M/S BHATIA PROPCON PVT LTD v. ASHOK MEHTA

Delhi High Court · 04 Apr 2018 · 2018:DHC:2163

Yogesh Khanna

CS(COMM) No.928/2016

2018:DHC:2163

civil other Significant

AI Summary

The court issued a show cause notice under Section 340 Cr.P.C. for false averments under Section 209 IPC made by the defendant in pleadings denying an admitted Agreement to Sell and payment, emphasizing the need to deter false claims to preserve judicial sanctity.

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CS(COMM) No.928/2016 HIGH COURT OF DELHI

Reserved on: 14th March, 2018 Pronounced on: 04th April, 2018

CS(COMM) 928/2016
M/S BHATIA PROPCON PVT LTD..... Plaintiff
Through : Ms.Rachna Agrawal, Advocate.

VERSUS

ASHOK MEHTA..... Defendant
Through : Mr.Atul Bandhu, Advocate with defendant in person.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.

CRL.M.A. 6100/2016

JUDGMENT

1. This application is moved by the plaintiff under Section 340 Cr.P.C. read with Section 209 of Indian Penal Code. The plaintiff has filed the suit for specific performance of Agreement to Sell dated 03.09.2012 in respect of defendant's half share in property bearing No.Z- 26, Hauz Khas Enclave, New Delhi, ad-measuring 250 sq.yds. with proportionate rights in the land underneath, with possession of the ground floor and two rooms on the barsati floor alongwith other common portions. 2018:DHC:2163

2. The defendant had filed his written statement on 21.10.2014, allegedly making the false claims therein. It is alleged that in order to defeat / delay the grant of decree in favour of the plaintiff, the defendant willfully, knowingly and deliberately made various false statements in his written statement which is reproduced hereunder: “ Para 2 of P.O. of Written Statement: xxxx… there has been no privity of contract between the Parties xxxx. Para 4 of Reply on Merits of Written Statement: xxxx… That even if it is be assumed, though not admitted that the defendant entered into the alleged Agreement to Sell dated 3.9.2012….xxxx. Para 5 of Reply on Merits of Written Statement: xxxx… It is vehemently denied that the plaintiff paid any amount of Rs.23,00,000.00 by cheque on 03.09.2012 or on any other date as alleged. However, after the defendant received the notice dated 24.01.2013, he made enquiries from his Bank, and was shocked to find an unauthorized deposit of Rs.23.00 lacs therein, which the defendant could connect to the aforesaid fraudulent act of the plaintiff…xxxx. Para 13 of Reply on Merits of Written Statement: xxxx…. The defendant never engaged the services of any Advocate for sending the alleged reply dated 28.02.2013. It is specifically denied that the defendants engaged Ms. Shobana Takiar, Advocate for sending alleged reply dated 28.02.2013…..xxxxx”

3. It is argued by the learned counsel for the plaintiff that before filing the present suit for specific performance the plaintiff had served a legal notice on 24.01.2013 upon the defendant. The said notice was replied by defendant through his Advocate Ms.Shobhana Takiar vide reply dated 28.02.2013. In the said reply it was, inter alia, alleged by the defendant: “2.[1] xxx….Our client also had shown all the original documents to your client before entering into agreement to sell. Your client on being satisfied entered into such agreement to sell dated 03.09.2012….xxx 2.[3] xxxx....It is submitted that on 03.09.2012 your client handed over a cheque no.000089 dated 03.09.2012 drawn on Bank of Baroda, Vasant Vihar, New Delhi for a sum of Rs.23 lacs. The said cheque was realized after 3 days by the Bank of your client...xxxxx”

4. The defendant had even sent an Email dated 17.11.2012 along with modified sale deed dated 15.01.2013 in response to the plaintiff’s emails dated 17.11.2012 and 02.01.2013 which are also falsely denied by the defendant.

5. Thus before filing of the suit the defendant stand was he had signed the Agreement to Sell and had received a part sale consideration but since there was no readiness and willingness on part of the plaintiff the agreement failed but however the defendant in his written statement has taken a U-turn and has denied even the Agreement to Sell and the receipt of part consideration and rather had feigned ignorance how a sum of 23,00,000/- came to be deposited in his personal account.

6. Hence it is argued in order to preserve and safeguard the sanctity of the courts it is expedient and necessary the provisions of Section 209 of IPC are invoked in the present case and to make a complaint under Section 340 Cr.P.C. against the defendant to punish the defendant in accordance with law

7. The defendant in his reply to an application under Section 340 Cr.P.C. has stated the facts alleged in the application are false and since no offence is committed in relation to the proceedings in the Court or the documents produced or given in evidence the application is not maintainable though has not admitted or denied the allegations made in the application.

8. The main contention raised by the defendant is since an offence under Section 195(1)(b) is not committed in relation to documents produced or given in evidence hence this application is not maintainable However in H.S.Bedi vs. National Highway Authority of India 227(2016) DLT 129 it was noted:

“14. Conclusions Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken. 14.1 Making a false averment in the pleading pollutes the stream of justice. It is

an attempt at inviting the Court into passing a wrong judgment and that is why it has been be treated as an offence. 14.[2] False evidence in the vast majority of cases springs out of false pleading, and would entirely banish from the Courts if false pleading could be prevented. 14.[3] Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens. 14.[4] The justice delivery system has to be pure and should be such that the person who are approaching the Courts must be afraid of making false claims. 14.[5] To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. 14.[6] Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the litigant to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of the Indian Penal Code and a reasonable opportunity be afforded to the litigant to reply to the same. The Court may record the evidence, if considered it necessary. 14.[7] If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can direct the State agency to investigate and file a report along with such other evidence that they are able to gather. 14.[8] Before making a complaint under Section 340 Cr.P.C., the Court shall consider whether it is expedient in the interest of justice to make a complaint. 14.[9] Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 Cr.P.C.

15. This Court hopes that the Courts below shall invoke Section 209 of the Indian Penal Code in appropriate cases to prevent the abuse of process of law, secure the ends of justice, keep the path of justice clear of obstructions and give effect to the principles laid down by the Supreme Court in T. Arivandandam v. T.V. Satyapal (supra), S.P. Chengalvaraya Naida v. Jagannath (supra), Dalip Singh v. State of U.P.(supra), Ramrameshwari Devi v. Nirmala Devi (supra), Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy Sahara v. Union of India (supra).”

9. Hence in the circumstances as the pleadings are wholly contradictory to stand taken by the defendant in reply to legal notice and prima facie it amounts to making false averments in pleadings. Thus, a show cause notice is hereby issued to the defendant as to why a complaint be not made under Section 340 Cr P C for having made a false averment in the written statement, under Section 209 of the IPC and the defendant is directed to reply within 6 weeks from today.

10. List on 30.05.2018.

YOGESH KHANNA, J APRIL 04, 2018 DU

M/S BHATIA PROPCON PVT LTD v. ASHOK MEHTA

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