Full Judgment Text
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CASE NO.:
Contempt Petition (civil) 488 of 1998
Contempt Petition (civil) 281 of 1998
Appeal (civil) 1771 of 1990
PETITIONER:
BANK OF INDIA .
Vs.
RESPONDENT:
VIJAY TRANSPORT & ORS.
DATE OF JUDGMENT: 22/10/2000
BENCH:
S.P.Bharucha, Y.K.Sabhawal, Ruma Pal
JUDGMENT:
RUMA PAL, J
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This proceeding in contempt was initiated by this
Court suo
motu, on a prima- facie finding that the respondents 2
and 3 were guilty of contempt not only by dealing with
property which was custodia legis but also by disobeying
orders of Court. At the conclusion of the arguments we are
of the confirmed view that the prima facie conclusion
arrived at by us was correct, and that the respondents 2 and
3 are liable to be punished for their contumacious conduct.
The respondent No. 2 describes herself as the sole
surviving partner of the respondent No.1. The respondent
No. 3 is the husband and power of attorney holder of
respondent No. 2. The litigation out of which this
proceeding arises commenced in 1975 when the petitioner-bank
filed a suit against respondent no. 1 interalia for
recovery of a sum of Rs. 18,14,817.91. The suit was
instituted in the Court of the Sub Judge, Eluru in the State
of Andhra Pradesh. The respondent No.1 raised a counter
claim against the petitioner for a sum of Rs. 34,48,799.
On 6th July 1976, the petitioners claim was decreed only to
the extent of a sum of Rs. 1,00,418.55. The counter claim
of the respondent No.1 was however allowed in its entirety
with costs. The petitioner-bank preferred an appeal before
the High Court and prayed for stay of the execution of the
decree as far as the counter claim was concerned. The High
Court, by an order dated 28.12.1976, granted the stay
subject to the petitioner-bank depositing Rs. 16 lakhs as
well as a further sum of Rs. 48,890.95 towards costs in the
Court of the Subordinate Judge, Eluru. The respondent No.1
was given the liberty to withdraw the sum of Rs. 16 lakhs
upon furnishing a bank guarantee for the same amount. The
respondent No.1 was also given the liberty to withdraw the
amount deposited on account of costs unconditionally. The
petitioner-bank deposited the amount of Rs. 16 lakhs and
Rs. 48,890.95 in the Subordinate Judges Court at Eluru..
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The respondent No.1 withdrew both sums after furnishing a
bank guarantee in favour of the Subordinate Judge for Rs.
16 lakhs. The bank which guaranteed the amount was the
Karnataka Bank. On 20th September, 1983 the
petitioner-banks appeal was allowed by the High Court. The
High Court held that the petitioner-bank was entitled to a
decree for a sum of Rs. 18,49,209.70 together with Rs.
8,15,324.92 as interest @ 12% p.a. According to the High
Court, the petitioners claim would have to be scaled down
because of the provisions of the Andhra Pradesh (Andhra
Areas) Agriculturists Relief Act, 1938. The counter claim
of the respondent no.1 was dismissed in toto. From this
decision both the petitioner-bank and the respondent No.1
preferred appeals by way of special leave to this Court. No
stay was obtained of the High Courts decision in either of
the appeals. During the pendency of the appeals before this
Court, the petitioner-bank applied to the Subordinate Judge,
Eluru for restitution of the amount which had been deposited
by the petitioner pursuant to the order of High Court dated
28.12.1976. The Sub Judge, Eluru directed the Karnataka
Bank to deposit the sum of Rs. 16 lakhs guaranteed by it
together with the interest accumulated thereon within one
month. The Karnataka Bank complied with the order and the
amount so deposited was allowed by the Sub Judge to be
invested with the Eluru Branch of the petitioner-bank in a
Double Benefit Deposit Account for a period of 12 months.
The facts as subsequently revealed show that it was at this
point that the respondents conceived a plan to whisk away
this amount of Rs.16 lakhs a plan which was cunningly and
carefully forged, link-by-link. It started with an
application filed by the respondent No.1 before the District
Court for transferring the application for restitution from
the Sub Judge, Eluru to the Sub Court, Tadepalligudem on the
ground that there was an apprehension that the Sub Judge
Eluru, would not do justice to the respondents. The
petition was dismissed by the District Judge on 30th
September, 1985. An appeal was preferred before the High
Court on 7th October, 1985. By an ex-parte order the High
Court of Andhra Pradesh allowed the transfer. The
petitioner-bank unsuccessfully filed a review petition
before the High Court against the exparte order of transfer.
The review petition was rejected on 18th November 1985. On
the very next day ( that is, 19th November, 1985) the Sub
Judge, Tadepalligudem as full Additional Charge of
Subordinate Judge, Eluru, directed the Branch Manager of
the petitioners Eluru Branch to prematurely encash the
Double Benefit Deposit Certificate and to transfer the same
to the Sub Judge, Tadepalligudem because the execution
records had already been transferred there. On 28th
November 1985, the same Judge passed an order on the
application of the petitioner-bank stating that the bank
deposit need not be encashed until the disposal of the
pending applications for restitution. Yet, before the
applications were disposed of, on 20th December, 1985 the
Judge, on an application moved by the respondents, directed
the petitioner-bank to encash the deposit receipt for Rs.
16 lakhs and to send the same with the accrued interest by
way of Bankers cheque or Demand Draft in the name of the
Subordinate Judge, Tadepalligudem. The order was
communicated to the Branch Manager of the petitioner-bank at
Eluru by the Sheristadar and Bench clerk of the Subordinate
Judge who were accompanied by an advocate and an officer of
the State Bank of India, Tadepalligudem. All of them
insisted on the immediate encashment and payment of the
proceeds of the fixed deposit. They refused to leave until
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the Branch Manager agreed to send one of his officials to
the Tadepalligudem Court. On 24th December 1985, the
petitioners applications for restitution were taken up for
hearing. At the conclusion of the hearing, at the instance
of the respondents, a notice was issued by the Subordinate
Judge, Tadepalligudem to the petitioners Branch Manager,
Eluru directing him to appear in person on 26th December
1985 and explain why he had not complied with the order
dated 20th December 1985. On 26th December 1985, the Branch
Manager appeared before the Subordinate Judge,
Tadepalligudem and deposited the amount of Rs. 16 lakhs in
his Court in the form of a pay order. Significantly, on
that very day, a current account in the name of the
respondent No.1 was opened in the State Bank of India,
Tadepalligudem Branch by the respondent No. 3 as the Power
of Attorney holder of respondent No. 1. On 27th December
1985 at about 10.00 a.m., the Subordinate Judge,
Tadepalligudem handed over the pay order issued in his
favour by the petitioner-bank to the officer of the State
Bank of India Tadepalligudem Branch. The pay order was
cleared on the same day and the State Bank of India
deposited the proceeds after encashment in the Civil Court
Deposit Account of the Subordinate Court, Tadepalligudem.
On the same day, the Subordinate Judge issued a cheque on
the said current account for a sum of Rs. 16, 30,619.18p
with the direction to the State Bank to keep the amount in
term deposit receipt for a period of 15 days and the State
Bank of India complied with the direction. As to what
transpired after this is best stated in the language used by
the Law Officer of the petitioner-bank in his affidavit
affirmed on 1st January 1986 : On 30.12.1985 the
Sub-Judge, came to the Bench at 10.30 A.M. and pronounced
the orders in all Execution Applications at 10.45 A.M. No.
allowed E.A.207/85 and thus reviewed the orders passed in
E.A. 363/84 and dismissed E.A. 363/84 E.A.196/85 E.A.
197/85 but allowed E.A.199/85 granting interest only at 6%
while rejecting E.A.198 and 200/85. Immediately our
Advocate presented a cheque petition with an out of order
petition after due notice to the Advocate of Vijay Transport
at about 10.50 a.m. In the said petition, we stated that
the bank is entitled for the amount of the orders on the
E.As. The learned Subordinate Judge got down from the Bench
after call work at about 11.25. Suspecting that the Judge
is prepared to pay the amount to the Vijay Transport our
Advocate prepared a stay petition at 1.30 p.m. and after
notice to the respondents Advocate went to the court and
sent a word to the Sub-Judge about the said petition which
he intended to file. He was asked to wait in the Court
hall. Till about 2.55 p.m. there was no word from the
Judge and on the other hand the Advocate was informed that
the Judge and bench clerk (were) discussing about the
matter. At about 2.55 p.m our Advocate repeatedly enquired
with the court staff the reason for the delay. At 3.p.m.
on the instructions of the Sub-Judge Execution Bench clerk
received the said petition from our advocate. Meanwhile our
advocates clerk also happened to see the cheque petition
filed by Vijay Transport lying on the table of the Bench
clerk.
9. I submit that no cheque petition was presented
with any out of order petition in the open court by any of
the Advocates of the Vijay Transport or party person. I
also submit that no notice was issued either to us or to the
Karnataka Bank who has deposited Rs.16 lakhs on the cheque
petition. The Advocate for the Vijay Transport was not
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present in the court between 10.50 a.m. to 4.15 p.m. on
30.12.1985. Our Advocate Mr. Ch.S. Kameswararao waited in
the hall till 4.10 p.m. and he was informed that our stay
petitions and cheque petitions were dismissed since a cheque
was ordered in favour of M/s Vijay Transport in E.A.
252/85.
While the petitioner-banks representative was kept
waiting by the Sub Judge, it is seen from the affidavit
affirmed on 7th February 1996 by the State Bank of India in
the proceedings before us that: On 30.12.1985, the learned
Subordinate Judge, through his letter dated 30.12.1985,
enclosing the said deposit receipt requested this respondent
to cancel the term deposit receipt No.209215 dated
27.12.1985 and adjust the same to the Civil Court deposit
challan No. 157 dated 30.12.1985. Accordingly, it was done
on the same date. On 30.12.1985 itself, the learned Sub
Judge issued a Civil Court cheque favouring the 1st
Respondent for a sum of Rs.16,30,619=18. It was presented
on the same day. Hence accordingly, this respondent (i.e.
the State Bank of India) debited Civil Court deposit account
of Sub Judge, Tadepalligudem, and credited the same to the
account of 1st respondent. On the same day, the 1st
respondent presented a cheque bearing No. 248178 dated
30.12.1985 for Rs.16,00,000=00 requesting this respondent to
issue a demand draft on its Guindy Branch, Madras in favour
of 3rd respondent on debiting commission to this account.
Towards the commission, he issued another cheque bearing No.
248180 dated 30.12.85 for Rs.800=00. Thereupon, this
respondent (SBI) issued two demand drafts for
Rs.8,00,000=00 each bearing No.168997 and 168998 dated
30.12.1985 favouring 3rd respondent. Another cheque was
issued bearing No.248179 dated 30.12.1985 for Rs.25,000=00
demanding the respondent to pay cash. Accordingly, cash was
paid.
The petitioner-bank challenged the order dated 30th
December 1985 by way of a Civil Revision Petition. A stay
application was moved at the residence of the Judge of the
High Court and an interim order was passed at 9.35 a.m. on
2nd January 1996 restraining the State Bank of India,
Tadepalligudem Branch from paying the sum of Rs.16,30,619.18
p to the respondents and also restraining the respondents
from withdrawing the amount from the State Bank of India,
Tadepalligudem or their order pending further orders on the
petition. This order was communicated by a Telex message to
the State Bank of India. But the respondents withdrew the
amount on 30th December, 1985 itself and the interim order
of injunction was successfully thwarted by the respondents.
The High Court directed proceedings to be initiated for
recovery of the amount from respondent No. 1 and thereafter
payment of the money to the petitioner-bank. Despite this
order, the respondents did not repay the amount. On 3rd
March 1986, this Court in the petitioners pending appeal
directed the sale of vehicles which had been hypothecated by
respondent No. 1 to the petitioner-bank. No vehicles were
handed over by the respondent No. 1 to the petitioner-bank.
On 22nd September 1986, the following order was passed by
this Court in the appeal filed by respondents: Shri U.R.
Lalit, learned counsel for appellants M/s Vijay Transport &
Ors. states that the amount of Rupees sixteen lakhs and odd
will be deposited with Bank of India, respondent No. 1 on
or before 30th November 1986. If the amount is not
deposited within the aforesaid period this appeal will stand
dismissed.
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Needless to say, the amount was not deposited. This
is recorded in this Courts order dated 9th December 1986 in
the following words: Since the amount has not been
deposited as ordered by this Court, the appeal stands
dismissed in terms of the order dated the 22nd September
1986. The appeal is dismissed.
On 11th November 1987, the petitioner-banks appeal
from the judgment and order of the High Court dated 20th
September 1983 was allowed and the bank was given the right
to recover the entire amount decreed without any scaling
down under the Andhra Pradesh (Andhra Areas) Agriculturists
Relief Act, IV of 1938. The petitioner-bank was, therefore,
in a situation where the claim filed by them in 1975 was
ultimately decreed in 1987. But in the process it had not
only not recovered any amount from the judgment debtor, but
on the other hand, because of the machinations of the
respondents, it had been deprived of a further sum of over
Rs.16 lakhs which had been deposited by it in the custody of
the Court. The application filed by petitioner-bank before
the High Court for direction to the respondents including
the State Bank of India, Tadepalligudem Branch to deposit
the amount within a week was rejected by the order dated
18th October 1998. The petitioner- bank impugned the order
of refusal of the High Court before this Court on 18th
October 1989. Affidavits were filed. It was during these
proceedings that this Court issued the suo motu notice to
the respondent No. 2 on 29th April 1998 as under: We have
heard learned counsel for the appellant and learned counsel
for 2nd respondent. Quite apart from whether or not the
appellant succeeds in this civil appeal, the facts of the
civil appeal reveal a prima facie case of contempt of court
in that there appears to have been flagrant disobedience by
the 2nd respondent of court orders and dealings by her in
monies which were custodia legis. This court cannot turn a
blind eye to such conduct.
Issue suo moto contempt notice to the 2nd respondent
returnable in August 1998. The Civil Appeal is adjourned to
be placed on board along with the contempt notice.
The respondent No. 2 appeared in Court on 12th August
1998 pursuant to the notice. As recorded in this Courts
order: Mr. Ganguli, learned counsel for the second
respondent states that the second respondent is present in
Court and has instructed him to state that the sum of Rs.16
lacs shall be deposited by her in Court within eight weeks
without prejudice to all other rights and contentions.
To enable the second respondent to make the deposit,
the appeal is adjourned for eight weeks
Despite the express assurance given to and acted on by
the Court, the amount was not deposited. When the matter
came up after eight weeks the respondent No.2 asked for an
opportunity to file an answer to the suo motu notice. In
her answer to the notice, the respondent No. 2 for the
first time made out, what has subsequently transpired to be,
a wholly sham dispute with the respondent No. 3. She
placed the blame for non-deposit of the money on her
husband, respondent No. 3, from whom she said she had been
living separately with her son since the last few years.
She feigned ignorance of the position as far as assets and
liabilities of respondent No. 1 were concerned. Without
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going into the question of the actuality of the alleged
dispute between the respondent No. 2 and 3, on 3rd December
1998 this Court issued a suo motu notice of contempt to
respondent No. 3 for the same reasons. The respondent No.
2 was directed by this Court to hand over the draft of Rs.6
lakhs which she said was with her to the Registrar of the
Supreme Court. The Court also recorded: Learned
counsel, on instructions, undertakes to Court that the 2nd
respondent shall deposit in Court a further sum of Rs.10
lakhs within six months, without prejudice to all her rights
and contentions. The sum of Rs.10 lakhs shall be deposited
in two instalments of Rs. 5 lakhs each, the first deposit
to be made on or before 10.3.1999.. The undertaking was
not complied with and on 24th March 1999, the time to
deposit Rs. 5 lakhs was extended till 3rd June 1999. This
order was also not complied with. On 10th June 1999, the
respondent No. 2 came forward with two bank drafts
totalling Rs.3,50,000/- only. This amount was directed to
be deposited by 11th August 1999. Allowing the prayer of
the counsel for respondent No. 2, the balance was directed
to be paid within six weeks. This order was also not
complied with within the time specified and ultimately the
amount of Rs.16 lakhs was deposited by 22nd October 1999.
On 27th October 1999, the second and third respondent
submitted that the amount of Rs. 16 lakhs should be
adjusted against the decretal claim of the petitioner-bank
and that they should be given an opportunity to settle the
dispute between the parties. The matter was accordingly
adjourned. There was no settlement nor did the respondents
appear on the adjourned date. Both of them sent fax
messages stating that they were ill. By our order dated
24th November 1999 we directed non-bailable warrants to be
issued. The respondents appeared before the Court on the
returnable date, i.e., 14th December 1999, and again stated
that they wished to settle the matter. On 15th February
2000, the respondents made an unconditional offer of
settlement through their counsel. The respondents offered
to pay the decretal amount and interest @ 12% p.a. in four
equal instalments. The first instalment (approximately of
Rs.19 lakhs) was to be paid on or before 15th March 2000 and
the subsequent three instalments on or before 15th June
2000, 15th September 2000 and 15th December 2000. The Court
recorded this as well as the further submission of the
respondents: Learned counsel for the respondents 2 and 3
states that land outside Chennai belonging to respondents 2
and 3 has been mortgaged to the appellant as security in the
transaction in appeal and that land shall be security for
payment of the said amount in the manner aforestated."
It was made clear that the payment agreed to be made
was exclusive of the sum already obtained by the
petitioner-bank, namely Rs.16,92,977/- and that regardless
of whether or not the appellant has communicated to the
respondents its willingness to accept this offer, the
respondent shall deposit in this court the sum of Rs.19
lakhs on or before 15th March 2000, which, if the offer is
accepted, will be credited towards the first instalment
payable to the appellant. Neither of the respondents have
deposited the amount of Rs.19 lakhs nor any amount at all in
blatant disregard of this Courts mandate and the
respondents resiled from their unconditional offer
wholly. From time to time, the matter appeared before this
Court and it was adjourned to give the respondents every
opportunity to comply with the orders of this Court.
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Ultimately both the respondents filed two separate
affidavits which were taken on file by this Court on 24th
August 2000 in which they claimed that they had immovable
properties situated at Chettiaragaram Village, Saidapet
Taluk, Chengulpet District, bearing Survey Nos. 13, 14 & 15
which could be sold to meet the decretal claim. However,
the offer was that the sale should be made to a buyer of the
respondents choice. Having regard to the past conduct of
the respondents, we were not prepared to allow the
respondents to handle the private sale of properties
admittedly mortgaged to the petitioner bank. Both the
respondents then filed separate affidavits affirmed on 24th
August 2000 stating that the land could be sold through the
District Judge subject to the approval of this Court. When
the matter was again taken up, it was submitted by the
respondents that the property was the subject matter of
litigation and was under the custody of a Receiver. It now
appears that a suit was filed in 1990 against the
respondents and their son by a third party alleging that the
property admittedly mortgaged to the petitioner had been
agreed to be sold to such third party and at the instance of
these respondents, their son has been appointed receiver
over the property. It does not appear at what stage the
suit is. There is no explanation why the respondents did
not state this fact in the several affidavits filed before
this Court. As it was clear that the respondents were
merely prevaricating, we concluded hearing of the appeal of
the petitioner from the order of the High Court dated 18th
October 1988 by which the High Court had refused to direct
the respondents to pay the Rs.16 lakhs by a fixed date. The
appeal was allowed by us and the amount of Rs. 16 lakhs
deposited by the respondent was allowed to be withdrawn by
the petitioner. It is in this background that the contempt
proceeding is to be decided. We make it clear that the
facts relating to the events which have taken place
subsequent to the issuance of the notices are not material
for the purpose of conviction but are certainly relevant to
the question of sentence. As noted at the outset, the acts
of contempt alleged are ( i ) unauthorisedly dealing with
property custodia legis and (ii) violating orders of Court.
There is and can be no doubt that either of these two acts
if established would tantamount to contempt. Property in
custodia legis means that the property is kept in the
possession and under the protection of Court. Monies
deposited in Court by way of security are held by the Court
in custodia legis to the credit of the party who is
ultimately successful. Any other person dealing with the
account so deposited does so at his or her peril and ..
any litigative disturbance of the Courts possession without
its permission amounts to contempt of its authority.. (per
V.R.Krishna Iyer, J. in Everest Coal Company Ltd. V.
State of Bihar & Ors. 1978 (1) SCC 12. ) The amount of
Rs.16 lakhs had been kept according to the directive of the
High Court dated 28th December 1976 in the custody of the
Sub Judge, Eluru pending disposal of the appeal filed by the
petitioner-bank. Therefore, when the appeal was allowed,
the amount deposited by way of security should have been
returned to the petitioner-bank as a matter of course.
Restitution of the deposit in the event of success was
implicit in the order. There could be no other
interpretation of the order of the High Court of 28th
December 1976. In fact, when the petitioners revision
application against the Sub Judges order dated 30th
December 1985 was ultimately allowed by the High Court on
27th April 1998, it was said, The lower Court having
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allowed the revision petition and dismantling thereby the
order of restitution, strangely allowed the amount, which
was deposited by the Karnataka Bank to be withdrawn by
respondents 1 to 3, which in my undoubted view resulted in
an act of grave error. We need only add that the error
was committed at the instance of the respondents, and the
gravity was enhanced by the action of the respondents in
appropriating the amount unconditionally. It is not
sufficient for the respondent to set up the order of the
Subordinate Judge, Tadepalligudem as a shield. A judicial
proceeding which is otherwise permissible may become an
engine of fraud. Thus in Advocate General, State of Bihar
V. Madhya Pradesh Khair Industries Ltd. 1980 (2) SCR 1175,
it was held that the filing of an application may amount to
an abuse of process. In that case, the respondents obtained
interim orders from a Single Judge which had the effect of
circumventing and nullifying the effect of the orders of the
Division Bench of that High Court. This Court said, The
Court must take into account the whole course of the
continuing contumacious conduct of the respondents from the
beginning of the game. It was concluded that the conduct
of the respondents clearly showed that they were intending
to and had obstructed the due course of the administrative
of justice by abusing the process of Court. In the case
before us, the petitioner-bank anticipating that the
respondents would get payment of the amount had, immediately
after the order was passed by the Subordinate Judge,
Tadepalligudem on 30th December 1985, filed a complaint with
the Registrar, District Court, Eluru requesting immediate
intervention. The complaint was not and indeed could not be
acted upon by the Registry. On 7th January 1986 the
petitioner-bank lodged a complaint about the Subordinate
Judge, Tadepalligudem with the District Judge, Eluru. We
have been informed that after an inquiry was held, the
Subordinate Judge, Tadepalligudem was dismissed from service
in 1986. But the damage had been done. With a cynical
disregard for the administration of justice for which
purpose alone Courts exist the respondents used the
process of the law to defeat that very purpose. No doubt
the jurisdiction that the Court exercises in cases of
alleged contempt is quasi-criminal and the Court must be
satisfied on the material before it that contempt of court
was in fact committed. But that satisfaction may be derived
from the circumstances of the case. [ See: Ram Avtar
Shukla V. Arvind Shukla 1995 Suppl (2) SCC 130 ] The
circumstances obtaining in this case leave no manner of
doubt that the respondents have wilfully dealt with property
which was custodia legis. From the outcome of the inquiry
against the Sub Judge, it is clear that the order was
tainted and the dishonesty of the respondents patent.
Furthermore, the rush with which the matters were concluded
and the monies withdrawn by the respondents speak for
itself. That this was done in furtherance of a plan to reap
an illegal benefit is evidenced by the fact that even though
the respondents had not filed any application for payment to
them of Rs.16 lakhs, anticipating the order that they would
obtain, the respondents opened the current account in the
State Bank of India, Tadepalligudem four days prior to the
passing of the order dated 30th December 1985. That the
account was opened in the same Branch of the Bank in which
the Subordinate Judge, Tadepalligudem had an account, that
the petitioner- banks representative was not given any
notice of the respondents cheque petition before the Sub
Judge, and that the cheque was cleared and the money paid
out to the respondents while the petitioners petition of
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objection was filed, are all circumstances pointing to the
careful pre-planning involved. Significantly, the
respondents have not been able to show us on what basis they
received the money. Their counter claims had been rejected
by the High Court. In the appeal preferred from the High
Courts decision, the respondents had not been successful in
obtaining any stay. All these factors lead only to one
inference and that is, that the Respondents wilfully dealt
with monies in the possession of the Court without authority
of law. We, therefore, have no hesitation in holding the
respondents guilty of the first charge. As far as the
question of disobedience to orders of Court is concerned, in
his order dated 30th December 1985, rejecting the
application of the petitioner-bank for payment of Rs.16
lakhs on the ground that it was not under the appropriate
Section, the Subordinate Judge said: Money cannot lie in
the Court without any specific order or contingency. Then,
the question arose to whom the money should go? Since, the
petitions are dismissed, the Bank of India is not entitled
to the amount. Karnataka Bank (D-6) is a third party to the
suit and the Court can not pay money to him. The Honble
High Court in L.P.A. Nos. 178/76 and 185/76 held that the
money should be paid only to defendant No. 1 i.e. Vijay
Transport and no body else against proper bank guarantee
furnished by Vijay Transport. Vijay Transport has already
furnished bank joint guarantee of Karnataka Bank Ltd. which
was accepted by the Court and it should be kept in force and
valid. Therefore, the only way left to this Court is to pay
money to Vijay Transport in accordance to the directions of
the Hon’ble High Court in A.P. As. Therefore, the money of
Rs.16,00,000/- with interest accrued there for which in the
Courts deposit is to be ordered to pay to Vijay Transport
(R-1) in this case.
The respondents were aware of the order of the High
Court dated 28th December, 1976 which allowed the respondent
No. 1 to withdraw the money only against a bank guarantee
for the same amount. They knew that there was in fact no
subsisting bank guarantee furnished by the respondent No. 1
yet the respondent No. 1 withdrew the amount. The
withdrawal was in violation of the order dated 28th December
1976. Having got the amount of Rs.16 lakhs to which they
were and could not, in any view of the law, have been
entitled to, the respondents enjoyed the benefit of the
amount for about 15 years despite orders passed by this
Court on 22nd September 1986 and 12th August 1998 and it was
not until this Court initiated proceedings in contempt
against the respondents that the money was reimbursed in
driblets by the respondents. The respondents are therefore
guilty on this count also. We now come to the question of
sentence. In Dhananjay Sharma V. State of Haryana and
Others 1995 (3) SCC 757, it was said that: The stream of
justice has to be kept clear and pure and anyone soiling its
purity must be dealt with sternly so that the message
percolates loud and clear that no one can be permitted to
undermine the dignity of the Court and interfere with the
due course of judicial proceedings or the administration of
justice.
It is apparent from the facts already narrated that
both the respondents have polluted the stream of justice.
The respondents have continued with the contumacious conduct
with impunity even after the issuance of the notices to
them. In the narration of facts the phrase order not
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complied with has recurred with disturbing regularity. In
addition the unconditional offer made was resiled from;
the undertaking given to the Court was breached;
adjournments were obtained on the basis of assurances of
payment and settlement which they had no intention to
fulfil. The alleged dispute between the respondent Nos. 2
and 3 was a red herring and an attempt to wriggle out of the
undertaking given to Court . In the respondent No.2s
affidavit in answer to the notice of contempt, she said:
I was under a bonafide belief that I would be
Supported by my husband ( the third respondent in the above
Civil Appeal) and expected to seek the assistance of my son
in my endeavour. I was let down by my husband who
repeatedly kept telling me that he was taking the necessary
efforts without actually doing so. As for my son he
expressed his inability to be of any assistance,
particularly in view of the pending litigation between him
and his father. It was only at the last moment that I
realised that I was being let down and would not be in a
position to fulfill my commitment to this Honble Court. I
was also unable to convey this to my counsel sufficiently in
advance, disabling me from filing an affidavit in this
regard.
The statements are ex-facie contradictory. If there
were a dispute for the last few years between the
respondent No.2 and respondent No.3, the respondent no.2
could not have been under a bona-fide belief that she would
be supported by the respondent No.3. Also no particulars of
the alleged litigation between the respondent No.3 and the
son have been given at any stage. The only litigation
referred to before us was a suit for specific performance
filed by a third party against both the respondents and
their son. It is clear that the undertaking to this Court
was lightly given by respondent No.2 and breached with
impunity. In any event, on the respondents own showing
there was no dispute between them either when the non
compliance of orders of Court took place or when the
property of the Court was wrongly dealt with by them.
According to respondent No.3, he has acted all along as per
the instructions of 2nd respondent and that the money which
was withdrawn pursuant to the order dated 30th December,
1985 had been kept by the respondent No.2 in a fixed deposit
account in the name of their son. In order to bolster this
case, the respondent No.3 sought to rely upon the alleged
public notices published by his son against him and ex-parte
injunctions obtained by his son against his company. No
particulars of the news papers or their dates nor of the
injunction order have been given. Although, the documents
are said to be annexed to the affidavit of respondent No.3,
there are in fact no such annexures. The respondents have
all along acted in concert. They had been filing joint
affidavits before this Court till the notices to show cause
were issued. Significantly the Power of Attorney executed
by respondent No.2 in favour of respondent No.3 has
admittedly not been revoked till today. It is clear from
all these facts that the respondents have compounded the
contumacious conduct with which they were charged with
further acts of contumacy. Their alleged esteem for this
Court and the sincerity of their apology are falsified by
their unrepentant behaviour. Given the nature of the
contempt, punishment in the nature of a fine is not enough.
We have therefore no hesitation in sentencing both the
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respondents to imprisonment in addition to payment of fine.
Both of the respondents shall undergo simple imprisonment
for two months in addition to making payment of a fine of
Rs.2,000/- each. The fine is to be paid within a period of
two weeks from the date of this judgment. In default the
defaulting respondent will undergo a further period of
simple imprisonment for a period of one month.