Bombay High Court
Kahandelwal Engineering Companyt ... vs Mahadeo Vithal Koli And 4 Ors on 28 January, 2020
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
12.IA1_2020.odt
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1 OF 2020
IN
NOTICE OF MOTION (L) NO. 44 OF 2019
IN
SUIT NO.929 OF 2013
Shri. Mahadeo Vitthal Koli ... Applicant/Def. no. 1
In the matter between
Kahandelwal Engineering Co. Ltd. & Anr. ... Plaintiffs
V/s.
Shri. Mahadeo Vithal Koli & Ors. ... Defendants
WITH
NOTICE OF MOTION NO. 51 OF 2014
WITH
NOTICE OF MOTION NO. 1564 OF 2014
WITH
NOTICE OF MOTION NO. 1677 OF 2017
WITH
NOTICE OF MOTION NO. 1433 OF 2018
WITH
NOTICE OF MOTION NO. 296 OF 2018
IN
SUIT NO. 929 OF 2013
Mr. Nilesh Ojha a/w. Mr. Shivam Mehra, Mr. Mangesh Donge i/b. Abhishek
Mishra for the applicant/defendant no. 1.
Mr. S.U. Kamdar, Senior Advocate a/w. Mr. Ashok Paranjpe and Ujjwala
Deshmukh i/b, MP & Partners for the plaintiffs.
Mr. Tanveer Nizam a/w. Mariam T. Nizam i/b. Mansi Jain for defendant no. 2.
Mr. Partho Sarkar i/b. Mansi Jain for defendant no. 4.
Mr. Shriram S. Kulkarni a/w. Swapnil Mhatre for defendant no. 3.
CORAM : G.S.KULKARNI, J.
DATE : 28 January 2020 P.C.:
I have heard Mr. Ojha, learned counsel for the applicant / defendant 1/19
12.IA1_2020.odt no. 1. Mr. Kamdar, learned Senior Counsel for the plaintiffs, Mr. Nizam, learned counsel for defendant no. 2, Mr. Kulkarni, learned counsel for defendant no. 3 and Mr. Sarkar, learned counsel for defendant no. 4, on the above Interim Application as filed in Notice of Motion (L) No.44 of 2019.
2. In the above Suit filed under Section 6 of the Specific Relief Act, the applicant/defendant No.1 has filed Notice of Motion (L) No. 44 of 2019 praying for the following reliefs:
"(a) Consider this Notice of Motion as Application under Section 340 of Code of Criminal Procedure and decide it as per law and procedure laid down by Full Bench of Hon'ble Supreme Court in the case of Pritish vs. State, AIR 2002 SC 548 (Exhibit-A) which is followed by this Hon'ble High Court in the case of Madangopal Jalan vs. Partho Sarkar 2018 SCC Online 3525 (Exhibit -B), Union of India vs. Haresh Milani 2017 (4) Mh l.J. 447 (Exhibit C) and Union of India vs. Haresh Milani 2018 SCC Online 2080 (Exhibit D).
(b) As per Section 340 sub-section (1)(a) of Code of Criminal Procedure, record a finding that the accused Sanjay K. Patel hatched a conspiracy and in furtherance of his malafide intention he first created a bogus, forged and fabricated consent terms dated 25.056.2002 and then using the said forged consent terms as genuine, again created a false and misleading affidavit of Shri Vinod Sharma and filed Suit No. 929 of 2013 under section 6 of Specific Relief Act claiming that the accused company i.e., M/s. Khandelwal Engineering Company Ltd. was in possession of the suit property since 1970 and it is a non-agricultural land. It is further false submission of the accused that he is in possession of the suit property since 1970 and the falsity of the version of the accused is proved from the enquiry conducted by City Civil and Session Judge (Court Room no. 34) where based on the evidence of Public Servant and Government Records produced by Government officers, it is proved that there were six legal heirs of Late Vithal Sovar Koli on 25.06.2002 and therefore the Consent terms showing only three legal heirs and obtaining their thumb impressions and signature under pressure and misrepresentation without explaining anything to them proves malafides of accused and proves forgery of the documents and further it is proved that land was in possession of Late Vitthal Koli and his six legal heirs from 1957 till date and therefore the submission on oath in Suit by accused is that he was in possession from 1970 to 1st September 2013 and forcible possession is 2/19
12.IA1_2020.odt taken by the applicant and others is a false statement made by accused and therefore the accused is guilty of playing fraud upon the Court for creating forged documents and using it to be genuine one along with false and misleading affidavit before this Hon'ble Court and interest of justice demands and in order to save the judiciary from the evil of perjury, it is must and necessary that the complaint should be made to the Magistrate having jurisdiction under Section 191, 192, 193, 199, 200, 209, 419, 420, 465, 466, 467, 468, 469, 471, 474 and r/w. 120B and 34 of IPC.
c) To direct Registrar (Judicial) attached to this Hon'ble Court to register complaint against Accused Sanjay Patel & Ors. in view of law and ratio laid down by this Hon'ble Court in the case of Madangopal Jalan vs Partho Sarkar 2018 SCC Online 3525 and by Hon'ble Supreme Court in the case of Chandra Shashi vs Anil Kumar (1995) 1 SCC 421. Maria Margarida's case (2012) 5 SCC 370 (Paragraph 85), Sate vs Raj Singh AIR 1998 SC 768, as the Accused continued to repeat his false and misleading version even if his falsity is proved from the order dated 14 th December, 2014 passed by City Civil and Sessions Judge, (Exhibt - E), where it is proved that Accused had played fraud upon the Court by filing false claims and defenses, and, the callous criminal conduct of the Accused is such that despite the fact that legal notice in this regard is issued by the Counsel (Exhibit - F) to the Accused Sanjay Patel and other Directors of M/s.Khandelwal Engineering Company Ltd. to withdraw all false claims is duly served upon them on 20th December, 2018 and then also the Accused have not withdrawn his false claims in Suit No.929 of 2013 and this shows the callous criminal conduct of the Accused and it is expedient in the interest of justice to launch prosecution against the Accused to save the Judicial system from evil of perjury.
d) To decide the criminality of the Directors and other employees of M/s. Khandelwal Engineering Company Ltd. as per law and ratio laid down by Division Bench of this Hon'ble Court in the case of Godrej Boyce Co. Ltd. vs. Union of India 1991 Cri.L.J. 3752.
e) To pass an order directing issuance of Warrant of Arrest against Accused Sanjay K. Patel and Ors. in view of Section 340(1)(d) of Cr.P.C.
and direction for committal of Accused to the custody by not allowing them to go merely be executing bail bonds since the offences are serious and the offence under Section 467 of Indian Penal Code is having punishment for imprisonment for life and therefore as per the ratio laid down in the case of Ashok Sarogi vs. State 2016 ALL MR (Cri.) 3400, Rajendra Chaudhari vs State 2009 SCC Online BOM 211 and in the case of Koppala Venkatswami vs. Satrasala L. Chetti AIR 1959 AP 204 (DB), the Accused are not entitled for bail.
f) To grant compensation of Rs.200 Crores to the Applicant under Section 342 of Code of Criminal Procedure in view of law and ration laid down in the case of (I) Godrej Boyce Case 1992 Cri.LJ 3752 BOM (DB),
(ii) Rameshwari Devi (2011) 3 SCC (Cri.) 481, (iii) Bandhuvan Kunhi's 3/19
12.IA1_2020.odt case MANU/KE/0828/2016 ( iv) New Delhi Municipal vs. Prominent Hotels 2015 SCC Online Del 11910, (v) Sciemed Overseas Inc. vs. BOC India Limited and Others (2016) 3 SCC 70.
g) And for such further orders as the justice and convenience may demand fit and proper passed in favour of the Applicant."
3. On 7 January 2020, this Court had passed the following order on Notice of Motion (L) No.44 of 2019:
"1. There are about four notices of motion which are required to be heard in these proceedings. Learned Counsel for the parties agree that all the notices of motion be taken up for hearing.
2. The above notice of motion has been filed by defendant no.1.
3. Mr.Kulkarni, learned Counsel for defendant no.3 states that his client has not been served with the above notice of motion. He states that his client intends to file a reply to the notice of motion. Learned Counsel for the applicant/defendant No.1 states that it is not necessary that this Notice of Motion be served on defendant No.3.
4. In my opinion, considering the nature of the relations between the applicant in the present Notice of Motion and defendant no.3, it is appropriate that without prejudice to the rights of the plaintiff, defendant no.1 shall serve a copy of Notice of Motion (L) no.44 of 2019 on defendant no.3. Any of the defendants who intend to file their respective replies to the pending notices of motion shall file the same on or before the adjourned date of hearing with copies to be served on all the parties.
5. It is clarified that the pleadings on all the pending notices of motion be completed before the adjourned date of hearing. Parties are put to notice that all the pending notices of motion would be taken up for hearing on the adjourned date of hearing.
6. Accordingly stand over to 21 January 2020.
7. Ad-interim order, if any, shall continue to operate till the adjourned date of hearing"
(emphasis supplied)
4. Thereafter on 21 January 2020 the Court listed the said Notice of Motion for hearing when learned counsel for defendant no. 1 made a 4/19
12.IA1_2020.odt statement that an Interim Application No. 1 has been filed for recalling of the above order dated 7 January 2020 passed on Notice of Motion (L) No. 44 of 2019, the Court hence had passed the following order:
"1. Learned counsel for defendant no. 1 states that he has filed Interim Application No. 1 of 2020 in Notice of Motion (S) No. 44 of 2019 for recalling of the order dated 7 January 2020. The said Application is not listed today. It is stated that the Interim Application has been served on all the parties.
2. Let Interim Application be listed for hearing on the adjourned date. If the parties intend to file reply to the Interim Application, they are free to do so.
3. Mr. Kamdar, learned senior counsel for the plaintiff would intend to file compilation of documents and it is being served on all the parties.
4. Permission to file compilation of documents in the office.
5. Stand over to 28 January 2020."
5. Accordingly, the present Interim Application is listed today. The applicant/defendant no.1 has made the following prayers in the Interim Application:
a. That, under the circumstances this Hon'ble court may be pleased to record a finding that the order dated 07.01.2020 is the outcome of the false and misleading submission given by Adv. S.U. Kamdar and therefore liable to be recalled.
b. To record a finding that Mr.S.U. Kamdar made a false Submission before this Hon'ble Court in SLP (Diary No.) No/25211/19 was regarding the hearing of Notice of Motion No. 51 of 2014. In fact the prayer of applicant was for hearing of the Notice of Motions filed by him. So it was false submission of Adv. S.U. Kamdar deliberately made to misguide this Hon'ble Court to serve their ulterior purpose.
c. To record a finding that Mr.S.U. Kamdar, Counsel for Plaintiffs suppressed the fact that the hearing of Notice of Motion No.51 of 2014 cannot be done by this Hon'ble Court because the IA. No. 01/19 is subjudice before the Division Bench for hearing of said NOM No. 51/2014 by the Division Bench only as order 17/12/2014 is null & void in view of 5/19
12.IA1_2020.odt the new judgment of Hon'ble Supreme Court in Roma Sonkar (2018) 17 SCC 106.
d. To record a finding that, despite the knowledge of law laid down by the Hon'ble Supreme Court and this Hon'ble Court in Madangopal Jalan Vs Partho Sarkar 2018 SCC Online 3525 the Advocate for plaintiffs Mr.S.U. Kamdar & Ors. again and again interrupted the proceeding i.e. NOM (S) 44 of 2019 which is under section 340 of Criminal Procedure Code and Plaintiffs are accused in the said application. Therefore Adv. S.U. Kamdar and Ors. are guilty of willful and deliberate of contempt of this Hon'ble Court. They are also liable for gross contempt for their wilful disregard and disobedience of the order passed by this Hon'ble Court in Madangopal Jalan's Case (Supra).
e. To record a finding that other defendants have no locus in the proceeding and as per the procedure of 340 of Cr.P.C. as per law laid down in Jose Maria's case (2018) 11 SCC 659 and Haresh Milani's case 2017(4) MH.L.J. 441, and if this Hon'ble Court thinks fit, then this Hon'ble Court can call them as a witness and examine them in the court. Therefore the order directing applicant to provide a copy of the Notice of Motion is per incuriam and liable to be recalled.
f. This Hon'ble Court may pleased to take suo moto cognizance under provisions of Indian Penal Code u/s 192 r/w 120(b) of I.P.C. against Mr.S.U. Kamdar, MDP Partners and others for offence against administration of Justice as disclosed from the facts as mentioned in the present application.
g. To pass such other order as may be proper to pass in furtherance of justice, given the fact(s) and circumstances of the case."
6. Perusal of the order dated 7 January 2020 passed by this Court (supra) would clearly indicate that the submissions as made on behalf of defendant no. 3 that his client has not been served with the Notice of Motion and that defendant no. 3 intends to file a reply to the Notice of Motion is recorded in paragraph 3. These submissions as made on behalf of defendant no. 3 were countered on behalf of applicant/defendant no. 1 to contend that it was not necessary that the Notice of Motion be served on defendant no. 3, which is also recorded in paragraph 3 of the said order. In paragraph 4 of the said 6/19
12.IA1_2020.odt order the Court recorded its opinion that it will be appropriate that the Notice of Motion be served on defendant no. 3 and this shall be without prejudice to the rights of the plaintiff, with a further direction to all the defendants to file their respective replies in the pending Notices of Motions, on or before the adjourned date of hearing. In paragraph 5 of the said order it was recorded that the pleadings on all the pending Notices of Motion be completed before the adjourned date of hearing and accordingly these Notices of Motions were adjourned to 21 January 2020.
7. Learned counsel for the applicant in arguing this Interim Application has consistently focused all his arguments in the context of the prayers as made in the Interim Application which are primarily to contend that Mr. S.U. Kamdar, Senior Counsel, who is representing the plaintiff instructed by M.P. & Partners misguided the Court in passing the said order dated 7 January 2020. In support of his submissions, Mr. Ojha, learned counsel for defendant no.1 has drawn my attention to the provisions of Sections 340 and 342 of Code of Criminal Procedure to contended that once a prayer is made by the applicant in the Notice of Motion (L) No.44 of 2019 invoking Section 340 no other party needs to be heard. Hence Mr. Kamdar has misguided this court to pass the order dated 7 January 2020 for the Notice of Motion to be served on defendant No.3 and replies to be filed on the Notice of Motion. He has 7/19
12.IA1_2020.odt referred to various decisions in support of his contention that the prayers in Interim Application be granted. These are decisions in Aarish Asgar Qureshi Vs. Fareed Ahmed Qureshi,1; Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel,2; P.C. Purushothama Reddiar Vs. S. Perumal,3; Madangopal Banarasilal Jalan & Ors. Vs. Partha S/o. Sarathy Sarkar,4; Baduvan Kunhi Vs. K.M. Abdulla s/o Mammunhi & Anr.,5; Sundarjas Kanyalal Bhathija & Ors. Vs. The Collector, Thane,6 ; Sarvepalli Radhakrishnan University & Anr. Vs. Union of India & Ors.,7. Mr. Ojha's arguments are also supported by learned counsel appearing for defendant no. 2 and learned counsel for defendant no. 4.
8. On the other hand, defendant no. 3, who is represented by Mr. Kulkarni would not support the contentions as urged by Mr. Ojha. Mr. Kulkarni's contention is that the observations as made by the Court in the order dated 7 January 2020 are correct and justified. He submits that order dated 07 January 2020 records the submissions as made by him on behalf of defendant no. 3 and not on behalf of the plaintiff, whom Mr. Kamdar, Senior Counsel was representing. He, therefore, submits that the prayers as made in the Interim Application are most improper and these prayers ought not to be granted.
1 (2019) SCC Online SC 306 2 (2012) 10 SCC 517 3 1972(1) SCC 9 4 (2018) SCC Online Bom 3525 5 2016 SCC Online Ker 23602 6 (1989) 3 SCC 346: AIR 1990 SC 261 7 (2019) SCC Online SC 51 8/19
12.IA1_2020.odt
9. Mr. Kamdar, learned Senior counsel for the plaintiff has also made submissions. He would submit that the prayers as made in the Interim Application amount to an abuse of the process of law. He submits that it is highly objectionable on the part of applicant / defendant no. 1 to make such baseless insinuations against him who was representing the plaintiffs in the capacity of a Senior counsel of this Court. His submission is that the applicant could not have made such allegations that too in respect of court proceedings. He would submit that a litigant cannot not be permitted to have such a reckless approach resulting into an abuse of the process of law. He would submit that the order dated 7 January 2020 passed by this Court is most appropriate in the facts and circumstances of the case. He submits that considering the said order passed by this Court, ex-facie there can be no role whatsoever which can be attributed to him as a senior counsel representing the plaintiff. He would also submit that considering the prayers as made by defendant no. 1 in Notice of Motion (L) No. 44 of 2019, as also considering the title of the said Notice of Motion where all the parties are added which includes not only the plaintiff but also the defendants, it cannot be accepted that the parties as impleaded in the Motion could not have any say on the Notice of Motion. He submits that looking at the tenor of the said Notice of Motion, it is certainly not an application exclusively invoking Section 340 of the Criminal Procedure Code. To support this contention Mr. Kamdar has 9/19
12.IA1_2020.odt drawn my attention to the prayers as made in prayer clauses (d) and (f) of the Notice of Motion. He says that it is wholly untenable for the applicant to contend that merely for the reason that in prayer clause (a), Section 340 has been invoked, the Plaintiff and / or even the other Defendant would not have any say, on the other reliefs in the Notice of Motion. He submits that in such a situation the Court is not precluded to exercise its discretion to permit the parties to be heard. He says that this would certainly depend on the nature of the prayers and even in a situation that Section 340 of the Cr.P.C. is invoked by a party. In supporting this contention, he has relied on the following observations as made by the learned Single Judge of this Court (S.J. Kathawala, J.) in Satyanarayan Nandakishore Pande vs. Vinay Jagdishchandra Pande & Ors. in the order dated 22 December 2018 passed in Civil Application No. 497 of 2018 in Writ Petition No. 4009 of 2017:
27. When I was going through the reliefs sought by the Applicant, I noted that the Applicant has in prayer clause (iv) prayed that this Court be pleased to: "commit the Respondent Nos.1 to 3 to custody in view of Section 340 (1) (d) of the Cr.PC as the Respondents have produced fabricated death certificate and false nomination, false share transfer form, false resolution and false intimation letter and misguided the Court by further making misleading averments in the petition which are false and frivolous as the offences are non-bailable one". I therefore enquired from Mr. Nilesh Ojha, Advocate for the Plaintiff, whether notice has been issued to the Respondents. Mr. Ojha submitted that the Respondents cannot be heard at this stage as held by the Hon'ble Supreme Court in the case of Pritish Vs. State of Maharashtra (supra) and by the Single Judge of this Court in the case of Union of India vs. Haresh Milani (supra). Though I subsequently was of the view, that the Respondents are not required to be heard in the matter, I would like to clarify that what is held in the above decisions is that there is no statutory requirement / mandate to afford an opportunity of hearing to the persons against whom the court might file a complaint, and therefore, the Respondents in a case of Section 340 are not 10/19
12.IA1_2020.odt required to be heard as a matter of right. However, it cannot be disputed that if the Court feels the need to hear the Respondent in an Application under Section 340 Cr.P.C., the Court is not precluded from doing so, and therefore, the submission of Mr. Ojha, that the Respondent cannot be heard at this stage is not accepted.
(emphasis supplied)
10. Having heard learned counsel for the parties and having perused the averments as made in the Interim Application, at the outset, it would be appropriate to note some of the averments as made in the memo of the Interim Application, which are as under:
"1. The Applicant is filing this application seeking recall of the order dated 07.01.2020 passed by this Hon'ble Court in Notice of Motion (L) No. 44/2019 in Suit No. 929 of 2013, whereby this Hon'ble Court (Coram : Shri Justice G.S. Kulkarni) has on being misguided by incorrect, unlawful and misleading submission of Mr. S.U,. Kamdar, counsel instructed by MDP Partners, Advocate for the plaintiffs passed the order dated 07.01.2020.
13. On 11.11.2019, the counsel for respondents (org. plaintiffs) Mr. S.U. Kamdar interrupted the argument of the counsel for applicant but his interference was objected by counsel for defendant no. 1 Mr. Niles Ojha relying on Supreme Court & Bombay High Court judgment in Madangopal Jalan vs. Partho Sarkar 2018 SCC Online 3525, which is at Page no. 87 of Notice of Motion (L) no. 44 of 2019.
15. The counsel for applicant, Mr. Niles Ojha tried to point out the prayers of SLP (Diary No. ) No. 2521119 and other documents but Mr. S.U. Kamdar, the counsel for plaintiffs continuously interrupted and misdirected the Hon'ble Court and lastly this Hon'ble Court passed the order that all the Notice of Motions be heard together. This Hon'ble Court also directed applicant to serve the copy of Notice of Motion (L) No. 44 of 2019 to defendant no. 3.
16. Since the order dated 07.01.2020 is an outcome of fraud played by plaintiff thorugh Ad. S.U. Kamdar & Ors and also against the binding precedents of Hon'ble Supreme Court and this Hon'ble Court, the applicant is filing present Interim Application for recall of the said order and appropriate action against plaintiff and his advocates Mr. S.U. Kamdar.
G.10. That Mr. S.U. Kamdar misguided this Hon'ble Court about this legal and factual positions and misled this Hon'ble Court to pass the abovesaid order dated 07.01.2020."
(emphasis supplied) 11/19
12.IA1_2020.odt
11. There are some other statements made against Mr. Kamdar, learned senior counsel for the plaintiffs in the memo of the application. I do not feel necessary to extract all these statements. Perusal of all the statements would certainly reflect that a diligent, responsible and an accountable litigant would not take or would hesitate to take such confrontative position against a senior counsel and that too in regard to the proceedings held in the open court, unless there was strong and unimpeachable material to support such contentions. A perusal of the nature of the insinuations as made against Mr. Kamdar would show that not a single allegation is tenable. If such contentions as urged by Mr. Ojha are accepted it would be difficult for any counsel to appear in Court proceedings and equally difficult for the Court to hear a counsel on proceedings and pass orders. The Court cannot overlook any pressurizing tactics of any litigant.
12. It was not a case that Notice of Motion (L) No. 44 of 2019 was not taken up for hearing. Moreover, learned counsel for the parties agreed before the Court on 7 January 2020 that all the pending Notice of Motion in the Suit be taken up for hearing as specifically recorded in paragraph 1 of the said order. This for the reason that all issues were arising out of common set of facts and more particularly this being a suit under section 6 of Specific Relief Act. In these circumstances, considering the proceeding as held on 7 January 2020 it was highly undesirable, unpleasant and objectionable for the 12/19
12.IA1_2020.odt applicant / defendant No.1 to make such rash and reckless allegations against Mr. Kamdar. Any counsel before the Court is first an officer of the Court. In my clear opinion Mr. Kamdar learned Senior Counsel on 7 January 2020 argued the plaintiff's case to the extent necessary on the Notice of Motion. None of his submissions in any manner were considered objectionable, much less misleading as alleged by Mr. Ojha. Moreover, a prior order dated 11 November 2019 passed by this Court itself would indicate that none of the parties had any objection for this Court to hear this Notice of Motion (L) No.44 of 2019 which was adjourned, for an appropriate list of dates to be filed on behalf of applicant/defendant no. 1. The order dated 11 November 2019 reads thus:
" Mr. Ojha, learned counsel for the applicant agrees that he will file appropriate list of dates, in view of the fact that there is chequered history in this matter. Let this exercise be undertaken within two weeks from today. Stand over to 25 November 2019."
13. From the tenor of this application it clearly appears that the whole attempt of the applicant / defendant No.1 appears to be to bring about a situation that the plaintiffs are coerced not to effectively pursue the suit by engaging senior counsel or a counsel. There can be no other purpose which the applicant/defendant no. 1 intends to achieve considering the statements and prayers as made in the Interim Application.
14. In so far as the plea as taken by the applicant/defendant no. 1 and as vehemently urged by Mr. Ojha, learned counsel for the applicant referring to 13/19
12.IA1_2020.odt the decisions as noted above in regard to the scope of the proceedings under section 340 of Cr. P.C. and that the same be decided in this Interim Application, I am not persuaded to accept this submission of Mr. Ojha for more than one reason. The reasons being Mr. Kulkarni, learned counsel for defendant no. 3 referring to prayer clause (a) of the Notice of Motion (L) No. 44 of 2019 has submitted that even his client who is also a party to this Notice of Motion would have a say when the Court considers the said prayer, wherein his client would not be taking a position adversarial to the applicant/ defendant no. 1. It is for this reason he submitted that copy of the Motion was necessary to be served on his client and as rightly expressed by this Court in its order dated 7 January 2020. I am in agreement with this contention of Mr. Kulkarni.
15. This apart there is much substance in Mr. Kamdar's contention that Notice of Motion (L) No.44 of 2019 does not have exclusive prayers under section 340 of Code of Criminal Procedure, but it seeks other reliefs as well. This is contended by Kamdar referring to prayer clause (d) and (f) of the Motion. He is right in contending that these are substantive prayers, which would require the plaintiff to be heard on the Notice of Motion and in respect of which plaintiff would have a right to defend such prayers. Mr. Ojha would also not dispute that there are parties to the Notice of Motion as clear from its 14/19
12.IA1_2020.odt title which includes not only the plaintiff but also other defendants. He will also not dispute that there are other prayers in the Notice of Motion.
16. In any event on 07 January 2020 the proceedings were heard in the open Court. It is a matter of grave doubt as to whether whatever the applicant/defendant no. 1 has averred in the memo of the application against Mr. Kamdar is correct to his personal knowledge. This would be clear from the verification clause of this application which reads as under:
VERIFICATION I, Mahadeo Vithal Koli, aged 59 years, Indian Inhabitant residing at Malvani, Koliwada, Sunder Gully, Malad Marve Road, Malad (W), Mumbai - 400095, do hereby state on solemn affirmation / declare that whatever is stated in the foregoing Paras are true to my personal knowledge and belief, whereas, the legal submission are made as per legal advice given and I believe the same as true.
Solemnly affirmed at Mumbai
This 20th Day of January, 2020
Interpretated & Explained in Marathi Applicant
Mahadeo Vithal Koli
....
(emphasis supplied)
17. The applicant / defendant No.1 does not understand English also he cannot read the English language, as clear from the verification clause of this application(supra). All the averments are stated to be interpreted and explained to the applicant in Marathi. Nevertheless, the applicant says that whatever he has stated in the several paragraphs of the above Interim Application is true to his personal knowledge. I am thus surprised as to how 15/19
12.IA1_2020.odt the applicant/defendant no. 1 can make such inconsiderate and rash allegations. I doubt that if the applicant / defendant No.1 is at all conscious and mindful of what has been averred in the memo of the application or the prayers as made in this Interim Application on the basis of the proceedings held before this Court on 7 January 2020. Thus, there is much than what can meet the eye, in my opinion, the bonafides of the applicant in making this application itself appear to be doubtful and on the face of the proceedings of this application abnormality is writ large.
18. There is no dispute on the propositions of law laid down in the decisions as cited on behalf of the applicant, however, the question is considering the nature of prayers as made in the present application whether these decisions are applicable. In deciding this Application, I am not adjudicating the Notice of Motion (L) No.44 of 2019 as filed on behalf of the applicant which has as incidental prayer under section 340 of Cr. P.C. I find myself in agreement with the observations as made the learned Single Judge of this Court (S.J. Kathawala,J.) in the decision in Satyanarayan Nandkishore Pande Vs. Vinay Jagdishchandra Pande & Ors., CA.497 of 2018 (supra), when it is observed even on an application under Section 340 of Cr.P.C., the court is not precluded from hearing the Respondent when the Court so feels that there is a need for such hearing. In my opinion the Court considering the nature of the prayers as made in the Notice of Motion and facts before it 16/19
12.IA1_2020.odt would apply the law and not in a straight jacket formula as suggested by Mr. Ojha.
19. In the aforesaid circumstances, I am of the opinion that none of the reliefs as prayed for in the Interim Application can be granted as also there is no warrant to recall the order dated 7 January 2020 passed by this court.
Interim Application accordingly is thoroughly misconceived as also an abuse of the process of law. Interim Application is accordingly rejected.
20. However, the Court cannot be unmindful of the trust and faith the litigants repose in the courts and the process of law. The litigants faith in Courts and administration of Justice is paramount. No litigant can have a feeling that he is being deprived of his legitimate entitlement to freely assert his cause which he has brought before the Court. Any attempt on the part of any litigant to abuse the process of law or in some manner interferring in the administration of justice has to be dealt sternly. The wheels of justice would move firmly and any attempt to tinker with this movement and monentum at the hands of any disgruntled litigant necessarily has to be dealt with iron hands. The Court is seriously concerned with the purity of the process of the administration of justice.
21. Thus, confronted with such application of the applicant as also 17/19
12.IA1_2020.odt enormous public time of the Court being wasted on such frivolous application, the rejection of the application cannot be simplicitor, but by imposing compensatory cost as permissible in law. I am certain in this regard, however, in all fairness to the applicant who appears to be a misinformed and a misguided litigant and before proceeding further, I have asked Mr. Ojha, learned counsel for the applicant whether the applicant/defendant no.1 would be serious in pressing the allegations and prayers as made against Mr. Kamdar, learned Senior Counsel of this Court. Mr. Ojha, learned counsel for the applicant on taking instructions of his client who is present in the Court makes a statement that his client is inclined to withdraw all the allegations as made against Mr. Kamdar, Senior Advocate in the memo of this Application, however keeping all other contentions open. He states that his client would however intend to prosecute the Interim Application simplictor in respect of his contention that the order dated 7 January 2020 be recalled.
22. In view of this statement as made by Mr. Ojha that the applicant withdraws all the allegations and imputations as made against Mr. Kamdar, I refrain from passing an order imposing compensatory cost on the applicant/defendant no. 1. However, the contention of Mr. Ojha, learned counsel for the applicant that the applicant/defendant no. 1 would be entitled for a relief on this Interim Application only to the extent of recalling the order dated 7 January 2020 is inherently misconceived. There is no independent 18/19
12.IA1_2020.odt prayer for recall of the order dated 07 January 2020. The prayer for recall is in the context of the allegations which were made by the applicant/defendant no. 1 against Mr. Kamdar which is clear from prayer clause (a), which at the cost of repetition is extracted hereunder:
(a) That, under the circumstances, this Hon'ble Court may be pleased to record a finding that the order dated 07.01.2020 is the outcome of the false and misleading submission given by Adv. S.U. Kamdar and therefore liable to be recalled."
(emphasis supplied)
23. Thus, the contention of Mr. Ojha that his client is simplicitor interested in seeking recall of the order dated 7 January 2020 cannot be accepted, considering the applicant's own prayers as made in the Interim Application.
24. Interim Application is accordingly dismissed however on the above observations. No costs.
25. Notice of Motion (L) No. 44 of 2019 be listed for hearing on 11 February 2020. All the parties will be heard even on the other Notices of Motions. It is clarified that each of the Motions will be heard independently and orders passed.
26. Stand over to 11 February 2020.
(G.S.KULKARNI, J.)
19/19
Digitally
Vidya signed by
Vidya S. Amin
S. Date:
2020.01.29
Amin 17:52:27
+0530