Madhya Pradesh High Court
Dinesh Shahra vs Idbi Bank Limited Through Its ... on 14 June, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Prakash Chandra Gupta
CONA No.2/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
CONTEMPT APPEAL. No.2/2023
Between:-
DINESH SHAHRA S/O LT. SHRI MAHADEO
SHAHRA EX. MANAGING DIRECTOR OF M/S
RUCHI SOYA INDUSTRIES LIMITED, R/O SEA-
LAND COOPERATIVE HOUSING SOCIETY,
FLAT NO.4, 41, NAVY ROAD, CUFFE PARADE,
MUMBAI, MAHARASHTRA
....APPELLANT
(SHRI VIVEK TANKHA AND SHRI VEER KUMAR JAIN, LEARNED SENIOR
COUNSELS WITH SHRI JERRY LOPEZ, LEARNED COUNSEL FOR THE
APPELLANT)
AND
IDBI BANK LIMITED, IDBI TOWER WTC
COMPLEX, CUFFE PARADE MUMBAI HAVING
ITS BRANCH AT OMNI PALACE, RATLAM
KOTHI, INDORE(MP) THROUGH ITS
AUTHORISED SIGNATORY, SHRI FAISAL
RAHAT S/O SHRI RAHAT INDORI, AGED
AROUND 42 YEARS, R/O IDBI BANK, OMNI
PALACE, RATLAM KOTHI, INDORE(MP)
.....RESPONDENT
(SHRI AMIT AGRAWAL, LEARNED SENIOR COUNSEL WITH SHRI ADITYA GOYAL,
LEARNED COUNSEL FOR THE RESPONDENT)
CONA No.2/2023
............................................................................................................
Reserved on : 19-04-2023
Pronounced on : 14-06-2023
..........................................................................................................................
This Contempt Appeal having been heard and reserved for orders,
coming on for pronouncement this day, Hon'ble Shri Justice Sushrut
Arvind Dharmadhikari passed the following :
JUDGMENT
1. The present appeal under Section 19 of the Contempt of Courts Act, 1971(hereinafter referred to as ....."the Act of 1971") has been filed challenging the legality, validity and propriety of the order dated 14/11/2022, passed in Contempt Case No.1153/2021 whereby the Interlocutory Application No.7268/2022 seeking recalling/reviewing of the order dated 13/06/2022, passed in Contempt Petition disposing it as being infructuous and further to restore the contempt petition to its original number, has been allowed.
2. Brief facts of the case are that the appellant herein had filed W.P. No.25995/2018(Dinesh Shahra Vs. IDBI & Others) seeking quashment of Special Audit Report dated 23/03/2017, Forensic Audit Report dated 07/02/2018 and Addendum Report dated 07/03/2018 on the ground that the first Forensic Audit was finalized behind his back and contrary to the principles of natural justice.
3. The aforesaid Writ Petition No.25995/2018 was finally disposed of vide order dated 05/12/2019 with a direction to the Bank to conduct a fresh Forensic Audit by an independent auditor at the petitioner's expenses, so that CONA No.2/2023 the entire matter can be examined afresh. Till the Forensic Auditor gives its report, no action either penal or otherwise can be taken by the Banks or the law enforcement agencies.
4. Order dated 5/12/2019 is reproduced as under :-
Shri Vivek Tankha, learned senior counsel with Shri Jerry Lopaz, learned counsel for the petitioner.
Shri Nikhil Pandey, learned counsel for the respondents/Bank.
Heard finally with the consent of both parties.
ORDER The petitioner has filed the present petition seeking relief for quashment of Special Audit dated 23/03/2017, Forensic Audit Report dated 07/02/2018 and Addendum dated 07/03/2018.
2. These orders are challenged on the ground that the same has been passed without considering the master circular dated 01/07/2016 issued by Reserve Bank of India.
3. This Court vide order dated 01/11/2018 has granted interim relief in favour of the petitioner and the matter was thereafter list for further hearing on 01/11/2019. On that date, learned senior counsel for the petitioner submitted that a copy of draft report was supplied to the petitioner after the final report was prepared and Addendum was issued whereas in terms of the decision taken in the JLF meeting on 02/08/2017 and 23/11/2017, the petitioner had right to submit comments/objection to the said draft report.
4. In light of the aforesaid submissions, learned senior counsel suggested that a fresh independent Forensic Auditor be appointed and the petitioner is ready to bear the expenses of the same, so that the entire matter can be examined properly. He further submitted that this offer was communicated to the respondent/Bank vide letter dated 01/06/2019.
5. Learned counsel appearing on behalf of the Bank, therefore, granted time to seek instructions in this regard.
6. Today, when the matter was listed for hearing, learned counsel for the Bank has produced a letter dated 29/10/2019 stating that as the matter is sub judice before this Court, CONA No.2/2023 therefore, they have regretted the request made by the petitioner.
7. Learned counsel for the Bank submits that if this Court issues any such direction, then, they will abide by this.
8. In view of the submissions made by learned counsel for the parties, the present writ petition is disposed of with a direction to the respondent/Bank to conduct a fresh Forensic Audit by independent Auditor at the petitioner's expenses, so that the entire matter can be examined afresh.
9. Till the said Forensic Auditor shall give its report, no action either penal or otherwise can be taken by the Banks or law enforcement agencies, on the basis of Draft Report dated 13/10/2017, Final Report dated 07/02/2018 and Addendum dated 07/03/2018.
10. With the aforesaid direction, petition stands disposed of finally.
C.C. as per rules.
5. Despite of the Bank's communication dated 09/06/2021, asking the New Forensic Auditor namely, National Haribhakti Business Services(LLP) to proceed with the new Forensic Audit based on the available documents, the respondent/Bank filed a Contempt Case No.1153/2021 alleging contempt on account of non-compliance and non-furnishing of documents.
6. The aforesaid contempt petition was disposed of having rendered infructuous vide order dated 13/06/2022. The learned Single Judge passed the following order :-
13/06/2022 This CONTEMPT CASE coming on for orders this day,the court passed the following:
ORDER This contempt petition under Sections 12 and 15 of the Contempt of Court Act, 1971 read with Article 215 of the Constitution of India has been filed by the petitioner for non- compliance of order dated 05.12.2019 (Annexure C/1) passed by this Court in Writ Petition No.25995/2018, alleging non-cooperation on the part of the respondent.
2. Although, counsel for the petitioner, at the outset, has submitted that in the present case, Forensic Audit Report has already been finalized and is proposed to be submitted CONA No.2/2023 in the case; and thus, nothing survives to be decided in the present matter.
3. Shri Vivek Tankha, learned Senior Counsel appearing for the respondent / contemnor has also submitted that the present contempt petition has rendered infructuous on account of finalization of the Forensic Auditor's Report; and the same is proposed to be filed soon.
4. In view of the aforesaid submissions, Miscellaneous Criminal Case No.1153/2021 stands disposed of as having rendered infructuous.
All the other pending interlocutory applications, if any, shall stand disposed of.
7. In furtherance thereof, the respondent/Bank on 30/03/2020 appointed a new Forensic Auditor NHBS LLP to undertake fresh audit. Further, the respondent/Bank has also, called upon the appellant to deposit an audit fee of Rs.30,00,000/-(Rupees Thirty Lakhs Only) for the purpose of conducting fresh Forensic Audit.
8. Thereafter, the respondent/Bank filed an application I.A. No.5235/2022, an application for correction in final order dated 13/06/2022, passed in Contempt Case No.1153/2021. At the same time, the respondent/Bank preferred another I.A. No.7268/2022 which is an application under Section 151 of CPC, 1908 inter alia seeking review/recalling of order dated 13/06/2022, passed in Contempt Case No.1153/2021. The aforesaid application in its prayer clause also contain the prayer for withdrawal of I.A. No.5235/2022.
9. The learned Single Judge vide order dated 14/11/2022 permitted I.A. No.5235/2022 to be dismissed as withdrawn. In addition, allowed the I.A. No.7268/2022 for recalling/reviewing of the order dated 13/06/2022 and passed the following orders :-
This CONTEMPT CASE coming on for orders this day,the court passed the following:
ORDER CONA No.2/2023 Heard on IA No.7268/2022, which is an application filed in disposed of Contempt Case No.1153/2021, seeking the following relief:
"PRAYER In view of the afore-stated facts and circumstances, this Hon'ble Court may be pleased to:
a. Allow the present Application permitting the Applicant to unconditionally withdraw the Rectification Application being I.A. No.5235 of 2022 for the reasons stated above: b. Appropriately review / recall the Order dated 13th June, 2022 passed by this Hon'ble Court in the Contempt Petition vide which the Contempt Petition came to be disposed of as being infructuous.
c. Consequently, restore the Contempt Petition on the case file.
d. Pass any other such order as this Hon'ble Court may deem fit and proper in the facts of the case."
2. Shri Akshay Sapre, learned counsel appearing for the applicant has submitted that although the present contempt case was disposed of by this Court on 13.06.2022 with the consent of the bank (applicant herein), however, the aforesaid order was passed on an erroneous / inadvertent concession made by the counsel for the petitioner, that Forensic Audit Report has already been finalized and is proposed to be submitted in the case.
3. Counsel has submitted that the Forensic Audit Report has not been finalized.
4. Counsel has submitted that although earlier, IA No.5235/2022, an application for correction in final order dated 13.06.2022 passed in Contempt Case No.1153/2021 was also filed by the applicant therein, but in the aforesaid application also incorrect statements were made; and hence, the applicant seeks to withdraw the said application and would like to press the present application.
5. Counsel has submitted that the applicant is a public sector bank and Forensic Report is sought to be prepared in respect of the accounts of the respondent / defaulter, but the respondent has not cooperated in preparation of the same and certain documents (sought from the respondent) have not been furnished by them. Thus, it is submitted that the order passed by this Court on 13.06.2022 may be recalled.
6. On the other hand, Shri Vivek Tankha, learned Senior Counsel appearing for the respondent has opposed the prayer and it is submitted that no case for recalling the order dated 13.06.2022 is made out, as the aforesaid order was passed on the admission made by the counsel for the CONA No.2/2023 applicant, that the Forensic Audit Report has already been finalized and is proposed to be submitted in the case.
7. Learned Senior Counsel has submitted that the respondent have cooperated with the Bank and have also informed them that they do not have documents with them, which the bank requires them to submit; and in such circumstances, it cannot be said that the respondent has in any manner, not cooperated with the bank.
8. Senior Counsel has also submitted that in compliance of the order passed by this Court on 05.12.2019 in Writ Petition No.25995/2018, a sum of Rs.30,00,000/- (rupees thirty lakhs) has also been deposited by the respondent towards the Fees of Forensic Audit. Thus, even otherwise, no case for admission was made out against the petitioner.
9. It is also submitted that the respondent herein is no longer in-charge and in management of the company and Writ Petition No.25995/2018 (from which Contempt Case No.1153/2021 arise) was filed by the respondent in his personal capacity. Thus, it is submitted that in such circumstances, no case for recall of order is made out and the application deserves to be dismissed.
10. Heard learned counsel for the parties and perused the record.
11. On due consideration of the submissions, and perusal of the documents filed on record, this Court is of the considered opinion that if under some misconception, the petitioner, a public sector bank, has given a wrong statement before the Court which has led the contempt petition being disposed of, the same needs to be restored to its original number, as this Court is required to see if the order passed by this Court is complied with or not.
12. In view of the same, IA No.7268/2022 is hereby allowed;
and the order passed by this Court on 13.06.2022 is hereby recalled; and Contempt Case No.1153/2021 is restored to its original number. And, as prayed, IA No.5235/2022 stands dismissed as withdrawn.
13. Registry is directed to list the contempt case on 20.01.2023.
10. The order dated 13/06/2022 was recalled after a period of eight months from finalization of the second Forensic Audit Report. Being aggrieved by the order dated 14/11/2022, passed in Contempt Case CONA No.2/2023 No.1153/2021, the appellant preferred the instant contempt appeal under Section 19(1) of the Act of 1971.
11. In the meanwhile, the respondent/Bank also preferred I.A. No.8281/2021, which is an application on behalf of respondent/IDBI Bank Ltd. seeking recalling/modification of order dated 05/12/2019, passed in W.P. No.25995/2018. The learned Single Judge vide its order dated 08/12/2022 noted the submissions of the rival parties and passed the following order :
Dated : 08-12-2022 Shri Anand Sharma, learned counsel for the petitioner.
Shri Akshay Sapre, learned counsel for the Respondent.
The Writ Petitioner filed the Contempt Petition No.1153/2021 alleging non-compliance of order dated 05.12.2019 which is being sought to be reviewed by way of an application filed by the IDBI Bank.
Shri Sapre, learned counsel for the respondent submits that the aforesaid Contempt Petition which was earlier disposed of, now has been restored vide order dated 14.11.2022 and directed to be listed on 20.01.2023. If impugned order dated 05.12.2019 is modified, then nothing will survive in the Contempt Petition. Hence, both the matters are liable to be heard analogously.
Meanwhile, if so advised, petitioner may file reply of I.A. List on 20.01.2023 alongwith Contempt Case No.1153/2021.
12. Shri Vivek Tankha, learned Senior Counsel appearing for the appellant made the following submissions :-
(i) It is a well settled legal position that after a judgment is rendered and attained finality, the review of the same cannot be sought in the garb of modification /clarification.CONA No.2/2023
(i) There was no occasion for the learned Single Judge to recall the order dated 13/06/2022, since the second Forensic Audit was already finalized eight months before.
(iii) The application for recalling itself was not maintainable.
(iv) The order allowing I.A. No.7268/2022 restoring the Contempt Petition No.1153/2021 is contrary to the principles of natural justice. The procedure adopted in passing the impugned order on the very first day of its listing without affording any opportunity to the appellant to file affidavit/reply, has caused serious prejudice to the appellant. Since the contentions of the respondent has been accepted at face value thereby leading to passing of the impugned order.
(iv) The learned Single Judge did not consider the fact that the new Forensic Auditor was appointed by the respondent/Bank on 30/03/2020.
(v) The learned Single Judge ought not to have entertained I.A. No.7268/2022 in a disposed of contempt case since where the entire order cannot be reviewed/recalled merely on the basis of an interlocutory application purportedly filed by invoking the amended rule i.e., Chapter-I Sub-rule 7 of Rule 4 of M.P. High Court Rules, 2008,(hereinafter referred to as "Rules of 2008") "interlocutory application" wherein the following amendment has been inserted. "in Chapter-1, in Sub-rule (7) of Rule 4, between words "pending" and "main case" the words "or disposed" shall be inserted. The substantive and express provision in the Rules of 2008 as of provision for filing a review petition under Chapter-2 Rule-11, is available to the respondent which would be termed as an application under Order 47 Rule 1 of CPC, 1908 and the same shall be registered as a review petition.
The Contempt Petition No.1153/2021 could not have been filed by the respondent/IDBI Bank Limited.
CONA No.2/202313. Per Contra Shri Amit Agrawal, learned Senior Counsel for the respondent raised a preliminary objection to the effect that an appeal under Section 19(1) of the Act of 1971 lies only against an order whereby the High Court has exercised its jurisdiction to punish for contempt. Infact, the learned Single Judge has not exercised its jurisdiction to punish for contempt and instead has only restored the original contempt case to its original number, which was earlier wrongly disposed of as infructuous. The contemner shall have to be heard wherein the appellant will get opportunity to file its reply.
14. Learned Senior Counsel for the respondent placed reliance on the following judgments of the Apex Court in support of his contention -
(i)Midnapore People's Cooperative Bank Ltd. v. Chunilal Nanda[(2006) 5 SCC 399) wherein the Apex Court has held that an appeal under Section 19 of the Contempt of Courts Act, 1971 shall not lie against an order initiating proceedings for contempt.
(ii) The Apex Court in the case of ECL Finance Ltd. v. Harikishan Shankarji Gudipati & Ors., [(2018) 13 SCC 142; have stated that even an order issuing notice in a contempt petition is not appeable under Section 19 of the Act of 1971.
(iii) Recently the Apex Court in S.L.P. (Cri) No.1510/2023 State of Bihar & Ors Vs. Mohd. Allaudin Ansari & Ors. has held that no interference can be made against an order issuing show cause notice of contempt as the concerned contemnor can always appear before the concerned court and file a response.
15. The Full Bench of this Court in the case of Arvind Kumar Jain & Ors. v. State of M.P. & Ors. [2007(3) MPLJ 565] has come to one of the conclusion that the guidelines in the cases of Shah Babulal Khimji(Supra), CONA No.2/2023 Central Mine Planning and Design Institute Ltd. (supra), Deoraj (supra), Liverpool & London S.P. & I. Association Ltd. (supra), Subal Paul (supra) and Midnapore Peoples' Cooperative Bank Ltd. (supra) are to be kept in view while deciding the maintainability of an appeal. The judgment of Arvind Kumar Jain (Supra) was followed and explained by the Full Bench of the High Court of Chhahtisgarh in Ajay Jagarnath Gupta Vs. State of Chhattisgarh[AIR 2017 CHH (45) FB wherein it has been held that unless an order has some irreversible effect, it cannot be termed as interlocutory order having some flavour of "finality of issue".
16. Lastly, the judgment of Arvind Kumar Jain(supra) was further followed in Hindustan Copper Limited Vs. State of M.P. & Ors. 2014(3) M.P.L.J. 168 wherein the writ appeal was dismissed since .the same was not maintainable against interlocutory order.
17. In the light of the above, learned counsel for the respondent contended that the impugned order does not decide any matter finally. It is only a routine order passed to facilitate the progress of the case. All objections which have been taken by the appellant in this case can very well be taken at the appropriate stage. The contempt appeal being not maintainable deserves to be dismissed.
18. In response to the contentions of the learned counsel for the respondent/Bank on the question of maintainability of contempt appeal, Shri Tankha, learned Senior Counsel for the appellant submitted that a plain reading of Section 19(1) of the Act of 1971 would indicate that an appeal shall lie as of right from any "order" or "decision" of High Court in the exercise of its jurisdiction to punish for contempt. It is well settled in law that the exercise of jurisdiction to punish for contempt commences with the CONA No.2/2023 initiation of a proceeding for contempt. Against such order, an appeal would not be maintainable.
19. In view of the aforesaid facts and circumstances, the following questions crop up for consideration before this Court:-
(i) "Whether a appeal under Section 19 of the Act is maintainable against an order passed by the learned Single Judge recalling the order of dismissal and restoring the contempt case to its original number ?
(ii) Whether an application under Chapter-1 sub-rule 7 of Rule 4 of M.P.High Court Rules, 2008 for recalling/reviewing of an order is maintainable ?"
20. To appreciate the scope and ambit of Section 19 of the Act of 1971, it would be, apposite to reproduce the same :-
19. Appeals.--
(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-- --(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt--"
(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;
(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate Court may order that--
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).
(4) An appeal under sub-section (1) shall be filed--
(a) in the case of an appeal to a Bench of the High Court, within thirty days;CONA No.2/2023
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
21. Section 19 give a right to a party to appeal against "any order or decision of High Court in exercise of its jurisdiction to punish for contempt". Section 19(1) of the Act of 1971 clearly shows that the legislature in its wisdom conferred the right of appeal not only against a decision but also against an order. When two words are used in a statute, they both have to be given separate meaning. They may be read in ejusdem generis but normally they cannot be treated to have the same meaning.
22. Section 19 of the Act of 1971 has been the subject-matter of discussion in a large number of cases. Even before us, learned counsel for the parties have cited a number of judgments. We may, therefore, refer to the same.
23. In the case of Purushottam Dass Goel v. Hon'ble Mr. Justice B.S. Dhillon(AIR 1978 SC 1014), contempt proceedings were initiated against Purushottam Das Goel and he challenged the initiation of the contempt proceedings against him befoe the Apex Court. After referring to Section 19(1) of the Act, 1971, the Apex Court held as follows:-
"3.....It would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt: The proceeding is initiated under s. 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance, of the notice on the CONA No.2/2023 prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the; person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be. even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the, High Court to drop the, proceeding. It is neither possible, nor advisable, to make an exhaustive list of the: typo of orders which may be appealable to this Court under S. 19."
(Emphasis supplied)
24. This decision clearly indicates that it is not only final order imposing punishment for contempt which are appealable but even if at an earlier stage, an order is passed which decides the contentions raised by the alleged contemnor asking the High Court to drop the proceedings, such order may be appealable. The Apex Court refrained from making an exhaustive list of such orders, which may be appealable.
25. In D.N. Taneja v. Bhajan Lal [(1988) 3 SCC 26], the appellant had filed a petition before the Punjab & Haryana High Court for initiation of contempt proceedings against Shri Bhajan Lal, the then Chief Minister of the State. The application for contempt was admitted and rule nisi was issued. Thereafter, the respondent-Bhajan Lal appeared and opposed the same and filed an affidavit denying all the allegations made against him. The High Court thereafter dismissed the application for initiation of contempt proceedings and discharged rule nisi. An appeal was filed by D.N. Taneja before the Apex Court. A preliminary objection was raised by te Respondent that no appeal would lie under Section 19(1) of the Act, 1971.
CONA No.2/2023The Apex Court, while dealing with this preliminary objection held as follows :-
"10....When the High Court acquits a contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution.".
26. The view taken in D.N. Taneja(supra) was reiterated by the Apex Court in State of Maharashtra v. Mahbood S. Allibhay [(1996) 4 SCC 411] wherein the Apex Court held as follows:-
"3.......On a plain reading Section 19 provides that an appeal shall lie as of right from any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. In other words, if the High Court passes an order in exercise of its jurisdiction to punish any person for contempt of court, then only an appeal shall be maintainable under sub- section (1) of Section 19 of the Act. As sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order, an impression is created that an appeal has been provided under the said sub-section against any order passed by the High Court while exercising the jurisdiction of contempt proceedings. The words 'any order' has to be read with the expression 'decision' used in said sub-section which the High Court passes in exercise of its jurisdiction to punish for contempt. 'Any order' is not independent of the expression 'decision'. They have been put in an alternative form saying 'order' or 'decision'. In either case, it must be in the nature of punishment for contempt. If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under sub-section (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result...."
(emphasis supplied) CONA No.2/2023
27. It would however, again be pertinent to mention that the Apex Court was again dealing with an order where the High Court had dropped the contempt proceedings and the party aggrieved had filed an appeal against dropping of the contempt proceedings.
28. In R.N. Dey v. Bhagyabati Pramanik[(2000) 4 SCC 400] the Apex Court took a different view relying on the observations made in Purushottam Dass Goel(supra). The Apex Court held as follows:-
"10....In our view the aforesaid contention of the learned counsel for the respondents requires to be rejected on the ground that after receipt of the notice, concerned officers tendered unconditional apology and after accepting the same, the High Court rejected the prayer for discharge of the Rule issued for contempt action. When the Court either suo moto or on a motion or a reference, decides to take action and initiate proceedings for contempt, it assumes jurisdiction to punish for contempt. The exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the Rule issued in contempt proceedings, it would be an order or decision in exercise of its jurisdiction to punish for contempt. Against such order, appeal would be maintainable."
(Emphasis supplied)
29. Thereafter, in Modi Telefibres Ltd. v. Sujit Kumar Choudhary[(2005) 7 SCC 40), the Apex Court held that an appeal was maintainable against an order where the appellant ha been held guilty of the contempt even though no punishment was imposed upon him, but he by the impugned order was given an opportunity to purge himself of the contempt. The Apex Court held that such order of the learned Single could not be treated to be an interlocutory order and the right of appeal could not be denied to the appellant.
CONA No.2/202330. In Tamilnad Mercantile Bank Shareholders Welfare Association (2) vs. S.C. Sekar and others, (2009) 2 SCC 784(Para 39 to 40), the Hon'ble Supreme Court held as under :-
"30. It may be a different matter if the court while passing an order decided some disputes raised before it by the contemnor asking it to drop the proceedings on one ground or the other. Thus, in a given situation, an appeal would be maintainable even against a notice to show cause. Here even such a notice has not been issued and thus the question of satisfying the court by showing cause that the contemnors/respondents had not committed any contempt did not arise. Allegations had not been made against the Chairman of the meeting. The contempt proceedings had been initiated only against the Managing Director of the Bank.
40. Although we need not go into the larger question of maintainability of the appeal in view of the fact that the matter has been referred to the Three Judge Bench in Dharam Singh v. Gulzari Lal and others (SLP (Civil) No. 18852 of 2005), but prima facie, in view of the decision of this Court in Purshottam Das (supra) there cannot be any doubt that in a situation where order has been passed adverse to the interest of the alleged contemnor an appeal would be maintainable particularly where a judgment has been passed by a court which is beyond its jurisdiction.
31. Some judgments of other High Courts have also been cited before us. In Anil Kumar Dubey v. Pradeep Kumar Shukla[2017 SCC Online Chh 95](Para 48, 49 and 51), Full Bench decision of the Hon'ble High Court of Chhattisgarh held as under :-
"48....In view of the above principles of statutory interpretation, normally an attempt has to be made to give all the words used in the statute a meaning in the context of the Act. In our view, the words "any order or decision" are wide enough to include and take within their ambit all orders passed in the direction and in exercise of the jurisdiction to punish for contempt.
49. Similarly, the phrase "in exercise of the jurisdiction to punish for contempt" not only includes an order actually imposing any punishment but also any order or direction which may be prejudicial to the contemnor and which, if not passed, CONA No.2/2023 may terminate the proceedings. As held by the Bombay High Court, these may not be actually orders punishing the contemnor for contempt but may be a direction prejudicial to the contemnor and passed in exercise of contempt jurisdiction. Supposing a contemnor files an application that the contempt petition itself has been initiated beyond the period of limitation. As held by the Apex Court, if order passed on this application is only that this issue shall be decided at the time of final hearing, no appeal may lie. However, if the Court hears the application and decides the matter against the contemnor and holds that the contempt petition is within limitation, that will vitally affect his rights. In our view, an appeal under Section 19 of the Act, 1971 would lie against such an order as it is passed in exercise of the jurisdiction to punish for contempt. As held by the Apex Court, it would not be appropriate to make a list of such orders. Each case will have to be decided on its own facts.
51. In view of the above discussion, we answer the question referred to this Court by holding that an appeal shall lie under Section 19 of the Contempt of Courts Act, 1971 against an order framing charge in contempt proceeding."
32. In Suhas L.Y. v. Taulan Singh CONA No. 5/2018:MANU/UP/3287/2018(Para 24), the Hon'ble the Allahabad High Court has held as under :-
"24.....First of all, we would like to take up the position of law as regards the maintainability of the present appeal. It is evident from the law relied upon by the learned counsel for the respondent cited above in Mednapur Peoples Cooperative Bank Limited Case (Supra) wherein it is held that in Contempt Proceedings, it is not appropriate to adjudicate or decide any issue relating to merits of the dispute between the parties because if the High Court decides an issue or makes a direction relating to the merits of the dispute in contempt proceedings, the aggrieved person would be left with no remedy and in that case such an order would be open to challenge in an intra-court appeal. Therefore, in view of the law which has been relied upon by the learned counsel for the respondent himself, it is absolutely clear that in the case at hand by the impugned order, it is clearly apparent that the learned Single Judge was not satisfied by the impugned orders passed by the appellant whereby the representation of the respondent had been disposed of, for want of the supporting evidence being placed before the learned Single Judge and despite this fact having been brought to the knowledge of the learned Single Judge, he has chosen to direct the appellant to file his personal affidavit by the impugned order as to why further action be not taken against him, which clearly suggests that the merit of the impugned order has been touched upon by the learned Single Judge CONA No.2/2023 which does not appear to be the domain in a contempt proceedings and, therefore, the appeal under Section 19 would be admissible/maintainable."
(Emphasis supplied)
33. A close analysis of the law laid down by the Apex Court and the High Courts as well the provisions of Section 19 of the Act, 1971, we are clearly of the view that any order which is not an interlocutory order but by which the High Court proceeds to exercise its jurisdiction for contempt, would be appealable. In the present case, the appellant/Contemnor was clearly discharged from the clutches of the provisions of the Act, 1971 as the process of the issuance of the contempt became infructuous upon the submission of the Audit Report to the respondent/Bank and the same has been recorded by the Learned Single Bench of this Court vide order dated 14/11/2022.
34. In view of the the facts and circumstances of the case as well as looking to the various pronunciation of the Apex Court and High Courts, this Court is of the considered opinion that an appeal under Section 19(1) of the Act of 1971 is maintainable where some bone of contention is decided and adverse finding is recorded by the High Court in exercise of jurisdiction to punish for contempt and it affects the substantive right of the contemnor.
35. So far as answer to the second question is concerned, as per amendment in Chapter-1 Sub-rule (7) of Rule 4 of Rules of 2008 "disposed of word has been inserted" under which the respondent invoking the aforesaid provision has filed I.A. No.7268/2022 seeking reviewing/recalling of order dated 13/06/2022 in Contempt Case No.1153/2021.
36. The very purpose to amend the Chapter-1 of Sub-Rule(7) of Rule 4 of Rules of 2008 was that "to save lot of time and expenses of advocates, parties as well as of the office particularly when its not required to CONA No.2/2023 scrutinize the interlocutory applications as a main case and it also saves time of the Hon'ble Court, moreover, minor typographical errors such as date, name, time etc. could be corrected by filing interlocutory application in a disposed of case and not to review/recall the entire order passed by considering the merits of the case.
37. The amended provision cannot overside the express and substantive provisions of Chapter-2, Rule 11 of Rules of 2008 "Review" as reproduced under :-
11."Review Petition - An application under order 47 Rule 1 of the Code of Civil Procedure, 1908 or an application for the review/recall/modification/clarification of [any][...] order or judgment passed in any proceeding [or an application for enlargement of time] shall be registered as a Review Petition"
38. In the present case, therefore, in view of the aforesaid provision/order/judgment cannot be allowed to be reviewed/recalled merely on the basis of an interlocutory application even without considering the question of limitation.
39. Accordingly, the order impugned dated 14/11/2022, passed in Contempt Case No.1153/2021 is hereby set-aside. As a consequence, the order dated 13/06/2022, passed in Contempt Case No.1153/2021 stands revived.
40. With the aforesaid, the present contempt appeal is allowed. No order as to costs.
(S.A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Digitally signed by PREETHA HARI NAIR
PREETHA HARI NAIR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=5431da3716f911ecd1cb3fc6dc91ea2cacec60259cb241b9ad42416f404bb303, postalCode=452001, st=Madhya Pradesh, serialNumber=0EC5BE08895BA17A6074239F753A38DE8188C5E65085178B87CD8C85BA5B87CC, cn=PREETHA HARI NAIR Date: 2023.06.14 17:54:09 +05'30'