Calcutta High Court
Satish Vishanji Futnani vs Arul Madhusudhan Futnani And Ors on 1 August, 2024
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Special Criminal Jurisdiction
(Contempt)
Original Side
CC No. 57 of 2012
SATISH VISHANJI FUTNANI
VS.
ARUL MADHUSUDHAN FUTNANI AND ORS.
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
For the Petitioner : Mr. Ranjan Baachawat, Sr. Adv.
Mr. Prabhakar Chowdhury, Adv.
Mr. Satyaki Mukherjee, Adv.
Ms. Mini Agarwal, Adv.
For Respondent No. 1 : Mr. Sandip Kr. De, Adv.
Mr. Venkatash Mohan Raj, Adv.
Mr. Abhijit Sarkar, Adv.
For Respondent No. 2, 3, 4 : Mr. Joy Saha, Sr. Adv.
Mr. Anupam Dasadhikari, Adv.
Mr. Suvam Sinha, Adv.
Ms. Harshita Nath, Adv.
Mr. Prakash Mishra, Adv.
Hearing concluded on : July 23, 2024
Judgment on : August 01, 2024
DEBANGSU BASAK, J. :-
1. The petitioner has alleged that the respondents violated the
orders dated June 17, 2004 passed in CC 113 of 2004 and in CC
Signed By :
SUBHA
KARMAKAR 114 of 2004. The petitioner has sought initiation of criminal
High Court of
Calcutta
1 st of August
2024 11:37:03 AM contempt proceedings as against the respondents.
2. Learned Senior Advocate appearing for the petitioner has
submitted that, the application for initiation of criminal contempt
proceedings was valid on account of repeated interferences with the
possession of the Joint Receivers by the respondents. He has
pointed out that, civil contempt applications had been filed from
time to time against the respondent No. 1 who continued to
repeatedly sell the properties under the possession of the Joint
Receivers. The respondent Nos. 2, 3 and 4 in the present
proceedings have notice and knowledge of such orders and despite
the same continued to purchase the immovable properties.
3. Learned Senior Advocate appearing for the petitioner has
contended that, contempt Rule was issued in several contempt
applications including in CC 113 of 2004 and CC 114 of 2004. He
has referred to a number of orders passed in contempt jurisdiction.
He has pointed out that, the respondents have been held guilty of
contempt by an order dated April 29, 2005 passed in CC 113 of
2004.
4. Learned Senior Advocate appearing for the petitioner has
contended that, the petitioner applied for leave of the learned
Advocate General to initiate criminal contempt proceedings by a
letter dated March 23, 2012 in terms of Section 15(1)(a) of the
Contempt of Court Act, 1971. The learned Advocate General
however, did not deal with such application as he had appeared for
the parties earlier. Consequently, the petitioner has filed the
present application praying for suo motu cognizance. He has
pointed out that, by an order dated June 2, 2012, the Court had
decided to initiate suo motu contempt proceedings.
5. Learned Senior Advocate appearing for the petitioners has
contended that, Joint Receivers were appointed by an order dated
January 19, 2004. Orders of injunction had been passed on June
10, 2004 in CC 113 of 2004 and CC 114 of 2004. Subsequently, an
order dated June 17, 2004 had been passed in such contempt
proceedings. He has pointed out that, upon the failure of the
respondents to appear despite the notice as recorded in the order
dated June 17, 2004, Joint Receivers were appointed in respect of
the subject properties. Pursuant to the order dated June 17, 2004,
Joint Receivers have taken possession of the subject property on
June 20, 2004. Joint Receivers have put up a signboard and
caused notification to be published in newspapers. The same had
been witnessed by advocates who affirmed affidavits to such effect.
He has referred to the photographs showing signboards put up by
the Joint Receivers. He has also referred the report of the Joint
Receivers.
6. Learned Senior Advocate appearing for the petitioner has
contended that, the respondent No. 1 in his affidavit-in-opposition
filed in CC 14 of 2005 admitted that the Joint Receivers have taken
possession. Court had passed an order dated August 11, 2004
recording that the Joint Receivers have taken possession of the
subject property. Court had passed orders dated February 8, 2005,
May 11, 2005 and July 6, 2005 in CC 14 of 2005 having noted the
attempts to disturb the possession of the Joint Receivers.
7. Learned Senior advocate appearing for the writ petitioner has
contended that, the respondent executed a sale deed dated July 26,
2006. Consequently CC 198 of 2006 had been filed. In such
contempt petition, an order dated December 22, 2006 had been
passed which held that the sale deed dated July 26, 2006 had
violated the possession of the Joint Receivers. An appeal preferred
from such order was dismissed on March 23, 2007 which had
recorded that the Joint Receivers were in possession.
8. Learned Senior Advocate appearing for the writ petitioner has
contended that, the respondents were aware of the orders passed
by the Court in the several contempt petitions as also the
possession of the subject property by Joint Receivers. He has
pointed out that, the respondent No. 1 was party to CC 113 of
2004, CC 14 of 2005, CC 23 of 2006 and CC 198 of 2006. The
respondent Nos. 3 and 4 are directors of the respondents No. 2 and
were parties in CC 23 of 2006 and CC 198 of 2006.
9. Learned Senior Advocate appearing for the petitioner has
submitted that, sale deeds executed despite the undertaking given
to the Court on July 6, 2005 had been directed to be cancelled.
10. Relying upon 2000 Volume 8 Supreme Court Cases 512
(Bank of India vs. Vijay Transport and Others), learned Senior
Advocate appearing for the petitioner has submitted that, where
properties are custodia legis interference with the same would
tantamount to interfering with the administration of justice.
11. Learned Senior Advocate appearing for the petitioner has
contended that, the sale deed dated January 27, 2012 is
undervalued. He has compared the subject sale deed with the sale
deed of a neighbouring plot executed on November 25, 2011 in this
context.
12. Relying upon 2010 Volume 7 Supreme Court Cases 592
(Amicus Curiae vs. Prashant Bhushan and Another) learned
Senior Advocate appearing for the petitioner has drawn the
attention of the Court to the power of the Court in respect of a
criminal contempt.
13. Learned Senior Advocate appearing for the petitioners has
contended that, the defence sought to be set up should not be
accepted. He has relied upon 1997 Volume 3 Supreme Court
Cases 443 (Tayabbhai M. Bagasarwalla and Another vs. Hind
Rubber Industries Pvt. Ltd. and Others), 2016 Volume 9
Supreme Court Cases 44 (Anita International vs. Tungabadra
Sugarworks Mazdoor Sangh and Others) and 2017 Volume 1
Supreme Court Cases 622 (Robust Hotels Private Limited and
Others vs. EIH Limited and Others) and submitted that, order of
Court is required to be obeyed irrespective of whether the same was
passed within or without jurisdiction, till such time the same is set
aside. He has pointed out that, no appeal has been preferred
against the order dated June 17, 2004 passed allegedly without
jurisdiction. In any event, the orders dated June 17, 2004 cannot
be said to be without jurisdiction since the learned Judge had
determination to take up matters for contempt of the order dated
April 8, 1993 passed by a learned Judge who had retired. Moreover,
the learned Judge has given reasons as to the circumstances in
which he passed an identical order in CC 113 of 2004.
14. Relying upon 1994 Volume 2 Calcutta Law Journal 278
(Howrah Trading Company vs. Smt. Pramita Jalan & Ors.)
learned Senior Advocate appearing for the petitioner has contended
that, interference with the possession of the Joint Receivers is
violation of the possession of the Court and is an act of criminal
contempt. The Joint Receivers, according to him had never been
discharged. He has relied upon Howrah Trading Company (supra)
and AIR 1962 Supreme Court 21 (Hiralal Patni vs. Loonkaran
Sethiya and Others) in support of the proposition that a receiver
continues in possession till an order for discharge is passed.
15. Relying upon 1996 Volume 4 Supreme Court Cases 622
(Delhi Development Authority vs. Skipper Construction Co. (P)
Ltd. and Another) learned Senior Advocate appearing for the
petitioners has submitted that, a contemnor cannot be permitted to
enjoy and/or keep the fruits of his acts of contempt.
16. Learned advocate appearing for the respondent No. 1 has
submitted that, the contempt petition does not specify the case in
which the order dated June 17, 2004 was passed violation of which
is complained of. He has contended that, the contempt petition is
not maintainable since the cause of action does not exist. The order
dated June 17, 2004 was not extended beyond August 10, 2007.
The sale deed is dated December 27, 2012 and, the order dated
June 17, 2004 was not in existence at that point of time.
17. Learned advocate appearing for the respondent No. 1 has
submitted that, civil contempt proceedings were adjourned sine die
in view of pendency of the matter before the Supreme Court.
18. Learned advocate appearing for the respondent No. 1 has
submitted that, the subject property was settled by the mother of
the respondent No. 1 on September 13, 2003. Such property was
added in the terms of settlement dated December 30, 2003 without
the knowledge and consent of the respondent No. 1
notwithstanding the fact that such property was not part of the
plaint schedule of CS 781 of 1983.
19. Learned advocate appearing for the respondent No. 1 has
submitted that CC 113 of 2004 was initiated for the sale in
violation of the order dated March 15, 2004 and March 23, 2004
passed in the application to set aside the decree in GA 892 and
1039 of 2004. CC 114 of 2004 has been initiated for the alleged
violation of the order of status quo passed on April 8, 1993. He has
contended that, the respondent No. 1 was neither consulted nor did
he signify his consent for inclusion of the subject property in the
Terms of Settlement dated December 30, 2003. In any event, all
matters including the inclusion of the subject property in the terms
of settlement is pending before the Supreme Court.
20. Learned advocate appearing for the respondent No. 1 has
contended that, the Court before which the contempt petitions
being CC No. 113 and 114 of 2004 were instituted did not have
jurisdiction to entertain such contempt petitions. In fact, according
to him, CC No. 113 of 2004 had been released by the Court on
June 8, 2005 in view of the observation made by the Division
Bench. The next court had refused to pass any order in view of the
pendency of the Special Leave Petition.
21. Learned advocate appearing for the respondent No. 1 has
submitted that the present criminal contempt has been filed in view
of the fact that the other 2 contempt petitions were adjourned sine
die in view of the pendency of the main matter before the Supreme
Court. He has contended that, the interim order of possession
dated June 17, 2004 passed in CC 113 and 114 of 2004 were not
extended beyond August 10, 2007. Consequently, the present
contempt petition is not maintainable.
22. Moreover, all proceedings including the present contempt
petition arises out of the consent decree dated January 19, 2004
passed in CS 781 of 1983 which is presently the subject matter of
proceeding by way of civil appeal before the Supreme Court at the
instance of the respondent No. 1 and has family members. He has
contended that, there is an affidavit before the Supreme Court that
the Terms of Settlement was obtained under threat of contempt
and coercion by the joint receivers along with the plaintiff. He has
contended that, joint receivers were appointed with the consent of
all the parties including the respondent No. 1. However, at no point
of time the parties who had a personal interest in conflict with that
of the respondent No.1 and members of the family agreed to be
appointed by the respondent No. 1 or members of his family.
23. Learned advocate appearing for the respondent No. 1 has
contended that one of the joint receivers sold the property during
the pendency of the interim order and therefore cannot hold the
high moral ground in this contempt petition. The Terms of
Settlement which forms the foundational basis of the contempt
petition, was recorded behind the back of the respondent No. 1 and
that, the same is pending before the Supreme Court. The conduct
of the joint receivers should be considered on the anvil of the fact
that the Terms of Settlement was stage managed and on the extent
of the contempt proceedings being CC No. 264 of 2003 which was
categorically stated in the affidavit filed before the Supreme Court.
24. Learned senior advocate appearing for the respondent Nos. 2, 3
and 4 has referred to the provisions of the Contempt of Court Act,
1971 particularly to sections 2 (b) and (c) thereof. He has
contended that, criminal contempt cannot be initiated against his
clients. He has relied upon 2021 Volume 1 Supreme Court Cases
745 (Prashant Bhushan and Another. In Re) in support of his
contention.
25. Learned senior advocate appearing for the respondent Nos. 2, 3
and 4 has contended that, strictest interpretation of the alleged act
of contempt has to be given to initiate a proceeding under the Act of
1971. According to him, the acts of contempt that have been
complained of, does not constitute criminal contempt. In support of
his contention, he has relied upon 2014 Volume 16 Supreme
Court Cases 204 (Ram Kishan vs. Tarun Bajaj and Others).
26. Relying upon 2009 Volume 2 Supreme Court Cases 641
(Parents Association of Students vs. M.A. Khan and Another)
learned senior advocate appearing for respondent Nos. 2, 3 and 4
has contended that, since his clients were not parties to the
original proceedings, his clients cannot be held guilty of contempt
of court.
27. Relying upon All India Reporter 1962 SC 199 ( Hira Lal
Patni vs. Sri Kali Nath) and 2005 Volume 7 Supreme Court
Cases 791 (Harshad Chiman Lal Modi vs. DLF Universal Ltd.
and Another) learned senior advocate appearing for the
respondent Nos. 2, 3 and 4 has contended that, since the order
violation of which is complained of was passed without jurisdiction,
the same is a nullity and therefore cannot be enforced.
28. Petitioner has sought to invoke the criminal contempt
jurisdiction under the Act of 1971 in the present proceeding.
Petitioner has alleged that the subject property was part of a Terms
of Settlement filed in a civil suit. In such civil suit, party joint
receivers had been appointed by the order dated January 19, 2004.
Such joint receivers had taken possession of the subject property
on June 20, 2004. The respondents had despite orders of
injunction continued selling the properties forming part of the
Terms of Settlement and in possession of the Joint Receivers.
29. In this contempt petition, by an order dated June 2, 2012 the
Court had called upon the respondents to show cause as to why
criminal contempt proceedings should not be initiated against
them. In response thereto, the respondents have filed affidavits
termed as representations.
30. Contempt Rule has not been issued by the Court as against
any of the respondents in this proceeding. At this stage therefore,
we should limit our findings to whether we should issue a Rule
against any of the respondents given the facts and circumstances
of the present case, or not.
31. Sale of the subject property by the respondent No. 1 in favour
of the respondent No. 2 of which respondent Nos. 3 and 4 are
directors has been admitted in course of hearing. Subject property
being under the possession of the Joint Receivers on the date of
sale has been admitted by the respondents. Subject property being
custodia legis on the date of sale has also been admitted.
Justification for the sale and contentions that the respondents
should not be punished for contempt have been raised.
32. In view of the fact that, contempt Rule has not been issued till
date, we propose not to venture into the arena as to whether the
justification for the sale and the contentions of the respondents
that they should not be punished in contempt jurisdiction, at this
stage. Such contentions may be decided, if raised, subsequent to
the issuance of the Rule, if we decide to do so.
33. Vijay Transport and Others (supra) has held that,
interference with properties which are custodia legis is interference
with the administration of justice. That the joint receivers had
taken possession of the subject property prior to the date of sale of
the same by the respondent No. 1 is admitted. Sale therefore has
interfered with the possession of the joint receivers over the subject
property and the same tantamounts to interference with the
administration of justice.
34. Orders passed by Court have to be observed till the same are
set aside by a process known to law. This has been observed in
Tayabbhai M. Bagasarwalla and another (supra), Anita
International (supra) and Robust Hotels Private Limited and
others (supra). In the facts and circumstances of the present case,
possession of the subject property by the joint receivers has not
been denied. Joint Receivers have not been discharged. Order
appointing Joint Receivers has not been set aside. The other issues
as to whether the violation was willful or deliberate may be decided
subsequent to issuance of the Rule and opportunity being afforded
to file affidavit.
35. In Re Prasant Bhushan (supra) Supreme Court has observed
that, any act or omission of acts which tends to scandalize or
lowers the authority of the Court, or where an act which prejudices
or tends to interfere with the course of judicial proceeding or
administration of justice in any other manner, then the courts are
sufficiently empowered to initiate criminal contempt proceedings.
36. In the facts of the present case, petitioner has alleged repeated
and willful violation of orders of court. Civil contempt proceedings
have not acted as sufficient deterrent for the respondents to comply
with subsisting orders of the Court. Despite orders being passed in
civil contempt proceedings, the respondents have willfully and
deliberately interfered with the possession of the joint receivers
appointed by court.
37. Contempt proceedings and that too criminal contempt
proceedings have to be exercised, if required, with utmost caution.
Such jurisdiction has to be exercised sparingly. Courts have to be
satisfied that, exercise of jurisdiction under the Act of 1971 is
necessary so as to uphold the majesty of the court and inspire
confidence in the public.
38. In the facts of the present case, the allegations of violations are
not limited to violations of orders passed by a civil court. The
allegations of violations are that, the respondents despite orders of
the Court passed in a civil suit as also in civil contempt
proceedings, willfully and deliberately violated such orders.
39. We have postponed the decision as to whether any of the
respondents have willfully and deliberately violated orders of the
court or not to a later stage. We have confined ourselves to the
enquiry as to whether a case for initiation of criminal contempt
proceeding has been made out or not. In such limited aspect, the
pleadings filed by the parties have established a requirement for
initiation of criminal contempt proceedings as against the
respondents.
40. In view of the discussions above, it would be appropriate to
issue a criminal contempt Rule as against the respondents.
Criminal contempt Rule therefore be issued as against the
respondents. Such Rule is made returnable on August 20, 2024.
[DEBANGSU BASAK, J.]
41. I agree.
[MD. SHABBAR RASHIDI, J.]
