R. P. Khosla v. Anand Mohan Mishra & Ors.

1. This is an application filed by the Petitioner seeking review and recall of the judgement dated 13.08.2020. Several grounds have been raised by the Petitioner for seeking a review and a perusal of the petition makes it evident that most of the grounds urged touch upon the merits of the allegations of perjury levelled by the Petitioner with respect to the alleged false statements made in counter affidavit on 24.02.2010 filed in CCP(Co.) No. 1/2009. The prayers made in the review petition are as follows: “1. Review and recall the judgment dated 13-8-2020.

2. Consequently, pass orders, committing the prospective accused to criminal trial for having committed the heinous 2021:DHC:1522 offence of perjury in relation to the proceedings before the Hon’ble High Court of Delhi. In the alternative to prayer (2) above:

3. Deeming it expedient to direct for conducting of criminal enquiry, direct the Ld. Registrar (Vigilance) of this Hon’ble Court to conduct a Preliminary Enquiry on the lines previously directed by this Hon’ble Court vide order dated 15- 02-2010 passed in Cr. Misc. (Co.) No. 3 of 2008, and furnish his report within 4 weeks, or within such other reasonable time this Hon’ble Court may deem fit.

4. Pass ex parte orders, as prayed for above.”

2. As a brief background, Crl.M.(Co.) 4/2019 was filed by the Petitioner under Section 340 Cr.P.C seeking prosecution of the Respondents for allegedly committing perjury in relation to the proceedings before this Court by making false and contradictory averments in the counter affidavit dated 24.02.2010. While arguing the petition, Mr. Khosla learned counsel for the Petitioner had painstakingly argued that the contents of the affidavit filed by the Respondents are replete with false statements and reliance is placed on forged and fabricated documents. Gist of the alleged contradictions/false statements, referred to and relied upon by Mr. Khosla, are extracted in para19 of the judgement dated 13.08.2020.

3. The petition was disposed of by this Court without entering into the merits of the controversy of alleged perjury, vide judgement dated 13.08.2020. The reason that persuaded this Court to refrain from entertaining the petition on merits was a consent order passed by the Supreme Court in SLP(Crl.) 6873/2010 with SLP(C) 23796-23798/2010 and Contempt Pet. (Crl.) 4/2013 on 08.05.2014, the relevant para of which was extracted in the judgement and is extracted hereunder for ready reference: “21. In fact, though the learned Senior Counsel for the parties had argued the matters before us at length on the previous occasions, at the stage of conclusions of the arguments, the learned Senior Counsel Mr. Cama appearing for Khosla Group suggested for an early decision of the Company Petition before the CLB as a better alternative so that at least main dispute between the parties is adjudicated upon at an early date. He was candid in his submission that the issues which are subject matter of these two Special Leave Petitions and arise out of the proceedings in the High Court, have their origin in the orders dated 31.1.2008, which is an interim order passed by the CLB. He thus, pointed out that once the Company Petition itself is decided, the issues involved therein namely whether Board meeting dated 14.12.2007 was illegal or whether Board meeting dated 30.9.2006 was barred in law would also get decided. In the process the CLB would also be in a position to decide as to whether minutes of AGM of the Company allegedly held on 30.9.2006 are forged or not and on that basis application under Section 340 Cr. PC which is filed before the Company Law Boared would also be taken care of by the CLB itself. Learned Senior Counsels appearing for the Bakshi Group immediately agreed with the aforesaid course of action suggested by Mr. Cama. We are happy that at least there is an agreement between both the parties on the procedural course of action, to give quietus to the matters before us as well. In view of the aforesaid consensus, about the course of action to be adopted in deciding the disputes between the parties, we direct the Company Law Board to decide Company Petition No. 114 of 2007 filed before it by Ms. Sonia Khosla within a period of six months from the date of receiving a copy of this order. Since, it is the CLB which will be deciding the application under Section 340 Cr. PC filed by Ms. Sonia Khosla in the CLB, High Court need not proceed further with the Criminal Misc.(Co.). No.3 of

2008. Likewise the question whether Mr. R.K. Garg was validly inducted as a Director or not would be gone into by the CLB, the proceedings in Co. Appeal No. (SB) 23 of 2009 filed by Mr. R.K. Garg in the High Court, also become otiose.” (emphasis added)

4. In view of the directions of the Supreme Court, this Court had disposed of the present petition with the following observations: “22. The only aspect on which some directions need to be given are, as to what should be the interim arrangement. The Bakshi Group wants orders dated 31.1.2008 passed by CLB to continue the interregnum. The Khosla Group on the other hand refers to orders dated 11.4.2008 as it is their submission that this was a consent order passed by the High Court after the orders of the CLB and, therefore, this order should govern the field in the meantime.

23. After considering the matter, we are of the opinion that it is not necessary to either enforce orders dated 31.1.2008 passed by the CLB or orders dated 11.4.2008 passed by the High Court. Fact remains that there has been a complete deadlock, as far as affairs of the Company are concerned. The project has not taken off. It is almost dead at present. Unless the parties re-concile, there is no chance for a joint venture i.e. to develop the resort, as per the MOU dated 21.12.2005. It is only after the decision of CLB, whereby the respective rights of the parties are crystallised, it would be possible to know about the future of this project. Even the Company in question is also defunct at present as it has no other business activity or venture. In a situation like this, we are of the opinion that more appropriate orders would be to direct the parties to maintain status quo in the meantime, during the pendency of the aforesaid company petition before the CLB. However, we make it clear that if any exigency arises necessitating some interim orders, it would be open to the parties to approach the CLB for appropriate directions.

24. Both these petitions are disposed of in the aforesaid terms. All other pending LAs including criminal contempt petitions and petitions filed under Section 340 Cr. PC are also disposed of as in the facts of this case, we are not inclined to entertain such application. No costs.”

5. Mr. Khosla eloquently articulated that this Court had declined to entertain the petition premised on the fact that Co. Pet. 114/2007 was pending before the NCLT and in view of the directions of the Supreme Court, it was appropriate if the issue involved in the present petition was also taken by the Petitioner before the NCLT. However, the Co. Pet. 114/2007 itself stands withdrawn on 07.02.2020 and therefore, the judgement be recalled and reviewed and the present petition be decided by this Court.

6. It was further urged that even otherwise, the present petition pertains to false statements made in an affidavit filed before this Court and thus, the same be heard on merits by this Court, without relegating the Petitioner to NCLT and orders be passed committing the prospective accused to criminal trial for having committed the heinous offence of perjury in relation to the proceedings before this Court. In the alternative, direction be issued to learned Registrar (Vigilance) to conduct Preliminary Enquiry on the lines previously directed by this Court, vide order dated 15.02.2010 passed in Cr. Misc. (Co.) No. 3 of 2008 and furnish her report within 4 weeks, or within reasonable time.

7. Mr. Jay Savla, learned Senior Advocate for the Respondents had opposed the present petition, albeit Mr. Khosla vehemently opposed his addressing the Court, on the ground that the Respondents at that stage had no locus to appear in the matter. Besides rebutting the contention of Mr. Khosla on the merits of the allegations of perjury, Mr. Savla objected to the maintainability of the review petition and contended that there is no power of review under the Code of Criminal Procedure, 1973 and relied on a judgement of the Supreme Court in the case of Sanjeev Kapoor vs. Chandana Kapoor in Criminal Appeal No. 286/2020 decided on 19.02.2020. It was also argued that the judgment passed by this Court declining to entertain the petition at this stage giving liberty to the Petitioner to approach the NCLT, is in line with the directions of the Supreme Court in the judgement dated 08.05.2014, whereby, the Supreme Court, on a consensus between the parties, chartered a course of action for deciding the disputes between the parties.

8. I have heard Mr. Khosla and Mr. Jay Savla and examined their respective contentions.

9. There cannot be any debate on the proposition raised by Mr. Savla that a review petition does not lie under the Code of Criminal Procedure, 1973, except for clerical and arithmetical errors. However, after much cogitation, I am of the view that the judgement deserves to be recalled for the reason set out hereinafter.