Calcutta High Court
Kedarnath Jute Manufacturing Co. Ltd. ... vs Prasad Ranjan Ray And Anr. on 2 September, 2003
Equivalent citations: [2004]266ITR677(CAL)
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT
Amitava Lala J.
1. This is an application for contempt. By making this contempt application the petitioners contended that the alleged contemnors have violated the order dated January 21, 2003, passed by this court. In the original order this court was pleased to direct how the additional compensation be calculated and how the interest will be calculated. However, the operative part of the order is important for the purpose of consideration :
The defects will be cured and a fresh order will be issued within one month from the date of communication of this order and upon making all calculations appropriate amount will be paid in favour of the petitioners within a period of one month thereafter."
2. According to the petitioners, they have supplied a copy of the order to the appropriate authorities with the letter dated January 28, 2003. Initially, a rule was issued keeping the question of maintainability of the contempt application open. The petitioners also made an interlocutory application within the contempt application saying that the petitioner paid the amount as per the order of the court upon deducting income-tax as per Section 194A of the Income-tax Act, 1961. The prayer in the interlocutory application under the contempt application is to give a direction upon the alleged contemnors to release the deducted amount of Rs. 3,68,229 on account of income-tax in favour of the petitioners. There is no dispute with regard to the balance sum as has already been paid by the alleged contemnors pursuant to the order of the court which appears to be accepted by the petitioners as per the voucher dated June 16, 2003. It is significant to note that such amount was accepted beyond the period of two months from the date of communication of this order. The petitioners have taken a plea that although such indication is there in the voucher before acceptance of the sum on June 13, 2003, the petitioners wrote a letter to the Land Acquisition Collector informing that receipt of such sum with the deduction is "without prejudice". However, upon going through such letter I find that the letter was written demanding the deducted amount and such claim is without prejudice to the pending contempt application.
3. It is to be remembered that hereunder I am proceeding with a contempt application. The remaining money claim is precisely the scope and ambit of the interlocutory application. Therefore, the question remains whether such order can be passed in a contempt application or not. Contempt of court is a quasi-criminal proceeding which is to be proceeded on the basis of wilful disobedience of the order of the court. Moreover, when factually the order has been complied' with and the claim amount has been paid and received by the petitioners even within the extended period leaving aside deduction of income-tax, how the contempt lies against the respondents is unknown to this court. Where is the wilful disobedience ? Impossibility to act cannot be equated with the non-compliance of the order more particularly when the court directed the respondents to make all calculations and pay the appropriate amount. Such dispute must be related to quantum, subject to adjustment of statutory liabilities, if any. Such deduction on account of income-tax may be good, bad or indifferent but cannot be said to be wilful disobedience or violation of the order of the court.
4. Mr. P. K. Roy, learned counsel appearing for the petitioners, has brought my notice to the Halsbury's Laws of England, 4th edition, volume 9, page 47, to make negative argument in respect of wilful disobedience of the order on the question of the payment of money which is as follows :
Disobedience to orders for the payment of money Order for payment of money. A judgment or order directing a person to pay money to another person within a limited time can be enforced, subject to the Debtors Act, 1869, by an order for committal or by a writ of sequestration.
When the judgment is merely that the plaintiff 'do recover' against the defendant a sum of money, it cannot be enforced by committal or sequestration, even if the debt is one in respect of which imprisonment for debt has not been abolished".
5. By referring to such portion he contended that in a case of suit, it cannot be done. But in a case of writ there is no scope of recovery, therefore, the contempt is obvious outcome of the same.
6. According to me it cannot be an acceptable argument. The import of the aforesaid quoted portion is that failure to comply with the time bound programme of assured payment can be enforceable subject to the Debtors Act. Here there is no assured amount under the order. The order is only restricted about calculation and payment of appropriate amount. The authorities have not failed to pay upon making calculation. The question of deduction under the Income-tax Act can be equated with the Debtors Act. Therefore, there cannot be any wrong on their part. The only question which could have been the ground of contempt is to follow the time bound programme, therefore, the rule was issued. But I find the amount was received by the petitioners even beyond the period prescribed by the court. Here the question of without prejudice has no meaning. In an appropriate case of contempt sometimes contemnors are allowed to comply with the order. But when the very foundation of contempt has been destroyed by the petitioners even beyond the period, the intention of the petitioners cannot be said to be proper. If at all the provision of execution is not expressly available under the rules, there is no bar for filing a second writ petition to execute the order. There is no embargo in taking the point of deduction before the appropriate income-tax authority. In fact the petitioners tried to choose the short cut process to get release of the said sum by keeping the weapon of contempt pending which is not a clean approach.
7. Mr. Roy cited a few judgments in support of his case. In Lt. Col. K.D. Gupta v. Union of India , I find that the Supreme Court held that there is no justification to initiate any contempt proceeding against the respondents for withholding any sum payable under the Income-tax Act, 1961, from the total amount to be paid to one. The authority has the obligation to deduct the income-tax at source. Therefore, the principle as laid down by the Supreme Court is going totally the petitioners' own case. Learned senior counsel has given emphasis to the result of such case whereunder such payment was directed to release by way of adjustment between the parties. According to me, adjustment in a particular case cannot be the ratio to be made applicable in other fact situation. Factually there the amount was ascertained but in the present case the amount was unascertained.
8. So far as Mohd. Qaiser v. L.K. Sinha [1995] Supp. 4 SCC 283, is concerned, I find the Supreme Court has accepted belated compliance of the order in a contempt application. Therefore, how such ratio is helping the cause of the petitioners is unknown to this court.
9. In the cited paragraphs 3 and 7 of Balai Krushna Tej v. Inspector of Schools [1991] Crl LJ 206 (Orissa), I find that the Division Bench of the Orissa High Court has taken a view about strict compliance of the order in case of payment of arrears of salary and further held that the authority is guilty of contempt. I do not find how such case can support the contention of the petitioners herein. Arrears of salary are a statutory liability of an authority to pay the respective employee particularly when there is an order of the court. Therefore, there cannot be any embargo on paying the salary and the same cannot also be equated on account of payment of interest arising out of compensation or deduction at the time of payment.
10. Mr. Roy wanted to agitate the question of applicability of Section 194A of the Income-tax Act in the present case. However, sitting in a contempt jurisdiction I cannot take up such issue. Learned counsel appearing for the respondents contended that the original decree which has been passed by the concerned land acquisition judge is under appeal before this High Court in FAT No. 2331 of 2002 and suppressing such fact, the writ petition was moved before this court. I do not propose to go into such controversy hereunder. But it can be safely observed that the petitioners have not at all come with clean hands.
11. The contempt application fails. Hence, the contempt application stands dismissed with costs assessed at 100 G. Ms. each equivalent to Rs. 1,700 directed to be paid to the respondents in equal share within a period of one week from the date of communication of this order. Therefore, the rule stands discharged. Personal presence of the contemnors permanently are dispensed with.
12. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.