Metropol India (P) Ltd. vs Parveen Industries India
2009 Latest Caselaw 2525 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI



                  Ex P No. 134/2007, EA No. 589/2007 &
                  CCP (Crl.) No.     /2009 (to be numbered by the Registry)


         METROPOL INDIA (P) LTD.               ..... Decree Holder
                      Through: Mr.Pravin Anand with Ms. Ishani
                      Chandra and Ms. Vaishali Kakra, Advocates.


                           versus



         PARVEEN INDUSTRIES INDIA              ..... Judgment Debtor
                      Through: Mr. Brijesh Gupta and
                      Mr. V.P.Ghiraiya, Advocates.

         CORAM:
         HON'BLE DR. JUSTICE S.MURALIDHAR

         1.      Whether Reporters of local papers may be
                 allowed to see the judgment?                      No

         2.      To be referred to the Reporter or not?            Yes

         3.      Whether the judgment should be reported           Yes
                 in Digest?

                                            ORDER

08.07.2009

1. Suit No.3877 of 1991 was filed by the Plaintiff Metropol India Pvt. Ltd.

(„MIPL‟) against the Defendant M/s. Parveen Industries India complaining

of the violation of its trade mark "Cleanzo" by the Defendant and also

complaining of the infringement of its copy right and the passing off its

goods by the Defendant as those of the Plaintiff. In the said suit an

application, being IA No. 90 of 2000, was filed jointly by the parties for Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 1 of 25 recording a compromise and for a decree to be passed in favour of the

Plaintiff and against the Defendant in terms of the settlement. Among the

terms of the settlement which were set out in the application were the

following:

"1. The defendant acknowledges the plaintiff to be the registered proprietor of the trademark CLEANZO registered in class 3 under Registration No. 335807.

2. The defendant also acknowledges the plaintiff to be the owner of copyright in the label titled CLEANZO, as described in the plaint, bearing the registration No. A- 11008/74. The defendant undertakes not to infringe the said copyright in future.

3. The defendant undertakes not to use the trademark CLEANJO or any other mark deceptively similar to the plaintiff‟s trademark CLEANZO in relation to any goods falling in class 3 and class 5. However, the defendant is entitled to make use of the trademark PRAVEEN‟S CLEANER.

4. The defendant shall stop using the colour red or any shade of the colour red in the colour scheme of the cleaning preparation manufactured and marketed by it. The defendant has now started to use the carton and packaging a photograph of which is annexed herein as Annexure A.

5. The defendant undertakes that it will stop using the logo similar to the oval logo in which the word Metropol appears on the cleaning preparation that is being manufactured and marketed by it.

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 2 of 25

6. The defendant undertakes that it shall forthwith withdraw C.O. No. 11 of 1990 filed by it against the plaintiff herein.

7. The defendant will withdraw all the oppositions filed by it against the plaintiff, which are pending before the Registrar of Trademarks.

8. The defendant shall withdraw its trademark application for the word CLEANJO or any other trademark application filed by it which m ay conflict with the aforementioned terms.

9. The plaintiff hereby settles the criminal complaint filed by it against the defendant bearing FIR No. 129/90 and FIR No. 40/90 pending in the court of Metropolitan Magistrate, New Delhi and shall withdraw the same or not prosecute/press the same, as the position may be in law.

10. In terms of the aforesaid undertakings given by the defendant, the plaintiff forgoes its claim for rendition of accounts of profits and costs.

11. The above undertakings have been given by Mr. Pravin Kumar Sabharwal, the sole proprietor of the defendant firm and shall be binding on all his legal heirs and assigns.

12. It is therefore prayed that the present memo of compromise be recorded and a decree may be passed in favour of the plaintiff and against the defendant by this Hon‟ble Court in terms of the above settlement."

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 3 of 25

2. The application was supported by the affidavits of both the Plaintiff as

well as the Defendant. On behalf of the Defendant, Parveen Sabharwal son

of late Shri B.N. Sabharwal, as proprietor of the Defendant, stated on

affidavit that he had read the contents of the application and that the facts

stated therein were true to his knowledge and that he adopted the contents of

the accompanying application as part and parcel of his affidavit. Parveen

Sabharwal also made a statement before the Court on 27th January 2000 soon

after the statement of the Plaintiff was recorded. The said statement reads as

under:

"Statement of Sh. Praveen Sabharwal son of late Shri Badri Nath aged 50 years resident of 3239, Gali School Wali, Paharganj, New Delhi on SA.

I have heard the statement of the plaintiff. The same is correct. Ex. C-1 is signed by me at points "C" and "D". It is also signed by my counsel at point "E". Ex. C-1 is also supported by my affidavit, which is Ex.C-

3. I Shall abide by the terms, as set out in Ex.C-1."

3. In terms of the statements made by the parties the following order was

passed by the Court on 27th January 2000:

"S.No. 3877/91

Mr. Sai Krishna, counsel for the plaintiff seeks leave of the Court to file a fresh power of attorney. Let that be taken on record.

IA 90/2000 in Suit No. 3877/91

This is an application under Order XXIII Rule 3 CPC. Let the statement of the parties be recorded.

ORDER Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 4 of 25 Statement of Sh. Satya Prakash, Managing Director of the plaintiff company and Sh. Praveen Sabharwal, sole proprietor of the defendant company have been recorded separately. Ex.C-1 is signed by the parties and their respective counsel. It is also supported by the affidavit of the parties. Parties shall remain bound by the terms as set out in Ex.C-1.

The suit is disposed of in terms of Ex.C-1."

4. The present execution petition has been filed by the Plaintiff {Decree

Holder (DH)} alleging that the Defendant [Judgment Debtor (JD)] has

continued to trade in cleaning preparations under the mark "Parveen‟s

Cleanjo" and written in a shade of red colour, contrary to the terms of the

compromise. It is further contended by the DH that the JD also

surreptitiously got the trade mark "Parveen‟s Cleanjo" registered under

699710 in Class 5. It was only much later that the Trade Mark Registry by

an order dated 4th July 2003 treated the application of the JD for registration

of the trade mark "Cleanjo" as withdrawn in view of the terms of the

compromise entered into between the parties. Consequent thereto, the DH

filed rectification proceedings in Application No. 699710 in Class 5 which is

stated to be pending in the Trade Mark Registry. It is submitted that

although in terms of the compromise the Defendant was to withdraw his

trade mark application for the mark "Cleanjo" soon after 27th January 2000

when the suit was decreed, the JD filed the requisite form in the Trade

Marks Registry only in April 2009. Learned counsel for the JD has today

produced a copy of a receipt issued by the Trade Mark Registry indicating

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 5 of 25 that the JD has on 21st April 2009 filed Form TN 35 seeking cancellation of

the registered trade mark. It is apparent therefore that till 21 st April 2009 the

JD did not take any steps to comply with the specific term of the settlement

in this regard, as recorded in the compromise decree.

5. The DH has in these proceedings also filed EA No. 589/2007 under Order

XXXIX Rule 2A CPC. On 14th November 2008 this Court passed the

following order:

"14.11.2008

Ex. 134/2007 and EA No.589/2007 (under Order 39 Rule 2A of the CPC)

The defendant/judgment debtor had entered into a compromise with the plaintiff/decree holder whereby the defendant/ judgment debtor had agreed not to use the trademark "CLEANJO" or any other mark deceptively similar to the plaintiff‟s mark "CLEANZO" in relation to goods falling in class 3 and 5. The defendant was however permitted to use the trademark "PRAVEEN‟S CLEANER". The defendant had also agreed to stop using the colour red or any shade of colour red in the colour scheme of the cleaning, preparation, manufactured and marketed by them. This court vide order dated 27th January, 2000 disposed of the suit in terms of the compromise application.

It is the case of the decree holder that the defendant/judgment debtor is continuing to use the Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 6 of 25 trademark "PRAVEEN‟S CLEANJO" in relation to the aforesaid goods and the same is in violation of the decree of this court. Notice of the execution and the application was ordered to be issued to the judgment debtor and neither any response has been filed nor anyone is present.

However, at this stage, the counsel of the judgment debtor has appeared and states that complete set of papers were not received by the judgment debtor. However, the counsel is unable to state as to when the judgment debtor was served and as to why the demand, if any, for complete paper book was not made earlier.

Though, the decree holder has also applied for Local Commissioner, I feel that even if the averments of the decree holder are to be believed, the appointment of the Local Commissioner now when the counsel for the judgment debtor has appeared is likely to serve no purpose.

The decree is in the nature of a permanent injunction, which, under Order 21 Rule 32 of the CPC is executable by imprisonment. The judgment debtor is directed to be present in person before this court on 16th December, 2008."

6. Thereafter on 16th December 2008 the following order was passed:

"16.12.2008

Ex. No.134/2007 and EA No.589/2007 (under Order 39 Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 7 of 25 Rule 2A of the CPC.

The judgment debtor has not appeared in spite of direction. The counsel for the judgment debtor states that the judgment debtor is suffering from high cholesterol, high blood pressure and high blood sugar. There does appear to be any valid reason for non-appearance of the judgment debtor before the court. Last opportunity is given to the judgment debtor to appear on 20th February, 2009 failing which coercive steps shall be taken."

7. On 15th January 2009 the JD filed a reply to the execution petition

supported by his affidavit. He also filed a reply to the application under

Order XXXIX Rule 2A. Inter alia the stand of the JD in the reply was that

"it is absolutely wrong to suggest that Defendant/Judgment Debtor has

started manufacturing cleaning preparations under trade mark "Parveen‟s

Cleanzo" and that the Defendant has been continuously using the trade mark

"Parveen‟s Cleanjo" in the packaging of the plastic bottle and not in a tin

can since April 2000 and therefore the Defendant is not violating the terms

of the settlement in Suit No. 3877 of 1991, therefore, the petition is liable to

be dismissed. In para 7 of the reply it was stated:

"7. ...... It is absolutely wrong to suggest that defendant/judgment debtor has started manufacturing cleaning preparations under the trade mark PARVEEN‟S CLEANJO and that too defendant has been continuously using the trade mark PARVEEN‟S CLEANER in the Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 8 of 25 packaging of Plastic Bottle not in a Tin Box since April 2000, therefore, the defendant is not violating the terms of settlement as set out in IA No. 90/2000 in Suit No. 3877/91, therefore, petition is liable to be dismissed."

8. In the reply to the application also it was denied that the JD was violating

the terms of the settlement recorded in IA No. 19 of 2000 in the Suit No.

3877 of 1991.

9. On 20th February 2009 the said replies were considered by this Court.

What transpired in Court on that day is recorded in the order passed on that

day which reads as under:

"20.2.2009

Ex. No.134/2007 and EA No.589/2007 (under Order 39 Rule 2A of the CPC)

The judgment debtor as identified by his counsel is present in person. The judgment debtor has also filed a reply to the execution denying the violation/breach of the consent decree and the averments in the execution petition. The counsel for the plaintiff has handed over in the court a carton stated to be marketed by the defendant and containing the words "Parveen‟s Cleanjo". It is deemed expedient to record the statement of the judgment debtor. The statement has been recorded.

The counsel for the plaintiff on instructions from representative of his client disputes the statement made by the judgment debtor in the court. In Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 9 of 25 the circumstances, it is deemed expedient to appoint a court commissioner to visit the premises i.e. 3239/1, Gali School Wali, Paharganj, New Delhi-110055 and 1344/4, Chuna Mandi, Paharganj, New Delhi-110055 where the judgment debtor has deposed his goods to be stocked just now to find out whether the statement of the judgment debtor is correct or not. Mr. Kapil Sabharwal, son of the judgment debtor is also present in the court. As soon as this proposal for sending the court commissioner to the premises today itself was mooted he was seen leaving the court room and has been called back. He was also found to be in possession of a cell phone which the litigants are not permitted to carry inside the court rooms.

The judgment debtor who is still in the witness box at this stage on being prompted by his counsel to come clean as to whether the carton as denied by the judgment debtor in his statement on oath would be found in the premises to be visited by the court commissioner or not, now states that the said carton would be found in his premises if the court commissioner is to visit the same just now.

It is deemed expedient to record the statement of judgment debtor again.

The statement has been recorded.

From the aforesaid, it is clear that the judgment debtor has not only filed a false reply with affidavit to the execution but has in his statement before this court also deposed falsely on oath. The counsel for the decree holder states that the judgment debtor has in the Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 10 of 25 second statement recorded today yet again deposed falsely about the goods, photographs of which have been annexed to the execution application being not his and the decree holder will be in a position to prove the same.

Before meeting out any punishment to the judgment debtor for the conduct aforesaid, it is deemed expedient to issue a show cause notice to him as to why proceedings should not be initiated against him and as to why he should not be punished for false affirmation of affidavit and false statement made in the court and which also amounts to contempt of this court. The reply to the show cause notice supported by an affidavit be filed within ten days. For such conduct of the judgment debtor, conditional costs of Rs.15,000/- payable to the Delhi Legal Services Authority payable within ten days are also imposed upon the judgment debtor.

List on 13th March, 2009 for further consideration. The decree holder may in the meanwhile file a rejoinder to the reply of the judgment debtor to the execution.

In view of the above, it is not deemed necessary to now issue commission.

The JD to remain present on all further dates unless expressly exempted."

10. Two statements made by the JD before this Court, which have been

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 11 of 25 referred to in the said order, require to be set out and they read as under:

"Statement of Shri Parveen Kumar Sabharwal aged about 55 years S/o Late Shir Badri Nath, R/o 1344/4, Chuna Mandi, Paharganj, New Delhi - 110 055 on S.A.

The carton which for identification is Exhibit C-1 is not mine. I am still carrying on the business of manufacturing and selling the deodorant under the name PARVEEN‟S CLEANER. I am carrying the said business from 3239/1, Gali School Wali, Paharganj, New Delhi-110055. The goods are lying as of today also at the said premises. I also stock my goods at 1344/4, Chuna Mandi, Paharganj, New Delhi-110055 and at no other place. The goods as in carton Exhibit C-1 will not be found in my premises. I sell my goods to a large number of dealers.

Second statement of Shri Parveen Kumar Sabharwal aged about 55 years S/o Late Shir Badri Nath, R/o 1344/4, Chuna Mandi, Paharganj, New Delhi - 110 055 on S.A.

I now say that goods as in Exhibit C-1 would be found by the court commissioner if he visits the premises just now. With the assistance of my son I state that about 1000 cartons would be lying in the premises. I do not remember since when I have been carrying on business in the carton as Exhibit C-1. Again said, I have been carrying on business of sale of goods in such cartons since the year 2008.

I have seen the photographs annexed to the execution application and which for identification are Exhibit C-2 and C-3 they are not of my product."

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 12 of 25

11. Pursuant to the show cause notice issued to the Judgment Debtor as to

why he should not be punished for the contempt, he filed a reply on 6 th

March 2009. Thereafter as on 13th March 2009, the following order was

passed:

"The judgment debtor is present in person. He has not deposited the conditional costs of Rs.15,000/- with the Delhi Legal Services Authority as directed on 20th February, 2009, as yet. No explanation also for not complying with the order has been furnished. The counsel for the judgment debtor states that the judgment debtor is today carrying Rs.15,000/- with him.

The judgment debtor has filed a reply to the show cause notice issued in the order dated 20th February, 2009. A perusal of the said reply shows that no explanation whatsoever is offered therein for filing the reply dated 9 th January, 2009 to the execution and which reply was proved to be false as per the statement of the judgment debtor recorded on 20th February, 2009. Further, the reply giving an explanation to the false statement made on oath on that date also gives a reason contrary to what transpired in court and also as recorded in the order sheet of that date. In the circumstances, before hearing the judgment debtor further, it is deemed expedient that the judgment debtor deposits the sum of Rs.15,000/- which he was directed to deposit on 20th February, 2009 with the Delhi Legal Services Authority on or before 16 th March, 2009 and also pays costs of today‟s adjournment of Rs.15,000/- to the counsel for the plaintiff before the Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 13 of 25 next date.

I have inquired from the counsel for the decree holder as to the benefit accruing to the judgment debtor by using the mark of the decree holder. The counsel for the decree holder, on instruction from the representative of the decree holder present in court states that while the product of the decree holder sells for about Rs.150/- and the judgment debtor is selling the infringing product at the same rate, the price of a similar unbranded product would be in the region of Rs.60 to Rs.80. The costs aforesaid have been awarded in the light of the aforesaid facts.

List on 27th March, 2009."

Thereafter the JD filed an unconditional apology in response to the show

cause notice. The DH filed a rejoinder to the reply filed by the JD to the

execution petition. Thereafter on 8th May 2009 the following order was

passed:

"Ex.P 134/2007

The counsel for the judgment debtor/contemnor states that he is unwell and seeks adjournment.

List on 21st July 2009.

In the present execution show cause notice was issued by the judgment debtor on 20th February 2009 as to why he should not be punished for contempt of court. The judgment debtor has filed an affidavit pursuant thereto. Even though the judgment debtor has not applied under Section 14 (2) of the Contempt of Courts Act it is deemed expedient to place the matter before Hon‟ble the Chief Justice for directions.

List the execution before this Court on 6th July 2009."

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 14 of 25

12. On 6th July 2009 the matter was placed before this Court pursuant to the

directions issued in the administrative side consequent upon the order dated

8th May 2009 passed by the predecessor Judge. This Court was not satisfied

inter alia with the "unconditional apology" to the show cause notice issued

by this Court filed by the JD on 21st March 2009. It was noticed that the

said "unconditional apology" proceeds on the basis that the only issue was

about the JD having used the trade mark of the DH in respect of

Naphthalene balls which was referred to in the order dated 20th February

2009 passed by this Court. It is plain to this Court, particularly from the

rejoinder filed by the DH to the reply filed by the JD to the execution

petition, that the JD was using the red colour background for his labels

"Parveen‟s Cleaner" and also using the mark "Cleanjo" by affixing a label

reading "Parveen‟s Cleanjo" in a combination of red and white colours on 5

ltrs. cans in which he was selling the cleaning liquid. Likewise even on the

tin cans of 5 ltrs., (The photographs of which are enclosed with the

replication and specimen samples of which have been produced in Court

today) it appears that the JD has been using the mark "Parveen‟s Cleanjo".

Learned counsel for the JD attempted to submit that these marks on the tin

cans and the plastic 5 ltrs. can were not used by him and they did not contain

any date of manufacturing.

13. However pursuant to the order passed by this Court on 6 th July 2009 the

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 15 of 25 JD filed yet another "unconditional apology" before this Court today. The

same has been taken on record. The said apology which is in four paragraphs

reads as under:

"The Judgment debtor, above named humbly submits as under:

1. That the decree holder herein filed suit for permanent injunction against the defendant/JD for infringement of trade mark "CLEANZO" registered under Class 3 vide registration No. 335805. However, the matter between the parties was resolved by way of compromise and modalities in respect thereof were set out in application under Order 23 Rule 3 CPC. Consequently, the JD was disposed of vide consent decree dated 27.01.2000. The relevant and substantial extract of the compromise application is reproduced as under:

"3. The defendant undertakes not to use the trademark CLEANJO or any other mark deceptively similar to the plaintiff‟s trademark CLEANZO in relation to any goods falling in class 3 and class 5. However, the defendant is entitled to make use of the trademark PRAVEEN‟S CLEANER.

4. The defendant shall stop using the colour red or any shade of the colour red in the colour scheme of the cleaning preparation manufactured and marketed by it. The defendant has now started to use the carton and packaging a photograph of which is annexed herein as Annexure A.

8. The defendant shall withdraw its trademark application for the word CLEANJO or any other trademark application filed by it which m ay conflict with the aforementioned terms."

2. The judgment debtor humbly tenders an unconditional and unqualified apology about his conduct before this Hon‟ble Court on 20.02.09. However, it is submitted that the JD is an

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 16 of 25 illiterate person and has been engaged in the business of floor cleaners and other allied toiletries products for earning his livelihood. It is humbly submitted that he is also suffering from hypertension, high blood pressure and high cholesterol. Thus, his conduct before this Hon‟ble Court was unintentional and was not bonafide but he became nervous on that day because of his severe diseases. He was also not aware about his examination to be conducted on that very day. The judgment debtor humbly submits that he has/had high esteem and respect to the orders as well as directions issued by this Hon‟ble Court. He never dare disrespect any of the order passed by this Hon‟ble Court.

3. The Judgment debtor humbly submits that mistakenly he has violated the clause 4 and 8 of the application under Order 23 Rule 3 vide which the modalities of settlement were arrived at between the parties. The JD submits that as per the question of clause 3 is concerned, he has used the word "from the house of PARVEEN‟S CLEANJO" in relation to naphthalene balls falling in class 1 of the international classifications. It is submitted that he has surrendered his Registration Certificate vide Registration No. 699710 before the Registrar of Trademarks which was inadvertently issued by the Ld Registrar.

4. The judgment debtor humbly submits that he has been dealing in around 20 products out of which 3 or 4 fall within the ambit of the compromise application. However, due to paucity of time, the JD could not segregate the sale details as well as profit earned from the sale of the said goods. However, he undertakes to produce all the bill books as well as the other relevant records before this Hon‟ble Court as and when

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 17 of 25 required by this Hon‟ble Court for the purpose of their examination. The sales tax returns as well as income tax balance sheets the reflecting the composite sale figure as well as the profits earned are annexed herewith."

The aforementioned statement of "unconditional apology" is supported by

an affidavit of the contemnor Parveen Sabharwal, who is present in Court

today.

14. It appears to this Court that the JD has in the above statement has finally

admitted to having violated the terms of settlement on the basis of which the

decree was passed by this Court. As also noticed earlier, it is only on 21st

April 2009 that he finally filed the necessary form TN 35 in the Trade Mark

Registry seeking cancellation of the trade mark in respect of the mark

"Cleanjo".

15. As pointed out in the order dated 20th February 2009 passed by this

Court there are two distinct aspects of the matter. The first relates to the JD

being in breach of the terms of the settlement on the basis of which the

decree dated 27th January 2000 was drawn up. There can be no manner of

doubt from what has transpired and noticed hereinbefore that the JD has in

breach of the said terms of settlement been continuing to use the trade mark

"Parveen‟s Cleanjo" and "Cleanjo" for his cleaning preparations, continuing

to use the colour red or a shade of colour red in the colour scheme of the Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 18 of 25 cleaning preparations marked by him, while holding out on its other related

products that those products are from the house of "Parveen‟s Cleanjo" and

has also not taken steps to seek cancellation of its trade mark in respect of

"Cleanjo" till 21st April 2009. In other words, the JD has acted with

impunity in wilfully violating the terms of the settlement on the basis of

which the judgment and decree was passed in Suit No. 3877 of 1991.

16. As regards the JD being in breach of the terms of the decree the

provisions of Order XXI Rule 32 CPC will straightway stand attracted. The

course open to the DH is to enforce the decree of injunction by seeking the

detention of the JD in civil prison or by attachment of his property or by

both. Under Order XXI Rule 32 (3) where any attachment under sub-rule

(1) or (2) has remained in force for six months and if the JD continues to be

in disobedience of the decree, the DH can apply to have the attached

property sold, and out of the proceeds of the sale, the Court may award to

the DH such compensation as it thinks fit, and shall pay the balance to the

JD on his application.

17. It is submitted by Mr. Parveen Anand learned counsel for the DH that

considering the length of time for which the JD has been in breach of the

terms of the decree, an order of mere attachment of the property of the JD

would hardly constitute a deterrent and that in the event the JD ceases to be

in breach soon after the passing of the order of attachment, the option of

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 19 of 25 getting the attached property sold in terms of Order XXI Rule (3) would also

not be available to the DH. He accordingly prays for an order of civil

imprisonment as that alone would prove a deterrent not only to the JD in the

present case but generally as well.

18. As regards the JD being in contempt of the Court, it is submitted by

Mr. Anand that the making of a false statement on affidavit as well before

the Court would straightway attract the provisions of Section 2(c) of the

Contempt of Courts Act, 1971 read with Section 12 thereof. It is submitted

that in the instant case the procedure of a show cause notice being issued to

the contemnor and his reply being considered have been duly complied with.

He relies upon the decision in Dhananjay Sharma v. State of Haryana AIR

1995 SC 1795 to submit that a strict view must be taken of the false

statement made before the Court, which has the tendency of interfering with

the administration of justice. It is submitted that this would be independent

of any other punishment to which the contemnor may be subject under the

provisions of the Indian Penal Code.

19. Appearing for the contemnor and JD, Mr. Brijesh Gupta learned counsel

submits that the sentencing of the JD to civil imprisonment should be the last

option; if the decree can be satisfied otherwise by attaching the property of

the JD, that should first be resorted to . It is submitted that at present the JD

is operating from two premises and his business is not confined to the

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 20 of 25 cleaning preparations "Parveen‟s Cleaner" or "Parveen‟s Cleanjo". It is

submitted that since the JD deals in a range of products, the attachment of all

the JD‟s stocks would be uncalled for. As far as the immovable property is

concerned both the premises from where the JD operates are rented

premises. It is submitted that one more opportunity should be given to the

JD to stop being in breach of the terms of the settlement and only thereafter

should any coercive steps be taken against him. It is submitted that the

health condition of the JD is such that no civil imprisonment should be

directed.

20. This Court finds that the decree was passed by this Court way back on

27th January 2000. For a period of over nine years now the JD has been in

breach of the terms of the settlement with impunity. A clear picture of the

exact profit earned by the JD by selling products including the cleaning

preparations by violating the terms of the decree is not easily assessable

from the copies of the income tax returns and sales tax returns filed by the

JD. It is pointed out by learned counsel for the DH that if the disclosed

figures of sales were to be believed it would mean that the JD has been

making sales to the extent of Rs.25,000/- per month of all his products. It is

submitted that this is highly unrealistic.

21. This Court at this stage does not wish to examine the question of the

exact profits generated by the JD by violating the terms of the decree. As far

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 21 of 25 as the present proceedings are concerned, it is apparent that even if

attachment is ordered of the entire stocks of the JD at the two places of his

business, that by itself may not constitute a deterrent, particularly where the

breach of the terms of the settlement has continued for a period of over nine

years. This Court finds merit in the contention of the learned counsel for the

DH that unless there is some order of detention of the JD in civil prison, no

effective execution of the decree can be achieved.

22. The Court is mindful of the provisions contained in Sections 51, 58 and

60 of the CPC. Order XXI Rule 32 being a specific provision to deal with

the situation in hand, the only course available to the Court, upon finding

breach of the terms of the decree by the JD, is to either order his detention in

the civil prison or by attachment of the property of the JD or by both. There

is no bar under Section 60 CPC for attaching the stocks of the JD available

at both his godowns. Unlike the conditions stipulated in Section 58 CPC as

regards the maximum term of civil imprisonment, in the event of the

execution of a decree for payment of money, there appears to be no such

restriction as regards a decree for injunction. Nevertheless, keeping in view

the submissions made on behalf of the JD this Court directs as under:

(i) For the breach of the terms of the decree, in terms of Order XXI

Rule 32, the JD is sentenced to civil imprisonment for a period of 2

weeks i.e. 14 days from the date of his surrender. This order will

remain suspended for a period of one week from today to enable the

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 22 of 25 JD to seek further appropriate remedies by way of appeal. If the JD

does not file any appeal within a period of one week from today i.e.

on or before 15th July 2009 and by that date there is no stay of the

present order as regards the sentence awarded to the JD, this part of

the order would immediately come into effect.

(ii) The property of the JD, as is evident from the income tax returns

filed by the JD for the year 2008-09 and a copy of which has been

placed on record, includes the entire stocks of the business of the JD

lying at the two premises at 3239/1, Gali School Wali, Pahar Ganj,

New Delhi-110055 and 1344/4 Chuna Mandi, Paharganj, New Delhi

as well as a Maruti Car bearing No. DNJ-0132. This entire property

shall hereby stand attached. The bailiff of the Court will immediately

proceed to both the premises on or before 11th July 2009 to effect the

attachment. The aforementioned properties will be placed under seal

and will be subject to further orders passed by this Court. The car will

be locked and keys taken over by the bailiff. It will be open to the

bailiff to seek the assistance of the SHO, Police Station Pahar Ganj to

effectuate this part of the order. The bailiff will file a report of

compliance in this Court within one week.

23. As regards the contempt proceedings, this Court is not persuaded by

either of the unconditional apologies offered by the JD. Even in the last

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 23 of 25 unconditional apology filed by the JD today, it is not clear whether the JD

has undertaken not to continue to be in breach of the decree. In any event as

already recorded in the order dated 13th March 2009, the JD is guilty of

filing a false reply and then giving explanation to the false statements made

on oath. The JD was found to have given a reason for making a false

statement contrary to what transpired in Court. All of this is recorded in the

orders dated 20th February and 13th March 2009. There can be no manner of

doubt that the JD has made false statement before this Court which has had

the tendency of interfering with the administration of justice. Following the

judgment of the Supreme Court in Dhananjay Sharma, this Court is of the

view that the JD, for being in contempt of the Court, should be sentenced to

simple imprisonment for two weeks. It is made clear that this sentence of

imprisonment will run concurrent with the civil imprisonment ordered by

this Court for the JD being found in violation of the terms of the decree. In

other words, the serving out of the civil imprisonment for two weeks will be

treated as period served towards the simple imprisonment ordered in terms

of Section 12 of the Contempt of Courts Act, 1971. The sentence of two

weeks of simple imprisonment awarded to the JD for being in contempt of

Court will also stand suspended for a period of one week from today to

enable the contemnor to file an appeal. If no order staying the order of this

Court is passed by a superior Court, this part of the order will immediately

come into effect.

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 24 of 25

24. E.A. No 589/2007 and Contempt Petition (Crl.) No......../2009 stand

disposed of in the above terms.

25. The Execution Petition No. 134 of 2007 be placed on board before this

Court on 15th February 2010.

26. The JD is directed to pay the costs of Rs.20,000/- to the DH as costs for

these proceedings within a period of four weeks from today.

27. A copy of this order be sent to the Registrar (Original) of this Court

for issuing necessary directions to the bailiff to immediately carry out the

directions issued.

28. A copy of this order be sent to the SHO, Police Station Pahar Ganj,

Delhi for taking steps for apprehension of the JD and for consigning him to

the civil prison on the expiry of one week from today, subject of course to

the orders of the superior Court.

29. Order dasti to the parties.

S.MURALIDHAR, J JULY 08, 2009 dn

Ex.P. No. 134/2007 & CCP (Crl.) No....../2009 page 25 of 25