It will destroy respect for the Rule of Law and the authority of courts and seek to place individual authority and strength of numbers above the wisdom of law.” Mohd. The Civil Appeal No 4955 of 2022 and Civil Appeal No 5041 of 2022 are statutory appeals under Section 19(1) of the Contempt of Courts Act, 1971 (for short, ‘the Act 1971’) filed by the contemnors who stood punished by the High Court whereas the Civil Appeal No 4869 of 2023 is an appeal filed at the instance of the beneficiaries of contemptuous transactions with the Page 3 of 83 permission of this Court. 3.1 to 3.4 and accused No 4 guilty of Contempt for their deliberate and wilful disobedience of the undertaking given to this Court which came to be recorded by order dated 14.10.2015 passed in Special Civil Application No.
2,000/- (Rupees Two Thousand only) each and the amount of fine shall be paid within a period of three weeks from today and in default thereof they shall undergo simple imprisonment for a period of two (2) months. Considera tion Name of the purchaser Page 5 of 83 1 9-11-15 118.48 79 103115/-
Jagdish Chug 2 9-11-15 118.48 8015/- Rama Rani 3 19-2-16 118.48 119A 8500/- Prakash Kundu 4 19-2-16 118.48 199B 8500/- Prakash Kundu 5 19-2-16 118.48 200 8500/- Prakash Kundu 6 15-3-16 118.48 122B (56) 8500/- Mafatlal Kalidas HUF 7 15-3-16 118.48 122C (55) 8500/- Mafatlal Kalidas HUF 8 17-5-17 152 27 8500/- Sudesh Dingra 9 17-5-17 152 27A 8500/- Shilpi Ravi 10 17-5-17 152 28 8500/- Roshan Lal 11 25-7-17 118.48 176 8500/- Sami Kumar 2,82,730/- Page 6 of 83 3 Sale deeds done /added afterwards 12 30-10-18 19.26 Shop No. Having regard to the facts of above case, we are of the considered view that it would be just and necessary to stay this order for a period of four weeks from today. Accordingly, we grant stay of this judgment for a period of four weeks from today subject to accused Nos. Thus, it appears that a statement was made by the learned counsel appearing for the contemnors before the High Court in the form of an undertaking and that too upon instructions of the clients that the subject matter i.e., the property would not be sold till the main petition i.e., the Special Civil Application No 16266 of 2013 is finally disposed of. Prabhav Mehta learned advocate for the applicants states that in view of the order dated 14 October, 2015 passed by learned single Judge in Civil Application No 11412 of 2015 in SCA No 16266 of 2013, wherein the statement is recorded that the property in question qua the subject matter of this entry shall not be sold until the main petition is heard and decided, he seeks permission to withdraw the proceedings. The High Court first took notice of the various sale Page 9 of 83 deeds that came to be executed by the appellants herein between 09.11.2015 and 30.10.2018, which were in wilful disobedience of the undertaking given to the High Court. Plot area Consid eration Conside ration as per Index Value Sale Deed date 1 157 Jagdish Chug 79 118.48 103115/- 568704/- 9-11-15 2 158 Rama Rani 80 118.48 103115/- 568704/- 9-11-15 3 159
Prakash Kundu 199A 118.48 8500/- 568704/- 19-2-16 4 160 Prakash Kundu 199B 118.48 8500/- 568704/- 19-2-16 5 161 Prakash Kundu 200 118.48 8500/- 568704/- 19-2-16 6 162 Mafatlal Kalidas HUF 122B (56) 118.48 8500/- 568704/- 15-3-16 7 163 Mafatlal Kalidas HUF 122C (55) 118.48 8500/- 568704/- 15-3-16 8 164 Sudesh Dingra 27 152 8500/- 729600/ 17-5-17 9 165 Shilpi Ravi 27A 152 8500/- 729600/ 17-5-17 10 166 Roshan Lal 28 152 8500/- 729600/ 17-5-17 11 167 Sami Kumar 176 118.48 8500/- 568704/- 25-7-17 282730/- 6738432/- 2 Sale deeds done / added afterwards 12 518 Trilokram Mali Shop No. In fact in the affidavit dated 23.01.2019 filed in the present contempt proceeding, 4 respondent has categorically deposed to the following effect: “I state that I am the power of attorney holder of other respondents in Misc.
It came to be observed by this Court on 29.01.2019 to the following effect: “In the present proceedings, affidavits have been filed by the private respondents wherein unconditional apology is tendered and a categorical statement is made that there is no scope for justification of the action of execution of Sale Deeds after such consent was recorded; namely to maintain status- quo on the subject land. It is this undertaking given to this Court on 14.10.2015 which prevented the applicants herein to withdraw the said appeal and it is this solemn assurance given to the Court which per-forced them to withdraw the appeal by recording the statement made by the learned Senior Counsel appearing on behalf of respondent Nos.3.1 to 3.4 and 4 respondent.” (Emphasis supplied) 15. In para 35 of the impugned judgment, the High Court observed that the contemnors had not only violated the undertaking given to the court but had also taken undue advantage unto themselves, namely, the sale consideration having flown from the purchasers to the contemnors. Even according to the recitals found in the Sale Deeds referred to in the tabular column hereinabove, it is depicted as Rs.2,82,730/- (in respect of 11 Sale Deeds); in respect of 2 Sale Deeds executed in the year 2017-18, the consideration has been depicted as Rs.3,40,230/-. In fact, the defence put-forth by contemnor No.3.1 to the effect that she is a housewife, has been denied in the rejoinder affidavit filed by applicants by raising a specific plea that in Special Civil Suit No.130 of 1995 filed before the 2 Additional Senior Civil Judge, Surat, respondent No.4 in the cross-examination has deposed that respondent No.3.1 is engaged in the textile business and she is a Director of M/s. It is also contended that sale consideration depicted in the Sale Deeds are farce and to overreach the order of the Court less consideration has been reflected as against the real value. To highlight the fact that alleged possession certificate which has been relied upon to contend that sale transaction had already been completed way back in the year 2012 when compared to the Sale Deed dated 09.02.2016, it would clearly indicate that survey numbers depicted in both these documents are distinct and different. 4 categorically admits of execution of sale deed, however, he tries to feign ignorance by deposing in his affidavit dated 28.08.2018 to the following effect:- “I say that the main allegation made against us is, that contrary to the orders of this Hon’ble Court dated 14.10.2015, we have sold the property to the persons who are mentioned in the indexed documents annexed with the contempt application. In para 40, the High Court took notice of the fact that even after notice was issued to the contemnors in the contempt proceedings, they continued to commit further acts contempt.
in the land bearing Survey No 63 which land was also agreed not to be sold by way of undertaking given to this Court on 14.10.2015. The High Court thereafter, considered whether the unconditional apology tendered by the contemnors deserved to be accepted and whether they should be exonerated from the contempt proceedings or not. 3.1 to 3.4 not having taken any steps as expected of a reasonable prudent person to cancel the power of attorney given to 4th respondent at the first available opportunity but on the other hand having sold the property even after notice of contempt being served upon them, we are of the considered view that remorse expressed or unconditional apology tendered by them cannot be accepted as genuine and/or bona fide. 3.1 to 3.4 not even cancelling sale deeds would be sufficient to arrive at a conclusion that contrition or remorse expressed by them is not bona fide and has been made to stave off the contempt proceedings by making a show of apology having been tendered and trying to take umbrage by contending that accused no. The proceedings initiated were not barred under Section 20 of the Act 1971. I sincerely regret that the execution of the sale deeds was in breach of the statement made by learned counsel on my behalf. Mukul Rohatgi, the learned Senior Counsel appeared for the appellants of Civil Appeal No 5041 of 2022. 1 and 2 respectively had no idea or proper knowledge as to what was transpiring in the proceedings before the Revenue Authorities or the High Court for the reason that the appellants had appointed Balwantbhai Somabhai Bhandari (appellant of the Page 18 of 83 connected appeal) as their power of attorney holder.
The proviso to the said section states that ‘accused may be discharged or punishment awarded may be remitted on apology being made to the satisfaction of the court’. (f) The High Court committed error in recording that the properties were sold even after the notice of contempt was issued to the appellants. IFCI Limited, (2010) 14 SCC 77; and (iv) Abhishek Kumar Singh v. Mihir Joshi, the learned Senior Counsel appearing on behalf of the appellants in the Civil Appeal No 5041 of 2022 made the following submissions: (a) The High Court has erred in not accepting the apology tendered by the appellants on the ground that it was not tendered at the first instance. (b) In fact, the contempt proceedings were not maintainable at all Page 21 of 83 since the statement recorded on behalf of the appellant in the order dated 14.10.2015 is neither an order of the Court nor an undertaking given to the Court and therefore, there could be no breach thereof, amounting to civil contempt as contemplated under section 2(b) of the Act 1971.
The High Court should have looked into the documents such as possession receipts, payment receipts and extracts of bank ledger statements, in respect of the subject sales produced before the High Court.
The High Court erred in holding in para 35 that an imaginary plea had been made by way of a defence that cash transaction took place for sale in the year 2012 wherein no date is mentioned. (iv) The High Court erred in overlooking that the standard of proof required in a contempt proceeding, being a quasi-criminal proceeding, is that of a criminal proceeding and the breach has to be established beyond reasonable doubt. (f) The High Court erred in imposing a sentence of imprisonment for civil contempt without assigning any reasons as to why such an exception had to be made more particularly overlooking the following: (i) A close scrutiny of Section 12(3) indicates that the legislature intended that in case of civil contempt a sentence of fine alone should be imposed except where the Court considers that the ends of justice make it necessary to pass a sentence of imprisonment also. (ii)
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The High Court erred in overlooking the bona fides of the Appellants which would have established that there was no wilful breach of the statement recorded in the order dated 14.10.2015 and in any case, would certainly not justify imprisonment. (ii) and (iii) contained in para 63 directing the accused to restore the position prevailing prior to the statement recorded in the order dated 14.10.2015, the appellants have also returned the consideration amount and requested the purchasers for compliance with the judgment. The High Court could have balanced the equities rather than setting aside the sale deeds already executed bona fide by the Appellant. On the other hand, the learned counsel appearing for the respondents herein vehemently submitted that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned judgment and order. The learned counsel appearing for the respondents made the following submissions: (a) The assurance given by the learned senior advocate to the court as recorded in order dated 14.10.2015 by the High Court is a clear undertaking as per Sections 12 and 13 respectively of the Act 1971. Further, as a clear continuing act of contempt, even after the execution of the sale deeds the appellants failed to bring the said aspect to the notice of the High court. The High Court has duly taken notice of this fact in its impugned order (para 35 at page 38). Such dubious conduct of the appellants goes to show that despite committing contempt and having shown no remorse, they are still trying to misguide this Court by producing such documents which from their very bare reading appear to be false, unreliable and fabricated. Shyam Divan, the learned Senior Counsel appearing for the purchasers submitted that the High Court committed a serious error in declaring the sale deeds executed by the contemnors in favour of his clients as non est or void. Shyam Divan, the learned counsel appearing for the respondents suggests that the appellants (purchasers) have further transferred the properties and as on date they have no further interest in the subject properties.
The object of the discipline enforced by the court in case of contempt of court is not to vindicate the dignity of the court or the person of the Judge, but to prevent undue interference with the administration of justice. The following conditions must be satisfied before a person can be held to have committed civil contempt: ( i ) there must be a judgment, decree, direction, order, writ or other process of a court; ( ii ) there must be disobedience to such judgment, decree, direction, order, writ or other process of a court; and ( iii ) such disobedience of the judgment, decree, direction, Page 34 of 83 order, writ or other process of a court must be wilful. The Act 1971 is intended to correct a person deviating from the norm and trying to breach the law/assuming law on to himself. This Court in a plethora of cases has explained the true purport of exercise of powers under the 1971 Act. It is in this context that the observations of this Court in Murray case [(2000) 2 SCC 367 : 2000 SCC (Cri) 473] in which one of us (Banerjee, J.) was party needs to be noticed: (SCC p. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which can even remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law courts thus would forfeit the trust and confidence of the people in general.”” 47. A close scrutiny of sub-section (3) of Section 12 demonstrates that the legislature intended that in the case of civil contempt a sentence of fine alone should be imposed except where the court considers that the ends of justice make it necessary to pass a sentence of imprisonment also.
Thus before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. We would like to address ourselves broadly on four questions: (i) Whether the wilful breach of an assurance in the form of an undertaking given by a counsel/ advocate on behalf of his client to the court would amount to “civil contempt” as defined under Section 2(b) of the Act 1971?
In other words, although the transfer of the suit property pendente lite is not void ab initio yet when the court is looking into such transfers in contempt proceedings, whether the court can declare such transactions to be void in order to maintain the majesty of law? An act or omission is “willfully” done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act’) defines “civil contempt” to mean “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court…”. Before a contemner is punished for non-compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. If from the circumstances of a particular case, brought to the notice of the court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court may not punish the alleged contemner.”
(Emphasis supplied) 53.
Wilfulness signifies deliberate action done with Page 42 of 83 evil intent and bad motive and purpose. Pattabiraman, (1985) 1 SCC 591], Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255 : AIR 1989 SC 2185], Niaz Mohammad v. State of Haryana, (1994) 6 SCC 332 : AIR 1995 SC 308], Chordia Automobiles v. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. Kedar Nath Gupta, (1992) 4 SCC 697 : 1993 SCC (L&S) 202 : (1993) 23 ATC 400], Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530 : 2001 SCC (L&S) 1196], Anil Ratan Sarkar v. State of U.P., (2010) 3 SCC 705 : (2010) 2 SCC (Cri) 451] and National Fertilizers Ltd. Hence, the expression or word “wilful” means act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids or with the specific intent fail to do something the law requires to be done, that is to say with bad purpose either Page 44 of 83 to disobey or to disregard the law. As the entire controversy revolves around the question whether the statement made by the learned counsel before the High Court was an undertaking on behalf of his clients and if yes then whether such undertaking Page 45 of 83 could be said to have been given to the court, we must look into two decisions on this point; one rendered by the Bombay High Court and another by the Calcutta High Court.
The Advocate General has also referred us to the forms and orders that appear in “Seton on Decrees and Orders”, and in those forms the expression used has always been “a party undertake” and never “a party undertakes to the Court.” Therefore, in English Courts as well, the expression “a party undertakes” when used in decrees or orders has come to acquire the same technical meaning. It was expressed that if the court had considered that the expression “undertaking” had come to acquire a technical meaning and if he had considered that aspect of the case, he would not have come to the conclusion that the only way to construe the expression ‘undertaking’ was to give it its plain natural meaning. Lahoriram Prashar, (1962-63) 67 CWN 819 considered the aforesaid two cases and construing the decree in that case held that the undertaking given by the opposite party was an undertaking given to court and the opposite party always understood the undertaking as one given to the court. Per contra, the Bombay High Court, in Bajranglal Gangadhar Khemka (supra) had drawn a distinction between the execution proceedings and proceedings for contempt which arise from wilful default of an undertaking. Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt as meaning “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”.
(emphasis supplied) Analysed, the definition provides for two categories of cases, namely, (1) wilful disobedience to a process of court, and (2) wilful breach of an undertaking given to a court. With reference to the second part, in Rama Narang (supra) it was observed that giving of an undertaking is distinct from a consent order recording compromise. As held by the Delhi High Court in Suman Chadha (supra), in case of reasonable doubt it is not fair and reasonable for the Courts to exercise jurisdiction under the Act for the proceedings are quasi-criminal in nature and the standard of proof required in these proceedings is beyond all reasonable doubt and not mere probabilities. Central Bank of India reported in AIR 2021 SC 3709, wherein this Court made important observations in paras 25 and 26 respectively. Surjit Singh Arora reported in (1996) 6 SCC 14, it was observed that even if parties have not filed an undertaking before the court but if the court was induced to sanction a particular course of action or inaction on the representation made by a party and the court ultimately finds that the party never intended to act on the said representation or such representation was false, the party would be guilty of committing contempt. In other words, if on the representation of the respondent herein the Court was persuaded to pass the order dated 5-10-1995 extending the time for vacation of the suit premises, he may be held guilty of contempt of court, notwithstanding non-furnishing of the undertaking, if it is found that the representation was false and the respondent never intended to act upon it. On March 13, 1980 when the judgment was pronounced the counsel for the tenant made a request to Court for grant of time to vacate shop No 6. An undertaking is a promise, given to the Court by a party to a proceeding, to do or not to do particular thing, which is enforceable as an injunction because when the Court accepts an undertaking given by a party, its order amounts in substance to an injunction. Thus, the expression a party “undertakes” or “gives a solemn promise” or “it is stated at the Bar on instructions from clients that the property shall not be sold” used in the statements of the parties or their counsel or in the orders and decrees of the court, unless the context otherwise suggests, means an implied undertaking to the court. Sanjanwala learned senior advocate, on instructions from his clients, that the property qua the subject matter of this entry and the petition, shall not be sold out till the main petition is heard and decided, which satisfies the conscious of Mr. It is true that every undertaking given by a party to a litigation may not be an undertaking to the court; there is a difference between an undertaking given to the other party and an undertaking given to the court.
Even if the parties, had negotiated a settlement outside the court and reported the same to the court and the court would have passed an order, in terms of such understanding, there would be no scope to warrant that the undertaking was not given to the court. The High Court is right in saying that it is this undertaking given to the court on 14.10.2015 that persuaded the respondents herein to withdraw the said appeal and it is such solemn assurance given to the court which per forced them to withdraw the appeal by recording the statement made by the learned Senior Counsel appearing on behalf of the contemnors. The approach may require the Court to issue directions either for reversal of the transactions in question by declaring said transactions to be void or passing appropriate directions to the concerned authorities to see that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him. Kalyan Kumar Kisku and Others reported in (1994) 2 SCC 266, wherein the contempt jurisdiction was invoked by the respondents against the appellants, and during the contempt proceedings, it transpired that a sub tenancy was created while the status quo order was in operation. Any act done in the teeth of the order of status quo is clearly illegal. 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 directions which the competent court may issue in the suit against the vendor.” (Emphasis supplied) Page 59 of 83 84.
This Court while relying upon cases decided by various High Courts held as under: “ The contemner should not be allowed to enjoy or retain the fruits of his contempt Xxx xxx xxx 18. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Suppiah [AIR 1975 Mad 270 : (1975) 2 MLJ 54] and Sujit Pal v. [AIR 1975
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Mad 270 : (1975) 2 MLJ 54] it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. It Page 61 of 83 held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party.
Tosh Apartments Private Limited and Others reported in (2012) 8 SCC 384, while deciding on a similar factual scenario held that the sale transactions conducted in teeth of the injunction passed by the Delhi High Court did not have any legal basis.
Case Title: BALWANTBHAI SOMABHAI BHANDARI Vs. HIRALAL SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS.
Case Number: C.A. No.-004955 / 2022
