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TMI Blog2025 (3) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise the present petition raises disputed question of facts thus a Writ Court not the appropriate remedy, especially given the fact that the Companies Act is a self-contained Code and in relation to matters therein, there is a specific bar from other Courts entertaining pleas which are the subject matter of the said Act. However, in the present scenario this Court deems it fit to go into other issues as well and does not incline to reject the present petition on the ground of maintainability alone. Whether or not the present petitioners are guilty of suppression of material facts and continuance of the present petition would tantamount to an abuse of process of law? - HELD THAT:- This Court cannot ignore the fact the Petitioners might be in cahoots with other setup unscrupulous persons who have earlier agitated the self-same issue guised as "public interest petitions". Although a party is never precluded from raising genuine claims in collusion with others are indulging in blatant forum-shopping and are taking recourse to multiple parallel proceedings for the same subject matter. It is well-settled that re-litigation of the same matter itself amounts to an abuse of the process o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er could have and ought to have relied upon the grounds with relation to the applications made to the registrar of companies (between 2013 to 2015) at the time of filing of that Writ Petition. After having not being done it would be impermissible to allow the same petitioners to urge the said facts which were otherwise had occurred at that point in time when that prior Writ Petition had been filed. That being the case, the instant case is squarely covered by the discussion here in above. The subsequent/ successive petition i.e. the present petition would be barred by the principles of constructive res judicata by applying the "Hendersen principle". Conclusion - This Court arrives at a clear and unequivocal conclusion that the present Writ Petition is not only liable to be dismissed at the very threshold on account of the principles discussed and issues framed hereinabove. But also, on account of the fact that the Petitioners have approached this court with unclean hands and the conduct of the petitioners herein leaves much to be desired. This Court can only express hope that the petitioners will be well advised not to indulge in such unbecoming practice of abusing the process of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company had never transferred or alienated his share/ shares in favour of any one at any given point of time. c) It is further stated that vide Special Resolution in the General Body meeting held on 03.04.1959, the Ex-Ruler of Bonai had granted lease for operation of certain iron and manganese ore mines. The mining operations were being undertaken by the Company. At the time of death of Late Kumar Harishchandra which took place on 8.05.1970 the predecessor in interest of the Opp. Parties herein one Sita Ram Rungta had already entered his name in all the officials records and documents as the Director of the Company in substitution of Kumar Harishchandra although he had never transferred or alienated his 500 shares which was held in the Company. Thus, it is stated that inclusion of the name of Opposite Parties No. 9-15 as the Directors of share holders of the Company is wholly illegal, void, inoperative and based on false representation. It has been further stated by the petitioners that taking advantage of the difficulties of Late Harishchandra Deo an illegal fraudulent board resolution carrying the date 17.03.1970 was apparently filed before the mining authorities which l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the event no reply was provided by the company. However the ROC vide letter number ROC/ RBI/ 2014/ 1629 dated 15.01.2014 rejected the same. Thereafter, the applicant filed appeal against the rejection order and was allowed by the first appellate authority vide order dated 25.08.2014 directing the CPIO to decide the matter afresh keeping in view the provisions relating to third party information and other applicable provisions. The CPIO office, thereafter, issued a letter bearing number ROC/RBI/ 2014/ 3017 dated 15.01.2014 stating to the applicant that the office of the ROC has sought the information from the company vide its letter dated 25.08.2014 to which the company declined to furnish any information. i) Similar RTI applications were filed by another member of the same family one Pushpashree Devi with the office of the ROC, Cuttack on 11.06.2014 relating to the same transfer of shareholding of Late Harishchandra Deo. The CPIO rejected the application vide letter number ROC/ RTI/ 1025 dated 26.06.2014 following which the first appellate authority allowed the appeal and directed the CPIO to provide available information and dispose of the matter without any further delay vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only be raised before the appropriate authority under the Companies Act, 2013. It is also contended that the family members of Late Harishchandra Deo had the knowledge about the fraud only after the appointment of the Shah Commission in the year 2009. Further, after that they have approached several statutory authorities to uncover the fraud. They have relied on various letters i.e. 13/14.8.2013 written to the Registrar of Companies; letter dated 15.12.2014 to the Registrar of Companies; 8.10.2012 to the Opp. Party No. 8 Company; letter dated 26.02.2010 to the Deputy Director of Mines and all of them seeking various clarifications and information with regard to the change of ownership of the Company. It was also submitted that the Petitioners uncovered the fraud committed upon Late Harishchandra Deo vide resolution dated 17.03.1970 by which he seems to have been removed from the directorship of the company. It is this action primarily of illegal share transfer of the said Late Harishchandra Deo which the petitioners submit ought to be the subject matter of investigation by serious fraud investigation office. 3. Thereafter, the Ld. Sr. Counsel further contended that the suit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Satyasindhu Kashyap for Opposite Party No. 1. The arguments that have been advanced can be broadly divided into the following (a) The petition is barred by huge delay and latches. (b) The petition in its present form ought to be rejected at the threshold as the same tantamount to an abuse of process of law as the petitioners are guilty of having suppressed material facts, especially, the fact that multiple petitions have been filed on the same subject matter and arising out of the same cause of action which have been rejected in their challenge by various Courts including this Court and the Hon'ble Supreme Court. (c) The issues raised here between the same parties, same subject matter and thus they are grossly barred by Res Judicata at the issues raised in the present petition are in pith and substance the same as have already been raised in the plaint and other proceedings. IV. ISSUES FOR CONSIDERATION: 7. In view of the aforesaid discussion this Court proceeds to formulate the following issues that fall for consideration. (A) Whether or not the present petition is barred by delay and latches. (B) Whether or not the present petitioners are guilty of suppression of material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hes as it is several decades old. 10. The Opp. Party No. 8 Company was formed being incorporated under the Indian Companies Act, 1913 on 06.10.1939 having its registration No. 15-000246 of 1939-40. Therefore, the allegation of illegal constitution of the OPP. Party no. 8 Company i.e., M/s BICO is not correct. None of the authorities has ever found to be committing fraud by the Opp. Party Nos.9 to 15. It is forthcoming from the response of the competent authorities i.e. ROC that similar such other petitions have been filed before and response thereto had already been given that no illegalities had been found with regard to the allegations made. That being a case, no interest of justice would be sub-served to flog a dead horse after the efflux of 55 years. The substratum of the dispute relates to illegal share transfer and the same has been litigated and reagitated time and again and no useful purpose will be served in oppressing the opposite parties herein. The only addition in the present petition is to create a "cause of action" seems to be that certain RTI applications have been made by various parties and no suitable response has been received with regard to them which seems to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is Defendant No. 24. It is pertinent to note at this juncture that both Petitioners Nos. 1 & 2 ought to have disclosed such a material fact which involved a determination of their rights and which was already in their knowledge as they were actively participating and pursuing the suit and later on the appeals therefrom. The said fact ought to have been placed on record in the present Writ Petition which essentially bases the substratum of their right to information based on the fact that they actually have a right to own the shares in the company in question. 15. In the said suit Ld. Trial Court identified 4 broad grounds of challenge. The first ground of challenge being whether the suit had been properly valued or not. The second was whether the suit was the plaint was liable to be rejected for mis-joinder and non-joinder of parties. The third issue framed was whether the plaint should be rejected for non-disclosure of the cause of action in the plaint. The fourth ground of challenge was whether limitation being a mixed question of law and fact could be considered in a petition under Order 7 Rule 11 of the CPC. 16. The Ld. Trial Court came to a finding that the suit was barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and that issuance of legal notice on 8.05.2013 to Defendant No. 1 and receipt of reply dated 24.8.2013 and submission of Hon'ble Mr. Justice M.B. Shah Commission Report in the month of October 2013 are not relevant for computing the period of limitation." 19. The second part being the issue that the same was barred by law. It was held that until the register of members of the suit company is suitably rectified by the competent authority, the right, title and interest if any, of the plaintiff over the 500 shares of Late Harish Chandra Deo could not be decreed by the court. It was held that as the situation was squarely covered under Section 59 of the Companies Act, 2013 and that the jurisdiction of the civil court was ousted by law. 20. Lastly, qua Issue No. (vii) it was also held that the right of the plaintiff to sue being barred by the law of limitation and the plaintiff had no surviving cause of action to bring the suit. In view of the same, the Addl. District Judge, Bonai vide order dated 18.07.2022 confirmed the order passed by the Ld. Civil Judge (Senior Division) Bonai rejecting the plaint in C.S. 18 of 2015 under Order 7 Rule 11 of the CPC. R.S.A No. 206 of 2022 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dargarh wherein once again the same relief was sought on the same cause of action. The same was challenged by the Company under Article 227 of the Constitution against the continuation of the said Suit before this Court being C.M.P. No. 861/2016 & C.M.P. No. 1133/2016. After hearing the parties in C.M.P. No. 861/2016, this Court on 10.03.2022 dismissed the suit as no more maintainable. Aggrieved by the order dated 10.03.2022 passed by this Court, the said Anil Kumar Singh Deo filed SLP(C) No. 19252/2022 before the Supreme Court. On 11.11.2022, the Petitioner therein sought permission to withdraw the said SLP with permission to file a review before the High Court. Accordingly, the SLP was dismissed as withdrawn on 11.11.2022 without expressing any opinion on the maintainability of a review petition. Thereafter, a Review Petition No. 328 of 2022 was filed by said Anil Kumar Singh Deo against the order dated 10.03.2022 passed in C.M.P. No. 861 of 2016. This Court after hearing the parties, dismissed the Review Petition as an abuse of process and imposed costs of Rs. 20,000/- vide its judgment dated 31.07.2023. Still not satisfied, the Petitioner - Anil Kumar Singh Deo preferred an SLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. One such PIL being W.P. (C) PIL No. 16719 of 2020 had filed by 11 so-called PIL Petitioners, being Rup Ranjan Panda & Or Vs. Union Of India & Ors. before this Court. 28. It was pointed out during the course of the hearing that the contents of the aforesaid PIL i.e. W.P. (C) PIL No. 16719 of 2020 and the present W.P.(C). NO. 2811/2020 are almost identical, although Petitioners are different. It was further pointed out that there were starking similarity in the Annexures in W.P.(C) PIL No. 16719 of 2020, and the instant Writ Petition giving an identical character and that they even containing the signature of Petitioner No. 1 of the instant writ petition i.e. Pradeep Chandra Deo even though he was not a petitioner in W.P. (C) PIL No. 16719 of 2020. These facts are hard for this Court to ignore as they give rise to serious doubts as to the bona fide of the present Petitioners. The aforesaid W.P. (C) PIL No. 16719 of 2020 was also dismissed as withdrawn vide order dated 21.07.2020 passed by this Court. 29. Subsequently, another PIL being W.P. (C) PIL No.33158 of 2021 was filed before this Court by 10 Petitioners being Ashribad Pattnaik & Ors. Vs. Union Of India &Ors. The content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions are an abuse of process. We accordingly dismiss the Special Leave Petitions with costs quantified at Rs.25,000, which shall be paid to the Supreme Court Bar Association within four weeks." (Emphasis Supplied) 32. The next PIL being W.P. (C) PIL No. 1416 of 2021 was filed before this Hon'ble Court by 14 Petitioners being Neelakantha Tripathy & Ors. Vs. State of Odisha & Ors. Yet again the said PIL bore stark resemblance to the earlier ones. The most glaring similarity being that annexures of W.P. (C) PIL No. 16719 of 2020 and W.P. (C) PIL No. 1416 of 2021 are entirely identical containing the signature of Petitioner No. 1 of the instant writ petition i.e. Pradeep Chandra Deo, even though he was not a petitioner in either of the PILs. 33. This Court vide its order dated 22.09.2022 dismissed the Writ Petition No. 1416 of 2021 and IA No. 12110 of 2022, again with cost of Rs.1,40,000/-The relevant part of the judgment is as follows; "10. In the present case, while seeking permission to withdraw the writ petition, the petitioners have prayed for liberty to file fresh writ petition particularly when this Court vide Judgment dated 2ndDecember, 2021 dismissed W.P.(C) No. 33158 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. It is shocking to note that some documents containing the signature of Petitioner No. 1 forms part of the PILs referred to hereinabove. A submission has been made that the pleadings in the instant Writ petition and annexures in W.P. (C) PIL No. 16719 of 2020, and the instant writ petition are identical and some of the documents even contain the signature of Petitioner No. 1 of the instant Writ Petition i.e. Pradeep Chandra Deo even though he was not a petitioner in W.P. (C) PIL No. 16719 of 2020. It is also submitted that the direction sought in the present Writ Petition is similar to the ones sought in the PILs. It is shocking that a litigant can dare not only suppress such material facts from the courts but there seems to be a blatant disregard for the rule of law. Time and again similar Writ Petitions are being filed successively in this court where only the name of the petitioners are changed from time to time and the pleadings are kept identical. This fact, in fact, has been noted earlier by this court in its earlier orders in the PILs as referred to herein above. This Court in the given factual backdrop is constrained to hold that not only has there been a suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of misleading the court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." 40. In the case of K.D. Sharma v. SAIL (2008) 12 SCC 481 the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayashree v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and the adjudication of a court of competent jurisdiction, the parties so litigating are required to bring forward their whole case. Once the litigation has been adjudicated by a court of competent jurisdiction, the same parties will not be permitted to reopen the lis in respect of issues which might have been brought forward as part of the subject in contest but were not, irrespective of whether the same was due to any form of negligence, inadvertence, accident or omission. It was further held, that principle of res judicata applies not only to points upon which the Court was called upon by the parties to adjudicate and pronounce a judgment but to every possible or probable point or issue that properly belonged to the subject of litigation and the parties ought to have brought forward at the time. The relevant observations read as under:- ""In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not"' (ii) Lord M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 < While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.."' (Emphasis supplied) 138. In Virgin Atlantic Airways Ltd. v. Zodiac Seats UK Ltd., [2014] A.C. 160 Lord Sumption JSC further expounded the 'Henderson Principle' as although separate and distinct from cause of action estoppel or res judicata yet having the same underlying public interest that there should be finality in litigation and that a party should not be twice vexed in the same matter. The relevant observations read as under:- '"The principle in Henderson v. Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litiumwhich means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause. 141. The Henderson Principle was approvingly referred to and applied by this Court in State of U.P. v. Nawab Hussain, (1977) 2 SCC 806 as the underlying principle fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of the court to allow a new proceeding to be started in respect of them. This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle." (Emphasis supplied) 144. From the above exposition of law, it is clear that the 'Henderson Principle' is a core component of the broader doctrine of abuse of process, aimed at enthusing in the parties a sense of sanctity towards judicial adjudications and determinations. It ensures that litigants are not subjected to repetitive and vexatious legal challenges. At its core, the principle stipulates that all claims and issues that could and should have been raised in an earlier proceeding are barred from being raised in subsequent litigation, except in exceptional circumstances. This rule not only supports the finality of judgments but also underscores the ideals of judicial propriety and fairness. 145. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for as to revisit the same matters they had deliberately chosen not to pursue earlier. Thus, where a party deliberately withholds certain claims or issues in one proceeding with the intention to raise them in a subsequent litigation disguised as a distinct or separate remedy or proceeding from the initial one, such subsequent litigation will also fall foul of this principle. 151. Similarly, where a plea or issue was raised in earlier proceedings but later abandoned it is deemed waived and cannot be relitigated in subsequent. Allowing such pleas to be resurrected in later cases would not only undermine the finality of judgments but also incentivize strategic behaviour, where parties could withdraw claims in one case with the intention of reintroducing them later. proceedings. Abandonment signifies acquiescence, barring its reconsideration in subsequent litigation. This ensures that judicial processes are not misused for tactical advantage and that litigants are held accountable for their procedural choices. Parties must litigate diligently and in good faith, presenting their entire case at the earliest opportunity. 152. The Henderson principle operates on the broader contours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy." 44. In the case of Shankara Coop. Housing Society Ltd. v. M. Prabhakar (2011) 5 SCC 607, the Apex Court has held that the grounds which were available to the parties to raise but did not raise it as one of the grounds, cannot be raised later on and would be hit by the principles analogous to constructive res judicata. The relevant observations read as under:- "89. In the present case, it is admitted fact that when the contesting respondents filed WP No. 1051 of 1966, the ground of non-compliance with statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the Notification dated 11-12-1952 issued under the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the petitioners therein to raise that ground and answer the same since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and would also fall foul of the Henderson Principle. In Celir LLP (supra) it has been specifically held that merely because one proceeding initiated by a party differs in some aspects from another proceeding or happens to be before a different forum, will not make the subsequent proceeding distinct in nature from the former, if the underlying subject matter or the seminal issues involved remains substantially similar to each other or even when connected to the earlier subject matter by a certain degree. Such vexatious hydra headed litigations deserve to be frowned and must be quelled. VI. CONCLUSION: 47. In view of the discussion here in above this Court arrives at a clear and unequivocal conclusion that the present Writ Petition is not only liable to be dismissed at the very threshold on account of the principles discussed and issues framed hereinabove. But also, on account of the fact that the Petitioners have approached this court with unclean hands and the conduct of the petitioners herein leaves much to be desired. This Court can only express hope that the petitioners will be well advised not to indulge in such unbecoming practice of abusing the process of law in the future. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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