advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, February 7, 2016

whether the High Court was correct in imposing costs of Rs. 10 lakhs on the petitioner for filing a false or misleading affidavit in this Court.=After the Report was filed in the High Court, Sciemed also realized that it had in fact misled this Court. Nevertheless, Sciemed tried to justify the false or misleading affidavit filed in this Court. After giving the justification, Sciemed tendered an unconditional and unqualified apology through Shailendra Prasad Singh, proprietor of Sciemed. There was no need for the proprietor to have tendered an unconditional and unqualified apology unless there was an admission that the statement made before this Court was false or misleading. It would have been a different matter if Sciemed had tendered an unconditional and unqualified apology without tendering a justification.=In the case of Suo Moto Proceedings Against R. Karuppan, Advocate[2] this Court had observed that the sanctity of affidavits filed by parties has to be preserved and protected and at the same time the filing of irresponsible statements without any regard to accuracy has to be discouraged. It was observed by this Court as follows: “Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.” - Similarly, in Muthu Karuppan v. Parithi Ilamvazhuthi[3] this Court expressed the view that the filing of a false affidavit should be effectively curbed with a strong hand. It is true that the observation was made in the context of contempt of Court proceedings, but the view expressed must be generally endorsed to preserve the purity of judicial proceedings. This is what was said: “Giving false evidence by filing false affidavit is an evil which must be effectively curbed with a strong hand. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent, but there must be a prima facie case of “deliberate falsehood” on a matter of substance and the court should be satisfied that there is a reasonable foundation for the charge.” = On the material before us and the material considered by the High Court, we are satisfied that the imposition of costs by the High Court was justified. We find no reason to interfere with the impugned judgment and order. The petition is dismissed.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

         PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO. 29125 OF 2008



M/s Sciemed Overseas Inc.                                      ….Petitioner

                                   Versus

BOC India Limited & Ors.
…Respondents



                               J U D G M E N T

Madan B. Lokur, J.

1.    The only question for our consideration is whether the High Court  was
correct in imposing costs of Rs. 10 lakhs on the  petitioner  for  filing  a
false or misleading affidavit in this Court. In our opinion, the  imposition
of costs, although somewhat steep, was fully justified given that  the  High
Court also held that the contract in favour of the  petitioner  was  awarded
improperly and was of a commercial nature, the last two findings  not  being
under challenge.
2.    A global  search  of  cases  pertaining  to  the  filing  of  a  false
affidavit indicates that the number of such  cases  that  are  reported  has
shown an alarming increase in the last fifteen  years  as  compared  to  the
number of such cases prior to that. This ' is illustrative  of  the  malaise
that is slowly but  surely  creeping  in.   This  ‘trend’  is  certainly  an
unhealthy one that should be strongly discouraged, well  before  the  filing
of false affidavits gets to be treated as a routine and normal affair.
3.    The petitioner is  aggrieved  by  a  judgment  and  order  dated  22nd
September, 2008 passed by the Division Bench of the High Court of  Jharkhand
in L.P.A. No. 212 of 2008 only to the extent of imposition of costs.[1]   In
our opinion, there is no merit in  this  petition  and  it  deserves  to  be
dismissed.
4.    The Rajendra Institute of Medical Sciences, Ranchi,  (for  short  “the
RIMS”) issued a notice inviting tender on 10th February, 2007.   The  tender
was for installation and supply of a complete system of  Centralized  Liquid
Medical Oxygen with medical  gas  pipe  line  for  Oxygen,  Carbon  Dioxide,
Nitrous Oxide and compressed air, etc.  The work was to  be  executed  on  a
turnkey basis within 150 days in the 1000 bedded departments  and  wards  of
the RIMS.
5.    Responses  to  the  notice  inviting  tender  were  submitted  by  the
petitioner (Sciemed  Overseas)  and  respondent  No.1  (BOC  India).   Their
tenders were processed by the RIMS and a memorandum dated  25th  June,  2007
was issued by its Director informing Sciemed and BOC  regarding  opening  of
the price bid of commercially and technically successful bidders.
6.    According to BOC,  the  conditions  of  the  technical  bid  were  not
fulfilled by Sciemed and, therefore, there was no reason to  invite  it  for
opening the price bid.  A representation was made in this regard by  BOC  to
the RIMS but that was not considered and, therefore, BOC filed  W.P.(C)  No.
4203 of 2007 in the High Court of Jharkhand  in  respect  of  its  grievance
against  Sciemed and the RIMS.
7.    The High Court considered the writ petition filed by  BOC  and  by  an
order dated 31st July,  2007  the  writ  petition  was  disposed  of  giving
liberty to BOC  to  file  another  representation  in  continuation  of  its
earlier  representation  to  the  RIMS.  It  was  directed  that  both   the
representations should be considered by the Director  of  the  RIMS  and  an
appropriate reasoned order be passed thereon.
8.    It is important to note that when  the  aforesaid  writ  petition  was
disposed of on 31st July, 2007 no intimation was given to the High Court  by
the RIMS or by Sciemed to the effect that about a week earlier, that is,  on
25th July, 2007 a work order had already been issued to Sciemed  in  respect
of the notice inviting tender.
9.    This fact was first brought to the notice of BOC when the Director  of
the RIMS in his letter dated 8th September, 2007 informed BOC,  in  response
to the representations, that the work  order  had  already  been  issued  to
Sciemed on 25th July, 2007.
10.   Under these circumstances, BOC preferred yet  another  petition  being
W.P. (C) No. 4830 of 2007 challenging the issuance  of  the  work  order  in
favour of Sciemed.
11.   By an order dated 10th September, 2007 the High  Court  dismissed  the
second writ petition filed by BOC holding  that  the  question  whether  the
work order had or had not been issued to Sciemed was  a  question  of  fact.
That apart, BOC had also raised several other questions of fact.   The  High
Court was of the opinion that since the factual controversies could  not  be
adjudicated upon in its writ jurisdiction, there was no reason to  entertain
the writ petition and it was, accordingly, dismissed.
12.   Feeling aggrieved, BOC preferred L.P.A. No.  319  of  2007  which  was
heard and dismissed by a Division Bench of the High Court on  10th  October,
2007 thereby upholding the view taken by the learned Single Judge  that  the
second writ petition filed by BOC raised disputed questions of fact.
13.   Feeling dissatisfied with the order passed by the Division Bench,  BOC
preferred a petition for Special Leave to Appeal  to  this  Court  in  which
leave was granted on 14th March, 2008.  This Court disposed  of  the  appeal
being Civil Appeal No.2028 of 2008 on that day itself holding that there  is
hardly any disputed question of fact.  On the contrary,  the  facts  of  the
case were evident from the documents already on  record  and  oral  evidence
was required to be led.  Accordingly, this Court was of the  view  that  the
matter ought to be heard on merits by the  High  Court  and  an  appropriate
direction was given in this regard.
14.   During the pendency of the Civil Appeal, an  affidavit  was  filed  on
20th February, 2008 by Sciemed  through  its  proprietor  Shailendra  Prasad
Singh in which it was stated as follows:-
“It is submitted that the NIT, after having been relaxed and  technical  and
financial bids having been opened, the respondent No.5 was declared  as  the
lowest bidder by a margin of Rs.1.12 crores as compared  to  the  petitioner
and the work order has already been acted upon and  the  project  is  almost
near completion and 85%  of the amount has  already  been  released  to  the
answering respondent, rendering the present SLP, in  any  case,  infructuous
and liable to be rejected.”

15.   It is this passage in  the  affidavit  that  has  given  rise  to  the
controversy before us.
16.   Pursuant to the order passed by this Court, the  writ  petition  filed
by BOC was taken up for consideration by a learned Single Judge of the  High
Court.  By  an  order  dated  14th  May,  2008,  the  learned  Single  Judge
dismissed the writ petition.  While disposing of the writ petition,  it  was
held that though the decision making process by which Sciemed  was  declared
to be qualified was improper, it could not be held that the RIMS  had  acted
in an arbitrary, mala fide or  discriminatory  manner.  The  learned  Single
Judge noted that Sciemed had stated before this  Court  that  the  work  was
almost complete. The High Court observed that  since  the  work  awarded  to
Sciemed had progressed to a considerable  extent  and  a  major  portion  of
money had been advanced or paid to Sciemed,  therefore  if  the  work  order
were to be set aside it would involve dismantling and uprooting  the  system
that had so far been fixed which  would  not  be  in  the  interest  of  the
patients or the exchequer. Accordingly, the learned  Single  Judge  declined
to interfere with the award of the contract to Sciemed but left it  open  to
BOC to file a suit for damages against Sciemed.
17.   Feeling aggrieved, Sciemed preferred a Letters  Patent  Appeal  before
the Division Bench of the High Court which  came  to  be  dismissed  by  the
impugned judgment and order dated 22nd September,  2008.   While  doing  so,
the Division Bench of the High Court noted that the reason why  the  learned
Single Judge did not interfere with the award of  the  contract  to  Sciemed
was because of its statement made before this Court on  affidavit  that  the
work was almost near completion.   It was also noted  that  cancellation  of
the award of contract at his stage would entail a heavy  administrative  and
financial  burden  on  the  Government  and  lead  to  increase  and  double
expenditure to the tune of crores of rupees.
18.   However, the High Court, on the submission of learned counsel for  BOC
decided to verify whether  the  installation  and  supply  of  the  complete
system as per the notice of tender was near completion as stated by  Sciemed
in its affidavit filed in this Court.  For  this  purpose,  the  High  Court
appointed a respected advocate of that  Court  as  a  one-man  committee  to
visit the work site and submit a report with regard to the  extent  of  work
completed or at the stage of completion.
19.   The learned advocate so appointed by  the  High  Court  submitted  his
Report on 3rd July, 2008.  It was stated in the Report, which  was  accepted
by the High Court, that the  originating  point/inlet  of  the  main  Liquid
Oxygen Gas Tank of the required specification had not  yet  been  installed.
It was also found  that  a  separate  3-Phase  Electric  Supply  System  for
commissioning the project had not yet been installed.  In view of these  two
major deficiencies, the commissioning  of  the  complete  system  was  being
delayed.  Additionally, it was  noted  that  the  Oxygen  Gas  Tank  was  in
transit from Bangalore at that time.
20.   On a consideration of the Report, the High Court took  the  view  that
Sciemed had given a false affidavit in this Court to  the  effect  that  the
work was near completion.  In this  view  of  the  matter,  the  High  Court
dismissed the appeal filed by Sciemed and imposed costs of Rs. 10  lakhs  to
be deposited with the Jharkhand State Legal Services Authority.
21.   At this stage, it is important to mention  that  Sciemed  through  its
proprietor Shailendra Prasad Singh son of Rameshwar Prasad Singh, had  filed
an affidavit on or about 10th July, 2008 in the High Court in which  it  was
explained that the statement made in this Court  on  affidavit  was  because
the deponent was of the view that the installation of  the  complete  system
of gas pipeline is one part of the award and installation of  liquid  oxygen
tank is a separate work.   It was stated that the affidavit  filed  in  this
Court was due to some misconception and was not with a view to mislead  this
Court. In other words, the deponent sought to justify his affidavit in  this
Court notwithstanding the Report of  the  learned  advocate.   The  deponent
after  giving  the  above  explanation,  tendered   an   unconditional   and
unqualified apology to the High Court for the statement regarding  the  near
completion of the project.
22.   The High Court did not accept the apology given by the  proprietor  of
Sciemed and, therefore, imposed costs of Rs.10 lakhs on Sciemed.
23.   While impugning the order passed by the High Court, it  was  submitted
by the learned counsel for Sciemed that in fact the statement  made  in  the
affidavit filed in this Court was not a false statement but  was  bona  fide
and not a deliberate attempt to mislead this Court.  It was  also  submitted
that the allegedly false or  misleading  statement  had  no  impact  on  the
decision taken by this Court and should, therefore, be ignored.
24.   We are unable to accept either contention raised by learned counsel.
25.   The correctness  of  the  statement  made  by  Sciemed   was  examined
threadbare not only by the learned Single Judge but  also  by  the  Division
Bench and it was found that a considerable amount of work had  still  to  be
completed by Sciemed and it was not as if the work  was  nearing  completion
as represented to this Court. Additionally, the Report  independently  given
by the learned advocate  appointed  to  make  an  assessment,  also  clearly
indicated that a considerable amount of work had still to  be  performed  by
Sciemed.  The Report was not ex parte but was carefully  prepared  after  an
inspection of the site and discussing  the  matter  with  Shailendra  Prasad
Singh the proprietor of Sciemed and  an  engineer  of  Sciemed  as  well  as
officers from the RIMS.
26.   The  conclusion  drawn  by  the  learned  advocate  after  a  thorough
inspection and discussion of the issues is as follows:-
“From a detailed inspection of  the  entire  Liquid  Oxygen  Gas  System  as
required to be installed under the tender conditions land the work Order,  I
was able to gather that at  the  originating  point/inlet  the  main  Liquid
Oxygen Gas Tank of the required specification has not  yet  been  installed.
I  also  found  that  a  separate  3-Phase  Electric   Supply   System   for
commissioning of the project has not yet been installed  and  is  reportedly
in the process.  I was informed by the  hospital  authorities  that  the  3-
Phase electricity connection is to be supplied by the  hospital  authorities
and are not required under the tender conditions or work order  to  be  done
on the part of the Contractor i.e. M/s Sciemed Overseas Inc.   On  the  part
of the Contractor i.e. respondent no.5 I was repeatedly  informed  that  the
delay in the execution of the work has occasioned primarily due to  repeated
thefts of the costly Copper pipes, whitewashing and distemper work  underway
in  the  RIMS  and  also  the  operational  and  practical  difficulties  in
installation in the ICU’s, OT’s, Labour Rooms in the Gynae Department  which
had to  be  vacated  by  the  hospital  authorities  completely  after  much
persuasion, before any installation could be carried out.

It appears that on account of delay  in  installation  of  the  Main  Liquid
Oxygen Tank and the 3 Phase electrical connection, the commissioning of  the
complete system of Liquid Medical Oxygen  Gas  together  with  other  gases.
Vacuum and Air are  being  delayed.   The  entire  outlet  system  upto  the
individual outlets have been put in place as already stated above.   I  also
noticed that at the point of the final outlets at  the  end  of  the  Branch
pipeline at the Bed heads wherever they are specified  by  the  Work  Order,
the double  lockout  with  parking  facility  has  been  installed  but  the
electrical switches for which space is left in the panel has  not  yet  been
fixed.”

27.   After the Report was filed in the High Court,  Sciemed  also  realized
that it had in fact misled  this  Court.   Nevertheless,  Sciemed  tried  to
justify the false or  misleading  affidavit  filed  in  this  Court.   After
giving the justification, Sciemed tendered an unconditional and  unqualified
apology through Shailendra Prasad Singh, proprietor of Sciemed.   There  was
no  need  for  the  proprietor  to  have  tendered  an   unconditional   and
unqualified apology unless there was an admission that  the  statement  made
before this Court was false or misleading.  It would have been  a  different
matter if Sciemed had tendered  an  unconditional  and  unqualified  apology
without tendering a justification.
28.   As far as  the  alternative  submission  of  the  learned  counsel  is
concerned, we  are  not  in  a  position  to  accept  this  submission  also
particularly if the entire matter is looked at in a broad conspectus.
29.   In the first instance, the work order was issued to  Sciemed  on  25th
July, 2007 but this was not disclosed to the High Court when it disposed  of
W.P.(C) No.4203 of 2007 on 31st July, 2007.  Had the factual  position  been
disclosed to the High Court, perhaps the outcome of the writ petition  filed
by BOC would  have  been  different  and  the  issue  might  not  have  even
travelled up to this Court.  Furthermore, apparently  to  ensure  that  work
order goes through, a false or misleading statement  was  made  before  this
Court on affidavit when the matter was taken up on 14th March, 2008  to  the
effect that the work was nearing completion.  It is not possible  to  accept
the  view  canvassed  by  learned  counsel  that  the  false  or  misleading
statement had no impact on the decision  rendered  by  this  Court  on  14th
March, 2008.  We cannot hypothesize on what transpired  in  the  proceedings
before this Court nor can we imagine what could or could  not  have  weighed
with this Court when it rendered its decision  on  14th  March,  2008.   The
fact of the matter is that a false or misleading statement was  made  before
this Court and that by itself is enough to invite an adverse reaction.
30.   In the case of Suo Moto Proceedings Against R.  Karuppan,  Advocate[2]
this Court had observed that the sanctity of  affidavits  filed  by  parties
has to be preserved and protected  and  at  the  same  time  the  filing  of
irresponsible  statements  without  any  regard  to  accuracy  has   to   be
discouraged.   It was observed by this Court as follows:
“Courts are entrusted with the powers of dispensation  and  adjudication  of
justice of the rival claims of the parties besides determining the  criminal
liability of the offenders for offences committed against the society.   The
courts are further expected to do justice quickly and impartially not  being
biased by any extraneous considerations.  Justice dispensation system  would
be wrecked if statutory restrictions are not  imposed  upon  the  litigants,
who attempt to mislead the court by filing and relying upon  false  evidence
particularly in cases, the adjudication  of  which  is  dependent  upon  the
statement of facts.  If the result of the proceedings are to  be  respected,
these issues before the courts must be resolved to the  extent  possible  in
accordance with the truth.  The purity of proceedings of  the  court  cannot
be  permitted  to  be  sullied  by  a  party  on  frivolous,  vexatious   or
insufficient grounds or relying upon false evidence inspired  by  extraneous
considerations or  revengeful  desire  to  harass  or  spite  his  opponent.
Sanctity of the affidavits has to be preserved  and  protected  discouraging
the filing of irresponsible statements, without any regard to accuracy.”

31.   Similarly, in Muthu Karuppan v.  Parithi  Ilamvazhuthi[3]  this  Court
expressed  the  view  that  the  filing  of  a  false  affidavit  should  be
effectively curbed with a strong hand. It is true that the  observation  was
made in  the  context  of  contempt  of  Court  proceedings,  but  the  view
expressed must be generally endorsed to  preserve  the  purity  of  judicial
proceedings. This is what was said:
“Giving false evidence by filing false affidavit is an evil  which  must  be
effectively curbed with a strong hand. Prosecution should  be  ordered  when
it is considered  expedient  in  the  interest  of  justice  to  punish  the
delinquent, but there must be a prima facie case of  “deliberate  falsehood”
on a matter of substance and the court should be satisfied that there  is  a
reasonable foundation for the charge.”

32.   On the material before us and the  material  considered  by  the  High
Court, we are satisfied that the imposition of costs by the High  Court  was
justified. We find no reason to interfere with  the  impugned  judgment  and
order. The petition is dismissed.
33.   However, we grant six weeks to the petitioner to make the  deposit  of
costs as directed by the  High  Court  with  the  Jharkhand  Legal  Services
Authority (JHALSA). On the deposit being made,  the  JHALSA  should  forward
the amount to BOC India. The matter should  be  listed  in  the  High  Court
after eight weeks for compliance.

                                                             .....…………………….J
                                                                      (Madan
                                  B. Lokur)



                                                      .....…………………….J
                                                                       (R.K.
Agrawal)

New Delhi;
January 11, 2016
-----------------------
[1]

      [2] BOC India Limited v. State of Jharkhand, MANU/JH/0938/2008
[3]
      [4] (2001) 5 SCC 289
[5]
      [6] (2011) 5 SCC 496


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.