Gogo Rani vs State
1995 Latest Caselaw 245 Del

JUDGMENT

Jaspal Singh, J.

(1) Along with a petition moved in October G 1992 under sections 14 and 17 of the Arbitration Act, there was an interim application bearing No. 73757 of 1992 on which an exparte order was passed on January 21, 1993. The order was as under : Ia 13757192 Notice to respondent No. 1 for 6-5-1993. Meanwhile, the said respondent is restrained from interfering in any manner with the exclusive peaceful possession and enjoyment of the premises bearing No. Wz 8-A, Kirti Nagar, New Delhi. Petitioner to comply with the provisions of Order 39 rule 3, Civil Procedure Code within a week. dusty."

(2) Consequent upon service of the order so passed, the respondent moved an application for its vacation. It is that application (IA 2948193) which has led to this order.

(3) Before I come into grip with the arguments advanced, a brief commentary on the backdrop may be needed. Here it is.

(4) The history of this acrimony has its roots in the business partnership entered into between the parties on May 30, 1986. The union, if I may use that word, soon started facing rough weather. Since the partnership deed happended to contain a clause envisaging resort to arbitration, the petitioner claims that the matter was referred to Hardev Singh (Respondent No. 2) to enter into the reference as sole arbitrator and to make the award and that he did make the award on September 29, 1992 after "hearing the parties". And, it is this assertion of the petitioner which, during arguments, witnessed lot of firework for, as per respondent No. 1 Rajinder Singh, neither Hardev Singh (Respondent No, 2) entered into the reference nor made the award in question. His case is that the so-called award is a fabricated document containing forged signatures of Hardev Singh.

(5) Urely, if it is shown prima facie that the award is nothing but a calculated forgery, it would constitute a ground compelling enough to have a fresh look at the exparte interim injunction obtained on its basis. It may perhaps be of some significance to mention that on April 27, 1994 when the matter was partly heard by my esteemed brother Sat Pal J. he found that the award did not appear to have been filed by Hardev Singh. I venture to guess that my said brother too perhaps felt intrigued over the claim and count

(6) Consequent upon the order of April 27, 1994 to which reference has already been made in the preceding paragraph, Hardev Singh put in appearance. On May 4, 1994 the statement of Hardev Singh was recorded on oath. When shown the award, he said he was not aware of its contents though he did admit that it bore his signatures at point Mark A. He gives anexplanation. Let us have it in his own words : - "THE husband of the plaintiff Mr. Malik used to contact me in connection with my printing work. He used to come to me to get the proofs corrected. The petitioner and respondent No. I had never approached me for adjudication of any dispute, though now I have come to know that my name has been' referred to as a named Arbitrator in the partnership deed executed between the petitioner and respondent No. 1. I have not filed the award dated 29th September, 1992 in this Court. The signatures at point A on the award dated 29th September, 1992 were obtained by the husband of the plaintiff from me when the third page of the said award was blank."

It is not that Hardev Singh was left at that. He was allowed to be cross-examined by the petitioner though it was limited to the filing of the award. He denied having filed the award. When, shown the application dated November 2, 1992 recording the filing of the award, he stated that it did not bear his signatures at points B and C. He denied his signatures even on the index. He said he v/as not even in Delhi on November 3, 1992 when the award is purported to have been filed by him.

(7) Does this statement ring something ? Let me make one thing clear and' it is that at this stage I am not finally adjudicating the matter. Surely this is no stage to do so. It is an appraisal of what has been brought on, the record to have reappraisal of the ex-parte injunction order with a clears vision and I do feel that on account of what has come to be revealed the order needs to be varied.

(8) However, Mr. Adlakha appearing for the petitioner wants me to stay my hands. He says that the respondent No. I has not obeyed the injunction order and as such has committed contempt of this Court. According to him till respondent No. I purges himself of the contempt. I cannot proceed further. In support he has relief Upon Rukmani Rani v. Bhimdev Chopra 1980(1) Rajdhani Law Reporter (Note) 49.

(9) Undoubtedly, complete judgment has not been placed before me. However, the published report does' go to show that prima facie the injunction order appeared to have been violated. There was an admission to that effect by the alleged contemner himself. This is what. distinguishes the case before me. Though the published report shows that the learned single judge of this court in the said case had placed reliance on Para 73, Vol. 8 3rd ed. and Hadkinson v. Hadkinson 1952 (2) All (2) Er 567.

(10) In Halshbury's Laws of England itself it is observed and in the same very paragraph : "THUS a party in contempt may apply to purge the. contempt, he may apply with a view to setting aside the order in which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. Even the plaintiff in contempt has been allowed to prosecute his action, when the defendant had-not applied to stay the proceedings. Probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience."

This very paragraph finds its echo in the observations made by Lord Dennig in Hadkinson v. Hadkinson (supra) itself. It was observed : . "THE court would only refuse to hear a party to a cause when the contempt impeded the course of ju.stice by making it more difficult for the court to ascertain the truth or to enforce its orders and there was no other effective means of securing his compliance. The court might then .in its discretion refuse to hear him until the impediment was removed or good reason was shown why it should not be removed."

I may hasten to add that even in Hadkinson v. Hadkinson disobedience of the order of the court was not disputed, a fact which we can ill afford to ignore. It may also be noticed that in the said case the court came to' the conclusion that it was impossible for it to enforce its orders in respect of the child who had been removed to Australia in defiance of its order.

(11) The position thus boils down to his. It is a strong thing for a court to refuse to hear a party to a cause. Such refusal is to be justified by grave considerations of public policy. The fact that a party to a cause has disobeyed the order of the court cannot in itself bs a bar to his being heard. The court can refuse to hear him if there is disobedience and it 6 such that it impedes the course of justice and there is no other effective means of securing his compliance. Surely, the case before me cannot be said to fall in that category. Even otherwise, for the present it cannot be said that respondent No. 1 has been prima facie guilty of contempt. There is only an allega.t.ion, unsupported and unsubstantiated. It is based on two complaints lodged with the police and that too at a time when the statement, of Hardev Singh stood already recorded and the application for vacation of the order was being heard. The timing of the police reports' is thus not without significance. In any case an order obtained on the basis of an award which is shrouded in grave suspicion and which prima facie rather appears to be a fabrication, cannot be allowed to sustain itself merely on the basis of prima facie self-serving reports to the police followed by a contempt petition.

(12) What should then be done ? I proceed to answer it, I may mention that on July 25,1994 brother Sat Pal J. had directed the plaintiff to maintain accounts of the business and to tile statement of account. Consequent thereupon a statement of account was filed from June 1, 1994 though the plaintiff was required to file it from January 21, 1993. In any case, it is mentioned in the accompanying affidavit that there has been no sale since June 1, 1994. In short thus the business is at a standstill since June 1, 1994. The statement merely shows that assets are being eaten away in tea, snacks, conveyance charges and in disbursing salaries to three workers who appear to be sitting idle. Surely, this is a very unsatisfactory state. Thus the question posed at the commencement of this paragraph has to be answered by not only keeping in view the circumstances in which the ex-parte order was obtained but peeping in view also what has been noticed above. It is important to note that the respondent assets his share in the business and claims that it was he who had taken the premises on rent and had raised the construction. Incidentaily, even the Award recognises the right of the respondent in the enjoyment of the premises. The parties are at loggerheads. They cannot work together. Justice and convenience demand the appointment of a Receiver. Neither of. them, nor both of them, can be appointed as Receivers. He will have to be an independent and respectable person. I, therefore, appoint Mr. Rajiv Awasthi, Advocate as Receiver to take immediate possession of the premises and the machinery lying therein with the help of the local police, if need be, and so also the assets, if any, of the firm. He shall thereafter make a report to the court, preferably within a period of two months from the day he takes over about the business prospects so that further appropriate orders are made. The appointment is till the final acceptance or rejection of the Award. He shall, for the present, be paid Rs. 70001- as fee by the petitioner which may ultimately be adjusted towards costs of the suit. The ex-parte order of injunction stands vacated.