1 NMS.1876.2008 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1876 OF 2008 IN Suit NO.2764 OF 2007 Rajeev K. Mehta Plaintiff versus A.N.Mehta Investments Pvt.Ltd. and others Defendants Mr.Tamhane i/by Tamhane & Co. for plaintiff. Mr.Janak Dwarkadas, Sr.Counsel for defendant no.1. Mr.Pradeep Sancheti, Sr.Counsel defendant nos.11,13,14 and 17. Mr.D.D.Madan, Sr.Counsel for defendant no.12. CORAM : S.J.KATHAWALLA, J. DATE : 21st April 2011 PC : 1. The above Notice of Motion is taken out on 2nd June 2008 by the Plaintiff Mr.Rajeev K. Mehta against the Defendant nos.1 to 6 in Suit No. 2764 of 2007 which Suit was already withdrawn by the Plaintiff on 17th January 2008. The relief sought in the Notice of Motion is reproduced hereunder :- "a) That the Hon'ble Court may be pleased to adopt appropriate proceedings against the Defendant nos.1 to 6 for having committed the offence of perjury by making false statements in the affidavits filed in the present Suit being Exhibits-D, E, G, G-1 and J hereto and producing the false and bogus documents to mislead the Hon'ble Court in the present Suit." 2. Briefly set out are the facts which are relevant for the purpose of deciding the present Notice of Motion. 2 NMS.1876.2008 3. On 26th September 2007 the Plaintiff filed Suit No.2764 of 2007 (first Suit) seeking the following reliefs against the Defendant nos.1 to 6 as final reliefs : "a) That Defendant nos.1 to 6 jointly and severally be Ordered and decreed to account for and reimburse "Lilavati Kirtilal Mehta Medical Trust" all profits and gains from the utilization of Rs.5 Crores for 14 months illegally taken from the said Public Charitable Trust; b) In aid of prayer (a) all directions be given and inquiries be made to trace the utilization of the investment of Rs.5 Crores and to ascertain the profits from utilization of the said sum of Rs.5 crores; c) That the accounts of Defendant no.1 company be frozen on receipt of all documents relating to bank transactions of Defendant no.1 company vis-a-vis the Trust, if the Defendant nos.2 to 5 fail and neglect to make full disclosures of the financial status of Defendant no.1 company from its incorporation i.e. 15.11.2001, till date; d) That Defendant nos.1 to 6 jointly and severally be Ordered and decreed to deposit in this Hon'ble Court all sums and profits received from the investment of Rs.5 Crores illegally and arbitrarily taken from "Lilavati Kirtilal Mehta Medical Trust"; e) That a permanent Order of injunction be granted against Defendant nos.1 to 6 from creating any third party rights of any nature in any of the movable and/or immovable properties acquired by Defendant nos.1 to 6 by utilization of the said sum of Rs.5 crores; f) That the Court Receiver be appointed of all the assets as per Exhibit `J' hereto and Accounts Books and Bank Statements of Defendant No.1 company, under Order XL Rule 1 of the Civil Procedure Code." Pending the hearing and final disposal of the said Suit, the Plaintiff had in Notice of Motion No.1876 of 2008 inter alia prayed for the following ad- interim/interim reliefs :- "(h) The Defendants be directed to disclose all documents and arrangements between the Defendants as 3 NMS.1876.2008 to the profits, interest and properties acquired, both movable and immovable by the Defendants herein; (i) Defendant no.1 company and its Directors to disclose its shareholdings and all bank transactions right from inception of Defendant no.1 company with respect of the Public Charitable Trust "Lilavati Kirtilal Mehta Medical Trust"; (j) Court Receiver be appointed of all the assets as per Annex.`10' hereto and Accounts Books and Bank Statements of Defendant no.1 company, under Order XL Rule 1 of the Civil Procedure Code." 4. The Defendant nos.2 and 3 filed their respective affidavits in reply to the Notice of Motion on 11th October 2007. The Plaintiff filed his affidavits in rejoinder, both dated October 2007 alleging that the statements made by the Defendant nos.2 and 3 in their respective affidavits dated 11th October 2007 are false. Thereafter, the Defendant nos.3 and 2 filed their further respective affidavits-in-reply dated 16th October 2007 and 30th October 2007. The Plaintiff filed further affidavit- in-rejoinder dated 24th October 2007 alleging that the statements made by the Defendant no.3 in his further affidavit-in-reply dated 16th October 2007 are false. On 5th December 2007 the Defendant no.6 filed his affidavit-in-reply to which there was no rejoinder filed by the Plaintiff. 5. At the time of making an ad-interim application in Notice of Motion No.3739 of 2007 before the learned Single Judge (Coram : A.M.Khanwilkar, J.) the plaintiff contended that the Defendants had furnished incorrect information in their affidavits. The learned Single Judge by his Order dated 31st October 2007 observed that the said issue cannot be gone into at the ad-interim stage and the same will be considered at the hearing of the Notice of Motion. 6. On 17th January 2008 the above Suit No.2764 of 2007 was withdrawn by the Plaintiff. The Order dated 17th January 2008 passed by the learned Single Judge of this Court (Coram : Dr.D.Y.Chandrachud, J.) is reproduced hereunder :- 4 NMS.1876.2008 "P.C. :- . At the hearing of the Notice of Motion Shri Bhagattjee, Counsel appearing on behalf of the Plaintiff has stated before the Court on instructions of the Plaintiff that the Plaintiff desires to withdraw the Suit since the Plaintiff intends to file a comprehensive Suit dealing with the subject matter of the present Suit and other transactions. On the aforesaid request of Counsel, the Suit is dismissed as withdrawn. . Consequent upon the withdrawal of the Suit the ad- interim Order which was passed on 31st October 2007 will not survive. However, on the request of Counsel for the Plaintiff, it is clarified that in the event that the Plaintiff files a fresh Suit, the rights and contentions of the parties are kept open including the entitlement, if any, of the Plaintiff to urge that any disposition of property is unlawful. All defences are similarly kept open. . Both the Suit and the Notice of Motion are accordingly disposed of." 7. On 7th March 2008 the Plaintiff filed Suit No.1224 of 2008 (second Suit) against the Defendants therein. At the time of lodging of the said plaint, a claim for a sum of Rs.70.00 lakhs was made against the Defendants therein for utilization of Rs.5.00 crores for 14 months. Though the said Suit was filed against 15 Defendants, the Defendant nos.1, 2, 5 and 6 in the first Suit i.e. the suit withdrawn on 17th January 2008, were not joined as party Defendants to the second Suit. According to the Defendants, the Plaintiff unauthorizedly replaced the said plaint and the entire claim of Rs.70.00 lakhs towards interest for alleged utilization of Rs. 5.00 crores for 14 months was given up. The 15 Defendants were brought down to 14 (third suit). Again, though the Defendant nos.3 and 4 in the first Suit are made parties in the second and third Suits and arrayed as Defendant nos.4 and 3 therein, they have not been joined as parties either as Directors of A.N.Mehta Investments Pvt.Ltd. nor in respect of the alleged claim for Rs.70.00 lakhs. In fact, the relevant averments qua the capacity in which the Defendant nos.3 and 4 herein are joined in the 5 NMS.1876.2008 second and third Suits, as set out in the plaints of the said Suits is as under :- "Defendant no.3 : Paragraph no.3 :- "Defendant no.4 is the brother of Defendant no.2 and is in-charge of partnership firm of Empire Exports". Defendant no.4 : Paragraph no.3 :- "Defendant no.1 trust was formed on or about 24.7.2002 by the name of Madhulaxmi Charitable Trust bearing Registration No.E-20499 with a corpus of Rs. 11,111/-and Defendant nos.2 and 3 are the trustees of Defendant no.1 trust". Thus, Hitesh Mehta is made a party only in his capacity as a person in- charge of Empire Exports and in no other capacity. Similarly, Jasmine Mehta is made a party only in her capacity as a Trustee of Madhulaxmi Charitable Trust and in no other capacity. Thus the claim as against the Defendant nos.3 and 4 in the first (present) suit is abandoned. 8. On 25th April 2008 an application seeking ad-interim reliefs was made by the Plaintiff in Suit No.1224 of 2008 (Third Suit). However, the same was rejected. Thereafter on 2nd June 2008 the Plaintiff took out the present Notice of Motion seeking reliefs set out hereinabove against the Defendant nos.1 to 6 in the first Suit being Suit No.2764 of 2007 which was withdrawn on 17th January 2008. 9. On 12th August 2008 the Plaintiff filed Suit No.2521 of 2008 (fourth Suit) wherein once again the Defendant nos.2, 5 and 6 are made party Defendants. On 6th October 2008 the Plaintiff moved an application before this Court (Coram : A.S.Oka, J.) inter alia seeking ad-interim reliefs in the said fourth Suit. At that point of time the learned advocate appearing for the Plaintiff sought time to make an application before the concerned Court for seeking clarification of the Order dated 17th January 2008 passed in Notice of Motion No.3739 of 2007 in the first Suit. The learned Single Judge therefore, in his Order dated 24th November 2008 6 NMS.1876.2008 inter alia recorded as follows :- "The learned counsel appearing for the Plaintiff seeks time to make an application before the concerned Court for seeking clarification as regards Order dated 17th January 2008 passed in notice of motion no.3739 of 2007 in Suit no.2764 of 2007. Notice of Motion is removed from the board. Liberty to make a fresh application for ad-interim relief after Order is passed on application made by the Plaintiff before the concerned court." 10. Thereafter the Plaintiff by his advocate's praecipe dated 16th October 2008 requested the Prothonotary & Senior Master to place the papers and proceedings in the matter before the Court (Coram : Dr.D.Y.Chandrachud, J.) for seeking clarification of the Order dated 17th January 2008 in the first Suit on the issue as to whether liberty was granted to the Plaintiff to file a comprehensive Suit in this Court whilst permitting the Plaintiff to withdraw the said first Suit. The Plaintiff in the said praecipe wrongly recorded that the Plaintiff was directed by the Court (Coram : A.S.Oka, J.) to obtain a clarification from the Court of Shri Justice Dr.D.Y.Chandrachud. On 23rd October 2008 on the said application for speaking to the minutes the learned Single Judge was pleased to pass "No Order". The conduct of the Plaintiff was brought to the notice of Shri A.S.Oka, J. who by his Order dated 24th November 2008 inter alia recorded as under :- "4. Prima facie, I am of the view that an attempt has been made by the Plaintiffs to mislead the learned Judge of this Court by filing the praecipe by recording therein that this Court had directed the Plaintiff to obtain a clarification from the concerned learned Judge. However, the learned counsel for the Plaintiff has offered to file an affidavit of apology of the Plaintiff. Hence, at this stage, no further action in that behalf may be necessary and this aspect can be looked into after the Plaintiff files an affidavit, as stated by the counsel for the Plaintiff. In the circumstances, removed from the board. Liberty to apply for ad-interim relief after affidavit of apology is filed." Thereafter the ad-interim application of the Plaintiff in Notice of Motion No. 7 NMS.1876.2008 2935 of 2008 in the fourth Suit was heard by this Court (Coram : A.S.Oka, J.) and was rejected by a detailed Order on 17th December 2008. 11. The learned advocates appearing for the Defendants have submitted that in view of the above facts the Plaintiff has abandoned his claim for damages/loss/interest for alleged utilization of an amount of Rs. 5.00 crores for a period of 14 months by the Defendant no.1 and has also abandoned the alleged contention that the Defendants had made false statements in the affidavits filed by : (i) withdrawing the first Suit at the hearing of the Notice of Motion on 17th January 2008; (ii) avoiding adjudication of his contention that incorrect/false statements have been made by the Defendants in the affidavits filed in the the first Suit despite the order dated 31st October 2007 of the learned Single Judge (Coram : A.M.Khanwilkar, J.) that the said issue would be considered at the hearing of the Notice of Motion. It is further submitted that the Plaintiff has abandoned both the above contentions by withdrawing the first Suit on 17th January 2008 and therefore, the Plaintiff is now not entitled to re-agitate the same or any aspect thereof by way of the present Notice of Motion. 12. It is next contended on behalf of the Defendants, that the Defendant nos.1, 2, 5 and 6 of the first Suit are not made parties to the 2nd and 3rd Suits. The Defendant no.3 in the present Suit is made a party in the 2nd and the 3rd Suit only in his capacity as the person in- charge of a partnership firm known as Empire Exports. The Defendant no.4 in the present Suit is made a party in the 2nd and the 3rd Suit only in her capacity as Trustee of a trust known as Madhulaxmi Charitable Trust. No claim similar to the claim made in the first (present) Suit is made in the 2nd and the 3rd Suit against the Defendant nos.3 and 4 herein. Thus 8 NMS.1876.2008 despite filing a fresh Suit, no claim is made against the said Defendants. In fact, the company (i.e. A.N.Mehta Investments P.Ltd.) is not joined as a party and the alleged claim for loss of utilization of Rs.5 Crores (Exhibit-Y) is deleted. Thus this conduct of the Plaintiff clearly shows that the Plaintiff himself had treated the claim as abandoned. 13. It is further contended on behalf of the Defendant nos.4 to 6 that the Defendant nos.4 and 5 have not filed any affidavits in the present Suit and therefore there cannot be any allegation of perjury as against them. The Defendant no.6 has only filed an affidavit dated 5th December 2007, the contents of which are neither disputed nor denied by the Plaintiff by filing any affidavit-in-rejoinder. The Plaintiff not having disputed or denied the contents of the affidavit of Defendant no.6, now cannot be permitted to allege that any false statements were made therein or seek any reliefs for alleged perjury. 14. It is submitted on behalf of the Defendants, that the Plaintiff in the Suit appears to be a frustrated litigant, not having succeeded in the complaint before the Bar Council nor in any applications for ad- interim/interim reliefs in the first Suit and neither in the applications for ad- interim reliefs in the third Suit, has filed the above Notice of Motion alleging perjury with a view to harass the Defendants. In the circumstances, invoking the jurisdiction of this Court for the purpose of initiating criminal proceedings is an abuse of the process of law. It is further submitted that in fact the above Notice of Motion, whereby a charge is leveled against the Defendants, amounts to malicious prosecution as contemplated under section 211 of the Indian Penal Code. 15. It is submitted that the Plaintiff applied for speaking to the minutes of the Order dated 17th January 2008 seeking a clarification that liberty has been granted to the Plaintiff to file a fresh Suit upon withdrawal of the first Suit. On the said application, the Court was pleased to pass "No Orders". 9 NMS.1876.2008 16. The learned advocates appearing for the Defendants after referring to the allegations made by the Plaintiff against the Defendants in his affidavit-in-support of the present Notice of Motion, submitted that the gravamen of the charge by the Plaintiff to support initiating perjury proceedings is in fact completely lacking in substance. The charge is made on the basis of conjectures, surmises, presumptions and assumptions. The charges are levelled in the affidavit in support by use of the words "highly improbable, patently improbable, vague, no particulars, without supporting documents" etc.. It is submitted that perjury proceedings may be initiated only if there is clear contravention between two statements which cannot stand together. Perjury proceedings cannot be initiated on the basis of conjectures and surmises. In support of their submissions the learned advocates appearing for the Defendants have relied on the decision of the Apex Court in the case of Chajoo Ram Vs. Radhey Shyam and another (AIR-1971-SC-1367) and in case of Chandrapal Singh and others Vs. Maharaj Singh and another (1982)1-SCC-466. The learned advocates for the Defendants have submitted in view of the aforestated facts and circumstances that the above Notice of Motion be dismissed with compensatory costs. 17. The learned advocate for the Plaintiff submitted that since the first Suit was withdrawn by the Plaintiff with liberty to file a fresh Suit, it cannot be said that the contentions raised by the Plaintiff in his pleadings filed in the said first Suit have been abandoned by him thereby disentitling him to file the present Notice of Motion. It is further submitted that the Defendants have made false statements on oath as pointed out in the affidavit-in-support of the Notice of Motion and the Notice of Motion therefore deserves to be made absolute as prayed. 18. I have considered the submissions advanced on behalf of the 10 NMS.1876.2008 Plaintiff as well as the Defendants. With the assistance of the learned Advocates for the Defendants, I have also gone through the allegations made by the Plaintiff against the Defendants in the affidavit-in-support of the Notice of Motion. I have also perused the decisions of the Apex Court cited on behalf of the Defendants. Admittedly, the first Suit was filed by the Plaintiff and Notice of Motion No.3739 of 2007 was taken out therein, inter alia, for the reliefs set out hereinabove. Admittedly, the Defendant nos.2 and 3 filed their respective affidavits-in-reply and further affidavits- in-reply to the said Notice of Motion and the Plaintiff filed his affidavits-in- rejoinder stating that the statements made by the Defendant nos.2 and 3 in their affidavits-in-reply as well as further affidavits-in-reply were false. Admittedly the Defendant nos.1, 4 and 5 have not filed any affidavit-in- reply to the Notice of Motion No.3739 of 2007 in the first Suit. The Defendant no.6 filed his affidavit-in-reply, however the statements made therein were not controverted by the Plaintiff by filing any rejoinder. Therefore, the Plaintiff cannot be now heard to say that the Defendant nos.4 to 6 have committed any perjury. 19. Even otherwise, the Plaintiff had contended before the learned Single Judge (Coram : A.M.Khanwilkar, J.) that the Defendants had furnished incorrect information in their affidavits and the Court by its Order dated 31st October 2007 had observed : "That issue cannot be gone into at this stage. The same will be considered at the hearing of the motion." The Plaintiff had an opportunity to get his contention adjudicated at the time of the hearing and final disposal of Notice of Motion No.3739 of 2007 itself. However, the Plaintiff avoided the adjudication of this contention and withdrew the Suit itself as recorded by the learned Single Judge (Coram : Dr.D.Y.Chandrachud, J.) by his Order dated 17th January 2008. Upon perusal of the said Order dated 17th January 2008 it appears, that though on the request of the counsel for the Plaintiff it was clarified that in the event the Plaintiff files a fresh Suit the rights and contentions of the parties are kept open including the entitlement, if any, of the Plaintiff to urge that any disposition of property is unlawful and all defences are 11 NMS.1876.2008 similarly kept open, however, no liberty is granted to file a fresh Suit and the Suit is dismissed as withdrawn at the instance of the Plaintiff without granting any liberty to file a fresh Suit on the same cause of action. The application for speaking to the minutes made at a very belated stage seeking clarification that the first Suit was allowed to be withdrawn with liberty as alleged is also disposed of with "No Orders". Though the Plaintiff after withdrawing the first Suit filed a second Suit in which he had claimed a sum of Rs.70.00 lakhs for utilization of Rs.5.00 crores for a period of 14 months, he has altered that Suit and deleted the said claim. He has not joined the Defendant nos.1, 2, 5 and 6 to the second and the third Suits and has joined the Defendant no.3 in the second and the third Suits only in his capacity as a person in-charge of a partnership firm known as Empire Exports and the Defendant no.4 only in her capacity as a trustee of the trust known as Madhulaxmi Charitable Trust. I am, therefore, in agreement with the learned advocates appearing for the Defendants that the Plaintiff despite having an opportunity to seek adjudication qua his contention that the Defendants have made false statements in their affidavits, has avoided to do so and by withdrawing the entire Suit on 17th January 2008 is, now, not entitled to re-agitate the same contention by way of the present Notice of Motion. 20. Even otherwise, as stated earlier, with the assistance of the learned Advocates for the Defendants I have gone through the charges levelled by the Plaintiff against the Defendants in the affidavit-in-support of the Notice of Motion and I am convinced that the charges/allegations made against the Defendants by the Plaintiff are based on conjectures, surmises, presumptions and assumptions. In fact, the charges are levelled in the affidavit--in-support by use of the words "highly improbable, patently improbable, vague, no particulars, without supporting documents" etc.. The learned advocates for the Defendants have therefore correctly submitted that the perjury proceedings can be initiated only if there is clear contravention and two statements cannot stand together. The perjury proceedings cannot be initiated on the basis of conjectures and 12 NMS.1876.2008 surmises, as is sought to be done by the Plaintiff in the present Notice of Motion. 21. The Apex Court in case of Chajoo Ram Vs. Radhey Shyam and another (supra), in paragraph no.7 has categorically laid down as follows:- "7. The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be Ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. ... ... ..." 22. The Apex Court in case of Chandrapal Singh and others Vs. Maharaj Singh and another (supra), in paragraph 14 has observed thus:- "14. ... ... ... Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge under section 199, IPC. To illustrate the point, appellant 1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No.385/2. The learned Additional District Judge after scrutinising all rival affidavits did not accept this contention. It thereby does not become false. The only inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by itself is not a sufficient yardstick