* IN THE HIGH COURT OF DELHI AT NEW DELHI
% I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07
IN
C.S. (OS) No. 1906 of 2006
+ Date of Decision: 25th May, 2009
#Capital Land Builders (Pvt.) Ltd.& Ors. .....Plaintiffs
! Through:Mr.Vijay Datar and Mr.Vineet Jhanji,
Advocates
versus
M/s Shaheed Memorial Society & Ors. .....Defendants
^ Through: Mr. R.M.Sinha & Ms. Anuradha
Chaudhary, Advocates for four contemnors
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?
ORDER
P.K.BHASIN, J:
Vide order dated 20th April,2009 defendant no.3 Arjun Chaudhary, defendant no.4 Ajay Yadav, defendant no.5 Abdul Haque Farhan and defendant no.6 Surender Pal were found guilty of contempt of Court for their having violated the ex-parte injunction order dated 6th October,2006 passed in this suit. The suit was filed by the plaintiffs to have the right of management of I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 1 the affairs of the plaintiff no.1 Company decided by this Court. Plaintiffs no.2-4 were claiming that they had the right to manage the affairs of the said Company and not the defendants/contemnors and some of their co-defendants while the contemnors and some of their co-defendants were claiming that they only were having the right to manage the affairs of the said Company and not the plaintiffs no.2-4. That assertion of the right by the contemnors and others necessitated the filing of the present suit for permanent injunction etc. Vide order dated 6th October, 2006 the four contemners and other defendants were restrained from representing themselves as shareholders/ representatives of plaintiff no.1, M/s Capital Land Builders (Pvt.) Ltd. However, the contemners and some other defendants allegedly violated that injunction order by not only claiming themselves as the Directors of plaintiff no.1 Company but also by selling a large number of plots of this Company in Kailash Nagar Colony, Loni Road, Delhi in respect of which sale deeds by were executed by contemnor Ajay Yadav claiming himself as the Director of plaintiff no.1-Company. Finally, vide order dated 20th April,2009 only four defendants named already were held guilty of contempt of Court by violating the injunction order dated 6th October, 2006.
I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 2
2. After holding the contemnors guilty they were afforded an opportunity of hearing on the question of punishment. However, the contemnors instead of availing of that opportunity preferred to move applications(being IA Nos.5815 & 5817 of 2009) seeking recalling of the order dated 20th April,2009. Although in IA No.5617/09 it was also stated that in case the order dated 20th April was not to be recalled then the contemnors were tendering apology. However, the tenor of the two applications was that this Court had wrongly held the contemnors guilty of contempt of Court. In any case, before that application could be taken up for consideration the contemnors also filed an appeal(being F.A.O.(OS)No.179/2009) on 06/05/09 against the same order before a Division Bench of this Court and on the same date they also filed their affidavits in the present proceedings tendering apology for whatever they had done in violation of the ex-parte injunction order dated 6th October,2006. The appeal was, however, withdrawn by the contemnors on 08/05/09 and after withdrawing the appeal contemnors withdrew their review applications also and then they pressed into service the weapon of apology. Learned counsel for the contemners placed reliance on judgments of the Supreme Court in "Dina Bandhu Sahu vs. State of Orissa", AIR 1972 SC 180 and "Brahm Prakash Sharma vs. The State of Utter Pradesh", AIR 1954 SC 10 in I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 3 support of his submissions that the apologies tendered by the contemners should be accepted However, the manner and circumstances in which the apology has come to be tendered in the present case by the four contemnors this Court is not at all inclined to accept the same.
3. In a recent decision of the Supreme Court in "C.Elumalal and Ors. Vs A.G.I. Irudayaraj and Anr.", 2009(4) SCALE 73, the question of acceptance of apology tendered by a contemnor came to be considered and the Supreme Court had observed that:
"4. Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward."(emphasis supplied)
4. Similarly in "T.N. Godavarman Thirumulpad Vs. Ashok Khot and Anr.", 2006(5) SCC 1, the following view was taken by the Supreme Court regarding the apology of a contemnor in contempt cases:
"..........Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 4 penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness............................"
5. In "Delhi Development Authority vs Skipper Construction & another", (1995) 3 SCC 507 while considering the apology of the contemnor the Supreme Court made the following observations:
"66. In considering whether the action of the contemners amounted to contempt of court we take into account the entire course of conduct of the contemners. As our order dated 25.1.95 would disclose, the contemners have indulged in judicial adventurism by raiding one court or the other. Each of such raids is a clear abuse of process of court calculated to obstruct the due course of judicial proceeding and the administration of justice. Thus, we conclude that the contemners are guilty of contempt of court. No doubt, the contemners have tendered apology. This apology is coming forth after sensing that the adventures have turned out to be misadventures, realising that the contemners have ended up in a cul-de-sac.-
An apology is not a weapon of defence forged to purge the guilt of the offences nor is it intended to operate as a universal panacea. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power." We do not find the apology to be so in this case. The conduct of contemners is highly reprehensive. The question now is what sentence we should impose on the contemners."(emphasis supplied) I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 5
6. As far as the apology tendered in the present case by the four contemnors is concerned the same was never tendered when applications for contempt were filed by the plaintiffs. They had at that time strongly defended their actions which have finally been held to be constituting contempt of Court. And even after the contemnors had been found guilty of contempt they did not straightaway tendered an apology and instead what they did was to convey to the Court that they had been wrongly held guilty by filing a review application and then they preferred an appeal also against the order dated 20th April,2009 whereby they were held guilty. It was only after they failed to get any relief from the Division Bench, where they withdrew their appeal after a lengthy hearing, that they pressed into service their apology affidavits. In these circumstances, I have no hesitation in straightaway rejecting the apology tendered by the contemnors.
7. Learned counsel for the contemnors had also contended while seeking acceptance of the apologies tendered by the contemnors that this is in any case a case of civil contempt in which punishment of fine only is the rule and imprisonment an exception. In support, he cited one decision of the Supreme Court in "Smt. Pushpaben & another. Vs. Narandas V. Badani I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 6 & another.", (1979) 2 SCC 394. He also placed reliance on one judgment of Allahabad High Court in "Sita Ram vs. Ganesh Dass", AIR 1973 All. 449. It was also submitted that in this case custodial punishment is not warranted since actually the plaintiff no.1-Company has not been put to any material loss by the impugned acts of the contemnors. Regarding the sales of a large number of plots of the Company it was contended that in fact even those sales were in fact had not put the Company into any loss since the physical possession of those plots was with some persons who were not the purchasers but in fact were using a 70% of the sold land for organizing marriage parties and those people who had put up marriage pandals are the men of the plaintiffs 2-4 and some land has been allowed to be occupied by some squatters by land mafia in connivance with the plaintiffs 2-4 to grab the properties of the Company. This stand has now been taken by the contemnor Ajay Chaudhary, who is the brother-in- law of contemnor Ajay Yadav who is the signatory of various sale deeds, in his additional affidavit dated 14th May,2009. In that affidavit it is stated that the deponent is the son of late Ch. Brahm Parkash who was the first Chief Minister of Delhi and was also for sometime Union Agriculture Minister. Ch. Brahm Parkash was the brain and moving spirit behind the incorporation of plaintiff no.1- Company and he had provided all the Capital and he had even I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 7 pooled in the compensation which he had received after acquisition of his own properties in the Capital of the said Company and then many properties were acquired in the name of the Company. It is further stated in the additional affidavit that one Kishore Lal, husband of plaintiff no.3, was working with late Ch Brahm Parkash as an office clerk and had won his confidence but later on had breached that very trust which Ch. Brahm Parkash had reposed in him by fraudulently getting the shares of Ch. Brahm Parkash and defendant no.1 herein of which also Ch. Brahm Parkash was the founder, in the Company transferred in the names of his own name and his relatives in order to have the complete control over the Company's assets. So, according to the counsel for the contemnors this is, in fact, a case of a failed attempt to sell the properties of the Company on the part of the contemnors and further that since this Court itself has declared in the order dated 20th April, 2009 that the sales deeds in question were non-est and void because of the contemnors having executed the same during the susbsistence of the injunction order dated 6th October, 2006 the contemnors do not deserve to be sent to prison. It was also submitted that the contemnors have settled with the purchasers and have agreed to refund them the entire sale consideration paid by them and the contemnors are also ready to deposit in this Court, if so directed, the entire sale I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 8 consideration mentioned in various sale deeds so that the same can be given to the purchasers who have been trying hard to get the physical possession of their plots from the plaintiffs' men belonging to land mafia. Learned counsel submitted that this gesture on the part of the contemnors is also a strong mitigating circumstance for being taken into consideration by this Court while deciding the punishment to be awarded to the contemnors.
8. On the other hand, Shri Viraj Datar, learned counsel for the plaintiffs submitted that in this case the contemners had not committed one act of contempt but various acts at different times after receiving the ex-parte injunction order dated 6th October, 2006 and as many as four applications for taking action against them for violation of the injunction order had to be moved. It was also submitted that even after passing of the order dated 20th April, 2009 by this Court whereby the contemners were held guilty of contempt of Court one of the contemners had still represented himself to be a Director of the plaintiff no. 1 Company before the Company Bench of this Court where some litigation is going on regarding the removal of the name of defendant no.1 society from the register of members of the plaintiff no. 1 Company is going on and the Company Bench has referred the matter to a Division Bench for initiation of I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 9 proceedings for criminal contempt. Mr. Datar submitted that considering the seriousness of the acts committed by the contemners they do not deserve any leniency in the matter of punishment. In support of his submission that this is not a case where imposition of fine only would serve the cause of justice and it is a fit case for awarding custodial imprisonment qua the contemners Mr. Datar placed reliance on two judgments of the Supreme Court which are reported as "Patel Rajnikant Dhulabhai & Anr. vs. Patel Chandrakant Dhulabhai & Ors.", 2008 (10) SCALE and "T.N. Godavarman Thirumulpad vs. Ashok Khot and Anr.", (2006) 5 SCC 1.
9. I have given my anxious consideration to the rival submissions and have also gone through the judgments cited from both the sides in order to decide whether this is a fit case for sending the contemners to prison or not and whether any other appropriate orders need to be passed. In the two decisions of the Supreme Court cited by learned counsel for the plaintiff the alleged contemners were found to have violated orders of injunction passed by the Court. In the case of Patel Rajnikant Dhulabhai(supra) the contemners had been restrained from creating any third party interests in the properties in suit and in violation thereof third party rights were created and the I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 10 contemners were sentenced to undergo simple imprisonment for a term of two weeks after their apology had not been accepted. In the case of T.N. Godavarman Thirumulpad(supra) the contemners had violated the injunction order passed by the Supreme Court and the contemners were sentenced to undergo one month's simple imprisonment. In the said case also the apology tendered by the two contemners was not accepted. Thus, it cannot be said that whenever it is a case of civil contempt only fine should be imposed, as was the submission of the learned counsel for the contemners. It all depends on the facts and circumstances of each case.
10. Order XXXIX Rule 2-A CPC provides for detention in civil prison of a litigant who violates an injunction order granted by the Court and also the attachment of the properties of the guilty party. In one decision of the Allahabad High Court which is reported as AIR 2003 ALL. 321, "Smt. Savitri Devi vs. Civil Judge (SD) and Ors." a direction was issued to the subordinate Court for attaching even those properties which had been sold by the contemner in violation of the injunction order in addition to the other properties of the contemner. The trial Court in that case had ordered attachment of the properties of the contemner but not the one which he had sold in disobedience of the I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 11 injunction order of the Court whereby he had been restrained from alienating the same. That attachment of the properties sold in disobedience of the injunction order of the Court was in addition to the sentence of civil imprisonment for a period of two months. It was observed by the Allahabad High Court that the provisions of Order XXXIX Rule 2-A CPC are meant to maintain the dignity of the Court in the eyes of the people so that the supremacy of law may prevail and to deter the people from mustering the courage to disobey the interim injunction passed by the Court.
11. While defending the applications under Order XXXIX Rule 2-A CPC the contemners had admitted having sold various plots of land to different persons vide different sale deeds executed by contemner Ajay Yadav in his capacity as the Director of the plaintiff no. 1- Company. Although it had also been claimed that the properties were sold in the interest of the Company but that plea was negatived by this Court while holding them guilty of contempt. In the sale deeds executed after the passing of the injunction order on 6th October, 2006 it had been recorded that physical possession of the plots sold had been handed over to the purchasers but now it is being claimed by the contemners that the possession of the plots of land in question could not be I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07 in CS(OS) 1906/06 12 taken over by the purchasers as some unauthorized persons have been occupying the same. It is also being claimed now that the contemners have settled with the purchasers to whom they had sold various plots. In my view, the contemners are simply trying to introduce confusion in the matter by taking these contradictory stands and that is an aggravating circumstance and not a mitigating one. In my view, it is a fit case where sentence of imprisonment would be fully justified and imposition of fine will not be sufficient punishment for the acts of disobedience committed by the contemners. The properties sold by the contemners vide various sale deeds mentioned in the order dated 20th April, 2009 holding them guilty of contempt also need to be attached.
12. I, therefore, direct that all the four contemners be detained in the civil prison for a period of two weeks. The properties mentioned in para no. 12 of the order dated 20th April, 2009 holding the four contemners guilty of contempt are also directed to be attached.
MAY 25, 2009 P.K. BHASIN,J
sh
I.A. Nos. 4764/08, 3329/08, 10609/07
& 6938/07 in CS(OS) 1906/06 13