Calcutta High Court (Appellete Side)
Harendra Kumar Singh vs Mr. P. K. Sinha & Ors on 10 April, 2014
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag, J.
CRLCP 2 of 2014 Harendra Kumar Singh V. Mr. P. K. Sinha & Ors.
For the Petitioners : Mr. Debasish Roy, Advocate with Mr. Ranobir Roy Chowdhury, Mr. Mainak Gupta, Mr. Prasun Mukherjee, Advocates For the Opposite Parties : Mr. Ashok Chakraborty, Senior Advocate with Mr. Sarajit Kumar Gupta, Advocate Heard on : 02.04.2014 Judgment on : 10.04.2014 R. K. Bag, J.
This application under Section 10 of the Contempt of Courts Act, 1971 is filed by the petitioner praying for punishment of the opposite parties for wilful disobedience of the order dated 10th May, 2013 passed by the Learned Judge, 13th Bench, City Civil Court at Calcutta in Misc. Case No.1473 of 2012.
2. The background of filing the instant contempt petition is that the petitioner is the proprietor of Proprietorship Firm engaged in the business of transportation of goods through parcel van in different trains and allied works. The petitioner was awarded 4 MT Space on lease in Front SLR by Train No.12254 UP for a period of three years from 10th February, 2010 to 9th February, 2013 by the opposite parties pursuant to Tender Notice for grant of lease of Front SLR - 4 ton space of the said train. There was a formal agreement between the petitioner and the opposite parties on 9th February, 2010 for the aforesaid lease of 4 MT Space in Front SLR by Train No.12254 UP for the period of aforesaid three years and for which the petitioner started business by depositing advanced weekly freight charge @ Rs.7250 per trip. It is alleged that the said lease between the petitioner and the opposite parties was not extended by two more years by the opposite parties, in spite of specific clause in the lease agreement to the effect that the petitioner is entitled to get further extension of two more years of the lease on payment of 25% more freight charge. After expiry of the term of lease the petitioner started proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 on 11.12.2012 and the said proceeding was registered as Misc. Case No.1473 of 2012. It appears from the materials on record that clause 28 of the agreement between the petitioner and the opposite parties lays down that in the event of any difference of opinion or dispute between the Railway Authority and the lease-holder with regard to the respective rights and obligations of the parties and in respect of the true intent and meaning of the terms and conditions thereof, such difference of opinion shall be referred to the sole arbitrator or any officer appointed by the General Manager, Eastern Railway, Calcutta for the time being, whose decision shall be final, conclusive and binding on the parties. Thus, the intention of the parties was to refer the dispute between the parties to the arbitrator for decision and all the disputes were made subject to the territorial jurisdiction of the courts located in Calcutta. In view of the fact that the opposite parties did not consider the prayer of the petitioner for extension of the period of lease, in spite of the representation submitted by the petitioner before the opposite parties on 10.09.2012 and 10.12.2012 and in view of the fact that the dispute raised by the petitioner is to be decided by arbitral proceeding, Learned Judge, 11th Bench, City Civil Court at Calcutta passed the impugned order under Section 9 of the Arbitration and Conciliation Act, 1996 on 10.05.2013 in Misc. Case No.1473 of 2012. The relevant portion of the impugned order dated 10.05.2013 passed in Misc. Case No.1473 of 2012 is as follows: "Parties to the proceeding are directed to refer the matter to the arbitrator as per agreement dated 09.02.2010 but till the disposal of the matter by the arbitrator and to protect the interest of the parties, the respondents are restrained by an order of injunction from creating any third party interest over the leasing rights of F-SLR-4 ton space in Train No.12254 up to YPR on payment of 25% more lease rate than the lump sum leased freight charge now the petitioner is paying, subject to the satisfactory performance of the railway authorities till final disposal of the arbitration proceeding. Each of the party shall refer the matter to the arbitrator within one month from this day failing which this order stands vacated."
3. It appears from the impugned order dated 10.05.2013 passed in Misc. Case No.1473 of 2012 that both parties were directed to refer the dispute to the arbitrator and pending disposal of the matter by the arbitrator the opposite parties were restrained by an order of injunction from creating any third party interest in respect of the leasing right in F-SLR 4 ton space in Train No.12254 UP BGP YPR Express on payment of 25% more freight rate than the existing freight rate, subject to the satisfactory performance of the Railway Authorities till final disposal of the arbitral proceeding. The condition imposed by Learned Judge for continuation of the order of injunction is that each of the parties will refer the matter to the arbitrator within one month from the date of passing of the order, failing which this order of injunction shall stand vacated. The petitioner has invoked the contempt jurisdiction for punishment of the opposite parties for wilful violation of the above order of injunction granted by Learned Judge, 11th Bench, City Civil Court, Calcutta.
4. By referring to the provisions of Section 10 of the Contempt of Courts Act, 1971, Mr. Debasish Roy, Learned Counsel for the petitioner submits that the High Court can exercise the contempt jurisdiction in respect of contempt of courts subordinate to the High Court. According to Mr. Roy, the object of Section 10 of the Contempt of Courts Act, 1971 is to punish the contemnor for wilful disobedience of the order passed by the subordinate courts and this contempt being civil contempt will be dealt with by a Single Hon'ble Judge of this High Court to whom the determination is given by the Hon'ble Chief Justice.
5. Mr. Ashok Chakraborty, Learned Senior Counsel representing the opposite parties has made four-fold submissions in support of his contention that the instant contempt proceeding is not maintainable in law. The first submission made by Mr. Chakraborty is that there is nothing on record to establish that the opposite parties have wilfully violated the order of injunction granted against the opposite parties temporarily. Mr. Chakraborty submits that the condition for continuation of the order of temporary injunction was to refer the matter to the arbitrator by each of the parties within a period of one month from the date of passing of the order i.e. 10.05.2013, failing which the injunction order will be automatically vacated. According to Mr. Chakraborty, the opposite party Railway Authority has not referred the matter to the arbitrator within the stipulated period and as such the order of injunction granted by Learned Judge has been automatically vacated on 10.06.2013. The second submission of Mr. Chakraborty is that there is possibility of two interpretations of the order of injunction granted by Learned Judge of the City Civil Court and as such the contempt jurisdiction cannot be invoked by this court on the plea of wilful violation of the order. The third submission of Mr. Chakraborty is that the petitioner cannot directly invoke the contempt jurisdiction of this court for violation of order of the subordinate courts, unless the subordinate courts make a reference to the High Court in accordance with Rule 19A of the Calcutta High Court Contempt of Courts Rules, 1975. Mr. Chakraborty has elaborated this point by submitting that the records in connection with wilful violation of order of any subordinate courts lies in the subordinate court and unless the records are forwarded to this court by making a reference by Learned Judge of the subordinate courts as laid down in Rule 19A of the Calcutta High Court Contempt of Courts Rules, 1975, this court will be handicapped to deal with the said contempt matter. The last submission of Mr. Chakraborty is that the petitioner has not invoked the alternative remedy available under Section 11 of the Arbitration and Conciliation Act, 1996 and that the order of temporary injunction granted by Learned Judge of the court below under Section 9 of the Arbitration and Conciliation Act, 1996 is in the nature of order of temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure for whose violation the remedy is available under Order 39 Rule 2A of the Code of Civil Procedure. Mr. Chakraborty has relied on the decisions of "Rudraiah V. State of Karnataka" reported in AIR 1982 Karnataka 182, "Dr. Bimal Chandra Sen V. Mrs. Kamla Mathur" reported in 1983 Cri. L. J. 495 and "Samir Kumar Sarkar V. Maharaj Singh" reported in 1982(II) CHN 213 in support of the argument advanced by him.
6. Before dealing with the rival contentions made by Learned Counsels it is necessary to point out the definition of Civil Contempt. The definition of Civil Contempt given in Section 2(b) of the Contempt of Courts Act, 1971 is as follows: "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." Section 10 of the Contempt of Courts Act, 1971 recognises the power of the High Court to punish for contempt of subordinate courts functioning within the territorial jurisdiction of the High Court, as if the contempt is committed of the High Court itself. For proper appreciation of this extraordinary power of the High Court, it is necessary to reproduce Section 10 of the Contempt of Courts Act, 1971 which is as follows: "Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code." On perusal of the above provision of Section 10 of the Contempt of Courts Act, 1971, it is clear that the High Court will not take cognizance of any contempt alleged to have been committed in respect of subordinate court, if the contempt amounts to an offence punishable under the Indian Penal Code. The natural corollary is that if the act amounting to contempt does not fall within the ambit of any offence under the Indian Penal Code, the High Court can exercise the contempt jurisdiction to punish for contempt of subordinate courts. In the instant case, the petitioner has invoked the contempt jurisdiction of the High Court in order to punish the opposite parties for wilful violation of the order of injunction granted by the Learned Judge of the subordinate court. The act of alleged wilful violation of the order of injunction by the opposite parties will not come within the ambit of any offence under the Indian Penal Code and as such there is no bar on the part of the petitioner to invoke the power of contempt of this High Court under Section 10 of the Contempt of Courts Act, 1971. The argument advanced by Mr. Chakraborty that the petitioner cannot invoke the power under Section 10 of the Contempt of Courts Act, unless Learned Judge of the subordinate courts refers the matter to the High Court in accordance with Rule 19A of the Calcutta High Court Contempt of Courts Rules, 1975, cannot be accepted, because the Rule 19A only provides that reference made by the subordinate courts shall be placed before the Hon'ble Judge in chambers for orders. Perhaps, Rule 19A of the Calcutta High Court Contempt of Courts Rules, 1975 was framed with the intention to give effect to the provisions of Section 15(2) of the Contempt of Courts Act, 1971, which lays down that the High Court may take action in case of any criminal contempt of subordinate court on a reference made to it by the subordinate court. In the absence of any specific bar either under the Contempt of Courts Act, 1971 or under the Calcutta High Court Contempt of Courts Rules, 1975, the petitioner cannot be debarred from invoking the contempt jurisdiction of the High Court for contempt of subordinate courts as laid down in Section 10 of the Contempt of Courts Act, 1971.
7. Now, I would like to deal with the other contentions made by Mr. Chakraborty by challenging the maintainability of the instant contempt proceeding. On perusal of the impugned order dated 10.05.2013 passed by Learned Judge of the City Civil Court in Misc. Case No.1473 of 2012, I find that Learned Judge directed both the parties to refer the dispute to the arbitrator within one month from 10.05.2013 i.e. within 10.06.2013 and pending disposal of the matter before the arbitrator, the opposite parties were restrained by order of injunction from creating third party interest for transportation of goods in the train in question. There is nothing on record to indicate that the dispute between the parties is referred to the arbitrator and as such the order of injunction is automatically vacated on 10.06.2013. Nothing is on record to indicate that the opposite parties created third party interest for transportation of goods in the train in question within a period of one month, i.e. from 10.05.2013 to 10.06.2013. Accordingly, I accept the contention made by Mr. Chakraborty that there is no wilful disobedience or violation of the order dated 10.05.2013 passed by Learned Judge of the City Civil Court in Misc. Case No.1473 of 2012 as contended on behalf of the petitioner.
8. The next contention of Mr. Chakraborty is that the contempt does not lie when the impugned order can be interpreted in two different ways. On perusal of the impugned order, I do not find that there is any scope of making two interpretations of the order for whose violation the instant contempt petition is filed by the petitioner. According to Mr. Chakraborty, the order of temporary injunction granted by Learned Judge of the City Civil Court is in the nature of order passed in a suit under Order 39 Rules 1 and 2 of the Code of Civil Procedure and for whose violation remedy is available under the provisions of 39 Rule 2A of the Code of Civil Procedure. The order of temporary injunction is passed under Order 39 Rules 1 and 2 of the Code of Civil Procedure in a pending suit and the remedy under Order 39 Rule 2A of the Code of Civil Procedure can be sought for when the said suit is pending. In the instant case, the order of injunction is passed as a temporary measure under Section 9 of the Arbitration and Conciliation Act, 1996 pending settlement of dispute between the parties by way of arbitration for which effective step has not been taken by the parties as directed by Learned Judge of the court below. The order of injunction for a period of one month pending settlement of dispute between the parties by arbitration cannot be in the nature of temporary injunction issued under Order 39 Rules 1 and 2 of the Code of Civil Procedure pending final disposal of the suit and as such the petitioner may not have the remedy under Order 39 Rule 2A of the Code of Civil Procedure as contended on behalf of the opposite parties. However, the alternative remedy for appointment an arbitrator under Section 11 of the Arbitration and Conciliation Act has not been invoked by the petitioner.
9. With the above factual matrix and rival contentions made by the parties, it is necessary to discuss the case laws cited on behalf of the opposite parties. In the case of "Rudrai V. State of Karnataka" reported in AIR 1982 Karnataka 182 it is held by the Division Bench of the Karnataka High Court that in case of disobedience or breach of order of temporary injunction during the pendency of a suit under Order 39 Rules 1 and 2 of the Code of Civil Procedure, it is inexpedient to invoke and exercise contempt jurisdiction, because in such cases action is contemplated by the very court which issues the order of temporary injunction under Order 39 Rule 2A of the Code of Civil Procedure. In the reported case the contempt jurisdiction of the High Court was invoked for violation of the order of temporary injunction granted under Order 39 Rules 1 and 2 of the Code of Civil Procedure, whereas in the instant case the contempt jurisdiction is invoked for alleged violation of the order passed under Section 9 of the Arbitration and Conciliation Act, 1996 for which remedy may not be available under Order 39 Rule 2A of the Code of Civil Procedure and as such the ratio of the said decision will not be applicable in the facts of the present case.
10. Similarly, it is held by the Division Bench of Bombay High Court in the case of "Dr. Bimal Chandra Sen V. Mrs. Kamla Mathur" reported in 1983 Cri. L. J. 495 that the High Court has power to punish for contempt of subordinate courts under Section 10 of the Contempt of Courts Act, but the said power cannot be invoked for enforcement of the order of injunction, as the same does not fall within the ambit of Section 2(b) of the Contempt of Courts Act, 1971 and as the subordinate court can punish the defendant for disobedience of the order of injunction under Order 39 Rule 2A of the Code of Civil Procedure. I have already observed that in the instant case there is no remedy available to the petitioner under Order 39 Rule 2A of the Code of Civil Procedure and as such the ratio of the said decision is also not applicable in the facts of the present case. In the case of "Samir Kumar Sarkar V. Maharaj Singh" reported in 1982 (II) CHN 213, the Division Bench of our High Court has held that the Contempt of Court is essentially a matter which concerns the administration of justice, dignity and authority of judicial tribunals. It is not the right of the party to invoke the jurisdiction of the court for redress of his grievances. It is not also a mode by which the rights of a party adjudicated upon by a tribunal can be enforced against any other party. When the matter relates to mere infringement of an order as between the rival parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order. It must, therefore, be left to the court that passed the order and which presumably is fully acquainted with the subject matter of its own order. In view of the above proposition of law laid down by our High Court, I don't think that I should invoke the contempt jurisdiction of this Court for enforcement of the order passed by the subordinate court, particularly when the parties have not invoked remedy under Section 11 of the Arbitration and Conciliation Act, 1996.
11. I have already observed that the petitioner has failed to establish from the materials on record that the opposite parties have wilfully violated the order of injunction granted on 10.05.2013 by Learned Judge of the City Civil Court in Misc. Case. No.1473 of 2012 and as such there is no civil contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971. Moreover, the petitioner has remedy under Section 11 of the Arbitration and Conciliation Act, 1996. Accordingly, I cannot persuade myself to invoke the contempt jurisdiction of the High Court under Section 10 of the Contempt of Courts Act, 1971. There is no merit in the instant application for contempt of subordinate court. The application is, thus, dismissed.
Let a copy of this order be sent down to the learned court below for favour of information and necessary action. Urgent Xerox certified copy of this judgment, if applied for, be given to the parties expeditiously after compliance with all necessary formalities.
(R. K. Bag, J.)