Andhra Pradesh High Court - Amravati
C. Ramanna, vs M. Somasekhar, on 31 July, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.20356 of 2004
ORDER:(per Hon'ble the Acting Chief Justice) As there was no representation on behalf of the petitioner on 26.07.2019, the matter was directed to be listed today under the caption "for dismissal". Even today, there is no representation on behalf of the petitioner. In view of the fact that this writ petition is of the year 2004, this Court has no other go except to decide the matter on merits without dismissing the same for non-prosecution.
2. The present writ petition came to be filed seeking issuance of a writ of mandamus to declare the order dated 01.02.2003 passed by the District Legal Services authority, Permanent Lok Adalat, Anantapur in L.S.A.No.900 of 2002 as collusive, fraud, invalid, bad, illegal and consequently to set aside the same.
3. The averments in the affidavit filed in support of the writ petition show that the petitioner filed O.S.No.15 of 1987 on the file of the Senior Civil Judge, Anantapur, for recovery of the amount based on a promissory note against the 2nd respondent. The said suit was decreed after a full-fledged trial, vide judgment dated 31.10.1994, for a sum of Rs.84,000/-. The petitioner is said to have filed E.P.No.15 of 1995 for detention of the 2nd respondent in civil prison. While so, to escape the consequences of the E.P. proceedings, the 2nd respondent filed I.P.No.8 of 1998 before the court of Additional Senior Civil Judge, Anantapur. However, the said court disbelieved the plea of the 2nd respondent and dismissed I.P. vide order dated 03.10.2002. The 2nd respondent filed an appeal against the said order, vide A.S.No.24 of 2003 before the District Court, Anantapur. When the petitioner herein was taking steps to proceed with E.P.No.15 of 1995, the 2nd respondent 2 herein, created two false and nominal promissory notes, one dated 20.10.2000 for Rs.15,000/- in favour of the 1st respondent, who is none other than his brother's grandson and another promissory note dated 15.11.2000 for Rs.20,000/- in favour of one G. Narayanappa, and got filed against himself L.S.A.No.900 of 2002 and L.S.A.No.902 of 2002 on the file of the District Legal Services Authority, Anantapur, for an award of compromise and recovery of the amount due on the above promissory notes. The said L.S.As., came to be filed on the same day through the said Advocate, though the applicants therein belong to different villages and the awards in both these applications were passed on the same day, i.e.01.02.2003. It is averred that the 2nd respondent appeared before the DLSA on 01.02.2003 in response to notice dated 09.12.2002 issued to him and filed an affidavit before the court admitting that the fact of borrowing the amount is correct and also acceptance of compromise, but averred in the affidavit that when 2nd respondent claiming to be insolvent by filing the I.P., it was his duty to state before the Lok Adalat the fact that he filed I.P., and that he has no means to pay the debt and that the 1st respondent herein might implead himself as respondent in the I.P. Neither the 2nd respondent nor the 1st respondent, has stated this fact before the authority, deliberately suppressed the same and obtained an order. It is stated that, since the award being a collusive one, the same requires to be set aside.
4. The petitioner is a third party to the award in L.S.A.No.900 of 2002 dated 01.02.2003. He is the 1st respondent in A.S.No.24 of 2003 on the file of the District Judge, Anantapur, filed against the order dated 02.10.2002 passed by the Addl. Senior Civil Judge, Anantapur in I.P.No.8 of 1998. He is the creditor, whereas I.P.No.8 of 1998 was filed by G. Venkatanarayana, debtor, under Section 10 of the Provincial Insolvency Act, 1920. But the said I.P. was dismissed and 3 later it was carried in appeal vide A.S.No.24 of 2003 before the appellate court, which ended in dismissal.
5. Though the petitioner raised several contentions regarding playing fraud, misappropriation etc., in obtaining the award vide L.S.A.No.900 of 2002, before the Lok Adalat, Anantapur District, the writ petition against M. Somasekhar, who is the petitioner in L.S.A.No.900 of 2002 and the 1st respondent herein, was dismissed for default vide order dated 18.04.2011 and in his absence, the matter cannot be adjudicated effectively. On this ground, the writ petition is liable to be dismissed.
6. Coming to the other aspect, i.e. fraud, misrepresentation etc., it is settled law that the Award passed by the Lok Adalat cannot be reversed except by way of writ petition and no other authority or Court shall have jurisdiction (vide Sanjay Kumar v. Secretary, City Civil Court Legal Services Authority1and Sri Durga Malleswari Educational Society, Vijayawada v. District Legal Services Authority, Vijayawada2). However, when fraud or misrepresentation is alleged, it is for the party who approaches the Court to plead and prove the alleged fraud or misrepresentation by producing cogent and satisfactory material before the Court and a pleading as contemplated under Order VI Rule 10 C.P.C. is required. But, in the affidavit filed in support of the writ petition, except making a bald allegation, no material is produced to prove the alleged fraud as defined under Section 17 of Indian Contract Act, 1872, which reads as under:
"17. 'Fraud' - 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-
1 2010 (3) ALD 330 (DB) 22012 (4) ALD 27 (DB) 4 (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent."
Section 18 of the Indian Contract Act, 1872, defined 'misrepresentation' and it reads as under:
"18. "Misrepresentation" :- "Misrepresentation" means and includes:-
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) Any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."
7. The allegation made in the affidavit does not disclose ingredients to constitute either fraud or misrepresentation.
8. A similar question came up for consideration before a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Kothakapu Muthyam Reddy v. Bhargavi Constructions3,wherein the Division Bench, while considering the scope of Section 21 and 22-E(1) of the Act, observed that fraud must be established beyond reasonable doubt and however suspicious may be the circumstances, however 3 2015 (6) ALD 1 5 strange may be the coincidences, and however grave may be the doubt, suspicion alone can never take the place of proof.
9. If the principles laid down in the above two judgments are applied to the facts of the case on hand, it is difficult to accept the contention of the petitioner that by misrepresentation or by playing fraud on the petitioner, the Award was obtained. Hence, in the absence of any material on record to establish either fraud or misrepresentation in obtaining the Award under challenge, we are unable to accept the plea of the petitioner.
10. The writ petition is devoid of merit and is accordingly dismissed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________ C. PRAVEEN KUMAR, ACJ ________________________________ M. SATYANARAYANA MURTHY, J July 31, 2019 MRR