Arjun Chowdhry vs Ankur Sachdeva & Ors.
2009 Latest Caselaw 4516 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                            Reserved on: 14.10.2009
%                                                     Date of decision: 06.11.2009


+                               FAO (OS) No.248 of 2009


ARJUN CHOWDHRY                                              ...APPELLANT
                                Through:        Mr. Subodh K. Pathak &
                                                Mr. S.P.M. Tripathi, Advocates.


                                           Versus


ANKUR SACHDEVA & ORS.                                       ...RESPONDENTS
                   Through:                     Mr. Rajive Sawhney, Sr. Adv.
                                                with Mr. Viraj R. Datar &
                                                Mr. Vineet Jhanji, Advocates.


                                                AND


+                               FAO (OS) No.249 of 2009


ABDUL HAQ FARHAN & ORS.                                    ...APPELLANTS
                   Through:                     Mr. Subodh K. Pathak, Advocate.


                                           Versus


ANKUR SACHDEVA & ORS.                                       ...RESPONDENTS
                   Through:                     Mr. Rajive Sawhney, Sr. Adv.
                                                with Mr. Viraj R. Datar &
                                                Mr. Vineet Jhanji, Advocates.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.      To be referred to Reporter or not?                      No

3.      Whether the judgment should be
        reported in the Digest?                                 No
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FAO (OS) No.248 of 2009 & FAO (OS) No.249 of 2009                        Page 1 of 6
 SANJAY KISHAN KAUL, J.

1. The appeal is directed against the impugned judgement of the

learned single Judge dated 20.4.2009 convicting the appellants

for violating the injunction order granted by the learned single

Judge and against the order of sentence dated 25.5.2009

sentencing the appellants to undergo simple imprisonment for

a period of two (2) weeks and attaching the properties

mentioned in para 12 of the order dated 20.4.2009 which were

sold contrary to the injunction order.

2. The order of conviction and sentence in the contempt was

delivered prior to the decision on the application for injunction

and of vacation of stay. Appeals were preferred against the

final order in the injunction applications which have been dealt

with by us in detail in the judgement passed today in FAO (OS)

No.337/2009 & FAO (OS) No.423/2009 and we have found

merits in the case of the original plaintiffs. Insofar as the

impugned order is concerned the learned single Judge has dealt

at length with the factual controversy which is a fight between

two groups claiming to run the company M/s. Capital Land

Builders Pvt. Ltd. Since we have decided the injunction

applications today we do not deem it necessary to go into the

details in the present order but suffice to say that an interim

injunction was granted on 6.10.2006 restraining the appellants

to represent themselves as shareholders/ representatives of

the plaintiff company till further orders. It is during the

currency of this injunction order that the appellants have dealt

with the property of the company claiming to have authority as _____________________________________________________________________________________________

Directors to act on behalf of the company and a large number

of plots were sold of as enlisted in the impugned order.

3. The defence set forth by the appellants is that the injunction

was obtained by the original plaintiffs by misrepresenting the

facts and that original plaintiffs 2 to 4 had been removed as

Directors of the company on 10.3.2006. This is stated to have

occurred during the pendency of the petition filed by the

society claiming rights to be recorded as shareholders in the

register of members before the Company Law Board under

Section 111 of the Companies Act, 1956 (hereinafter referred

to as the said Act) without the claim being established. Various

forms were filed and a meeting was sought to be held without

complying with the provisions of the said Act. The appellants

claim to have sold the land for the benefit of the company. The

appellants admitted that they continued to represent

themselves as representatives of the company by filing

documents with the Registrar of Companies and an ingenious

plea was raised that they had not been restrained to act as

Directors despite the relief claimed in that behalf.

4. We have no doubt that the finding arrived at by the learned

single Judge that the restrained order in respect of the

appellants acting as shareholders/representatives did not imply

that they can claim themselves to be Directors is correct.

Thus, appellants could not have represented the company in

any manner nor filed anything on behalf of the company or

executed documents on behalf of the company. The

endeavour was clearly to overreach the court proceedings. It is

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a clear case of blatant disrespect and willful disobedience of

the order of the court as found by the learned single Judge.

The conclusion that the appellants were guilty under Order 39

Rule 2A of the said Code can hardly be doubted.

5. The real damage is stated to have been caused by the sale of

plots in violation of the injunction order as noted in para 30 of

the impugned order. The appellants had no right to sell these

plots or create any third party interest. It is in this context that

the learned single Judge has observed that the transaction is a

non est in view of the observations of the Supreme Court in

Surjit Singh & Anr. Vs. Harbans Singh & Ors. (1995) 6 SCC 50.

6. The appellants preferred an appeal against the order of

conviction and then withdrew the same to make submissions

before the learned single Judge on the issue of sentence. It is

at that stage that the appellants submitted an apology when

the learned single Judge found that the manner and

circumstances in which the apology had come to be tendered

did not make the same acceptable. The learned single Judge

has succinctly dealt with this issue in the impugned order of

sentence dated 25.5.2009. The conviction in contempt was

followed by a review application and then an appeal and on

failure of both the apology had been tendered.

7. The appellants did seek to plead that they had settled with the

purchaser of the land and had agreed to refund the entire sale

consideration paid to them and were ready to deposit the same

in Court so that the same can be given to the purchasers who

had been barred to get the physical possession of the plots

_____________________________________________________________________________________________

from the appellants. The sale deed records that the physical

possession of the plot had been handed over but the appellants

pleaded before the learned single Judge that the possession of

the land could not be taken over by the purchaser as some

unauthorized persons had occupied the plot.

8. Affidavits have been filed under the signatures of appellants on

18.8.2009 in terms whereof the deponents have undertaken to

indemnify the company against the claims of the purchaser of

the plots of the company which have been declared non-est

vide orders dated 20.4.2009 and 25.5.2009 till the pendency of

the suit.

9. We have found as noticed above no redeeming features in

favour of the appellants in the present appeal. The impugned

order is well-reasoned and records tendency of parties to act in

audacious manner violating injunctions and causing irreparable

harm and then as a last resort tendering an apology. Such an

apology can hardly be said to have come from the heart. It is

no defence to state that the appellants were entitled to act as

Directors and transfer land when they had been restrained

from representing the company. It is only on representing the

company as Directors that the sale deeds were executed. The

appellants have been attempting to play around with the

orders of the court and act with impunity. We, thus, find that

the learned single Judge has been right in concluding that the

present case is one where fine would not suffice and thus

imposed punishment of fifteen (15) days imprisonment apart

from seeking to protect the property.

_____________________________________________________________________________________________

10. The only indulgence which we are inclined to show to the

appellants is that if the appellants ensure that the illegal sale

deeds executed by them are got cancelled and the amounts

refunded and settled with the purchasers resulting in closing

the litigations filed by the purchasers, then though the

appellants are guilty of contempt, they may not undergo

sentence of fifteen (15) days imprisonment but that

punishment would be substituted with a fine of Rs.2,000.00

each. The sentence of imprisonment, thus, stand suspended

for a period of three (3) months to facilitate the appellants to

redeem themselves and avail of this opportunity and in case

they settle the claims of all the purchasers to whom they had

sold the land contrary to the injunction order within the said

period of time and deposit the fine of Rs.2,000.00 each, then

they will not undergo sentence of fifteen (15) days

imprisonment failing which the impugned order of sentence

would come into operation.

11. The appeals accordingly stand dismissed with the aforesaid

modification.

SANJAY KISHAN KAUL, J.

NOVEMBER 06, 2009                                               AJIT BHARIHOKE, J.
b'nesh

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