Madras High Court
Geodis Overseas Private Ltd vs Pawan Kumar Ruia on 4 April, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.04.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Contempt Petition No.1127 of 2013
in A.No.4318 of 2011 in CS.No.65 of 2011
Geodis Overseas Private Ltd ... Petitioner
through Samdarshi Lamba
Manager Legal & Company Secretary
vs.
1.Pawan Kumar Ruia
Whole Time Director of Falcon Tyres Limited
2.Kokkarne Natrajan Prithviraj
Director of Falcon Tyres Limited
3.Ambuj Kumar Jain
Director of Falcon Tyres Limited
4.Ashok Kumar Agarwal
Director of Falcon Tyres Limited
5.Subbarathnam Ravi
Director of Falcon Tyres Limited
6.Badrinarayanan Srinivasan
Director of Falcon Tyres Limited
7.Prakash Mallya
Director of Falcon Tyres Limited
8.Ashok Gupta
Additional Director of Falcon Tyres Limited
9.Kamal Radhe Shyam Jiwrajka
Additional Director of Falcon Tyres Limited
10.Mahavir Chand Bhansali
Secretary - Falcon Tyres Limited
11.R.Venkatesh
General Manager, Falcon Tyres Limited
12.R.Venkatesh
Authorised signatory, Falcon Tyres Limited ... Respondents
Contempt Petition is filed under Section 11 of the Contempt of Court Act to punish the respondents for willful disobedience of the order of this court dated 13.8.2012 made in A.No.4318/2011 in CS.No.65/2011.
For Petitioner : Mr.APs.Ahluwalia, SC for
M/s.T.N.C.Kaushik
For Respondents : Mr.V.Lakshmi Narayanan for Mr.V.Ragavachari
O R D E R
The present contempt petition arises out of the orders dated 4.7.2012 and 13.8.2012, affirming the order dated 21.4.2011 made in A.No.4318/2011 in CS.No.65 of 2011 passed by this Court.
2.The relief sought for herein is to punish the respondents, who are the whole time Director, Directors, Additional Directors, Secretary, General Manager and Authorized Signatory of M/s.Falcon Tyres Limited.
3.Few facts, which are relevant for consideration herein are as follows:
The dispute between the petitioner Geodis Overseas Pvt. Ltd and the respondent Falcon Tyres Ltd arises out of the contract between the parties to remove the machinery from the Bridge stone Factory at Christ Church, New Zealand to Mysore, Karnataka to be installed in the respondent company. The dispute led to the filing of the suit by Falcon Tyres Ltd in CS.No.65/2011 for different injunction reliefs.
4.Originally, OA.No.87/2011 was filed by the plaintiff Falcon Tyres Limited for an ad interim exparte order of mandatory injunction, directing the defendants to clear the plant and machinery and conditional order was passed on 28.1.2011 directing the plaintiff to take a fixed deposit for a sum of Rs.2,32,12,382/- and A.No.1397/2011 was filed by the first defendant Geodis Overseas Private Limited to vacate the interim order of injunction already granted by this court. This court after due contest, disposed of both the applications, by issuing certain directions.
5.Thereafter, the first defendant Geodis Overseas Pvt Limited has come forward with the application in A.No.4318/2011 seeking an order to attach the complete cargo under the subject project movement, mentioned in the schedule to the judges summons lying at the factory premises of the plaintiff at K.R.S.Road, Metagali, Mysore, Karnataka 570 016 and bring the same into the custody of this Court and consequently allow the first defendant to sell the same through public auction to realize the sum of Rs.6,10,85,913.96. The application was also, after due contest disposed of on 4.7.2012. In the same order dated 4.7.2012, this court, having found that the right of the parties was duly safeguarded, was inclined to decide only the liability of the plaintiff to deposit 50% of the amount of total expenses mentioned in the memo, however without prejudice to the right of the parties to raise necessary claim to recover the excess sum at the later stage in the main suit and accordingly ordered the application, by directing the plaintiff to deposit Rs.3,05,42,956.98 within one week from the date of receipt of the copy of the order, in default, directed that the cargo lying at the factory premise of the plaintiff at K.R.S. Road, Metagali, Mysore, Karnataka shall stand attached and be brought to the custody of this court to be brought for public auction and the amount due to the first defendant under the order dated 21.4.2011 shall be recovered from and out of the amount realised through public auction and the balance sum, after defraying the expenses for attachment and for brining the same into the custody of the court and for conducting the public auction shall be deposited to the credit of the suit.
6.The same was followed by another order dated 13.8.2012, which is clarificatory in nature of the order dated 4.7.2012. While affirming the order dated 4.7.2012, this court in the order dated 13.8.2012, directed the Registry to transmit two copies of the order to the District and Sessions Court, Mysore for effecting the attachment and the said Court is directed to cause the said movable properties to be attached through Senior Bailiff of the said court and be brought to the custody of this court to be brought for public auction. The order dated 04.07.2012 stands affirmed in other respects.
7.Thereafter, the order dated 4.7.2012 was challenged by Falcon Tyres Limited by way of O.S.A.No.323 of 2012, which was subsequently withdrawn. The Division Bench by order dated 24.9.2012 while permitting the appellant Falcon Tyres Limited to withdraw the appeal, observed that the attitude of the appellant in filing the appeal and inviting an order, defying the condition and ultimately coming forward to withdraw, was not appreciable one.
8.Be that as it may, the defendant has come forward with the present contempt proceedings on 8.4.2013 nearly after 9 months from the date of the orders dated 4.7.2012 and 13.8.2012, to punish the respondent plaintiff company and its Directors for willful disobedience of the orders of this court. The affidavit filed in support of this contempt petition proceeds to say that the respondents failed to comply with the orders of this court dated 4.7.2012 and 13.8.2012 and the whole conduct of the respondents to delay the recovery of Rs.3,05,42,956.98 representing 50% of the amount, inspite of legal notice issued by the petitioner, constitutes a clear, willful, deliberate, contemptuous and gross violation of the orders of this Court and the respondents deliberately failed to comply with the orders of this court.
9.This contempt petition is seriously opposed by the respondents mainly on the ground that the orders relate to payment of amount were passed, with default clause and as per the orders, the petitioner has already approached the Execution Court at Mysore and obtained order for attachment of movables and having resorted to Execution proceedings, the petitioner cannot be now permitted to invoke the contempt jurisdiction of this court. The learned counsel for the respondents has also by way of typed set, produced the applications and affidavits dated 21.9.2012 filed in EP.No.752/2012 to stop the working of tyre plant; to direct the bailiff to seize attached items and prevent use; and to provide police protection for visit to the plant, applications and affidavits dated 9.1.2013 for cross examination of the bailiff and objections in EP.No.752/2012 etc. All these applications were filed before Executing Court at Mysore much before the initiation of Contempt proceedings. It is also brought to the notice of this court that during the pendency of the contempt petition, prohibitory order dated 18.7.2013 was also passed in EP.No.752/2012.
10.Thus, the combined appreciation of all these documents would reveal that the petitioner on the strength of the orders passed herein approached the Execution Court at Mysore and obtained an order of attachment of movables and the bailiff went to the spot and identified 46 items of the properties and pronounced prohibitory order by beating of drums (tom tom) and out of 46 items, some were installed and others were in wooden casket and fresh warrant was issued for attachment of those articles, which were said to be lying at the factory and the bailiff was directed to attach the movables in strict compliance of the provision of CPC under Order 21 Rule 43 and 43A and to take custody of the same. As rightly argued by the learned counsel for the respondents, the orders dated 4.7.2012 and 13.8.2012 are self contained orders and in the event of the failure of the respondents to pay the amount as directed by this court within the time specified therein, the remedy available to the petitioner is to go before the appropriate forum for attachment of the properties and to get the properties attached. Accordingly, the petitioner has availed the remedy by proceeding with the execution proceedings and also by challenging the order dated 18.7.2013 made in the execution proceedings before the High Court of Judicature at Mysore. That being so, the petitioner cannot now simultaneously resort to the contempt jurisdiction of this Court.
11.It may be true that the petitioner is not able to obtain favourable orders in the execution proceedings and the bailiff, for want of identification of the properties, was not able to effect attachment. However, that will not entitle the petitioner to initiate simultaneous contempt proceedings pending execution proceedings.
12.The learned counsel for the petitioner in the course of his argument cited the following judgments of the Apex court and our High court and other High Court reported in (i)AIR 1997 SC 1240 (Tayabbhai M.Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd. etc.); (ii)2009(2)Supreme 587 (C.Elumalai and others v. A.G.L.Irudayaraj and another); (iii)AIR 2011 SC 3056 (Arun Kumar Aggarwal v. State of Madhya Pradesh and others); (iv)(2012) 12 SCC 599 (Kalyaneshwari v. Union of India and others); (v)VIII (2012) SLT 650 (Hihar State Government Secondary school Teachers Association v. Bihar Education Service Association and othes Anup Mukherjee and others); (vi)AIR 1991 Madras 323 (Full Bench) (Vidya Charan Shukla v. Tamil Nadu Olympic Association and another); (vii)(1998) 1 MLJ 731 (Thanislas and others v. G.Pankiraj); (viii)2004 Law Suit (Mad) 1340 (PVG Industries v. Premier Industries Drives (P) Limited; and (ix)AIR 1986 Ker 63 (Kochira Krishnan v. Joseph Desouza) (Kerala High Court) for the legal proposition that violation of undertaking given before the court and disobedience of order of injunction will give rise to remedy under the provision of CPC by invoking inherent jurisdiction. This court has no quarrel with the principles laid down in the judgments cited above. However, the same are not applicable to the facts of the present case.
13.The learned counsel for the petitioner herein has also produced the typed set of papers enclosing the applications and orders passed on the execution side. It is also contended before this court that the objection filed by the respondent and non co-operative attitude of the respondents would amount to willful disobedience of the orders of this Court. In my considered view, such argument does not contain any merit and acceptance herein.
14.On the other hand, learned counsel for the respondents cited the following authorities, for the legal proposition that in case of any grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC, which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross examine the witnesses as opposed to the proceedings in contempt, which are summary in nature and that when CPC provides a particular manner and mode of execution, no other mode is permissible and that when the garnishee or defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under Order 39 Rule 2A and contempt jurisdiction, either under the Contempt of Courts Act 1971 or under Order 39 Rule 2A CPC is not intended to be used for enforcement of money decrees or directions/orders for payment of money: (i)(2012) 4 SCC 307 (Kanwar Singh Saini v. High Court of Delhi); (ii)(2009) 5 SCC 665 (Food Corporation of India v. Sukh Deo Prasad); (iii)AIR 1966 Mad 21 (Madras High Court) (A.Ramalingam v. V.V.Mahalinga Nadar); (iv)AIR 1970 Mad 14 (Abdul Razack Sahib v. Azizunnissa Begum and others); (v)MANU/TN/7501/2006 N.Thakkarajan v. Vasudevan, the Chairman and Managing Director, TN Leather Development Corp. Ltd and another) (vi)AIR 1982 Kant 182 (Karnataka High Court) (Rudraiah v. State of Karnataka and others) and (vii)(1893) 1 QB 105 (Buckley v. Crawford). This Court is inclined to accept the legal principles laid down by the Hon'ble Supreme Court in the decisions as relied on the respondents side.
15.As a matter of fact, the petitioner has chosen to suppress the pendency of execution proceedings and the details regarding execution proceedings are furnished to this court only after the same has been revealed on the respondents side. Not withstanding the same, this court is of the view that it is not a fit case wherein the contempt K.B.K.VASUKI, J.
rk jurisdiction can be invoked particularly having regard to the nature of the orders passed earlier and pendency of execution proceedings for the enforcement of the order of this Court.
16.In the result, the contempt petition is dismissed.
rk 04-04-2014 Index:Yes/No Internet:Yes/No Contempt Petition No.1127 of 2013