1 app434.11.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 434 OF 2011 IN NOTICE OF MOTION NO.2319 OF 2011 IN SUIT NO. 1897 OF 2011 WITH NOTICE OF MOTION NO. 2474 OF 2011 IN APPEAL NO. 434 OF 2011 IN NOTICE OF MOTION NO.2319 OF 2011 IN SUIT NO. 1897 OF 2011 Chetan D. Doshi ......Appellant. Vs. Dhiren P. Shah & Ors. ......Respondents. Mr. Snehal Shah with Ms. Dipti Panda and Ms. Megha Martins i/by M/s. Purnanand & Co. for the Appellant. Mr. Rajiv Narula with Mr. Pramod Bhosale i/by Mr. Ranvir Shekhawat for Respondent No.1. Mr. Mehul Rathod i/by Mr. A.M. Saraogi for Respondent No.2. Mr. S.K. Chari i/by M/s. M.V. Kini & Co. for Respondent No.4. CORAM :- D.K DESHMUKH AND ANOOP V. MOHTA, JJ. DATE :- 24 AUGUST 2011. 2 app434.11.sxw ssm P.C. :- Admit. Heard finally with the consent of the learned counsel appearing for the Appellant, Respondent Nos. 1, 2 and 4. 2 From the point of view of the order that we are propose to make in this Appeal presence of Respondent Nos.3 and 5 is not necessary. 3 The relevant facts are that a flat i.e. Block No. 15, Safalya, 3rd Floor, 19/20, Devidas Co-operative Housing Society, Nathpai Nagar, Ghatkopar (East) Mumbai – 400 077 was admittedly owned by one Pushpakant. Pushpakant admittedly was the father of Respondent No. 1 Dhiren, Respondent No.2 Falguni and Respondent No.3 Deepak. He died on 20 September 1994. It appears that the flat is in a building owned by “Devidas Co-operative Housing Society”. In the record of the society, the flat was transferred in the name of Deepak alone on 23 April 1996. Before the society it appears there is a declaration given jointly by Deepak and Respondent No.1 Dhiren. That declaration is relevant and material for the order that we propose to make. Therefore, we quote that declaration:- 3 app434.11.sxw ssm “We (1) Sri DEEPAK PUSHPAKANT SHAH aged about 31 Years and (2) Sri DHEEREN PUSHPAKANT SHAH aged about 25 Years all residing in Mumbai hereby jointly and severally affirm & state that as under: 1> SHRI PUSHPAKANT SHAH was a member of the 19/20 Devidas Co-operative Housing Society Ltd. having office at Barrister Nath Pai Nagar, Ghatkoper (E), Mumbai 400 077 a society registered under the Maharashtra Co-operative Societies Act 1960, holding 5 shares of Rupees fifty each, numbered from 96 to 100 (Both inclusive) bearing share certificate No.20 and having interest in the flat No. 15(Fifteen) admeasuring 82 Sq. meters (App.), in the building of the society, known as SAFALYA situated at Barrister Nath Pai Nagar, Ghatkoper (E) 2> The said SHRI PUSHPAKANT SHAH died on 28-09-1994 leaving his surviving following heirs according to the law, by which the deceased member was governed: Name of Heirs Relation with deceased member (1) Sri DEEPAK PUSHPAKANT SHAH SON (2) Sri DHEEREN PUSHPAKANT SHAH SON 3> We have agreed amongst ourselves that Sri DEEPAK PUSHPAKANT SHAH being one of the heirs of the said deceased member shall become member of the society. We have no objection for accepting the said SHRI DEEPAK PUSHPAKANT SHAH being one of the heirs of the said deceased member of the society and for transfer of all the shares held by the said deceased member and his interest in the said flat to the said heir. 4> We hereby declare that no other heirs are left behind by the said deceased member, except the above 4 app434.11.sxw ssm we hereby agree to indemnity and keep indemnified, and harmless the said society against any claim, demand, suit or other legal proceedings which may be filed by any other person/persons claiming either lawfully and/or equitably claiming through the said deceased member SHRI PUSHPAKANT SHAH.” We hereby further declare and undertake that we shall bear all expenses, costs and charges in respect of any such claim; demand, suit or other legal proceedings which may be filed by any person/persons either lawfully and/or equitably claiming through the said deceased member. 5> We make this declaration solemnly, believing the same to be true and having faith therein. Solemnly declared at Mumbai by the within named Signature of Deponent (1) Sri DHEEPAK PUSHPAKANT SHAH Sd/- (2) Sri. DHEEREN PUSHPAKANT SHAH Sd/- On this ____________day of ____________1996.” Deepak and Dhiren thus represented to the society that Pushpakant has died leaving behind him only two heirs i.e. two sons viz. Deepak and Dhiren, concealing that Pushpakant has left behind him a daughter by name Falguni. It was stated that both the heirs consent to the share certificate of the society being transferred the name of Deepak together with interest of Pushpakant in the flat. After the share certificate of the Society was transferred in the name of Deepak 5 app434.11.sxw ssm alone, it appears Deepak created mortgage of the flat in favour of Union Bank of India. As the loan taken by Deepak from the Bank was not repaid by him, proceedings were initiated by the Bank in the DRT for recovery certificate. That recovery certificate was granted in favour of the Bank on 11 January 2005. Thereafter, execution proceedings were started. In execution proceedings steps were taken for sale of the flat. It may be pointed out here that Deepak had deposited with the Bank original title deeds of the flat for creating mortgage of the flat in favour of the Bank. The recovery officer, before whom the recovery proceedings were initiated by the Bank, issued a public notice for sale of the flat dated 12 December 2007. That public notice was published in two newspapers. On 1 February 2008, persons who intended to purchase the flat were given inspection of the flat. On 5 February 2008 auction of the flat was held. The Appellant was declared as the highest bidder. He had given highest bid of Rs.46,20,000/- for the said flat. After deposit of the amount of the bid, sale certificate was issued by the Executing Officer of the DRT on 27 March 2008 in favour of the Appellant. It is only thereafter it appears, Falguni, Defendant No.2 who is sister of Deepak and Dhiren filed a Civil Suit in this Court claiming that she has a share in the flat. She also claimed interim order in that Suit in relation to 6 app434.11.sxw ssm the sale of the flat in favour of the Appellant. In that Suit, ultimately by an order dated 22 November, 2010 passed in Appeal No. 375 of 2010 a Division Bench of this Court did not make any interim order in relation to the proceedings for sale of the flat. The only interim order that was made was 1/3rd of the total amount of consideration was directed to be kept in fixed deposit by the Bank. The present Respondent No.1, it appears, took out two notice of motions in the Suit filed by Falguni seeking interim orders but those notice of motions were withdrawn. Therefore, he filed Suit No. 1897 of 2011. The reliefs that are claimed in that Suit are as under:- (a) that this Hon’ble Court be pleased to declare that the Plaintiff has 1/3rd undivided share, right, title and interest in respect of the suit flat namely, Block No. 15, Safalya, 3rd Floor, 19/20 Devidas Co-operative Housing Society, Nathpai Nagar, Ghatkopar (East) Mumbai – 400 077; (b) that this Hon’ble Court be pleased to declare that the public auction held on 5th February, 2008 and confirmation of sale to Defendant No.5 on 27th March, 2008 is null and void and not binding upon the Plaintiff; (c) that this Hon’ble Court be pleased to pass a permanent order and injunction against Defendant Nos. 3 and 5 their officer, servants, agents and person claiming through them, restraining them from in any manner disturbing Plaintiff’s possession in the suit flat; 7 app434.11.sxw ssm (d) In the alternative to prayer clauses (a), (b) & (c), this Hon’ble Court be pleased to pass an order of payment of 1/3rd of the amount received by the Defendant No.3 on auction sale of suit flat.” 4 Thus, the Plaintiff was not only claiming declaration of his 1/3rd share in the flat, he was also claiming a declaration that the auction of the flat in favour of the present Appellant is null and void. 5 In the plaint, the Plaintiff-Respondent No.1 claimed that he has 1/3rd share in the flat. He stated that after the death of his father, the share certificate of the flat was transferred in the name of Deepak as a Karta of the family. He also stated that he is continuously in the occupation and possession of the flat. In that Suit a notice of motion was taken out for interim reliefs by the Plaintiff Dhiren. The learned Single Judge by order dated 6th April 2011, has granted ad-interim order in terms of prayer clause (a) in favour of the Plaintiff Dhiren. The present Appeal is directed against that order. 6 The learned counsel appearing for the Appellant submitted that the Plaintiff in his plaint has made a statement that he has 1/3rd share in the flat. He has referred to the transfer of the share certificate by 8 app434.11.sxw ssm the society in favour of Deepak alone. But while making that statement he has not disclosed to the Court the declaration made by the Plaintiff, which we have quoted above, whereby he represented to the society that Deepak and Dhiren are the only heirs left behind by their father Pushpakant and therefore both of them have decided to transfer the share certificate and the interest of the father in favour of Deepak alone. The learned counsel submits that the declaration made by Dhiren to the Society was relevant and material document in relation to the claim of the Plaintiff in the Suit that the share certificate has been transferred in favour of Deepak only in his capacity as a Karta of the family. It is also submitted that so far as the auction of the flat is concerned and the status of the auction purchaser of the flat is concerned his rights are protected by the provisions of Section 41 of the Transfer of Property Act. It is claimed that from that point of view as in the Suit there is a challenge to the auction also, the declaration made to the society by Dhiren in relation to the flat was material and relevant document. The learned counsel appearing for the Plaintiff submits that suppression of relevant and material document namely the declaration referred to above, disentitles the Plaintiff not only to the interim relief from the Court but the Suit itself is liable to be dismissed. The learned counsel relied on a judgment of 9 app434.11.sxw ssm the Supreme Court in the case of S.P. Chengal Varaya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by Lrs. & Ors. (1994) 1 SCC page 1. He also relied on a Judgment of the Supreme Court in the case of Dalip Singh Vs. State of Uttar Pradesh & Ors. (2010) 2 S.C.C. 114. The learned counsel submits that there is a clear attempt made by Respondent No.1 to play fraud on Court by not disclosing the declaration that he had made to the society. The learned counsel also pointed out to us the judgment of the Supreme Court in the case of Chandra Shashi Vs. Anil Kumar Verma, (1995) 1 S.C.C. 421 where the Supreme Court has held that if the Court finds that any litigant who has taken recourse to fraud, to deflect the course of judicial proceedings, the Court should deal with the litigant under the provisions of Contempt of Courts Act. 7 As this was pointed out to us by the learned counsel appearing for the Appellant on the last date of hearing we put the learned counsel appearing for the Respondent No.1 on notice that in case we ultimately agree with the submission made on behalf of the Appellant we may not only allow the Appeal but may even dismiss the Suit and issue notice to the Plaintiff to show cause why he should not be tried and punished for having being committed criminal contempt of court. 10 app434.11.sxw ssm The learned counsel appearing for Respondent No.1, therefore, filed an affidavit of Respondent No.1. He has also made oral submission in that regard. There is no dispute raised on behalf of Respondent No.1 that in case the declaration, which we have quoted above, is found to be relevant and material, the non disclosure will make his Suit liable to be dismissed and in that situation, the Court may consider the question of issuing show cause notice to the Respondent No.1. But the submission of the learned counsel appearing for Respondent No.1 is that the declaration is neither relevant nor material for the cause of action of the Plaintiff on the basis of which the Suit has been filed. The learned counsel submits that the Suit of the Plaintiff is for declaration of his 1/3rd share in the flat. By the declaration which is relied on by the Appellant it cannot be said that Respondent No.1 has relinquished his share in the flat because it is not a registered document. Had it been relinquishment of share, according to the learned counsel by a registered document, then that document would have been relevant in a Suit filed by the Plaintiff for declaration of his share. The learned counsel submits that in order to secure the decree which is claimed in the Suit, it would not be necessary for the Plaintiff to prove the declaration and therefore according to the learned counsel the fact that the Plaintiff had made the declaration is neither 11 app434.11.sxw ssm relevant nor material for establishing the cause of action of the Plaintiff and/or is also not a relevant fact for entitling the Plaintiff to the decree which is prayed. The learned counsel relied on following judgments of the Supreme Court to claim that the declaration is neither relevant nor material. i) Hah Shanker Jain Vs. Sonia Gandhi, 2001(8) S.C.C. 233 ii) S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., 2004 AIR (SC) 2421. iii) Virendra Nath Gautam Vs. Satpal Singh & Ors., 2007(3)S.C.C. 617 8 The learned counsel thus submitted that as the document is neither material nor relevant, non-disclosure of such a document cannot be fatal. The learned counsel also submitted that there was no intention to suppress the document because the document is within the knowledge of the Appellant because that document was disclosed by Respondent No.2 Falguni in the proceedings that she has filed in the Co-operative Court. It is submitted that therefore, even if it is held that there is suppression of document, the suppression was not intentional. Non disclosure of the document was bonafide mistake. The learned counsel, therefore, submitted that this is not a case where 12 app434.11.sxw ssm the Suit of the Plaintiff is liable to be summarily thrown out for suppression of material and relevant document. 9 Now, so far as the law on the subject as to what is the course of action to be adopted by the Court when the Court finds that the litigant, before it has approached the Court suppressing relevant and material facts and documents from the court is concerned, it is laid down by the Supreme Court in its judgment in the case of S.P. Chengal Varaya Naidu (Supra) relied on by the learned counsel appearing for the Appellant. In that case, the Court was dealing with an action initiated by a party without disclosing the execution of the release deed by that party. The observations that have been made by the Supreme Court in paragraph 5 and 6 of that judgment, in our opinion, are relevant. “5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire 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 13 app434.11.sxw ssm 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 working as a clerk with Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the Plaintiff. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the 14 app434.11.sxw ssm other side then he would be guilty of playing fraud on the court as well as on the opposite party. Para 6 which we have quoted above, the Supreme Court has held:- “A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation.” 10 So, according to the Supreme Court, there is a duty cast on every litigant to produce before the Court all documents executed by him which are relevant to the litigation. In so far as the present litigation is concerned, there is a plaint filed by Respondent No.1. Respondent No.1 in that Suit was claiming that he has 1/3rd share in the flat which was owned by his father. He has stated in para 3 (iii) that the share certificate of the flat in the record of the society is transferred in favour of Deepak. But he stated that, that transfer in the record of the society was made for the sake of convenience only. In the plaint, he did not disclose that he has played any role in so far as transfer of share certificate in favour of Deepak is concerned. In our opinion, the declaration was a relevant document in so far as transfer of share certificate in favour of Deepak is concerned. Respondent No.1 claims that the flat, in the record of the Society, was 15 app434.11.sxw ssm transferred in the name of Deepak alone (i) as a matter of convenience and; (ii) as a Karta of the family. Therefore, it was the duty of the Plaintiff to disclose in the Plaint itself the role played by him in the society transferring the share certificate in the name of Deepak alone. Not only that the Plaintiff was claiming 1/3rd share in the flat but he is also claiming a decree of declaration that the auction of the flat held by the authorities of the DRT to be null and void. Deepak was able to mortgage the flat in favour of the Bank because the share certificate stood in his name. The Appellant before taking part in the auction, verified from the record of the Society that the flat is owned by the Judgment Debtor-Deepak alone. Thus, so far challenge to the auction of the flat on the ground that Deepak alone is not the owner of the flat, the declaration made by the Plaintiff was relevant. 11 In the affidavit that is filed by Respondent No.1, he has stated that the contents of the affidavit of 1996 is not material for the purpose of deciding the issues involved in the present Suit. One of the issues involved in the present Suit is whether the auction of the flat is valid or invalid and whether the Appellant get title to the flat. Considering the provisions of Section 41 of the Transfer of Property 16 app434.11.sxw ssm Act, the conduct of Respondent No.1 of submitting the declaration with the society is definitely a material and relevant document. In our opinion, therefore, the declaration made by the Plaintiff was relevant and material for deciding more than one issue involved in the Suit. So far as the submission made on behalf of the Plaintiff that omission to mention the document in the plaint is a bonafide mistake is concerned, in our opinion, it cannot be accepted because of the conduct of the Plaintiff which disentitles him to be given any benefit of any doubt. The Plaintiff in the Suit claims that he has occupied the suit flat along with Deepak. It is not his case that they have partitioned the flat. Therefore, it is safe to assume that they are living together. Notice of auction of the flat was published in the newspapers. The Plaintiff however claims total ignorance about it. The Appellant has stated that the intending purchasers had inspected the flat on 1 February 2008. If Plaintiff is occupying the flat, he must be aware of this development that took place in the year 2008 but still in his plaint he states as follows- “Due to his employment, he leaves his house early in the morning and comes home late. Hence, he was unaware of the details of the Defendant No.2’s business activities and about the details of the partnership firm.” 17 app434.11.sxw ssm He does not say anything as to why he was not aware of the proceedings that were going on for auction of the flat. It is hard to believe that the Plaintiff who is living jointly in the same flat with Deepak will be totally unaware of the development for the sale of the flat that were going on for all these years. It clearly appears that the Plaintiff decided to file the Civil Suit in order to defeat the claims of the Appellant and for that the Plaintiff suppressed from the Court deliberately a most relevant document. The Supreme Court in its judgment in the case of Dalip Singh (Supra) which we have referred to above, has emphasised the need of the Court taking timely action against the litigant of such type. In our opinion, therefore this is a fit case where not only the order impugned in the Appeal should be set aside but the Suit itself should be dismissed. The Supreme Court in its judgment in the case of S.P. Chengal Varaya Naidu (Supra) has clearly held that such a litigation has to be summarily thrown out at any stage of the litigation. In our