Supreme Court - Daily Orders
Shally M Peter vs Banyan Projects India Pvt. Ltd. on 18 September, 2023
Bench: Surya Kant, Dipankar Datta
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2906 OF 2023
(Arising out of SLP(Criminal) No.6711 of 2023)
SHALLY M. PETER APPELLANT
VERSUS
BANYAN PROJECTS INDIA PVT. LTD. RESPONDENT
O R D E R
1. Leave granted.
2. The challenge is to an order dated 10.04.2023 passed by the High Court of Karnataka, whereby the respondent was permitted to withdraw Writ Petition No.12489/2022 (GM-RES) “with liberty to file fresh petition by challenging the very Lok Adalat award”. The grievance of the appellant is against the liberty to file a fresh petition to challenge the award of the Lok Adalat accorded by the High Court to the respondent.
3. The facts may be briefly noticed that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, inter alia, alleging that the respondent-Company had given two post-dated cheques, cheque No.545108 dated 11.06.2018 for Rs.25,00,000/- (Rupees twenty-five lakh) and cheque No.545241 dated 11.06.2018 for Rs.25,00,000/- (Rupees twenty-five lakh), Signature Not Verifiedboth drawn on Axis Bank Limited, Indiranagar Branch, Digitally signed by ARJUN BISHT Date: 2023.09.22 16:05:14 IST Reason: Bengaluru assuring her to present the same on the dates mentioned in the said cheques and that the same will be 1 honoured. The appellant presented the cheques for realisation with her banker, Federal Bank, Banaswadi branch, Bangalore on 12.06.2018, but the cheques were dishonoured stating “funds insufficient”. In the said complaint, the parties entered into a compromise, and a joint memo of compromise dated 05.02.2019 (Annexure P/2) was moved by them before the Court of learned Metropolitan Magistrate, where the complaint was pending. In terms of the compromise, the respondent agreed to pay a sum of Rs.33,00,000/- (Rupees thirty-three lakh) to the appellant as a full and final settlement amount as per the following schedule:
“A. Rs. 2,00,000/- on 19/02/2019 via Cheque Bearing No.002297 drawn on Kotak Mahindra Bank bearing Account No.0812158814.
B. Rs.2,00,000/- on 19/03/2019 via Cheque
Bearing No.002298 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
C. Rs.2,00,000/- on 23/04/2019 via Cheque
Bearing No.002299 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
D. Rs.2,00,000/- on 28/05/2019 via Cheque
Bearing No.002300 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
E. Rs.6,25,000/- on 18/06/2019 via Cheque
Bearing No.003494 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
F. Rs.6,25,000/- on 23/07/2019 via Cheque
Bearing No.003495 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
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G. Rs.6,25,000/- on 27/08/2019 via Cheque
Bearing No.003496 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
H. Rs.6,25,000/- on 24/09/2019 via Cheque
Bearing No.003497 drawn on Kotak
Mahindra Bank bearing Account
No.0812158814.
4. In the event of any delay, the parties further
agreed to as follows:
“4. That the Accused undertakes to pay the above-mentioned amount and further undertakes to pay, the interest at the rate of 2.5% per month until the realisation of the above said amount on reducing balance basis.”
5. In view of the compromise and on the joint request of the parties, the learned Judicial Magistrate referred the matter to the Lok Adalat, presided over by him. The Lok Adalat passed the order dated 15.02.2019 as per the compromise.
6. The respondent had given 8 cheques in favour of the appellant in terms of the settlement, which on presentation, were dishonoured.
7. This led the appellant to move an application before the Metropolitan Magistrate, Bangalore to reopen the original complaint along with a memo of calculation.
The learned Metropolitan Magistrate rejected the memo of calculation filed by the appellant vide an order dated 25.02.2020.
8. The appellant then challenged the above-stated 3 order of the Metropolitan Magistrate before the High Court in a petition under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’). The High Court allowed that petition vide judgment dated 20.09.2021 in the following terms:
“Criminal petition is allowed. The order dated 25-2-2020 passed by the XXXIV Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No.57252 of 2018 is hereby set aside. Application of the petitioner- complainant shall be treated as miscellaneous case and to proceed to issue warrant as per Section 421 of the Cr.P.C. and to recover the same as fine as per Section 431 of the Cr.P.C.”
9. The respondent challenged the High Court order before this Court in Special Leave Petition (Crl.) No.68 of 2022, which was dismissed on 25.04.2022.
10. After the dismissal of the Special Leave Petition by this Court, the learned Metropolitan Magistrate issued a Fine Levy Warrant (in short ‘FLW’) under Section 421 of Cr.P.C. on 01.06.2022 directing the District Collector to execute the order dated 15.02.2019. The respondent then moved an application on 04.06.2022 before the learned Metropolitan Magistrate for recall/suspension of the FLW dated 01.06.2022. The learned Metropolitan Magistrate rejected the said application vide an order dated 18.06.2022. The order of the learned Metropolitan Magistrate dated 18.06.2022 was then challenged by the respondent before the High Court through Writ Petition No.12489 of 2022 (GM-RES). The above-stated writ petition 4 came up for hearing before the High Court on 10.04.2023 when the respondent withdrew the same and sought the liberty to file a fresh petition for challenging the very award passed by the Lok Adalat. The High Court vide impugned order has granted such permission, giving rise to these proceedings.
11. We have heard learned counsel for the parties and gone through the record.
12. In our considered view, it is a classic case of abuse of process of law by the respondent. We say so for the reasons that the plea like fraud, alleged collusion between an employee of the respondent-Company and the appellant, or the very jurisdiction to pass an order/award by the Lok Adalat, presided over by the learned Metropolitan Magistrate etc., were very much available and could be raised by the respondent in the previous round of proceedings, which eventually culminated in the dismissal of their Special Leave Petition by this Court on 25.04.2022.
13. It goes without saying that none of the pleas like
(i) that no amount was ever received by the Company from the appellant; (ii) that there was no legally enforceable debt or (iii) that there was actually some fraud played by an employee of the Company, are subsequent events and such factual pleas were never raised by the respondent earlier for the reasons best known to the Company. 5
14. It is pertinent to mention that the plea of ‘fraud’ came to be raised by the respondent in paragraph 5(q) of its “memo of respondent to suspend or recall FLW” and it reads as follows:
5(q). The Respondent sincerely believes, at this stage, enforcing the FLW, which is based on fraud upon this Hon'ble Court and upon the Respondent, is not proper, and will result in a failure of justice. It is a well settled law that an act of a court should not cause prejudice to any litigant. This act of this Hon'ble Court enforcing an FLW against the Respondent will be a travesty of justice, knowing fully well that there is no legally enforceable debt, that there is no MOU and/or no such MOU has been submitted before this Hon'ble Court, that the joint memo was entered out of fraud and undue influence, etc.” (emphasis supplied) Interestingly, the MOU produced in the Court of learned Metropolitan Magistrate dated 05.02.2019 is signed by the same person, who has been pursuing cases on behalf of the respondent-Company, including the instant appeal.
15. We fail to understand how this plea was not available to the respondent earlier, which is now sought to be argued on its behalf. We, thus, reiterate that the aforesaid pleas are nothing but an afterthought to defeat the process of law and to wriggle out of the consequences that have fallen upon the respondent as a result of dismissal of the Special Leave Petition on 25.04.2022. We have, thus, no reason to doubt that all the subsequent proceedings initiated by the respondent are malicious and 6 lack bona fide.
16. Once the order/award passed by the Lok Adalat has attained finality upto this Court, there was no occasion for the High Court to permit the respondent to lay challenge to the said award by way of fresh proceedings.
Such a prayer made by the respondent is wholly misconceived and could not be entertained, keeping in view the settled principles of attainment of finality of litigation.
17. For the reasons afore-stated, the appeal is allowed; the impugned order passed by the High Court to the extent of permitting the respondent to file a fresh petition to challenge the award of the Lok Adalat is set aside. The amount recovered by the District Collector, pursuant to the FLW, which is now lying deposited with Tahsildar, Bangalore (North) is directed to be released in favour of the appellant forthwith along with the interest accrued thereupon.
...................J. (SURYA KANT) ...................J. (DIPANKAR DATTA) New Delhi;
September 18, 2023
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ITEM NO.30 COURT NO.5 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).6711/2023 (Arising out of impugned final judgment and order dated 10-04-2023 in WP No.12489/2022 (GM-RES) passed by the High Court Of Karnataka At Bengaluru) SHALLY M. PETER Petitioner(s) VERSUS BANYAN PROJECTS INDIA PVT. LTD. Respondent(s) (FOR ADMISSION and I.R. and IA No.106170/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date : 18-09-2023 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE DIPANKAR DATTA For Petitioner(s) Mr. Manish Kumar Saran, AOR Ms. Shahida Khanam J, Adv.
Mr. Maskoor Hashmi Md, Adv.
For Respondent(s) Mr. John Mathew, AOR UPON hearing the counsel the Court made the following O R D E R
1. Leave granted.
2. The appeal is allowed in terms of the signed order.
3. All pending applications, if any, stand disposed of.
(ARJUN BISHT) (PREETHI T.C.) COURT MASTER (SH) COURT MASTER (NSH)
(signed order is placed on the file) 8