Smt Swarn Bajaj & Anr vs Dr J K Gupta & Ors.
2013 Latest Caselaw 4096 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CONT.APP.(C) 7/2013
         SMT SWARN BAJAJ & ANR                 ..... Appellants
                     Through: Mr.Abhay Kumar, Advocate.

                       versus

         DR J K GUPTA & ORS.                        ..... Respondents
                       Through: Mr.Arun Birbal, Advocate for R-2/DDA.


%                                Date of Decision : 11th September , 2013

         CORAM:
         HON'BLE MS. JUSTICE REVA KHETRAPAL
         HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (ORAL)

1. This contempt appeal being filed by strangers to the proceedings in Contempt Case (C) No.617/2012 which was dismissed as not pressed, led to hearing of this appeal on its maintainability.

2. We have heard learned counsel for the Appellants on the maintainability of the present contempt appeal.

3. Mr.Abhay Kumar, learned counsel for the Appellants submits that the Appellants are seriously prejudiced by the order dated 07.05.2013 passed in Cont. Petition (C) 617/2012 for the reason that they have interest in Flat No.B-12, Janhit Co-operative Group Housing Society Ltd., Plot No.25/2, Sector-9, Rohini, Delhi, possession of which has been handed over to Shri J.K.Gupta, who thereafter got the contempt petition dismissed as not

pressed.

4. Learned counsel for the Appellants submits that the Appellants herein earlier filed a writ petition bearing W.P.(C) No.8083/2012 wherein a Division Bench of this Court observed that the dispute inter se members or any person claiming under a member has to be decided through the process of arbitration in view of Section 70 of Delhi Cooperative Societies Act, 2003. The Appellants herein withdrew the said writ petition with liberty to take recourse to the remedy of arbitration.

5. We were informed that the Appellants have already taken recourse to arbitration proceedings.

6. Learned counsel for the Appellants was repeatedly questioned as to how the interest of the Appellants in the said flat, which is subject matter of Arbitration, is going to be determined by this Court in a contempt appeal. More so, when they were not even parties to the proceedings in W.P.(C) No.8426/2008, wherein a Division Bench of this Court passed the order which was complied with in Contempt Case (C) No.617/2012. It was further put to learned counsel for the Appellants that when the contempt petition No.617/2012 was dismissed as not pressed, in that circumstance no appeal could have been filed either by the Applicant in Contempt Case No.617/2012 or by the contemnor, as nothing survived after the contempt case was dismissed as not pressed.

7. Learned counsel for the Appellants continued insisting that when the possession of the flat has been handed over to Shri J.K.Gupta the same is prejudicial to the interest of the Appellants. Hence the Appellants have locus standi to file this appeal.

8. He further submits that the respondent No.1 Shri J.K.Gupta was

disqualified to even become a Member of the Society and get a flat as he owned property No.7/38, South Patel Nagar, New Delhi measuring 200 sq.yds. which was purchased by him from its erstwhile owner namely Shri Puran Swaroop Bajaj vide registered sale deed dated 20.09.2000.

9. Learned counsel for the Appellants has relied upon (i) (1996) 4 SCC 411 State of Maharashtra vs. Mahboob S. Allibhoy & Anr. (ii) (2000) 4 SCC 400 R.N.Dey & Ors. vs. Bhagyabati Pramanik & Ors. (iii) S.P (C) No.18852/2005 Dharam Singh vs. Gulzari Lal & Ors. (iv) (2004) 13 SCC 610 V.M.Manohar Prasad vs. N.Ratnam Raju & Anr. (v) (2006) 5 SCC 399 Mdnapore Peoples‟ Co-op. Bank Ltd. & Ors. vs. Chunilal Nanda & Ors.

(vi) (2007) 14 SCC 165 Special Deputy Collector (LA) vs. N.Vasudeva Rao & Ors. and (2009) 2 SCC 784 Tamilnad Mercantile Bank Shareholders Welfare Association (2) vs. S.C.Sekar & Ors. in support of his contention that the appeal under Section 19 of the Contempt of Courts Act can be filed by the Appellants who are having interest in Flat No.B-12, Janhit Co- operative Group Housing Society Ltd., Plot No.25/2, Sector-9, Rohini, Delhi despite the fact that they were not even parties in the proceedings in which the impugned order was passed by this Court.

10. We have perused the various reports cited by learned counsel for the Appellants. None of them relates to right to file a contempt appeal by a stranger to a proceeding in a matter where contempt petition has not been pressed.

11. In D.N.Taneja vs. Bhajan Lal (1988) 3 SCC 26, it was held by the Supreme Court that "the aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court." (emphasis supplied).

12. In State of Maharashtra vs. Mahboob S. Allibhoy (1996) 4 SCC 411, the Supreme Court observed as under:-

"4. On a plain reading Section 19 provides that an appeal shall lie as of right from any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. In other words, if the High Court passes an order in exercise of its jurisdiction to punish any person for contempt of court, then only an appeal shall be maintainable under Sub-section (1) of Section 19 of the Act. As Sub-section (1) of Section 19 provides that an appeal shall lie as of right from any order, an impression is created that an appeal has been provided under the said sub-section against any order passed by the High Court while exercising the jurisdiction of contempt proceedings. The words 'any order' has to be read with the expression 'decision' used in said sub- section which the High Court passes in exercise of its jurisdiction to punish for contempt. 'Any order' is not independent of the expression 'decision. They have been put in an alternative form saying 'order' or 'decision. In either case, it must be in the nature of punishment for contempt. If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under Sub-section (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result."

13. To understand the locus standi of the Appellants, it is necessary to look into the aspect whether just by claiming interest in the said flat, in the given facts and circumstances, they have a right to file an appeal when the contempt petition (to which they were not party) has been dismissed as not pressed. Rather, no appealable order has been passed by the Court.

14. The appellant No.1 Smt. Swarn Bajaj and her husband Varinder Bajaj, appellant No.2 claim to have purchased the membership of one Smt.Sarabjeet Kaur, w/o Sh.Jagpreet Singh Sehgal including her interest in the allotment of flat in Janhit Co-operative Group Housing Society Ltd. at Plot No.25/2, Sector-9, Rohini, Delhi-110 085. Smt. Sarabjeet Kaur, the seller also executed various documents to this effect in the year 1997 and

thereafter resigned requesting the Society to enrol the appellant No.1 as Member in her place.

15. The Respondent No.1 herein, Shri J.K.Gupta, in the proceedings before the Financial Commissioner, got an order in his favour for sealing the said flat. Shri J.K.Gupta filed Writ Petition (C) No.8426/2008 wherein vide order dated 22.12.2009 the allotment of the said flat was to be made to Shri J.K.Gupta as per his seniority.

16. Contempt Petition (C) No.617/2012 was filed by Shri J.K.Gupta against the Society for non-compliance of order dated 22.12.2009 in Writ Petition (C) No.8426/2008. This contempt petition was dismissed as not pressed on 07.05.2013 which has been impugned in this contempt appeal.

17. We are unable to agree with learned counsel for the Appellants regarding maintainability of the present contempt appeal under Section 19 of the Contempt of Courts Act for the following reasons:-

(i) The rights and claim of the Appellants in Flat No.B-12 are subject to adjudication in arbitration proceedings which are in progress.

(ii) W.P.(C) No.8426/2008 was filed by Dr. J.K.Gupta impugning the order dated 15.05.2008 passed by the Financial Commissioner, Delhi upholding the order dated 05.07.2001 passed by the Registrar, Cooperative Societies as well as the order dated 17.08.2007 passed by the Financial Commissioner, Delhi whereby the prayer for review was declined. After dealing with the rival contentions, a Division Bench of this Court passed the following order on 22.12.2009:-

" 7................The present case is fully covered by the judgment in Alimuddin‟s case. It may also be mentioned that proceedings have been initiated against petitioner for cessation of membership on the ground of ownership of house

in the name of his wife in her own capacity. The respondents were not justified in doing so. In view of the facts and circumstances, we are of the view that disqualification as held in the impugned order under Rule 25 of the Rules is not attracted in the present case.

8. The other contention of the respondent that the petitioner otherwise can‟t become member in view of the Bye laws of respondent no.2/society also has no force as no such contention has been raised in the show cause mentioned above as well as in the proceedings before the Registrar of Cooperative Societies and even before the Financial Commissioner. The same is being raised for the first time in the present petition which petitioner is not legally permitted to do.

9. In view of above discussion, we are of the view that petitioner does not incur any disqualification under Rule 25(1)

(c) (i) of the Rules. We, therefore, set aside the impugned orders dated 15.05.2008 and 17.08.2007 passed by the Financial Commissioner. The allotment of flat be made to the petitioner in accordance with his seniority. The writ petition stands allowed accordingly".

(iii) Non-compliance of the above directions in W.P.(C) No.8426/2008 for a long time led to the filing of contempt case bearing Cont. Cas (C) No.617/2012 wherein the following order was passed:-

"....In view of the stand taken by Mr.Malhotra, respondent no.3, counsel for the petitioner does not wish to press the application. Accordingly, the application stands disposed of. It is made clear that in case of any violation, the Court will be forced to take a serious view in the matter."

(iv). The rights and claims of the Appellants, if any, are subject matter of arbitration proceedings. Dismissal of contempt case as being not pressed does not confer any right to appeal to a stranger to the proceedings in W.P.(C) No.8426/2008 and in Cont. Case (C)

No.617/2012. Hence, the present appeal by the Appellants solely on the ground that they purchased the membership of one Smt.Sarabjeet Kaur, w/o Sh.Jagpreet Singh Sehgal including her interests in the allotment of flat in Janhit Co-operative Group Housing Society Ltd., does not confer any right on them to file the present contempt appeal under Section 19 of the Contempt of Courts Act in a case where even the contempt case was dismissed as not pressed.

18. Since the Appellants herein do not fall in any of the categories as referred in the reports D.N.Taneja vs. Bhajan Lal (Supra) and State of Maharashtra vs. Mahboob S. Allibhoy (Supra), the instant appeal being not maintainable is hereby dismissed.

19. No costs.

(PRATIBHA RANI) JUDGE

(REVA KHETRAPAL) JUDGE

SEPTEMBER 11, 2013 „dc/ „st‟