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TMI Blog2008 (7) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... only from 10 persons. Techno-Commercial Parameters (Part-I) was opened and it was found that only one bidder, namely, M/s Ores India Pvt. Ltd. (respondent NO. 2 herein) was qualified. The process, therefore, had to be cancelled because for opening of Price Bid (Part-II), minimum three Techno-Commercially qualified offers ought to have been there as per Clause 7.7 of Purchase/Contract Procedure, 2000. Re-tender was, therefore, issued on September 8, 2000, but it was also required to be cancelled owing to 'no perceptible improvement' in the situation. The tender was floated for the third time, which was unsuccessful. The fourth notice inviting tenders was issued on January 22, 2001. It met with the same fate. Then fifth time, tenders were invited on May 7, 2001 wherein the appellant was found eligible and qualified. His bid was the lowest. The said bid was accepted and the work was entrusted to him. The decision taken by the first respondent (SAIL) came to be challenged by respondent No. 2 in the High Court of Orissa by filing a Writ Petition being OJC No. 3508 of 2002. The main allegation of the petitioner before the High Court (respondent No. 2 herein) was that first respondent (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the applications on the basis of the settlement said to have been arrived at between the parties which was duly recorded in the order wherein the present appellant was also a partyrespondent. The appellant came to know that fraud had been committed by the respondents upon him as well as upon the Court. He, therefore, filed Miscellaneous Case No. 63 of 2005 on June 28, 2005 to recall the order dated February 16, 2005 alleging inter alia that fraud has been perpetrated by the opposite party on him as well as on the Hon'ble Court. A prayer was also made to investigate the matter by Central Bureau of Investigation (CBI) or Vigilance Authorities. Since nothing was done by the High Court, he again approached this Court by filing Special Leave Petition which was registered as Special Leave Petition (Civil) No. ...... of 2006 (CC 2486 of 2006). The said petition came up for hearing before this Court and was dismissed on May 12, 2006 as "not pressed at this stage". It was observed that if the petitioner would make a prayer before the High Court for expeditious disposal of the application to recall the order, the said prayer would be considered appropriately and application would be disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial long period, application for recalling of order instituted by the appellant had not come on Board and he had to approach this Court making grievance about non-hearing of the matter, there was no progress whatsoever. It was only after the order passed by this Court and affording an opportunity to the respondent stating that if he would not appear, an appropriate order would be passed that respondent No. 2 got the matter hurriedly disposed of in the High Court. It was also the allegation of the appellant that at the time of hearing of Miscellaneous Cases, a new advocate appeared on his behalf who was not engaged by the appellant. Some blank papers on which the appellant might have singed earlier came to be utilized for the purpose of making applications for settlement showing that the appellant was agreeable to such settlement; the settlement was produced before the Court and on that basis, the matter were finally disposed of on the assumption that all the parties had compromised and amicably settled the matter and nothing was required to be done. Accordingly all the three Miscellaneous Petitions Nos. 46, 48 and 57 of 2004 were disposed of. It was submitted that in these circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rithwik Projects, it was subsequently withdrawn or revoked and that he would not represent the appellant in future before SAIL. On the contrary, though notice was issued by SAIL and received by the appellant, he did not remain present and sent a communication to SAIL that Ramesh of Rithwik Projects would represent him. It was, therefore, not open to the appellant thereafter to turn round and make wild allegations against SAIL nor is he entitled to any relief. 12. On behalf of respondent No. 2 - M/s Ores India Pvt. Ltd., the counsel contended that no case whatsoever has been made out by the appellant so as to interfere with the order passed by the High Court. According to the counsel, in fact SAIL had obliged appellant which was clear from the facts and proved from the decision in the Review Petition by the High Court. When 4th tender notice was cancelled, respondent No. 2 instituted a writ petition challenging the said action of SAIL. Meanwhile, 5th tender notice was issued and the bid of the present appellant was accepted by SAIL. The petition filed by respondent No. 2 in relation to 4th tender notice came to be dismissed. Subsequently, however, respondent No. 2 came to know t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as a nullity by every Court. 16. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry & Ors. V. Govt. of A.P. & Ors., (2007) 4 SCC 221. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: "It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order -by the first Court or by the final Court- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings". 17. The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. 18. So far as the proposition of law is concerned, there can be no two opinions. The learned counsel for the respondents also did not dispute the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o say that the appellant had suffered. The appellant wanted to continue the work even though the period of tender notice No. 5 was over and he had taken the benefit thereunder. The appellant had no right or reason to make grievance so far as tender notice No. 4 was concerned. Hence, the appellant is not entitled to any relief. 22. We find considerable force in the argument of the learned counsel. From the record, it is clear that tender notice No.4 was wrongly ignored and no process thereunder was undertaken by SAIL. What was granted to the appellant was a contract under tender notice No.5. The appellant was working under tender notice No.5. Meanwhile, the review of respondent No.2 against tender notice No.4 was allowed and after the order passed by this Court dismissing Special Leave Petitions, SAIL implemented the said order, bid of respondent No.2 was accepted and contract was given to him. To us, SAIL is right in urging that the appellant cannot insist that even under the contract under tender notice No.5, he should be allowed to continue the work. We, therefore, see no substance in the argument of the learned counsel for the appellant and the contention is rejected. 23. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement". (emphasis supplied) 26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. 27. In Kensington Income Tax Commissioner, Viscount Reading, C.J. observed: "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 sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court. 30. Let us consider some important decisions on the point: 31. In State of Haryana v. Karnal Distillery, (1977) 2 SCC 431, almost an agreed order was passed by the Court that on expiry of the licence for manufacturing of liquor on September 6, 1976, the distillery would cease to manufacture liquor under the licence issued in its favour. Then, the Company filed a petition in the High Court for renewal of licence for manufacture of liquor for 1976-77, and the Court granted stay of dispossession. In appeal, the Supreme Court set aside the order granting stay of dispossession on the ground that the petitioner-Company in filing the petition in the High Court had misled it and started the proceedings for oblique and ulterior motive. 32. In Vijay Kumar v. State of Haryana, (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis supplied) 35. In Welcom Hotel v. State of A.P., (1983) 4 SCC 575, certain hoteliers filed a petition in this Court under Article 32 of the Constitution challenging the maximum price of foodstuffs fixed by the Government contending that it was uneconomical and obtained ex parte stay order. The price, however, was fixed as per the agreement between the petitioners and the Government but the said fact was suppressed. 36. Describing the fact as material, the Court said: "Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court". 37. In Agricultural & Process Food Products v. Oswal Agro Furnae, (1996) 4 SCC 297, the petitioner filed a petition in the High Court of Punjab and Haryana which was pending. Suppressing that fact, it filed another petition in the High Court of Delhi and obtained an order in its favour. Observing that the petitioner was guilty of suppression of 'very important fact', this Court set aside the order of the High Court. 38. In State of Punjab v. Sarav Preet, (2002) 9 SCC 601, A obtained relief from the High Court on her assertion that a test in a particular subject was not conducted by the State. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the Bank that even that statement was false. Not only the petitioner- Federation was aware of the names of all the 58 officers who had been promoted to the higher post, but they had been joined as party- respondents in the writ petition filed in the Karnataka High Court, seeking stay of promotion of those respondents. It was, therefore, submitted that the petitioner had not come with clean hands and the petition should be dismissed on that ground alone. 43. 'Strongly disapproving' the explanation put forth by the petitioner and describing the tactics adopted by the Federation as 'abuse of process of court', this Court observed: "There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process.. . . Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court. The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the Officers of the Bank, is a practice which has to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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