Calcutta High Court (Appellete Side)
Efcalon Tie Up Pvt. Ltd vs Pradip Kumar Sett & Ors on 25 June, 2024
Author: Soumen Sen
Bench: Soumen Sen
25.06.2024
SL No.1-4
Court No.29
(ar/gc)
CRC 3 of 2021
Efcalon Tie Up Pvt. Ltd.
Vs.
Pradip Kumar Sett & Ors.
With
CRC 4 of 2021
Efcalon Tie Up Pvt. Ltd.
Vs.
Sukumar Bhootra
With
FMA 33 of 2019
Efcalon Tie Up Pvt. Ltd.
Vs.
Star Track Agency Pvt. Ltd.
With
FMA 71 of 2019
Star Track Agency Pvt. Ltd.
Vs.
Efcalon Tie Up Pvt. Ltd.
Mr. Sabyasachi Chowdhury,
Mr. D. Basu Mallick,
Mr. Rajesh Upadhyay,
Mr. Tapajit Das
...for the Petitioner.
Mr. Utpal Bose,
Mr. Aniruddha Mitra,
Ms. Archana Chowdhury
...for the Contemnors
In CRC 3 of 2021 and
CRC 4 of 2021.
Re: CRC 4 of 2021
1. The supplementary affidavit filed by Srikumar
Bhootra disclosing the death certificate of Radhe
Shyam Bhootra is taken on record. The contempt
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application as against Radhe Shyam Bhootra
stands abated.
2. This contempt application is arising out of an
order passed by a Division Bench presided over by
one of us (Soumen Sen, J.) on 25th February, 2019
in which we have passed several directions upon
the Receiver over and in respect of the properties
forming the subject matter of the contempt
petition. Briefly stated, there was a dispute
between the petitioner and one Startrack Agency
Pvt. Ltd. over several godowns of which Efcalon
Tie-Up Pvt. Ltd. claimed to be the owner. The
Efcalon initiated a proceeding for eviction of
Startrack upon expiry of the licence. In view of
the arbitration clause in the said agreement, the
matter was referred to arbitration in which an
award was ultimately passed in favour of Efcalon.
3. During the pendency of the arbitration
proceeding, Efcalon filed an application under
Section 9 of the Arbitration and Conciliation Act,
1996 in which several orders were passed from
time to time out of which three orders we found to
be relevant for the present purpose. In order of
time, 28th September, 2011 is the order where
certain directions were given with regard to the
disclosure of bank account of Startrack followed
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by an order dated 8th June, 2015 and ultimately
the order dated 18th September, 2018 passed by
the learned Additional District Judge, 13th Court,
Alipore. By the last order, the Receiver already
appointed was directed to collect occupational
charges and service charges directly from the
actual occupant of premises no.P-10, Taratala
Road, Kolkata without interference of respondent.
The respondent, namely, Startrack was further restrained from sub-licensing any part or portion of the said premises to any person or concern. This order has been assailed in appeal by the Efcalon in which the order dated 25th February, 2019 was passed.
4. In order to appreciate the nature of contempt, it is necessary for us to set out the relevant portion of the order below:-
"The supplementary-affidavit filed on behalf of the appellant shows that the Receiver has noticed cat and mouse game of the respondent in relation to occupants. The Receiver in the Minutes of the Meeting of 11th October, 2017 has recorded that many of office premises were found to be under lock and key and though the name of several companies are mentioned outside the entrance of the shades but it could be ascertained later on that someone else is in possession. The Receiver also could not enter 4 many of the shades as they were found to be under lock and key. The Trial Court has permitted the Receiver to collect all occupational charges and service charges directly from the actual occupant of Premises No.P-10, Taratala Road, Kolkata- 700 088 without interference of the respondent. Although, the respondent was directed to disclose Bank Account details and amount held by them in terms of orders dated 28th September, 2011 and 8th June, 2015, they have not done so far. The respondent is now directed to comply with the said direction within a fortnight from date. The respondent was further restrained from sub-licensing any part or portion of the said premises to any person or concern. The learned Trial Judge has adequately protected the interest of the appellant and has rightly observed that other prayers could not be granted in view of pendency of the application for setting aside of the award.
However, since the Receiver has appeared pursuant to our direction and submitted that he could not obtain the list of occupants because some of them were not found at the time of inspection, the Receiver shall make a surprise visit to the premises in question and make a list of the occupants who are found to be in actual physical possession. In the event, the Receiver is prevented from implementing this order, the Officer-in-Charge of the local Police Station shall render all assistance to the learned Receiver to carry out the direction of this Court on a written 5 request being made by the Receiver along with the copy of this order."
5. The petitioner alleged that the present contemnors have willfully and deliberately violated the order in refusing to pay the occupational and service charge to the learned Receiver in respect of unit nos.6 and 13 at premises no.P-10, Taratala Road, Kolkata and are deliberately and intentionally interfering with the functions of the Receiver.
6. On the basis of the averment and disclosure of documents, we were prima facie satisfied and issued Rule. In answer to the Rule, all the alleged contemnors have filed their respective affidavits and also supplementary-affidavits disclosing the payments made to EVS Distributors India Limited and/or other agency/companies/entities under the control of Pradip Churiwal towards the occupational and service charges for the period they were under occupation. Materials disclosed by the petitioner prima facie show that the three entities to whom occupational charges have been made are alter ego of Pradip Churiwal. The payment made to the said entities was treated as payment to Startrack. Startrack through the network of few companies appears to have 6 hoodwinked the order passed by this Court. The alleged contemnors were aware of such fact but refused to make payment to the Special Officer due to coercion and pressure from Pradip Churiwal. They have disclosed in the said affidavits that they have surrendered occupation of the said premises to Startrack in December, 2020.
7. Initially, the alleged contemnors tried to convince the Court that they were not aware of the order passed by the learned Trial Court with regard to the direction for payment of occupational charges, service charges to the Receiver directly, however, when confronted with the documents disclosed by the petitioner in its affidavit-in-opposition, they modified their earlier stand by contending that although the letter was received from the learned Receiver directing them to pay the occupational charges to the Receiver, however, the order passed in the appeal on 25th February, 2019 was only received by them in July 2019. When they attended the meeting of the Receiver. They have specifically stated that they had no knowledge of the order dated 25th February, 2019 till the letter dated 30th July, 2019 was received from the learned Special Officer. However, curiously they 7 continued to pay the occupational and service charges to EVS and three other entities under control of Pradip Churiwal for occupation of the godown aggregating to a sum of Rs.92,96,128.76 from 2016 till they surrendered their possession of the godown to Startrack. It is the contention of the alleged contemnors that notwithstanding such communication being received from the Special Officer on 30th July, 2019, they were coerced and forced to pay occupational charges at the instance of one Pradip Churiwal as the consequence of non-payment would have been disconnection of electricity and water supply. On such plea, it is now being contended that circumstances were grave and beyond the control of the alleged contemnors compelling them to pay the said sum and this shall be considered as not willful or deliberate violation of the order.
8. In the affidavit affirmed by Srikumar Bhootra on 9th November, 2022, the contemnor, inter alia, has stated:-
"The instant contempt application is arising out of alleged violation of the order dated 25th February, 2019 as passed by this Hon'ble Court. I never denied paying monthly charges to the Special Officer. It is specifically recorded by the Learned Special Officer in the minutes of the meeting held on 16th September, 2019 that I 8 wanted to act as per the direction of the Hon'ble Court by paying the monthly charges to the Special Officer. I only requested the Learned Special Officer to ensure that I get electricity for my godown. As already stated in the affidavit in answer to the Rule that the officials of Startrack Agency threatened me that in the event monthly occupational charges are not paid to them they will disconnect the electricity connection at my godown and will not allow ingress and egress of my trucks. As I received no assurance from the Learned Receiver with regard to supply of electricity and ingress and egress of the trucks in the premises in question, I had no option but to pay occupational charges to Startrack Agency. Copies of ledger for the financial years 2018-2019, 2019-2020 and 2020-2021 showing the money I have paid to Startrack Agencies are annexed hereto and collectively marked with the letter "B". I gave up possession of the godown in the month of December, 2020. I never said in the said affidavit in answer to the Rule that the copy of the order dated 25th of February, 2019 was not served on me."
9. The other alleged contemnors have taken similar stand.
10. It is also interesting to note that the letter addressed to Vedika Machinery Pvt. Ltd. and four Directors of the said Company by Rajesh Upadhyay on 1st September, 2018 whereby request was made to pay the occupational charges to the Special Officer, a reply was received from 9 EVS Distributors India Limited stating, inter alia, that Vedika Machinery Pvt. Ltd. had made over the letter dated 26th October, 2017 to them from which it appears that false allegations have been made against Vedika Machinery Pvt. Ltd. EVS contended that Vedika was not in occupation. In the last paragraph of the said letter it has been stated:-
"They are not occupying any premises at P-10 Taratala Road, Kolkata- 700088 and you are advised to refrain from making any allegation threat to them. We, M/S EVS Distributors (I) Ltd is providing technical/job services to Vedika Machinery Pvt. Ltd. as per our orders from time to time."
11. The stand of M/s EVS is ventilated by Vedika Machinery Pvt. Ltd. Curiously in its letter dated 23rd August, 2019 addressed to the Special Officer has reiterated that the said Company was not in occupation of the said premises. In the letter it is stated as under:-
"Dear Sir, We are service provider for machining, designing and tooling and providing the same to M/s. EVS Distributors India Limited at P-10 Taratal Road, Kolkata- 700 088 and we are neither a Tenant nor paying any Rent to anyone in respect of P-10 Taratal Road, as claimed by you.10
You are requested to contact the
tenant/occupant.
M/s. EVS Distributors India Limited P-10 Taratal Road, Kolkata- 700 088 Sed No.6 & 13."
12. The stand of Vedika Machinery Pvt. Ltd. appears to be that tenant and occupant is M/s. EVS Distributors Pvt. Ltd.
13. Curiously, in the affidavit affirmed by Srikumar Bhootra and other alleged contemnors, they have now admitted that the company paid occupational charges to Startrack Agency and have disclosed ledger for the financial years 2018- 2019, 2019-2020 and 2020-2021 showing that money was paid to Startrack Agency.
14. We have earlier referred to the admission of Srikumar Bhootra in his affidavit. It appears that the alleged contemnors are far from being candid and truthful.
15. The learned Counsel for the alleged contemnors has relied upon the following decisions of the Hon'ble Supreme Court to justify acceptance of apology:-
i) Niaz Mohammad & Ors. vs. State of
Haryana & Ors. reported in (1994) 6
SCC 332;
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ii) Ram Kishan vs. Tarun Bajaj & Ors.
reported in (2014) 16 SCC 204;
iii) Dr. U.N. Bora, Ex. Chief Executive
Officer & Ors. vs. Assam Roller Flour Mills Association & Anr. reported in (2022) 1 SCC 101;
iv) Balwantbhai Somabhai Bhandari vs.
Hiralal Somabhai Contractor
(Deceased) rep. by Lrs. & Ors. reported in 2023 SCC OnLine SC 1139.
16. Mr. Sabysachi Chowdhury, learned Counsel for the petitioners has referred to the admission of the alleged contemnors in their respective affidavits with regard to payment of occupational and service charges since July 2018 and the payment schedule disclosed in one of the affidavits showing that for the self-same unit occupational and service charges have been paid to three entities besides Startrack presumably at the instance of Pradip Churiwal who was claimed to be in the helm of affairs of Startrack at the relevant time. It is submitted that the respondent/ alleged contemnors are in the said premises since 2016 and at least in 2017, they were aware of the fact that they were required to pay occupational and service chargers to the 12 learned Special Officer/Receiver appointed by the learned trial court in pending proceeding and thereafter they became aware of this order in July 2019 from the learned Special Officer and if it is assumed for the sake of argument that they may not be obliged to pay for the earlier period towards occupational and service charges to the learned Special Officer, they could not have avoided under any circumstances to pay such occupational and service charges to the receiver, from 30th July, 2019 and such acts and conduct on the part of the alleged contemnors are willful and deliberate and a blatant violation of the order passed by the Division Bench.
17. The contention raised by Mr. Chwodhury with regard to involvement of other entities as dummy companies of Startrack or its alter ego is required to be assessed when we hear the contempt application against Startack and its directors.
18. In the contempt jurisdiction, the Court is required to ensure that the majesty and dignity of the Court are not affected by any act of willful and deliberate violation of its order. In the given facts and circumstances of the case, it is an admitted position that the alleged contemnors have violated the order passed by the Division Bench in 13 refusing or declining to pay the occupational and service charges to the Special Officer in spite of knowledge of the order. That the petitioners have been coerced to pay the said amount directly to Startrack or its sister concern cannot furnish a ground for disobeying the order inasmuch as it were open to the alleged contemnors to file an appropriate application for acceptance of their occupational charges for the godown in their occupation till they surrender. The alleged contemnors seem to have deliberately violated the order of trial court as well as the Division Bench by disregarding the communication made by Mr. Rajesh Upadhyay on 26th October, 2017 followed by several reminders and communication requesting the alleged contemnors to comply with the order passed by the learned trial court with regard to payment of occupational and service charges. Disregarding such direction notwithstanding having clear knowledge of the existence of such order manifestly establishes the contumacious conduct of the alleged contemnors. They have shown disregard to such orders with impunity and does not deserve any mercy. 14
19. Mr. Aniruddha Mitra, learned Counsel for the petitioners submits that there is no specific direction upon the alleged contemnors to pay occupational and service charges after 30th July, 2019 to the Special Officer. This submission is not acceptable firstly on the ground that vagueness of the order has never been raised in the affidavit. Moreover, the order is quite clear and the alleged contemnors have understood the order after it was communicated to them by the learned Receiver on 30th July, 2019 that they are under an obligation to pay occupational and service charges in terms of the order dated 25th February, 2019.
20. Insofar as the decisions are concerned, we may say that in Niaz Mohammad (supra) the Hon'ble Supreme Court held that the State not withstanding its financial difficulty had paid Rs.20 crores and if the disobedience is found to be under compelling circumstances, the alleged contemnors may not be liable to be punished for contempt. The fact situation in Niaz Mohammad (supra) is completely different from the facts we are presently dealing with.
21. In Ram Kishan (supra) the questions arose for consideration are:-
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i) Whether denial of benefit of a redesigned pay/post and pay scale of a higher post, wherein after compulsory retirement of applicant, appointment of another person amounts to contempt? And
ii) Whether applicant could claim post revision and benefits of higher post without being considered for said post?
iii) Whether statutory authority can be asked to pay salary to two persons for same post?
22. The Hon'ble Supreme Court did not find any acts of contempt as the statutory authority could not be asked to pay salary of two persons for one post particularly in view of the fact that new appointee had never been a party to the lis nor her re-designation/promotion had ever been challenged by the applicant or someone else. The Hon'ble Supreme Court held that disobedience of an order is the result of some compelling circumstances under which it was not possible for the contemnors to comply with the order for which the contemnors could not be punished under the Contempt of Court Act.
23. In Dr. U.N. Bora (supra) the association alleged violation of the High Court order in respect 16 to levy made under Assam Agricultural Produce Market Act. The question as to whether drivers of two members of respondent Association relied upon the order passed by the Court and the documents produced are true and genuine matters for adjudication and the High Court in the contempt jurisdiction could not have gone into and decided the genuineness of such documents. On that ground, the contempt application was dismissed.
24. In Balwantbhai Somabhai Bhandari (supra) the Hon'ble Supreme Court held that it is only when a clear case of contumacious conduct, not explainable otherwise, arises that the contemnors must be punished. Punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority.
25. In fact, in our respectful reading of all the aforesaid judgments, it is clear that a contemnor is required to be punished for the act of contempt if the court has arrived at a finding that the acts and conduct of the alleged contemnors are contumacious, deliberate, willful and aimed at circumventing the order consciously in order to render the order infructuous or inexecutable. As 17 stated earlier, we have noticed that the alleged contemnors were acting in collusion with the Startrack in flouting each and every order passed in favour of the petitioner. Initially it did not respond to the notice issued by Mr. Rajesh Upadhyay on 26th October, 2017 and subsequently, when the Special Officer on 30th July, 2019 officially communicated the order to the alleged contemnors for depositing the occupational and service charges, they alleged that they were pressurized by Startrack not to comply with the order. This cannot be considered to be a compelling circumstance for disobeying the order.
26. We have no doubt in our mind that the alleged contemnors have knowingly, deliberately and intentionally violated the order dated 25th February, 2019. In fact, they have also violated the order passed by the learned trial court regarding deposit of occupational charges to the receiver in the proceeding initiated before the learned trial court.
27. In view of the fact that the disobedience was willful and intentional, although the alleged contemnors have tendered unconditional apology, with a view to upheld the majesty and dignity of 18 law and Court, we are of the view that the alleged contemnors are guilty of contempt.
28. The contemnors are personally present.
29. Mr. Aniruddha Mitra, learned counsel appearing on behalf of the contemnors has submitted that the apology tendered in the affidavits filed by the contemnors may be accepted as the explanations offered by each of the contemnors are bona fide. Moreover, in the event the Court is of the view that the apology cannot be accepted and proposes to punish the contemnors with imprisonment and costs, a suitable time may be given to the petitioner to prefer a statutory appeal under Section 19 of the Contempt of Courts Act, 1971.
30. In this order, we have elaborately discussed the conduct of each of the contemnors and their involvement in disobeying the order passed by this Court. It is pertinent to mention that not only there has been a disobedience or willful violation of the order passed by this Court on 25th February, 2019, there has been a consistent violation of the order passed by the Trial Court that had merged with the order of the Appeal Court.
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31. It is true that in answer to the Rule, they have tendered unconditional apology but such apology has to be considered in the background of the facts and circumstances and the conduct of the contemnors. When the "die is cast" and "bolt is impending" and the contemnors were left with no other alternative but had to confess that they have committed an offence, they cannot be exonerated of their contumacious conduct simply because they have tendered apology. Moreover, it appears that the alleged contemnors have camouflaged the facts and tried to mislead the Special Officer.
32. In Re. M.Y. Shareef and Another vs. Hon'ble Judges of the Nagpur High Court and Others. [AIR 1955 SC 19], the Hon'ble Supreme Court held at Paragraph 10 as follows:-
"10. The proposition is well settled and self evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it is intended to be evidence of real contriteness."
33. In Re: Patel Rajnikant Dhulabhai and Another vs. Patel Chandrakant Dhulabhai and 20 Others. [2008 (14) SCC 561], at paragraph 77, the Hon'ble Apex Court held as follows:-
"77. We are also satisfied that the so-called apology is not an act of penitence, contrition or regret. It has been tendered as a "tactful move"
when the contemnors are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand would be allowing the contemnors to go away with impunity after committing gross contempt of court. In our considered opinion, on the facts and in the circumstances of the case, imposition of fine in lieu of imprisonment will not meet the ends of justice."
34. In the instant case, we find that the apology was with a justification and at a belated stage.
35. There has been a consistent and conscious violation of the order on the plea that they were compelled to pay the occupational charges to Startrack. We have already negated such plea. In the matter of sentencing, we are required to find out if there are any aggravating and mitigating circumstances. In fact, if we view the conduct of the contemnors, their acts of contempt have been aggravated once they disregarded the notice served upon the contemnors by Sri Rajesh Upadhyay, the learned Advocate-on-record for the petitioner on 26th October, 2017. Although the order flouted was of the Trial Court, it is 21 nonetheless a judicial order which was disregarded with impunity. Accordingly, the contemnors cannot escape punishment.
36. In the facts and circumstances of the case, we, however, do not propose imprisonment of the alleged contemnor nos.1 to 5. However, we impose exemplary fine of Rs.5 lakh each to be paid to the State Legal Services Authority, West Bengal within a period of two weeks from this date, in default, the alleged contemnor nos.1, 4 and 5 shall suffer simple imprisonment of 10 days and in respect of alleged contemnor no.2, the simple imprisonment shall be of two days. The said fund shall be earmarked for Mediation and Juvenile in equal share.
37. The fund earmarked towards Mediation may be utilized for legal awareness and infrastructure. Similarly, the fund earmarked for Juvenile may be utilized for legal awareness and welfare of street children.
38. The order of simple imprisonment shall remain suspended for a period of one week beyond two weeks, in case of default in payment of fine.
39. Mr. Utpal Bose, learned Senior Counsel appearing for the contemnors has prayed for stay of operation of the order.
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40. The same is considered and rejected.
41. CRC 4 of 2021 is thus, disposed of.
42. This order shall be communicated to the Secretary, State Legal Services Authority, West Bengal.
43. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Soumen Sen, J.) (Saugata Bhattacharyya, J.)