Calcutta High Court (Appellete Side)
Saltee Textiles Private Limited vs Sri Shreedhar Poddar on 4 April, 2014
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Shib Sadhan Sadhu
C.R.C. No. 10 of 2012
in
F.M.A. 1263 of 2009
Saltee Textiles Private Limited
...Petitioner.
Versus
Sri Shreedhar Poddar
...Contemnor.
For the petitioner: Ms. Noelle Banerjee,
Mr. Dipak Dey.
For the contemnor: Mr. Anit Kumar Rakshit,
Ms. Mitali Bhattacharya.
Heard on: March 20, 21 & April 4 of 2014.
Judgment on: April 4 of 2014.
Subhro Kamal Mukherjee, J.:
This is an application for contempt alleging violation of the order dated April 29, 2009, which stood merged with the order dated May 3, 2010.
An appeal was preferred against the judgment and order dated April 8, 2009 passed by the learned Civil Judge (Senior Division), Second Court at Barasat, District: South 24 Parganas, in Title Suit no.71 of 2008. A division bench of this Court on April 29, 2009 admitted the appeal for hearing. In connection with such appeal an application for stay being C.A.N. 3626 of 2009 was moved and the Bench restrained the respondents from transferring, alienating, encumbering or changing the nature and character of the property, which has been the subject matter of the suit, till the disposal of the said application.
The learned advocate for the petitioner duly communicated the said order, by registered post with acknowledgement due, to the respondents, including the contemnor/respondent no.1, namely, Sreedhar Poddar.
It appears that the contemnor received the copy of the said notice on May 8, 2009 by signing the acknowledgement card.
Curiously, in spite of full knowledge of the said order, in deliberate violation of such order, an application was filed by the said contemnor, Sreedhar Poddar, seeking permission from the authorities to transfer the subject matter of the suit in favour Shree Krupa Nirman Private Limited.
The Joint Secretary, Government of West Bengal, informed the petitioner that such application for permission to transfer of the subject matter of the suit was filed on May 28, 2009 and such permission was granted by the authorities on January 21, 2010 subject to the payment of Rs.15,00,636/- (Rupees fifteen lakh six hundred thirty six) only, as premium for such transfer.
Although Mr. Rakshit submits that the registered document has not been executed, but it appears from the reply dated August 24, 2010 of the Joint Secretary of the Government of West Bengal, Department of Urban Development, that the present lessee of the said plot has been Shree Krupa Nirman Private Limited.
In the meantime, the main application came up for consideration before the another division bench, in which one of us (Subhro Kamal Mukherjee, J.) was a party. By order dated May 3, 2010, the other division bench allowed such application being C.A.N.3626 of 2009 and restrained the respondents form transferring, alienating, encumbering or changing the nature and character of the property-in-suit till the disposal of the appeal.
The application for contempt was filed on March 11, 2011 on the allegation that they have come to know of such transfer on September 22, 2010.
Mr. Anit Kumar Rakshit, learned advocate appearing for the alleged contemnor, initially took the plea that this application is not maintainable before this Court and is, also, barred by delay.
However, Mr. Rakshit, in his usual fairness, gave up such technical points and submits that although there has been a violation, but such violation was unintentional. He submits that actual transfer deed has not been executed. Mr. Rakshit tenders unconditional apology on behalf of the contemnor for such alleged unintentional laches.
We are of the opinion that the intention of the contemnor was not good. He had full knowledge of the order of this Court. The order was clear and unambiguous restraining the contemnor from transferring, alienating or encumbering the property in suit. In spite of full knowledge of the order he had applied before the government for permission to transfer the property-in-suit and, consequently, obtained permission from the government. In doing so, he tried to overreach the court. The order passed, so long as it stands, has got to be obeyed and intentional and deliberate violation of the order of the Court tantamounts to contempt.
We, therefore, hold that the contemnor is guilty of contempt of court. Mr. Rakshit submits that recently the contemnor had undergone bypass surgery and he is not well. He is aged about 70 years old. Therefore, he prays for mercy on behalf of the alleged contemnor.
The Supreme Court of India in the case of Surjit Singh and others versus Harbans Singh and others reported in (1995) 6 Supreme Court Cases 50 held that when in defiance of the restraint order, the alienation was made, the court could not let it go as such as it would defeat the ends of justice and the prevalent public policy. When the court intended a particular state of affairs to exist while it has been in seisin of a lis, the state of affairs was not only required to be maintained, but it was presumed to exist till the Court orders otherwise. The Court, in such circumstances, has the duty, as also the right, to treat the alienation as having not taken place at all for its purposes.
We, thus, considering the age and the ailments of the contemnor, although hold him guilty of contempt of court, direct him to pay fine of Rs. 51,000/- (Rupees fifty one thousand) only, which shall be paid to the petitioner by an account payee cheque drawn in the name of the petitioner. Such cheque shall be handed over to the petitioner through the learned advocate-on-record within seven days from this date. In default, the contemnor shall suffer simple imprisonment of seven days.
We, also, record that the transfer made in favour of Shree Krupa Nirman Private Limited is non-est as it was transferred in complete violation of the order of this Court.
With the aforesaid directions, the application for contempt of court stands disposed of.
The rule is made absolute.
(Subhro Kamal Mukherjee, J.) Shib Sadhan Sadhu, J.
I agree.
(Shib Sadhan Sadhu, J.)