Chandrabhan Chunilal Agarwal and Another Vs Sharad by Son of Ramgopal Radhavallabh Agarwal and Others - Citation 1144240 - Court Judgment

Judgment:

1. Defendant no.1 has filed these two Notice of Motions for various reliefs. Notice no. 765 of 2009 is filed inter alia praying for recalling and setting aside the orders dated 11th September, 2007 and 3rd October 2005 passed by this court disposing of Suit No. 4816 of 2000 and further seeks that the orders dated 2^nd December 2000, 18th June, 2002 and 2nd February, 2001 be set aside and/or recalled. Defendants also seek that court receiver shall take possession of the properties pursuant to the order dated 2nd December, 2000 and shall restore the position as on that date by removing the persons that may be found in the premises.

2. Notice of Motion No. 591 of 2009 is filed by the original 1st defendant in Suit No. 2687 of 2001 inter alia praying for recalling and setting aside the order dated 6th May 2008, 9th January 2004 and 5th April, 2004. Defendant no.1 has also prayed that the court receiver appointed by this court on 9th January, 2004 be directed to take possession of the properties pursuant to the order dated 5th April, 2004 and restore the position as on that date by removing the persons that may be found in the premises. By consent of parties, both the Notice of Motions were heard together and are being disposed of by a common order.

3. Some of the relevant facts for the purpose of deciding these two Notice of Motions which emerged from the pleadings and documents are as under:-

I will first summarise the facts in the Notice of Motion No. 765 of 2009 in Suit No 4816 of 2000.

4. In Suit No. 4816 of 2000 it was case of the plaintiff that the plaintiff and the original defendant Mr.Ramgopal R.Agarwal were the partners of a registered partnership firm known as M/s.Siddhivinayak Enterprises carrying on business at 1st Floor Premises, entire left wing situated at 249, Kalbadevi Road, Mumbai 400 002 by virtue of a partnership dated 16th August, 2000 on the terms and conditions recorded therein. According to the plaintiff both parties were having equal shares in the said alleged partnership. According to the plaintiff the defendant was managing all the affairs of the partnership firm from the very beginning in consultation with the plaintiff. The plaintiff had alleged to have contributed Rs.9 lacs by cheque from his own fund and from his family members in the partnership firm. It is case of the plaintiff that the defendant was managing the affairs of the partnership at his whims and fancies and in the manner he liked by taking advantage of his attending the day to day business of the firm and was signing the hundies in favour of the different parties and was obtaining loans in the name of the firm behind the back of the plaintiff and did not render any accounts.

5. It is alleged in the plaint that the said partnership firm had only one immoveable property i.e. businesses premises at 1st Floor Premises, (entire left wing) situated at 249, Kalbadevi Road, Mumbai 400 002. It is also alleged that the said firm was however using godown on the Ground Floor of the said building for the purpose of storing the goods of the said firm. It is case of the plaintiff that on 7th November, 2000 defendant told the plaintiff to go away from the office of the immediately and forcibly removed all the keys of the office. On 21st November, 2000 the plaintiff filed Suit No. 4186 of 2000 against the original defendant inter alia praying for a declaration that the suit firm stood dissolved as and from the date of filing of the suit or such other date as this court may deem fit. Plaintiff also prayed for an order and decree against the defendant to pay to the plaintiff a sum of Rs.9 lacs or such other amount as may be found due and payable by the defendant to the plaintiff coming to his share with interest at the rate of 18% per annum. In the plaint, the plaintiff also prayed for interim reliefs inter alia praying for appointment of court receiver of all the assets, partnership premises carrying on business at first floor premises and godown on the ground floor situate at 249, Kalbadevi Road, Mumbai 400 002 etc., and also prayed for injunction.

6. Sometime in the year 2000, the said Suit (No. 4816 of 2000) the plaintiff filed a Notice of Motion No. 3350 of 2000 inter alia praying for appointment of court receiver of all assets, partnership premises carrying on business at 1st Floor Premises, entire left wing situated at 249, Kalbadevi Road, Mumbai 400 002 alongwith books of accounts , vouchers etc. and also prayed for an injunction against the defendant.

7. On 2nd December, 2000 plaintiff applied for ad-interim reliefs in the said Notice of Motion (3350 of 2000). The plaintiff through his learned advocate made a statement that the defendant was served. This court recorded that none was present for the defendant though served. This court appointed court receiver in terms of prayer clause (a) except the power of sale and also granted ad-interim injunction till court receiver takes possession in terms of prayer (a). The plaintiff was directed to comply with the requirement of order XXXIX of the Code of Civil Procedure in the matter of service on the defendant. Notice of Motion was made returnable after eight weeks.

8. On 22nd December, 2000 the representative of the court receiver submitted a report as to what steps were taken by the office of the court receiver for implementing the ad-interim order passed by this court. It is stated in the said report that the plaintiff pointed out the suit property i.e. office premises 1st Floor Premises, entire left wing and the godown premises on the ground floor and one office-cum-godown near stair case on the ground floor. The representative of the court receiver found the suit property in locked condition. It is also recorded in the said report that the said representative contacted one person who was staying under the stair case who disclosed his name as Mr.Kesariprasad Pandey and asked about the suit property and the defendant. Mr.Pandey informed that since long the said premises were locked and the defendant had not turned up there since long back. In these circumstances, the representative of the court receiver cold not execute the ad interim order passed by this court.

9. On 18th January, 2001 the representative of the court receiver submitted another report recording what steps he had taken for the purpose of implementing ad-interim order. It is recorded that the said representative alongwith plaintiff waited in the suit premises for an hour however neither the defendant nor his authorised representative turned up there to handover the physical possession of the suit property to him and therefore he could not execute the order passed by this court.

10. On 25th January, 2001 the plaintiff filed an affidavit in support of the Judges Order stating that pursuant to the ad-interim order passed by this court when the court receiver visited the suit premises, it was found locked and thus ad-interim order could not be executed on two occasions. It is stated that it was therefore not possible to take physical possession of the suit property by the court receiver and to execute the order dated 2nd December, 2000 passed by this court. It is stated that it would be therefore necessary and in the interest of justice that the court receiver appointed be directed to break open the lock of the suit premises and to take physical possession. In the Judges Order filed by the plaintiff it is prayed that the court receiver shall take physical possession of the suit premises i.e. 1st Floor Premises, Entire Left wing situated at 249, Kalbadevi Road, Mumbai 400 002 by breaking open the lock found thereon with the help of police, if necessary and to make inventory of the articles, if found inside the premises and do handover the physical possession of the suit premises to the plaintiff. On 2nd February, 2001 the learned Chamber Judge of this court allowed the said Judges Order as prayed exparte.

11. On 18th June, 2002 this court passed an order that no affidavit in reply has been filed. For the reason stated in that order and in the order dated 2nd December, 2000 this court made the Notice of Motion absolute in terms of prayer (a). It appears that the advocate appearing for the plaintiff did not point out the order dated 2nd February 2001 passed by the learned Chamber Judge in Judges Order directing the court receiver to take forcible possession of the suit premises.

12. On 3rd October, 2005 this court took consent terms dated 3rd October, 2005 signed by the plaintiff, his advocate, Mr.Naresh Tarachand Jain, the alleged constituted attorney of the defendant and advocate allegedly representing the defendant. The order passed by this court indicates the appearance of Mr.A.A.Garge instructed by M.V.Limaye and Mr.Kapil Shetty instructed by Pandya Gandhi and Co. for the defendant. By the said order dated 3rd October, 2005 the Suit No. 4816 of 2000 is disposed of in terms of consent terms. This court directed the refund of court fees as per rules.

13. On 11th September, 2007 Suit No.4816 of 2000 appeared before this court when an alleged clerical error in the order dated 3rd October, 2005 came to be pointed out by the advocate appearing for the plaintiff which error is corrected by the said order dated 11th September, 2007. The Roznama produced on record shows that Ms.Kusum Poojari i/b. Gupta advocate appeared for plaintiff. Mr.Nareshkumar Jain, alleged C.A. for defendant was present. The order passed by this court also records that the defendant is personally present in the court and has no objection in carrying out the changes in the order dated 3rd October, 2005 as recorded in the said order.

14. On 13th February, 2009 the original defendant filed Notice of Motion No. 765 of 2009 for re-calling various orders and for various reliefs. During the pendency of this Notice of Motion, the original defendant expired and his legal heirs are brought on record as defendant nos. 1A to 1E.

15. Mr.Kanuga, learned counsel appearing for defendants submits that the defendant nos. 1A to 1E represents the estate of the original defendant as well as surviving co-partners as HUF of Ramgopal Agarwal. It is submitted that the alleged partnership deed relied upon by the plaintiff is a forged and a fabricated document. No such partnership deed was ever entered into between the plaintiff and the original defendant. No writ of summons in the suit has been served at any point of time upon the original defendant. The plaintiff on the basis of the forged partnership deed got the court receiver appointed and took the possession of the property fraudulently in convenience with the intervener. At the relevant time the defendant was out of India on account of the threats received by him by the goons of money lenders who had financed the original defendant in his business and had compelled him to leave India to go to Thailand and from Thailand to USA and other countries. It is submitted that the plaintiff made a false statement before this court when he applied for ad-interim reliefs that the defendant had been served and based on such false statement obtained an ad-interim order of appointment of court receiver of the business of M/s.Siddhivinayak Enterprises. Original defendant was not served upon with any notice to remain present.

16. It is submitted that the premises of the defendant was locked since long which fact is apparent even from the report submitted by the court receiver when he visited the premises on 21st December, 2000. Learned counsel submits that the defendant did not receive any notice from the court receiver for implementation of the ad-interim or interim order passed by this court. It is submitted that since no notice was ever received by the defendant, defendant could not remain present before this court. The plaintiff filed false affidavit on 25th January, 2001 praying for forcible possession of the suit premises. Learned counsel submits that though in the affidavit dated 25th January 2001 there was no averments to handover the possession of the suit premises to the plaintiff by practicing a fraud upon this court, the plaintiff obtained an order for handing over physical possession of the suit premises to the plaintiff. It is submitted that though the business premises was shown as 1st floor premises, entire left wing, the plaintiff obtained possession of other premises also fraudulently.

17. Learned counsel submits that when the matter appeared before this court on 18th June, 2002 the plaintiff suppressed the fact that the plaintiff had already obtained possession of the suit premises pursuant to an order passed by this court on 2nd February 2001. No affidavit of service was filed even at that stage. The plaintiff made a false statement before this court and got the Notice of Motion absolute in terms of prayer (a). Learned counsel submits that it was learnt by the defendant that Union Bank of India had also filed the proceedings before Debt Recovery Tribunal against one Saroj Textile, a partnership firm consisting of parties mentioned in Suit No. 3462 of 2000. The original defendant was sued in his capacity as Karta of Ramgopal R.Agarwal on the basis that he had deposited the title deeds of property Vrindavan Bhavan, 249, Kalbadevi Road consisting of ground and three upper floors which according to the bank was given as security for the loan advanced to Saroj Textiles. An ex-parte decree came to be passed in the said proceedings. An appeal was filed before the Appellate Tribunal by one of the party. A public notice was published in the newspapers mentioning the name of the defendant on 19th July, 2008.

18. The original defendant returned from USA sometime in the late 2007 and learnt about the proceedings before the Debt Recovery Tribunal and from those proceedings about the suit filed by the plaintiff against the original defendant in this court. Learned counsel submits that the original defendant had not engaged any advocate M/s.Pandya Gandhy and Co. or Mr.Kapil Shetty. Original defendant did not sign any power of attorney in favour of Mr.Nareshkumar Jain and the same was forged and fabricated by him. It is submitted that even the consent terms does not refer to any such alleged power of attorney. Learned counsel submits that the plaintiff as well as Mr.Nareshkumar Jain have committed a fraud upon this court and upon the original defendant by obtaining orders and by taking possession of the immoveable property Vrindavan Bhavan which was neither the asset of the partnership nor the asset of the original defendant but belong to HUF of Ramgopal R.Agarwal. It is submitted that the properties worth Rs.4 crores had been obtained illegally, fraudulently and practicing fraud upon the court by the plaintiff jointly with Mr.Nareshkumar Jain.

19. There was no firm by name M/s.Siddhivinayak Enterprises existing at all. The plaintiff has not produced any documents such as details of bank account, books of account, any sales of order or registration certificate to show that any such partnership firm was ever formed. Within three months from the date of execution of alleged partnership deed, the plaintiff filed a suit fraudulently for dissolution of such alleged firm though no such firm existed. There was no bank account ever opened in the name of the alleged firm. No amount was ever received by the defendant from the plaintiff by cheque or otherwise. Learned counsel submits that though this court passed an order while granting ad-interim relief directing the plaintiff to file affidavit and to comply with the provisions under order 39 in the matter of service on the original defendant, the plaintiff did not file any affidavit within reasonable time. It is submitted that in the affidavit dated 18th June, 2002 the plaintiff has alleged a fabricated receipt dated 15^th December 2000 which contains a forged signature of the defendant.

20. Mr.Kanuga, learned counsel invited my attention to the police complaint filed by the original defendant against the plaintiff and Mr.Nareshkumar Jain and the FIR filed by the concerned police station containing the statements recorded by the police of various parties including the said Mr.Nareshkumar Jain. Mr.Nareshkumar Jain filed a Chamber Summons no.1819 of 2009 in this suit inter alia praying for an amendment to the plaint, Notice of Motion and the proceedings setout in the schedule appended to the said Chamber Summons. The said Mr.Naresh Tarachand Jain also applied for an injunction restraining the plaintiff and the defendant for any parties claiming through them from in any manner disturbing and/or interfering with the peaceful possession and/or from dispossessing him from two godowns on the ground floor, one room on left side wing of Vrindavan Bhavan, Kalbadevi Road, Mumbai 400 0022 without due process of law. In the said Chamber Summons the said Mr.Nareshkumar T.Jain (hereinafter referred to as the intervener) referred to various proceedings initiated against him, complaints filed against him before various courts and authorities.

21. It is alleged by the said intervener that he was in possession of and occupation of five rooms i.e. two godowns on the ground floor, one room on the main side road on first floor and one room on left wing and entire third floor and fourth floor (terrace) of Vrindavan Bhavan, Kalbadevi Raod, Mumbai 400 0022. By an order dated 11th January, 2012, S.J.Kathawala, J. disposed of the said Chamber Summons (1819 of 2009) and allowed the intervener to file affidavit in the Notice of Motion No. 765 of 2009 and directed that the intervener also shall be heard in the said Notice of Motion No. 765 of 2009.

22. Mr.Kanuga, learned counsel invited my attention to various paragraphs from the affidavit in support of the Chamber Summons filed by the intervener, anenxtures thereto and also the affidavit in reply filed in this Notice of Motion and submitted that the intervener was the masterminded and brain behind this fraud committed on this court jointly with and in collusion with the plaintiff. Learned counsel also pointed out various inconsistencies in the affidavit and proceedings filed by the intervener in various courts and to how fraudulently he took possession of the properties. I will deal with those documents and pleadings which are relied upon by the learned counsel in the later part of the judgment. Mr.Kanuga, learned counsel then invited my attention to the pleadings and documents in Notice of Motion No. 591 of 2009 in Suit No. 2687 of 2001.

23. In so far as Suit No. 2687 of 2001 is concerned, the said suit has been filed by one Mr.Navalkumar Radhavallabh Agarwal against Mr.Ramgopal Radhavallabh Agarwal and Mr.Girdharilal G.Agarwal. In the plaint, it is case of the plaintiff that by a deed of partnership dated 5th march, 2001 entered into between the plaintiff, original defendant and defendants no.2, the parties commenced the business in the partnership. The plaintiff has alleged to have contributed Rs.1 lakh by cash from his own funds and from his family members in the suit partnership firm. It is alleged that the defendants were managing the affairs of the partnership at their whims and fancies and in the manner they liked and obtained loans in the name of firm behind the back of the plaintiff. Defendant did not render any true and correct account of the partnership business.

24. It is alleged in the plaint that the partnership had only two immoveable properties i.e. First Floor premises, road side room and third floor block situated at 249, Kalbadevi Road, Mumbai 400 002. It is alleged that the defendant no.2 i.e. Mr.Girdharilal G.Agarwal being the working partner and engaged in conducting the business actively of the firm removed all the keys of the office and asked the plaintiff to go away from the office of the firm immediately. It is alleged that the defendants failed to pay share capital of Rs.1 lakh to the plaintiff and other advantages of the partnership business and refused to allow the plaintiff to have excess to the original books of accounts of the firm. The plaintiff prayed for a declaration that the partnership business in the name and style of M/s.Sarita Tex stood dissolved form the date of filing suit or from such other date as this court deems fit. According to the plaintiff the plaintiff was entitled to have 25% share, defendant no.1, 25% share and the defendant no.2, 50% share in the profits and losses of the partnership. The plaintiff also prayed for an order and decree against the defendants in the sum of Rs.l lakh or such amount as may be found due with interest 18% per anum.

25. In the plaint, the plaintiff also prayed for appointment of court receiver and injunction. Receiver is sought in respect of the assets, partnership premises i.e. first floor premises, road side room and third floor block. Both the aforesaid suits were filed through Mr.J.V.Parmar advocate. In the said suit, the plaintiff filed notice of motion for appointment of court receiver and injunction. The Notice of Motion No.1926 of 2001 appeared before this court on 23rd August, 2001 for ad-interim reliefs. The advocate representing the plaintiff made a statement that the defendants were served and undertook to file affidavit of service within one week. This court passed an ad-interim order in terms of prayer (b) restraining the defendants from dealing with or disposing of or encumbering the assets or partnership premises described in prayer (b) of the Notice of Motion. None appeared for the defendants on 23rd August 2001.

26. By an order dated 20th December, 2001 this court ordered that Motion to be placed on board in its own turn. On 8th January 2003 this court once again passed an order that the motion to come up in due course when the plaintiff through his advocate applied for urgent ex-parte reliefs. On 4th November 2003 this court recorded the statement of the advocate appearing for the plaintiff that all the defendants had been served with the copy of the notice of motion and affidavit in support and directed the plaintiff to file affidavit of service. Matter was adjourned for one week. On 7th November 2003 the plaintiff filed an affidavit of service alleging that he had gone to serve the proceedings upon the original defendants no.1 at the address mentioned in the cause title of the plaint and also defendants no.2 at his address mentioned therein. It is alleged that both the defendants had received the proceedings and had signed on the reverse of letter dated 18th August, 2001. The service letter dated 17th august, 2001 which was marked to the defendant no.2 shows an endorsement 'received on 18th August, 2001 at 10.35 pm.' The said letter contains the alleged signature of defendants no.1 and 2 and alleged acknowledgment of receipt of court papers.

27. The Notice of Motion No. 1826 of 2001 appeared before this court on 9^th January 2004 when none appeared for the defendants. This court recorded that affidavit of service is filed by the plaintiff. None appeared for the defendants and no affidavit is reply is filed. The averments filed in the affidavit filed in support of notice of motion are accepted at their face value. This court made the Notice of Motion absolute in terms of prayers (a) and (b) i.e. by appointment of receiver and by granting injunction as prayed. On 24th March, 2004 the plaintiff filed an affidavit alongwith Judges Order (73 of 2004) in Suit No.2687 of 2001. It is alleged in the said affidavit that the plaintiff had approached the court receiver to take physical possession of the premises on 12th February 2004 at 2.15 p.m. However it was found locked and therefore court receiver could not take possession of the suit property and could not execute the order passed by this court.

28. Court receiver again visited the suit premises on 17th March, 2004 and again could not execute the order passed by this court and could not take possession of the suit property. The plaintiff submitted in the said affidavit that the court receiver shall be directed to break open the lock of the suit premises and to take physical possession. The said Judges Order appeared on the board on 5th April, 2004. A perusal of the said Judges Order shows that though in the affidavit in support of Judges Order, there was no submission that the court receiver shall be directed to handover the physical possession of the suit premises to the plaintiff, in the Judges Order such directions have been obtained by the plaintiff.

29. My attention is invited to the report submitted by the court receiver which shows that the court receiver took forcible possession of various properties pursuant to the order passed by this court in Judges Order in absence of the defendant. It is stated in the report submitted by the court receiver that possession of the suit premises alongwith various moveables, books of accounts were handed over to the plaintiff against the proper receipt. The court receiver also stated in the report that after the court receiver handed over possession of the suit premises alongwith moveables etc. to the plaintiff though several meetings were fixed by the court receiver to consider further course of action to be taken in respect of discharge of the court receiver and directing the plaintiff to apply for the discharge of the court receiver, the advocates and parties to suit remained absent despite notice. On 6th May, 2008 the matter appeared before this court. Mr.M.V.Limaye advocate appeared for the plaintiff. This court passed an order that this court heard learned counsel for the parties. Learned counsel for the plaintiff sought permission of this court to withdraw the suit. It was recorded that the counsel for the defendant has no objection for allowing the plaintiff to withdraw the suit. The suit is dismissed as withdrawn and refund of court fees as per rules.

30. On 10th February 2009 the original defendant filed a Notice of Motion (591 of 2009) inter alia praying for setting aside and recalling the order dated 6th May 2008, 9th January 2004 and 5th April, 2904 passed by this court and also praying for an order and direction against the court receiver to take possession of the properties pursuant to the order dated 5th April, 2004 and restore the position as on that date by removing the persons that may be found in the premises. Mr.Naresh Tarachand Jain (hereinafter referred to as the intervener filed a chamber summons on 4^th November, 2009 in Suit No. 2687 of 2001 inter alia praying for amendment of the plaint, notice of motion and proceedings setout in the schedule and also sought an injunction against the plaintiff and the defendants from interfering with possession and/or forcibly disposing the intervener from the suit premises. The intervener annexed several documents in the said chamber summons including the proceedings filed by him and filed against him in various courts.

31. The intervener as well as plaintiff filed separate affidavits in this proceedings. Mr.Kanuga, learned counsel appearing for the legal heirs of the original defendant no.1 submits that the original defendant no.1was never served with any writ of summons or notices as falsely alleged by the plaintiff and the intervener. The plaintiff has filed a false affidavit of service. The original defendant never executed any partnership deed with the plaintiff or defendant no.2 as falsely claimed by the plaintiff and the intervener. The said alleged partnership deed is fabricated. Signature of the original defendant is forged on the alleged deed. The alleged partnership firm never opened any bank account. Within less than three months from the date of execution of alleged partnership deed the plaintiff filed a suit for dissolution. The alleged partnership deed is registered on 17th July, 2001. Suit is lodged on 27th July, 2001. It is submitted that the plaintiff obtained interim orders by making a false statement about service of the notices and proceedings upon the original defendant. The original defendant did not sign on the reverse of the alleged notice and the same is fabricated. It is submitted that the plaintiff jointly with the intervener have committed fraud upon this court and obtained possession of various properties.

32. It is submitted that though in the affidavit in support of Judges Order, there was no submission about any directions against the court receiver to hand over physical possession of the properties to the plaintiff, in the Judges Order, the same was inserted and such order came to be obtained from this court fraudulently. Learned counsel invited my attention to various orders passed by the Prothonotary and Senior Master directing the plaintiff to file affidavit of service proving the service of writ of summons but the plaintiff did not serve the writ of summons and did not file the affidavit of service. It is submitted that when the service was alleged to have been effected on the defendant on 18th August 2001, he was out of India and was in Bangkok from 1st August 2001 and then for sometime in Mayanmar and then in US upto 20th December 2002. Original defendant no.1 thereafter returned to Bangkok. He had to leave India and be away, outside India from 7th June 2000 till 26th February 2007 in view of the financial problems and the threats given by goons employed by the money lenders. It is submitted that the original defendant never signed any vakalatnama in favour of Mr.T.R.Desai. Signature of the original defendant on the vakalatnama is fabricated. Learned counsel also invited my attention to the proceedings filed by the Union Bank of India in respect of the properties which are subject matter of the suit.

33. Mr.Kanuga, learned counsel placed reliance on paragraphs 21 to 28 and 39 of the judgment of the Supreme Court in case of A.V.PapayyaSastry and others vs. Govt. of Andhra Pradesh and others (2007) 4 SCC 221. Learned counsel also placed reliance on the judgment of the Supreme Court in case of S.P.ChengalvarayaNaidu vs. Jagannath reported in (1994) 1 SCC page 1 and relied on paragraphs 5 and 6. Reliance is also placed on paragraphs 19 and 28 of the judgment of Supreme Court in case of T.Vijendradasvs. M.Subramanian and others (2007) 8 SCC 751. Learned counsel placed reliance on the aforesaid judgments in support of the submission that since the plaintiff and the intervener had committed fraud on this court by filing a false suit and false affidavit of service and obtained possession of the property fraudulently without any notice to the defendants and thus the intervener who claims to be in possession of the property and has obtained possession in collusion with the plaintiff by committing a fraud upon this court is liable to be thrown out of the possession in this proceedings. All such orders which are obtained by committing fraud on this court shall be vacated and the court receiver shall be directed to take forcible possession from the plaintiff and/or the intervener and/or any other parties and to restore back the possession as it stood prior to the date of such dispossession.

34. Paragraphs 21 to 28 and 39 of the judgment of Supreme Court in case of A.V.PapayyaSastry and others (supra) read thus:-

œ21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;

œFraud avoids all judicial acts, ecclesiastical or temporal.?

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order -- by the first Court or by the final Court -- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd. v. Beasley:,

Lord Denning observed: (All ER p.345 C)

œNo judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud.?

24. In Duchess of Kingstone, Smith's Leading Cases 13^th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

25. It has been said; Fraud and justice never dwell together (frauset jus nunquam cohabitant); or fraud and deceit ought to benefit none (frauset doles nemini patrocinari debent).

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in remor in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.

27. In S.P. Chengalvaraya Naidu (dead) by LRs. v. MANU/SC/0192/1994 :Jagannath (dead) by LRs. and Ors. AIR1994SC853, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.

28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated: (SCC p.5 para 5)

œThe 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.?

(emphasis supplied)

39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior.

35. Paragraphs 5 and 6 of the Supreme Court in case of S.P.ChengalvarayaNaidu (supra) read thus:-

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 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 purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) 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 tantamounts 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 Exhibit 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 other side then he would he guilty of playing fraud on the court as well as on the opposite party.

36. Paragraphs 19 and 28 of the judgment of the Supreme Court in case of T.Vijendradas(supra) read thus:-

15. In A.V. Papayya Sastry and Ors. v. Govt. of A.P. and Ors. MANU/SC/1214/2007 : AIR2007SC1546 , it was held:

'Fraud avoids all judicial acts, ecclesiastical or temporal.'

28. Once it is held that by reason of commission of a fraud, a decree is rendered to be void rendering all subsequent proceedings taken pursuant thereto also nullity, in our opinion, it would be wholly inequitable to confer a benefit on a party, who is a beneficiary thereunder. The decisions rendered in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar MANU/SC/0045/1962 : (1963) Supp. 1 SCR 676 and Profulla Chrome Requitte and Ors. v. Satya Chrone Requitte : whereupon reliance has been placed by Mr. Viswanathan, may not have any application in a case of this nature in view of the fact that the principal question which, in our opinion, would be more pertinent is as to whether even in a situation of this nature, the discretionary jurisdiction under Article 136 of the Constitution of India should be invoked particularly when the party raising the said question has been impleaded as a party.

37. Mr. Kanuga also invited my attention to two separate affidavits filed by the plaintiff in the aforesaid two Notice of Motion admitting that the fraud is committed by the plaintiff in collusion with the intervener. Learned counsel appearing for plaintiff in both the matters submit that the fraud was jointly committed by the plaintiff and the intervener. It is submitted that though at all stages the court receiver had given possession of part of the properties to the plaintiff on record, the intervener has taken possession of the entire property from the plaintiff. The plaintiff is not in possession of any part of the suit property since quiet sometime. The plaintiff has tendered unconditional apology for such fraud committed on this court in the circumstances alleged in the affidavits filed by the plaintiffs in both the suits.

38. Learned counsel appearing for plaintiff submits that in so far as Suit No. 4816 of 2000 is concerned, the plaintiff had given a loan of Rs. 9 lacs to the original defendant. The intervener had assured the plaintiff of help to recover the said loan and in return he agreed to take payment of Rs. 1 lac from the plaintiff. It is submitted that the said suit was filed on his behalf by the intervener who engaged the advocates. The plaintiff tendered unconditional apology. Learned counsel submits that the intervener took forcible possession of some part of the suit property and had threatened the plaintiff of dire consequences if plaintiff did not let him use the suit property. It is submitted that considering the age of the plaintiff who is about 85 years old, court should take sympathetic view against the plaintiff for whatever wrong he has done. It is submitted that though at one stage plaintiff was put in possession of some part of the suit property by the court receiver, the intervener had dispossessed him and taken possession of the entire property.

39. Mr. Deshmukh learned counsel appearing for the intervener in reply submits that he was not a party to any of the suits nor was even impleaded as party defendant. It is submitted that the intervener was not at all in picture till power of attorney was executed by the original defendant in favour of the intervener in the year 2005. The original defendant had filed this notice of motion after three years of disposal of suit and have joined hands with the plaintiff. It is submitted that the plaintiff and the defendants have committed fraud upon the intervener. No fraud is committed by the intervener. The original defendant has challenged four orders passed by this court in Suit 4816 of 2000 which cannot be done in a notice of motion. When the suit was disposed of by this court on 3rd October, 2005 parties were personally present in court and had appeared through their advocates when the consent terms were filed. The intervener is not concerned with any orders passed prior to 2005. Learned counsel submits that the plaintiff had been engaging advocates from time to time who had filed pleadings. The plaintiff had acted upon the orders passed by this court. Plaintiff had also applied for refund of court fees and had also applied for speaking to the minutes of order dated 3rd October, 2005 on 11th September, 2007. The intervener was present on behalf of the original defendant as his constituted attorney. Even the original defendant was personally present in court and did not raise any objection when this court passed an order on 11th September 2007.

40. In so far as ad interim order passed by this court on 2nd December, 2005 in notice of motion is concerned, it is submitted that the said order was passed after hearing the advocate representing the plaintiff. Intervener was not at all concerned in any manner whatsoever with the plaintiff or the defendant when the said order was passed. The plaintiff thereafter applied for forcible possession by filing Judges order and implemented the order dated 2nd February, 2001 on 15th February, 2001. The court receiver handed over possession to the plaintiff and not to the intervener. Learned counsel placed reliance on court receiver's report in support of his submission that since defendant did not remain present and co-operated with the court receiver in implementing the interim orders passed by this court plaintiff had applied for forcible possession of the suit property. Learned counsel submits that the intervener was given a power of attorney by the defendant which was notarized after the defendant signed in the register of notary public. The said power of attorney contained the photograph of the original defendant. The concerned police station had recorded the statement of the notary public to confirm that such power of attorney was notarized by him. Learned counsel submits that the intervener had also filed an application for intervention in the proceedings filed by the Union Bank of India before Debt Recovery Tribunal.

41. Mr. Deshmukh learned counsel then submits that even if any fraud is committed, intervener is neither responsible for the same nor is party to any such alleged fraud. Affidavit of the plaintiff cannot be believed as far as intervener is concerned. Even if plaintiff has accepted fraud, same cannot affect or prejudice the rights of the intervener. Learned counsel submits that the plaintiff and defendants are trying to convert the notice of motion as suit for possession against the intervener which is beyond the scope of notice of motion and powers of this court. This court cannot pass any order against the intervener who was neither party to the suit nor to this notice of motion. Neither the plaintiff nor the defendants have filed any separate suit against the intervener. Notice of motion is not the remedy for obtaining possession from the intervener. The intervener has already filed several suits for protecting the suit property in different courts. Learned counsel read out some of the averments made in the affidavit in support of notice of motion and the affidavit filed by the intervener in support of the chamber summons filed by him and affidavit in reply filed in this notice of motions. On the basis of the affidavits filed by the intervener learned counsel sought to demonstrate the circumstances in which intervener was put in possession either by plaintiff or by original defendant in respect of the entire property. Learned counsel submits that court has to see the fraud, if any, committed at the time of disposal of the suit and not what transpired subsequently.

REASONS AND CONCLUSIONS :

42. In view of the rival submissions made by all the parties in these two notice of motions, questions that arise for consideration of this court is whether any fraud is committed upon this court by any of the parties to the suit at any stage of the matter or by the plaintiff jointly with the intervener and if committed what is the consequence thereof. Whether reliefs as claimed in the notice of motion can be granted by this court in the notice of motion itself or the defendants ought to have filed a separate suit for the reliefs claimed. Question also arises as to whether intervener who is in possession admittedly of the suit properties can be dispossessed in this notice of motion through the court receiver or otherwise. Learned counsel appearing for all the parties invited my attention to the entire record and the proceedings including the FIR lodged against the intervener and various suits filed by the intervener against various parties, complaints filed by various parties against the intervener, proceedings filed by banks before Debt Recovery Tribunal and in this court. I have also gone through the original records of this proceedings, roznamas and the vakalatnamas filed by various advocates in both the suits.

43. In so far as Suit No. 4816 of 2000 is concerned, it is the case of the original defendant that he never entered into any partnership deed on 5th march, 2001 or otherwise with the plaintiff or with Mr. Girdharilal G. Agarwal. At the relevant time he was in USA and his signature on the alleged partnership deed is forged. A perusal of the alleged partnership deed indicates that the plaintiff claimed 25% share in the suit firm i.e. M/s. Siddhivinayak Enterprises. The deed of partnership is alleged to have been executed on 16th August, 2000 between the plaintiff and original defendant. The alleged partnership deed does not indicate whether any capital was introduced by any of the alleged partners. According to partnership deed plaintiff and defendant were entitled to equal share in the profit and losses in the business. A perusal of the plaint does not show that plaintiff had addressed any letter to the defendant dissolving the suit firm or for any other purposes. Suit is filed on 21st November, 2000 inter alia praying for a declaration that the suit firm M/s. Siddhivinayak Enterprises stood dissolved from the date of filing suit or from such other date as this court deems fit. The plaintiff has also prayed for an order and decree against the defendant in the sum of Rs. 9 lacs or any other amount as found due and payable. The vakalatnama is filed in favour of Mr. J.V. Parmar, advocate. The plaintiff filed a notice of motion for interim reliefs. In the notice of motion, the plaintiff sought appointment of court receiver of all assets, partnership premises carrying on business at first floor premises (entire left wing) situated at 249 Kalbadevi Road, Mumbai 400 002 along with movables. On 2nd December, 2000 when plaintiff applied for ad interim reliefs in the notice of motion, it appears that the plaintiff through his advocate made a statement that the defendant was served. This court appointed receiver by passing the ad interim order without giving power to sell. Plaintiff was directed to comply with the requirement of order 39 of CPC in the matter of service on the defendant.

44. On 22nd December, 2000 the court receiver submitted a report that when he visited the suit premises to implement the ad interim order passed by this court, on 21st December, 2000 along with plaintiff, he found that the suit property was in locked condition. He contacted one person who was staying under the staircase namely Mr. Keshriprasad Pandey and inquired about the suit property and the defendant, he was informed that the said premises was locked since long and the defendant had not turned up in that premises since long. The court receiver therefore could not implement the said ad interim order. The court receiver submitted another report on 18th January, 2001 and recorded that since the suit premises were in locked condition, he could not implement the ad interim order passed by this court.

45. From the perusal of record it is clear that the plaintiff filed an affidavit alongwith Judges Order on 25/01/2001 alleging that since the suit premises were lying locked when he and the Court Receiver visited the suit premises to implement the ad interim order passed by this Court, Court Receiver could not take possession thereof. The Court Receiver again could not execute the order on 17/01/2001. It is alleged that it was not possible to take physical possession of the suit property by the Court Receiver and to execute the order passed by this Court and thus Court Receiver be directed to break open the lock of the suit premises and to take physical possession thereof. A perusal of Judges Order however indicates that in the said Judges Order, the plaintiff has sought an order and injunction against the Court Receiver to hand over the physical possession of the suit premises to the plaintiff which submission was made neither in affidavit in support of notice of motion nor any such prayer is made in the notice of motion filed by the plaintiff. The plaintiff could not have applied for an order and direction against the Court Receiver from handing over physical possession of the suit premises to the plaintiff. Pursuant to the said order, obtained by the plaintiff from this Court on 02/02/2001, which order for handing over possession to the plaintiff was beyond the scope of the affidavit filed in the Judges Order and the notice of motion filed by the plaintiff and also the suit itself, the Court Receiver implemented the said order and handed over possession of various properties to the plaintiff without giving any notice to the defendant.

46. The notice of motion thereafter appeared before this Court on 18/06/2002. This Court noticed that no affidavit in reply had been filed by the defendant. Plaintiff did not inform the Court that plaintiff was already put in physical possession of various properties pursuant to the order passed by this Court in Judges Order on 02/02/2001. By an order dated 18/06/2002 this Court made the notice of motion absolute in terms of prayer (a). In prayer (a) of the said notice of motion, there was no prayer for handing over possession to the plaintiff by the Court Receiver. It is thus clear that all these facts were suppressed from this Court when the said order dated 18/06/02 came to be passed by this Court.

47. On 03/10/2005, Suit no.4816 of 2000 appeared on the board of this Court. It appears that consent terms dated 03/10/2005 came to be filed in the said Suit. It is recorded in the consent terms that the plaintiff and defendants were carrying on partnership businesses prior to the execution of Consent Terms at first floor premises entire left Wing situated at Kalbadevi Road, Mumbai 02. It is provided in the consent terms that the defendant agrees, admits, declares and confirms that the plaintiff is now lawful owner in respect of the premises as the deemed purchaser of the building Vrindavan Bhavan and the same is binding upon the defendant. Plaintiff would be entitled to recover the rent and arrears of rent from the tenants/occupants of the building Vrindavan Bhavan. Entire building Vrindavan Bhavan was not even the subject matter of the suit. The suit firm stood dissolved with effect from 16/08/2000. It was provided that the accounts were made up between the parties and at the foot of the accounts a sum of Rs.9 lacs was due and payable to the plaintiff by the defendant. It is further provided that the defendant agreed to sell, transfer, assign and convey the building Vrindavan Bhanvan situated at Kalbadevi, Mumbai in favour of the plaintiff for the total consideration of Rs.9 lacs. It is further provided that there shall be a consent Decree in terms of consent terms in favour of the plaintiff.

48. A perusal of the roznama indicates that Mr A. A. Garge i/b M.V. Limaye appeared for the plaintiff. Roznama shows that Mr Kapil Shetty i/b Pandya Gandhi and Co. appeared for the defendant. The consent terms are stated to have been signed by the plaintiff and his advocate. It is alleged to have been signed by Mr T. R. Desai Advocate allegedly representing the defendant. It is signed by the intervener as alleged constituted attorney of the defendant. The signature on the alleged Power of Attorney relied upon by the intervener which was alleged to have been executed by the original defendant in favour of the intervener if compared with the admitted signature on record, it clearly indicates that the original defendant had not signed such alleged Power of Attorney and his signature was forged. The allegation of the original defendant that photograph of the defendant which was more than 30 years old affixed on the Power of Attorney itself would indicate that the said Power of Attorney was fabricated and signature of the original defendant was forged thereon.

49. In the affidavit in support of chamber summons filed by the intervener he has admitted that he is in possession and occupation of five rooms i.e. two godowns on ground floor, one room on main side road on the first floor and one room on left wing on first floor and entire third floor and fourth floor terrace of Vrindavan Bhavan. In the said affidavit it is alleged by the intervener that the plaintiff in Suit No.2687/2001 i.e. Mr Naval Kishore Agarwal and the original defendant late Ramgopal Agarwal had handed over possession of third floor, fourth floor and road side room of the Vrindavan Bhavan to the intervener in the month of June 2005. The plaintiff in that suit issued tenancy receipt issued by the original defendant in respect of third floor and fourth floor of the Vrindavan Bhavan. It is further alleged that during the period 1998-2000 the original defendant had incurred heavy losses in his business and thereafter all the creditors started harassing him for payment of the dues.

50. It is stated that therefore after 2000, the original defendant eloped from Mumbai and shifted to some unknown place outside Mumbai. It is alleged that the intervener had very cordial relations with the original defendant. The original defendant and the father-in- law of the intervener were very close friends. It is alleged that in May 2005 the defendant handed over possession of two godowns on the ground floor of Vrindavan Bhavan to the intervener and also executed a Power of Attorney in his favour. A perusal of the alleged Power of Attorney relied upon by the intervener does not show that the original defendant had handed over possession of the two godowns on the ground floor of Vrindavan Bhavan to the intervener in the month of May 2005 or any other time. On the contrary in the consent terms dated 03/10/2005 which was signed by the intervener as alleged constituted attorney of the original defendant, it indicates that by the said consent terms plaintiff was declared as deemed purchaser of the building Vrindavan Bhavan and the defendant had alleged to have agreed to sell the entire Vrindavan Bhavan for a consideration of Rs.9 lacs to the plaintiff. The property i.e. Vrindavan Bhavan, according to original defendant was worth more than Rs. Four crores. It is thus clear that the story of the intervener that he was put in possession by the defendant in respect of two godowns on the ground floor of Vrindavan Bhavan in the month of May 2005 is ex facie false. Similarly, allegations of the intervener that he was issued a tenancy receipt in the month of June 2005 in respect of third floor, fourth floor and road side room and was handed over possession in respect thereof by the plaintiff Mr Naval Kishore Agarwal and the original defendant in the month of June 2005, is also ex facie false and misleading.

51. In the said chamber summons the intervener placed reliance on a panchamnama recorded by the Recovery Inspector appointed by the Debt Recovery Tribunal in the proceedings filed by Union Bank of India before the Debt Recovery Tribunal. The said panchanama was drawn on 29/06/2007. It is recorded in the said panchanama that the Recovery Inspector found the intervener on the third floor of Vrindavan building who opened the door and claimed to be the representative of the plaintiff in this suit and refused to hand over the possession of the flat on the third floor and also of two godowns. It is recorded in the pancahnama that two godowns situated on the ground floor were occupied by the plaintiff Mr Chandrabhan C. Agarwal, one godown under the staircase was approx. 50 sq.ft and the second godown was approx. 150 sq. ft. which was used for office purposes. Name of the plaintiff was mentioned in the same panchanama as occupant.

52. The intervener also placed reliance on a suit filed in the City Civil Court (L.C. Suit No.2938/08) against the Municipal Corporation of Gr. Mumbai in which it is alleged by the intervener that he was carrying on goldsmith work on the third floor of building Vrindavan Bhavan. The intervener applied for permanent injunction against the Municipal Corporation from taking any action against the intervener for carrying on the business from the said premises. In the said suit filed in the City Civil Court the intervener has annexed the copy of the notice given by his advocate on his behalf to the Municipal Corporation on 20/11/2008. It is alleged in the said notice that there was dispute in the Bombay High Court in respect of the subject matter of a notice i.e. terrace premises of which the intervener took possession in the year 2004 from the Court Receiver of this Court and since 2004, intervernor had not done any alleged work on the terrace and the condition of the terrace was the same when it was in possession of the Court Receiver.

53. The intervener had also filed a suit against the Municipal Corporation in the City Civil Court being L.C. Suit No. 3053/08. It is alleged in the plaint that the intervener is in exclusive use, occupation and enjoyment of the third floor of Vrindavan Bhavan alongwith terrace since June 2004. The intervener has referred to the dispute between Naval Kishore Agarwal and the original defendant in this suit being suit No.2687/01. It is alleged that Mr Chandrabhan Agarwal in the meanwhile purchased the entire building i.e. Vrindavan Bhavan and is owner of the said building Vrindavan Bhavan. It is alleged that the said Mr Naval Kishore Agarwal permitted the intervener to use the third floor flat as well as WC and bathroom on the terrace for the period of 10 years. It is alleged that the said premises were given to the intervener by Naval Kishore Agarwal since June 2004. The intervener addressed a letter to Court Receiver on 14/10/09 informing that the Suit bearing No.2687/01 is already withdrawn by Mr Naval Kishore Agarwal and order appointing Court Receiver in respect of the premises mentioned therein had come to an end and thus Court Receiver should not be party to any order.

54. This Court passed an order on 24/11/09 in notice of motion No.765/09 and recorded the statement of the intervener made through his advocate that two godowns and one room on the first floor, left wing were in possession of the intervener as the same were transferred by the plaintiff to him.

54. In the affidavit in reply filed in this notice of motion by the intervener, it is alleged by the intervener that original defendant had borrowed a sum of Rs.50 lacs from the father-in-law of the intervener. In the month of May 2005 the original defendant had handed over possession of two godowns on the ground floor of Vrindavan Bhavan to the intervener and appointed him as Constituted attorney to supervise and manage all the affairs of Vrindavan Bhavan. It is further alleged that the original defendant had taken sum of Rs.25 lacs from the intervener and handed over two godowns on ground floor of Vrindavan Bhavan in consideration of money lent by the intervener from his father in law. It is further alleged that the original defendant and Mr Naval Kishore Agarwal handed over possession of third floor, fourth floor and road side room of the Vrindavan Bhavan to the intervener in consideration of loan taken by original defendant from the father-in-law of intervener.

55. From the affidavits filed by the intervener, it is clear that on one hand he admits that the Court Receiver was appointed in respect of various properties pursuant to ad interim orders and at the same time, also alleges that the plaintiff or the original defendant has handed over possession of various properties to the intervener when the Court Receiver was already appointed in respect of such premises. A perusal of the original record also clearly indicates that after filing such consent terms fraudulently and after the original defendant filed a police complaint against the intervener in the year 2008, the plaintiff jointly with the intervener filed a fresh draft of consent decree before the Porothonotary and Sr. Master for settling the draft. On 10/12/2008 the concerned officer of this Court made an endorsement on the docket of the fresh draft of the consent decree which was submitted on 09/09/2008. Name of Mr R.K. Desai is shown representing the plaintiff. Name of Mr Nareshkumar Tarachand Jain as Constituted Attorney of the plaintiff is shown as present. In the said meeting, a draft was approved. At the bottom of the said roznama, the intervener has also signed on 10/12/2008. It is thus clear that the intervener had also, after a complaint against him was filed by the original defendant and disputing the alleged Power of Attorney, has expedited the settling of consent decree dated 03/10/2005 and appeared before the Prothonotary and Sr. Master and signed the roznama.

56. This Court, in view of such serious allegations made by the defendant, directed the partner/proprietor of M/s Pandya Gandhi and Company, Advocates, Mr R. K. Desai Advocate, Mr J.V. Parmar Advocate, Mr M. V. Limaye Advocate and Mr K.K. Tiwari Advocate to appear before this Court. Pursuant to the said directions and order, Mr Manish Acharya Advocate for M/s Pandya Gandhi and Co. appeared and made a statement before the Court that Pandhy Gandhi and Co. had never represented any of the parties in the suit and had never briefed any advocate by name Mr Kapil Shetty who appeared for defendant in the suit and their appearance shown in the order dated 03/10/2005 was incorrect. Mr R. K. Desai advocate informed the Court that to the best of his recollection, he had not appeared in the matter though he knew the plaintiff Mr Chandrabhan C. Agarwal and had appeared for him in several matters. He informed the Court that signature appearing on the consent terms dated 03/10/2005 is not his signature and the same is signed by advocate T. R. Desai. Mr Y. K. Tiwari advocate appeared in Court on behalf of Mr K.P. Tiwari and informed that he had appeared only once for the plaintiff in notice of motion No.2542/05 which was filed by Union Bank of India.

57. Mr J.V. Parmar advocate appeared and informed the Court that he had for some time represented Mr Chandrabhan C. Agarwal, the plaintiff in suit No. 4816/01 and had filed the said suit. The said Mr Chandrabhan Agarwal was introduced to him by Mr Nandkumar Jain whose son happens to be an advocate in this Court. The said Mr Chandrabhan C. Agarwal later on introduced Mr J. V. Parmar advocate to Mr Naval Kishore Agarwal for filing suit No.2687/01. Mr Kanuga learned counsel appearing for the defendants pointed out that Mr Nandkumar Jain is the brother of the intervener Mr Naresh Tarachand Jain.

58. My attention is also invited to the report submitted by the Court Receiver which indicates that after implementing the order passed by this Court in Judges Order for forcible possession of various properties and after the same was handed over to the plaintiff, the plaintiff did not attend any meetings before the Court Receiver for taking further steps and did not apply for discharge of the Court Receiver and was kept in dark. The affidavit filed by the intervener himself and the reports submitted by the Court Receiver clearly indicate that when the notice of motion was filed by the plaintiff for appointment of Court Receiver, much prior thereto, the original defendant had already left Mumbai and shifted somewhere else and had not visited the suit properties for quite some time. It is thus obvious that no notice of any proceedings could have been served upon the original defendant by the plaintiff. A false statement came to be made by the plaintiff before this Court that the defendant was served. No affidavit of service came to be filed for quite some time. The affidavit of service filed much later indicates that the signatures of the original defendant and the defendant No.2 is ex facie forged and fabricated.

59. My attention is also invited to a declaratory suit filed by the intervener being RAE Suit St. No. 2184 of 2001 in the Small Causes Court, Mumbai jointly with his son against the legal heirs of the original defendant and Mr Kanhaiyalal Radhavallabh elder brother of the original defendant and the Recovery Officer. It is alleged in the said plaint that Mr Kanhaiyalal Radhavallabh is the landlord/owner of the building Vrindavan Bhavan and has created a tenancy in favour of the intervener and his son. The intervener and his son in the said suit had prayed for a declaration that they are the tenants of two godowns on the ground floor, two rooms on the first floor and complete terrace of the building Vrindavan Bhavan of the original defendant during his lifetime and now of his legal heirs. and of defendant No.6. The said suit is pending. A perusal of the pleadings in various cases filed by the intervener which are brought on record of this Court clearly indicates that the intervener has been making several claims inconsistent in nature in respect of the suit properties which are ex facie false and fraudulent and are made with a view to mislead various Courts.

60. Perusal of the record in Suit 4816/01 indicates that the plaintiff through his then Advocate Mr J. V. Parmar had filed a praecipe on 28/11/2000 for circulation of notice of motion no. 3350/00 on 02/012/00 and stated in the said praceipe that the defendant had already closed the partnership premises and his whereabouts were not known. It is stated in the praceipe that there was extreme urgency in the matter and 48 hours notice was being given to the defendant on 28/11/2000. A perusal of the order passed by this Court on 2/12/2000 however does not show that the plaintiff produced any proof of service before this Court nor filed any affidavit of service as alleged in the said praecipe. On 18/06/2002 the plaintiff however filed an affidavit of service in which it is alleged that pursuant to the order dated 2/2/2000 passed by this Court, the plaintiff through his advocate had sent the true copy of the plaint, notice of motion and and affidavit in support as and by way of service as required under Order 39 of the Code of Civil Procedure through Vichare Courier. and the same was acknowledged by the defendant. A copy of the receipt alleged to have been acknowledged by the defendant dated 15/12/2000 is annexed to the said affidavit.

61. A perusal of the signature on the said alleged receipt on comparison with the admitted signature of the original defendant, clearly indicates that the said receipt is forged and fabricated. On one hand the plaintiff has stated that the defendant had closed business premises and his whereabouts were not known in the praceipe filed on 28/11/2000 and on the other hand in the affidavit filed on 18/06/02, the plaintiff sought to place reliance on alleged and fabricated receipt alleged to have been signed by the defendant on 15/12/2000. A perusal of the report submitted the by the Court Receiver on 21/12/2000 indicates that when he visited the suit premises on 21/12/2000, he had found the suit property in locked condition and upon making inquiry from one Mr Pandey who was staying under the staircase of the suit premises had informed that the said premises was locked since long and the defendant had not turned up there since long. Even on 17/01/2001 the Court Receiver's representative found the suit premises as locked as is apparent from his report dated 18/01/2001. It is thus clear that the defendant was not served as the suit premises were locked on the date of alleged service. Plaintiff filed false affidavit and enclosed a fabricated receipt and has misled the Court.

62. In so far as notice of motion No.591/09 in Suit No.2687/01 is concerned, from the perusal of the plaint, it appears that the plaintiff has relied upon an alleged partnership deed dated 05/03/2001 alleged to have signed between the plaintiff, original defendant No.1 and defendant No.2. It is clear that on the date of alleged execution of the said partnership deed, the suit premises was lying locked and the whereabouts of the original defendant No. 1 was not known. As per the said alleged partnership deed, the plaintiff was entitled to get 25% share in the profit and losses of the alleged suit firm. Not a single document is placed on record by the plaintiff to show that any business was carried on by the suit firm. Suit came to be filed for dissolution of such alleged firm on 27/07/2001. This suit is also filed through the same advocate Mr J.V. Parmar who was representing the plaintiff in suit no.4861/01 who had filed a praecipe in that suit on 28/11/2000 alleging that the defendant had already closed the businesses premises and his whereabouts were not known. Original defendant in both the suits was same person. It is thus clear that without effecting any notice and paper and proceedings, plaintiff fraudulently obtained ad interim order on 23/08/2001.

63. It appears that the plaintiff filed affidavit of service on 07/11/03 though he was directed to file such affidavit within one week by order dated 23/08/01. In the said affidavit, it is alleged by the plaintiff that the original defendant No.1 was served with the copy of plaint, notice of motion and affidavit in support and both the defendants had signed on the reverse of the letter dated 18/08/2001. A perusal of the signature on the alleged acknowledgment, clearly indicates that the signature of the original defendant is forged and fabricated. When the Court Receiver had visited the suit premises, it was found by the Court Receiver on 21/12/2000 as well as on 17/01/2001 that the premises were found in locked condition and the original defendant had not turned up to the suit premises since long. By an order dated 02/02/01 in Judges Order filed by Mr Chandrabhan Chunilal Agarwal in Suit No. 4816/01, this Court had already directed the Court Receiver to take forcible possession of the suit premises and pursuant to the said order the Court Receiver had already taken forcible possession of the suit premises and handed over possession thereof to the plaintiff in that suit as far back as on 18/01/2001 by breaking open the lock. The question of the defendant being in the premises on 18/01/2001 therefore did not arise. The plaintiff has obviously filed a false affidavit annexing a fabricated and forged acknowledgment of the defendants on the service letter of his advocate Mr J.V. Parmar. Based on such false affidavit of service and since defendants could not have remain present without service of notice and could not have filed reply, plaintiff obtained an order on 09/01/2004 from this Court allowing notice of motion in terms of prayers (a) and (b). On 18/08/2001 the original defendant No.1 was not even in India but was in USA.

64. A perusal of the Judges Order filed by the plaintiff and the affidavit in support of Judges Order, it is clear that a false and misleading statement was made before this Court about defendant having been served and not having complied with the order passed by this Court. Though there was no submission and/or averment in the affidavit in support that Court Receiver shall hand over physical possession of the premises to the plaintiff, such order is inserted in the Judges Order and is obtained fraudulently. There was no such prayer even in the suit or in the notice of motion.

65. The matter was thereafter placed on board on 06/05/2008 when Mr M.V. Limaye advocate appeared for plaintiff and sought permission of the Court to withdraw the suit. Though the roznama indicates that none appears to have represented the defendants or appeared in the matter, it is erroneously recorded that the counsel for the defendants have no objection for allowing the plaintiff to withdraw the suit. In my view, even if the plaintiff could have withdrawn such suit, this Court was not informed about the orders already obtained in the Judges Order on 05/04/2004 for forcible possession of the suit property and for handing

over possession thereof to the plaintiff by the Court Receiver and the implementation thereof. In my view, even if the plaintiff could have been permitted to withdraw the suit, upon such withdrawal, the interim orders obtained earlier by the plaintiff would have come to an end. The plaintiff who claimed only 25 % share under the fabricated partnership deed, could not have obtained possession of the entire property and after obtaining such possession fraudulently, could not have withdrawn the suit without restoring the possession back to the Court Receiver. In my view, it is a clear case of fraud upon the Court.

66. A perusal of the record however indicates that the intervener is claiming to be in possession of the entire property either through the plaintiff or through the defendants or jointly through both by making false and inconsistent claims or through the Court Receiver. The intervener also claims to have a Power of Attorney from the original defendant No.1 which was ex facie fabricated. The false and inconsistent plea and the role played by the intervener has been already highlighted in the earlier paragraphs of this Judgment. From the perusal of the record it is clear that the intervener being the ultimate beneficiary of such fraud committed upon the Court and upon the defendants. In my view, it is a clear case of joint conspiracy of the plaintiff and the intervener to commit fraud upon this Court and the defendants by fabricating the partnership deeds, filing false and frivolous suits, filing false affidavits of service in this Court, fabricating the Power of Attorney of the defendant, fraudulently inserting the prayer in the Judges Order for handing over possession to the plaintiff though there was no such prayer in the plaint or in the notice of motion or in the affidavit in support. Properties worth crores of rupees have been fraudulently obtained by the plaintiff and the intervener.

67. I am not inclined to accept the submissions of Mr Deshmukh learned counsel appearing for the intervener that the intervener has not played any role in the fraud if any committed upon this Court. As far as plaintiff is concerned, in both the suits the plaintiffs have already admitted their involvement in the fraud. Various advocates whose appearances are shown in various roznamas have appeared before this Court and pointed out whether they were at all concerned with the suit or not. Mr J.V. Parmar advocate who was representing the plaintiffs initially in both the suits made statement before the Court that Mr Chandrabhan C. Agarwal plaintiff in Suit No. 4816/01 was introduced to him by Mr Nandkumar Jain who is brother of Mr Naresh Tarachand Jain, the intervener aforesaid. It is thus clear that the intervener was involved in this entire fraud since inception in both the matters.

68. A perusal of the record indicates that a vakalatnama in favour of Mr.T.R.Desai, advocate is filed in Suit No. 2687 of 2001 on 24th December, 2007. No vakalatnama in favour of any advocate is on record on behalf of defendants in Suit No. 4816 of 2000. The signatures appearing on the vakalatnma filed by Mr.T.R.Desai advocate on 28th December 2007 and more particularly of the original defendant does not match with the admitted signature of the original defendant. In my view the signature of the original defendant as well as the defendant no.2 on the vakalatnama is forged. A perusal of the record clearly indicates that both the suits were filed in joint conspiracy between the plaintiff and intervener. In so far as issue of delay raised by the intervener in filing of these two notice of motions by the original defendant is concerned, since the defendant was not at all served with the proceedings or any of the notices, defendant could not have appeared in the proceedings earlier. During the relevant period the original defendant was staying abroad. The explanation rendered by the original defendant in the affidavits for not filing the notice of motions earlier and as to when the original defendants noticed about fraud committed by the plaintiff and the intervener is accepted. Limitation for filing this notice of motion for setting aside the decree and other orders would commence from the date of knowledge of the fraud committed by the plaintiff and the intervener. In my view both the notice of motions are thus within time and are not barred by law of limitation.

69. I am not inclined to accept the submissions of the learned counsel for the intervener that no fraud is committed by the intervener on this court or that the intervener was not at all concerned with the orders passed prior to 2005. Statement is on record made by Mr.J.V.Parmar advocate that the plaintiff in Suit No. 4816 of 2000 was introduced by the brother of the intervener in the year 2000. The involvement of the intervener in these matters since inception is thus clear. In so far the submissions of the learned counsel for the intervener that when this court passed an order on 11th September, 2007 defendant was present when the plaintiff had applied for speaking to the minutes of the order dated 3rd October, 2005 is concerned, if the defendant would have remained present in court he would have exposed this fraud committed by the plaintiff and the intervener. I am not inclined to accept that the original defendant was present in court on 11th September, 2007 alongwith the intervener. This court appears to have erroneously recorded such false and incorrect statement made by the plaintiff and intervener fraudulently.

70. In so far as power of attorney alleged to have been executed by the original defendant in favour of the intervener is concerned, I am inclined to accept the submissions made by the legal heirs of the original defendant and the averments made in the affidavit of the original defendant that the said power of attorney is forged and fabricated by the intervener. If the original defendant was not in India and was not carrying on any business in the name of the suit firm, the question of executing such power of attorney in favour of the plaintiff would not have arisen. It is case of the original defendant the photograph affixed on the alleged power of attorney was more than 30 years old photographs which case in my opinion deserves to be accepted.

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 judgments referred to and relied upon by Mr.Kanuga, learned counsel appearing for the legal heirs of the original defendant referred to aforesaid following statements of law can be culled out:-

(a) Any judgment or order obtained by fraud cannot be said to be a judgment or order in law and such judgment decree or order is nullity and non est in the eye of the law and can be challenged even in collateral proceedings.

(b) Fraud is an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. Fraud is an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. A person whose case is based on falsehood has no right to approach the court and can be summarily thrown out at any stage of the litigation.

(c) 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.

(d) An order obtained by practicing or praying fraud is non existent and cannot be allowed to stand by the court at first instance or by the final court.

(e) If it is held that an order, judgment or decree are obtained by reason of commission of a fraud, all subsequent proceedings taken pursuant thereto also are void and nullity and it would not be equitable to confer a benefit on a party who is a beneficiary thereunder.

73. In my view the record clearly indicates that the plaintiff as well as the intervener are the beneficiaries of this fraud committed upon the court and are liable to be thrown out from the premises in their respective possession obtained by committing a fraud on this court in this notice of motions itself. The intervener admittedly claims to be in possession of the entire property though part of it was not even subject matter of the suit. The intervener was fully involved in the entire fraud jointly with the plaintiff. I am thus not inclined to accept the submissions of Mr. Deshmukh, learned counsel appearing for the intervener that no order can be passed by this court against the intervener, he being neither party to the suit prior to such orders having been passed by this court nor after such orders are passed.

74. A perusal of the chamber summons filed by the intervener clearly shows that the intervener had applied for amendment to the plaint and other reliefs. By two separate orders passed by this court in those two chamber summons, this court permitted the intervener to file affidavits in these two notice of motions and was allowed to be heard by this court. Pursuant to the liberty granted by this court, intervener filed affidavits opposing these two notice of motions and was heard at length by this court at the time of hearing of these two notice of motions. The intervener who is beneficiary of such orders obtained fraudulently and was party to such fraud is thus liable to be thrown away by this court in the notice of motions proceedings.

75. I therefore pass the following order:-

(1) Notice of Motion No. 765 of 2009 is made absolute in terms of prayer a(i) to a(iv) and (c).

(2) Notice of Motion No. 591 of 2009 is made absolute in terms of prayer a(i) to a(iii) and (C).

(3) Court Receiver, High Court, Bombay is directed to take forcible possession of the premises two godowns on the ground floor, one room on the main side road on first floor and one room on left wing and entire third floor and fourth floor (terrace) of Vrindavan Bhavan, Kalbadevi Raod, Mumbai 400 0022 from the intervener or any person found in possession of the said premises with assistance of police and to seal the premises till disposal of the suit.

(4) Both the suits i.e. Suit No.4816 of 2000 and Suit No. 2687 of 2001 are restored to file.

(5) Plaintiff in both the suits are directed to pay cost of Rs.50,000/- each to the legal heirs of the original defendants within two weeks from today. Intervener is directed to pay cost of Rs.1,00,000/- to the legal heirs of the original defendant who are parties to this suit within two weeks from today.

Learned counsel for the intervener seeks stay of operation of this order which is vehemently opposed by Mr.Kanuga, learned counsel for the Defendant No.1A to 1E. Application for stay is refused.

Court	Mumbai High Court
Decided On	May-06-2014
Case Number	Notice of Motion Nos. 765 of 2009, 591 of 2009 In Suit Nos. 4816 of 2000, 2687 of 2001
Judge	R.D. DHANUKA
Appellant	Chandrabhan Chunilal Agarwal and Another
Respondent	Sharad by Son of Ramgopal Radhavallabh Agarwal and Others

Chandrabhan Chunilal Agarwal and Another Vs. Sharad by Son of Ramgopal Radhavallabh Agarwal and Others - Court Judgment