Delhi High Court
National Highways Authority ... vs M/S You One-Maharia (Jv) & Ors. on 4 November, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CCP(O) No. 120/2005 in OMP No. 342/2004
% 4th November, 2015
NATIONAL HIGHWAYS AUTHORITY INDIA (NHAI)
..... Petitioner
Through: Mr. Mukesh Kumar, Ms. Suchite and
Mr. Siddharth Agarwal, Advocate.
versus
M/S YOU ONE-MAHARIA (JV) & ORS. F+ ..... Respondents
Through: Mr. Ravikesh K. Sinha, Advocate
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CCP(O) No. 120/2005
1. In this contempt petition a detailed judgment was passed by a
learned Single Judge of this Court way back on 22.2.2010 holding that the
respondents are guilty of contempt of disobeying the directions given in
paragraphs 41 and 42 of the Judgment dated 4.4.2005 in OMP No. 342/2004
filed by the petitioner against the respondents. These paragraphs 41 and 42
CCP (O) No. 120/2005 Page 1 of 7
read as under:-
"41. Further, mandatory directions are issued to the first respondent to
furnish a bank guarantee in sum of Rs.2 crores (Two crores) in favour
of the petitioner and as per the format of the guarantees which have
been found to be forged. Said bank guarantee to be kept alive till
decision on the disputes between the parties by the arbitral tribunal.
42. Petitioner would be entitled to cost against the first respondent
in sum of Rs.25,000/-."
2. This Court is today concerned with the non-compliance of para
41 of the said judgment.
3. Very briefly the facts in terms of the Judgment dated 4.4.2005
can be noticed and which are that the petitioner had given mobilization
advance to the respondent no.1 joint venture concern of which the
respondents no. 2 to 12 were partners or in-charge of the joint venture, but
the bank guarantees given to the petitioner for taking mobilization advance
were found to be forged bank guarantees. Accordingly, till decision of the
arbitration proceedings, the respondents were directed to submit bank
guarantees in substitution of the forged bank guarantees which they had
submitted to the petitioner for taking the mobilization advance.
CCP (O) No. 120/2005 Page 2 of 7
4. Paragraphs 23 and 24 of the Judgment of a learned Single Judge
dated 22.2.2010 holding the respondents guilty of contempt of court read as
under:-
"23. In the present instance, I find that disobedience of the
order dated 04th April, 2005, is wilful inasmuch as it is
intentional and deliberate. In fact, despite the order dated 04th
April, 2005 and the Division Bench's order dated 13th
November, 2006, respondents have taken no steps till date to
comply with the mandatory directions. Consequently, I hold
the respondents guilty of contempt as they have wilfully
disobeyed this Court's order dated 04th April, 2005.
24. I direct the respondents to be personally present in Court
on the next date of hearing for being sentenced. In case, any of
the respondents wish to state anything with regard to
sentencing, they may file their affidavits within a period of
four weeks from today. List on 17th May, 2010."
5. As per the amended memo of parties filed there are a total of 11
respondents in this contempt petition. Only respondent nos.1 and 3 Sh.
Vinod Goel is represented. Original respondent nos.4 and 5 Dr. Vinay Goel
and Smt. Nirmal Devi have expired. Original respondent no.6 Sh. Babu
Ram Gupta was discharged by an order of this Court. Therefore, the issue is
of punishment of Sh. Vinod Goel (respondent nos. 1 and 3), Mr. Ki Young
Lee (respondent no.2), Sh. P.M. Kumar (respondent no.6), Mr. Young II Lee
(respondent no.7), Mr. Myung Joon Koo (respondent no.8), Mr. Young Jim
CCP (O) No. 120/2005 Page 3 of 7
Park (respondent no.9), Mr. Eoon Gucho (respondent no.10) and Mr. Ki Han
Kim (respondent no.11).
6. I do not have to go into the merits of the matter as to whether or
not the respondents are guilty of contempt of court as this aspect has
achieved finality in terms of the Judgment of a learned Single Judge of this
Court dated 22.2.2010 and I have only to decide the aspect of sentencing.
7. Respondent nos.1 and 3/Sh. Vinod Goel who is represented
through counsel relies upon the judgment of the Supreme Court in the case
of Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 and Section
13 of the Contempt of Courts Act, 1971 to argue that truth is now a defence
and since the respondent no.1 Mr. Vinod Goel does not have monies to give
fresh bank guarantees for an amount of 2 crores, hence this 'truth' of not
having monies is a reason why this Court should not punish the respondent
no.1.
8. Clearly, the present is a case where actions of the respondents
in the contempt petition if allowed to be condoned, will result in substantial
interference with or tending to substantially interfering with due course of
justice. The respondents had the gumption to take a huge amount of Rs.2
crores of mobilization advance from the petitioner by furnishing forged bank
CCP (O) No. 120/2005 Page 4 of 7
guarantees and therefore, para 41 of the Judgment dated 4.4.2005 in OMP
No. 342/2004 categorically directed the respondents to furnish proper bank
guarantees for a sum of Rs.2 crores in favour of the petitioner, but that
action has not been taken and consequently by the Judgment dated 22.2.2010
respondents were held guilty of contempt of court.
9. I may note that it is only in execution proceedings that there is a
defence available to a judgment debtor that he has no means to pay amounts
under the money decree and therefore he should not be imprisoned, but, this
defence that the respondent in a contempt petition is not able to pay monies
should be taken as defence of 'truth' for not sentencing the contemnor is not
an argument which is covered under Section 13 of the Contempt of Courts
Act. Also Section 13 of the Contempt of Courts Act when talks of truth as a
defence, the said aspect is relatable to the truth or falsity of the
contemptuous statement which is made and with respect to which truth is
given as a defence that the allegation even if contemptuous is justifiable
because of its truth. Clearly therefore the judgment in the case of
Subramanian Swamy (supra) relied upon by the respondent nos. 1 & 3 has
no application to the facts of the present case.
CCP (O) No. 120/2005 Page 5 of 7
10. In view of the above discussion, and pursuant to the powers
conferred on this Court under Section 12 of the Contempt of Courts Act
1971, I sentence the following respondents to imprisonment of six months
with fine of Rs.2,000/- to be paid by each of the contemnors. The
contemnors who are sentenced to imprisonment and payment of fine are as
under:-
1. Sh. Vinod Goel (respondent nos. 1 and 3)
2. Mr. Ki Young Lee (respondent no.2)
3. Sh. P.M. Kumar (respondent no.6),
4. Mr. Young II Lee (respondent no.7),
5. Mr. Myung Joon Koo (respondent no.8),
6. Mr. Young Jim Park (respondent no.9)
7. Mr. Eoon Gucho (respondent no.10)
8. Mr. Ki Han Kim (respondent no.11)
11. On the petitioner filing the necessary process fee for issuance of
the warrants of arrest against the respondents, let warrants of arrest be issued
against the aforesaid 8 number of respondents for their being arrested and
committed to imprisonment for a period of six months.
12. Let non-bailable warrants be issued against the respondents
returnable on 2nd March, 2016. On the contemnors other than the
CCP (O) No. 120/2005 Page 6 of 7
contemnors Sh. Vinod Goel and Sh. P.M. Kumar, petitioner will be entitled
in accordance with law, to get the necessary warrants of arrest executed
against the said respondents as these respondents are not residents of India
but being Korean Nationals are residents of Korea.
NOVEMBER 04, 2015 VALMIKI J. MEHTA, J.
ib
