A landmark ruling by the Bombay High Court has established that deliberately filing an affidavit in a disposed petition to evade a solemn court undertaking constitutes fraud upon the judiciary, warranting criminal prosecution and financial penalties. The judgment underscores the sanctity of judicial proceedings and the duty of all parties, including government officers and advocates, to uphold procedural integrity.
Background & Facts
The Dispute
The dispute arose under the Real Estate (Regulation and Development) Act, 2016 (RERA), concerning the non-enforcement of a Recovery Warrant issued on 23.09.2019 against Flat Nos. 405 and 407 in Navi Mumbai. The applicants, Ms. Kiran Thaokar and Mrs. Lata Keshao Thaokar, sought attachment and sale of these flats to recover dues owed by the developer, Mr. Avinash D. Koshti, who was the judgment debtor.
Key Facts
- Recovery Warrant dated 23.09.2019 was issued under Section 40(1) of RERA against Flat Nos. 405 and 407.
- On 26.02.2023, the applicants filed a representation seeking attachment and sale of the flats.
- The Tehsildar, Tal. Vasai, was directed to take decisive steps to execute the warrant.
- On 12.07.2021 and 24.08.2021, the flats were allegedly sold to third parties: Mansa Radhemohan Shukla and Nagesh Mithu Bobade & Rohini Nagesh Bobade, respectively.
- Registered sale agreements were executed on 14.08.2014 (Flat 405) and 21.08.2021 (Flat 407).
- The applicants were unaware of these sales at the time of the court proceedings.
Procedural History
- 23.09.2019: Recovery Warrant issued under RERA Section 40(1).
- 26.02.2023: Applicants filed representation seeking attachment of flats.
- 12.06.2023: Writ Petition No. 12815 of 2023 filed before Bombay High Court.
- 06.03.2025: Court directed Tehsildar to take steps within three months.
- 27.03.2025: Court disposed of the writ petition based on affidavit of Mr. Koshti, who undertook to attach the flats within three months.
- 21.07.2025: Mr. Koshti e-filed an affidavit dated 18.07.2025 in Writ Petition No. 12815 of 2025 - a different, unrelated case - instead of 2023.
- 26.06.2025: Three-month deadline expired without attachment of flats.
- 13.11.2025: Interim Application (IA No. 36293 of 2025) filed seeking execution of the warrant.
- 10.04.2026: IA taken up for hearing; court discovered improper filing.
- 22.04.2026: Final hearing; court found deliberate misconduct.
- 08.05.2026: Judgment pronounced.
The Parties' Positions
- Applicants: Alleged that the undertaking given on 27.03.2025 was false, as the flats had already been sold. They claimed prejudice due to reliance on the court’s assurance.
- Mr. Koshti (Judgment Debtor): Did not appear personally; his affidavit was filed improperly.
- Respondents (Tehsildar, Collector, MahaRera, State): Initially supported the undertaking; later attempted to justify the improper filing.
- Advocate for Applicants: Ms. Krupali H. Rajani and Adv. Aafreen S. Shaikh.
- Respondent-State Advocates: Mr. O.A. Chandurkar, Addl. G.P., and later Mr. S.B. Kalel and Mr. P.P. Kakade.
Relief Sought
The applicants sought enforcement of the Recovery Warrant, attachment and sale of Flat Nos. 405 and 407, and restoration of the writ petition for further adjudication.
The Legal Issue
The central question was whether filing an affidavit in a disposed petition, containing materially false or contradictory statements to evade a prior court undertaking, constitutes fraud upon the court and warrants criminal prosecution under Section 340 of the CrPC.
Arguments Presented
For the Applicants
The applicants contended that the affidavit dated 18.07.2025, filed in a different petition, was deliberately introduced to mislead the court into believing the flats were sold before the undertaking was given. This, they argued, was a calculated attempt to nullify the court’s order and prejudice the decree holder. They relied on the principle that courts must be protected from manipulation of records and false affidavits.
For the Respondent-State
The State, through the Additional Government Pleader, initially defended the filing as an inadvertent clerical error. Later, during the hearing, the AGP conceded the impropriety and offered an unconditional apology. However, the court found the explanation inadequate, particularly as the affidavit was drafted by the same AGP who had made the original undertaking, and the filing was done in a different petition to conceal the misconduct.
The Court's Analysis
The court conducted a meticulous review of the procedural irregularities and found a clear pattern of deliberate deception. The filing of the affidavit dated 18.07.2025 in Writ Petition No. 12815 of 2025 - instead of the pending 2023 petition - was not a clerical oversight but a strategic maneuver to evade accountability.
"The actions of Mr. Koshti are unconscionable and strike at the very conscience of the Court. They constitute a clear and deliberate attempt to mislead the Court."
The court emphasized that the Government Pleader, Mr. S.B. Kalel, who had sworn to the undertaking on 27.03.2025, was also the author of the contradictory affidavit. This dual role created an irreconcilable conflict and demonstrated bad faith. The court further noted that the Registry’s acceptance of a physical affidavit in a disposed petition, without any order permitting such filing, amounted to complicity in record tampering.
The court rejected the claim that Mr. Suresh Sawant, a retired official, was solely responsible. It held that the AGP’s attempt to shift blame to a retired clerk was itself a false statement to the court. The court observed:
"This matter warrants a thorough inquiry by the Law Secretary."
The court held that such conduct - filing a false affidavit in a disposed petition to circumvent a judicial undertaking - meets the threshold for prosecution under Section 340 of the CrPC (now Section 379 of the BNSS) for perjury and fraud upon the court. The court stressed that judicial proceedings cannot be treated as a forum for tactical evasion.
The Verdict
The interim application was disposed of and the writ petition was restored. The court accepted the unconditional apology of the Additional Government Pleader. The Tehsildar was directed to pay six months’ salary - amounting to his entire annual emoluments - to the Bar Council of Maharashtra and Goa’s Advocate Academy and Research Center within four weeks of the judgment’s upload on the High Court’s website. The court initiated proceedings for prosecution under Section 340 of the CrPC against Mr. Avinash D. Koshti and the concerned Government Pleader for perjury and fraud upon the court. The writ petition was listed for hearing on 15.06.2026.
What This Means For Similar Cases
Fraud on Court Is a Criminal Offense
- Practitioners must treat court undertakings as binding legal commitments - not tactical tools.
- Any attempt to evade a court order through procedural manipulation, including filing affidavits in disposed matters, invites prosecution under Section 340 CrPC.
- Courts will not tolerate attempts to exploit administrative loopholes to undermine judicial authority.
Government Advocates Bear Higher Responsibility
- Government Pleaders are held to a higher standard of candor and integrity.
- Submitting contradictory affidavits, even if drafted by others, constitutes professional misconduct.
- Failure to disclose the true source of misconduct or misrepresenting facts to the court is grounds for disciplinary action.
Registry Accountability Is Non-Negotiable
- Court registries must refuse to accept filings in disposed petitions without express court permission.
- Any deviation from this protocol, even if "inadvertent," compromises judicial integrity and may attract liability.
- Digital filing systems must be monitored to prevent tampering or misplacement of documents.
