Calcutta High Court
Sova Solar Limited And Anr vs Vandana Yadav on 28 February, 2023
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-1
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Contempt)
ORIGINAL SIDE
CC/26/2021
SOVA SOLAR LIMITED AND ANR
VS
VANDANA YADAV
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 28th February, 2023.
Appearance :
Mr. Reetobroto Mitra, Adv.
Mr. Arindam Guha, Adv.
Mr. Jayanta Sengupta, Adv.
Ms. Arpita Dey, Adv.
..for the applicant Mr. Md. T. M. Siddiqui, Adv.
Mr. Md. Faruk Ali, Adv.
..for the alleged contemnor.
The Court : Learned counsel for the alleged contemnor, at the outset, takes an objection as to the maintainability of the contempt petition before this Court, on the ground that the order of this Court, in respect of which contempt has been alleged, was subsequently merged with the order of the Division Bench, which affirms this Court's order. Subsequently the matter is sub judice before the Supreme Court, it is submitted for the records.
Learned counsel for the alleged contemnor cites the Judgment of (M/s. Gojer Bros. (Pvt.) Ltd. versus Shri Ratan Lal Singh) reported at (1974) 2 SCC 453 and (Collector of Customs, Calcutta versus East India Commercial Co.
Ltd., Calcutta And Others) reported at AIR 1963 SC 1124, in both of which, 2 the Supreme Court reiterated the doctrine of merger, in support of his proposition.
Learned counsel also cites a Co-ordinate Bench judgment delivered in (M/s. Tetulia Coke Plant (P) Ltd. & Ors. Versus P.S. Bhattacharya) reported at (2012) 3 Cal LJ 185.
Learned counsel appearing for the petitioner in the contempt application submits at the inception that the Division Bench, while affirming the order of this Court, did not pass any independent direction as such, but observed in the penultimate paragraph of the said judgment that no case was made out to interfere in the order of Single Bench. In such view of the matter, the appeal was dismissed and the order of the Single Bench was affirmed.
It is argued that the alleged contempt arises out of the direction passed by this Court and as such, the contempt application has to be taken up by this Court. That apart, it is argued that contempt is squarely in the nature of a remedy in personam and lies against the offender who deliberately disobeys the order of Court.
Thus, there is no scope of transferring the contempt application to some other Court. Moreover, Section 14 of the Contempt Act also envisages that the Court passing the order can pass a suo moto order of contempt.
Hence, the entire scope of contempt jurisdiction revolves around the Court which passed specific direction under contempt.
Drawing an analogy with Sections 38 and 39 of the Code of Civil Procedure, which deal with the transfer of execution cases, learned counsel 3 submits that the execution case in respect of a decree may very well be transferred to the Court which has jurisdiction in respect of the property with regard to which the execution has been sought. As such, by its very concept, an execution case is transferable, whereas the Contempt of Courts Act does not have any such corresponding provision.
Learned counsel places reliance on a judgment of the Supreme Court rendered in Dineshan K.K. versus R. K. Singh And Another reported at (2014) 16 Supreme Court Cases 88 and submits that on a similar issue, the Supreme Court, even while carefully considering the concept of merger, clearly held that the High Court which had passed the initial order, was the Court where the contempt application should be preferred. As such, it is submitted that the judgment of the Co-ordinate Bench cited by the alleged contemnor i.e., M/s. Tetulia Coke (supra) is no-longer a good law.
Thirdly, learned counsel for the petitioner cites K.K.R. Nair versus Mohan Das and Another reported at 1989 SCC OnLine AP 241, where a learned Single Judge of the Andhra Pradesh High Court arrived at the conclusion that it is the order or direction of the Single Judge that forms the basis of a willful disobedience. In such cases, the Single Judge of the High Court has to take up the contempt.
Heard learned counsel for the parties and perused the judgments cited. It is to be considered at the outset that the Co-ordinate Bench judgment cited by the alleged contemnor, on point of ratio, has clearly been overruled by the Supreme Court in Dineshan K. K.(supra).
4
In paragraph 14 of the said judgment, the Supreme Court clearly observed that it was mindful of the settled law that the orders passed by the High Court would merge with the order passed by the Supreme Court. However, in the considered view of the Supreme Court, it would be in the interest of justice and to lessen the burden of the Supreme Court in the current scenario, to request the High Court to look into the grievance of the complainant, if a petition is filed before them inter alia bringing to their notice and knowledge that their orders and directions have been disobeyed.
The Supreme Court further went on to observe that this exercise would be beneficial to the parties because they were before the High Court in the writ petition wherein the directions were issued and secondly, by entertaining the petitions of this nature wherein the Supreme Court had passed an order of dismissal simpliciter and the alleged contempt arises out of the order passed by the High Court, the Supreme Court would saddle the dockets with cases which could otherwise be effectively disposed of by the Courts below.
As regard the other two judgments cited by the alleged contemnors, both the said judgments of the Supreme Court are authorities on the doctrine of merger of decree. However, nowhere in either of the judgments has the Supreme Court propounded the ratio regarding the same affecting the forum of entertaining a contempt application, as proposed to be advanced by the alleged contemnor in the present case.
Rather, the judgment of the learned Single Bench of the Andhra Pradesh High Court in K.K. R. Nair (supra) squarely lays down that in such circumstances 5 as the present, it is the Single Judge who can take cognizance of the proceedings of contempt and take further steps as provided under the Act.
Insofar as the Division Bench judgment affirming the order of this Court is concerned, the same, as rightly pointed out by learned Counsel for the petitioner, at the conclusion merely observed that no case had been made out to interfere with the order of the Single Judge, in view of which, the appeal was dismissed and the order of the Single Judge was affirmed.
Hence, the ratio laid down in K.K. Nair (supra) as well as Dineshan K. K. (supra) are fully applicable to the present case as well. Even on principles of law, if the logic advanced by the alleged contemnor is accepted, a peculiar predicament of law could be created inasmuch as the Court before which the contempt would be initiated, would not have any direct knowledge of the order which has been violated apart from the knowledge on records. The context in which such directions /orders were passed and/or texture of the directions would be beyond the scope of the superior forum to consider for the purposes of deciding whether there has been a willful and deliberate violation of such direction.
That apart, by the logic as advanced by the alleged contemnor in the present case, every execution case in matters where a second appellate court has affirm a decree of eviction would lie before the second appellate court, which would be a contradiction in terms in view of the limited scope of second appeals, which deal purely with substantial questions of law. In any event, this court is saved from the ignominy of referring the Co-ordinate Bench Judgment cited by 6 the alleged contemnor to a larger Bench by differing with the same is saved due to the subsequent judgment of Supreme Court in Dineshan K. K, where the ratio laid down in M/s. Tetulia Coke (supra) has been, for all practical purposes, overruled, thereby rendering M/s. Tetulia Coke (supra) bad in law.
In view of the above discussions, I am of the view that the present contempt application has rightly been filed before this Court, that is, the Bench of the Single Judge instead of before the Division Bench which affirmed the order of this Court.
Hence, the contempt application is entertained and the objection as to its maintainability is hereby turned down.
Learned counsel for the alleged contemnor, at this juncture, seeks an adjournment in the main contempt application, which this Court intends to take up for hearing.
In order to give a fair opportunity to the alleged contemnor to have his case argued before the Hon'ble Supreme Court, a last chance is being given to the alleged contemnor and the matter is adjourned till March 14, 2023.
(SABYASACHI BHATTACHARYYA, J.) D.Ghosh