Delhi High Court
M/S. Zillion Infraprojects Pvt. ... vs Gessat Pascal & Ors. on 4 November, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 1095/2016 & C.M.Nos.36354-36355/2016
M/S. ZILLION INFRAPROJECTS PVT. LTD. ..... Petitioner
Through Mr. Rakesh Tiku, Sr. Advocate with
Mr. Naveen N.Sharma, Advocate.
versus
GESSAT PASCAL & ORS. ..... Respondents
Through Mr. Amit Chadha, Sr. Advocate with
Mr. Akhil Anand and Ms. Avlokita
Rajvi, Advocates.
Reserved on : 07th October, 2016
% Date of Decision : 04th November, 2016
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
1. Present contempt petition has been filed alleging wilful disobedience
of the order dated 23rd September, 2015 passed in FAO(OS)(Comm.)
No.83/2016 whereby respondents were restrained from invoking any of the
seven bank guarantees.
2. Subsequently, vide order dated 27th September, 2016 the aforesaid
FAO(OS)(Comm.) No.83/2016 was disposed of by the Division Bench
holding that since two of the seven bank guarantees were conditional, it
would be open for the Court to decide whether the said two bank guarantees
should be encashed.
3. Mr. Rakesh Tiku, learned senior counsel for petitioner stated that the
dasti notice in FAO(OS)(Comm.) No.83/2016 was received by the
petitioner's counsel from the Registry on the afternoon of 24th September,
2016 which was a Saturday and therefore, petitioner's General Manager
(Legal and Administration) Mr. Ajit Kumar Srivastav took the early morning
flight to Bangalore on Monday and served dasti notice along with photocopy
of the order dated 23rd September, 2016 at 10:45 a.m. on 26th September,
2016. He further stated that on 27th September, 2016, the respondents
despite having been served with the notice, deliberately did not appear
before the Division Bench and the said fact stood recorded in the judgment
and order dated 27th September, 2016. He also alleged that during the
hearing on 27th September, 2016, the matter was duly watched by the present
counsel for the respondents.
4. Mr. Tiku contended that the respondents in wilful and deliberate
violation of the orders of the Division Bench dated 23rd September, 2016, as
the order dated 27th September, 2016, was still to be passed, furnished letters
of invocations dated 27th September, 2016 with the ICICI Bank as well as the
Punjab National Bank seeking immediate transfer of payment by RTGS
mode.
5. Learned senior counsel for the petitioner further stated that on 28th
September, 2016 after having received advance notice of the present
contempt petition, respondents wrote to ICICI Bank stating that as the matter
was sub judice before the High Court, no further action should be taken by
the ICICI Bank. He pointed out that no formal request or letter of withdrawal
had been filed or registered till date by the respondents with the Punjab
National Bank. He prayed that the respondents be held guilty of contempt as
they had refused to tender an unconditional apology even in their reply
affidavit.
6. Per contra, Mr. Amit Singh Chadha, learned senior counsel for
respondents stated that on 26th September, 2016 at 10:45 a.m., petitioner had
been served only a copy of the appeal totalling 382 pages with three pages of
Index along with dasti notice on respondents at its registered office at
Bangalore.
7. Mr. Chadha emphasised that no copy of stay order dated 23rd
September, 2016 had been served on the respondents. In support of his
contention, he relied upon respondents' endorsement at page 19 of the
present petition. He stated that the Delhi office of the respondents was
informed about the said service only on 27th September, 2016. He contended
that it was strange that the respondents had been served in Bangalore even
though all dealings between the parties had been done in Delhi and the
address of correspondence in the notice for mediation was the Delhi office of
respondents.
8. Mr. Chadha stated that on 27th September, 2016, being unaware of the
interim order dated 23rd September, 2016, respondents had invoked advance
bank guarantee bearing No.0007BGR0083516 issued by ICICI Bank on
behalf of the petitioner. He stated that since on 28 th September, 2016, the
petitioner served respondents at its Delhi office an incomplete copy of the
present contempt petition which contained a copy of the interim order dated
23rd September, 2016, respondents immediately informed ICICI Bank on 28th
September, 2016 at 11:49 a.m. that, "no further action shall be taken by you
until we give you further instruction".
9. Mr. Chadha admitted that on 27th September, 2016, respondents had
also sent a letter to Punjab National Bank for invocation of advance Bank
Guarantee bearing No.048306BG0000124. He, however, stated that the said
invocation letter was not accepted by Punjab National Bank as it had been
furnished after banking hours on 27th September, 2016 and therefore, the said
invocation letter was not acted upon. He contended that respondents
subsequently did not re-submit the invocation letter to Punjab National Bank.
He emphasised that at present the original Advance Bank Guarantee as well
as the letter of invocation is in possession of the respondents.
10. Having heard learned senior counsel for parties, this Court is of the
opinion that contempt proceedings are quasi criminal in nature and the
standard of proof required is that of a criminal proceeding. [See: All India
Anna Dravida Munnetra Kazhagam vs. L.K. Tripathi & Ors., (2009) 5
SCC 417].
11. In the present case, after seeing the receipt executed by the
respondents at page 19 of the paper book, this Court cannot conclude beyond
doubt that the petitioner had served a copy of the interim stay order dated
23rd September, 2016 upon the respondents on 26th September, 2016.
12. The respondents subsequent conduct of keeping its own invocation
letter addressed to ICICI Bank in abeyance and of not re-presenting the
invocation letter to Punjab National Bank, lends credence to the respondents'
contention that they were not aware of the interim order dated 23rd
September, 2016 when they had invoked the bank guarantees.
13. Consequently, this Court, in the present case, is not convinced that
respondents have acted in wilful disobedience of the interim order dated 23 rd
September, 2016 passed by this Court.
14. It is pertinent to mention that on 27th September, 2016, the interim stay
order dated 23rd September, 2016 stood vacated and the respondents were
free to invoke all the seven bank guarantees subject to the declaration that
two of the seven bank guarantees were conditional in nature. The effect of
the conditional bank guarantees would have to be examined in subsequent
proceedings to be filed by the petitioner in the event the respondents invoked
and/or pressed for encashment of the said two bank guarantees.
15. Accordingly, present contempt petition and applications are dismissed,
but with no order as to costs.
MANMOHAN, J
NOVEMBER 04, 2016
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