The main legal point established in the judgment is that the suppression of relevant facts and denial to the other side to point out its impact or inability of the Court to consider its effect is the only relevant aspect in this jurisdiction. The court also emphasized the need for filing a complaint under section 340 of Cr.P.C. for filing misleading affidavit and for not disclosing true and correct facts to the Court.

B.P. Dharmadhikari, J.

1. This Civil Application is filed in a disposed of Appeal against order for action under S. 340 Cr.P.C. That appeal from order arose out of Special Civil Suit No. 1/2010 and has been disposed of by this Court on 11th January 2011. This Court set aside the order dated 28th December 2010 passed by learned District Judge, Thane and allowed the application of appellant therein (respondent in this civil application) and permitted it to submit drawings to Delhi Transco Limited (DTL). It directed that the said appellant should not take any further steps for execution of contract except submission of drawings till the decision of application filed by the appellant/ respondent No. 1 herein below Exh. 5 under order 39 rules 1 and 2 of Code of Civil Procedure, 1908 (C.P.C.) (Said application below Exh.5 in special civil suit was filed by present applicant/plaintiff who was respondent in that appeal from order). It is not in dispute that later on temporary injunction as prayed for came to be denied & the said application at Exh.5 has been dismissed. The present civil application is filed by respondent in that appeal from order 102 of 2011 for recording of finding that an offence under section 193 read with section 191 or section 209 of Indian Penal Code, 1860 has been committed by the respondents and for making a complaint in writing through competent officer of this Court to the Magistrate of First Class having jurisdiction. Thus the application is under section 195 read with section 340 of Cr.P.C.

2. Effort of applicant is to show that on 9th December 2010 it had obtained orders from Thane Court in its civil suit restraining respondent from taking any steps in relation to tender floated by DTL. That order was served upon respondents on 14th December 2010. Appeal challenging that order was filed by respondents before this Court on 20th December 2010 and that appeal was considered by Vacation Judge on 24th December 2010. The Vacation Judge did not interfere with the impugned order dated 9th December 2010 but directed the trial Court to hear the parties and pass appropriate orders on 27th December 2010. While obtaining this order and in the proceedings, it was not disclosed to this Court that drawings were already submitted by the respondent to DTL on 24th December 2010. This fact was not even pointed out to the trial Court on 27th December 2010 during hearing. The trial Court, as per the direction issued by this Court, heard parties and passed an order on 28th December 2010 maintaining its earlier direction. That direction was then questioned in Appeal No. 102/2011 and even in that appeal or during said proceedings, which even ultimately decided by this Court on 11th January 2011, the fact that direction dated 9th December 2010 was violated and drawings were already submitted was not disclosed by the present respondent who was appellant in the said appeal.

3. It is in this background that learned Senior Advocate Shri Seervai appearing urges that a fact very relevant for consideration and critical in exercise of jurisdiction to grant temporary injunction was deliberately suppressed from this Court. Learned counsel submits that the affidavit in support of said appeal from order is sworn by one Dharmesh Tyagi, Corporate Legal Manager of respondent and though he is/was served with notice of present proceeding he has chosen not to appear. Learned counsel contends that the said affidavit is by and on behalf of appellant and, therefore, binding on all the respondents in present proceedings. Attention has been invited on ground-(a) in the memo of said appeal to show how denial of even an opportunity to submit drawings & its adverse effect on the chances of present respondents has been pressed into service to seek vacation of interim direction. The statement made in Civil Application (St.) No. 33479/2011 that parties have been litigating since February 2010 on weekly basis before the District Court, Thane is also point