Mr. R.P. Khosla vs M/S Montreuaux Resorts (P) Ltd. & ...
2011 Latest Caselaw 3400 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI


           + Co.Appl. No.189/2009 & Co.Appl. No.1638/2009 in
                        Co.Appl. (SB) No.7/2008

                                           Date of Decision: 19th July, 2011


     MR. R.P. KHOSLA                                      ..... Petitioner
                             Through Mr. Deepak Khosla in person.


                              Versus


     M/S MONTREUAUX RESORTS (P) LTD. & ORS.                    .... Respondent

Through

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

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

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

GITA MITTAL, J

Co.Appl. No.1638/2009

1. This application has been filed by Shri Deepak Khosla under Section

151 of the CPC seeking leave to correct the provisions of law under which CA

No.189/2009 has been filed. The applicant has submitted that CA

No.189/2009 has been erroneously captioned as an application seeking

review under Order 47 of the CPC read with Section 151 of the CPC. The

applicant states that the object of filing CA No.189/2009 was to place on

record the applicant's apology to this court and should this court be pleased

to do so, to deem the notice dated 28th January, 2009 to be withdrawn or to

stand discharged.

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A prayer is made that the application be treated as an application

under Section 151 CPC.

2. There can be no possible objection to the grant of the prayer made in

this application.

This application is allowed. It is directed that CA No.189/2009 shall be

treated as an application under Section 151 of the CPC.

CA No.189/2009

3. It is necessary to recapitulate essential facts for the purposes of the

present order. The applicant had been heard on applications filed on behalf

of the appellant when the matter had been adjourned to 28th January, 2009

for the learned counsel for the respondents to make submissions.

4. Mr. Deepak Khosla had been making submissions from the side of the

appellant. The turn of events on 28th January, 2009 were noticed in the order

recorded on that date. The same may usefully be extracted hereunder:-

"1. CA No.1000, 1290 & 1446/2008 in Co.A.(SB) No. 6/2008 and CA No.1001/2008 in Co.A.(SB) No. 7/2008 filed by the appellants are under hearing by this court. Appellant has already been heard on these applications and learned counsel for the respondents was being heard when the matter was adjourned to today to make the submissions in reply.

2. In support of their submissions, learned counsel for the respondents placed reliance on the appeal filed by Ms. Sonia Khosla before the Company Law Board and had opened submissions that the appellant cannot be permitted to set up case not pleaded in the petition before the Company Law Board. It was also their contention that the appellant cannot modify or vary the petition filed on 13th August, 2007 by way of filing an additional affidavit about six months thereafter on 30th January, 2008. Reliance was placed on the memorandum of understanding between some of the parties which was the basis of the petition before the Company Law Board.

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3. The applications before this court are in the nature of a review of hearings wherefrom a brother colleague has recused himself for reasons of scandalous averments contained in CA No. 1000/2008. It is well settled that consideration of any application has to abide by judicial record which is placed before the court. Fully conscious of the well settled legal position, unfounded allegations, before even submissions could be completed by counsel, have been made.

4. The matter was adjourned at request of counsel for the respondents to today. During the intervening period, CA No. 133/2009 in Co.A.(SB) No. 7/2008 and CCP No. 1/2009 in Co.A(SB) No. 6/2008 have been filed on behalf of the applicant.

5. When the matter was called out for hearing today, the applicant insisted on arguing CCP No. 1/2009 in Co.A.(SB) No. 6/2008 and CA No.27/2009 & 31/2009 in Co.A.(SB) No. 7/2008 objecting to the appearance of learned counsel on the other side on the ground that they have no right to appear.

6. Counsels for the respondents were heard and have drawn my attention to the memo of parties filed by Ms. Sonia Khosla before the Company Law Board wherein this company was arrayed as the respondent no. 1 and was represented by counsel appearing for the respondent nos. 2, 3 and 4 before this court. Counsels relied on paras 3 to 9 of order dated 31st January, 2008 passed by the Company Law Board at page 60 of Co.A.(SB) No. 6/2008. In this background, inasmuch as counsels had appeared for the respondents before the Company Law Board and the present petition in appeal being continuation thereof, I saw no reason as to why they cannot continue to complete the arguments in the part-heard matter. It was pointed out that no such objection was ever raised even though the same counsel have been appearing in the matter right from the first date when the respondents first put in appearance. Caveat is also stated to have been filed.

7. In this background, Mr. Vibhu Bhakru, Advocate who has been addressing arguments was asked to resume arguments on the part-heard application. At this stage, Mr. Deepak Khosla rose and started gesticulating. He interrupted the court proceedings in a loud voice making allegations that the counsels appearing in the matter have no right of audience in the matter and that proceedings in this court are not as per law. All requests to him to contain himself, to resume his seat and permit respondents' counsel to complete his submission did not bear any fruit. Mr. Khosla continued to interrupt the court proceedings in

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loud and obstructive tone and making allegations against the counsel appearing on the other side in open court that they are lying.

8. He used insulting language and has cast aspersions on counsel appearing on the other side. The allegations made are scandalous and aimed at creating prejudice and embarrassment to counsel who are discharging their professional duties towards their client. I have been exercising considerable restraint keeping in view that Mr. Deepak Khosla was appearing in person. The respondents have objected to his appearance inasmuch as he is arrayed as respondent no. 11 before the Company Law Board in the petition which has been filed by his wife Ms. Sonia Khosla as the petitioner and Mr. Khosla is the opposite party before the Company Law Board.

9. His conduct in court today was so obstructive that this court found it impossible to record the order in open court and has risen to dictate this order in chambers.

10. The acts of Mr. Deepak Khosla in standing up when the other side is arguing, gesticulating with his hands, raising his voice and not permitting the proceedings in the court to continue amounts to interference with the due course of judicial proceedings before this court, which prima facie, constitutes criminal contempt of court.

11. Paras 1 to 9 of this order be treated as the facts constituting the graveman of the charge as per para 10 above.

12. Let a copy of order be given to Mr. Deepak Khosla under signatures of the Court Master. Mr. Deepak Khosla is hereby called upon to submit his response to this order, which is being treated as a notice of charge, to be responded within two weeks.

13. The contempt matter may be placed before Hon'ble the Chief Justice for placing before the appropriate Division Bench for further proceedings.

Registry shall appropriately register the matter and place copies of all the orders and applications noticed above

before the Division Bench.

Dasti"

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5. The above narration would show that the conduct of Mr. Deepak Khosla

was so obstructive that the court was prevented from recording the order in

open court and had to rise for dictation of the order in chambers. It has

further been recorded that the acts noted above tantamounted to

obstructing due course of judicial proceedings which prima facie constituted

criminal contempt of court.

6. The application under consideration is dated 28th January, 2009 and

has been filed by Mr. Deepak Khosla praying for withdrawal/discharge of the

order/notice dated 28th January, 2009 in view of the apology tendered

therein.

7. Before this court, the applicant has admitted that he had crossed the

limits of permissible conduct in the court and has sought to tender an

apology for the same. In order to support the sincerity of his apology, the

applicant makes reference to applications filed by him seeking initiation of

perjury proceedings against the other side. It has been contended that filing

of these applications by the applicant would show the importance attached

by him to the majesty of law. He contends that he has realized the error in

his "perhaps overly impassioned conduct".

8. The present application appears to have been drafted on 28th January,

2009 and is supported by an affidavit of the same date. The application

places on record the unconditional, unreserved and unqualified apology on

the part of the appellant, though the application is stated to have been filed

"without prejudice to any of his rights and contentions".

9. The order dated 28th January, 2009 has noticed the conduct which

resulted in issuing of the notice to the applicant. The order shows that the

conduct of the applicant was intrusive. He had obstructed continuation of

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the proceedings in defiance of the court's requests to contain himself and to

resume his seat when the other side was making submissions.

10. The applicant did not permit the respondent's counsel to complete his

submissions. The applicant also prevented the dictation of the order in the

open court compelling the court to rise after orally informing him of issuance

of the contempt notice and reference of the matter to the Division Bench and

directing him to await service of the formal notice. The applicant remained

in court pursuant to these directions. Only formal service of the notice was

awaited.

11. Some measure of lack of control in the presentation of an untrained

party in court results from their involvement with the lis and uncontrolled

reactions to the submissions of the other side.

12. The conduct of the applicant, however, did not arise only out of ill-

temper or an emotional outburst of an uninformed person.

13. So far as the criminal contempt is concerned, the same is defined

under Section 2(c) of the Act which reads as follows:-

"2. Definitions -

xxx xxx xxx

(c) "Criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding , or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

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It is, therefore, evident that the legislature has given a wide definition

of conduct which would be covered under criminal contempt of court.

14. The Supreme Court had occasion to consider the intent of the

legislature empowering the courts to punish for contempt. In the

pronouncement reported at 2010 (5) SCALE 771 Suresh Prasad Singh

Vs. Dulhin Phulkumari Devi & Ors., it was held as follows:

"21. xxx Due conduct of any judicial proceeding is a matter of high public importance as it is inextricably connected with rule of law on which is based the constitutional mode of governance in this country. That is why the framers of the Act preceded the expression interfere with the words "tends to" and it has been further emphasized by addition of word `due' before "course of any judicial proceedings".

22. We must remember that legislature does not waste words. Therefore, every word used in Section 2(c)(ii) must be given its proper and natural meaning. Thus read, Section 2(c)(ii) must be given a broad sweep so as to include within it even any attempt to interfere with the due course of a judicial proceeding. The word `due' is very crucial in this context and must mean a natural and proper course of judicial proceeding.

23. This Court, therefore, holds that Section 2(c)(ii) has been enacted to protect apart from sanctity, the regularity and purity of a judicial proceeding. This, we repeat, is based on principles of high public policy. That is why contempt power is said to be an inherent attribute of a Superior Court of Record. xxx".

It was further observed by the Supreme Court that when contempt

takes place in the face of the court, people's faith in the administration of

justice receives a severe jolt and precious judicial time is wasted.

15. In Re Sheriff of Survey (1860) 2 F & F 234 = 175 ER 1038, it was

held that to obstruct court proceedings by continuing to address the court in

defiance of a direction of a judge may also constitute contempt of court.

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16. Failure to observe silence in court proceedings has been held to be

contumacious in 1963 Crl.L.J 6 (Allahabad) State of Uttar Pradesh Vs.

Sunderlal Srivastava.

17. Calling an observation by the Judge an unjust remark was held to be

contumacious in 36 WR 797, CA = (1876) 1 Ex D 376, CA, Willis Vs.

Maclachlan.

18. The obstruction by a litigant in conduct of court proceedings which

results in their obstruction is certainly covered within the definition of the

criminal contempt within the meaning of expression in Section 2(c) of the

statute.

In the instant case, the applicant accepts that he has overstepped the

limits of permissible conduct.

19. In the present application, while referring to his apology as sincere and

unconditional, the applicant purports to give his explanation of his conduct

on the 28th of January, 2009. I have no manner of doubt that the applicant's

extreme conduct on 28th January, 2009 obliterated the line between decorum

of the court; propriety as well as court etiquette, on the one hand and

contumacy on the other. The applicant over reached the liberty given to a

party appearing in court to make submissions. It requires to be borne in

mind that so far as contempt of court is concerned, it is not the content of

the submissions alone which matters, but the manner in which they are

made as well. Certainly no party is legally permitted to compel that the

proceedings must go on in the manner in which he directs, or not at all.

20. The applicant showed no contrition or remorse nor was he apologetic

for his conduct when the court was compelled to rise. It is clearly evident

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that better sense prevailed over him thereafter and when the court resumed

proceedings, he tendered an oral apology for his prior conduct.

21. So far as the subsequent conduct of Mr. Khosla is concerned, the same

has been noticed in several orders including the orders dated 13th May, 2009;

19th May, 2009; 22nd May, 2009 & 25th May, 2009 These orders would show

that on each occasion his conduct and pleadings were sufficient for this court

to initiate the contempt of court proceedings against him. This court had

exercised restraint on these dates for the sole reason that a party appearing

in person does not necessarily have the objectivity, training or discipline

which legally trained counsels would have. The present proceedings also

stood initiated.

22. The applicant has purported to suggest that the apology should be

accepted by this court because it was made before issuance of notice. In

support of his submissions, the applicant has referred to certain instances of

contumacious conduct involving lawyers wherein this court has accepted

apologies while handing out sentences. The newspaper reports placed by

the applicant show that the acceptance was not unconditional. At the same

time, directions were issued to the lawyers to give free legal aid on more

than one occasion.

23. In this application, the applicant has contended that his statements

during the course of oral arguments related to fundamental points of

procedure prescribed in law. He further states that he was attempting to

bring out a case of abuse of process of law by the other side. Mr. Khosla

states that he did not intend to obstruct the proceedings to proceed lawfully.

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24. The conduct noticed by this court in the order dated 28 th January, 2009

has been termed by Mr. Khosla as "overly impassioned" and "more

emphasis" in his submissions.

25. In the application under consideration and during the oral submissions

thereon, the applicant has stated that he has realised that irrespective of

what has happened in the matter or the pleas taken by the other side, he

has no business to cross the "invisible line" with regard to the limits to which

he should press his pleas. The applicant has beseeched this court to assess

his conduct in the eighteen hearings between the 18th September, 2008 and

the date of reserving the present order.

26. The applicant explains that he appears in person and therefore is

perhaps not as well acquainted with the finer nuances of the court

procedures and etiquette as a legal practitioner or advocate may be. To

support his plea of his reverence and respect for court proceedings, the

applicant refers to proceedings initiated by him complaining of perjury by the

other side. Mr. Khosla terms his conduct as an isolated aberration on his

part and states that he has since realized the error in his conduct.

27. Mr. Khosla has couched these pleas in the application carefully

referring them as "perhaps overly impassioned conduct". Mr. Khosla refers

to the apology made by him on 28th January, 2009 and has also placed on

record his unconditional, unreserved and unqualified apology for his conduct

though at the same time this apology is also stated to be without prejudice

to his rights and contentions.

28. Despite the above, in the oral submissions made by Mr. Khosla on the

present application, he was candid enough to state that he has no qualms in

saying that in the hearing on 28th of January, 2009 he has crossed the line.

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He, however, has stated that he questions as to where the line should be.

Simultaneously he contends that he was not saying that he was right.

Extensive submissions are rested on his plea that his conduct on 28th

January, 2009 was an aberration when he overreacted in the proceedings in

the court.

29. So far as an apology for the contumacious conduct is concerned, the

same has been placed as part of Section 12(1) of the Contempt of Courts

Act, 1971 in the legislative scheme which reads as follows:-

"12. Punishment for contempt of court

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with find which may extend to two thousand rupees, or with both:

PROVIDED that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation: An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide."

30. The principles governing consideration and acceptance of an apology

for contumacious conduct were also considered by the Supreme Court in

2010 (5) SCALE 765 Ranveer Yadav Vs. State of Bihar in the following

terms:-

27. It may be noted that under Explanation to Section 12(1) of the Act, the Court may reject an apology if the Court finds that it was not made bonafide. Under Section 12 it has been made very clear that the apology must be to the satisfaction of the Court. Therefore, it is not incumbent upon the Court to accept the apology as soon as it is offered. Before an apology can be accepted, the Court must

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find that it is bonafide and is to the satisfaction of the Court. However, Court cannot reject an apology just because it is qualified and conditional provided the Court finds it is bonafide.

28. An apology in a contempt proceeding must be offered at the earliest possible opportunity. A belated apology hardly shows the `contrition which is the essence of the purging of a contempt'.

xxx xxx xxx

33. Even if it is not belated where apology is without real contrition and remorse and was merely tendered as a weapon of defence, the Court may refuse to accept it. (See Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421).

31. The statutory provisions thus mandate that the consideration of an

apology would arrive at a stage after the court concludes that the conduct of

the person apologizing is contumacious. The apology which is rendered is in

respect of such conduct.

32. It is well settled that an apology cannot be a matter of course or a

weapon of defence to purge the guilty. It is intended to operate as a

universal real contrition. In AIR 1969 Calcutta 1 : (1967-68) 72 CWN 82

in Re: Hiren Bose case, it was held as follows:-

"Manly consciousness of a wrong done, of an injury inflicted and earnest desire to make such reparation as lies in the wrongdoer's power. Only then is it of any avail in a court of justice.

xxx xxx xxx

Even if wisdom dawns only at a later stage, the apology should be tendered unreservedly or unconditionally, before the Judge has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology. It ceases to be the full frank and manly confession of a wrong done, which it is intended to be."

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33. Acceptance of an apology is really in the nature of jurisdiction

conferred on the court beyond the ordinary considerations which go into the

exercise of jurisdiction to punish for contempt of court. Writing on the

exercise of the clemency jurisdiction of the highest in the executive,

although in a completely different context, Justice V.R. Krishna Iyer in his

article "The Quality of Mercy" in the 28th February, 2011 issue of The Hindu,

has written thus:-

"Nobody challenges the obligation and the duty of the court to act only on the evidence before it, but that does not apply to mercy power or privilege beyond the record. There is a clemency jurisdiction that can act on other benign considerations and show compassion beyond the technical ambit of the law in order to do justice. Mercy is nobler than law and it can have priority over law. This is a finer function of public conscience that does not destroy the conviction but deals only with the sentencing. The law remains; so too any guilt."

34. The impassioned plea of the applicant in the instant case invokes a

similar power of the court noticed in Section 12 and seeks such

compassionate application of this court's jurisdiction under the Contempt of

Courts Act.

35. In terms of Section 18(1) of the Contempt of Courts Act, 1971, every

case of criminal contempt is required to be heard and determined by a

Bench of not less than two Judges. The instant matter was referred to the

Division Bench for this reason.

36. Mr. Khosla also purports to narrate what according to him is the course

of events after his disruptive conduct. He does not state that his posturing

did not permit recording of any order in open court.

37. So far as the oral apology is concerned, the applicant was clearly

informed that having regard to the nature of his conduct notice having been

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directed and the initiation of the criminal contempt proceedings against him

having been directed, the applicant was required to tender the apology

before the Division Bench which would have jurisdiction over the matter.

38. The instant matter stands referred to the Division Bench where it is

pending.

39. It appears that when the matter was listed before the Division Bench

on 6th February, 2009, the applicant made a mention of having filed an

affidavit tendering unqualified apology to this court. On request of the

applicant, the Division Bench had clarified that it would be open to the

contemnor to take such steps to purge himself before this court.

40. I have noticed above the statutory scheme which precludes the Single

Judge from dealing with a matter involving criminal contempt and pondered

over this matter at great length. In my view, even if it were to be argued

and held that the oral apology was made before the formal written notice

was received by the applicant, nothing would turn on it. It was found by me

that the conduct was covered within the meaning of "criminal contempt"

under the Contempt of Courts Act which in terms of Section 18 of the Act can

be considered only by the Division Bench. The consideration of an apology

by a person who is alleged to have committed criminal contempt must be in

accordance with Section 12 of the Act. The placement of Section 12 of the

statute in the legislative scheme would require that the apology for the

conduct covered within the definition of criminal contempt would require to

be considered by the Division Bench. This application is not maintainable

before this court. In the given facts, the apology tendered in the present

application requires to be considered by the Division Bench.

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41. Before parting with this order, I am compelled to note that despite his

extreme conduct noticed above, so far as the hearing on the present

application is concerned, the applicant displayed circumspection and, more

important, control in his submissions on the present application before this

court. This fact may be considered by the Division Bench while considering

appropriate orders on the present application.

42. In view of the above, it is directed that :-

(i) the Registry shall place the present application before the Division

Bench considering the matter pursuant to the order dated 28th of January,

2009 when the same is next listed.

(GITA MITTAL) JUDGE JULY 19th , 2011 aa

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