Calcutta High Court
Karnani Properties Limited vs Mr. Abhishek Kejriwal & Anr on 14 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (Contempt)
ORIGINAL SIDE
CC 21 of 2016
Karnani Properties Limited
V.
Mr. Abhishek Kejriwal & Anr.
Before: The Hon'ble Justice Arijit Banerjee
For the Petitioners : Ms. Lapita Banerjee, Adv,
Mr. N. Chowdhry, Adv.
Ms. A. Poddar, Adv.
For respondents : Mr. Dilip Mukherjee, Adv,
Mr. Lord Chatterjee, Adv.
Mr. P.K. Nandi, Adv.
Judgment on : 14.12.2023
Arijit Banerjee, J. :-
1. This contempt application has been filed alleging wilful violation of an
order dated January 18, 2016, passed on an interlocutory application being
T.A. no. 2 of 2016 filed in C.S. no. 8 of 2016.
2. The petitioner is the owner of premises nos. 25A, 25B, 27A and 27B
Park Street, Kolkata 700 016, popularly and collectively known as "Karnani
Mansion". The respondent no. 1 herein is the General Secretary of Karnani
Mansion Residents Association (in short 'KMRA') and the respondent no. 2 is
the Joint Secretary of KMRA.
3. It appears that some time in or around 2002, Kolkata Municipal
Corporation (in short 'KMC'), issued water dis-connection notice to the
owners of Karnani Mansion for property tax having fallen due. The notice
was challenged by KMRA by filing a writ petition being W.P. no. 1619 of
2002. The matter was carried to the Appeal Court by filing APOT No. 582 of
2002. It appears that the Appeal Court by an order dated August 27, 2002,
permitted KMRA to collect the rent and maintenance charges from the
residents of the various flats/apartments in Karnani Mansion and other
occupiers and utilize the same for payment of property tax.
4. C.S. No. 8 of 2016 was filed by Karnani Properties limited (in short
KPL), the owner of Karnani Mansion, primarily for a declaration that two
circulars dated December 24, 2015, and December 31, 2015, issued by
KMRA, are bad in law and should be quashed. The said circulars were
issued by KMRA requesting the tenants/occupants of Karnani Mansion to
pay rent/maintenance/parking/cleaning charges, etc., to KMRA which is
the defendant no. 1 in the suit. The defendants contend that the said
circulars were issued rightly and in consonance with the order dated August
27, 2002, passed by the Hon'ble Division Bench of this Court in APOT no.
582 of 2002.
5. KPL filed an interlocutory application in the suit to restrain the
defendants in the suit from giving any effect to the said 2 circulars.
6. When the interlocutory application was moved on January 14, 2016,
an assurance was given on behalf of the defendants that no effect would be
given to the impugned circulars till January 19, 2016. On January 18,
2016, I had recorded an order, violation of which is alleged in this contempt
application. The said order dated January 18, 2016 is reproduced
hereunder:-
"The Court : The plaintiff in the suit is the owner of the
properties collectively known as Karnani Mansion. The defendant
no.1 is the Karnani Mansion Residents' Association and the
defendant nos.2 and 3 are office holders of the said Association.
The dispute in the present suit involves only four premises being
25A, 25B, 27A and 27B, Park Street, Kolkata - 700 016.
The defendants have issued two circulars dated 24th
December, 2015 and 31st December, 2015 respectively thereby
requesting the tenants/occupants of the said four premises to pay
rent/maintenance/parking/cleaning charges, etc. to the defendant
Association. This, the defendants contend, is in consonance with
the order dated 27th August, 2002 passed by the Hon'ble Division
Bench in APOT No.582 of 2002. Mr. Mazumdar, learned Senior
Counsel submits that the said order was confirmed by the Hon'ble
Appeal Court by its order dated 21st July, 2006.
Mr. Mukherjee, learned Senior Counsel representing the
plaintiff submits that the defendants have no right to collect the
rent, parking fees, etc. in respect of the said premises. According
to him, the order dated 27th August, 2002 does not survive any
more. These are questions that this court will have to consider
after affidavits are exchanged
When this matter was moved on 14th January, 2016, an
assurance was given by the learned Advocate for the defendants,
on instruction, that no effect would be given to the aforesaid two
circulars dated 24th December, 2015 and 31st December, 2015
respectively till 19th January, 2016. The matter was accordingly
fixed for today.
Mr. Mukherjee, learned Senior Counsel produces a receipt
dated 15th January, 2016 issued by the defendant Association
which shows that the Association received rent for December,
2015 for flat no.232 from one Mr. Mukesh Mirchandani. This,
according to me, prima facie is in violation of the assurance given
on behalf of the defendants.
Be that as it may, I am of the view that pending disposal
of the application, a Special Officer should be appointed for
collecting the rent from the tenants, who are members of the
defendant Association. Accordingly, Mr. Sandwip Mukherjee,
advocate, Bar Library Club, High Court, Calcutta is appointed as
Special Officer for the purpose of collecting the rent and
maintenance charges from the tenants/occupiers, who are
members of the defendant Association. The Special Officer shall be
entitled to a remuneration of 500 GMs. per month to come out
from the monies collected by him. Such rent shall be kept in a
separate account to be opened by the Special Officer with a
nationalised bank of his choice or the State Bank of India. The
money collected shall be deposited in an account, which would
give the best possible return. In this matter, the Special Officer will
be assisted by the Secretary of the defendant Association and Mr.
C.K. Karnani, director of the plaintiff company. The Special Officer
shall maintain account of the collection made by him upon
intimation to both the parties. In case any urgent maintenance
work needs to be carried out to the aforesaid four premises in
question or any one of them, the Special Officer in consultation
with the aforesaid director of the plaintiff and the secretary of the
defendant Association shall carry out such work, the cost of which
will come out from the monies collected by the Special Officer
Mr. Mazumdar, learned Senior Counsel submits that the
tenants/occupiers should not face any difficulty in the matter of
parking of motor cars and ingress and egress thereof to and from
the said premises. Mr. Mukherjee assures that no obstacles will
come from the side of the plaintiff in that regard. However, Mr.
Mazumdar shall always be at liberty to approach this court if his
clients have any genuine grievance.
Let affidavit in opposition be filed by 15th February, 2016.
Affidavit in reply, if any, be filed by 29th February, 2016. Let this
matter appear before the Regular Bench in the monthly list of
March, 2016 under the heading 'Adjourned Motion'.
Certified photocopy of this order, if applied for, be
supplied to the parties subject to compliance with all requisite
formalities."
7. The contempt application was moved on or about February 17, 2016.
The basic allegation is that in spite of the assurance meted out by learned
Advocate for the defendants in the suit including the present respondents
who are office bearers of KMRA (defendant no. 1 in the suit), and in spite of
the clear injunction order dated January 18, 2016, KMRA through the
present respondents continued to give effect, to the circulars impugned in
the suit, by collecting rent/maintenance/parking/cleaning charges, etc.,
from the tenants/occupants of Karnani Mansion. Wilful violation of the
order dated January 18, 2016, has been alleged in this contempt
application.
8. I heard learned Counsel for the parties at length. Learned Advocates
for the parties also filed written notes of submission at the conclusion of the
hearing of the application.
9. Learned Advocate for the petitioner submitted that with full knowledge
of the order dated January 18, 2016, the respondents herein went on
collecting rent etc. from the tenants/occupiers of Karnani Mansion. They
have deliberately refused to disclose the particulars of the bank account in
which such moneys have been deposited. This act of concealment is also an
act of contempt. It was submitted that the respondents made payments for
personal expenses from the bank account where the rent/maintenance/
parking/cleaning charges were deposited. The respondents sought to siphon
off funds despite appointment of a Special Officer and ought to usurp the
power of the Special Officer appointed by this Court.
10. Photo copies of bank accounts were produced on behalf of the
petitioner to try and demonstrate that monies were deposited by KMRA in
the bank accounts after collecting rent/maintenance/parking/cleaning
charges from the tenants /occupants of Karnani Mansion even after the
order dated January 18, 2016 was passed.
11. The petitioner also field a supplementary affidavit dated July 3, 2018,
annexing thereto photocopies of diverse documents to establish that the
respondents wilfully violated the order dated January 18, 2016.
12. The respondents filed affidavit-in-opposition to the contempt petition
as also affidavit-in-opposition to the supplementary affidavit of the
petitioner.
13. Learned Advocate for the respondents submitted that there was no
violation of the order dated January 18, 2016, on the part of the
respondents. He admitted that the respondents did deposit money in the
bank account on January 19, 2016, but explained that such money was
collected prior to the passing of the order dated January 18, 2016. Learned
Advocate argued that none of the documents produced by the petitioner
with the contempt petition or with the supplementary affidavit, would show
that the respondents collected rent/maintenance /parking/cleaning charges
from the residents of Karnani Mansion or any of them after the order dated
January 18, 2016, was passed.
14. Learned Advocate for the respondents submitted that no receipt
issued by the respondents for collection of money from the residents of
Karnani Mansion after passing of the order dated January 18, 2016, could
be produced by the petitioner. On the other hand, the petitioner has been
obtaining copies of bank statements of KMRA by dubious methods.
15. Learned Advocate submitted that there is not a single complaint made
by the Special Officer appointed by this Court that KMRA or its office
bearers including the present respondents ever received any rent or other
charges from the tenants/occupiers who are members of KMRA. On the
other hand KMRA had to make various complaints against the petitioner,
KPL, for violation of the Court's orders.
16. Learned Advocate submitted that the deposits in the concerned bank
accounts of KMRA for the period subsequent to January 18, 2016, were all
donations/contributions to KMRA by its members for meeting various
expenses including legal expenses.
17. I have carefully considered the rival contentions for the parties. I have
gone through the pleadings and through the written notes of submission
filed on behalf of the respective parties.
18. The contempt jurisdiction of the High Court is a Special Jurisdiction.
It is quasi criminal in nature .The High Courts, it has now been held, have
inherent power to punish a person for wilful violation of its order. The object
is twofold. One is to uphold the dignity of the Court; and the other is to
punish the violator. Article 215 of the Constitution of India and the
contempt of Courts Act, 1971, recognize the power of the High Court to
punish for contempt of Court.
19. No citizen is above the law. Rule of law must prevail and must be
obeyed by all and sundry. An order of the Court passed in enforcement of
the law of the land, must be carried out by a person against whom such
order is passed. It is open to such person to challenge such order before a
higher forum, if one is available. However, so long as the order stands, the
same must be complied with by the person against whom such order is
directed. He cannot act in disobedience to or in violation of such order with
impunity. If the Court is satisfied that the concerned person acted in wilful
breach of the order, the Court may hold that person to be guilty of contempt
of Court and either fine him or send him to prison or do both.
20. It is precisely because the consequences of the Court holding a person
guilty of contempt of Court, are grave and serious for that person, the Court
while exercising contempt jurisdiction, must act with restraint. Unless it is
absolutely clear to the Court that the alleged contemnor, with the intention
of violating an order has acted in breach thereof, the Court normally does
not hold a person guilty of contempt of Court. If there is any ambiguity in
the order, violation of which is alleged in a contempt application, the benefit
of doubt would be given to the alleged contemnor. If an order is liable to
more than one interpretation, which are all plausible, and if the alleged
contemnor has acted on the basis of any one of such interpretations, then
also, even if apparently he has violated the order, he will be let off.
21. In the present case, by the order dated January 18, 2016, I had in
effect stayed the operation of the two circulars impugned in the suit and had
appointed a learned Advocate as Special Officer for the purpose of collecting
the rent and maintenance charges from the tenants/occupiers of Karnani
Mansion, who are members of KMRA. Therefore, KMRA and its office bearers
could not have collected rent or maintenance charges from the
tenants/occupiers of the flats in Karnani Mansion who are members of
KMRA, after the order dated January 18, 2016, was passed. The petitioner
alleges that the respondents continued to collect rent/maintenance charges
from the tenants/occupiers who are members of KMRA. The respondents
deny the same. I have gone through the copies of the bank statements and
other documents disclosed and relied upon by the petitioner. It does not
appear to me from such documents that the respondents in fact collected
rent or maintenance charges from the tenants/occupiers of Karnani
Mansions, who are members of KMRA after I had passed the order dated
January 18, 2016. There is an instance of deposit of money in a bank
account on January 19, 2016. But it could well be money collected prior to
passing of the order dated January 18, 2016, of which violation is alleged in
this contempt application, or even prior to the assurance that was given to
the Court by learned Advocate for the defendants in the suit on January 14,
2016. That is a possibility which cannot be ruled out. Therefore, one cannot
be sure that the said deposit was of money collected by the respondents
herein in violation of the order dated January 18, 2016, or in breach of the
assurance meted out on January 14, 2016.
22. By way of the supplementary affidavit, the petitioner disclosed further
documents to buttress its case that various amounts were deposited, in the
bank account of KMRA, for a continuous period of time in violation of the
order dated January 18, 2016. From the documents on record, it cannot be
said with any degree of certainty that such deposits are of monies collected
by KMRA or the present respondents from tenants/occupants of Karnani
Mansion who are members of KMRA on account of rent or maintenance
charges. The respondents say that such deposits represent
donations/contributions made by the members of KMRA for meeting diverse
expenses including litigation expenses. Although the petitioner denies this
contention of the respondents, there is nothing before me from which I can
come to a definite conclusion that the said deposits are of monies collected
by KMRA from its members who are tenants/occupiers of Karnani Mansion
on account of rent or maintenance charges.
23. In view of the aforesaid, it cannot be said that the respondents have
definitely acted in wilful violation of the order dated January 18, 2016. Even
if they have in fact collected rent/maintenance charges in violation of the
order dated January 18 2016, the same does not appear from the records
disclosed before me in this proceeding. Hence, I am impelled to give the
benefit of doubt to the respondents and dismiss this contempt application.
There will be no order as to costs.
24. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities
(ARIJIT BANERJEE, J.)
