Gujarat High Court
Lh Of Deceased Hiralal Somabhai ... vs State Of Gujarat on 13 July, 2022
Bench: Aravind Kumar, Ashutosh J. Shastri
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 121 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 16266 of 2013
==========================================================
LH OF DECEASED HIRALAL SOMABHAI CONTRACTOR & 2 other(s)
Versus
STATE OF GUJARAT & 8 other(s)
==========================================================
Appearance:
MR. ANSHIN DESAI, SENIOR ADVOCATE WITH MR. ROHAN A
SHAH(7497) for the Applicant(s) No. 1,1.1,1.2,1.3,2,3,3.1,3.2,3.3
for the Opponent(s) No. 3.3,3.4,4
MR. KM ANTANI, AGP for the Opponent(s) No. 1,2
MIHIR JOSHI, SENIOR ADVOCATE WITH MS MEGHA JANI(1028) for the
Opponent(s) No. 3.3,3.4,4
NOTICE SERVED BY DS for the Opponent(s) No. 3,6
K.S. NANAVATI, SENIOR ADVOCATE WITH PRATEEK S BHATIA(8629) for
the Opponent(s) No. 3.1,3.2
RULE SERVED for the Opponent(s) No. 5,6.1,6.2,6.3,7
SERVED BY AFFIX. (R) for the Opponent(s) No. 8
UNSERVED EXPIRED (R) for the Opponent(s) No. 9
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 13/07/2022
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. The applicants who were original respondent Nos.3, 3.1, 3.2, 3.3, 6, 7, 7.1, 7.2 and 7.3 in Special Civil Application No.16266 of 2013 have initiated this contempt proceeding against respondent Nos.3.1, 3.2, 3.3, 3.4 and 4 th respondent herein who were original petitioner Nos.1, 1.1, 1.2, 1.3, 1.4 and 2 in Special Civil Application No.16266 of 2013 contending inter Page 1 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 alia that said respondents have willfully and deliberately breached the order dated 14.10.2015 passed by this Court in Civil Application (For Direction) No.11412 of 2015 in Special Civil Application No.16266 of 2013. The applicants and respondent Nos.3.1 to 9 are claiming to be the lineal descendants of late Shri Somabhai Kanjibhai who was said to be owning several properties including the lands :
(i) bearing Block No.8, Survey No.2, situated at Mouje Chalthan, Taluka Palsana, District Surat;
(ii) bearing Survey Nos.63 and 65 situated at Mouje Majura, District Surat ; and,
(iii) bearing Survey No.30 situated at Khatodara, District Surat.
2. Late Shri Hiralal Somabhai Contractor is said to have filed an application on 05.04.1993 before the Mamlatdar to mutate the name of all the legal heirs as per the pedigree, which application was followed by submitting one more application on 23.06.1993 by the applicants herein. On the basis of the application dated 05.08.1993 filed by late Shri Hiralal Somabhai Contractor, the Talati-cum-Mantri is said to have mutated the names of all the legal heirs on 08.08.1993 vide mutation entry No.2015 in Village Form No.6 for the aforesaid Survey Nos.63 Page 2 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 and 65. Respondent No.3 herein namely Shri Harshad Somabhai Bhandari and the 4th respondent Shri Balvantbhai Somabhai Bhandari is said to have tendered a Will dated 15.06.1976 claiming to be the only legal heirs of late Shri Somabhai Kanjibhai, based upon which the lands bearing Survey Nos.63 and 65 were mutated in their names and accordingly it came to be certified on 02.02.1994.
3. The above-said Shri Hiralal Somabhai Contractor along with applicant Nos.1.1 and 1.2 filed Special Civil Suit No.130 of 1995 for partition and accounts for the immovable properties and movable properties of late Sombhai Kanjibhai. An application for injunction vide Exhibit-58 was also sought before the Trial Court which came to be rejected by order dated 18.01.2008.
4. The applicant Nos.1, 1.1 and 1.2 challenged the mutation entry No.2015 dated 08.08.1993 before the Deputy Collector by initiating R.T.S. proceedings in Appeal No.15 of 1994. The said appeal came to be rejected by order dated 13.10.1999 and upheld the mutation entry No.2015 subject to final outcome of Special Civil Suit No.130 of 1995. Being Page 3 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 aggrieved by the said order, aforesaid Shri Hiralal Somabhai Contractor and others preferred Revision Application No.23 of 2000 before the Collector, Surat, who allowed the Revision Application by order dated 12.12.2000 and directed to mutate the names of all legal heirs of late Shri Somabhai Kanjibhai.
5. Being aggrieved by the said order, respondent Nos.3 and 4 herein preferred a Revision Application before the Special Secretary, Revenue Department (Appeals), Ahmedabad, in Revision Application No.MVV/ HKP/ST/50/51-2000 who vide order dated 27.12.2000 granted status-quo and by order dated 18.09.2013 upheld the order dated 12.12.2000 passed by the Collector. On the strength of said order, mutation entry No.3410 dated 01.11.2013 came to be made in the revenue records.
6. Respondent Nos.4 and others filed an application for consolidation of land bearing Survey Nos.57/1, 57/2, 58, 62 and 63 before the City Talati, Majura, who ordered for consolidation of the lands. This resulted in the mutation of revenue records vide mutation entry No.2939. This resulted in the legal heirs of late Shri Harshadbhai Somabhai Bhandari carrying out plotting specifically in Survey No.63 which was reflected in DILR-sheet Page 4 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 depicting measurements of the plots.
7. Being aggrieved by the order dated 18.09.2013 passed by the Special Secretary, Revenue Department, the respondents herein filed Special Civil Application No.16266 of 2013 and the learned Single Judge of this Court while issuing rule by order dated 23.10.2013 issued notice on interim relief. 4th respondent herein by his representation dated 24.10.2013 sought for mutation of the revenue records and the revenue authorities is said to have cancelled the mutation entry No.3410 by order dated 25.04.2014 stating thereunder that in light of injunction having been granted on 18.03.2014 in favour of the respondents. The applicants are contending that this is the first instance of respondent Nos.3.1 to 3.4 and 4th respondent having misrepresented before the revenue authorities and as such, they have committed contempt of the Court.
8. In Special Civil Application Nos.18605 of 2011, 16266 of 2013 and 3152 of 2014, the learned Single Judge of this Court granted an order of status-quo on 07.08.2015 regarding the revenue record Entry No.3410 till final disposal of the petition.
Page 5 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
9. Being aggrieved by the aforesaid order, the applicants preferred Letters Patent Appeal (Stamp) No.1196 of 2015 and on account of there being delay, Civil Application (for condonation of delay) No.10627 of 2015 came to be filed. One more Civil Application (for direction) No.11412 of 2015 in Special Civil Application No.16266 of 2013 came to be filed by respondent Nos.3.1 to 3.4 and 4th respondent herein. During the course of the hearing of said application, respondents assured of not selling the subject land till the final outcome of the present petition and accordingly order dated 14.10.2015 came to be passed. Hence, the applicants are said to have withdrawn Letters Patent Appeal (Stamp) No.1196 of 2015 on 21.10.2015 (Annexure-N).
10. Applicant No.1.1 is said to have filed an application dated 22.12.2015 before the Sub-Registrar intimating about the stay granted on 14.10.2015 in Civil Application (for direction) No. 11412 of 2015 in Special Civil Application No.16266 of 2013 to the Sub-Registrar by communication dated 22.12.2015 vide Annexure-O. Page 6 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
11. It is the contention of the petitioners/applicants that they had suspicion about the conduct of the respondent Nos.3.1 to 3.4 and 4th respondent as it was reliably learnt that they had sold plot Nos.79 and 80 and their suspicion became true and it was confirmed on making inquiry and search report received thereon reflected that aforesaid respondents Nos.3.1 to 3.4 and 4th respondent had executed registered Sale Deeds dated 09.11.2015 and 19.02.2016 in respect of Plot Nos.199/A, 199/B, 200, Sale Deed dated 15.03.2016 in respect of Plot Nos.122/B, 122/C, Sale Deed dated 17.05.2017 in respect of Plot Nos.27, 27A and 28 and registered Sale Deed dated 25.07.2017 in respect of Plot No.176 carved out of Survey No.63. The copies of the Sale Deeds are collectively produced at Annexure-P. Hence, the applicants contend that respondent Nos.3.1 to 3.4 and 4th respondent being fully conversant and conscious about the stay operating on sale of the subject land vide order dated 14.10.2015, the respondents had deliberately violated the said order and sold the plots specifically in land bearing Survey No.63 and as such their acts are contemptuous and are liable to be punished for willful disobedience and deliberate breach of the order dated 14.10.2015. Hence, the applicants have prayed Page 7 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 for respondent Nos.3.1 to 3.4 and 4th respondent being punished for deliberately and willfully violating the order dated 14.10.2015 passed in Civil Application No.11412 of 2015 in Special Civil Application No.16266 of 2013.
12. Respondent Nos.3.1 to 3.4 have filed their reply affidavits independently and have contended as follows :
Re : Respondent No.3.1 :
That she is a housewife and had given the power of attorney to her brother-in-law i.e. 4 th respondent and she has no knowledge of the order and she had no intention whatsoever to commit the breach of the order and inadvertently if she had committed any mistake, she may be exonerated from the contempt proceedings. She has contended that she is not involved in day to day business of the family or the transaction of sale and she has also contended that the contempt proceeding is barred by time.
She has also tendered unconditional apology and prayed for being exonerated.
Re : Respondent No.3.2 :
It is contended by her that she has studied upto 10 th Page 8 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 Standard and she is a housewife and she had given power of attorney to 4th respondent who is her uncle and she had no intention to commit the breach of the order of the Court and she has not attended any family business. Her defence is same as that of the defence put-forth by respondent No.3.1.
Re: Respondent No.3.3 :
The defense put-forth by respondent No.3.3 is that he is doing textile business and his uncle namely 4th respondent is taking care of the land matters and looking after the land business and he had no intention to commit breach of the order. The defence put-forth by respondent Nos.3.1 to 3.2 is virtually adopted by respondent No.3.3.
Re: Respondent No.3.4 :
The plea put-forth by this respondent is same as that of the plea put-forth by respondent No.3.3.
Re: Respondent No.4 :
In his affidavit dated 28.08.2018, the 4th respondent has admitted to have executed the Sale Deeds subsequent to Page 9 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 the order dated 14.10.2015. In substance it is contended that the sale transaction had already been completed much prior to 14.10.2015 and there remained nothing to be done for concluding the said transaction except executing the Sale Deeds and under the bonafide belief that the sale was completed, the Sale Deeds were executed. Hence, relying upon the receipts executed in favour of the purchasers and contending that the sale was completed in the year 2012 itself, he has sought for contempt proceedings being dropped. In fact, in paragraph-6 of the affidavit, 4th respondent unequivocally admits to have executed the Sale Deeds subsequent to the order dated 14.10.2015. In his own words the admission reads :
"6. All these documents leave no manner of doubt whatsoever and I bonafide believed that the sale was complete in the year 2012. thereafter no document was registered at that time. However, the member approached the society saying that he wanted to have a loan and therefore, the document has to be executed and registered and therefore the same was executed and registered subsequently, inadvertently after the order being passed by this Hon'ble Court. Thus, it is due to inadvertence and not deliberate that I have executed the sale deed after the order of the Hon'ble Court. Similar is the position in case of other persons of which index has been produced. A copy of the statement regarding the same is hereto Page 10 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 annexed and marked as ANNEXURE-R5. I say that looking to all these aspects, I want to satisfy the conscience of this Hon'ble Court that we have not deliberately committed the breach of the order, making us liable for contempt, but, it has happened under the bona fide belief and inadvertently. I, therefore, request this Hon'ble Court to take a lenient view and exonerate us from the contempt proceedings."
Contending that he is suffering from terminal cancer and under constant treatment he has to go to Mumbai for regular check-up, he has sought for being pardoned in the event of this Court were to arrive at a conclusion that he has committed any breach of the order. Reiterating the defence put-forth by respondent Nos.3.1 to 3.4 that the contempt proceedings are barred by limitation, he has sought for the contempt proceedings being dropped.
13. The 4th respondent had filed an additional affidavit on 15.03.2022 to state the background in which the statement made by his learned counsel came to be recorded which got crystallized into order dated 14.10.2015. It is specifically stated that he has is not justifying his action but offering a clarification. The said affidavit and the documents appended thereto are placed on record.
Page 11 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
14. We have heard the arguments of Shri Anshin Desai, learned Senior Advocate appearing on behalf of the complainants and Sriyuths K.S.Nanavati and Mihir Joshi, learned Senior Advocates appearing for respondent Nos.3.1 to 3.4 and 4th respondent respectively. They have reiterated the contentions raised in their pleadings and in support of their contentions, they have relied upon the following judgments :
Re: Judgments relied upon on behalf of
petitioners :
(1) Order dated 29.04.2014 passed by Hon'ble Apex Court in the case of Jayshivsinhji Rudratsinhji vs. Nareshbhai Hathsing Shah and others, being Civil Appeal No.4876 of 2014.
(2) C. Elumalai and others vs. A.G.L. Irudayaraj and another, reported in (2009) 4 SCC 213.
(3) Union of India and others vs. Subedar Devassy PV, reported in (2006) 1 SCC 613.
(4) Patel Rajnikant Dhulabhai and another vs. Patel Chandraknat Dhulabhai and others, reported in (2008) 14 SCC 561.
(5) Bharatbhai Jivrajbhai vs. Chaganbhai Samabhai and others, reported in (2013) 1 GLH 343.
(6) Securities and Exchange Board of India vs. Sahara India Real Estate Corporation Limited and others, reported in (2014) 5 SCC 429.
(7) Board of Trustees of the Port of Mumbai vs. Nikhil N. Gupta and another, reported in (2015) 10 SCC Page 12 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
139. (8) Jehal Tanti and others vs. Nageshwar Singh (Dead) Through Lrs. reported in (2013) 14 SCC
689. (9) Nareshbhai Hathising Shah and others vs. Dinaben Jitendrabhai Thakar and others, reported in 2014 SCC ONLINE Guj 3452.
(10) Order dated 18.04.2016 passed by coordinate Bench in the case of Nareshbhai Hathising Shah and others vs. Kalubha Rahubhai Vaghela and others, being Civil Application (for orders) No.7990 of 2015 in First Appeal No.1996 of 2008. (11) Administrator of Shakti Group, Chandrakant Natverlal Agravat vs. hargovindbhai Shamjibhai and Sons, reported in 1993 (1) GLR 434.
(12) Kalpataru Land Development Pvt. Ltd. vs. Jamnadas Vishnubhai Patel, reported in 2007 (4) GLR 3361.
(13) Prithawi Nath Ram vs. State of Jharkhand and others, reported in (2004) 7 SCC 261.
Re: Judgments relied upon on behalf of
respondents :
(1) Sevakram Prabhudas v/s. H.S.Patel reported in
(2000) 1 GLR 715.
(2) Baburam Gupta vs. Sudhir Bhasin and another,
reported in (1980) 3 SCC 47.
(3) Rita Markandey vs. Surjit Singh Arora, reported
in (1996) 6 SCC 14.
(4) Supreme Court Bar Association vs. Union of India
and another, reported in (1998) 4 SCC 409.
Page 13 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 (5) Pushpaben vs. Narandas Badiani reported in (1979) 2 SCC 394.
(6) Ramkishan vs. Tarun Bajaj and others, reported in (2014) 16 SCC 204.
(7) Murrary & Co. vs. Ashok Newatia and others, reported in (2000) 2 SCC 367.
(8) Om Prakash vs. Suresh Kumar reported in 2020 (13) SCC 188.
15. Having heard the learned advocates appearing for the parties, we are of the considered view that following points would arise for our consideration :
(i) Whether respondent Nos.3.1 to 3.4 and 4 th respondent have willfully and deliberately disobeyed the order dated 14.10.2015 passed in Civil Application (for direction) No.11412 of 2015 in Special Civil Application No.16266 of 2013?
(ii) Whether the contempt proceedings are liable to be dismissed on the ground of delay as contended by the respondents or the contempt application is liable to be dismissed on the ground of limitation prescribed under Section 20 of the Page 14 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 Contempt of Courts Act, 1971 ?
(iii) What order ?
16. In order to adjudicate the points formulated hereinabove, we are of the considered view that it would be apt and appropriate to extract the order dated 14.10.2015 passed hereinabove which applicants claim of having been violated by respondent Nos.3.1 to 3.4 and 4th respondent. It reads thus :
"It is stated at the Bar by Mr. Sanjanwala learned senior advocate, on instructions from his clients, that the property qua the subject matter of this entry and the petition, shall not be sold out till the main petition is heard and decided, which satisfies the conscious of Mr. Mihir Thakor learned senior advocate appearing with Mr. Prabhav Mehta learned advocate and he states that he may not press the Letters Patent Appeal, on instructions. Hence, this Civil Application stands disposed of accordingly. It goes without saying that the order was passed adinvitum/by consent of the learned advocates."
ANALYSIS OF CASE LAW :
17. The Contempt of Courts Act, 1971 has been introduced for the purpose of securing a feeling of confidence of the people in general and for due and proper administration of justice. It is a powerful weapon in the hands of the law Courts, Page 15 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 which by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair or reasonable for the law Courts to exercise jurisdiction under the said Act. The power under the Act will have to be exercised with utmost care and caution and that too sparingly in the larger interest of the society and for proper administration of justice delivery system.
18. The Hon'ble Apex Court has repeatedly held that power of contempt must be resorted to with utmost care and caution and should be used sparingly and not in a routine manner and for this proposition, the following judgments can be looked into :
(i) Supreme Court Bar Association vs. Union of India and another reported in AIR 1998 SC 1895.
(ii) S. Mulgaokar vs. Unknown, reported in AIR 1978 SC 72S. 7
(iii) Mrityunjoy Das and another vs. Sayed Hasibur Rahaman and others, reported in 2001 (3) SCC
739.
19. It is an established position of law that contempt of Court is a matter between the Court and the contemnor. After Page 16 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 contempt proceeding is set into motion by any party, it remains a matter between the Court and the alleged contemnor. This proposition has received the attention of the Apex Court in the case of D.N.Taneja vs. Bhajan Lal reported in 1988 (3) SCC 26, whereunder it has been held that the person who moves the machinery of the Court for contempt only brings to the notice of the Court certain facts constituting contempt of Court and after furnishing such information he may still assist the Court but it must always be borne in mind that in a contempt proceeding there are only two parties namely the Court and the contemnor.
20. We are of the considered view that provision of the Contempt of Courts Act, 1971 which has been invoked has to be looked into. Section 2 of the Act is a definition clause. Clause
(a) of Section 2 defines the contempt of Court to mean 'civil contempt' or 'criminal contempt'. Clause (b) of Section 2 defines "civil contempt" as under : -
"Clause 2(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court".
21. A plain reading of the above clause would make it Page 17 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 explicitly clear that following conditions must be satisfied before a person can be held of committing civil contempt namely ;
(i) There must be a judgment, decree, direction, order, writ or other process of Court (or undertaking given to Court);
(ii) There must be disobedience of such judgment, decree, direction, order, writ or other process of Court (or breach of undertaking given to Court);
(iii) Such disobedience of judgment, decree, direction, order, writ or other process of Court (or breach of undertaking) must be willful;
22. The expression or word "willful" means act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose.
23. The power to punish for contempt is intended to maintain effective legal system and such power is exercised to Page 18 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 prevent provisions of the Court of justice or preventing unscrupulous element from polluting pure stream of justice. The Hon'ble Apex Court in the case of Securities and Exchange Board of India versus Sahara India Real Estate Corporation Limited and Others reported in 2014 (5) SCC 429, as well as in the decision of Board of Trustees of the Port of Mumbai versus Nikhil N. Gupta and Another reported in (2015) 10 SCC 139, has held that willfully disobedience of order, undertaking is to be treated seriously.
24. Keeping the aforesaid principles in mind, the facts which are not in dispute in the present case are being examined. Respondent Nos.3.1 to 3.4 and 4th respondent being aggrieved by the order dated 18.09.2013 passed by the Special Secretary, Revenue Department (Appeals), Ahmedabad, who affirmed the order of the Collector dated 12.12.2000 whereunder the mutation entries made in the name of the applicants herein in respect of the subject land bearing Survey No.63 came to be affirmed had preferred Special Civil Application No.16266 of 2013 and in the said Special Civil Application, they had filed an application for direction seeking clarification of the order dated 07.08.2015 passed in Special Civil Application No.16266 of Page 19 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 2013 by filing Civil Application No.11412 of 2015 which Civil Application was taken up for consideration. The learned counsel appearing on behalf of the applicants therein i.e. respondent Nos. 3.1 to 3.4 and 4th respondent herein had made a statement on instructions from his clients to the effect that property qua the subject matter of the entry and the petition would not be sold till main petition is heard and decided which came to be recorded and learned Senior Counsel appearing for respondent Nos.3.1 to 3.3 and 7.1 had stated that he would be satisfied if said statement is recorded and application being disposed of accordingly and as such he would not press Letters Patent Appeal (Stamp) No.1196 of 2015 whereunder the order dated 07.08.2015 had been passed in Special Civil Application No.18605 of 2011 connected with Special Civil Application No.16266 of 2013 and Special Civil Application No.3152 of 2014. Hence, placing the said submission on record Civil Application No.11412 of 2015 came to be disposed of accordingly.
25. It would be of benefit to note at this juncture the judgment of the Hon'ble Apex Court in the case of Om Prakash vs. Suresh Kumar reported in 2020 (13) SCC 188, wherein a Page 20 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 question came up for consideration as to whether the appellant would be bound by the statement made by his counsel before the High Court? It came to be held that tenor of the statement made before the High Court it is obvious that an unequivocal statement was made by the counsel engaged by the appellant to espouse his (appellant's) cause before the High Court. It has been further observed as under :
"12. The moot question is: whether the appellant should be bound by the statement made by his counsel before the High Court that the respondent-tenant will be re-inducted in equal area in the newly constructed building within one month i.e. on or before 30.11.2017 from the date of completion of the construction work i.e. 31.10.2017. From the tenor of the statement made before the High Court on behalf of the appellant, it is obvious that it is an unequivocal statement made by the counsel engaged by the appellant to espouse his (appellant's) cause before the High Court. It is not the case of the appellant that he had expressly instructed his counsel not to make such a statement. Further, the statement was in respect of the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear. Not only that, right from the beginning and even before this Court, an attempt was made by the parties to explore possibility of working out an amicable solution, as is evident from the order dated 9.1.2017 before the respondent was put to notice of these appeals, and more particularly, dated 14.11.2017.
13. Considering the above, the appellant cannot now be allowed to resile from the statement made before the High Court, which the High Court justly declined to Page 21 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 undo in the review petition filed by the appellant for that purpose. In the peculiar facts of this case, the decision of this Court in Himalayan Coop. Group Housing Society (supra) will be of no avail to the appellant. Inasmuch as, it is not a case where the counsel, who made the statement was not engaged by the appellant before the High Court. The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant. In any case, even this Court showed indulgence to the appellant on the basis of impression given to this Court about the possibility of at least sparing a small room for the respondent, which was the basis for issuing notice to the respondent, as is evident from the orders dated 9.1.2017 and 15.2.2017.
14. Reverting to the exposition in paragraph 22 of the reported decision, the same reads thus: (Himalayan Coop. Group Housing Society case, SCC p.383) "22. Apart from the above, in our view lawyers are perceived to be their client's agents. The law of agency may not strictly apply to the client- lawyer's relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes be more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject- matter of the retainer. One of the most basic principles of the lawyer-client relationship is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe to their principals and, thus, have to respect the client's autonomy to make decisions at a minimum, as to the objectives of the representation. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their Page 22 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 judgment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client's legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyer's conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel."
Our attention was also invited to paragraph 31 of the same decision, which reads thus : (SCC. p.385) "31. Therefore, it is the solemn duty of an advocate not to transgress the authority conferred on him by the client. It is always better to seek appropriate instructions from the client or his authorised agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. The advocate represents the client before the court and conducts proceedings on behalf of the client. He is the only link between the court and the client. Therefore his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment."
In addition, we may usefully refer to paragraph 32 of the said decision, which reads thus: (SCC p.386) "32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the Page 23 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights." (emphasis supplied)
15. As aforesaid, in the present case, the counsel who was engaged by the appellant and had appeared for him before the High Court did not, stricto sensu, transgress the authority conferred on him by the appellant. Notably, the appellant filed review petition before the High Court by engaging another Advocate for reasons best known to him. This Court has deprecated the conduct of such petitioners and has opined that such review petitions should not be encouraged and need to be dismissed, as expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar & Anr.2 Not only that, even before this Court, the appellant, advisedly, showed willingness to explore possibility of settlement as is evident from different orders recorded above. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the Page 24 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 appellant only after intervention of this Court, which indulgence was shown because the appellant had expressed inclination to spare portion of premises for the respondent. Only after this Court intervened, the appellant could take the construction of proposed building forward and completed it on 19.6.2018. In terms of the order dated 14.11.2017 of this Court, it was made absolutely clear that the appellant will not put the newly constructed premises to use without seeking prior permission of this Court. That permission is yet to be given to the appellant."
26. In the instant case undisputedly the respondents Nos.3.1 to 3.4 through their power of attorney holder respondent No.4 have sold the plots on various dates by executing registered Sale Deeds commencing from 09.11.2015 to 30.10.2018, the details of which are as under :
No. Inde Name of Plot Plot Conside Consid Sale x the Party No. Area ration eration Deed Pag as per date e Index No. value 1 157 Jagdish 79 118.4 103115/- 568704/ 9-11-15 Chug 8 -
2 158 Rama Rani 80 118.4 103115/- 568704/ 9-11-15 8 -
3 159 Prakash 199A 118.4 8500/- 568704/ 19-2-16
Kundu 8 -
4 160 Prakash 199B 118.4 8500/- 568704/ 19-2-16
Kundu 8 -
5 161 Prakash 200 118.4 8500/- 568704/ 19-2-16
Page 25 of 68
Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
Kundu 8 -
6 162 Mafatlal 122B 118.4 8500/- 568704/ 15-3-16
Kalidas (56) 8 -
HUF
7 163 Mafatlal 122C 118.4 8500/- 568704/ 15-3-16
Kalidas (55) 8 -
8 164 Sudesh 27 152 8500/- 729600/ 17-5-17
Dingra -
9 165 Shilpi Ravi 27A 152 8500/- 729600/ 17-5-17
-
10 166 Roshan 28 152 8500/- 729600/ 17-5-17
Lal -
11 167 Sami 176 118.4 8500/- 568704/ 25-7-17
Kumar 8 -
282730/- 673843
2/-
2 Sale deeds done / added afterwards
12 518 Trilokram Shop 19.26 49000/- 298530/ 30-10-18
Mali No.7 -
13 555 Yogesh 175 118.4 8500/- 568704/ 25-7-17
kumar 8 -
Patel
340230/- 760566
6/-
27. In fact, the 4th respondent in his affidavit dated 28.08.2005 filed in the present proceeding also admits this fact in paragraph 6 which is already extracted herein supra. In fact in the affidavit dated 23.01.2019 filed in the present contempt proceeding, 4th respondent has categorically deposed to the following effect :Page 26 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 "I state that I am the power of attorney holder of other respondents in Misc. Civil Application for contempt. I declare that I have authorized Senior Advocate Shri S.H.Sanjanwala to state before the Hon'ble Court that I will not transfer, sale Survey No.63 and 65 situated at Majura till final disposal of the Special Civil Application No.16266 of 2013."
28. As to what would be the evidentiary value of the statement made by the learned Senior Advocate pressed into service at earlier point of time in this proceedings has also received the attention of this Court. It came to be observed by this Court on 29.01.2019 to the following effect :
"In the present proceedings, affidavits have been filed by the private respondents wherein unconditional apology is tendered and a categorical statement is made that there is no scope for justification of the action of execution of Sale Deeds after such consent was recorded, namely to maintain status-quo on the subject land. In another affidavit, it is revealed that the respondents have instructed the counsel to make statement on their behalf. Thus, there is no escapement from the action which reveals willful, deliberate breach of undertaking and statement made before the Court in the writ proceedings."
(emphasis supplied by us)
29. The Hon'ble Apex Court in the case of Securities and Exchange Board of India vs. Sahara India Real Estate Corporation Limited and others, reported in (2014) 5 SCC Page 27 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 429, has held that willful disobedience of undertaking is to be treated seriously. It has been further held :
"29. This Court passed an order on 20-2-2014 directing the personal presence of the alleged contemnors and the Directors of the respondent Companies today i.e. on 26-2-2014 at 2.00 p.m. On our directions, Mr Ashok Roy Choudhary, Mr Ravi Shankar Dubey and Smt Vandana Bhargava are present in the Court today.
30. Even though, Mr Ram Jethmalani, learned Senior Counsel appearing for the alleged contemnors, made a mention yesterday i.e. on 25-2-2014, before this Bench for dispensing with the personal presence of Mr Subrata Roy Sahara, alleged Contemnor 5, that request was specifically turned down by this Court.
31. Today, when the matter is taken up, the same request was made by Mr Jethmalani, by moving an application, which was supported by a medical certificate. The said medical certificate was issued by Sahara Hospital and, in our view, the factual position indicated therein does not solicit the exemption sought.
32. Since, we have already declined to grant exemption from personal presence of the alleged Contemnor 5 on 25-2-2014, we find no reason to accede to the renewal of the request made today. Accordingly, we issue non-bailable warrants of arrest qua Mr.Subrata Roy Sahara, alleged Contemnor 5. He shall be arrested and produced before this Court on 4- 3-2014 at 2.00 p.m. The aforementioend Directors, who are present today, shalll also remain present in the Court on the next date. Put up on 4-3-2014 at 2.00 p.m. *** *** *** Page 28 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
35. Sufficient opportunities have been given to the contemnors to fully comply with those orders and purge the contempt committed by them but, rather than availing of the same, they have adopted various dilatory tactics to delay the implementation of the orders of this Court. The non-compliance with the orders passed by this Court shakes the very foundation of our judicial system and undermines the rule of law, which we are bound to honour and protect. This is essential to maintain faith and confidence of the people of this country in the judiciary.
36. We have found that the contemnors have maintained an unreasonable stand throughout the proceedings before SEBI, SAT, High Court and even before this Court. The reports/analysis filed by SEBI on 18-2-2014 make detailed reference to the submissions, documents, etc. furnished by the contemnors, which indicates that they are filing and making unacceptable statements and affidavits all through and even in the contempt proceedings. The documents and affidavits produced by the contemnors themselves would apparently falsify their refund theory and cast serious doubts about the existence of the so-called investors. All the fact-finding authorities have opined that majority of investors do not exist. Preservation of market integrity is extremely important for economic growth of this country and for national interest. Maintaining investors' confidence requires market integrity and control of market abuse. Market abuse is a serious financial crime which undermines the very financial structure of this country and will make imbalance in wealth between haves and have-nots."
30. In the matter of Board of Trustees of the Port of Mumbai vs. Nikhil N. Gupta and Another, reported in (2015) 10 SCC 139, the Apex Court has held willful breach of Page 29 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 undertaking given to a Court would be a Civil contempt as breach of such undertaking is a serious matter to be sternly dealt with. It has been further held :
"9. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. (Vide Union of India v. Subedar Devassy PV6.) It is evident from the material on record that the dispute between the parties had been adjudicated and had attained finality and it is not open to the respondents to go beyond the orders. As noticed earlier, when this Court dismissed the special leave petition by the order dated 27-1-20061, the respondents herein (the petitioner in the special leave petition) were granted one year's time to vacate the premises in question subject to its filing usual undertaking in this Court within four weeks from 27-1- 2006. In compliance therewith, the respondents herein (the petitioner in the special leave petition) have filed an affidavit of undertaking. The relevant portion thereof reads as under:
"5. The petitioner also undertakes in terms of the order dated 27-1-20061 to vacate the premises within and/or expiry of one year's period granted by this Hon'ble Court."
Having filed the affidavit of undertaking, now the respondents have the audacity of denying having filed the said affidavit of undertaking. In reply- affidavit filed in the contempt petition, the first respondent Nikhil Gupta has stated that " ... It is not admitted that the respondents had given an undertaking to hand over the premises in question as alleged or at all."
Page 30 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
11. In the given facts and circumstances of the case, the Court may permit a party to withdraw an undertaking provided it is within reasonable time and before the party has availed the benefit of the order pursuant to the said undertaking. Based on the undertaking, the respondent obtained the benefit of extension of time for vacating and handing over the possession; the respondents are duty-bound to vacate the premises voluntarily. In this case, application to withdraw the undertaking was filed only in May 2014 after the benefit of extension of time.
18. The principles relating to contempt of court are clear. The definition of "civil contempt" includes wilful breach of an undertaking given to a court. Public interest requires that solemn undertakings given to a court with the intention of obtaining any benefit should not be breached wilfully. The respondents cannot be absolved of the undertaking on purely ground that the undertaking was given under misconception. The breach of solemn undertaking given to a court is a serious matter and will have to be sternly dealt with. On the facts, prima facie it appears that the act of the respondents a is in clear violation of the order of this Court dated 27-1-20061. Having said that presently we are not inclined to go into the question as to the action to be taken against the respondents for disobedience of the order of the Court."
31. In the instant case, it can be noticed that at the behest of 4th respondent, learned Senior Counsel representing the respondent Nos.3.1 to 3.4 and 4 th respondent had made a statement in Special Civil Application No.16266 of 2013 while the learned Single Judge was adjudicating Civil Application (for direction) No.11412 of 2015 filed therein and an undertaking Page 31 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 came to be given that the property qua the subject matter of entry which was undisputedly relating to Survey Nos.63 and 65 would not be sold and yet the same has been sold by respondent Nos. 3.1 to 3.4 through their power of attorney holder 4 th respondent. Had this undertaking not been given obviously respondents in Special Civil Application No.16266 of 2013 who were the appellants in Letters Patent Appeal (Stamp) No.1196 of 2015 would not have withdrawn the appeal as not pressed. It is this undertaking given to this Court on 14.10.2015 which prevented the applicants herein to withdraw the said appeal and it is this solemn assurance given to the Court which per-forced them to withdraw the appeal by recording the statement made by the learned Senior Counsel appearing on behalf of respondent Nos.3.1 to 3.4 and 4th respondent.
32. The principal governing the breach of undertaking came to be expend by the Hon'ble Apex Court in Noorali Babul Thanewala versus K.M.M. Shetty and Others reported in AIR 1990 SC 464 held as under : -
"When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in Page 32 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 breach thereof. The breach of an under- taking given to the Court by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt."
33. It is also very interesting to note at this juncture itself that Sale Deeds though claimed to have formally executed on the ground that sale transaction have already been completed not only seems to be an after-thought but also lacks bonafides inasmuch as not even a piece of evidence has been placed like the return of income of the parties reflecting as to the date of receipt of consideration which would have at least established or proved the defence now sought to be raised. In the absence of best evidence being available not being produced, necessarily it leads this Court to draw an adverse inference against respondents Nos.3.1 to 3.4 and 4 th respondent. Yet other factors which cannot go unnoticed are respondent Nos.3.1 to 3.4 does not dispute the execution of the Page 33 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 power of attorney in favour of 4th respondent; they are not denying the execution of the Sale Deeds; the respondent Nos.3.1 to 3.4 are not denying of not having received any benefits under the Sale Deeds which have been executed subsequent to the undertaking given to the Court; respondent Nos.3.1 to 3.4 have not cancelled the power of attorney given to the 4th respondent till date or have disowned the execution of the Sale Deeds. On the contrary, they admit the execution of the Sale Deeds in the affidavits filed before this Court. As such the irresistible conclusion which has to be drawn is to the effect that the respondents have utterly failed to convince this Court that they are to be exonerated of the charge of willfully disobeying the orders of this Court.
34. The incidental question that would arise for our consideration is whether the apology tendered by the contemnors are liable to be accepted and thereby the contemnors are to be let off. The coordinate Bench of this Court in the case of Sevakram Prabhudas v/s. H.S. Patel reported in (2000) 1 GLR 715, has held that apology neither purges nor washes away the act of contempt and at best it is a Page 34 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 mitigating circumstance while considering the consequential order following finding of contempt having been committed. It has been further held :
"46. The various decisions referred to by both parties need not detain us for long inasmuch as there is no distinction on principle in the decided cases. An apology is not a weapon of defence. Apology neither purges nor washes away an act of contempt. It is at best a mitigating circumstance while considering the consequential orders to be made once a person is found to have committed contempt of court, civil or criminal. It is a factor relevant to be considered while devising the final order to be made against the contemner. An apology can only be considered which is in real sense remorseful and to the satisfaction of the court as a contrition by the respondents. Ordinarily, belated apologies are considered to be offered more out of fear of punishment than with a sense of contrition. But merely because the apology has been tendered, not at the first instance but at a later stage, by itself cannot be a ground for not considering it. Had it been so, proviso to sec. 12 which makes it possible even after sentence of punishment has been made, to remit the same on considering the apology given thereafter. In short, whether an apology tendered at any stage of the proceedings is to be considered as mitigating circumstances or not depends on facts and circumstances of that case and that principle is not inhibited by any precedent. The precedents serve as guidelines."
35. In the instant case the contemnors have not only violated the undertaking given to the Court but have also taken undue advantage unto themselves namely the sale consideration Page 35 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 has flown from the purchasers to the vendors i.e. the contemnors. Even according to the recitals found in the Sale Deeds referred to in the tabular column hereinabove, it is depicted as Rs.2,82,730/- (in respect of 11 Sale Deeds); in respect of 2 Sale Deeds executed in the year 2017-18, the consideration has been depicted as Rs.3,40,230/-. As per the index value, the consideration amount or proper market value in respect of 11 Sale Deeds would be Rs.67,38,432/-; whereas in respect of 2 Sale Deeds the consideration or proper market value as per index value would be Rs.76,05,666/-. In the reply affidavits filed by contemnors Nos.3.1 to 3.4, there is not even a whisper with regard to consideration amount. They neither contend nor plead that the consideration that has flown under the said Sale Deeds have not been received by them. On the contrary, the affidavit-in-rejoinder filed on behalf of the petitioners against the reply filed by respondent Nos.3.1 to 3.4, it has been specifically contended by the complainants that contemnors in order to hoodwink and overreach the process of law, an imaginary plea has been projected by way of defense that "cash" transaction of Rs.8,500/- took place for such sale in the year 2012 wherein no date is mentioned. In fact, the defence Page 36 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 put-forth by contemnor No.3.1 to the effect that she is a housewife, has been denied in the rejoinder affidavit filed by applicants by raising a specific plea that in Special Civil Suit No.130 of 1995 filed before the 2nd Additional Senior Civil Judge, Surat, respondent No.4 in the cross-examination has deposed that respondent No.3.1 is engaged in the textile business and she is a Director of M/s. Surat Fabric Cap Company Limited and in the same breath he has deposed that all the members of the family were aware of the order dated 14.10.2015 passed by this Court. Insofar as rejoinder affidavit to the reply affidavit filed by respondent No.3.2, complainants have specifically contended that respondent No.3.2 was very well aware of the order dated 14.10.2015 and same is the statement made in the rejoinder affidavit filed against the reply filed by respondent No.3.3 and 3.4. It is also contended that sale consideration depicted in the Sale Deeds are farce and to overreach the order of the Court less consideration has been reflected as against the real value. To highlight this aspect in paragraph 6(c) the complainants have contended at the relevant point of time the Jantri value of the subject land was Rs.4,800/- per sq.meter and the consideration depicted in the Sale Deed is at Rs.8,500/-. It is also stated that Page 37 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 consideration for the sale transaction for 118.80 sq.mtrs. of land and for the land sold to the extent of 152.00 sq.mtrs. are similar and hence the complainants contend that respondent No.4 maliciously sold the subject property at under value rate and has caused huge loss to the public exchequer. To highlight the fact that alleged possession certificate which has been relied upon to contend that sale transaction had already been completed way back in the year 2012 when compared to the Sale Deed dated 09.02.2016, it would clearly indicate that survey numbers depicted in both these documents are distinct and different. Hence, contending that the possession receipts executed in favor of Prakash Kundu as well as cash receipts produced on record are forged, bogus and concocted and contrary to the facts, the complainants have sought for the said documents being excluded from the purview of consideration of this Court.
36. In the instant case, the accused namely accused No. 3.1 to 3.4 and accused No. 4 have in categorical terms admitted in the affidavits filed before this Court having sold the subject property though fully conversant and aware of the undertaking given before this Court to the effect that same would not be sold Page 38 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 till the main petition is heard and decided. Respondent Nos. 3.1 to 3.4 do not dispute about the execution of the power of attorney in favour of accused no. 4 and they also do not dispute that till date power of attorney has not been cancelled. As such by way of evasive statement to stave off the present contempt proceedings, accused no. 3.1 to 3.4 have on identical lines deposed to the following facts :
"xxxx........ I say that I had no intention whatsoever to commit breach of the order of the Hon'ble Court. But, even if inadvertently it has been done, it may be exonerated from contempt. I say that I am not involved in the day-to-day business of the family or the transaction of sale. I, therefore, say that no action for contempt may be initiated against me."
37. Whereas, the accused no. 4 categorically admits of execution of sale deed, however, he tries to feign ignorance by deposing in his affidavit dated 28.08.2018 to the following effect :-
"I say that the main allegation made against us is, that contrary to the orders of this Hon'ble Court dated 14.10.2015, we have sold the property to the persons who are mentioned in the indexed documents annexed with the contempt application. I say that I, bona fide believed that, the transactions mentioned in the indexed documents on page-157 onwards alleging contempt against us, without trying to over justify the case, it is my duty to point out the correct facts which led me to bona fide believe that sale was completed. I say that on page-158 copy of Page 39 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 the index register is produced regarding the sale in favour of Prashantbhai Haradhanbhai Kondu, which is registered on 09.02.2016. I am producing herewith a copy of the sale deed because, the index produced by the applicant does not reflect the correct position. Hereto and marked as Annexure R1 is copy of the sale deed dated 09.02.2016. It is very clear that the sale was completed on 21.08.2012, but it was only not registered. As per the definition of sale, the transaction is complete since we have received the consideration money and we had handed over the possession. The said fact is also mentioned in the sale deed."
38. The issue regarding consideration has already been discussed hereinabove and as such we would not burden this order by repeating the same. The accused no. 3.1 to 3.4 and accused no. 4 in collusion with each other have tried to overreach the orders of the Court and are now attempting to improve their case stage by stage and step by step. Though they would contend that they have not willfully disobeyed the order namely undertaking given to this Court on 14.10.2015, the fact remains that they have sold the subject property under various sale-deeds between 09.11.2015 to 25.05.2017. However, they are now attempting to put up a fairy tale by contending that sale transaction had already been completed in the year 2012 and sale deed was not registered at that time and at the behest of the purchaser, it was registered subsequently Page 40 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 (after giving an undertaking to this Court on 14.10.2015) as the purchaser intended to borrow loan from financial institutions. If it were to be so, nothing prevented these accused persons to have approached the Writ Court for modification or variation of the order dated 14.10.2015. However, they did not choose to do so, on the other hand, they have brazenly created the sale-deeds of subject property which they had agreed would not be sold and have appropriated the sale consideration. Even after execution of the sale deed on 01.12.2017, it was not brought to the notice of Writ Court about such sale deed having been executed by them. Had the acts of the accused being unintentional or they were genuinely expressing remorse of their conduct, they would have tendered unconditional apology at the first instance. However, they did not choose to do so as the affidavit dated 28.08.2018 is a mirror to this fact. Infact affidavit of accused no. 4 dated 28.08.2018 would disclose that sale deeds were executed during February, March and May, 2016. Though sale transaction is alleged to have been concluded in the year 2012 itself. To accept the affidavit of apology would amount to allowing a person who intends to breach the order of the Court by exonerating such person and it Page 41 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 would amount to granting premium by the Court to the perpetrators of wrong. Though accused No. 3.3 in his affidavit dated 28.08.2018 contends that he is not involved in day to day business of the family and transactions of sale were not within his knowledge, material available on record belies the said statement and we say so for the simple reason that in the rejoinder filed by accused, it has been brought on record that very same contemnor has filed affidavits in the original proceedings namely Special Civil Application No. 16266 of 2013 which discloses that he had applied for N.A. permission for the land bearing Survey No. 65 on various dates namely 16.12.2010, 23.10.2013, 18.02.2014 and 10.02.2017. He has also filed an application on 04.03.2017 before the Surat Municipal Corporation for development of shopping centre. It would also be necessary to observe at this juncture that accused no. 4 has made a statement before the revenue authorities while seeking N.A. permission for the land bearing Survey No. 63 by deposing on oath that no civil or criminal proceedings are pending regarding mutation entry No. 2015 though it was pending. Only after further affidavit-in-reply dated 07.10.2018 came to be filed by the respondents herein denying the Page 42 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 averments made in the rejoinder affidavit dated 18.09.2018 filed by accused No. 3.1 to 3.4 and accused no. 4, further affidavit dated 24.12.2018 came to be filed tendering unconditional apology being left with no other option.
39. It is necessary to note at this juncture that further affidavit dated 23.01.2019 has been filed by accused Nos. 3.1 to 3.4 and accused no. 4 categorically admitting, accepting that statement made by the learned Senior Counsel on 14.10.2015 was under instruction of accused no. 4 in his personal capacity as well as power of attorney holder for others.
40. The accused have continued to commit further contempt. We say so for the reason that additional affidavit dated 06.04.2019 filed by complainant No. 1.1 enclosing the sale deed dated 30.10.2018 would clearly disclose that accused no. 4 on behalf of himself and also on behalf of accused no. 3.1 to 3.4 had sold shop bearing No. 7 admeasuring 19.2 sq. mtrs. in the land bearing Survey No. 63 which land was also agreed not to be sold by way of undertaking given to this Court on 14.10.2015. Additional affidavit dated 18.07.2019 has been filed Page 43 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 by complainant No. 1.1 which discloses another portion of land admeasuring 118.48 in Survey No. 63 has been disposed of vide sale deed dated 25.07.2017. Respondent No. 4 who had been examined as a witness in Special Civil Suit No. 130 of 1995 in his deposition (Annexure B-2) has admitted that he was aware of the interim order in which breach is alleged. Infact he has also deposed that all the family members are well aware of the order dated 14.10.2015. His admission reads thus :
"It is true that my Advocate Mr. Shirishbhai Sanjanwala, under my instructions, gave oral undertaking that for Survey No. 63 and 65 of Majura will not be sold till the final outcome of CMA. I do not remember it orally but it might be mentioned in the Honourable High Court of Gujarat Application No. 16266/13 in reference to the undertaking given by me to my Advocate Mr. Shirishbhai Sanjanwala, after reading over the order dated 14.10.2015 that what was the reason that he gave the assurance on my behalf. I did not have the occasion of meeting advocate Mr. Shirish Sanjanwala after 14.10.2015 or having discussion with him."
41. The aforesaid admission of the accused would suffice to arrive at a irresistible conclusion that accused no. 4 having willfully breached the undertaking given to this Court on 14.10.2015 in Special Civil Application No. 16266 of 2013. Page 44 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
42. The aforesaid sequential events and facts would clearly revealing the modus operandi adopted by accused no. 3.1 to 3.4 and accused no. 4 in selling immovable property which was the subject matter of the Civil Application (For Direction) No. 11412 of 2015 in Special Civil Application No. 16226 of 2013 in violation of their undertaking given to this Court and also selling the subject property even during pendency of this contempt application.
43. Though learned Senior Advocate Mr. Mihir Joshi has made a valiant attempt to contend that affidavit of apology have been tendered by the respondents and same may be accepted and has sought for taking a lenient view, we cannot do so for the elaborate reasons already assigned hereinabove and in gist it can be reiterated by stating that remorse or apology should not only be bona fide but also be bereft of mala fides and it should come at the first instance. An apology tendered at a belated stage cannot be construed as an honest and bona fide remorse. In the decision of Attorney General versus Times Newspapers Ltd., (1973) 3 ALL ER 54, Lord Diplock, has stated that :
Page 45 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 "xxx...............there is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity.............."
44. The Hon'ble Apex Court in the case of Anil Ratan Sarkar & Ors. versus Hirak Ghosh & Ors. reported in (2002) 4 SCC 21, has held that Contempt of Courts Act has been introduced in the Statute Book for securing a feeling of confidence of the people in administration of justice. If an order passed by this Court is clearly unambiguous and is incapable of more than one interpretation, disobedience or breach of such order would amount to contempt of courts. There can be no laxity in such situation, otherwise the Courts' order would become the subject of mockery but misunderstanding or over understanding of the Courts' order and it would not be a permissible defence.
45. In light of the aforesaid discussion, we are of the considered view that undertaking given to this Court on 14.10.2015 in Special Civil Application No. 16226 of 2013, has been willfully disobeyed or breached by accused No. 3.1 to 3.4 and accused no. 4.
Page 46 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
46. This leads us to the next question namely as to whether the sentence of imprisonment is to be imposition of fine would suffice. Section 12 of the Contempt of Courts Act provides for punishment and it reads thus :
"12. Punishment for contempt of court.--(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
Explanation.--An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a Page 47 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub- section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-
section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
Explanation.--For the purpose of sub-sections (4) and (5),--
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
47. The Hon'ble Apex Court in the case of Patel Rajnikant Dhulabhai and Another versus Patel Page 48 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 Chandrakant Dhulabhai and others reported in (2008) 14 SCC 561 has held :
"It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act."
48. The act of willfully disobedience is sin-qua-non for proceeding against the accused and mere disobedience of the order or undertaking would not be sufficient to hold a person guilty of civil contempt. The element of willingness is indispensable requirement as held by the Hon'ble Apex Court. At the sametime it requires to be noticed that plea regarding neither the Court which passed the order had no jurisdiction nor the final order has been passed would not wipe out the order which is alleged to have been violated. Punishing a person for contempt of court would indeed be a drastic step and normally such recourse would not be taken. However, at the sametime, it Page 49 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 would be solemn duty of the Court to uphold and dignity of Court and majesty of Court which may call for extreme step for proper administration of justice and to ensure due compliance with the orders passed by the Court. Courts would be required to take strict view under the Act and it would not hesitate in wielding the potent weapon of contempt as observed by the Hon'ble Apex Court in Patel Rajnikant Dhulabhai's case (supra). To drive home his contention that there is no willful disobedience of undertaking given to this Court by respondent Nos. 3.1 to 3.4, Mr. Mihir Joshi, learned Senior Advocate has relied upon the judgment of Hon'ble Apex Court in the case of Ram Kishan versus Tarun Bajaj and Others reported in (2014) 16 SCC 204, whereunder it has been clearly held that it is a well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable.
49. In the facts obtained in the said case, the Hon'ble Apex Court did not deem it fit to punish the contemnor for civil contempt. The Hon'ble Apex Court in the case of Murray & Co. versus Ashok Kr. Newatia and Another reported in Page 50 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 (2000) 2 SCC 367, had occasion to examine as to whether a person by his alleged act obtained any definite advantage is not a relevant factor for deciding whether the act constituted contempt of court and held it would be relevant for deciding the quantum of punishment. The said justment would not come to rescue of the accused herein in light of following glaring facts namely : -
(i) an undertaking having given in Special Civil Application No. 16226 of 2013 on 14.10.2015 undertaking thereunder that immovable property qua subject entry bearing No. 2015 relating to Survey No. 63 and 65 would not be sold, had been violated;
(ii) Several sale deeds have been executed by accused no.
4 for himself and on behalf of accused no. 3.1 to 3.4 with their full knowledge.
(iii) accused No. 3.1 to 3.4 being aware of the order, have not cancelled power of attorney executed by them in favour of accused no. 4. On the contrary after being Page 51 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 notified of this contempt proceedings, accused no. 4 having sold the property in the year 2017-18 though it was within their knowledge of undertaking having been given to Court since they are the parties to the proceedings before the trial court in Special Civil Suit No. 130 of 1995 and they admit this fact in their deposition.
(iv) In the reply affidavit filed before this Court in the present proceedings, they have admitted of sale having taken place subsequent to the undertaking given by them to this Court. There is no unconditional apology tendered at the first instance to construe the acts of accused as not being deliberate or willful.
(v) No material has been placed to establish or demonstrate that property had infact been sold in the year 2012 itself.
50. Infact the execution of the sale deed during the operation of injunction would be void. For this proposition, the authoritative pronouncement of the Hon'ble Apex Court in the Page 52 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 matter of Jehal Tanti and Others versus Nageshwar Singh (Dead) Through LRs. reported in (2013) 14 SCC 689 can be looked up.
51. For the reasons aforestated, we are of the considered view that order dated 14.10.2015 was clearly unambiguous and unequivocal disclosing only one answer or meaning namely the immovable property qua the subject matter of entry No. 2015 i.e. Survey No. 63 and 65 having been sole not only after the undertaken given to this Court but also two other plots having been sold during the pendency of the present contempt proceedings, and that too after contemnors were notified and they being fully conversant with the order being in operation, yet, sold the properties in utter violation of undertaking given to this Court.
52. The accused no. 3.1 to 3.4 not having taken any steps as expected of a reasonable prudent person to cancel the power of attorney given to 4th respondent at the first available opportunity but on the other hand having sold the property even after notice of contempt being served upon them, we are of the Page 53 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 considered view that remorse expressed or unconditional apology tendered by them cannot be accepted as genuine and/or bona fide. On the other hand, the conduct of accused and particularly accused no. 3.1 to 3.4 not even cancelling sale deeds would be sufficient to arrive at a conclusion that contrition or remorse expressed by them is not bona fide and has been made to stave off the contempt proceedings by making a show of apology having been tendered and trying to take umbrage by contending that accused no. 3.1 and 3.2 are housewives cannot be allowed to take umbrage or use the protective umbrella, and extending them of such benevolence would result in pure stream of administration of justice being polluted by such persons by feigning ignorance and as such we are of the considered view that they should be dealt with iron hands.
53. In T. N. Godavarman Thirumulpad versus Ashok Khot And Anr. Reported in (2006) 5 SCC 1, three Judges' Bench of the Hon'ble Apex Court had an occasion to consider the question in light of 'apology' as a weapon defines by contemnor with a prayer to drop the proceedings. The Hon'ble Page 54 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 Apex Court took note of the following observations made in L.D. Jaikwal versus State Of U.P. reported in (1984) 3 SCC 405, wherein it came to be held : -
"32. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in L.D. Jaikwal v. State of Uttar Pradesh, (AIR 1984 SC 1374) "We are sorry to say we cannot subscribe to the 'slap-say sorry-and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry-it is another to 'feel' sorry."
54. The Hon'ble Apex Court therefore, rejected the prayer and further stated that "apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence, it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward."
Page 55 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
55. Applying the aforestated principle to the facts on hand as noticed by us earlier in hereinabove, that accused No. 3.1 to 3.4 are attempting to improve their case step by step and stage by stage and tendering apology without any real contrition and same not being from the heart but offered as a lip sympathy to stave off the consequences that would flow from their contemptuous act, the affidavit of apology has been filed. Had there been real remorse, they would have on notice of contempt being served, forthwith cancelled the power of attorney executed in favour of accused no. 4. However, they have not chosen to do so. On the other hand, they have allowed him to continue to perform duties as their agent and derived benefits out of it, which discloses there is no real contrition expressed by them which would satisfy the Courts' conscious.
56. Punishing a person is a drastic step which is normally not resorted to, however, at the same time, it is not only exercise of such power but also a duty is cast on the Court to ensure all maintain the dignity of the Court and majesty of law and for its protection extreme step of punishing the contemnors are required to be taken. For proper administration Page 56 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 of justice and to ensure the orders passed by this Court are duly complied with by all the concerned, this Court would be required to take strict view under the Act and this Court would not step back to wield the potent weapon of contempt.
57. The sale deeds having been executed pursuant to the order dated 14.10.2015 and same being in absolute breach of undertaking given to this Court and there being deliberate and willful disobedience of the said order, strict view requires to be taken. Accordingly we have answered point No.(i) in the affirmative.
RE : POINT NO.(ii) :
58. A plea has been raised that the contempt petition is not maintainable and it is barred by limitation as prescribed under Section 20 of the Contempt of Courts Act, 1971. Section 20 reads as under :
"20. Limitation for actions for contempt.--No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
59. The complainants have initiated the present Page 57 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 contempt proceeding for violation of the undertaking given to the Court and recorded in Civil Application (for Direction) No.11412 of 2015 in Special Civil Application No.16266 of 2013 on 14.10.2015. In support of the said plea at paragraph 2 of the application, the complainants have contended that in total breach of the order dated 14.10.2015, respondent Nos.3.1 to 3.4 and 4 have deliberately, intentionally and willfully committed contempt of the order dated 14.10.2015 by selling the plot bearing Nos.79 and 80 vide registered Sale Deeds dated 09.11.2015, Plot Nos.199A, 199B, 200 vide registered Sale Deeds dated 19.02.2016 and the like. It has also been contended that Plot No.176 formed under Survey No.63 was sold under the Sale Deed dated 25.07.2017. The application for contempt has been filed on 12.01.2018. Prima facie at least when the Sale Deed dated 17.05.2017 came to be executed, the contempt has been committed. The period of limitation even if counted from the date on which the alleged contempt has been committed, present application does not fall within the mischief of Section 20 of the Act.
60. The Hon'ble Apex Court in Pallav Sheth vs. Custodian and others, reported in AIR 2001 SC 2763, has explained the scope of Section 20 and has held as under : Page 58 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
33. The question which squarely arises is as to what is the meaning to be given to the expression "no court shall initiate any proceedings for contempt..." occurring in Section 20 of the 1971 Act. Section 20 deals not only with criminal contempt but also with civil contempt. It applies not only to the contempt committed in the face of the High Court or the Supreme Court but would also be applicable in the case of contempt of the subordinate court. The procedure which is to be followed in each of these cases is different.
34. As we have already noted, in the Bill which was presented to the Parliament after taking into consideration the recommendations of the Sanyal Committee there was no provision similar to Section 20 of the 1971 Act. It is only the Joint Parliamentary Committee which recommended the insertion of Clause 20 so as to provide for a period of limitation.
There can be little doubt that Section 20, as framed, is not happily worded. The heading of the section, however, indicates what it was to provide for "Limitation for actions for contempt". The wording of the section are negative but it is clear that terminus ad quem is the initiation of proceedings for contempt. The question that arise as to how or when are the proceedings for contempt initiated.
39. In the case of criminal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or the Law Officer of the Central Government in the case of Union Territory. This reference or motion can conceivably commence on an application being filed by a person whereupon the subordinate court or the Advocate-General if it is so satisfied may refer the matter to the High Court. Proceedings for civil contempt normally commence with a person aggrieved bringing to the notice of the Court the wilful disobedience of any judgment, decree, order etc. which could amount to the commission of the offence. The attention of the Court is drawn to such a contempt being committed only by a person filing an application in that behalf. In other words, unless a Court was to take a suo motu action, the proceeding Page 59 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 under the Contempt of Courts Act, 1971 would normally commence with the filing of an application drawing to the attention of the Court to the contempt having been committed. When the judicial procedure requires an application being filed either before the Court or consent being sought by a person from the Advocate-General or a Law Officer it must logically follow that proceeding for contempt are initiated when the applications are made.
41. One of the principles underlying the law of limitation is that a litigant must act diligently and not sleep over its rights. In this background such an interpretation should be placed on Section 20 of the Act which does not lead to an anomalous result causing hardship to the party who may have acted with utmost diligence and because of the inaction on the part of the Court a contemner cannot be made to suffer. Interpreting the section in the manner canvassed by Mr. Venugopal would mean that the Court would be rendered powerless to punish even though it may be fully convinced of the blatant nature of a contempt having been committed and the same having been brought to the notice of the Court soon after the committal of the contempt and within the period of one year of the same. Section 20, therefore, has to be construed in a manner which would avoid such an anomaly and hardship both as regards the litigant as also by placing a pointless fetter on the part of the Court to punish for its contempt. An interpretation of Section 20, like the one canvassed by the Appellant, which would render the constitutional power of the Courts nugatory in taking action for contempt even in cases of gross contempt, successfully hidden for a period of one year by practising fraud by the contemner would render Section 20 as liable to be regarded as being in conflict with Article 129 and/or Article 215. Such a rigid interpretation must therefore be avoided.
42. The decision in Om Prakash Jaiswal's case (supra), to the effect that initiation of proceedings under Section 20 can only be said to have occurred when the Court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show-cause why it should not be Page 60 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate court is committed a report is prepared whether on an application to Court or otherwise, and reference made by the subordinate court to the High Court. It is only thereafter that a High Court can take further action under Section 15. In the process, more often than not, a period of one year elapses. If the interpretation of Section 20 put in Om Prakash Jaiswal's case (supra) is correct, it would mean that notwithstanding both the subordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the subordinate court or the High Court making of a reference by a subordinate court on its own motion or the filing an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the Court for the purposes of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of Section 20 would harmonise that section with the powers of the Courts to punish for contempt which is recognised by the Constitution.
44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice. In other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged Page 61 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 to have been committed."
61. Where the cause of action is recurring in nature and the wrong has been continued, the proceedings so initiated would not be barred under Section 20. It would be apposite to refer to the pleadings of the parties. As against the plea raised by the complainant in paragraph 2 of the application, that contempt application has been filed immediately after they learnt about the contemnors having sold or disposed of the properties in willful disobedience of the undertaking recorded by order dated 14.10.2015, contemnors have responded in their reply affidavits by accepting this fact but have tried to contend in paragraph 4 that contempt application is time barred, on the ground that petitioners or applicants or complainants have not stated in detail as to when actually they acquired knowledge of sale. In the same breath at paragraph 6, the fourth respondent in his affidavit-in-reply dated 28.08.2018 admits that Sale Deeds were executed subsequent to undertaking given to Court, inadvertently after order being passed by the Court. He further admits that this is due to inadvertence and not deliberate. The Sale Deeds which have been executed by contemnors on various dates have been referred to us supra while adjudicating and Page 62 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 answering Point No.1. While adverting to the reply affidavit filed by the respondents by way of affidavit-in-rejoinder dated 18.09.2018, it has been further contended by the complainants that Sale Deeds executed in favour of Sudesh Dingra, Shilpi Ravi and Mr.Roshanlal was on 17.05.2017 and not on 17.05.2016. It is also stated that Sale Deed executed in favour of Mr.Sami Kumar was on 25.07.2017 which the contemnors had concealed and hence, it is contended that the application is well within the period of limitation. As such, this Court by order dated 18.12.2018 directed the contemnors to be present personally and to answer as to why charge should not be framed against them. In reply to the same, an affidavit has been filed by the contemnors on 24.12.2018 admitting thereunder the disobedience and breaching the undertaking given to the Court. In the words of fourth respondent, the admission reads to the following effect :
"2. I sincerely regret that the execution of the sale deeds were in breach of the statement made by learned counsel on my behalf. I hereby sincerely tender unconditional apology with clear understanding that there is breach of the statement. I submit that there is no scope for justification of the action of execution of sale deeds which I undertook under the pressure built up by the agreement-holders. I request Your Lordships to accept my apology if deem fit and proper."Page 63 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022
C/MCA/121/2018 JUDGMENT DATED: 13/07/2022
62. Same is the admission of Contemnor Nos.3.1 to 3.4 in the respective affidavits filed by them on 24.12.2018. It is also pertinent to notice at this juncture that even during the pendency of the present proceeding, Sale Deeds have been executed by the contemnors in respect of the property which was subject-matter of undertaking given to the Court and as recorded on 14.10.2015. In other words, Sale Deed has been executed during the pendency of the present proceeding i.e. on 30.10.2018. Thus, there being continuing wrong, the limitation prescribed under Section 20 of the Act would not be attracted, as every instance of execution of the Sale Deed on various dates has to be construed as fresh cause of action. The limitation for initiating contempt proceeding does not commence from the date of the order in respect of which violation is complained of but from the date of the act on the part of the contemnor to disobey the order or failure on the part of such party to comply with the undertaking given to the Court. In the instant case, the undertaking was given on 14.10.2015, undertaking thereunder that contemnors would not sell the property qua the subject- matter of the revenue entry and same having been sold not only subsequent to the order as noted in paragraph 26 supra, but Page 64 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 also on 30.10.2018, we are of the considered view that this application for contempt filed on 12.01.2018 is well within the period of limitation as prescribed under Section 20 and accordingly, we answer Point No.2 in the negative and it is further held that contempt petition cannot be dismissed on the ground of Section 20 of the Contempt of Courts Act, 1971, being attracted to the facts of the case, which is not the position obtained in the present case.
RE : POINT NO.(iii) :
63. For the reasons aforestated, we proceed to pass the following ORDER
(i) We hold that accused Nos. 3.1 to 3.4 and accused No. 4 guilty of Contempt for their deliberate and willful disobedience of the undertaking given to this Court which came to be recorded by order dated 14.10.2015 passed in Special Civil Application No. 16266 of 2013.
(ii) We impose cost of Rs. 1,00,000/- (Rupees One Lakh only) on accused Nos.3.1 and 3.2 in lieu of Page 65 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 sentencing them to imprisonment and in addition direct them to pay fine of Rs. 2,000/- (Rupees Two Thousand only) each and the amount of fine shall be paid within a period of three weeks from today and in default thereof, they shall undergo simple imprisonment for a period of two (2) months.
(iii) We sentence accused Nos. 3.3, 3.4 and accused No. 4 to undergo simple imprisonment for a period of two months and pay fine of Rs. 2,000/- (Rupees Two Thousand only) each and in default to undergo simple imprisonment for a period of two (2) months.
(iv) It is declared that following sale deeds executed by accused Nos.. 3.1 to 3.4 through accused no. 4 as power of attorney holder in favour of purchaser as non est and it is hereby ordered to be cancelled, quashed and set aside and respondents are directed to restore the position which was prevailing prior to the execution of the aforesaid sale deeds which was prevailing at the time of the order dated 14.10.2015 passed in Special Civil Application No. 16266 of 2013. Page 66 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 The said sale deeds are as follows : -
LIST OF SALE DEEDS Sr. Sale Plot Plot Consideration Name of the No. Deed Area No. Purchaser Date 1 9-11-15 118.48 79 103115/- Jagdish Chug 2 9-11-15 118.48 80 103115/- Rama Rani 3 19-2-16 118.48 119A 8500/- Prakash Kundu 4 19-2-16 118.48 199B 8500/- Prakash Kundu 5 19-2-16 118.48 200 8500/- Prakash Kundu 6 15-3-16 118.48 122B 8500/- Mafatlal (56) Kalidas HUF 7 15-3-16 118.48 122C 8500/- Mafatlal (55) Kalidas 8 17-5-17 152 27 8500/- Sudesh Dingra 9 17-5-17 152 27A 8500/- Shilpi Ravi 10 17-5-17 152 28 8500/- Roshan Lal 11 25-7-17 118.48 176 8500/- Sami Kumar 2,82,730/-
2 Sale deeds done / added afterwards 12 30-10-18 19.26 Shop 49000/- Trilokram No.7 Mali 13 25-7-17 118.48 175 8500/- Yogeshkumar Patel Tot 3,40,230/-
al The Jurisdictional Sub-Registrar/s be informed to make necessary entries in the records accordingly.
(v) It would be open for the purchasers to recover Page 67 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022 C/MCA/121/2018 JUDGMENT DATED: 13/07/2022 the amount of sale consideration from the accused Nos. 3.1 to 3.4 and accused no. 4.
(vi) The present Misc. Civil Application stands allowed with costs quantified at Rs. 1,00,000/- payable jointly and severally by accused no. 3.1 to 3.4 and accused no. 4 to the applicants towards the cost of the present proceedings.
64. After pronouncement of the above order, Mr. Mihir Joshi, learned Senior Advocate seeks for stay of operation of this judgment for a period of four weeks. Having regard to the facts of above case, we are of the considered view that it would be just and necessary to stay this order for a period of four weeks from today. Accordingly, we grant stay of this judgment for a period of four weeks from today subject to accused Nos. 3.1 to 3.4 and accused No. 4 depositing of fine amount and costs as ordered herinabove before this Court within two weeks from today.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) Gaurav Thaker / Amar Singh Page 68 of 68 Downloaded on : Mon Jul 25 00:07:01 IST 2022