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 (2011) 5 SCC 496
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.
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.
Versus
BOC India Limited & Ors.
Dated;January 11, 2016
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
SLP (C) No. 29125 of 2008 Page 1 of 13Page 2
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.
1
BOC India Limited v. State of Jharkhand, MANU/JH/0938/2008
SLP (C) No. 29125 of 2008 Page 2 of 13Page 3
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
SLP (C) No. 29125 of 2008 Page 3 of 13Page 4
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
SLP (C) No. 29125 of 2008 Page 4 of 13Page 5
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
SLP (C) No. 29125 of 2008 Page 5 of 13Page 6
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
SLP (C) No. 29125 of 2008 Page 6 of 13Page 7
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
SLP (C) No. 29125 of 2008 Page 7 of 13Page 8
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
SLP (C) No. 29125 of 2008 Page 8 of 13Page 9
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
SLP (C) No. 29125 of 2008 Page 9 of 13Page 10
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, Advocate2
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 Ilamvazhuthi3
this Court
expressed the view that the filing of a false affidavit should be effectively curbed
2
(2001) 5 SCC 289
3
(2011) 5 SCC 496
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
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