Rajasthan High Court - Jodhpur
B.S.N.L.& Anr vs C.K.Mathew Chief Sec.& Ors on 14 May, 2013
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. Civil Contempt Petition No.4/2013
in
S.B. Civil First Appeal No.77/2012
B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013
1/20
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B. Civil Contempt Petition No.4/2013
in
S.B. Civil First Appeal No.77/2012
B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
DATE OF ORDER ::: 14th May 2013
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
REPORTABLE
Mr. Jagdish Vyas, for the petitioners.
Mr. K.K. Bissa, for the respondents.
--
BY THE COURT:
1. This contempt petition has been filed by the petitioner (Decree-Holder), Bharat Sanchar Nigam Ltd. (A Government of India Undertaking) through its Deputy Assistant Manager (Planning) in the office of General Manager, Telecom, District, BSNL, Jodhpur Mr.R.C. Vyas, alleging therein that in the first appeal filed by the defendant- State of Rajasthan before this Court under Section 96 CPC, against the judgment and decree of the learned Additional District Judge No.2, Jodhpur Metropolitan, Jodhpur, a coordinate bench of this Court while admitting the First Appeal No.77/2012- State of Rajasthan & Ors. Vs. BSNL, the coordinate bench of this Court has disposed of the stay petition of the said First Appeal with a direction that the effect and operation of the judgment and decree dated S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 2/20 13.12.2011 shall remain stayed provided the appellant-State deposits 50% of the decretal amount and the State functionaries have not complied with that interim order of this Court and hence they have committed civil contempt.
2. After serving a legal notice (Annex.3) dated 14.07.2012 on behalf of decree-holder- BSNL upon the defendants authorities of State of Rajasthan calling upon them to deposit a sum of Rs.42,61,485/- including interest; and if the defendants fail to deposit the same, the decree-holder threatened contempt action against the defendants, the authorities of the State. In the said notice (Annex.3), the learned advocate serving the said notice, Mr. Jagdish Vyas, also stated that otherwise appropriate execution proceedings for the decree will also be taken against the judgment-debtor State.
3. It may be stated here that the present suit was filed by the BSNL against the State authorities, mainly against the Rajasthan Urban Infrastructure Development Project, Jodhpur (RUIDP), which was assigned the contract of undertaking the road repair work inside the walled city of Jodhpur and during the process of such construction of road, the cables laid by the plaintiff-BSNL were damaged and for the purported loss caused to the plaintiff-BSNL by such damages to the cables, the plaintiff claimed Rs.1,50,000/- for each cut of cable at different places. The said suit was contested by the defendant- State, inter-alia, on the ground of limitation and non- serving the mandatory prior notice under Section 80 of the CPC and S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 3/20 also on merits. The learned trial court, however, over-ruling the preliminary objections apparently without any substantive evidence of actual damage caused to or suffered by the plaintiff-BSNL, decreed the suit of the total claimed amount of Rs.64,98,000/- to be paid with interest to BSNL.
4. Being aggrieved by the said judgment and decree of the learned trial court of Additional District Judge, No.2, Jodhpur Metropolitan, Jodhpur, the State of Rajasthan and RUIDP preferred the aforesaid First Appeal being CFA No.77/2012- State of Rajasthan & Ors. Vs. BSNL, before this Court, in which the aforesaid interim order came to be passed after hearing both the counsels, as the present petitioner (plaintiff) entered caveat in the said first appeal on 16.03.2012.
5. From a bare perusal of the interim order dated 16.03.2012, which is quoted hereunder for ready reference, it appears that neither any specific time frame was given for depositing of the said 50% of the decretal amount by the coordinate bench of this Court, nor any execution proceedings in regular manner under Order 21 CPC appear to have been undertaken by the decree-holder (BSNL) before the Executing Court below. The order reads as under:-
"HON'BLE Mr. JUSTICE G.K. VYAS Date of Order: 16.03.2012 "Admit. Issue notice. Notices need not be issued as Mr. Jagdish Vyas, learned counsel has already entered caveat on behalf of the respondents. Call for S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 4/20 the record.
The stay application is disposed of with the direction that effect and operation of the judgment and decree dated 13.12.2011 shall remain stayed provided the appellant deposits 50% of the decretal amount."
6. Mr. Jagdish Vyas, learned counsel for the petitioner, BSNL, urged that the aforesaid interim order was even challenged by the State of Rajasthan before the Division Bench of this Court by way of DBSAW (C) No.5/2012-State through Chief Secretary of Rajasthan & Ors. Vs. B.S.N.L. & Anr., which appeal, however, came to be dismissed by the Division Bench of this Court on 25.10.2012 as the aforesaid order was only an interlocutory order of the learned Single Judge of this Court, which was questioned before the Division Bench. The order passed by the Division Bench of this Court dismissing the State's appeal on 25.10.2012 is also quoted herein below for ready reference: -
"Interlocutory order has been questioned. Same is discretionary. We do not find any ground to interfere in the order particularly money decree was there directing deposit of 50% of the decretal amount.
The intra-court appeal being devoid of merit, is hereby dismissed. Civil Misc. Stay application No.8691/2012 is also dismissed.
It is open to the appellant to pray for early hearing of the matter before the Single Bench."
7. Learned counsel for the petitioner, BSNL, Mr. Jagdish S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 5/20 Vyas, also urged that after waiting for sufficient period, the petitioner, BSNL preferred to invoke the contempt jurisdiction of this Court by filing this contempt petition in this Court on 09.01.2013.
8. In the present contempt petition, notices were issued to the respondents including the Chief Secretary of Govt. of Rajasthan, (Mr. C.K. Mathew), Secretary, Urban Development Department, Govt. of Rajasthan, (Mr. G.S. Sandhu) and the District Collector, Jodhpur (Mr. Gaurav Goyal) and Superintending Engineer, RUIDP, Jodhpur (Mr. S.L. Mathur) by a coordinate bench of this Court.
9. Reply to the contempt petition has been filed today by Mr. K.K. Bissa, Additional Govt. Counsel on behalf of respondents No.2 and 3, Mr. G.S. Sandhu, Secretary, Urban Development and Mr. Gaurav Goyal, District Collector, Jodhpur. Along-with the reply, a Cheque No.051455 dated 06.05.2013 of Rs.38,26,340/- issued in favour of S.E., R.U.I.D.P., Jodhpur (endorsed in favour of AO (Cash), B.S.N.L. GMTD, Jodhpur) as desired by the petitioner's counsel has been produced in the Court today. In the reply, the respondents have also tendered their unconditional apology saying that they do not have any intention to disobey or flout the order of this Court and if this Court comes to the conclusion that there has been any disobedience on their part, which according to them, was neither deliberate nor willful, their apology may be accepted and the contempt proceedings may be dropped.
10. I have heard the learned counsels for the parties at length and perused the record of the case including the judgment and S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 6/20 decree against which the first appeal filed by the State is pending in this Court, in which the aforesaid interim order came to be passed by a coordinate bench of this Court and out of which the present contempt petition arises.
11. From the above interim order, it is clear that while admitting the first appeal of the defendant- State and RUIDP, the stay application was disposed of with the direction that effect and operation of the judgment and decree dated 13.12.2011 in favour of BSNL under appeal shall remain stayed provided the appellant-State of Rajasthan deposits 50% of the decretal amount. There is no time limit given by the learned Single Judge for depositing the said amount. The contention raised by the learned counsel for the petitioner (decree-holder), BSNL, Mr. Jagdish Vyas is that he served a notice on the respondents Annex.3 dated 14.07.2012 by registered post, to which reply was also sent by the respondent No.4, Mr. S.L. Mathur, Supdt. Engineer, RUIDP, Jodhpur vide Annex.4 dated 22.07.2012 alleging therein that the order of the learned Single Judge, of which the compliance is being sought by the BSNL, has already been challenged by the appellant- State before the Division Bench of High Court by way of special appeal (DBSA (C) No.5/2012), which is pending and, therefore, till the matter is subjudice before the Division Bench, the petitioner is requested to wait for further action in the matter. It was stated at bar by the learned counsel for the petitioner, Mr. Jagdish Vyas and agreed by Mr. K.K. Bissa, also that the Division Bench dismissed the aforesaid appeal of the State vide S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 7/20 the order dated 25.10.2012.
12. Mr. Jagdish Vyas, learned counsel for the petitioner, BSNL, therefore, contended that in these circumstances, the petitioner-BSNL filed the present contempt petition on 09.01.2013, however, he submitted that neither any regular execution proceedings seeking execution of the decree in favour of BSNL was filed nor they moved the learned Single Judge for seeking any modification of the interim order of this court for further direction to the respondents to immediately deposit the said 50% of the decretal sum within the stipulated time frame or for vacation of said stay order since the condition of deposit of 50% sum has not been complied with by the State.
13. This Court is the opinion that the contempt jurisdiction invoked by the petitioner- BSNL in the present case is an abuse of contempt jurisdiction of this Court for the so-called non-compliance of the interlocutory/interim order passed by this Court. It is true that even the interim orders are bound to be complied with by the respondents, but in the absence of any time frame given by the learned Single Judge in the order dated 16.03.2012 while admitting the first appeal of the State against the decree in favour of plaintiff-BSNL awarding the compensation in their favour to the tune of Rs.64,98,000/- for the purported damage caused to their cables while undertaking the work of repair and construction of roads within the walled city of Jodhpur, such compliance could not be sought through contempt jurisdiction rather than filing of the execution application under Order 21 CCP S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 8/20 with the permission of this Court during the pendency of the first appeal itself. The BSNL could very well apply to this Court for such permission to proceed with the execution of the decree after vacation of the stay in favour of State for such non-deposit of the 50% amount of the decretal sum.
14. Time and again, the Hon'ble Supreme Court as well as this Court and various other High Courts of the country have held that contempt jurisdiction is not to be losely and frequently used; and at least for seeking compliance with the interlocutory/interim orders, such jurisdiction cannot be invoked because by that time, the final rights of the parties are yet to be determined. In the case of R.N. Dey & Ors. Vs. Bhagyabati Pramanik & Ors. reported in (2000) 4 SCC 400 the Hon'ble Supreme Court held that weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. The contempt jurisdiction is to be exercised for maintenance of court's dignity and majesty of law, and an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court.
15. Almost in similar circumstances as are involved in the present case, where the first appeal was filed before the appellate court, the High Court in a land acquisition matter, ordered interim payment to the appellants and the appellants-defendants also filed S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 9/20 application for vacation of order regarding payment but the respondents filed a contempt petition against the appellants for not making such payments, the Hon'ble Supreme Court in the aforesaid case allowed the appeal of the contemnors and held as under: -
"7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 10/20 unjustified.
8. Further, the decree-holder, who does not take steps to execute the decree in accordance with the procedure prescribed by law, should not be encouraged to invoke contempt jurisdiction of the court for non- satisfaction of the money decree. In land acquisition cases when a decree is passed the State is in the position of a judgment-debtor and hence the court should not normally lend help to a party who refuses to take legally-provided steps for executing the decree. At any rate, the court should be slow to haul up officers of the Government for contempt for non-satisfaction of such money decree."
16. In the case of Modern Food Industries (India) Ltd. Vs. Sachidanand Dass & Anr., reported in 1995 Supp. (4) SCC 465, the Hon'ble Supreme Court held that it was not proper for the High Court to proceed with the contempt petition first for the alleged disobedience of the order of the learned Single Judge while the appeal filed against that judgment along-with stay application before the Division Bench was still pending and following its earlier view in the case of State of J & K Vs. Mohd. Yaqoob Khan, (1992) 4 SCC 167, the Hon'ble Apex Court in para 3 to 4 held as under:
"3. The learned Single Judge of the High Court by his Order dated January 10-1-1992 quashed the order of termination of the services of the first respondent by the appellants and directed his reinstatement and payment of back salary. Appellants preferred an appeal to the Division Bench and so sought a stay, pending appeal, of S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 11/20 the operation of the learned Single Judge's order. The Division Bench did not take up the appeal for admission nor considered the prayer for interlocutory stay. In the meanwhile, on the allegation that the learned Single Judge's order had not been obeyed, the first respondent moved for initiation of proceedings for contempt against the appellants pursuant to which the High Court directed the Chairman of the first appellant to appear in person so that the complaint of contempt be proceeded with.
4. Before the High Court, appellants urged that before any contempt proceedings could be initiated, it was necessary and appropriate for the Division Bench to examine the prayer for stay, or else, the appeal itself might become infructuous. This did not commend itself to the High Court which sought to proceed with the contempt first. We are afraid, the course adopted by the High Court does not commend itself as proper. If, without considering the prayer for stay, obedience to the Single Judge's order was insisted upon at the pain of committal for contempt, the appellants may find, as has now happened, the very purpose of appeal and the prayer for interlocutory stay infructuous. It is true that a mere filing of an appeal and an application for stay do not by themselves absolve the appellants from obeying the order under appeal and that any compliance with the learned Single Judge's order would be subject to the final result of the appeal. But then the changes brought about in the interregnum in obedience of the order under appeal might themselves be a cause and source of prejudice. Wherever the order whose disobedience is complained S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 12/20 about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. To keep the prayer for stay stand-by and to insist upon proceedings with the complaint for contempt might in many conceivable cases, as here, cause, serious prejudice. This is the view taken in State of J & K v. Mohd. Yaquoob Khan."
17. In the case of State of J & K Vs. Mohd. Yaqoob Khan, (1992) 4 SCC 167, the Hon'ble Apex Court held as under: -
" The direction of the High Court although passed as an interim order in a pending interlocutory matter was, in substance, a final order allowing the writ petition in part without hearing the other side. The direction was not for maintenance of status quo; nor again was it a restraint order on the State authorities forbidding them from taking any step to which the writ petitioner could have an objection. As a result of the interim direction, the writ petition was to receive the fruits of the decree to the extent of half. The facts disclose that the stakes in the case are very high. According to the State it had already paid a huge amount of money. Mainly it has discharged its obligation in full. Hence it is not liable to pay anything further or to deliver any timber as claimed by the writ petitioner. That issue remains to be decided at the time of final hearing of the writ petition. The dispute, therefore, will be covered by Section 47 of the Code of Civil Procedure. It will be a serious question to consider S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 13/20 whether in these circumstances the writ petition was entitled to maintain his application under Article 226 at all. It would not be proper to decide any of these controversies between the parties at this stage except holding that the orders passed in the contempt proceedings were not justified, being premature, and must, therefore, be entirely ignored. "
18. In a recent decision, the Hon'ble Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi reported in (2012) 4 SCC 307 explaining the role of execution vis-a-vis contempt proceedings held that the proper and advisable first mode of enforcement of the order is to file application under Order 39 Rule 2A CPC for enforcement of the interim order/undertaking to the Court when the suit is pending or to file application for execution in case suit has been decreed based on undertaking or otherwise, and in such circumstances, the contempt jurisdiction cannot be invoked merely because the other remedies may take long time or are more circumlocutory. The relevant extract of para 18 and 26 of the said judgment is quoted herein below for ready reference: -
"In case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC as opposed to the contempt proceedings which are summary and discretionary in nature and can be exercised only when effective alternative remedy is not available. The contempt proceedings cannot be invoked merely because S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 14/20 other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order 39 Rule 2-A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.
In the instant appeal the court decreed the suit on the basis of an undertaking made by the appellant- defendant and the pleadings taken by him in his written statement. Therefore, in a case where there was disobedience of the said judgment and decree, the application under Order 39 Rule 2-A CPC should not have been entertained. Such an application is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit. In the instant case, no interim order had ever been passed. Thus, the appropriate remedy available to the decree-holder was to file an application for execution under Order 21 Rule 32 CPC. The procedure in execution of an injunction decree is same as prescribed under Order 39 Rule 2-A i.e. attachment of property and detention of the disobedient to get the execution of the order. In view thereof, all subsequent proceedings were unwarranted."
19. From the aforesaid legal position, in view of the factual matrix of the aforesaid case, this Court is of the opinion that the contempt jurisdiction cannot invoked against the respondents.
S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 15/20
20. The remedy available to the decree-holder, BSNL was to seek leave of this Court in the first appeal of the State itself to proceed with execution of decree or to seek vacation of the stay order dated 16.03.2012 in favour of appellant- State upon such non-deposit of 50% of decretal sum; or in the alternative, to seek a modification of the order for direction to the judgment-debtor- State to deposit the said 50% of the decretal amount within a stipulated time frame. In the absence of any such proceedings undertaken, straightaway filing of the contempt petition by the petitioner- BSNL cannot be held to be proper and the contempt jurisdiction of this Court cannot be invoked at their instance.
21. Moreover, this Court is of the view that apparently this is a fight between the Central Government undertaking BSNL and the State of Rajasthan. It is indeed unfortunate that two wings or two State instrumentalities in a federal State are fighting with each other in the courts of law. Such practices have been deprecated by the Apex Court of the country on various occasions. In the case of Oil and Natural Gas Commission & Anr. Vs. Collelctor of Central Excise reported in (1995) Supp. 4 SC 541, the Hon'ble Supreme Court even held that no such litigation inter-se the various instrumentalities of the State and the Department of the Government can be initiated without seeking clearance from the Central Government and the High Empowered Committee. The Hon'ble Apex S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 16/20 Court held as under: -
"1. We are happy to find that the Cabinet Secretary has taken the appropriate initiative as indicated in our order dated September 11, 1991 and has reported to us that the dispute between the Government Department and the Public Sector Undertaking of the Union of India has been settled. In that view of the matter no further action is necessary on the petition.
2. In his report the Cabinet Secretary has stated :-
I would also like to state that the Government respects the views expressed by this Honourable Court and has accepted them that public undertakings of Central Government and the Union of India should not fight their litigation in Court by spending money on fees on counsel, court fees, procedural expenses and wasting the public time. It is in this context that the Cabinet Secretariat has issued instructions from time to time to all Departments of the Government of India as well as to public undertakings of the Central Government to the effect that all disputes, regardless of the type, should resolved amicably by mutual consultation or through the good offices of empowered agencies of the Government or through arbitration and recourse to litigation should be eliminated.
3. We direct that the Government of India shall set up a Committee consisting representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and Public Sector Undertaking of the Government of India and Public Sector Undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 17/20 clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior Officers only should be nominated so that the Committee would function with status, control and discipline.
4. It shall be the obligation of every court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with.
5. The Committee shall function under the ultimate control of the Cabinet Secretary but his delegate may look after the matters. This Court would expect a quarterly report about the functioning of this system to be furnished to the Registry beginning from 1st January, 1992.
6. Our direction may be communicated to every High Court for information of all the courts subordinate to them."
22. In view of the aforesaid judgment and no proof of prior clearance from the COD in the present case, the suit of BSNL itself was not maintainable.
23. In the present case, prima-facie, it also appears that a decree of huge amount of compensation to the tune of Rs.64,98,000/- was sought by the BSNL for the alleged damages caused to their S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 18/20 cables while RUIDP undertook the road repair and renovation work. From the perusal of the judgment and decree of trial court also, prima-facie, it appears that without establishing the actual loss and damage caused to the plaintiff-BSNL, the liquidated damages to the extent of Rs.1,50,000/- for each such cut or damage to the cable at different places, was claimed by the plaintiff and the same was decreed as such by the learned trial court even though there was no pre-existing contract between the parties for payment of such liquidated damages. No evidence, in the form of actual cost incurred by BSNL for the repair of cables on account of disruption of the telephone services due to damage caused to such cables, appears to have been produced before the learned trial court. While all this is a matter of evidence and in the absence of such evidence of actual loss/damage caused to the plaintiff-BSNL, the awarding of decree to the extent of Rs.64,98,000/- itself is doubtful, but since it is a matter of first appeal now filed by the State, and the same is pending it will be for the concerned bench to go into such evidence produced by the plaintiff and to the defendants and pronounce upon the validity of the decree under appeal filed by the State of Rajasthan.
24. It would have been much better for the authorities on the two sides to sit across the table, determine the actual loss or damages, actual repair costs for cables repairs etc. and the State called upon to reimburse that amount. At the most, a common S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 19/20 committee of higher officials on both sides could arbitrate in the matter, instead of dragging them in the courts of law through a long litigation process wasting public money and precious court time. Rather it was incumbent upon them to do so in view of Supreme Court decision in the case of ONGC (supra).
25. During the pendency of the first appeal of the State while the respective rights of the parties are yet to be determined by the High Court in first appeal, this Court is of the opinion that the contempt jurisdiction could not be invoked by the petitioner-BSNL for enforcement of the interim order passed by the learned Single Judge and it would be an abuse of process of the contempt jurisdiction. The remedy available to the petitioner-BSNL was only to approach the learned Single Judge seeking modification or vacation of stay order dated 16.03.2012 and then proceed for the execution of the decree, if stay in favour of appellant-State was vacated or modified. But, such enforcement of interlocutory order's condition cannot be sought through the contempt jurisdiction particularly, when no time limit was fixed by the learned Single Judge for such deposit of 50% of the decretal sum. The said amount, if at all required to be deposited in execution proceedings, was so required to be deposited with the learned trial court itself and, therefore, the production of cheque here before this Court with the reply under the threat of contempt petition, is not called for.
S.B. Civil Contempt Petition No.4/2013 in S.B. Civil First Appeal No.77/2012 B.S.N.Ltd. & Anr. Vs. C.K. Mathew & Ors.
Order dt: 14/05/2013 20/20
26. In these circumstances, this Court is satisfied that the present contempt petition filed by the petitioner, BSNL is misconceived and the same deserves to be dismissed. The same is accordingly dismissed. Notices stand discharged. A copy of this order be sent to the concerned parties forthwith and may also be placed in the case-file of aforesaid First Appeal No.77/2012-State of Rajasthan & Ors. Vs. BSNL. Costs easy.
(DR. VINEET KOTHARI), J.
DJ/-
19