Capital Land Builders(Pvt.) Ltd. ... vs Shaheed Memorial Society & Ors.
2009 Latest Caselaw 2226 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%     I.A. Nos. 4764/08, 3329/08, 10609/07 & 6938/07

                            IN

               C.S. (OS) No. 1906 of 2006

+                              Date of Decision: 25th May, 2009


#Capital Land Builders (Pvt.) Ltd.& Ors.       .....Plaintiffs
!                Through:Mr.Vijay Datar and Mr.Vineet Jhanji,
                                                  Advocates

                  versus

M/s Shaheed Memorial Society & Ors.        .....Defendants
^               Through: Mr. R.M.Sinha & Ms. Anuradha
                Chaudhary, Advocates for four contemnors

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?

                               ORDER

P.K.BHASIN, J:

Vide order dated 20th April,2009 defendant no.3 Arjun

Chaudhary, defendant no.4 Ajay Yadav, defendant no.5 Abdul

Haque Farhan and defendant no.6 Surender Pal were found

guilty of contempt of Court for their having violated the ex-parte

injunction order dated 6th October,2006 passed in this suit. The

suit was filed by the plaintiffs to have the right of management of

I.A. Nos. 4764/08, 3329/08, 10609/07

the affairs of the plaintiff no.1 Company decided by this Court.

Plaintiffs no.2-4 were claiming that they had the right to manage

the affairs of the said Company and not the

defendants/contemnors and some of their co-defendants while

the contemnors and some of their co-defendants were claiming

that they only were having the right to manage the affairs of the

said Company and not the plaintiffs no.2-4. That assertion of the

right by the contemnors and others necessitated the filing of the

present suit for permanent injunction etc. Vide order dated 6th

October, 2006 the four contemners and other defendants were

restrained from representing themselves as shareholders/

representatives of plaintiff no.1, M/s Capital Land Builders (Pvt.)

Ltd. However, the contemners and some other defendants

allegedly violated that injunction order by not only claiming

themselves as the Directors of plaintiff no.1 Company but also by

selling a large number of plots of this Company in Kailash

Nagar Colony, Loni Road, Delhi in respect of which sale deeds by

were executed by contemnor Ajay Yadav claiming himself as the

Director of plaintiff no.1-Company. Finally, vide order dated 20th

April,2009 only four defendants named already were held guilty

of contempt of Court by violating the injunction order dated 6th

October, 2006.

I.A. Nos. 4764/08, 3329/08, 10609/07

2. After holding the contemnors guilty they were afforded an

opportunity of hearing on the question of punishment. However,

the contemnors instead of availing of that opportunity preferred

to move applications(being IA Nos.5815 & 5817 of 2009) seeking

recalling of the order dated 20th April,2009. Although in IA

No.5617/09 it was also stated that in case the order dated 20th

April was not to be recalled then the contemnors were tendering

apology. However, the tenor of the two applications was that this

Court had wrongly held the contemnors guilty of contempt of

Court. In any case, before that application could be taken up for

consideration the contemnors also filed an appeal(being

F.A.O.(OS)No.179/2009) on 06/05/09 against the same order

before a Division Bench of this Court and on the same date they

also filed their affidavits in the present proceedings tendering

apology for whatever they had done in violation of the ex-parte

injunction order dated 6th October,2006. The appeal was,

however, withdrawn by the contemnors on 08/05/09 and after

withdrawing the appeal contemnors withdrew their review

applications also and then they pressed into service the weapon

of apology. Learned counsel for the contemners placed reliance

on judgments of the Supreme Court in "Dina Bandhu Sahu vs.

State of Orissa", AIR 1972 SC 180 and "Brahm Prakash

Sharma vs. The State of Utter Pradesh", AIR 1954 SC 10 in

I.A. Nos. 4764/08, 3329/08, 10609/07

support of his submissions that the apologies tendered by the

contemners should be accepted However, the manner and

circumstances in which the apology has come to be tendered in

the present case by the four contemnors this Court is not at all

inclined to accept the same.

3. In a recent decision of the Supreme Court in "C.Elumalal

and Ors. Vs A.G.I. Irudayaraj and Anr.", 2009(4) SCALE 73,

the question of acceptance of apology tendered by a contemnor

came to be considered and the Supreme Court had observed

that:

"4. Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward."(emphasis supplied)

4. Similarly in "T.N. Godavarman Thirumulpad Vs. Ashok

Khot and Anr.", 2006(5) SCC 1, the following view was taken by

the Supreme Court regarding the apology of a contemnor in

contempt cases:

"..........Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of

I.A. Nos. 4764/08, 3329/08, 10609/07

penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness............................"

5. In "Delhi Development Authority vs Skipper

Construction & another", (1995) 3 SCC 507 while considering

the apology of the contemnor the Supreme Court made the

following observations:

"66. In considering whether the action of the contemners amounted to contempt of court we take into account the entire course of conduct of the contemners. As our order dated 25.1.95 would disclose, the contemners have indulged in judicial adventurism by raiding one court or the other. Each of such raids is a clear abuse of process of court calculated to obstruct the due course of judicial proceeding and the administration of justice. Thus, we conclude that the contemners are guilty of contempt of court. No doubt, the contemners have tendered apology. This apology is coming forth after sensing that the adventures have turned out to be misadventures, realising that the contemners have ended up in a cul-de-sac.-

An apology is not a weapon of defence forged to purge the guilt of the offences nor is it intended to operate as a universal panacea. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power." We do not find the apology to be so in this case. The conduct of contemners is highly reprehensive. The question now is what sentence we should impose on the contemners."(emphasis supplied)

I.A. Nos. 4764/08, 3329/08, 10609/07

6. As far as the apology tendered in the present case by the

four contemnors is concerned the same was never tendered

when applications for contempt were filed by the plaintiffs. They

had at that time strongly defended their actions which have

finally been held to be constituting contempt of Court. And even

after the contemnors had been found guilty of contempt they did

not straightaway tendered an apology and instead what they did

was to convey to the Court that they had been wrongly held

guilty by filing a review application and then they preferred an

appeal also against the order dated 20th April,2009 whereby they

were held guilty. It was only after they failed to get any relief

from the Division Bench, where they withdrew their appeal after

a lengthy hearing, that they pressed into service their apology

affidavits. In these circumstances, I have no hesitation in

straightaway rejecting the apology tendered by the contemnors.

7. Learned counsel for the contemnors had also contended

while seeking acceptance of the apologies tendered by the

contemnors that this is in any case a case of civil contempt in

which punishment of fine only is the rule and imprisonment an

exception. In support, he cited one decision of the Supreme

Court in "Smt. Pushpaben & another. Vs. Narandas V. Badani

I.A. Nos. 4764/08, 3329/08, 10609/07

& another.", (1979) 2 SCC 394. He also placed reliance on one

judgment of Allahabad High Court in "Sita Ram vs. Ganesh

Dass", AIR 1973 All. 449. It was also submitted that in this case

custodial punishment is not warranted since actually the plaintiff

no.1-Company has not been put to any material loss by the

impugned acts of the contemnors. Regarding the sales of a large

number of plots of the Company it was contended that in fact

even those sales were in fact had not put the Company into any

loss since the physical possession of those plots was with some

persons who were not the purchasers but in fact were using a

70% of the sold land for organizing marriage parties and those

people who had put up marriage pandals are the men of the

plaintiffs 2-4 and some land has been allowed to be occupied by

some squatters by land mafia in connivance with the plaintiffs 2-4

to grab the properties of the Company. This stand has now been

taken by the contemnor Ajay Chaudhary, who is the brother-in-

law of contemnor Ajay Yadav who is the signatory of various sale

deeds, in his additional affidavit dated 14th May,2009. In that

affidavit it is stated that the deponent is the son of late Ch. Brahm

Parkash who was the first Chief Minister of Delhi and was also for

sometime Union Agriculture Minister. Ch. Brahm Parkash was the

brain and moving spirit behind the incorporation of plaintiff no.1-

Company and he had provided all the Capital and he had even

I.A. Nos. 4764/08, 3329/08, 10609/07

pooled in the compensation which he had received after

acquisition of his own properties in the Capital of the said

Company and then many properties were acquired in the name

of the Company. It is further stated in the additional affidavit that

one Kishore Lal, husband of plaintiff no.3, was working with late

Ch Brahm Parkash as an office clerk and had won his confidence

but later on had breached that very trust which Ch. Brahm

Parkash had reposed in him by fraudulently getting the shares of

Ch. Brahm Parkash and defendant no.1 herein of which also Ch.

Brahm Parkash was the founder, in the Company transferred in

the names of his own name and his relatives in order to have the

complete control over the Company's assets. So, according to the

counsel for the contemnors this is, in fact, a case of a failed

attempt to sell the properties of the Company on the part of the

contemnors and further that since this Court itself has declared in

the order dated 20th April, 2009 that the sales deeds in question

were non-est and void because of the contemnors having

executed the same during the susbsistence of the injunction

order dated 6th October, 2006 the contemnors do not deserve to

be sent to prison. It was also submitted that the contemnors have

settled with the purchasers and have agreed to refund them the

entire sale consideration paid by them and the contemnors are

also ready to deposit in this Court, if so directed, the entire sale

I.A. Nos. 4764/08, 3329/08, 10609/07

consideration mentioned in various sale deeds so that the same

can be given to the purchasers who have been trying hard to get

the physical possession of their plots from the plaintiffs' men

belonging to land mafia. Learned counsel submitted that this

gesture on the part of the contemnors is also a strong mitigating

circumstance for being taken into consideration by this Court

while deciding the punishment to be awarded to the contemnors.

8. On the other hand, Shri Viraj Datar, learned counsel for the

plaintiffs submitted that in this case the contemners had not

committed one act of contempt but various acts at different times

after receiving the ex-parte injunction order dated 6th October,

2006 and as many as four applications for taking action against

them for violation of the injunction order had to be moved. It was

also submitted that even after passing of the order dated 20th

April, 2009 by this Court whereby the contemners were held

guilty of contempt of Court one of the contemners had still

represented himself to be a Director of the plaintiff no. 1

Company before the Company Bench of this Court where some

litigation is going on regarding the removal of the name of

defendant no.1 society from the register of members of the

plaintiff no. 1 Company is going on and the Company Bench has

referred the matter to a Division Bench for initiation of

I.A. Nos. 4764/08, 3329/08, 10609/07

proceedings for criminal contempt. Mr. Datar submitted that

considering the seriousness of the acts committed by the

contemners they do not deserve any leniency in the matter of

punishment. In support of his submission that this is not a case

where imposition of fine only would serve the cause of justice

and it is a fit case for awarding custodial imprisonment qua the

contemners Mr. Datar placed reliance on two judgments of the

Supreme Court which are reported as "Patel Rajnikant

Dhulabhai & Anr. vs. Patel Chandrakant Dhulabhai & Ors.",

2008 (10) SCALE and "T.N. Godavarman Thirumulpad vs.

Ashok Khot and Anr.", (2006) 5 SCC 1.

9. I have given my anxious consideration to the rival

submissions and have also gone through the judgments cited

from both the sides in order to decide whether this is a fit case for

sending the contemners to prison or not and whether any other

appropriate orders need to be passed. In the two decisions of

the Supreme Court cited by learned counsel for the plaintiff the

alleged contemners were found to have violated orders of

injunction passed by the Court. In the case of Patel Rajnikant

Dhulabhai(supra) the contemners had been restrained from

creating any third party interests in the properties in suit and in

violation thereof third party rights were created and the

I.A. Nos. 4764/08, 3329/08, 10609/07

contemners were sentenced to undergo simple imprisonment for

a term of two weeks after their apology had not been accepted.

In the case of T.N. Godavarman Thirumulpad(supra) the

contemners had violated the injunction order passed by the

Supreme Court and the contemners were sentenced to undergo

one month's simple imprisonment. In the said case also the

apology tendered by the two contemners was not accepted.

Thus, it cannot be said that whenever it is a case of civil contempt

only fine should be imposed, as was the submission of the

learned counsel for the contemners. It all depends on the facts

and circumstances of each case.

10. Order XXXIX Rule 2-A CPC provides for detention in civil

prison of a litigant who violates an injunction order granted by

the Court and also the attachment of the properties of the guilty

party. In one decision of the Allahabad High Court which is

reported as AIR 2003 ALL. 321, "Smt. Savitri Devi vs. Civil

Judge (SD) and Ors." a direction was issued to the subordinate

Court for attaching even those properties which had been sold

by the contemner in violation of the injunction order in addition

to the other properties of the contemner. The trial Court in that

case had ordered attachment of the properties of the contemner

but not the one which he had sold in disobedience of the

I.A. Nos. 4764/08, 3329/08, 10609/07

injunction order of the Court whereby he had been restrained

from alienating the same. That attachment of the properties sold

in disobedience of the injunction order of the Court was in

addition to the sentence of civil imprisonment for a period of two

months. It was observed by the Allahabad High Court that the

provisions of Order XXXIX Rule 2-A CPC are meant to maintain

the dignity of the Court in the eyes of the people so that the

supremacy of law may prevail and to deter the people from

mustering the courage to disobey the interim injunction passed

by the Court.

11. While defending the applications under Order XXXIX Rule

2-A CPC the contemners had admitted having sold various plots

of land to different persons vide different sale deeds executed by

contemner Ajay Yadav in his capacity as the Director of the

plaintiff no. 1- Company. Although it had also been claimed that

the properties were sold in the interest of the Company but that

plea was negatived by this Court while holding them guilty of

contempt. In the sale deeds executed after the passing of the

injunction order on 6th October, 2006 it had been recorded that

physical possession of the plots sold had been handed over to

the purchasers but now it is being claimed by the contemners

that the possession of the plots of land in question could not be

I.A. Nos. 4764/08, 3329/08, 10609/07

taken over by the purchasers as some unauthorized persons have

been occupying the same. It is also being claimed now that the

contemners have settled with the purchasers to whom they had

sold various plots. In my view, the contemners are simply trying

to introduce confusion in the matter by taking these contradictory

stands and that is an aggravating circumstance and not a

mitigating one. In my view, it is a fit case where sentence of

imprisonment would be fully justified and imposition of fine will

not be sufficient punishment for the acts of disobedience

committed by the contemners. The properties sold by the

contemners vide various sale deeds mentioned in the order

dated 20th April, 2009 holding them guilty of contempt also need

to be attached.

12. I, therefore, direct that all the four contemners be detained

in the civil prison for a period of two weeks. The properties

mentioned in para no. 12 of the order dated 20th April, 2009

holding the four contemners guilty of contempt are also directed

to be attached.

MAY 25, 2009                                      P.K. BHASIN,J
sh



I.A. Nos. 4764/08, 3329/08, 10609/07