Gujarat High Court
Sanjay Hiralal Shah vs Hdfc Bank Ltd on 26 September, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/427/2023 ORDER DATED: 26/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 427 of 2023
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SANJAY HIRALAL SHAH
Versus
HDFC BANK LTD.
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
GAURAV D NANAVATI(8651) for the Respondent(s) No. 1
KHYATI A CHUGH(10132) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 26/09/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard Mr. Sanjay Hiralal Shah, the party-in-person, the petitioner herein, who is seeking to challenge the order dated 8.9.2022 passed by the Commercial Court in Commercial Misc. Application No. 3 of 2019, which has been filed under Sections 141 and 151 of the Code of Civil Procedure, 1908 read with Section 6 of the Commercial Courts Act, 2015. A perusal of the application at Page-30 of the paper-book indicates that the petitioner has sought the following reliefs before the Commercial Court:
"30. The Applicant therefore, most respectfully prays that this Hon'ble Court may be pleased to:-
(a) The Hon'ble Court may be pleased to admit this commercial Misc. Civil Application in the interest of justice Page 1 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined and for the end of justice.
(b) That the Hon'ble Court may be pleased to allow this Commercial Misc. Civil Application by Recall the judgment / Order dated 24/11/2014 and 27/04/2015 passed in Misc. Civil Application No. 1042 of 2015 in First Appeal 3136 of 2011 by Hon'ble High Court of Gujarat on the ground of obtained by fraud and misrepresentation before the Hon'ble High Court, because the said bank Instruments have not 'Lost in Transist' but fraudulently Stop the Payments.
(c) Treated as nullity and set aside the impugned judgment dated 24/11/2014 and order dated 27/04/2015 passed in Misc. Civil Application 1042 of 2015 in First Appeal No. 3136 of 2011 on the ground that the said judgment and order have obtained by Suppression of material facts, misrepresentation and fraud by the opponent.
(d) That the Hon'ble Court may be pleased to allow this commercial Civil Misc. Application and to reverse the judgment and decree exhibit 258 and 259 dated 30/03/2011 passed in Sp. Civil Suit No. 202 of 2001 and allow the suit of the applicant/plaintiff prayed for with the costs of all courts in the interest of justice and for the end of justice.
(e) That the Hon'ble Court may be pleased to pass and just and proper order in the facts and circumstance of the case.
And for this act of kindness and justice, the applicant shall as in duty bound for every pray".
2. The facts disclosed in the application and noted by the Commercial Court while rejecting the application vide judgment and order dated 8.9.2022 are relevant to be noted Page 2 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined hereinunder.
3. We may record that the petitioner herein had filed a Special Summary Suit No. 202 of 2001 for recovery of an amount of Rs.7,08,10,040/- from HDFC Bank, Vadodara, on the ground that they have illegally and fraudulently stopped the payment of the Bank's instrument after the same was delivered to the applicant-plaintiff. Be that as it may, the said suit has been dismissed vide judgment and order dated 24.11.2014. On a First Appeal No. 3136 of 2011 filed by the petitioner before this Court, the judgment and decree dated 30.3.2011 has attained finality with the dismissal of the First Appeal by the High Court vide judgment and order dated 24.11.2014. It seems that a recall/ review application vide Misc. Civil Application No. 1042 of 2015 was filed by the petitioner which has also been dismissed on 27.4.2015. In the mean time, challenging the judgment and decree dated 30.3.2011 of dismissal of the suit and the judgment and decree dated 24.11.2014 of the dismissal of the First Appeal, the petitioner herein had approached the Apex Court in Special Leave Petition No. 7092 of 2014, which has also been dismissed on 16.3.2015 with the following order:-
"Heard learned counsel for the petitioner and perused the relevant material.
We do not find any legal and valid ground for interference. The special leave petition is dismissed."Page 3 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024
NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined
4. We may note that the application seeking for recall of the judgment and order dated 24.11.2014 passed by this Court in the First Appeal No. 3136 of 2011 has been filed before the Commercial Court on the ground of the said judgment having been obtained by fraud and misrepresentation upon the High Court. The prayer was also made to recall the judgment and order dated 27.4.2015 of dismissal of the Review Application No. 1042 of 2015 passed by the first appellate Court namely the High Court of Gujarat.
5. It was argued by Mr. Shah, the party-in-person that the judgments and orders dated 24.11.2014 and 27.4.2015 passed by the first Appellate Court are liable to be declared as nullity in any proceeding drawn before any Court of law, be it the order of the High Court, as they were obtained by suppression of material facts, misrepresentation and fraud by the opponent. The further prayer made in the application is also to recall the judgment and decree dated 30.3.2011 passed in Special Civil Suit No. 202 of 2001 which has been merged in the order of the first Appellate Court dated 24.11.2014.
6. A compilation of the judgments of the Apex Court and this Court has been placed on record by Mr. Shah to substantiate his submission that the order of a Court of law obtained by fraud can be declared nullity in any proceedings, the trial Court even when the decree passed by trial Court has been merged with the order passed by the first Appellate Court, that too in a misc. application filed under Section 151 of the Code of Civil Procedure.
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7. The affidavit-in-reply filed on behalf of respondent No.1 states that the application filed by the petitioner before the Commercial Court and present petition before this Court is nothing but gross abuse and misuse of the process of law. It is submitted that in the Misc. Application No. 3 of 2019, another application has been filed by the petitioner before the Commercial Court under Order 11 Rule 5 CPC (Exhibit 19) for production of original documents as stated in the written statement in the Summary Suit No. 202/2001 filed by the respondent. Both the applications are liable to be dismissed, as such.
8. Noticing the above, we may reproduce the judgment and order dated 27.4.2015 passed by the First Appellate Court in the review application namely Misc. Civil Application No. 1042 of 2015, which has been filed by the petitioner with the same contention that a fraud has been committed by the respondent in getting the judgment and decree dated 24.11.2014 from the first Appellate Court, which reads as under:
"This review petition is filed by the original plaintiff-appellant and argued by himself. Plaintiff had filed civil suit seeking recovery of a total sum of Rs.7,08,10,040/-, which included a sum of Rs.6.65 cr. covered under six negotiable instruments issued by Charotar Nagrik Sahkari Bank Limited with interest. The case of the plaintiff was that the said Bank had entrusted the task of procuring deposits worth Rs.200 crores upon a promise for payment of commission at the rate of 6% on the deposits he may obtain. The trial court raised several Page 5 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined issues, and answered all of them in the negative, and resultantly dismissed the suit. Central issue was whether the negotiable instruments were in the nature of demand drafts or bank cheques.
2. The plaintiff carried the matter in appeal. This Court by judgment dated 24.11.2014 dismissed the appeal holding that the negotiable instruments were in the nature of cheques, and therefore liable to stop payment instructions, and not demand drafts payable on demand. The judgment was carried in appeal by the unsuccessful appellant. The Supreme Court, however, summarily dismissed the appeal by order dated 16.3.2015. This review petition is thereupon filed.
3. The applicant vehemently contended that the judgment of the trial court was based on misrepresentations from the Bank and on fraud. He, therefore, submitted that a decision, which is founded on fraud perpetrated by the respondent is open to questioning at any stage, and therefore be recalled. He relied on the following two decisions of the Supreme Court:
(1) A.V. Papayya Sastry and others Vs. Government of Andhra Pradesh and others reported in AIR 2007 SC 1546.
(2) State of Punjab Vs. Davinder Pal Singh Bhullar reported in (2011) 14 SCC 770
4. Without going into the correctness or propriety of entertaining the review petition, once against the judgment Page 6 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined of the High Court Special Leave Petition has been dismissed, we do not find any merits in this review petition. All issues were presented before the High Court, and after detailed arguments were considered threadbare, independent reasons were assigned to confirm the decision of the trial court.
Indisputably, the Bank had issued instructions for stop payment. According to the plaintiff, however, being demand drafts, such instructions could not have been issued. It is on this background, Court examined the correctness of the judgment of the trial court and came to the conclusion that such instruments were not demand drafts, but account payee cheques always subject to stop payment instructions.
5. We do not see any fraud being committed by the defendants. Reliance on the decision of the Supreme Court in the case of Davinder Pal Singh Bhullar (supra) is not on the point at all. It was a judgment rendered in the background of criminal proceedings, and no portion of the judgment would apply to the present case. In case of A.V. Papayya Sastry and others (supra), in paragraph No. 39, the Supreme Court reiterated the well accepted principle that the principle of merger of the judgment of the lower court into the decision of the Supreme Court which would be the law of the land under Article 141 of the Constitution, namely if it is established that the order was obtained by practicing fraud. This general principle cannot be applied in abstract without matching the facts on the record. In the result, review petition is dismissed."
9. A perusal of the record indicates that the contentions Page 7 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined raised by the petitioner before the Commercial Court in the application registered as Commercial Misc. Civil Application No.3 of 2019 were the same as raised before this Court in the aforesaid review application. The plea of fraud being perpetrated by the defendant taken by the petitioner has been upturned by this Court, noticing that the review of the judgment and order dated 24.11.2014 was not permissible on the merits. The contentions of the petitioner on the plea of fraud were dealt with though in brief. It may be noted the petitioner had again approached the Apex Court to challenge the order passed in review application by filing Special Leave Petition (Civil) No. 23348 of 2015, which has been dismissed vide judgment and order dated 24.8.2015.
10. Be that as it may, the contention of the party-in-person is that Special Leave to Appeal No. 7092 of 2015 was dismissed vide judgment and order dated 16.3.2015 in limine and hence the doctrine of merger would not apply, inasmuch as, the order passed by the trial Court, affirmed by the first Appellate Court would not merge in the order of the Apex Court of dismissal of the Special Leave to Appeal. The submission, thus, is that the order passed in the First Appeal dated 24.11.2014 and the review application dated 27.4.2015 are liable to be recalled on the prayers made by the petitioner before the trial Court. The submission is that any decree obtained by fraud cannot attain finality even with the judgment of the High Court or the Apex Court.
11. Testing this submission, suffice it to note from the Page 8 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined judgment and order dated 16.3.2015 of the Apex Court records that while dismissing the Special Leave Petition, it did not find any legal and valid ground for interference after hearing the learned advocates for the parties and perused the relevant material.
12. We may further note that the petitioner did not rest here and after dismissal of the Special Leave Petition No. 23348 of 2015 by the Apex Court on 24.8.2015, he filed a Commercial Review Application No. 1 of 2015 before the Commercial Court seeking for review of the original judgment and order dated 30.3.2011 passed in Special Summary Suit No. 201 of 2011, which has been dismissed. A First Appeal from Order, AO No. 397 of 2016 was, thereafter, filed before this Court, which has also been dismissed by the judgment and order dated 29.3.2017 passed by the first Appellate Court recording that the petitioner had preferred a Misc. Civil Application No. 1042 of 2015 in First Appeal No. 3136 of 2011 seeking for review and recall of the order passed in First Appeal, which has been dismissed by the Division Bench vide judgment and order dated 27.4.2015. The judgment and order dated 27.4.2015 of rejection of the review application in the First Appeal has, thus, attained finality.
13. It is, thus, noted by the Appellant Court while deciding the First Appeal from Order AO No. 397 of 2016 that the appellant/petitioner herein in the third round of litigation presented Commercial Review Application No. 1 of 2016 asking the trial Court to review the original judgment and Page 9 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined decree passed by it dated 30.3.2011 in dismissal of the Special Summary Application No. 201 of 2001 on the ground of fraud and misrepresentation of facts. When with the dismissal of the First Appeal on merits vide judgment and order dated 24.11.2014, the judgment and decree dated 30.3.2011 had merged in the order of the First Appellate Court and review application before the trial Court was not maintainable.
14. Even after dismissal of the First Appeal from Order AO No. 397 of 2016 with the cost of Rs.1,000/- vide judgment and order dated 29.3.2017, the petitioner was not at peace and challenged the said order before the Apex Court in Special Leave to Appeal No. 15517 of 2017, which has been dismissed with the following observations:
"Permission to appear and argue in person is granted.
We do not find any merit in this petition, which is hereby dismissed.
Pending applications, if any, shall stand disposed of."
15 It is evident that the Special Leave Petition filed by the petitioner has been dismissed on merits by the Apex Court. The Misc. Civil Application No.3 of 2019 was then filed before the Commercial Court under Section 151 CPC to seek recall of the judgments of the First Appellate Court and an application under Order 9 Rule 5 CPC has been filed therein calling upon the respondent to produce the original record in order to establish that the judgment and decree dated 24.11.2014 had been obtained from this Court by practicing fraud by the Page 10 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined respondent. On the dismissal of the said application vide judgment and order dated 8.9.2022, the present petition has been filed.
16. With the above facts, it seems that either the petitioner is an unscrupulous litigant who is litigating in various proceedings at various level continuously for about 12 years or he does not understand the basic principles of law. It seems that since the petitioner is appearing as a party-in-person, so he gets liberty to make his submissions on any point without even understanding the basic legal principles, such as the doctrine of merger and finality attached to the orders passed by the Court of law.
17. At the cost of repetition, it may be noted that when this matter was taken, it was vehemently argued by the petitioner- party in person that even the order of the High Court in the First Appeal can be recalled by the trial Court on the ground of fraud committed by the respondent with this Court. This submission itself shows that petitioner does not understand the basic principles of law and hence cannot be permitted to appear as a Party-in- person before any Court pertaining to any matter filed in these proceedings.
18. We are also inclined to impose cost as a deterrent to the petitioner, but desist doing so as it may have some financial implications upon the petitioner who seems to be already under distress. However, while dismissing the present petition as misconceived, we direct that from now onwards, the Page 11 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024 NEUTRAL CITATION C/SCA/427/2023 ORDER DATED: 26/09/2024 undefined petitioner will not be permitted to maintain any proceedings pertaining to the dispute in question as a party-in-person before the High Court or the trial Court. Any such application filed by the petitioner, shall be rejected out-rightly on the ground of incompetency of the petitioner to appear in the Court as party-in-person. However, the petitioner shall be at liberty to institute any proceedings on getting a proper legal advise through an advocate duly engaged by him. It is clarified that this direction is given in order to save the precious judicial time of the Court which cannot be wasted at the whims and fancies of a party-in-person who does not even understand the basic principles of law and indulge in filing repeated litigations for more than 12 years. The petitioner, as such, cannot be permitted to argue as party-in-person in the Court in any proceeding drawn pertaining to the current dispute.
This order be circulated to the Civil Court, Vadodara for taking note of the same for any future proceedings initiated by the petitioner as a party-in-person before the Court in relation to the present dispute.
With the above, the petition is dismissed, accordingly.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) SAJ GEORGE Page 12 of 12 Uploaded by SAJ GEORGE(HC01069) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:27:05 IST 2024