Calcutta High Court (Appellete Side)
Efcalon Tie Up Pvt. Ltd vs Pradip Churiwal & Ors on 20 June, 2024
Author: Soumen Sen
Bench: Soumen Sen
20.06.2024
SL No.7-16
Court No.29
(gc/sg)
CRC 5 of 2019
In
CPAN 116 of 2021
Efcalon Tie Up Pvt. Ltd.
Vs.
Pradip Churiwal & Ors.
With
CRC 1 of 2020
Efcalon Tie Up Pvt. Ltd.
Vs.
Sharad Gupta
With
CRC 2 of 2021
Efcalon Tie Up Pvt. Ltd.
Vs.
Subodh Singh
With
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
CRC 5 of 2021
Efcalon Tie Up Pvt. Ltd.
Vs.
Ashim Agarwal
2
With
CRC 6 of 2021
CAN 2 of 2021
Efcalon Tie Up Pvt. Ltd.
Vs.
Bhavin Doshi Dalichand & Ors.
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,
...for the Petitioner.
Mr. Nikunj Berlia,
Ms. Mosarat Reyaz,
Mr. Sandip Manna
...for the Alleged Contemnor
Nos.1&2 in CRC 1 of 2020.
Mr. Sakya Sen,
Mr. Sandip Agarwal,
Mr. S. Mukherjee,
Mr. Chunky Agarwal,
Ms. S. Bhowmik
...for the Alleged Contemnors
In CRC 5 of 2019.
Re: CRC 3 of 2021
1. This contempt application is arising out of an
order passed by a Division Bench presided over by
3
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.
2. 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
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
4
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.
3. 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 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 5 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 request being made by the Receiver along with the copy of this order."
4. The petitioner alleged that the present contemnors have willfully and deliberately violated 6 the order in refusing to pay the occupational and service charge to the learned Receiver in respect of unit no.12 at premises no.P-10, Taratala Road, Kolkata and are deliberately and intentionally interfering with the functions of the Receiver.
5. 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 Startrack or other agency towards the occupational and service charges for the period they were under occupation. They have disclosed in the said affidavits that they have surrendered occupation of the said premises to Startrack in December, 2020.
6. 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 7 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 continued to pay the occupational and service charges to Startrack and four other entities for occupation of the godown aggregating to a sum of Rs.24 lacs approximately 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 on behalf of the learned 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
7. The learned Counsel has relied upon the following decisions of the Hon'ble Supreme Court:-
i) Niaz Mohammad & Ors. vs. State of
Haryana & Ors. reported in (1994) 6
SCC 332;
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.
8. 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 2019 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 four entities besides Startrack presumably at the instance of Pradip Churiwal who was claimed to be in the helm of affairs of Startrack at the 9 relevant time. It is submitted that the respondent/ alleged contemnors are in the said premises since December 2014 and at least in 2017, they were aware of the fact that they were required to pay occupational and service chargers to the 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.
9. 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.
10. In the contempt jurisdiction, the Court is required to ensure that the majesty and dignity of 10 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 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 3rd 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 11 contumacious conduct of the alleged contemnors. They have shown disregard to such orders with impunity and does not deserve any mercy. The alleged contemnors' are directed to be personally present in Court tomorrow to hear the sentence.
11. 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 placed 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.
12. 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 12 contempt. The fact situation in Niaz Mohammad (supra) is completely different from the facts we are presently dealing with.
13. In Ram Kishan (supra) the questions arose for consideration are:-
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?
14. 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 13 the contemnors to comply with the order for which the contemnors could not be punished under the Contempt of Court Act.
15. In Dr. U.N. Bora (supra) the association alleged violation of the High Court order in respect 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 are 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.
16. 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.
17. 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 14 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 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 3rd 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.
18. 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 dated passed by the learned trial court regarding deposit of occupational charges to the receiver in the proceeding initiated before the learned trial court.
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19. 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 law and Court, we are of the view that the alleged contemnors are guilty of contempt and shall personally appear tomorrow (21st June, 2024) at 2.00 P.M. to hear the sentence to be imposed upon the alleged contemnors.
20. Let the matter appear tomorrow, i.e. 21st June, 2024 at 2.00 P.m.
(Soumen Sen, J.) (Saugata Bhattacharyya, J.)