Calcutta High Court (Appellete Side)
Jessop & Company Limited & Anr vs Union Of India & Ors on 29 January, 2014
Author: Soumen Sen
Bench: Soumen Sen
1
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:-
The Hon'ble Mr.Justice Soumen Sen
W.P.No.33390(W) of 2013
with
C.A.N.74 of 2014
Jessop & Company Limited & Anr.
vs.
Union of India & Ors.
Mr.A.Mitra
Mr.B.N.Joshi .. for the petitioners.
Ms.Aparna Banerjee .. for the respondents.
Heard on: 29.01.2014 Judgement on: 29.01.2014.
Soumen Sen, J.:- This writ application has been filed for an order restraining the respondent authorities from making any coercive action against the writ petitioners on the basis of an order passed under section 7A of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952.
At the time of admission of the writ application, the learned counsel representing the Provident Fund authorities submitted that the writ petitioners have admitted before the said authorities that a sum of Rs.4,18,07,349/- is due and payable, which fact has been consciously suppressed by the writ petitioners. Such admission was made in a proceeding, which was initiated under section 7A of the said Act of 1952 on January 5, 2013.
The learned counsel for the writ petitioners, however, raised a preliminary objection with regard to the production of such document and in view thereof the respondent authorities were directed to file affidavit annexing such document. Thereafter, the matter was taken up for hearing.
The respondent authorities have filed an affidavit-in-opposition disclosing an order passed on November 5, 2013 in connection with the proceeding under section 7A of the said Act of 1952. It appears from the said order that one Shri Gautam Ghosh, Sr.Manager (PF) for the establishment 2 admitted before the Regional Provident Fund Commissioner that a sum of Rs.4,18,07,349/- is due and payable for the period of third quarter of 2010 to third quarter of 2012. In the said affidavit-in- opposition, in paragraph 5 reference has been made to the said order dated November 5, 2013.
This conduct clearly shows that the writ petitioners have deliberately and conveniently suppressed the said order for obvious reason as if it had admitted that the said sum is due and payable, then the question of preferring an appeal against the said order could not and does not arise.
The purported ground on which the writ petitioners attempted to stay the recovery proceedings is that the attachment proceedings have been initiated by the respondent authorities before the expiry of the period prescribed for an appeal. If the writ petitioners as it appears had admitted their liability in the said proceedings, the question of preferring an appeal against such order or questioning any proceeding initiated for recovery of the said amount could not and does not arise.
The writ court is a court of equity. The writ petitioners are required to disclose all facts and cannot selectively refer to some facts and avoid others, which goes to the very root of the matter. The writ petitioners have suppressed the material facts and there is a deliberate attempt to conceal the facts, which would have a bearing on the issue involved in this writ petition. The candid disclosure of all material facts is a pre-requisite for invoking equitable jurisdiction of this court. The effect of non-disclosure of such material facts have to be dealt with seriously and sternly and the effect of such non-disclosure has been discussed in a decision - Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and Others, reported in (2010) 4 SCC 728. The relevant portion whereof is set out hereinbelow:-
"It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other swords, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."
In one of the earliest decisions on the subject i.e. R. v. Kensington Income Tax Commr., Viscount Reading, Chief Justice of the Divisional Court observed:
(KBpp 495-96) 3 "............ Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts,..... the Court ought, for its own protection and to prevent an abuse of its process, to refused to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by mens of a misleading affidavit."
The above-extracted observations were approved by the Court of Appeal in the following words: (Kensington case KB p.504) "...... 'It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward.' ...... if an applicant does not act with unberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted ............"
His Lordship rightly pronounced: (Kensington case, KB p. 508) "The Court, for its own protection, is entitled to say:
'We refused this writ ...without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us."
Warrington, L.J. was also of the same opinion. In a concurring judgement His Lordship observed: (Kensington case KB p.509) "......It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may 4 have already obtained by means of the order which has thus wrongly been obtained by him."
This Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance - State of Haryana v. Karnal Distillery Co. Ltd., Vijay Kumar Kathuria (Dr.) v. State of Haryana, Welcome Hotel v State of A.P., G. Narayanaswamy Reddy v. Govt. of Karnataka, S.P. Chengalvaraya Naaidu v. Jagannath, Agricultural and Processed Food Products v. Oswal Agro Furane, Union of India v. Muneesh Suneja, Prestige Lights Ltd. v. SBI, Sunil Poddar v. Union Bank of India, K.D. Sharma v. SAIL, G. Jayashree v. Bhagwandas S. Patel and Dalip Singh v. State of U.P. In Hari Narain v. Badri Das this Court revoked the leave granted to the appellant by making the following observations: (AIR p.1558) "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair of betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterises as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
There cannot be any doubt that the writ petitioners have deliberately suppressed the material facts and had taken a chance, which did not materialise. The writ petitioners have deliberately suppressed the order dated January 15, 2014.
The writ court being a court of equity would not assist the litigant who has approached with unclean hands. Making false statements in court and/or mis-statements and/or suppressing the material facts may even expose a litigant to contempt since such conduct is contumacious.5
However, since I am going to impose an exemplary costs for a sum of Rs.50,000/-, I stop fall short of issuing a rule of contempt with hope that in future the writ petitioners would not take such chance in a court of law and would be more cautious. Such cost is to be paid by the writ petitioners to the Provident Fund authorities without two weeks. In the event, such cost is not paid within the aforesaid period of one week from date, it would be open for the Provident Fund authorities to realise such amount by initiating a recovery proceeding.
The writ application and the connected application are, accordingly, dismissed.
There will be, however, no order as to costs.
(SOUMEN SEN,J.)