Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15
PETITIONER:
DELHI DEVELOPMENT AUTHORITY
Vs.
RESPONDENT:
SKIPPER CONSTRUCTION AND ANR.
DATE OF JUDGMENT08/02/1995
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
MOHAN, S. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1995 SCC (3) 507 JT 1995 (2) 391
1995 SCALE (1)734
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. The facts leading to contempt proceedings are as under:
On 8.10.1980, an auction was held by the Delhi Development
Authority (hereinafter referred to as the DDA ) of the
394
Commercial Tower Plot, Jhandewalan, Block E, New Delhi ad
measuring about 2540 sq. mtrs. The first respondent. Ws.
Skipper Construction Co. (P) Ltd. (hereinafter referred to
as the Skipper)was the highest bidder, its bid being Rs.
9.82 crores. As per the conditions of the auction, Skipper
deposited 25% of the bid amount. The said bid was confirm
the DDA on 14.10.1980. Skipper was called upon to make the
balance of payment of 75% of the bid amount within 90 days
as per the conditions of the auction.
2. The Government of India issued directions to the DDA to
accept the request of Skipper and to grant an indulgence to
it and directed the DDA to reschedule the recovery of 75% of
the bid amount with interest from the Skipper. Consequent
to this, DDA called upon the Skipper to enter into fresh
agreement, license agreement and furnish bank guaranties in
compliance with the directions of the Central Government.
3. On 11.8.1987, Skipper entered in a license agreement,
paid 50% of the original bid and secured payment of the
balance 50 % of the bid and interest at the rate of 18%
per annum thereon by submitting bank guarantees for Rs.9.82
crores, in terms ’of which a sum of approximately 1.944
crores was required to be paid as each instalment. A total
of 5 instalments was payable every six months., the first
being due on 15.9.1987 and the last on or about 15.9.1989.
4. Against the first instalment of Rs.1.944 crores falling
due on 15.9.1987, DDA recovered about Rs. 88.76 lacs by
encashment of the bank guarantee on 7.12.1987. Thereafter
the first respondent did not pay in terms of the agreement.
5. On 4.10.1988, the Lt Governor issued a direction at the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15
request of Skipper, deferring recovery from Skipper of the
2nd instalment as per the agreement dated 11.8.1987 till one
month after the sanctioning of the building plans.
6. In August, 1987, the first respondent filed writ
petition in the High Court of Delhi, being CWP No. 2371 of
’1989. The principal relief sought in the writ petition
related to sanctioning of building plans and permission for
construction. An interim order was passed directing the
Skipper to furnish fresh bank guarantee since the bank
guarantee furnished earlier had lapsed. The DDA did not
encash the fresh bank granite which was detective. Time and
again the DDA represented to the Court that the monies were
outstanding from the Skipper and no indulgence ought to be
shown to them till the payments were made. The question of
payment of the outstanding amount of over Rs. 8 crores under
the principal sum itself was deferred from time to time.
7. On 16.2.1990, Lt. Governor revoked the order dated
4.10.1988 deferring the payment of instalments. As a result
the entire sum became payable in one lump sum. However,
this order of the Lt. Governor was stayed by the Court.
Thus v it became necessary f or the DDA to grant conditional
and provincial sanction to plans of the building subject to
the payment of monies due to the DDA.
S. On 19.3.1990, an interim order was passed by the
Delhi High Court by which Skipper was permitted to commence
construction without first depositing the dues
395
of the DDA. Against this order an appeal was prefer-red.
The Division Bench directed tie payment of a token sum of
Rs. 5 lacs which was offered by the Skipper as a gesture of
goodwill within 2 days; a sum Rs. 15 lacs within 15 days and
1.944 crores within one month to the, DDA. It was further
directed that the quantum of monies and the mode of payment
will be decided at the time of final disposal of the writ
petition.
9. Even this order was not complied with. Notwithstanding
this, the Skipper approached the Court once again for exten-
sion of time to make payment and for direction to construct.
The Court extended the time by one month on 16.4.1990, af-
fording liberty to the DDA to encash the bank guarantee.
The bank guarantee could not be encashed because it was
conditional. By then the entire monies had fallen due.
Those amounts had not been paid. The 1990 against the
interim orders dated 19.3.1990 and 16.4.1990 passed by the
High Court of Delhi. By an order dated 3.5.1990 this Court
stayed further construction and made it conditional upon
payment of Rs. 1.944 crores.
10. Suit No. 1 1875 of 1990 was filed by the Skipper for a
direction that the DDA ought not to insist upon payment by
cash or draft and ought to be directed to encash bank
guarantee. The learned Vacation Judge issued orders
directing the DDA to invoke the bank guarantee. However,
the suit was ultimately dismissed.
11. On 21.12.1990, a Division Bench of the Delhi High Court
dismissed C.W.P. No.2371 of 1989 directing Skipper to pay to
the DDA by cash or demand draft a sum of Rs.8,12,68,789/-
within 30 days; to stop construction till payment is made;
and in the event of non-payment by the skipper, DDA would be
entitled to enter upon the property and forfeit the monies
received by the DDA.
12. On 14.1.1991, detailed reasons for its operative order
come to be rendered by the Division Bench of the Delhi High
Court with further direction giving effect to clause 15 of
the license agreement dated 11.18,1987 that in the event of
non-compliance of the payment by the Skipper the property
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15
shall stand vested in the DDA, free from all encumbrances,
in addition to the forfeiture of the monies.
13. Against the dismissal of CWP No. 2371 of 1989 Skipper
filed SLP (C) No. 186 of 1991 before this Court.
14. On 29.1.1991, a Division Bench on which one of us, P.B.
Sawant, J., was a party). It inter alia reads as under:
"(i) That the petitioners herein shall deposit
a sum of Rs.2.5. crores (Rupees two crores and
fifthly lacs only) in cash/ bank draft with
the Delhi Development Authority within one
month from today and the petitioners will
further deposit similar amount by cash/bank
draft by 8th April, 1991.
(ii) That the petitioners shall be permitted
to resume the construction of the building in
question only after making the first deposit
as stated in clause (i) above. DDA filed SLP
(C) Nos, 6338-6339 of this Court passed an
interim order (in
(iii) That if the petitioners fail to deposit
the amounts as aforesaid, the Delhi
Development Authority will be free to act. in
accordance with the impugned order dated 21st
December, 1990 of High Court
396
in CWP No. 2371 of 1980.
(iv) -Mat the petitioners shall not induct any
person in the building or create any right in
favour of any third party.
(v) -Mat the matter be listed for further
orders before this Court on 9th April, 1991."
15. On 4.2.1991, in violation of the agreement and in gross
contempt of the above order, the Skipper issued advertise-
ment in the leading newspapers seeking to create 3rd party
rights.
16. On 25.1.1993, SLP(C) No. 186 of 1991 was dismissed by
this Court. By virtue of the above order, the DDA on, 10.2.
1993 re-entered and took physical possession of the said
property, free from all encumbrances; monies paid by the
Skipper were forfeited.
17. Notwithstanding all these, Skipper filed yet another
suit on the original side of the High Court of Delhi, being
Suit No. 770 of 1993 for the reliefs of-.
(i) permanent induction restraining the DDA from
interfering with the title and possession of the property;
(ii) for mandatory injuction directing the DDA to recompute
the principal amount and interest payable by Skipper;
(iii) for a declaration that the present calculations
are wrong;
(iv) for a declaration that re-entry/ re-possession and
determination of the rights of Skipper are bad in law and
nonest;
(v) for a declaration that all dues have, been paid by
Skipper to the DDA; and
(Vi) a declaration that clause 15 of the License Agreement
dated 1 1. 8. 1987 is non-est and bad in law.
18. On service of notice, DDA filed application, I.A.
No.8500 of 1993 in Suit No. 770 of 1993, for rejection of
the plaint as all the issues raised by Skipper were
resjudicata and even otherwise the plaint was barred by law.
The said application is pending disposal.
19. On 8.11.93, DDA issued notices for auction of the said
property. The 2nd respondent sought to implead itself in
the suit and on 1.12.1993 filed an application for stay of
auction which was opposed by the DDA.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15
20. On 9.12.1993, a learned Single Judge of the Delhi High
Court allowed the auction to proceed with and restrained the
DDA from accepting or confirming the bid at the auction
scheduled for 10. 12.1993. Aggrieved by this order DDA filed
SLP(C) No. 21000 of 1993 against the interim order of the
Delhi High Court.
21. I.A. 3 of 1994 is an application for intervention
filedon behalf of DDA. While disposing of SLP(C) No.21000
of 1993 and the said I.A. No.3 of the 1994 we issued notice
on 29.11.94 by exercise of our Suo Moto powers directing
Tejwant Singh and Mrs. Surinder Kaur to show cause as to why
they should not be punished for contempt of court for their
following acts;
"(a) Instituting suit being Suit No.770 of
1993 inthe Delhi High Court in respect of the
same subject matter after this Court confirmed
the orders of the said High Court dated
21.12.1990 and 14.1.199 1, by its order date
d
23.1.1993.
397
(b) Entering into agreement for and handing
over possession of and receiving monies and
creating interests in the premises in the
building under construction in the suit
property, viz., the Commercial Tower Plot,
jhandewalan, Block C, New Delhi, admeasuring
about 2540 sq. mtrs. with constructions
thereon which are already made, in defiance of
the order of this Court passed on 29th
January, 1991 Notice returnable on 3rd
January, 1993".
22. In response to this notice, Tejwant Singh Contemner
No.1, filed an affidavit expressing unconditional and
unqualified apology. After so expressing, he sets out
several facts to offer an explanation and not a
justification for the steps which were, taken by him.
According to him, the purpose of filing Suit No. 770 of 1993
in the Delhi High Court was to make payment of reasonable
amount. Although the prayers give an impression that there
could be no bar in filing of a suit in civil court, he would
add that the intention of the deponent was not to indulge in
litigation which was already concluded by the Supreme Court.
’The intention was to see that as far as the quantum of
interest was concerned that can be scaled down and the DDA
could be persuaded to realise reasonable interest instead of
exorbitant interest.
23.The deponent, on legal advice and in order to protect the
property by making the payments in instalments, instructed
his counsel to file suit in the High Court of Delhi for
mandatory injunctions and declarations. An application
under Order 39 Rules 1 and 2 of Civil Procedure Code was
also filed in the suit under the bone fide belief that the
same could be filed under law in order to ensure that during
the pendency of the suit also efforts should continuously be
made to settle the matter amicably. The Deponent instructed
the counsel to make averment that the company is ready and
willing to make the payment. The counsel has categorically
stated in the application that the company is ready and
willing to pay the amount to DDA as demanded by them in
instalments.
24.The company also wrote a letter dated 10th July, 1993 to
all its valued customers apprising them about the dispute
with DDA. In the letter also the company made it amply
clear that the matter can be resolved amicably and for that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15
purpose funds are required. It was requested that the
valued customers shall make the payment of amounts due
against them. The bank draft/cash order be sent to the com-
pany in the name of DDA. The company wanted to hand over
the drafts to DDA.
25.On this explanation, it is urged that there is no
intentional or deliberate flouting of the order dated 29. 1.
1991 passed by this Court.
26.The order of 29.1.1991 was passed after the counsel for
Delhi Development Authority expressed an apprehension that
the answering respondent would sell away or otherwise
dispose of the plot to a third party and abscond. The
answering respondent-deponent was personally present in’ the
Court on 29.1.1991. On that date, permission to construct
had been with them barely for less than a year (w.e.f
19.3.1990) from this Court. It was in that context that the
injunction was interpreted. He did not create any third
party right himself. However, he noticed that in respect of
one Khosla, the papers annexed to I.A. No.3 show that his
son had signed some documents evidencing induction of
Khosla. He
399
says that there is no other case in relation to which any
such impropriety has been committed.
27. Surinder Kaur, wife of Tejwant Singh, Contemner No.2,
would urge that she has nothing to do with the day to day
running of the company nor has she ever acted or represented
anywhere in regard thereto. She has not signed any paper or
document in relation to the transactions connected with the
present proceedings.
28. An Additional Affidavit was filed on 27.1.1995 by
Tejwant Singh, Contemner No.1. Paragraph 3 of the said addi-
tional affidavit states:
"with respect to the act of entering into
agreements for and handing over possession of
and receiving monies and creating interests
in the premises in the building under
construction in the suit property viz., the
commercial Tower Plot, Jhandewalan, Block E,
New Delhi, admeasuring about 2540 sq. meters
with constructions thereon which are already
made in defiance of the order of Hon’ble
Supreme Court passed on 29.1.1991 it is
respectfully necessary at this stage to
explain the context in which the order dated
29.1.1991 was passed, understood and acted
upon by the answering respondent. The
answering respondent is explaining the
collective contemporaneous under standing of
both the parties and respectfully submit to
this Hon’ble Court that
there was no intentional or deliberate
flouting of the order. The order of
29.1.1991 was passed after the counsel for
Delhi Development Authority expressed an
apprehension that the answering respondent
would sell away or otherwise dispose of the
plot to a third party and abscond. The
answering respondent/ deponent was personally
present in the court on 29.1.1991. On that
date permission to construct had been with
them barely for less than a year (w.e.f.
19.3.1990) from the Hon’ble Delhi High Court.
As on 29.1.1991, the construction on the plot
has barely commended and only a part of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15
basement had been done. No building was in
existence. To preclude the answering
respondent from in any manner giving away
physical possession of either the plot or the
proposed building (yet to come up) the order
of
29.1.1991 was passed.
It is most respectfully submitted that at no
time during the proceedings, was any reference
made or intended to prohibit or in any manner
fetter the booking of space in the building or
collecting money in respect thereof The fact
was that this was the common collective and
collided understanding of all the parties
including the Delhi Development Authority is
evident from the fact that the bookings were
done before January, 1991 and after January,
1991 to the knowledge of everyone without any
objection, protest and demur. Indeed in the
numerous court proceedings in different courts
including the Hon’ble Supreme Court after 1991
not the slightest grievance was made and no
contempt petition was ever moved by Delhi
Development Authority (till the present last
round of proceedings). indeed, it is most
respectfully submitted that had answering
respondent known or remotely contemplated that
even booking sought to be fettered, it would
have either moved the Hon’ble Court for
clarification or would have immediately
desisted."
28A. Paragraph (k) reads thus:
"After 29.1.1991 the company entered into
agreement with various persons/parties. The
copies of the agreements entered into with
them are annexed herewith and are collectively
marked as Annexures ’A’ and ’B’. It is
pertinent to
399
mention that the company openly advertised in
the Newspapers and the next day DDA also
advertised, in the Newspapers about the
Court’s order dated 29.1.1991. it is only
after seeing both the advertisements the
speculative buyers came forward to book the
flats and each and every person who entered
into the agreements with the company were
fully aware of the pendency of the litigation
and hence no third party rights were created."
29.W. G. Ramaswamy, learned senior counsel for the
contemners submits, before filing Suit No. 770 of 1993, the
contemners took legal advice. It was opined that the Civil
Writ Petition No. 2371 of 1989 filed before the High Court
was not a substitute for suit. The fact that writ petition
was dismissed and the SLP thereon was also dismissed will
not take away the right to file an independent suit. It was
only because of that the contemners filed the suit. There
was no deliberate intention to obstruct the course of
justice. May be, the contemners were misguided. Whatever
might have been the conduct of the contemners they had
offered unqualified apology in both the affidavits.
30.Actually, the contemners do not want the learned counsel
to advance arguments in defence of their conduct. They we
only kneeling before the court and praying for mercy.
31. As regards the alleged flouting of the order dated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15
29.1.1991, three questions would arise:
(1) whether there is disobedience of the order dated
29.1.1991.
(2) If it is answered in the affirmative, whether the
disobedience in wilful?
(3) If wilful, what is the consequence?
32. In his, submission, legal advice is a factor to
decide whether a disobedience is wilful or not. He is
prepared to disclose even the name of the senior counsel who
had given the opinion. As a matter of fact, in Hoshiar
Singh v. Gurbachan Singh AIR 1962 SC 1089 this Court found
fault with the contemners therein for not disclosing the
name of the counsel who gave the legal opinion. It could
never have been the intention of the contemners to openly
flout the order dated 29.10.1991. By entering into
agreements contemners were not creating rights in favour of
third parties. The speculative purchasers being fully aware
of the legal proceedings yet chose to purchase the property
which agreements, if ultimately, did not fructify into sale,
they would be entitled to only refund. Before 29.1.1991
1,000 agreements were entered into and after 29.1.1991 1,750
agreements were entered into. Out of these 1,750
agreements, the agreements in respect of 835 cases were
executed while in the case of remaining 915, the agreements
have not been executed. Ibis is the factual position.
Since the DDA did not take out the contempt application, the
contemners were lulled into the belief that what they were
doing was right. Further, the exact scope of the order that
the contemners should not even enter into contract was not
understood by the contemners properly Creation of right
could only mean, in the context, an obligation to refund.
33. The notice for contempt has been issued practically
after nearly three years. If such a notice had been issued
by the High Court he could have pleaded limitation contained
under Section 20 of the
400
Contempt of Courts Act, 197 1, as a defence. However, as
regards exercise of suo Moto powers of this court under Ar-
ticle 129 of the Constitution of India the contemners are
not raising any such plea.
34.Mr. Arun Jaitley, learned counsel for the DDA would
submit that the filing of suit No. 770/93 is nothing but an
abuse of process of court. The matter had reached finality
by orders of this Court. Yet to say the suit was filed to
protect the rights of the contemners is ingenious. By
filing a suit (No.770 of 1993) and obstructing the course of
justice after this Court dismissed SLP(C) No. 1 86 of 199 1,
is a clear case of criminal contempt as laid down in
Advocate-General, State of Bihar v. M/s-Madhya Pradesh Khair
Industries 1980 (3) SCC 311 at 315. This Court had come
down heavily upon persons who indulge in obstructionist
methods to defeat or delay justice as laid down in Bloom
Himmatlal Desai 1994(6) SCC 322 at page 327.
35.In this case, there is a deliberate disobedience of the
order dated 29.1.1991. The agreement dated 11th August, 1987
between contemners and DDA clearly postulates that legal
possession and ownership shall remain with the licenser
until full payment of the bid amount along with interest
payable thereon has been made by the licensee. Therefore,
the creation of rights in favour of third parties was never
contemplated and there was no scope for misunderstanding the
order dated 29.1.1991. During the state of C.W.P. No. 2371
of 1989 before the High Court the contemners came forward
with a plea that there were 870 buyers of flats but this
figure goes on increasing from time to time.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15
36. Ultimately, at the stage, of Suit No. 770 of 1993 the
number of buyers came to 2,700. In the agreements entered
into after the order dated 29.1.1991 there is a clear
recital that possession is delivered. If this cannot amount
to creating rights in favour of third parties nothing else
would.
37. We will now proceed to consider the merits of the above
contentions.
38. The contempt proceedings in this case have been
initiated under Article 129 of the Constitution of India.
The said Article reads as follows:
"Supreme Court to be a court of record. The
Supreme Court shall be a court of record and
shall have all powers of such a court
including the power to punish for contempt of
itself"
39. This Court in Shri. C.K. Daphary vs. Shri. O.P. Gupta
1971 (1) SCC 626 pointed out that it cannot be disputed that
in a case of contempt of Supreme Court, the Court can issue
notice suo moto.
40. About the nature of power, this Court referring to the
Privy Council ruling in Sukhdev Singh Sodhi v.The Chief
Justice and Judges of the Pepsu High Court 1954 SCR at page
461, held:
"Finally, in Parashurain Detaram v. Emperor,
AIR 1945 PC 134 at 136 the Privy Council said
that "this summary power of punishing for
contempt .... is a power which a court must of
necessity possess."
41. In this case, as the notice dated 29.11.1994 indicates,
it consists of :
(1) Civil Contempt and
(2) Criminal Contempt.
401
Civil contempt is defined under Section 2(b) of the Act.
Thus, any wilful disobedience to the order of the Court to
do or abstain from doing any act is prima facie a civil
contempt. Civil contempt arises where power of the Court
is invoked and exercised to enforce obedience to orders of
the court.
42. On the contrary, criminal contempts are criminal in
nature. It may include out rages on the Judges in open
Court, defiant disobedience to the Judges in Court, libels
on Judges or courts or interfering with the courts of
justice or any act which tends to prejudice the courts of
justice.
43. Section 2(c) of the Contempt of Courts Act, 1971
(hereinafter referred toas the Act) posits criminal
contempt to mean:
Publication (a) by words spoken or written;
(b) or written or by sings;
(c) or by visible act whatsoever which-
(d) or any other act whatsoever which-
(i) (a) scandalizes or tends to scandalise,
(b) or loweres or tends to lower the authority of any
court’or
(ii) prejudices or interferes or tends to interfere with the
due course of any judicial proceeding; or
(iii) (a) interferes or tends to interfere with,
(b) or obstructs or tends to obstruct the administration of
justice in any other manner.
44. It can be categorically stated that the power as a
court of record to punish for contempt is beyond dispute.
45. In dealing with the scope of the said Section this Court
observed in Rachapudi Subba Rao v. advocate General Andhra
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15
Pradesh 1981 (2) SCC 577 at 583 as follows ;
"It is noteworthy,that in teh categorisation
of contempt in three sub-clauses (1) to (iii)
only category (ii)refers to judicial
proceeding. Scandalising of court in its
administrative capacity will also be covered
by sub-clauses (1) and (iii) The phrase
"administration of justice" in sub-clause
(iii) is far wider in scope than "course of
any judicial proceedings". The last words "in
any other manner" of sub-clause (iii) further
extended its ambit and give it a residuary
character. Although sub-clauses (1) and (iii)
discribe three distinct species of "criminal
contempt." Interference or tendency to
interfere with any judicial proceeding or
administration of justice is a common element
of sub-clauses (ii) and (iii) This element is
not criminal contempt of the kind falling
under sub-clause (i)".
402
is clear that on 25-1.1993, SLP (C) No. 1 86 of 1991 was
dismissed thereby confirming the judgment of the Delhi High
Court rendered in CPW No. 2371 of 1989 dated 14.1.1991
reported in Skipper Construction Co.(P) Ltd. & Anr. vs.
D.A. & Ors. 43 (1991) Delhi Law Times 636. Thereafter, Suit
No. 770 of 1993 was filed practically for the same relief
which formed the subject matter of the earlier writ peti-
tion, CWP No. 2371 of 1989.
48. After the dismissal of SLP(C) 186 of 1991, the DDA re-
entered and took physical possession of the property on
10.2.1993, free from all encumbrances, forfeiting the monies
paid by the contemners. Yet prayer No. 1 in the suit is for
injunction restraining the DDA from interfering with title
and possession.
49.Under the terms of the license deed dated 11th August,
1987 entered into between DDA (the licensor) and the
contemners (licensee), it was clearly stipulated at
paragraphs 1 and 2 as under:
1.That the licensee shall have license to
enter upon the plot described hereinabove for
a period of two and half years from the date
of execution of this licence only for purposes
of starting construction of the building in
accordance with the sanctioned building plans.
2.That the licencee shall not be deemed to
have any right, title or interest in the said
plot nor shall he have any right to grant such
a a right in favour of any persons. Legal
possession and ownership of the said plot
shall remain with the licensor until fill
payment of the bid amount alongwith interest
payable thereon has been made by de licensee.
50. Of course, in this case, possession was handed over
to the contemners when they had not even cleared the first
instalment. That itself has been criticised by us and
relegated to an enquiry. But, in this case, after disposal
of SLP(C) 186 of 1991 when DDA has taken physical possession
of the plot, to file a suit and pray for injunction, as
stated above, would clearly constitute criminal contempt.
Similarly, the other prayers are aimed at attacking directly
or indirectly the adverse finding rendered by +he High Court
in CWP No.2371 of 1989. The High Court, in no uncertain
terms, held at paragraph 26 of its judgment reported in 43
(1991) Delhi Law Times 636 as under:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15
"We, therefore, reject all submissions made on
behalf of the petitioners and hold that the
D.D.A. is entitled to recover the entire
amount of Rs.8,12,68,789/- as on 1.7.1990 in
lump sum in cash or through bank draft. The
decision of the Supreme Court in Dunlop
(supra) entitles the D.D.A. to insist upon
cash payment and to reject the bank guarantee.
Since there is a deliberate breach of the
obligations under the Licence Deed and the
Agreement dated 11.8.1987 by the petitioners
legal consequences. as mentioned in term 15 of
the Licence Deed, spring into action."
51.Yet, the prayers, above stated, are made in the suit.
The only semblance of defence that is put forth is the suit
came to be filed armed with the legal advice. We are afraid
such a plea is worthless. As stated above, in the case of a
criminal contempt, the intention or motive is irrelevant.
Therefore, even assuming bona fide the contemners thought
they could file the suit because it was "legally opined"
that the was not a substitute, the so-called bona fides are
totally irrelevant.
52.The filing of the suit No. 770 of 1993 is nothing but a
wilful action on the
403
part of the contemners to underline the dignity of this
Court and the majesty of law. The conduct of the contemners
tends to bring the authority and administration of law into
disrespect or even disregard. It equally tends to interfere
with or prejudice the litigants during the litigation.
Abuse of the process of court calculated to hamper the due
course of judicial proceeding or the orderly administration
of justice is a contempt of court. In Advocate General,
State of Bihar v. Madhya Pradesh Khair Industries 1980(3)
SCC 311 at page 315, this court observed;
"while we are conscious that every abuse of
the process of court may not necessarily
amount to contempt to court , abuse of the
process of the court calculated to hamper the
due course of a judicial proceeding or the
orderly administration of justice, we must
say, is a contempt of court. It may be that
certain minor abuses of the process of the
court may be suitably dealt with as between
the parties, by striking out pleadings under
the provisions of order 6, rule 16 or in some
other manner. But, on the other hand, it may
be necessary to punish as a contempt, a course
of conduct which abuses and makes a mockery of
the judicial process and which thus extends
its pernicious influence beyond the parties to
the action and effects the interest of the
public in the administration of justice."
53.Again as stated by Sir John Donaldson in Attorney General
v. Newspaper Publishing PIc, C.J. Miller Contempt of court
1989 Clarendon Press, Oxford:
’
"An action for contempt of court arose:
’where the conduct complained of is
specifically intended to impede or prejudice
the administration of justice. Such
an intent cannot be expressly or admitted, but
can be inferred from all the circumstances
including the foreseeability of the
consequences of the conduct.’
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
54.At this stage, it is worthwhile for us to quote Lord
Hardwicke, L.C., St.James’s Evening Post (1742) 2Atk.409 at
P.47 1:
"There cannot be anything of greater
consequence than to keep the streams of
justice clear and pure, that parties may
proceed with safety both to themselves and
their characters."
55.Thus, we are clearly of the opinion that the contemners
arc guilty of criminal contempt as defined under Section
2(c) of the Act.
56.Now we come to other part of contempt as to whether there
has been a disobedience of our order dated 29.1.91. That
order in clause (iv) specifically stated (it is worthwhile
repetition):
"’That the petitioners shall not induct any
person in the building or create any right in
favour of any third party."
57.The contemners had caused the advertisement dated 4.2.91
as follows:
"SKIPPER
GROUP OF COMPANIES
(ANNOUNCES)
ISSUE of Commercial Flats for retired/
Retiring Personnel/Professionals/Self
employed & other persons in our
BAU MAKHAN SINGH HOUSE
JHANDEWALAN TOWER, JHANDEWALAN EXTN.
404
at highly concessional rates
It is once in a lifetime
opportunity to own a commercial property of
your own in "Bau Makhan Singh House"
A Prime project in the middle of
high business environment. The location of
tower is as rare as the offer itself.
(SALIENT FEATURES
* Ultra modern multi commercial complex
(Shopping cum office complex)
* Ground to 3rd Floor centrally
airconditioned with escalators.
* Excellent quality of
construction,
* Interest free payment schedule
linked with construction.
* Excellent investment returns.)"
58. The object of this is nothing more
than to create rights in favour of third parties. It is
somewhat surprising that the contemners’ ingenuity grows by
the passage of time. As rightly contended by Mr. Arun
Jaitley at the time when the writ petition came to be filed
before the High Court, as the High Court had noted in the
above extract, the booking for only 870 flats but later it
gets increased and today, that figure has swollen to 2,570.
As Mr. G. Ramaswamy admits there are agreements entered into
even after the order of 29.1.91 as evidenced by the state-
ment in sub-paragraph (k) of the additional affidavit
extracted above. A curious argument was put forth that by
mere entering into agreement no interest is created in the
immovable property. Of course, this stems from Section 54
of the Transfer of Property Act. But, does not the
agreement holder have a right to get another document,
namely the sale deed? Equally, does he not have a right to
enforce the agreement and seek specific performance
thereof? It is preposterous came forward to speculative
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15
purchase the property and their right is only to refund as
per the terms of the agreement. For a moment, we are not
on the nature of rights of the unintending purchasers. The
question is whether the said clause (iv) of the order
dated 29.1.91 has been flouted? This is of a case of a
stray act but deliberate repetitive acts by making hard
bargains by dubious methods. It is fallacious to contend
that because of legal opinion the contemners thought of
entering into such agreements, would not amount to
inducting any person in the builidng or would not amount
to creation of any right in favour of any third party. This
is an intentional act to cheat the public with with an
evil design. As on 29.1.1991 the construction on the plot
has barely commenced and only a part of the basement had
been done. No building was in existence. To preclude the
answering respondent from in any manner giving away
physicla possession of either the plot or the proposed
building (yet to come), the order dated 29.1.1991 was
passed.
59. It is submitted that the order passed by this Court
dated 29.1.1991 was an order restraint against the deponent
not to induct any personnel in the building to create any
right in favour of any third party in meantime. It is
submitted that the purpose of this injunction was to ensure
that the deponent did not alienate the building in favour
of a third person to relieve himself from the liability to
make payment of the dues and vanish from the scene.
60. The above statement in the affida-
405
vit of the contemner No. 1, in our considered opinion, is a
clear attempt to circumvent the order.
61. It is difficult to appreciate as to how the contemners
could contend that they were lulled into the belief that
they could enter into the agreements as otherwise the DDA
would have moved the court by way of contempt proceedings.
62. It is rather strange that as late as 25.11.92 the
following letters should be written by the contemners:
"Mrs. Anjana Khosla,
602, Hemkunnt Tower,
6, Rajendra Place,
New Delhi.
Respected Madam,
We are pleased to handover you vacant peaceful
physical possession of shops No. 3 and 4,
measuring super area Jhandewalan Extension,
New Delhi.
We assure you that the aforesaid shops No. 3
and 4 are free from all kinds of sales,
encumbrances, disputes, litigations, stays and
orders and you are the only rightful owner of
aforesaid shops No. 3 and 4.
Thanking you.
Yours faithfully,
For and on behalf of
Skipper Construction Co. Pvt. Ltd.
sd/
(Director)" Emphasis supplied)
Mrs. Anjana Khosla Date 25.11.92
602, Hemkunt Tower
6, Rajendra Place,
NEW DELHI
Respected Madam.
We are please to hand over you vacant peaceful
physical possession of shops 3 and 4,
measuring super area Jhandewalan Extension,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15
New Delhi against total payment of Rs.
19,12,163/made by you to us as under:
Date Mode of payment Amount
07.08.87 cash 1,32,000.00
25.11.92 cash order No.04 165
drawn on Punjab National
Bank, Rajendra Place, New Delhi
being the full and final payment 17,80,163.00
(Rupees Nineteen Lac Twelve
Thousand One Hundred and
Sixty Three) 19,12,163.00
We assure you that the aforesaid shops Nos 3 and 4 are free
from all kinds of sales, encumbrances, disputes,
litigations, stays, and orders and you are the only rightful
owner of aforesaid shops Nos 3 and 4.
Thanking you,
For and behalf of
Skipper Construction Co. Pvt Ltd
s/d
(Director) (Emphasis Supplied)
62.However, this is sought to be over by saying Contemner
No. I was not responsible but his son did it. This argument
has to be stated to be rejected. The plea to support six
other similar agreements, with Khosla family, as if entered
into by mistake, cannot hold water.
63. When our order dated 29.1.91 is clear and unambiguous,
to support these agreements on the so called "collective
406
contemporaneous understanding of both the parties", is
mischievous. Thus, we have no doubt in our mind that there
is a wilful disobedience of our order dated 29.1.91.
64. In considering whether the action of the contemners
amounted to contempt of court we take into account the
entire course of conduct of the contemners. As our order
dated 25.1.95 would disclose, the contemners have indulged
in judicial adventurism by raiding one court or the other.
Each of such raids is a clear abuse of process of court
calculated to obstruct the due course of judicial proceeding
and the administration of justice. Thus, we conclude that
the contemners are guilty of contempt of court. No doubt,
the contemners have tended apology. This apology is coming
forth after sensing that the adventures have turned out to
be misadventures, realising that the contemners have ended
up in a cul-de-sac. An apology is not a weapon of defence
forged to purge the guilt of the offences nor is it intended
to operate as a universal panacea. It is intended to be
evidence of real contritenses, the manly consciousness of a
wrong done, of an injury inflicted, and the earnest desire
to make such reparation as lies in the wrong- doer’s power."
We do not find the apology to be so in this case. The con-
duct of contemners is highly reprehensive. The question now
is what sentence we should impose on the contemners. Here,
it is necessary to bear in mind that the second respondent
is the wife of the first respondent. She does not seem to
have played any active role in all these transactions and
events. As an Indian wife, dutiful and obedient, she seems
to have only followed the dictations and desires of her
husband. In the process she has done no more than lending
her name both as a Director to the Skipper as well as to the
various acts done by him in the name of the company. It
will be unrealistic to ignore this fact against our social
background. We must therefore take a pragmatic view of the
matter and distinguish her case from that of her husband as
far as the punishment to be imposed on them is concerned.
Such a distinction will in no way minimise the gravity of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15
the contempt that she has committed.
65. We therefore, invoke our power under Article 129
read with Article 142 of the Constitution and order as
follows:
We sentence contemner- respondent No. 1,
Tejwant Singh to undergo simple imprisonment
for six months and to pay a fine of Rs.
50,000/-(Rupees fifty thousand only.) We
further sentence contemner respondent No.2,
Surinder Kaur to undergo simple imprisonment
for a period of one month and to pay a fine of
50,0001- (Rupees fifty Thousand only) In
default of payment of fine the contemners
shall further undergo, simple imprisonment for
one month. The payment of fine shall be made
within one month from today.
66. All the properties and the bank accounts standing in
the names of the contemners and the Directors of M/S Skipper
Construction Co. (Pvt.) Ltd, and their wives, sons and
unmarried daughters will stand attached.
67. Before parting with this case, we may add:
Judiciary is the bed rock and hand maid of orderly life and
civilised society. If the people would lose faith in justice
imparted by the highest court of the Iand woe to be to
orderly life. The fragment of
407
civilised society would get broken up and crumble down.
68. At the request of Shri G. Ramaswamy, the learned counsel
appearing for the contemners, we defer the sentence of
imprisonment imposed on both the contemners subject to the
conditions and till the time stated below:-
(1)The contemners shall furnish bank guarantee in favour of
the Registrar General of this Court in the amount of Rs. 11
crores (Rupees eleven crores only) on or before 31st March,
1995. The granite will of a nationalised bank or any
foreign bank operating in India. The bank guarantee will be
given for a period of one year from the date of furnishing
the bank guarantee.
(2)The contemners shall deposit the entire amount of Rs. 11
crores by a bank Draft in the Registry of this Court on or
before 30th November, 1995. If they fail to do so, the bank
guarantee will become encashable and will be encashed
forthwith after 30th November, 1995,
(3 ) If the contemners fail to give the bank guarantee by
31st March, 1995 as aforesaid, the sentence of imprisonment
will become enforceable at once.
(4)No application for extension of time either to furnish
the bank guarantee or to make the payment as aforesaid, will
be entertained by this Court.
(5)The contemners shall not leave the country without the
express permission of this Court.
(6)List of properties given by the contemners is taken on
record. The contemners will also file a list of properties
held by their sons and unmarried daughters within one week
from to-day.
(7)If and when any property that is attached under this
Order is sought to be alienated or encumbered to raise money
to pay the liability of Rs. 11 crores stated above, the
contemners will be at liberty to approach the Court for
permission to do so.
(8)The attachment of the properties and the bank accounts
shall stand raised on the contemners furnishing the bank
guarantee as aforesaid.
(9)The order with regard to the disbursal of the amount
deposited will be passed after the amounts are deposited as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15
aforesaid.
69. The contempt petition is ordered in the above terms.
408