Rajasthan High Court
Sh. Shankar Jha (Manager) vs Nand Kishor Gupta S/O Sh. Nathu Lal ... on 5 May, 2022
Bench: Manindra Mohan Shrivastava, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) D. B. Civil Special Appeal (Civil) No. 22/2018
In
S. B. Civil Contempt Petition No. 1003/2018
1. Sh. Shankar Jha (Manager), Bank of Maharashtra, 13,
Tilak Nagar Shopping Centre, Opposite L.B.S. College, Raja
Park, Jaipur- 302004. Raj.
2. Shri Rahul (Manager), Bank of Maharashtra, Jaipur Zone,
6Th Floor, "Fortune Heights", C-94, Ahinsa Circle, C-
Scheme, Jaipur- 302001.
3. Shri Pragati Kumar (Chief Manager), Bank of Maharashtra,
Jaipur Zone, 6Th Floor, "Fortune Heights", C-94, Ahinsa
Circle, C-Scheme, Jaipur-302001.
4. Arinendu Shekhar, At Present Posted as Chief Manager,
Bank of Maharastra, Zonal Office, C-Scheme, Jaipur
(Rajasthan).
----Appellants/Contemnors
Versus
1. Nand Kishor Gupta S/o Sh. Nathu Lal Gupta, Aged About
47 years, Resident of Plot No. 9, Sri Ram Nagar Jagatpura,
Jaipur (Rajasthan). Present Address Plot No. 4 Shankar
Vihar Colony, Jagatpura, Jaipur (Rajasthan).
2. Mrs. Usha Khandelwal W/o Shri Nand Kishore Gupta, Aged
About 47 years, Resident of Plot No. 9, Sriram Nagar
Jagatpura Jaipur (Rajasthan). Present Address Plot No. 4
Shankar Vihar Colony, Jagatpura, Jaipur (Rajasthan).
----Respondents
Connected With
(2) D. B. Special Appeal (Civil) No. 13/2019
In
S.B. Civil Contempt Petition No. 1003/2018
Rameshwar Prasad Sharma S/o Devi Sharan Sharma, Aged About
42 years, R/o B-403 Anukamapa Grandier Sewej Farm Sodala,
Jaipur.
----Appellant (With Leave to Appeal)
Versus
1. Nand Kishor Gupta S/o Sh. Nathu Lal Gupta, Aged About
47 years, R/o Plot No. 9, Sri Ram Nagar, Jagatpura Jaipur
(Rajasthan) Present Address Plot No. 4, Shankar Vihar
(Downloaded on 09/05/2022 at 09:27:06 PM)
(2 of 34) [SAC-22/2018]
Colony, Jagatpura, Jaipur (Rajasthan).
2. Mrs. Usha Khandelwal W/o Shri Nand Kishore Gupta, Aged
About 47 years, R/o Plot No. 9, Sri Ram Nagar, Jagatpura
Jaipur (Rajasthan) Present Address Plot No. 4, Shankar
Vihar Colony, Jagatpura, Jaipur (Rajasthan).
Respondent-Petitioners
3. Sh. Shankar Jah (Manager), Bank of Maharastra, 13, Tilak
Nagar, Shopping Centre, Opposite LBS College Rajapark,
Jaipur 302004 Raj
4. Shri Rahul (Manager), Bank of Maharastra, Jaipur Zone
6Th Floor, "Fortune Heights", C-94 Ahinsa Circle, C-
Scheme, Jaipur 320001.
5. Shri Pragati Kumar (Chief Manager), Bank of Maharastra,
Jaipur Zone 6Th Floor, "Fortune Heights", C-94 Ahinsa
Circle, C-Scheme, Jaipur 320001.
----Respondents
For Appellants : Mr. R.K. Salecha Advocate with
Mr. Akshat Kulshreshtha Advocate, Ms.
Tanisha Khubchandani Advocate & Ms.
Surabhi Bairathi Advocate
Dr. Abhinav Sharma Advocate (In SAC
No. 13/2019).
Mr. L.L. Gupta Advocate (In SAC No.
13/2019).
For Respondents : Mr. Satish Khandelwal Advocate,
Mr. Mahesh Sharma Advocate with Ms.
Harshita Sharma Advocate,
Mr. Nagendra Meena Advocate with Mr.
Ratnesh Sharma Advocate.
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Judgment
REPORTABLE
4/05/2022
By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)
Heard on application filed by applicant-Rameshwar Prasad
Sharma in D.B. Special Appeal (Civil) No. 13/2019, seeking leave of
the Court to file appeal.
(3 of 34) [SAC-22/2018]
2. For the reasons mentioned in the application, the application
is allowed and leave is granted to the applicant-Rameshwar Prasad
Sharma to file appeal.
3. There is delay of 250 days in filing of D.B. Special Appeal
(Civil) No. 13/2019.
4. In view of the fact that D.B. Civil Special Appeal (Civil) No.
22/2018 has been filed against order dated 08.08.2018, which is
also under challenge in Appeal No. 13/2019, we deem it
appropriate to condone the delay.
5. Accordingly, delay in filing of Appeal No. 13/2019 is condoned
and application filed under Section 5 of the Limitation Act in Appeal
No. 13/2019 is allowed.
6. By this common judgment, both the appeals are being
disposed off as they arise out of the same order dated 08.08.2018
passed by the learned Single Judge in S. B. Civil Writ Petition No.
1003/2018.
7. Respondents-writ petitioners Nand Kishore Gupta and Mrs.
Usha Khandelwal had borrowed loan from appellant-Bank of
Maharashtra. They were served with notice under Sections 13(2)
and 13(4) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (hereinafter
referred to as 'the SARFAESI Act'), against which they preferred an
application before the Debt Recovery Tribunal, Jaipur (hereinafter
referred to as 'the DRT'), wherein notices were issued and the next
date fixed was 02.02.2018. While regular sitting and hearing of the
DRT was not taking place, the Bank issued advertisement for
auction of the property on 30.01.2018, which was prior to the next
date of hearing before the DRT. In such circumstances, the
(4 of 34) [SAC-22/2018]
respondents-writ petitioners Nand Kishore Gupta and Mrs. Usha
Khandelwal filed S. B. Civil Writ Petition No. 2033/2018 seeking
protective umbrella and praying for quashing of demand notice
issued under Section 13(2) of the SARFAESI Act as also possession
notice issued under Section 13(4) of the SARFAESI Act. Sale notice
was also challenged and prayer was made for quashing the same.
Other ancillary reliefs were also sought in the writ petition. The
writ petition was finally disposed off vide order dated 25.01.2018
with certain directions.
8. However, despite there being an order of protection, the sale
was confirmed and delivery of possession had also taken place,
which led to filing of contempt petition (S. B. Civil Contempt
Petition No. 1003/2018) against the appellants-bank officials ( in D.
B. Civil Special Appeal (Civil) No. 22/2018). After notice, reply was
filed and the allegation of willful disobedience of the order of the
Court was denied mainly on the plea and defence that order dated
25.01.2018 passed in writ petition related to a notice for auction of
writ petitioners' property under the SARFAESI Act on 30.01.2018,
which was, however, abandoned and thereafter, a fresh notice was
issued for holding auction on 28.02.2018, which was brought to its
logical conclusion. It was also pleaded that order of the Court
passed on 25.01.2018 protected the writ petitioners till hearing of
the stay application. The case was taken up by the DRT on
subsequent dates of hearing, but no interim order was passed in
favour of the writ petitioners. Therefore, the officials proceeded
with the auction, which was scheduled on 28.02.2018, which
eventually led to confirmation of auction sale on 26.04.2018.
(5 of 34) [SAC-22/2018]
9. However, learned Single Judge, while hearing contempt
petition, was not satisfied with the explanation offered by the
contemnors and it was held that order dated 25.01.2018 was
willfully disobeyed and the contemnors, fully aware of the nature
and scope of order dated 25.01.2018, flouted the same. Learned
Single Judge accordingly held the contemnors guilty of contempt of
the Court. Learned Single Judge also held that as the confirmation
of sale on 26.04.2018 and issuance of sale certificate were in
violation of order dated 25.01.2018, therefore, all such acts and
proceedings were void. Direction was also issued to take back
possession of the property of the writ petitioners by resort to all
legal processes as may be available.
On the aspect of punishment, learned Single Judge observed
that that issue can be adjudged subsequently taking into
consideration the submissions of counsel for the parties that the
dispute between the writ petitioners and Bank of Maharashtra is
capable of being amicably resolved and an attempt to do so is
underway.
Against that order passed by the learned Single Judge in
contempt proceedings, D. B. Civil Special Appeal (Writ) No.
22/2018 has been preferred by the contemnors/officials of the Bank
of Maharashtra.
Later on, the auction purchaser, Rameshwar Prasad Sharma
has also filed an appeal being D. B. Civil Special Appeal (Civil) No.
13/2019, as apart from declaration of contempt of Court order
against the bank officials, learned Single Judge also directed taking
back possession of the immovable property of the writ petitioners
which was put to auction and in respect of which, sale was
(6 of 34) [SAC-22/2018]
confirmed and sale certificate issued in favour of the auction
purchaser Rameshwar Prasad Sharma holding that such
proceedings being in the teeth of order dated 25.01.2018, were
void ab initio.
10. Assailing the legality and validity of the order passed by the
learned Single Judge holding the appellants in D. B. Civil Special
Appeal (Civil) No. 22/2018 guilty of contempt of the Court, learned
counsel for the appellants-bank officials argued that firstly there
was no disobedience of the order passed by the Court. In the
alternative, it has also been contended that even if it is held that
action of confirmation of sale and issuance of sale certificate in
favour of the auction purchaser violated order dated 25.01.2018, in
any case, there is no material pleading or evidence to prove that it
was a case of willful disobedience by the appellants-contemnors. On
behalf of appellant Arinendu Shekhar, it has been submitted that he
was not impleaded as a party in the contempt petition, nor any
notice of contempt was issued to him. There is no allegation
whatsoever made against him in the contempt petition that he
committed willful disobedience of the order of the Court. An
affidavit was field by him in the contempt petition only to state that
proceedings were drawn bonafide. He joined the other contemnors
as appellant in Appeal No. 22/2018 because the order passed by
the learned Single Judge is of wide sweep.
It is the contention of learned counsel for the appellants-bank
officials that the order passed by the Court on 25.01.2018 was in
relation to a notice of auction, which was scheduled to be held on
30.01.2018, but that was abandoned. Later on, fresh auction
proceedings were initiated under subsequent notice of sale dated
(7 of 34) [SAC-22/2018]
08.02.2018 and in those proceedings, sale was confirmed on
26.04.2018. Therefore, the order of the Court cannot be said to be
flouted as the order was in relation to the first auction proceedings
and not the second one.
Contention of learned counsel for the appellants is that order
dated 25.01.2018 protected the writ petitioners against
confirmation of auction sale proceedings only till hearing of the stay
application. The case was listed before the DRT on subsequent
dates, but no stay was granted though hearing of stay application
had taken place, however, the case was adjourned. Therefore, the
protection under order dated 25.01.2018 passed in the writ petition
came to an automatic end. This was the bona fide understanding of
the order of the Court by the authorities of the Bank, which led
them to proceed with the auction of the property in subsequent
auction proceedings. In order to persuade this Court to accept the
aforesaid submission, learned counsel for the appellants has
referred to various orders passed by the DRT from time to time.
Learned counsel for the appellants further argued that the
respondents-writ petitioners were not entitled to protection as
granted to them vide order dated 25.01.2018 because the
respondents-writ petitioners were not repaying the debt despite
repeated opportunities and the writ petition was filed on incorrect
facts, in order to somehow make out a case that because of non-
sitting of the DRT, writ petitioners had to approach the writ Court
seeking protection till decision of stay application. Further argument
is that though application for stay was taken up for hearing, but no
interim order was passed in favour of the writ petitioners by the
DRT.
(8 of 34) [SAC-22/2018]
11. It has also been argued that the writ petitioners themselves
were not fully satisfied with order dated 25.01.2018 passed in the
writ petition, therefore, they preferred D. B. Civil Special Appeal
(Writ) No. 444/2018, which was disposed off on 03.04.2018 with
the observation that the appropriate remedy was to apply for
review. Thereafter, the writ petitioners filed S. B. Civil Review
Petition No. 114/2018 on 20.04.2018 wherein notices were issued
and the case was pending. Therefore, it is contended that even at
the instance of the writ petitioners, order dated 25.01.2018 was
assailed and review was also sought. In this background, the
action of the concerned bank officials in proceeding with the
auction, confirmation of sale and issuance of sale certificate cannot
be said to be an act of disobedience, so as to constitute contempt
of the Court.
12. Learned counsel for the appellants in both the appeals have
raised a common submission that while deciding the contempt
petition, supplementary directions have been issued, which is not
permissible in law in view of the dictum of the Hon'ble Supreme
Court in the case of J. S. Parihar Vs. Ganpat Duggar and
Others (1996) 6 SCC 291. It is also argued that an error of law
was committed in relying upon the judgment of the Hon'ble
Supreme Court in the case of Jehal Tanti and Others Vs.
Nageshwar Singh (Dead) through LRs. (2013) 14 SCC 689
because in that case, the matter was ultimately remanded to the
Court for fresh disposal.
13. An attempt has also been made to convince the Court that
order dated 25.01.2018 passed in the writ petition was not justified
in law and in view of several judicial pronouncements of the Hon'ble
(9 of 34) [SAC-22/2018]
Supreme Court in catena of decisions, writ Court ought not to have
intervened with the auction proceedings and for this purpose,
judgment rendered by the Hon'ble Supreme Court in the case of
Authorized Officer, State Bank of Travancore and Another
Vs. Mathew K.C. (2018) 3 SCC 85 has been relied upon. It is
also submitted that the observation of the learned Single Judge,
while holding the appellants-bank officials guilty of contempt, for
filing an application for withdrawal/recall of sale certificate before
the Recovery Officer is also not justified in law because as per the
provisions of the SARFAESI Act, the proceedings initiated under
Section 13 of the SARFAESI Act read with the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest (Central Registry) Rules, 2011, by the authorised officer
are separate and independent from the recovery proceedings,
therefore, the proceedings of the authorised officer cannot be
undone by the Recovery Officer. In support of their contention,
learned counsel for the appellants relied upon the decisions of the
Hon'ble Supreme Court in the cases of J. S. Parihar (supra);
Sudhir Vasudeva, Chairman and MD, ONGC and Others Vs. M.
George Ravishekaran and Others, AIR 2014 SC 950;
Thomson Press (India) Ltd. Vs. Nanak Builders and
Investors P. Ltd. & Others, AIR 2013 SC 2389; Babulal and
Another Vs. Municipal Corpn. Ratlam and Others (2005) 13
SCC 101; Dinesh Kumar Gupta Vs. United India Insurance
Company Limited and Others, (2010) 12 SCC 770 and United
Bank of India Vs. Satyawati Tondon and Others, (2010) 8
SCC 110.
(10 of 34) [SAC-22/2018]
14. Per contra, learned counsel appearing for the respondents-
petitioners would argue that the writ petitioners were prepared to
repay the loan and despite specific offer made, the bank officials, in
connivance with land grabber, hastily proceeded to put the property
to auction after issuing notice and drawing the proceedings under
Sections 13(2) and 13(4) of the SARFAESI Act, which was
challenged by the writ petitioners by moving application before the
DRT. However, the DRT was not regularly sitting and hearing the
applications and in the meantime, before petitioners' application for
stay could come up for hearing before the DRT, in order to frustrate
their prayer for stay, the bank officials/contemnors issued sale
notice and fixed 30.01.2018 as the date for auction. In these
pressing circumstances and to save their immovable property from
auction without hearing of the stay application by the DRT, the writ
petitioners had to approach the writ Court. It is further contended
that taking into consideration the aforesaid peculiar circumstances,
writ Court passed an order on 25.01.2018, protecting the writ
petitioners by issuing directions so that their application for stay is
not rendered infructuous and they may not be deprived of their
property till the application for stay is heard and decided. Learned
counsel would submit that the writ Court vide its order dated
25.01.2018 did not completely stay the auction proceedings, but
the protection was to the effect that the bank may proceed with the
auction on 30.01.2018, but the sale would not be confirmed till the
next date of hearing with clear direction to the DRT to hear the stay
application and in case, hearing on the stay application does not
take place, then the order passed by the Court to remain in force
till hearing of the stay application. The order clearly intended to
(11 of 34) [SAC-22/2018]
protect the writ petitioners till decision of stay application and the
appellants' submission that the stay would continue only till hearing
even though no orders were passed, is completely absurd and was
never intended by the Court. Learned counsel would submit that
the bank officials are not illiterate or rustic persons. It was very
clear from the order of the Court that the Court intended that till
application for stay is heard and decided, the protection will
continue. The DRT did not decide the application for stay, though
the case was listed, but orders on stay application were not passed.
Thereafter, auction notice was issued fixing a new date of auction,
even though application for stay was not heard and decided one
way or the other, the bank officials-contemnors proceeded to
confirm the sale as also issuing sale certificate and delivering
possession to auction purchaser, thereby completely frustrating
order dated 25.01.2018 passed by the learned Single Judge.
15. Learned counsel would next submit that observation for taking
back possession of the immovable property of the writ petitioners is
only a consequential order and not a supplemental order as such.
It is contended that in view of the judgment of the Hon'ble
Supreme Court in the case of Jehal Tanti and Others (supra),
the confirmation of sale, issuance of sale certificate and handing
over of possession of the immovable property to the auction
purchaser are void-ab-initio. Therefore, consequential steps were
required to be taken by the bank officials, which has been observed
by the learned Single Judge while holding the contemnors guilty of
contempt of the Court.
16. Further submission of learned counsel for the respondent is
that after having flouted the order of the Court, the contemnors
(12 of 34) [SAC-22/2018]
cannot be heard saying that order dated 25.01.2018 passed by the
learned Single Judge in the writ petition was not justified in law.
Order dated 25.01.2018 was never challenged by the contemnors
or even the auction purchaser by filing any appeal or review, much
less there being any stay on operation of order dated 25.01.2018.
Therefore, the order remained operative and effective which
restrained the contemnors from confirming the sale or issuing sale
certificate, much less handing over possession of immovable
property of the writ petitioners in favour of auction purchaser. All
that was permissible under order dated 25.01.2018 was to hold the
auction, but not confirm the sale till the application for stay is heard
and decided by the DRT. The contemnors, therefore, after having
held auction, ought to have kept the proceedings pending and
awaited the orders passed by the DRT on the stay application filed
by the writ petitioners and in case, stay application is rejected, they
could have proceeded to confirm the sale and all other subsequent
proceedings. But the contemnors were hand in glove with the
bidder in the auction and, therefore, they hurriedly proceeded to
confirm the sale and handed over the possession of immovable
property, even though, application for stay remained pending in the
DRT without being decided one way or the other and, therefore, it
is a clear case of willful disobedience as has been held by the
learned Single Judge in the contempt proceedings.
17. We have given our anxious considerations to submissions
made by learned counsel for the parties and perused the records,
various orders and the authorities relied upon by both the sides.
18. The contents of the writ petition filed by the respondents-writ
petitioners (S. B. Civil Writ Petition No. 2033/2018) would reveal
(13 of 34) [SAC-22/2018]
that the writ petitioners had borrowed loan from the bank and while
they were claiming settlement by making an offer of repayment of
loan, concerned authority initiated proceedings under Sections
13(2) and 13(4) under the SARFAESI Act. The pleadings in the writ
petition further show that the aggrieved by the action of the bank,
writ petitioners had availed the remedy by filing an application
before the DRT along with an application for stay on further
proceedings as the writ petitioners were apprehending that their
immovable property may be put to auction and sold. It is also
revealed that the DRT, Jaipur was not holding its regular sitting and
for one reason or the other, the stay application filed by the writ
petitioners was not heard, decided and in the meantime, the bank
scheduled the auction on 30.01.2018. In this backdrop, the writ
petitioners approached the writ court seeking protection. While
various sale notices and proceedings drawn under Sections 13(2)
and 13(4) of under the SARFAESI Act were challenged in the writ
petition and relief was sought, protective umbrella was also sought
against auction, which was scheduled on 30.01.2018, while the
application for stay remained pending undecided before the DRT. In
the aforesaid background, learned Single Judge disposed off the
writ petition with the following directions:
"1.The respondent bank may proceed with the
auction on 30.1.2018 but sale would not be
confirmed till the next date before the DRT i.e.
2.2.2018.
2.The DRT would hear the stay application on the
next date of hearing as otherwise petitioners have
shown their willingness to repay entire due amount
and said to have paid substantial amount.
3.In case hearing on the stay application does not
take place on 2.2.2018 then the order passed by
this court would remain in force till hearing of the
(14 of 34) [SAC-22/2018]
stay application thus the DRT is given direction to
hear the stay application at the earliest.
4.The petitioners would pay a sum of Rs.7 lakh to
the bank within one month from today.
5.In case respondent-bank remains aggrieved by
the order passed by this court, it may move an
application for modification/ clarification of the
order."
19. Taking into consideration that the bank was proceeding to
realise the debt by taking recourse to proceedings of auction and at
the same time, application for stay before the DRT remained
pending undecided, in order to strike balance between interest of
both the parties, writ Court, though did not stay the auction
proceedings scheduled to be held on 30.01.2018, but protected
interest of the writ petitioners by ordering that sale would not be
confirmed till the next date before the DRT, which was 02.02.2018.
Further direction was given to DRT to hear and decide the stay
application on the next date taking into consideration that the writ
petitioners had shown their willingness to repay the entire due loan
and said to have paid substantial amount. In particular, writ Court
made it clear that in case, hearing on the stay application does not
take place on 02.02.2018, then the order passed by the Court
would remain in force till hearing of the stay application and
direction was given to DRT to hear the stay application at the
earliest. All these directions were subject to writ petitioners' paying
a sum of Rs. 7,00,000/- (Rupees Seven Lacs) to the bank within
one month from the date of order, i.e. 25.01.2018. Moreover, the
writ Court, taking into consideration that the writ petition was being
disposed off without issuing notice to the bank, also gave liberty to
(15 of 34) [SAC-22/2018]
the bank to move application for modification/clarification of the
order.
20. Direction issued by the learned Single Judge in para no. 3 of
its order dated 25.01.2018 was clear that the protective umbrella
would remain in force till hearing of the stay application coupled
with direction to the DRT to hear the stay application at the earliest.
There is no equivocality in the order. The spirit behind this order
was to protect the writ petitioners against confirmation of sale and
creation of third party interest till the hearing of their stay
application. This observation of protection to continue till hearing of
stay application has only one meaning that the protection would
continue till decision of the stay application. To say, as has been
argued by learned counsel for the appellants-contemnors, that the
interim protection was available only till the date of hearing of stay
application and not till decision of the stay application, is not only
deliberate misreading of the order of the Court, but also reflects the
mens rea on the part of the bank officials to somehow circumvent
the orders and proceedings of this Court.
21. The orders passed by the DRT on various dates have been
placed for perusal of this Court. After 25.01.2018, the case was
listed and adjourned, but no order was passed on the stay
application one way or the other, either allowing or rejecting the
same. On 09.02.2018, recording presence of the parties and that
reply was filed by the appellants-bank, copy of which was supplied
to the applicants-writ petitioners, case was directed to be listed on
03.04.2018. On that day, no hearing on stay application had taken
place. DRT fixed the next date of hearing on 03.04.2018 and on
that day, it was recorded that the Presiding Officer is not holding
(16 of 34) [SAC-22/2018]
Camp Court at DRT, Jaipur, therefore, next date of hearing was
fixed on 04.07.2018. However, an application for early hearing was
filed by the bank, on which order was passed by the Registrar, DRT
on 13.04.2018 for listing the case on 16.04.2018.
22. On 16.04.2018, an application was filed by the applicants-writ
petitioners, copy of which was supplied to the counsel for the
respondents-bank and counsel for the bank sought time for filing
reply to that application. Order also records that an objection
regarding non-supply of copy of I.A. No. 239/2018 was also raised
by the applicants-writ petitioners and the bank was directed to
deliver copy of that application to the applicants-writ petitioners
and request was made to place the matter before the Presiding
Officer and the case was, therefore, directed to be listed before the
DRT on 20.04.2018. These proceedings on 16.04.2018 were also
drawn by the Registrar of the DRT as the Presiding Officer was not
holding sitting on that day.
Thereafter, on 20.04.2018, the case was listed before the
Presiding Officer of the DRT. On that day, the DRT passed an order
for filing rejoinder before the Registry on 24.05.2018. There is
nothing in the order to show that any hearing on the stay
application had taken place, much less decision thereon.
23. Thus, without there being any hearing on the stay application,
much less any order passed by the DRT on the stay application filed
by the respondents-writ petitioners, the bank-officials proceeded to
confirm the sale under auction dated 28.02.2018, on 26.04.2018
and also issued sale certificate accompanied with delivery of
possession of immovable property of the writ petitioners. It would,
thus, be clear that no hearing on stay application, much less
(17 of 34) [SAC-22/2018]
effective hearing, had taken place on the prayer for stay made by
the writ petitioners and the case was adjourned for filing rejoinder
on 20.04.2018 and immediately, thereafter, the sale was confirmed
and sale certificate was issued and possession handed over. It was
clearly an act of overreaching the order of the Court. As has been
observed hereinabove, the spirit of the order of the Court was that
till stay application is heard and decided, interim protection would
continue, obviously, because the Court was of the view that at least
till hearing and decision of stay application, the sale should not be
confirmed, otherwise the very prayer for stay would be rendered
infructuous. It was a matter relating to sale of immovable property
of the writ petitioners. The protection was granted vide order dated
25.01.2018 by the writ Court taking into consideration the
willingness shown by the writ petitioners to settle all the dues.
Apparently, bank officials were in a hurry, for the reasons best
known to them. They were parties to proceedings before the DRT
on various dates of hearing and it was within their personal
knowledge that no hearing on stay application had taken place,
much less any order passed.
24. Order dated 25.01.2018 was clearly intended to protect the
writ petitioners till hearing on their stay application. The order
could not be construed narrowly, meaning thereby that some kind
of proceedings takes place without any order passed as that would
be completely absurd. In any case, as has been referred
hereinabove, even no hearing on stay application had taken place
and on various dates, pleadings were exchanged, directions were
issued for supply of applications, filing of rejoinder etc. Up till date
of confirmation of sale on 26.04.2018, none of the orders, as
(18 of 34) [SAC-22/2018]
reflected from various order sheets of the DRT, would show that any
argument whatsoever towards hearing of stay application was
made by the parties. Even hearing had not taken place. Therefore,
the contention of the appellants that as the hearing had taken
place, therefore, the protection granted vide order dated
25.01.2018 came to an automatic end, has no legs to stand and if
we may say so, is deliberate misreading of the order and
completely frivolous. If the pleadings of the appellants-contemnors
are read in juxtaposition with order dated 13.04.218 of the
Registrar, DRT, it would be clear that hearing of the case was
preponed on the prayer made by the bank. When the case was
again listed on 16.04.2018, no hearing had taken place but only
direction for exchange of pleadings was issued. It was not even
hearing before the DRT but the case was listed before the Registrar,
DRT for fixing the case for hearing. When the matter came up
before the DRT on 20.04.2018, the case was listed for filing of
rejoinder before the Registrar on 24.05.2018. There is no whisper
in the order that any hearing had taken place, much less any order
passed on the stay application.
25. The appellants have also taken stand that when the order
granting protection to the writ petitioners was passed by the writ
Court on 25.01.2018, it was only in relation to auction which was
scheduled on 30.01.2018, but that auction having not materialised,
new schedule of auction was fixed by issuing fresh notice fixing
date of auction, auction was held, sale was confirmed and sale
certificate was also issued. Therefore, it is argued that it was not
within the ambit of order dated 25.01.2018.
(19 of 34) [SAC-22/2018]
This argument deserves to be rejected at the threshold. The
writ petitioners had approached the Court because the bank had
initiated proceedings to auction their immovable property and their
application for stay though pending, was not being heard. Merely
because at the time when the order was passed on 25.01.2018, the
auction was fixed on 30.01.2018, does not, by any stretch of
imagination, mean that if on that day, auction could not take place
for any reason and new date of auction was fixed, protective
umbrella under order dated 25.01.2018 passed by the writ Court
would not apply. Such a stand of the appellants-contemnors is
without any logic and reasoning. If this contention is to be
accepted, it would always be open for a party to flout the order of
the Court by cancelling the auction on the date fixed, issuing fresh
auction notice and to proceed with sale confirmation and delivery of
possession. This contention also, therefore, has no force.
26. Much emphasis has been laid on the authority of the bank to
proceed against a borrower and limited scope of judicial review in
writ proceedings by referring to various judgments. At the first
place, this defence does not hold water and is not tenable in law.
When facing contempt proceedings, the contemnors cannot be
heard saying that the order, which was disobeyed by them, ought
not to have been passed by the Court of law. If the bank was
aggrieved with order dated 25.01.2018 passed by the writ Court, it
was not without any remedy, but it chose not to take any remedy
against that order and found out the ways and means to circumvent
the order. Since the day on which the sale was confirmed, sale
certificate issued and possession of immovable property delivered
to auction purchaser, order dated 25.01.2018 remained in force and
(20 of 34) [SAC-22/2018]
effect, neither stayed, nor set aside by any higher Court, the act of
the concerned officials was nothing but a calculated design to
circumvent the order in the garb of it being a case of fresh date of
auction fixed by the appellants-contemnors. This argument is also
without any merit and has rightly been rejected by the learned
Single Judge in contempt proceedings.
27. It is to be noted that order dated 25.01.2018 did not
altogether stay the auction proceedings. The only restraint was
against confirmation of sale because confirmation of sale would
have followed delivery of possession of immovable property and if
the application for stay before the DRT is not heard, it would
frustrate the prayer for stay, create complications by involving third
party interest, i.e., the auction purchaser. However, the concerned
bank officials acted with undue haste and left no stone unturned to
ensure that before hearing of the application for stay before the
DRT, somehow immovable property of the writ petitioners is sold
and proceedings are completed.
28. A grievance has been raised by the appellants that the writ
petitioners did not make correct statement of facts before the writ
Court by which order dated 25.01.2018 was passed. That does not
give the concerned bank officials a licence to flout the order of the
Court. If the concerned bank officials were of the view that the writ
petitioners had not correctly stated the facts before the writ Court
and obtained an order in their favour by misleading the writ Court,
the only course open for them was either to seek review of the
order or to challenge the order in the higher Court of law, but none
of these legally permissible courses were taken recourse to.
(21 of 34) [SAC-22/2018]
29. Another argument has been raised that the order, of which
disobedience is alleged, was challenged by way of appeal by none
other than the writ petitioners, which was disposed off with liberty
to file review and thereafter, review was also filed. Therefore,
during pendency of the review, no contempt could be alleged.
30. This argument does not merit acceptance. Writ petitioners
had sought many more reliefs than what was granted to them by
the writ Court vide order dated 25.01.2018 and therefore, they
took recourse to the remedy available to them under the law.
Pendency of review petition at the instance of the writ petitioners,
in the absence of there being any order staying the effect and
operation of order dated 25.01.2018, could not be taken as a shield
because order dated 25.01.2018 continued to remain in force
despite pendency of the review petition. It is not a case where the
bank had filed review petition seeking review of the order on any
ground available to them under the law and without allowing
reasonable time to seek clarification, contemnors were subjected to
contempt proceedings. Order dated 25.01.2018 remained in full
force and effect. Therefore, the concerned bank officials could not
have proceeded to confirm the sale, issue sale certificate and
hurriedly deliver possession of the property to the auction
purchaser.
31. Both the contemnors as well as the auction purchaser have
raised a common ground that the direction of the learned Single
Judge, while passing the order of contempt, insofar as it seeks to
hold that the auction sale, which was in disobedience of the order,
was void ab initio, is not in conformity with the law.
(22 of 34) [SAC-22/2018]
Learned Single Judge, while holding the contemnors in
contempt petition guilty of willful disobedience, has recorded a
finding that the confirmation of sale on 26.04.2018 as also issuance
of sale certificate would be void, relying upon the judgment of the
Hon'ble Supreme Court in the case of Jehal Tanti and Others
(supra). On the other hand, specific reliance has been placed on
the judgment of the Hon'ble Supreme Court in the case of
Thomson Press (India) Ltd. (supra) that the sale would not
become technically invalid though party guilty of contempt may be
punished.
In the case of Thomson Press (India) Ltd. (supra), an
issue as to the effect of sale in breach of injunction was considered.
It was held that the breach of any injunction issued by any
competent court would not automatically render the transfer
whether by way of an absolute sale or otherwise ineffective. The
party committing the breach may doubtless incur the liability to be
punished for the breach committed by it, but the sale by itself may
remain valid as between the parties to the transaction subject only
to any direction which the competent Court may issue in the case.
The observations in this regard as contained in Para 52 of the said
judgment are as below:
"52. There is, therefore, little room for any doubt
that the transfer of the suit property pendete lite
is not void ab initio and that the purchaser of any
such property takes the bargain subject to the
rights of the plaintiff in the pending suit. Although
the above decisions do not deal with a fact
situation where the sale deed is executed in
breach of an injunction issued by a competent
Court, we do not see any reason why the breach
of any such injunction should render the transfer
whether by way of an absolute sale or otherwise
ineffective. The party committing the breach may
doubtless incur the liability to be punished for the
(23 of 34) [SAC-22/2018]
breach committed by it but the sale by itself may
remain valid as between the parties to the
transaction subject only to any directions which
the competent Court may issue in the suit against
the vendor."
In the case of Jehal Tanti and Others (supra), the issue
revolved mainly around the authority and jurisdiction of the Court
to pass interim order/injunction order while the issue with regard to
its jurisdiction is still pending consideration before that Court. It
has been held that even if, subsequently it is found that the Court
had no jurisdiction to deal with the subject matter before it, the
interim order passed by it before such declaration is made, would
not be treated to be ineffective during the period it was in
operation, but will lose its effect only after issue of its jurisdiction is
decided. The principles dealing with such a particular situation
were propounded as below:
"10. The nature and effect of an alienation made
in violation of an order of injunction was
considered in Tayabbhai M. Bagasarwalla v. Hind
Rubber Industries (P) Ltd. (1997) 3 SCC 443 and
the following propositions were laid down: (SCC
pp. 453-54 & 459-60, paras 16 & 27-28)
"16. According to this section, if an objection is
raised to the jurisdiction of the court at the
hearing of an application for grant of, or for
vacating, interim relief, the court should
determine that issue in the first instance as a
preliminary issue before granting or setting aside
the relief already granted. An application raising
objection to the jurisdiction to the court is
directed to be heard with all expedition. Sub-rule
(2), however, says that the command in sub-rule
(1) does not preclude the court from granting
such interim relief as it may consider necessary
pending the decision on the question of
jurisdiction. In our opinion, the provision merely
states the obvious. It makes explicit what is
implicit in law. Just because an objection to the
jurisdiction is raised, the court does not become
helpless forthwith -- nor does it become
incompetent to grant the interim relief. It can. At
the same time, it should also decide the objection
to jurisdiction at the earliest possible moment.
(24 of 34) [SAC-22/2018]
This is the general principle and this is what
Section 9-A reiterates. Take this very case. The
plaintiff asked for temporary injunction. An ad
interim injunction was granted. Then the
defendants came forward objecting to the grant of
injunction and also raising an objection to the
jurisdiction of the court. The court overruled the
objection as to jurisdiction and made the interim
injunction absolute. The defendants filed an
appeal against the decision on the question of
jurisdiction. While that appeal was pending,
several other interim orders were passed both by
the civil court as well as by the High Court.
Ultimately, no doubt, the High Court has found
that the civil court had no jurisdiction to entertain
the suit but all this took about six years. Can it be
said that orders passed by the civil court and the
High Court during this period of six years were all
non est and that it is open to the defendants to
flout them merrily, without fear of any
consequence. Admittedly, this could not be done
until the High Court's decision on the question of
jurisdiction. The question is whether the said
decision of the High Court means that no person
can be punished for flouting or disobeying the
interim/interlocutory orders while they were in
force, i.e., for violations and disobedience
committed prior to the decision of the High Court
on the question of jurisdiction. Holding that by
virtue of the said decision of the High Court (on
the question of jurisdiction), no one can be
punished thereafter for disobedience or violation
of the interim orders committed prior to the said
decision of the High Court, would indeed be
subversive of the rule of law and would seriously
erode the dignity and the authority of the courts.
We must repeat that this is not even a case where
a suit was filed in the wrong court knowingly or
only with a view to snatch an interim order. As
pointed out hereinabove, the suit was filed in the
civil court bona fide. We are of the opinion that in
such a case the defendants cannot escape the
consequences of their disobedience and violation
of the interim injunction committed by them prior
to the High Court's decision on the question of
jurisdiction.
* * *
27. The learned counsel for Defendants 1 and 2
submitted that this is not a proceeding for
contempt but a proceeding under Rule 2-A of
Order 39 of the Civil Procedure Code. The learned
counsel submitted that proceedings under Order
39 Rule 2-A are a part of the coercive process to
secure obedience to its injunction and that once it
is found that the Court has no jurisdiction,
(25 of 34) [SAC-22/2018]
question of securing obedience to its orders any
further does not arise. The learned counsel also
submitted that enforcing the interim order after*
it is found that the Court had no jurisdiction to try
the said suit would not only be unjust and illegal
but would also reflect adversely upon the dignity
and authority of the Court. It is also suggested
that the plaintiff had instituted the present suit in
the civil court knowing fully well that it had no
jurisdiction to try it. It is not possible to agree
with any of these submissions not only on
principle but also in the light of the specific
provision contained in Section 9-A of the Code of
Civil Procedure (Maharashtra Amendment). In the
light of the said provision, it would not be right to
say that the civil court had no jurisdiction to pass
interim orders or interim injunction, as the case
may be, pending decision on the question of
jurisdiction. The orders made were within the
jurisdiction of the Court and once this is so, they
have to be obeyed and implemented. It is not as
if the defendants are being sought to be punished
for violations committed after* the decision of the
High Court on the question of jurisdiction of the
civil court. Here the defendants are sought to be
punished for the disobedience and violation of the
order of injunction committed before* the
decision of the High Court in Land Acquisition
Officer v. Vishanji Virji Mepani AIR 1996 Bom.
366. According to Section 9-A, the civil court and
the High Court did have the power to pass interim
orders until that decision. If they had that power
they must also have the power to enforce them.
In the light of the said provision, it cannot also be
held that those orders could be enforced only till
the said decision but not thereafter. The said
decision does not render them (the interim orders
passed meanwhile) either non est or without
jurisdiction. Punishing the defendants for violation
of the said orders committed before the said
decision (Vishanji Virji Mepani) does not amount,
in any event, to enforcing them after the said
decision. Only the orders are being passed now.
The violations are those committed before the
said decision.
28. The correct principle, therefore, is the one
recognised and reiterated in Section 9-A -- to wit,
where an objection to jurisdiction of a civil court is
raised to entertain a suit and to pass any interim
orders therein, the Court should decide the
question of jurisdiction in the first instance but
that does not mean that pending the decision on
the question of jurisdiction, the Court has no
jurisdiction to pass interim orders as may be
called for in the facts and circumstances of the
(26 of 34) [SAC-22/2018]
case. A mere objection to jurisdiction does not
instantly disable the court from passing any
interim orders. It can yet pass appropriate orders.
At the same time, it should also decide the
question of jurisdiction at the earliest possible
time. The interim orders so passed are orders
within jurisdiction when passed and effective till
the court decides that it has no jurisdiction to
entertain the suit. These interim orders
undoubtedly come to an end with the decision
that this Court had no jurisdiction. It is open to
the court to modify these orders while holding
that it has no jurisdiction to try the suit. Indeed,
in certain situations, it would be its duty to modify
such orders or make appropriate directions. For
example, take a case, where a party has been
dispossessed from the suit property by appointing
a receiver or otherwise; in such a case, the Court
should, while holding that it has no jurisdiction to
entertain the suit, put back the party in the
position he was on the date of suit. But this power
or obligation has nothing to do with the
proposition that while in force, these orders have
to be obeyed and their violation can be punished
even after the question of jurisdiction is decided
against the plaintiff provided* the violation is
committed before the decision of the Court on the
question of jurisdiction." (emphasis supplied)"
That judgment did not deal with the effect and impact of
interim order on the transactions made while the interim order was
in force, though it has been held that it would amount to breach of
interim order and a defence that the interim order passed by the
Court which ultimately held that it has no jurisdiction, will not be
treated as non-est only because subsequently issue of jurisdiction
has been decided and it has been held that the Court, which passed
the interim order/injunction order, did not have the jurisdiction to
deal with the subject matter. The said judgment is not an
authority for the proposition that any sale transaction made during
the period the interim order was in force would be void or non-est.
32. On the other hand, the judgment of the Hon'ble Supreme
Court in the case of Thomson Press (India) Ltd. (supra) clearly
(27 of 34) [SAC-22/2018]
holds that the transaction of sale, in breach of injunction order,
would not be automatically ineffective though the party committing
the breach may incur liability to be punished for the breach
committed by it.
Therefore, in the considered opinion of this Court, the finding
of the learned Single Judge that the confirmation of sale and
issuance of sale certificate would be void ab initio is against the
principles laid down by the Hon'ble Supreme Court in the case of
Thomson Press (India) Ltd. (supra). At the same time, the
remedy would be available to the aggrieved party to seek
adjudication on this aspect by constituting separate proceedings
before the appropriate forum as may be permissible to it under the
law.
33. As far as the issue with regard to jurisdiction of the contempt
Court to issue supplementary directions is concerned, we need not
dwell upon this aspect because the directions, which are not
supplemental but consequential, have been issued by the learned
Single Judge on the finding that the confirmation of sale and
issuance of sale certificate is void ab initio. Certainly, if it was to be
held that it was within the jurisdiction of the Court deciding the
contempt petition to declare the confirmation of sale and issuance
of sale certificate void ab initio, the direction issued by the learned
Single Judge in contempt proceedings that the respondents-
contemnors are directed to take back possession of the contempt
petitioners' immovable property, would have been sustainable. It
was not supplementary direction, but consequential direction, the
principles laid down in the case of Sudhir Vasudeva, Chairman
and MD ONGC and Others (supra) would have no application.
(28 of 34) [SAC-22/2018]
In view of the findings as recorded above, it is not necessary for us
to make further comments, as the direction of taking back
possession is based on the finding that the confirmation of sale and
issuance of sale certificate was void ab initio, which has not been
upheld by us.
34. One of the arguments raised by the contemnors is that
without there being specific finding with regard to the role played
by each of the contemnors, learned Single Judge, while deciding
the contempt petition, has held all the contemnors guilty of
contempt. It is submitted that neither in the contempt petition, nor
in other supplementary affidavits, the contempt petitioners
specifically alleged role played by each of the contemnors. It has
been argued that even according to order dated 25.01.2018,
auction proceedings were not stayed and the direction was not to
confirm the auction proceedings. In the contempt petition, no
specific averments have been made as to how each of the
contemnors was involved in the process of confirmation of sale and
issuance of sale certificate.
35. In this regard, we find that at the time when the contempt
petition (S.B. Civil Contempt Petition No. 1003/2018) was filed, the
contempt petitioners alleged in the pleadings that despite order
dated 25.01.2018, sale notice dated 16.04.2018 was served on the
contempt petitioners on 20.04.2018. According to the contempt
petitioners, at the time when contempt petition was filed, action of
the contemnors in proceeding to hold auction under sale notice
dated 16.04.2018 was contemptuous. During the pendency of the
contempt petition, reply was filed by the respondents-contemnors
and it was revealed that the auction was not only held but the sale
(29 of 34) [SAC-22/2018]
was also confirmed. In Para 8.d of the reply filed by the
contemnors, it was disclosed that on 28.02.2018, fresh auction was
carried, in which the property was auctioned to the highest bidder
and sale certificate was issued on 26.04.2018. Along with the
additional affidavit, sale certificate dated 26.04.2018 has been filed
as Annexure P-7, which reveals that sale certificate has been issued
by Arinendu Shekhar in the capacity of Chief Manager, Asset
Recovery Cell and Authorised Officer, Bank of Maharashtra, Branch
Rajapark, Jaipur, Rajasthan. Said Arinendu Shekhar was not a
party in the contempt petition. The respondents-contemnors in the
contempt petition, though had defended the action of confirmation
of sale, neither from the contempt petition, nor from the reply,
additional affidavits or other pleadings filed by the parties including
the contempt petitioners, it would reveal as to what role was
played by the respondents-contemnors in the matter of
confirmation of sale and issuance of sale certificate followed by
delivery of possession and finally acceptance of bid amount offered
by the auction purchaser. Even after reply was filed by the
respondents-contemnors in the contempt petition revealing the
action of confirmation of sale and issuance of sale certificate, by
way of rejoinder affidavit or otherwise, the contempt petitioners
have not alleged that confirmation of sale and issuance of sale
certificate was under the directions/dictates of the contemnors
impleaded in the contempt petition. Who has confirmed the sale,
has not been specifically pleaded in the contempt petition. While it
is true that the appellants-bank officials have sought to defend the
action of confirmation of sale and issuance of sale certificate, which
has not been accepted by learned Single Judge and even, we are of
(30 of 34) [SAC-22/2018]
the view that confirmation of sale and issuance of sale certificate
was in the teeth of order dated 25.01.2018 passed in the writ
petition filed by the contempt petitioners, in the absence of there
being any specific pleading or material before us that the
confirmation of sale and issuance of sale certificate was at the
command/dictate/direction of the appellants (except Arinendu
Shekhar), who have been held guilty of contempt, even though we
are of the view that violation of the order of the Court had been
committed and the confirmation of sale and issuance of sale
certificate was in violation of the Court's orders, the authority, who
confirmed the sale and issued sale certificate, having not been
impleaded as party contemnor and those, who are impleaded as
party contemnors, not assigned any specific role in confirmation of
sale and issuance of sale certificate, we find ourselves unable to
hold that the respondents in the contempt petition are guilty of
contempt of court.
36. It appears that the order passed by the learned Single Judge
was taken as an order of wide sweep to include the officer, who had
confirmed the sale and issued sale certificate namely Arinendu
Shekhar, Chief Manager, though he was not party to the contempt
petition. Arinendu Shekhar is also one of the appellants in the
appeal (D.B. Civil Special Appeal (Civil) No. 22/2018) filed by other
three officials namely Shri Shankar Jha, Shri Rahul and Shri Pragati
Kumar, who were impleaded as respondents in the contempt
petition filed by contempt petitioners Nand Kishore and Mrs. Usha
Khandelwal.
37. In Appeal No. 22/2018, Appellant No. 4, Arinendu Shekhar,
who was concerned Chief Manager and confirmed the sale and
(31 of 34) [SAC-22/2018]
issued sale certificate, having not been impleaded in contempt
proceedings, had no opportunity to take defence that the order
dated 25.01.2018 passed by the Court was not within his notice
and knowledge. In the appeal, he has joined with other contemnors
only to justify the action of confirmation of sale and issuance of sale
certificate. There is neither any pleading, nor material to show that
Arinendu Shekhar (Appellant No. 4 in D.B. Civil Special Appeal
(Civil) No. 22/2018) was not only fully aware of the order dated
25.01.2018, but for all practical purposes also, he was in full
knowledge of the same, even then, he proceeded to confirm the
sale and issued sale certificate.
38. The contempt petition was filed against three persons namely
Shri Shankar Jha, Shri Rahul and Shri Pragati Kumar. We further
find that after reply was filed by aforesaid three contemnors, at a
later stage of the contempt petition, an additional affidavit was filed
on behalf of the contemnors, by Arinendu Shekhar (Appellant No. 4
in Appeal No. 22/2018). In the affidavit, Arinendu Shekhar claimed
to be acquainted with the facts and circumstances of the case in his
capacity as the Chief Manager and Authorised Officer of the Bank of
Maharashtra. He has further stated in the affidavit that he has
never flouted order of the Court knowingly or unknowingly and also
prayed for unconditional apology. Para 4 of the affidavit shows that
additional affidavit was filed in the contempt petition in compliance
of direction dated 25.07.2018 of the Court requiring the bank to file
a detailed affidavit detailing out the procedure adopted by the bank
for auction of petitioners' property. The contents of the affidavit
are to the effect that the proceedings were continued on
28.02.2018 and sale certificate was issued on 26.04.2018 and then,
(32 of 34) [SAC-22/2018]
registered in favour of auction purchaser in the Office of Sub
Registrar, Diggi, District Tonk on 27.04.2018. In his affidavit, he
has also stated that when the case was listed before the DRT on
20.04.2018, no interim relief was granted in favour of the
petitioners.
39. Be that as it may, no person can be punished for contempt
without being impleaded as party in contempt proceedings, without
he being issued notice and granting opportunity to him to rebut the
allegations of contempt. It appears that Arinendu Shekhar was the
Chief Manager and Authorised Officer in the bank, who had
conducted auction, confirmed sale and issued sale certificate, was
required by the higher officers to file affidavit in the contempt
petition to espouse the cause and defence of contemnors, who were
already impleaded in the contempt petition as respondents, rather
it being a case of Arinendu Shekhar himself being a party and
noticed by the Court.
We have already held hereinabove that the action of
confirmation of sale, issuance of sale certificate and all proceedings
thereafter were in the teeth of order dated 25.01.2018, which could
not have been done. However, that would only lead to conclusion
that there was disobedience of the order of the Court. In order to
hold that there was willful disobedience, the individual and
collective role of the contemnors impleaded in the case has to be
examined. Unless definite conclusion is reached by the Court that
the disobedience was willful in nature, a person cannot be held
guilty of contempt of Court.
40. The contemnors, who were already impleaded in the contempt
petition namely Shri Shankar Jha, Shri Rahul and Shri Pragati
(33 of 34) [SAC-22/2018]
Kumar have stated in para 12 of their reply that they have never
flouted order dated 25.01.2018 in any manner whatsoever and it
has also been averred that the petitioners have dragged higher
officials of the bank, who have not been involved in any capacity
whatsoever in the alleged transaction without any rhyme and
reason. Therefore, it was the burden of the petitioners to clearly
plead and prove that insofar confirmation of sale, issuance of sale
certificate followed by transfer of possession of the property is
concerned, the three contemnors, who were impleaded in the
contempt petition had a role to play.
Insofar as Arinendu Shekhar is concerned, the records do
reveal that it was he, who had confirmed the sale and issued sale
certificate, which was in violation of order dated 25.01.2018
because the interim order was operative, as discussed in detail
hereinabove, Arinendu Shekhar was not impleaded as party, nor
any notice of contempt proceedings was issued to him. Therefore,
he also cannot be held guilty of contempt of Court. There is
nothing in the order passed by the learned Single Judge, which
discusses the role played by Arinendu Shekhar and then come to
the conclusion that even though he was not impleaded as party in
the contempt petition, he appeared to be a person willfully
disobeying the order of the Court.
41. In view of above considerations, the order passed by the
learned Single Judge cannot be sustained in law and, therefore, the
same is set aside.
As the contempt petition is still pending because punishment
order was not passed, we allow the contempt petitioners to move
application for impleadment of Arinendu Shekhar as respondent-
(34 of 34) [SAC-22/2018]
contemnor in the pending contempt petition. It goes without
saying that so far as other contemnors, who were originally
impleaded as respondents in the contempt petition, can no longer
be proceeded against as this Court has held that they are not guilty
of contempt of Court. As already observed hereinabove, it would
be open for the contempt petitioners to institute separate
proceedings to challenge the auction proceedings and seek
recovery of property on such grounds as may be available to them
under the law including the ground that the confirmation of auction
sale and all subsequent proceedings were in violation of the Court
order.
42. Both the appeals are accordingly allowed in the manner and to
the extent as stated above.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ
MANOJ NARWANI
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