High Court of Delhi was dealing with the petition filed under Article 227 impugns the order dated 2nd December, 2021 passed by the Commercial Court, whereby show cause notice has been directed to be issued to the plaintiff, to be answered and endorsed through the Chairman, as to why criminal contempt should not be initiated against him for overreaching the process of the Court.
Brief Facts:
The defendant approached the plaintiff for grant of a car loan for the purchase of a vehicle. The loan documents were executed and the loan was duly sanctioned to the defendant. The defendant defaulted in payments of monthly instalments towards repayment of the loan and consequently, issued a notice to the defendant to recall the loan facility available to the defendant. The plaintiff filed a commercial suit for recovery against the defendant. The summons was issued in the commercial suit on 16th August, 2021. The plaintiff took steps for affecting service on the defendant through ordinary process as well as speed post, by filing process fee and sealed covers containing the summons and paper book respectively. Pursuant thereto, steps were taken for affecting service on the defendant by ordinary process as well as through speed post. In addition to the service through the above modes, the plaintiff also sent the photograph of the summons issued by the Commercial Court to the defendant by means of WhatsApp since the plaintiff had the phone number of the defendant provided in the loan documents.
Plaintiff’s Contention:
Learned counsel for the plaintiff submitted that even though steps were not taken by the plaintiff for service through email, but the photograph of the summons were duly sent to the defendant through WhatsApp. The photocopy of the summons were sent through WhatsApp only to ensure presence of defendants before the Commercial Court on the next date of hearing. It was contended that the Supreme Court itself during the period of lockdown had directed service to be affected through various electronic means including WhatsApp. It was submitted that even if the photograph of the summons were sent to the defendant through WhatsApp, no case of contempt has been made out much less criminal contempt.
HC’s Observations:
After hearing both the sides Court stated that there was no occasion at all for the Commercial Court to issue show cause notice for initiating criminal contempt against the plaintiff. Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system.
HC observed that the photograph of the summons were sent through WhatsApp only as an additional measure so as to ensure the appearance of the defendant before the Commercial Court. There is nothing malafide in the same and it cannot be said that was an attempt to overreach the judicial proceedings. Court stated that it was not that the plaintiff had sought to send the summons through WhatsApp in substitution of the ordinary service to the defendant. It was only sent as a secondary measure to ensure the presence of the defendant on the next date. Therefore, Commercial Court has completely gone overboard in issuing notice for initiating contempt proceedings.
HC relied upon the case of Dr. Prodip Kumar Biswas Vs. Subrata Das and Ors. where SC, while dealing with the issue of criminal contempt has observed that proceedings for criminal contempt can be initiated only when the act prejudices or interferes or tends to interfere with the course of judicial proceeding or administration of justice. Contempt of court is a special jurisdiction that ought to be exercised sparingly and with great caution. Contempt proceedings should not be initiated lightly.
HC Held:
After evaluating submissions made by both the parties the Court held that “Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings be not initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. Therefore, the impugned order is clearly in excess of the jurisdiction vested with the Commercial Court. The order passed by the Commercial Court suffers from patent illegality and is also without jurisdiction and hence, cannot be sustained.”
HC allowed the petition.
Bench: Hon'ble Mr. Justice Amit Bansal
Case Title: ICICI Bank Ltd. v. Rashmi Sharma
Case Details: CM(M) 36/2022
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