TaxTMI 
TaxTMI 
2015 (1) TMI 1459
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....rejecting the application filed by the petitioner 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 t....
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....uted attorney of the said M/s. Drego Enterprises Mr. Shamsuddin 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....
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....itioner, the said order dated 6th February, 2013 passed by the trial 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 applic....
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.... No. 4797 of 2013 and Sharon Lilian Gonsalves under the said agreement, the suit premises 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 t....
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....for fresh consideration. 23. It is submitted by the learned counsel that the agreement on 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 peti....
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....I Rule 3, explanation, any agreement or compromise which is void or voidable under the Indian Contract 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 ....
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....ttorney was executed or even till date. 32. The learned counsel submits that Mrs. Jessica Drego, who was the 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 ....
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....t and this court that if any fraud is committed upon the court, the court has implied power to take appropriate steps 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 peti....
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....and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff 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 a....
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....submitted that in any event both the petitioners are claiming title adverse to the alleged title of the deceased testator and thus could not have maintained 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 i....
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....ained by a party from the Court by practicing fraud, fabrication or concealment. The Court can take cognizance of such allegation suo moto and if it comes to the conclusion that the grant is 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. Sep....
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....vener, he being neither party to the suit prior to such orders having been passed by this court nor after such orders are passed." 44. Per contra, Mr. Shinde, learned counsel for the respondent, in so far as the Writ Petition No. 4797 of 2013 is concerned, 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 ou....
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....er provisions of the Code. Section 151 of the said CPC is an enabling section. In support of the aforesaid submissions, learned counsel placed reliance on the following judgments:- 1) Pushpa Devi Bhagat (dead) through L.R. Vs. Rajinder Singh and Ors., reported 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....
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....a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court, which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code." 49. Reliance is placed on paragraph 14 of the judgment in the 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 ....
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....earned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by Section 151 of the Civil Procedure Code. 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 topi....
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....rned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX, Rule 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled-"set the clock back" and have the suit heard in his presence. On the other hand, he 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. Patha....
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....h what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code." 52. Learned counsel submits that Mr. Peter Drego, who was an acting partner of M/s. Drego Enterprises, had implied authority to represent 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 provid....
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....tion (2) of Section 19. Section 19(2)(a) provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration. Satya Narain has power to do business on behalf of the firm and in exercise thereof he entered into the contract with the corporation during the usual control of business to supply the Dal. 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 n....
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....by the petitioner was under Order XXIII Rule 3A of the CPC. 57. Learned counsel submits that in so far as the submission made before the police officer in support of the submission that a cheque of Rs. 2,60,000/- was not cleared is concerned, the said submission made before the police officer under Section 161 of the Code of Criminal Procedure, 1973 is not admissible except to the extent of pointing out contradictions. No such reliance 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 vie....
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....ction against Mr. Shamsuddin as well as the respondent no. 1. Learned senior counsel invited my attention to the observations made by the learned trial Judge in paragraph 33 of the impugned order and submits that on one hand, the learned trial Judge had held that the petitioner had no locus to file any application for intervention or for setting aside the consent decree on the ground of fraud and on the other hand, the learned trial Judge has erroneously 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 cou....
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....n by respondent no. 1 in support of her allegations that she has already created third party in respect of the suit property are ex facie fabricated and executed fraudulently to cause serious prejudice to the petitioner. It is submitted that the value of the suit property as on today is more than Rs. 10 crores whereas, the payment alleged to have been received by respondent no. 1 in respect of the suit property is about Rs. 15 lacs. It is not the case 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. ....
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....s. It was the case of the respondent no. 1 that she called upon the said M/s. Drego Enterprises for possession from time to time but the possession was not handed over in respect of the suit premises to her. The respondent no. 1 placed reliance on the letter dated 5th August, 2002 alleged to have addressed by the said M/s. Drego Enterprises stating that a sum of Rs. 2,60,000/- was due and payable by the respondent no. 1 to the said firm and that the possession 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 ha....
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....ed attorney of defendants is shown in the said Roznama dated 16th August, 2012. Though the said matter was pertaining to Court Room No. 8, by a praecipe, the matter was mentioned before Court Room No. 7. 72. 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. The learned 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 ....
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....ed the alleged power of attorney showing the employment of cohorts who had then applied for workers compensation to the tune of Rs. 5 lacs which was contested by Kenneth Drego and the same was dismissed and the alleged power of attorney held to be invalid. The petitioner in Writ Petition No. 11790 of 2013 also placed on record that the rubber stamp of the petitioner company M/s. Drego Enterprises had been fabricated and forged and Mr. Shamsuddin Qureshi had represented himself 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 ....
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....itional Sessions Judge in anticipatory bail application filed by Mr. Shamsuddin Kasamali Qureshi indicates that the learned Judge has noticed that Mr. Peter Drego was missing since the year 2002. The missing report was given to Nirmal Nagar Police Station. The learned Judge also noticed the certificate issued by the Bureau of Missing Persons on 28th January, 2011. The said Mr. Shamsuddin Kasamali Qureshi in the anticipatory bail application argued that the original power of attorney 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....
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....e case of the respondent no. 1 that out of the alleged consideration of Rs. 1,10,000/-, the respondent no. 1 had already paid Rs. 1 lac as far back as in the year 1974, the respondent no. 1 would not ask for possession of the suit premises or for specific performance of the said alleged agreement till 2012. 84. If according to the respondent no. 1, she was already in possession since 2002, she could have produced documents before the trial court or in this proceedings to indicate her possession 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 agre....
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....amali Qureshi, the trial court totally ignored such crucial documents and refused to look into it. 87. Even in the present proceedings, this court called upon the respondent no. 1 to produce any proof of consideration amount of Rs. 1 lakh alleged to have been paid to M/s. Drego Enterprises in the year 1974 or further sum of Rs. 2,60,000/- in favour of the said sale in the year 2012 as alleged or the alleged consideration received from alleged licensee or purchaser of the suit premises. The learned 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.....
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....act that the said Mr. Peter Drego was missing since 2002 was on record before the trial court, the trial court in my view could not have ignored this fact while dismissing the application filed by the petitioner. If the said Mr. Peter Drego was missing since last several years and such fact was confirmed by his family members who were partners of M/s. Drego Enterprises, Mr. Shamsuddin Kasamali Qureshi could not have represented the said M/s. Drego Enterprises or Mr. Peter Drego in the year 2012 and filed 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 co....
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....having been already recorded in the record of the society in respect of the suit premises and in the shares allotted. 96. On the issue of locus in so far as Writ Petition No. 11790 of 2013 is concerned, it is not in dispute that M/s. Drego Enterprises was the only defendant in the said suit filed by the respondent no. 1. A perusal of the miscellaneous application filed by the petitioner in Writ Petition No. 11790 of 2013 clearly indicates that the said application was filed by M/s. Drego Enterprises, the original 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 dissol....
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....aken a very casual approach as is apparent from the two orders passed by the learned trial court in the facts of this case. 99. Be that as it may, the miscellaneous application filed by the partnership firm who was a party defendant to the suit could not have been rejected on the ground that such firm had no locus to file such application for setting aside the consent decree obtained by a party to the suit by committing a fraud upon the court. 100. This court in judgment dated 6th May 2014 in case of Chandrabhan Chunilal 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 t....
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....fraud practiced upon the court or when the court is mislead by the party. The court can also recall its order when a judgment is rendered in ignorance of the fact that a necessary party had not been served at all. 103. In so far as judgment relied upon by Mr. Shinde, learned counsel appearing for the respondent no. 1 in support of the submission that the petitioner in Writ Petition No. 4797 of 2013 being not a party to the suit had no locus to file any application for setting aside the consent decree and the only remedy for setting 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 prop....
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....ss of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal Goenka; Gajanand Sha v. Dayanand Thakur; Krishnakumar v. Jawand Singh; Devendra Nath Sarkar v. Ram Rachpal Singh; Saiyed Mohd. Raza v. Ram 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 mistak....
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.... power given in respect of the suit premises by the said Mr. Peter Drego. 108. In so far as submission of the learned counsel that the said M/s. Drego Enterprises had become defunct as other partner has already left India for decade and thus Mr. Peter Drego was authorised to execute power of attorney is concerned, learned counsel could not dispute that the said firm M/s. Drego Enterprises was not dissolved and was in existence. The petitioners had produced copy of the certificate issued by the Registrar of Firm showing existence of the said firm M/s. 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 counse....
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....eged agreements were entered into obviously with a view to cause prejudice to the case of the petitioners in both the writ petitions. The learned counsel has made inconsistent statement about the alleged possession in respect of the suit premises that alleged licencee or alleged purchaser during the hearing of these writ petitions. 112. In my view, 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. 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 direc....