Calcutta High Court
Mercury Exports & Manufacturing Pvt ... vs Punjab National Bank And Ors on 19 September, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
ORDER SHEET
CC 32/2019
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction(Contempt)
ORIGINAL SIDE
MERCURY EXPORTS & MANUFACTURING PVT LTD. AND ANR
Versus
PUNJAB NATIONAL BANK AND ORS
BEFORE:
The Hon'ble JUSTICE TAPABRATA CHAKRABORTY
Date : 19th September, 2019.
Mr. S. Majumder, Adv.; Ms. S. Ghosh, Adv.;
Mr. S. Chakraborty, Adv.; Mr. S. Bhattacharyya, Adv.,
..for petitioners.
Mr. Joy Saha, Sr. Adv.; Ms. A. Rao, Adv.;
Ms. P. Gandhi, Adv., ..for PNB.
The Court : The present contempt application has been preferred
alleging violation of an order dated 15th November, 2018 passed by this
Court in a writ petition being W.P. No.459 of 2018.
Mr. Majumder, learned advocate appearing for the petitioners,
submits that the order dated 15th November, 2018 was passed by this Court
in view of the specific submission made by the learned advocate appearing
for the respondents that the Bank authorities are not in a position to
allow the petitioners to operate the concerned account since the KYC form has not been submitted. Though the petitioners had admittedly complied 2 with such requirement, they have not been allowed to operate the account on altogether different grounds which were never urged at the time of disposal of the writ petition.
He submits that upon communication of the said order, the petitioner no.2 was asked to attend a hearing on 26th November, 2018 and he duly appeared and completed the KYC procedure. Even thereafter, the petitioners were not allowed to operate the account and a letter was issued on 31st January, 2019 stating inter alia that a delayed period interest to the tune of Rs.1,07,41,027/- is still due and payable by the petitioners and that the "No Dues Certificate" dated 3rd January, 2018 was issued by the Bank inadvertently. By the said letter, the "No Dues Certificate" was withdrawn and by subsequent letters dated 28th February, 2019 and 5th March, 2019, the petitioners were informed that the current account had been marked with a lien amount of Rs.1,07,41,027/-.
Mr. Majumder argues that there had been a wilful and deliberate violation of the order passed by this Court amounting to civil contempt inasmuch as the Hon'ble Court was induced to sanction a particular course of action on the basis of the submissions made on behalf of the respondents at the time of hearing of the writ petition. Such submission on the part of the respondents was false and the Court was misled. Had the Court been apprised of the actual reasons towards denial of operation of the concerned account, the Court would have decided the sustainability of such reasons and grounds in the writ petition itself. The explanations given by the alleged contemnors are clearly unacceptable and mens rea is writ large on their actions. In support of such contention, reliance has been placed upon the judgments delivered in Rita Markandey -vs- Surjit Singh Arora, reported in (1996) 6 SCC 14; T.N. Godavarman Thirumulpad (102)Through The Amicus Curiae -vs- Ashok Khot & Anr., reported in (2006) 3 5 SCC 1 and Jahurul Islam -vs- Abul Kalam & Ors., reported in AIR 1994 SC 1403.
Drawing the attention of this Court to the submissions made in the affidavits in opposition filed on behalf of the alleged contemnors, Mr. Majumder submits that different reasons have been given towards denial to operate the account. Such reasons are not bona fide. The "No Dues certificate" was issued on 3rd January, 2018. The date on which it was ascertained that the said certificate was issued inadvertently had not been specified.
Per contra, Mr. Saha, learned Senior Advocate appearing on behalf of the alleged contemnors nos.3 and 5 submits that this Court directed the alleged contemnors to consider the representation annexed at page 26 of the writ petition. Pursuant to such direction, opportunity of hearing was granted to the petitioners and a decision was taken and communicated and as such there had been no violation of the order passed by this Court.
He argues that non-compliance of an order has to be wilful and deliberate. Once an order has been passed by a party to a proceeding on the basis of a direction passed by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum and does not constitute contempt.
He submits that the steps taken by the Bank against the petitioners under the SARFAESI Act were challenged. The dispute went up to the Hon'ble Supreme Court and a one time settlement (in short "OTS") was arrived at. The account of the petitioner no.1 was maintained with a Large Corporate Branch (in short "LC Branch") at Park Street. After filing of the recovery proceedings, the account stood transferred to the Asset Recovery Management Branch (in short "ARM Branch"). Due to miscommunication between the ARM Branch and the LC Branch, the "No Dues Certificate" was issued to the petitioners from the ARM Branch on 3rd 4 January, 2018 and as such by a letter dated 18th September, 2018 issued by the LC Branch, the petitioners were requested to submit the KYC Form. On the basis of the said letter, the learned advocate appearing for the respondents made his submissions that the petitioners have not completed the KYC formalities. However, upon scrutiny of records, it was ascertained that the petitioners have not paid the Bank dues as per the OTS approved by the Bank on 16th March, 2015. As the petitioners have failed to pay the delayed period interest to the tune of Rs.1,07,41,027/-, the said account stood marked with a lien amount of Rs.1,07,41,027/-. Such action does not constitute any wilful or deliberate violation of the Court's order. In support of such contention, reliance has been placed upon the judgments delivered in Kapildeo Prasad Sah & Ors. -vs- State of Bihar & Ors., reported in (1999) 7 SCC 569 and Anil Ratan Sarkar & Ors. -vs- Hirak Ghosh & Ors., reported in (2002) 4 SCC 21.
In course of hearing of the writ petition, this Court directed the alleged contemnors to produce the show cause notice as stated to have been issued by the Bank authorities. Pursuant to such direction, Mr. Saha has placed before this Court a show cause notice dated 15th November, 2018, issued to the alleged contemnor no.5. Let a copy of the same be kept with the records.
In reply, Mr. Majumder submits that the show cause notice has been issued against the alleged contemnor no.5 herein, who has affirmed an affidavit in the present contempt application. As per the OTS, the petitioners have paid the due amount, as would be explicit from the document as annexed at page 29 of the contempt application. It is only after the order was passed by this Court the alleged contemnors have denied the petitioners to operate the concerned account on a purported ground that the "No Dues Certificate" was inadvertently issued. There is no explanation as to why the respondents had to wait for a period more 5 than a year to ascertain that the petitioners have not deposited the entire amount as per the OTS.
A perusal of the order dated 15th November, 2018, reveals that on the basis of a letter dated 18th September, 2018, annexed to the writ petition, the learned advocate appearing for the respondents, submitted that as the petitioners did not submit the KYC form, the Bank authorities were not in a position to allow the petitioners to operate the concerned account. Such submission, as advanced, cannot totally debar the Bank authorities to check the records and to ascertain as to whether further conditions are required to be fulfilled by the petitioners for operation of the concerned account. Upon recording the submission made by the learned advocate appearing for the respondents, this Court directed the respondent no.2 to grant a personal hearing to the petitioner no.2 on the date specified and to consider the petitioners' representation and to take a decision, in accordance with law and to communicate the same. Such opportunity of hearing was granted and a decision was taken and communicated. The letters dated 31st January 2019, 28th February, 2019 and 5th March, 2019 give rise to a fresh cause of action to seek redressal in an appropriate forum and such action does not constitute contempt.
It is well settled that a decision is an authority for what it decides and not what can be logically deduced therefrom. A slight distinction in fact or an additional fact may make a lot of difference in a decision making process. The judgments upon which reliance has been placed on behalf of the petitioners are distinguishable on facts and have no manner of application in the instant case.
For the reasons discussed, the contempt application is dismissed. Needless to observe, the dismissal of the contempt application shall not prevent the petitioners from challenging the order dated 31st January, 2019 and the subsequent communications.
6
There shall, however, be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be supplied to the parties subject to their compliance with all the requisite formalities.
(TAPABRATA CHAKRABORTY, J.) tk