mr. Shamsuddin Kasamali Qureshi. 89. A perusal of the impugned order passed by the learned trial court in Miscellaneous Application No. 20 of 2012 clearly indicates that in support of the plea of fra....
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....such consent terms in favour of respondent no. 1. Mr. Shamsuddin Kasamali Qureshi was already involved in several criminal cases while dealing with various properties of Drego family and various criminal proceedings were pending against him. In paragraph 55 of the impugned order, the trial court has though observed that in various suits, the constituted attorney of Mr. Peter Drego had appeared and criminal proceedings were also initiated by the petitioner against him, the learned trial court did not consider the seriousness of the allegations made by the petitioner which were supported by various orders passed by the court. 92. In paragraph 57 of the impugned order, the trial court has held that in absence of particulars of fraud or deception, merely by submitting that power of attorney was forged, it could not be held that fraud was played upon court and on the said fraud, order of decree could be set aside by filing an application at the instance of the petitioner who was not even a party to the suit or who was stranger to the suit. 93. A perusal of the record clearly indicates that the material produced before the trial court was more than sufficient to establish the fraud com....
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....l defendant to the suit and not by any individual person. The said application also indicates that a partner of the said firm Mr. Kennith Drego who had filed the said application on behalf of the said firm had described himself as a partner of the said firm. It was categorically stated in paragraph (1) that Mr. Kennith Drego was a partner of M/s. Drego Enterprises. The said firm was being represented by the said partner Mr. Kennith Drego who was fully aware of and conversant with the facts and circumstances of the case. The said M/s. Drego Enterprises had also given names of all the existing partners of the suit firm and brought on record that the said firm had not dissolved. 97. Though all these facts were placed on record including the certificate issued by the Registrar of Firms showing the existence of the said M/s. Drego Enterprises, a perusal of the order dated 17th June, 2013 passed by the learned trial court which has rejected the Miscellaneous Application No. 20 of 2012 filed by the petitioner in Writ Petition No. 4797 of 2013 shows that the said application filed by the firm M/s. Drego Enterprises is rejected on the ground that the petitioner was not a party to the suit ....
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....ilal Agarwal vs. Sharad Ramgopal Agarwal & Ors. in Notice of Motion No. 765 of 2009 in Suit No. 4816 of 2000 after considering almost similar facts and after adverting to the judgment of the Supreme Court in case of A.V. Papayya Sastry and others vs. Govt. of Andhra Pradesh and others, judgment of Supreme Court in case of S.P. Chengalvaraya Naidu vs. Jagannath, judgment of Supreme Court in case of T. Vijendradas vs. M. Subramanian and others has culled out the principles laid down by the Supreme Court in those judgments and held that any judgment obtained by fraud cannot be said to be a judgment and order in law and such decree or order is nullify and non est in the eye of the law and can be challenged even in the collateral proceedings. The court or tribunal is not powerless to recall its own order if convinced that such order was obtained by committing fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 101. 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 summar....
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....etting aside such consent terms was only by filing a suit is concerned, in my view in none of the judgment relied upon by the learned counsel, court was dealing with any allegation of fraud committed upon the court by a party to the suit. In my view, the petitioner in the Writ Petition No. 4797 of 2013 was not a stranger in respect of the subject matter of the suit. The petitioner was claiming rights in the suit premises by virtue of a registered agreement for sale and was already made member of the society and was issued share certificate by the society in respect of the suit premises. Once even if such third party having slightest interest in the suit property files an application for setting aside a decree obtained by a party by practicing fraud upon the court, in my view section 151 of the Code of Civil Procedure stands attracted to such application and cannot be dismissed on the ground of locus. It is duty of the court to look into such allegation of fraud practiced upon the court on merits and may take a different view altogether if so warranted in facts of that case. In my view, none of the judgment relied upon by Mr. Shinde, learned counsel appearing for the respondent no. ....
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.... Saroop; Bankey Behari Lal v. Abdul Rahman; Lekshmi Amma Chacki Amma v. Mammen Mammen.) The court has also the inherent power to set aside a sale brought about by fraud practised upon the court (Ishwar Mahton v. Sitaram Kumar) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh; Tara Bai v. V.S. Krishnaswamy Rao.) 105. In my view the court has thus ample power under section 151 of the Code of Civil Procedure to set aside an order obtained by a party to the proceedings by practicing fraud upon the court or where the court is misled by a party or the court itself commits a mistake which prejudices a party. I am respectfully bound by the judgment of the Supreme Court in case of Indian Bank (supra) which squarely applies to the facts of this case. In my view the submission of the learned counsel for the respondents that section 151 of the Code of Civil Procedure, 1908 could not have been attracted even if there were allegations of fraud is contrary to the principles laid down by the Supreme Court in case of Indian Bank (supra). 106. In so far as submission of the learned counsel for the respondent that even in the miscell....
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..... Drego Enterprises. In any event there was nothing on record to place by respondent no. 1 to controvert the submission of the learned counsel for the petitioners that the firm was in existence and that Mr. Kennith Drego, one of the partner who represented the firm in the miscellaneous application was an existing partner. The respondent no. 1 also failed to prove on record to show that the said Mr. Peter Drego was authorised to execute such power of attorney on behalf of the firm in favour of Mr. Shamsuddin Kasamali Qureshi under an express authority of other partners or otherwise. 109. In so far as submission of the learned counsel that the petitioner in Writ Petition No. 11790 of 2013 did not lay any foundation for filing miscellaneous application is concerned, in my view there is no merit in this submission of the learned counsel for the reason that the petitioner in the said Writ Petition No. 11790 of 2013 was a defendant to the said suit and had not been served with any notice and/or witness summons. The alleged constituted attorney who represented the firm was not authorised by the firm and who in collusion with the respondent no. 1 has obtained the consent decree by practic....
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....ent decree and in committing gross abuse of process of law and of court. 113. I, therefore, pass the following order:- (a) Civil Writ Petition No. 4797 of 2013 is made absolute in terms of prayer (a). Miscellaneous Application No. 20 of 2012 is allowed. (b) Consent decree dated 16th September, 2012 passed in Short Cause Suit No. 1835 of 2012 is set aside. S.C. Suit No. 1835 of 2012 is restored to file. (c) Court Receiver, High Court, Bombay is appointed as receiver of the suit premises i.e. flat nos. G-1 and G-2, Flushel Premises CHSL, 7th Floor, 21st Road, Khar (West), Mumbai-400 052 and is directed to take forcible possession of the suit premises from the respondent no. 1 or any person found in possession of the said premises with assistance of the police and if required by breaking open the lock and to seal the said premises till disposal of the Short Cause Suit No. 1835 of 2012 and for a period of four weeks thereafter. (d) Civil Writ Petition No. 11790 of 2013 is allowed in terms of prayers (b), (c) and (f). Miscellaneous Application No. 4 of 2013 is allowed. Rule is made absolute in aforesaid terms. Writ Petitions as well as Civil Application No. 2116 of 2014 are dis....