Full Judgment Text
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PETITIONER:
MAJOR GENL. B.M. BHATRACHARJEE (RETD.) ANDANOTHER
Vs.
RESPONDENT:
RUSSEL ESTATE CORPORATION AND ANR.
DATE OF JUDGMENT04/02/1993
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
KULDIP SINGH (J)
CITATION:
1993 AIR 1632 1993 SCR (1) 750
1993 SCC (2) 533 JT 1993 (2) 109
1993 SCALE (1)444
ACT:
Contempt of Courts Act 1971:
Section 12-Court’s orde-Direction not to make further
’allotment’ of flats--Breach of order-Guilty of Contempt of
Court-Punishment-Imposing of.
Words & Phrases:
"Allotment"-Meaning of.
HEADNOTE:
The present Contempt Petition has been filed complaining
that the Respondents had allotted certain flats in favour of
third parties in violation of this Court’s order dated
1.8.91. The Petitioners’ interest has been in respect of two
flats on the 8th floor. They claimed that the said flats
had been allotted to third parties in January, 1992, long
after this Court’s order dated 1.8.91. It was also contended
that the agreement to sell was a fabricated document.
The Respondents contended that the said flats were allotted
on 26.4.91 itself, though possession of the flats was handed
over on 17.8.1991, and sale deeds were executed and
registered in March 1992. It was further contended that
inasmuch as the agreement for sale was entered into long
before the orders of this Court were issued, there was no
question of disobedience of the orders of this Court.
Finding the Respondent guilty of Contempt of Court, this
Court,
HELD : 1.1. Even assuming that the agreement of sale dated
26.4.1991 is true, the respondents have committed gross
contempt of this Court by their brazen violation of the
order dated 1.8.1991. By the said order this Court directed
the respondents 1 and 2 not to make "any further allotment
of any other flats in the building in dispute with effect
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from today". The word "allotment" must be understood
reasonably and having regard to the context The first
respondent is not like a Government Department or Public
Corporation where an allotment order or allotment letter is
issued from the office in pursuance of which other steps are
taken. There is no such thing as "allotment" in this case.
According to the Respondents there was first an agreement of
sale, then delivery of possession and finally a registered
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sale deed. In the context and circumstances of the case,
the word "allotment in the said order means making over of
the flats; it means delivery of possession and registration
of the sale-deeds. An agreement of sale, that too
unregistered, has no significance in the context, difficult
as it is to verify its truth and correctness. This court
could not be presumed to have interdicted such an uncertain
thing. Admittedly the respondents had represented to this
Court, at the time the said order was passed, that they have
already entered into agreements of sale in respect of the
flats and yet this Court chose to pass the said order. In
the circumstances, it cannot mean anything else than
delivery of possession of flats and their sale. It may also
mean an agreement of sale but its meaning is certainly not
confined to an agreement of sale. To say so is to rob the
order of any meaning or content. There could not have been
any doubt in the mind of the Second Respondent with respect
to the meaning of the order. In case of any doubt the least
he could have done was to ask for a clarification of the
said Order. He could well have represented that be had
already entered into an agreement of sale on 26.4.1991 in
respect of these flats and that he may be permitted to
deliver possession and/or execute sale-deeds in respect of
the said flats in favour of third parties. He did nothing
of the sort Having placed a highly restrictive and
unwarranted interpretation upon the order of this Court, he
went ahead and not only delivered possession of the flats to
third parties subsequent to the said order but also
registered sale-deeds in their favour. He thus rendered the
said order nugaptory. [755E-H, 756A-E]
1.2.The conduct of the second respondent as evidenced from
the material on record establishes beyond doubt that he was
trying to play with this Court and was consistently flouting
its orders. [758H, 759A]
2. So far as the apology tendered by the second respondent
is concerned it is not really an unconditional apology.
While tendering apology the second respondent has tried to
defend his action. Even if it is
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considered as unconditional apology this Court is not
inclined to accept the same having regard to the conduct of
the respondent Accordingly, the apology tendered by
Respondent No.2 is rejected. [759E-G]
3. The second respondent is guilty of Contempt of this Court
Having regard to the facts and circumstances of this case, a
sentence of one month’s imprisonment in addition to a fine
of Rs. 2,000 is imposed upon him. The fine shall be paid
into this Court within two weeks and in default thereof the
second respondent shall undergo a further imprisonment of
two weeks. [760A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Contempt Petition No. 159 of
1992.
IN
Special Leave Petition (C) No. 12709 of 1991.
From the Judgment and Order dated 26.4.1991 of the Calcutta
High Court in Appeal No. 232 of 1990.
M.L. Verma, R. Mukhejee, J. Gupta and M.L. Chibber for the
Petitioners.
Ranjan Dutta, Mrs. N. Dutta, Mrs. Mridula Ray and M.N.
Shroff for the Respondents.
The Judgment of the Court was delivered by
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B.P. JEEVAN REDDY, J. In a suit for specific performance
certain interlocutory orders were passed by a Single Judge
of the Calcutta High Court. On appeal a Division Bench of
the said Court modified the said orders. A number of
special leave petitions were filed in this Court against the
orders of the Division Bench. Though the petitioners in
these special leave petitions are different, the contesting
respondents in all these cases are common, namely Russel
Estate Corporation and its managing partner Sri Hari Narayan
Bhan.
For the purpose of this petition, it is enough to mention
that each of the petitioners in these S.L.Ps. is claiming to
be entitled to allotment of one or more of the flats being
constructed by the respondents at Calcutta. Their complaint
has been that ignoring the agreements in their favour, the
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respondents have been allotting the constructed flats in
favour of third parties thereby seeking to defeat their
rights. On 1.8.1991 a Bench of this Court comprising S.
Ranganathan, M. Fathima Beevi and N.D. Ojha, JJ. passed the
following order in I.A. No.2 of 1991 after hearing the
respondents.
"Counsel accepts notice. in the meantime, till
this Special Leave Petition is disposed of,
respondents 1 & 2 should not make any further
allotment of any other flats in the building
in dispute, with effect from today.
Counsel for the petitioner contends that the
allotment of the flat, originally allotted to
him, to some other person violates an oral
order of a Division Bench of the High Court.
It will be open to the petitioner to move the
High Court for appropriate relief in this
regard if so advised."
This Contempt Petition is filed complaining that the
respondents have allotted certain flats in favour of third
parties in violation of the said order.
So far as the petitioners in this Contempt Petition (Major)
Genl. B.M. Bhattacharjee and Smt. S. Laha) are concerned,
they claim to be interested in the flats on the 8th floor of
the said building. At any rate the complaint in this
Contempt Petition pertains to the said two flats. The
petitioners say that the said flats have been allotted to
the third parties in the month of January, 1992. They rely
upon the report of a group of investigators (National Bureau
of Investigation) in support of the said plea.
Notice was issued to the respondents. In their counter
(filed by Shri Hari Narayan Bhan) it is stated that the two
floors on the 8th floor (described as east and west flats)
were allotted on 26th April, 1991 itself i.e., long prior to
the order of this Court dated 1.8.1991. It is denied that
the allotment of said flats took place in the month of
January, 1992. The correctness of the Report of the
National Bureau of Investigation is disputed. It is,
however, conceded that the possession of the said flats was
handed over to the said third parties on 17th August, 1991
which is admittedly a date subsequent to the date on which
this Court passed the aforesaid restraint order. It is also
not disputed by them that the registered sale-deeds in
respect of said flats in favour of the said third parties
were
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also executed in March, 1992.
The report of the Receiver (Smt. Pratibha Bonnerjea, a
retired Judge of the Calcutta High Court who was appointed
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as such by an order of this Court dated 7.1.1992) also
supports the petitioners’ allegations. The relevant portion
of the Report reads as follows:
"Present condition of these two flats in the floor.
The western apartment in the 8th floor is
occupied by one Mr. & Mrs. Kamal Thavrani, Ms.
Thavrani said that they are in occupation of
the flat from December, 1991. Mr. K.K.
Thavrani said that he had taken both the
eastern and western apartments in the 8th
floor. He produced a copy of the agreement
executed on 26.4.91 on a stamp paper purchased
on 26.4.91 by M/s. Russel Estate Corporation.
The agreement relates to both the flats on the
8th floor for a total consideration of Rs.
13,40,000. It is stated that the occupiers
have taken possession in December, 1991. Mr.
Thavrani submits that the conveyance have been
registered in March, 1992 but he is unable to
produce the registered conveyance as the same
is still lying with the Registrar. We found
eastern flat was not complete. Wooden work
was going on. Photos Nos. 3 to 5 are attached
to this effect."
At the bearing of this Contempt Petition the respondents’
counsel took the stand that the delivery of possession on
17.8.1991 and the execution of the registered sale-deed in
March, 1992 do not constitute violation of the Order dated
1.8.1991. His submission is that this Court merely
restrained the allotment of flats. Allotment, according to
the learned Counsel, means entering into the agreement of
sale. Inasmuch as the agreement of sale with respect to the
said two. flats on the 8th floor was entered into long prior
to the said Order of this Court, it is submitted, there is
no disobedience to the order of this Court. it is submitted
that delivery of possession and the registration of the
sale-deed(s) is in pursuance of the aforesaid agreement of
sale and not in pursuance of any agreement of We entered
into on or after 1.8.1991. The counsel further submitted
that even on the date when the aforesaid order was passed on
1.8.1991, the second respondent had represented to this
Court that agreement of sale in respect
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of all the flats have already been entered into. In this
view, it is submitted, there has been no misrepresentation
or suppression of relevant facts on their part.
We may mention that when we indicated our disagreement with
the above stand during the course of hearing, the counsel
for the respondents, Shri Dutta took time till 14th of
January, 1993 to file a further affidavit/additional counter
and/or documents in continuation of the counter already
filed. The second respondent has accordingly filed a
further affidavit on 14.1.1993.
The counsel for the petitioners’ disputes the correctness,
genuineness and validity of the agreement, allegedly entered
into on 26.4.1991 in respect of said flats. According to
him, it is a fabricated document. He points out that the
stamp paper for the said agreement of sale was purchased by
the Russel Estate Corporation and not by the purchaser of
the flats. It is also pointed out that the agreement is
not a registered one and that it could have been fabricated
at any time putting a back date.
It is not necessary for us to pronounce upon the disputed
question whether the agreement dated 26.4.1991 relating to
the said two flats on the 8th floor is true and genuine.
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Assuming that the said agreement is true, we are yet of the
opinion that the respondents have committed gross contempt
of this Court by their brazen violation of the order dated
18 1991. By the said order this Court directed the
respondents 1 and 2 not to make "any further allotment of
any other flats in the building in dispute with effect from
today.’ Now what does the word "allotment" mean in the
context. In our opinion, the said word must be understood
reasonably and having regard to the context. The first
respondent is not like a Government Department or Public
Corporation where an allotment order or allotment letter is
issued from the office in pursuance of which other steps are
taken. The first respondent is a proprietary concern,
according to the petitioners, whereas according to the
respondents it is a partnership concern. In either event,
there is no such thing as "allotment" in its case. Even
now, it is not their case that they have issued any orders
or letters of allotment. According to them, there was first
an agreement of sale, then delivery of possession and
finally a registered sale deed. We are of the opinion that
in the context and circumstances, the word "allotment" in
the said order means making over of the flats. In other
words, it means delivery of possession
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and registration of the sale-deeds. An agreement of sale,
that too unregistered, has no significance in the context,
difficult as it is to verify its truth and correctness.
This court could not be presumed to have interdicted such an
uncertain thing. It must be remember that even according to
the respondents they had represented to this Court, at the
time the said order was passed, that they have already
entered into agreements of sale in respect of the flats and
yet this Court chose to pass the said order. In the
circumstances, it cannot mean anything else than delivery of
possession of flats and their sale. It may also mean an
agreement of sale but its meaning is certainly not confined
to an agreement of sale. To say so, as do the respondent,
is to rob the order of any meaning or content.
Mr. Dutta, the learned counsel for the respondents contended
that the second respondent understood the allotment in a
particular manner and that the said misunderstanding, if
any, was bona fide. We are not prepared to agree. Firstly,
there could not have been any doubt in the mind of
Respondent with respect to the meaning of the order.
Secondly, assuming that he had any doubt regarding its
meaning, the least he could have done was to ask for a
clarification of the said Order. He could well have
represented that he had already entered into an agreement of
sale on 26.4.1991 in restpect of these flats and that he may
be permitted to deliver possession and/or execute sale-deeds
in respect of said flats in favour of third parties. He did
nothing of the sort. Having placed a highly restrictive and
unwarranted interpretation upon the order of this Court, he
went ahead and not only delivered possession of the flats to
third parties subsequent to the said order but also
registered sale-deeds in their favour. He thus rendered the
said order nugatory. It was not open to the respondents to
place a convenient interpretation upon the order and proceed
to act upon it, thereby totally nullifying the order of this
Court.
In this context, we ought to refer to the conduct of the
second respondent as disclosed from the order of this Court
dated August 7, 1992 to which one of us (B.P. Jeevan Reddy,
J.) was a party. The first two paragraphs of the said order
may be quoted in rull.
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"In these special leave petitions notice was
duly served on the respondents and the matters
came up for hearing initially before a Bench
of this Court comprising of Ranganathan J.,
Fathima Beevi J. and Ojha J. on 31.7.91 and
757
1.8.91when the parties were heard and certain
interim orders were passed. Thereafter it was
listed before a Bench of this Court (of which
Ranganathan J. and V. Ramaswami J. were
members) on a number of occasions at which the
respondents were represented and no objection
was voiced against the hearing of the matters
by the said Bench. However, sometime later an
attempt was made on behalf of the respondents
to have these matters transferred from this
Bench to some other Bench on the allegation
that one of the Judges (Ranganathan J.) was
biased against the respondents. This request
was made before a Bench presided over by the
learned Chief Justice by the second respondent
who appeared in person and made the request
for the transfer of the case. The prayer was
rejected by the learned Chief Justice on
11.11.1991. Thereafter the matter was again
fisted before a Bench consisting of
Ranganathan J., V. Ramaswami J. and Ojha J. On
different occasions without any demur from the
parties. It was then listed before a Bench
comprising of Ramaswamy J., Yogeshwar Dayal J.
and Mohan J. on 4.3.92. This Bench directed
the cases to be posted before a Bench of which
Ranganathan J. is a member. About this time,
an application seems to have been presented to
the Registrar that this case should be
transferred to some other Bench. However, the
matters came up before us again some time last
week when counsel for the respondents agreed
that the matters may be listed this week. The
matters were fisted yesterday. A person
claiming to be the son of the second
respondent made a request that the matter
should not be heard by this Bench. We
rejected this request and made it clear to him
that he should make arrangements for the
conduct of the case. The matters did not
reach yesterday and when the matters came up
today, a letter dated 6.8.92 written by the
second respondent to his counsel revoking the
counsel’s vakalatnama has been placed before
us. But the respondent No. 2 did not appear
before us nor did he make other arrangements
for the conduct of the case. Sri Chatterjee,
his advocate on
758
record, appeared but expressed his inability
to conduct the case since his client had
withdrawn the vakalatnama. We understand that
in one of the matters the respondents are
represented by another counsel whose
vakalatnama is also seen to have been revoked
but she has not appeared or sought permission
to withdraw from the case. In these
circumstances we have no other option but to
proceed against the respondents ex parte.
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We are unable to accede to the respondents
request made on a previous occasion by the son
of the second respondent for transfer of case
to some other Bench. The circumstances
narrated above would show that the respondent
has appeared before the Bench on several
occasions without protest. The request made
for transfer, after the rejection of the
earlier petition by the learned Chief Justice,
is belated and is just an attempt by the
second respondent to circumvent the order
already passed by the Chief Justice rejecting
a request for transfer and only because the
Constitution of the Bench is not to his
liking. Such a request, we are clear, cannot
be countenanced."
It should be noticed that the said order dated August 7,
1992 was passed not only in the special leave petitions but
also in this very Contempt Petition. The attitude adopted
by them before the Receiver (Smt. Pratibha Bonnerjea
retired Judge of Calcutta High Court, appointed by this
Court as a Receiver in this case) also discloses the total
disregard and disrespect the Respondents have towards the
orders of this Court. The Receiver says:
"The next day, by a letter dated 22.8.92, Mr.
H.N. Bhan informed me that he would not submit
to the order dated 7.8.92 as the Bench was not
properly constituted due to the fact that the
Hon’ble Mr. Justice V. Ramaswami was one of
the judges and that an application would be
moved for recalling the said order.
Thereafter, there was complete non-cooperation
by M/s. Russel Estate Corporation."
The conduct of the second respondent as evidenced from the
aforesaid material establishes beyond doubt that the second
respondent
759
was trying to play with this Court and was consistently
flouting its orders. In the circumstances, the theory of
bona fide belief, now put forward before us by his counsel,
cannot be accepted.
We may at this stage deal with the further affidavit filed
by the second respondent on 14.1.1993. In para 3 of the
affidavit the second respondent has stated that he has the
highest regard for this Court, that he has all along
complied with the orders passed by this Court and that he
never intended to flout or defy the orders of the Court. He
stated further "if in spite of the aforesaid, any order of
this Hon’ble Court has been violated, the same has been so
done through mistake, inadvertence and by a misunderstanding
of the meaning and purport of that order and surely not
intentionally and for which unconditionally apologise for
self and on behalf of the Respondent firm and I beg to be
excused."
Then in paragraphs 4 to 12 he has "without waiving the
aforesaid and fully relying thereupon" repeated the
contentions which were urged by his counsel before us and
which we have dealt with hereinbefore. He stated that he
understood this court’s order dated 1.8.1991 as prohibiting
only the entering into of agreements of sale and not
delivery of possession or registration of the sale deeds.
All the said contentions we have dealt with hereinbefore.
They need not be reiterated here.
So far as the apology contained in para 3 of the second
respondent’s further affidavit is concerned, it may firstly
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be mentioned that it is not really an unconditional apology
though it purports to say so. While tendering unconditional
apology in para 3, the second respondent has tried to defend
his action in the subsequent paragraphs. Secondly, even if
we construe paragraph 3 as tendering an unconditional
apology, we are not minced to accept the same having regard
to the conduct of the respondent which we have adverted to
hereinbefore with reference to the order of this court and
the report of the Receiver. Accordingly, we reject the
apology tendered in para 3 of the further affidavit.
For the above reasons, we hold the second respondent guilty
of Contempt of this Court. Having regard to the facts and
circumstances of this case, we impose a sentence of one
month’s imprisonment in addition to a fine of Rs. 2,000 upon
the second respondent. The fine shall be paid into this
Court within two weeks from today, in default thereof the
second
760
respondent shall undergo a further imprisonment of two
weeks. The second respondent shall also pay the costs of
the respondents in this Contempt case which are assessed at
Rs. 5,000 within two weeks from today. In case of failure,
the Respondents are free to execute this order as a decree
of Court and recover the same from the Respondents. Mr.
H.N. Bhan, who is present in the court, be taken into
custody forthwith to undergo the sentence of imprisonment.
G.N.
Petition allowed.
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