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CASE NO.:

Contempt Petition (civil) 488 of 1998

Contempt Petition (civil) 281 of 1998

Appeal (civil) 1771 of 1990

PETITIONER:

BANK OF INDIA .

Vs.

RESPONDENT:

VIJAY TRANSPORT & ORS.

DATE OF JUDGMENT: 22/10/2000

BENCH:

S.P.Bharucha, Y.K.Sabhawal, Ruma Pal

JUDGMENT:

RUMA PAL, J

L.....I.........T.......T.......T.......T.......T.......T..J

This proceeding in contempt was initiated by this

Court suo

motu, on a prima- facie finding that the respondents 2

and 3 were guilty of contempt not only by dealing with

property which was custodia legis but also by disobeying

orders of Court. At the conclusion of the arguments we are

of the confirmed view that the prima facie conclusion

arrived at by us was correct, and that the respondents 2 and

3 are liable to be punished for their contumacious conduct.

The respondent No. 2 describes herself as the sole

surviving partner of the respondent No.1. The respondent

No. 3 is the husband and power of attorney holder of

respondent No. 2. The litigation out of which this

proceeding arises commenced in 1975 when the petitioner-bank

filed a suit against respondent no. 1 interalia for

recovery of a sum of Rs. 18,14,817.91. The suit was

instituted in the Court of the Sub Judge, Eluru in the State

of Andhra Pradesh. The respondent No.1 raised a counter

claim against the petitioner for a sum of Rs. 34,48,799.

On 6th July 1976, the petitioners claim was decreed only to

the extent of a sum of Rs. 1,00,418.55. The counter claim

of the respondent No.1 was however allowed in its entirety

with costs. The petitioner-bank preferred an appeal before

the High Court and prayed for stay of the execution of the

decree as far as the counter claim was concerned. The High

Court, by an order dated 28.12.1976, granted the stay

subject to the petitioner-bank depositing Rs. 16 lakhs as

well as a further sum of Rs. 48,890.95 towards costs in the

Court of the Subordinate Judge, Eluru. The respondent No.1

was given the liberty to withdraw the sum of Rs. 16 lakhs

upon furnishing a bank guarantee for the same amount. The

respondent No.1 was also given the liberty to withdraw the

amount deposited on account of costs unconditionally. The

petitioner-bank deposited the amount of Rs. 16 lakhs and

Rs. 48,890.95 in the Subordinate Judges Court at Eluru..

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The respondent No.1 withdrew both sums after furnishing a

bank guarantee in favour of the Subordinate Judge for Rs.

16 lakhs. The bank which guaranteed the amount was the

Karnataka Bank. On 20th September, 1983 the

petitioner-banks appeal was allowed by the High Court. The

High Court held that the petitioner-bank was entitled to a

decree for a sum of Rs. 18,49,209.70 together with Rs.

8,15,324.92 as interest @ 12% p.a. According to the High

Court, the petitioners claim would have to be scaled down

because of the provisions of the Andhra Pradesh (Andhra

Areas) Agriculturists Relief Act, 1938. The counter claim

of the respondent no.1 was dismissed in toto. From this

decision both the petitioner-bank and the respondent No.1

preferred appeals by way of special leave to this Court. No

stay was obtained of the High Courts decision in either of

the appeals. During the pendency of the appeals before this

Court, the petitioner-bank applied to the Subordinate Judge,

Eluru for restitution of the amount which had been deposited

by the petitioner pursuant to the order of High Court dated

28.12.1976. The Sub Judge, Eluru directed the Karnataka

Bank to deposit the sum of Rs. 16 lakhs guaranteed by it

together with the interest accumulated thereon within one

month. The Karnataka Bank complied with the order and the

amount so deposited was allowed by the Sub Judge to be

invested with the Eluru Branch of the petitioner-bank in a

Double Benefit Deposit Account for a period of 12 months.

The facts as subsequently revealed show that it was at this

point that the respondents conceived a plan to whisk away

this amount of Rs.16 lakhs a plan which was cunningly and

carefully forged, link-by-link. It started with an

application filed by the respondent No.1 before the District

Court for transferring the application for restitution from

the Sub Judge, Eluru to the Sub Court, Tadepalligudem on the

ground that there was an apprehension that the Sub Judge

Eluru, would not do justice to the respondents. The

petition was dismissed by the District Judge on 30th

September, 1985. An appeal was preferred before the High

Court on 7th October, 1985. By an ex-parte order the High

Court of Andhra Pradesh allowed the transfer. The

petitioner-bank unsuccessfully filed a review petition

before the High Court against the exparte order of transfer.

The review petition was rejected on 18th November 1985. On

the very next day ( that is, 19th November, 1985) the Sub

Judge, Tadepalligudem as full Additional Charge of

Subordinate Judge, Eluru, directed the Branch Manager of

the petitioners Eluru Branch to prematurely encash the

Double Benefit Deposit Certificate and to transfer the same

to the Sub Judge, Tadepalligudem because the execution

records had already been transferred there. On 28th

November 1985, the same Judge passed an order on the

application of the petitioner-bank stating that the bank

deposit need not be encashed until the disposal of the

pending applications for restitution. Yet, before the

applications were disposed of, on 20th December, 1985 the

Judge, on an application moved by the respondents, directed

the petitioner-bank to encash the deposit receipt for Rs.

16 lakhs and to send the same with the accrued interest by

way of Bankers cheque or Demand Draft in the name of the

Subordinate Judge, Tadepalligudem. The order was

communicated to the Branch Manager of the petitioner-bank at

Eluru by the Sheristadar and Bench clerk of the Subordinate

Judge who were accompanied by an advocate and an officer of

the State Bank of India, Tadepalligudem. All of them

insisted on the immediate encashment and payment of the

proceeds of the fixed deposit. They refused to leave until

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the Branch Manager agreed to send one of his officials to

the Tadepalligudem Court. On 24th December 1985, the

petitioners applications for restitution were taken up for

hearing. At the conclusion of the hearing, at the instance

of the respondents, a notice was issued by the Subordinate

Judge, Tadepalligudem to the petitioners Branch Manager,

Eluru directing him to appear in person on 26th December

1985 and explain why he had not complied with the order

dated 20th December 1985. On 26th December 1985, the Branch

Manager appeared before the Subordinate Judge,

Tadepalligudem and deposited the amount of Rs. 16 lakhs in

his Court in the form of a pay order. Significantly, on

that very day, a current account in the name of the

respondent No.1 was opened in the State Bank of India,

Tadepalligudem Branch by the respondent No. 3 as the Power

of Attorney holder of respondent No. 1. On 27th December

1985 at about 10.00 a.m., the Subordinate Judge,

Tadepalligudem handed over the pay order issued in his

favour by the petitioner-bank to the officer of the State

Bank of India Tadepalligudem Branch. The pay order was

cleared on the same day and the State Bank of India

deposited the proceeds after encashment in the Civil Court

Deposit Account of the Subordinate Court, Tadepalligudem.

On the same day, the Subordinate Judge issued a cheque on

the said current account for a sum of Rs. 16, 30,619.18p

with the direction to the State Bank to keep the amount in

term deposit receipt for a period of 15 days and the State

Bank of India complied with the direction. As to what

transpired after this is best stated in the language used by

the Law Officer of the petitioner-bank in his affidavit

affirmed on 1st January 1986 : On 30.12.1985 the

Sub-Judge, came to the Bench at 10.30 A.M. and pronounced

the orders in all Execution Applications at 10.45 A.M. No.

allowed E.A.207/85 and thus reviewed the orders passed in

E.A. 363/84 and dismissed E.A. 363/84 E.A.196/85 E.A.

197/85 but allowed E.A.199/85 granting interest only at 6%

while rejecting E.A.198 and 200/85. Immediately our

Advocate presented a cheque petition with an out of order

petition after due notice to the Advocate of Vijay Transport

at about 10.50 a.m. In the said petition, we stated that

the bank is entitled for the amount of the orders on the

E.As. The learned Subordinate Judge got down from the Bench

after call work at about 11.25. Suspecting that the Judge

is prepared to pay the amount to the Vijay Transport our

Advocate prepared a stay petition at 1.30 p.m. and after

notice to the respondents Advocate went to the court and

sent a word to the Sub-Judge about the said petition which

he intended to file. He was asked to wait in the Court

hall. Till about 2.55 p.m. there was no word from the

Judge and on the other hand the Advocate was informed that

the Judge and bench clerk (were) discussing about the

matter. At about 2.55 p.m our Advocate repeatedly enquired

with the court staff the reason for the delay. At 3.p.m.

on the instructions of the Sub-Judge Execution Bench clerk

received the said petition from our advocate. Meanwhile our

advocates clerk also happened to see the cheque petition

filed by Vijay Transport lying on the table of the Bench

clerk.

9. I submit that no cheque petition was presented

with any out of order petition in the open court by any of

the Advocates of the Vijay Transport or party person. I

also submit that no notice was issued either to us or to the

Karnataka Bank who has deposited Rs.16 lakhs on the cheque

petition. The Advocate for the Vijay Transport was not

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present in the court between 10.50 a.m. to 4.15 p.m. on

30.12.1985. Our Advocate Mr. Ch.S. Kameswararao waited in

the hall till 4.10 p.m. and he was informed that our stay

petitions and cheque petitions were dismissed since a cheque

was ordered in favour of M/s Vijay Transport in E.A.

252/85.

While the petitioner-banks representative was kept

waiting by the Sub Judge, it is seen from the affidavit

affirmed on 7th February 1996 by the State Bank of India in

the proceedings before us that: On 30.12.1985, the learned

Subordinate Judge, through his letter dated 30.12.1985,

enclosing the said deposit receipt requested this respondent

to cancel the term deposit receipt No.209215 dated

27.12.1985 and adjust the same to the Civil Court deposit

challan No. 157 dated 30.12.1985. Accordingly, it was done

on the same date. On 30.12.1985 itself, the learned Sub

Judge issued a Civil Court cheque favouring the 1st

Respondent for a sum of Rs.16,30,619=18. It was presented

on the same day. Hence accordingly, this respondent (i.e.

the State Bank of India) debited Civil Court deposit account

of Sub Judge, Tadepalligudem, and credited the same to the

account of 1st respondent. On the same day, the 1st

respondent presented a cheque bearing No. 248178 dated

30.12.1985 for Rs.16,00,000=00 requesting this respondent to

issue a demand draft on its Guindy Branch, Madras in favour

of 3rd respondent on debiting commission to this account.

Towards the commission, he issued another cheque bearing No.

248180 dated 30.12.85 for Rs.800=00. Thereupon, this

respondent (SBI) issued two demand drafts for

Rs.8,00,000=00 each bearing No.168997 and 168998 dated

30.12.1985 favouring 3rd respondent. Another cheque was

issued bearing No.248179 dated 30.12.1985 for Rs.25,000=00

demanding the respondent to pay cash. Accordingly, cash was

paid.

The petitioner-bank challenged the order dated 30th

December 1985 by way of a Civil Revision Petition. A stay

application was moved at the residence of the Judge of the

High Court and an interim order was passed at 9.35 a.m. on

2nd January 1996 restraining the State Bank of India,

Tadepalligudem Branch from paying the sum of Rs.16,30,619.18

p to the respondents and also restraining the respondents

from withdrawing the amount from the State Bank of India,

Tadepalligudem or their order pending further orders on the

petition. This order was communicated by a Telex message to

the State Bank of India. But the respondents withdrew the

amount on 30th December, 1985 itself and the interim order

of injunction was successfully thwarted by the respondents.

The High Court directed proceedings to be initiated for

recovery of the amount from respondent No. 1 and thereafter

payment of the money to the petitioner-bank. Despite this

order, the respondents did not repay the amount. On 3rd

March 1986, this Court in the petitioners pending appeal

directed the sale of vehicles which had been hypothecated by

respondent No. 1 to the petitioner-bank. No vehicles were

handed over by the respondent No. 1 to the petitioner-bank.

On 22nd September 1986, the following order was passed by

this Court in the appeal filed by respondents: Shri U.R.

Lalit, learned counsel for appellants M/s Vijay Transport &

Ors. states that the amount of Rupees sixteen lakhs and odd

will be deposited with Bank of India, respondent No. 1 on

or before 30th November 1986. If the amount is not

deposited within the aforesaid period this appeal will stand

dismissed.

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Needless to say, the amount was not deposited. This

is recorded in this Courts order dated 9th December 1986 in

the following words: Since the amount has not been

deposited as ordered by this Court, the appeal stands

dismissed in terms of the order dated the 22nd September

1986. The appeal is dismissed.

On 11th November 1987, the petitioner-banks appeal

from the judgment and order of the High Court dated 20th

September 1983 was allowed and the bank was given the right

to recover the entire amount decreed without any scaling

down under the Andhra Pradesh (Andhra Areas) Agriculturists

Relief Act, IV of 1938. The petitioner-bank was, therefore,

in a situation where the claim filed by them in 1975 was

ultimately decreed in 1987. But in the process it had not

only not recovered any amount from the judgment debtor, but

on the other hand, because of the machinations of the

respondents, it had been deprived of a further sum of over

Rs.16 lakhs which had been deposited by it in the custody of

the Court. The application filed by petitioner-bank before

the High Court for direction to the respondents including

the State Bank of India, Tadepalligudem Branch to deposit

the amount within a week was rejected by the order dated

18th October 1998. The petitioner- bank impugned the order

of refusal of the High Court before this Court on 18th

October 1989. Affidavits were filed. It was during these

proceedings that this Court issued the suo motu notice to

the respondent No. 2 on 29th April 1998 as under: We have

heard learned counsel for the appellant and learned counsel

for 2nd respondent. Quite apart from whether or not the

appellant succeeds in this civil appeal, the facts of the

civil appeal reveal a prima facie case of contempt of court

in that there appears to have been flagrant disobedience by

the 2nd respondent of court orders and dealings by her in

monies which were custodia legis. This court cannot turn a

blind eye to such conduct.

Issue suo moto contempt notice to the 2nd respondent

returnable in August 1998. The Civil Appeal is adjourned to

be placed on board along with the contempt notice.

The respondent No. 2 appeared in Court on 12th August

1998 pursuant to the notice. As recorded in this Courts

order: Mr. Ganguli, learned counsel for the second

respondent states that the second respondent is present in

Court and has instructed him to state that the sum of Rs.16

lacs shall be deposited by her in Court within eight weeks

without prejudice to all other rights and contentions.

To enable the second respondent to make the deposit,

the appeal is adjourned for eight weeks

Despite the express assurance given to and acted on by

the Court, the amount was not deposited. When the matter

came up after eight weeks the respondent No.2 asked for an

opportunity to file an answer to the suo motu notice. In

her answer to the notice, the respondent No. 2 for the

first time made out, what has subsequently transpired to be,

a wholly sham dispute with the respondent No. 3. She

placed the blame for non-deposit of the money on her

husband, respondent No. 3, from whom she said she had been

living separately with her son since the last few years.

She feigned ignorance of the position as far as assets and

liabilities of respondent No. 1 were concerned. Without

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going into the question of the actuality of the alleged

dispute between the respondent No. 2 and 3, on 3rd December

1998 this Court issued a suo motu notice of contempt to

respondent No. 3 for the same reasons. The respondent No.

2 was directed by this Court to hand over the draft of Rs.6

lakhs which she said was with her to the Registrar of the

Supreme Court. The Court also recorded: Learned

counsel, on instructions, undertakes to Court that the 2nd

respondent shall deposit in Court a further sum of Rs.10

lakhs within six months, without prejudice to all her rights

and contentions. The sum of Rs.10 lakhs shall be deposited

in two instalments of Rs. 5 lakhs each, the first deposit

to be made on or before 10.3.1999.. The undertaking was

not complied with and on 24th March 1999, the time to

deposit Rs. 5 lakhs was extended till 3rd June 1999. This

order was also not complied with. On 10th June 1999, the

respondent No. 2 came forward with two bank drafts

totalling Rs.3,50,000/- only. This amount was directed to

be deposited by 11th August 1999. Allowing the prayer of

the counsel for respondent No. 2, the balance was directed

to be paid within six weeks. This order was also not

complied with within the time specified and ultimately the

amount of Rs.16 lakhs was deposited by 22nd October 1999.

On 27th October 1999, the second and third respondent

submitted that the amount of Rs. 16 lakhs should be

adjusted against the decretal claim of the petitioner-bank

and that they should be given an opportunity to settle the

dispute between the parties. The matter was accordingly

adjourned. There was no settlement nor did the respondents

appear on the adjourned date. Both of them sent fax

messages stating that they were ill. By our order dated

24th November 1999 we directed non-bailable warrants to be

issued. The respondents appeared before the Court on the

returnable date, i.e., 14th December 1999, and again stated

that they wished to settle the matter. On 15th February

2000, the respondents made an unconditional offer of

settlement through their counsel. The respondents offered

to pay the decretal amount and interest @ 12% p.a. in four

equal instalments. The first instalment (approximately of

Rs.19 lakhs) was to be paid on or before 15th March 2000 and

the subsequent three instalments on or before 15th June

2000, 15th September 2000 and 15th December 2000. The Court

recorded this as well as the further submission of the

respondents: Learned counsel for the respondents 2 and 3

states that land outside Chennai belonging to respondents 2

and 3 has been mortgaged to the appellant as security in the

transaction in appeal and that land shall be security for

payment of the said amount in the manner aforestated."

It was made clear that the payment agreed to be made

was exclusive of the sum already obtained by the

petitioner-bank, namely Rs.16,92,977/- and that regardless

of whether or not the appellant has communicated to the

respondents its willingness to accept this offer, the

respondent shall deposit in this court the sum of Rs.19

lakhs on or before 15th March 2000, which, if the offer is

accepted, will be credited towards the first instalment

payable to the appellant. Neither of the respondents have

deposited the amount of Rs.19 lakhs nor any amount at all in

blatant disregard of this Courts mandate and the

respondents resiled from their unconditional offer

wholly. From time to time, the matter appeared before this

Court and it was adjourned to give the respondents every

opportunity to comply with the orders of this Court.

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Ultimately both the respondents filed two separate

affidavits which were taken on file by this Court on 24th

August 2000 in which they claimed that they had immovable

properties situated at Chettiaragaram Village, Saidapet

Taluk, Chengulpet District, bearing Survey Nos. 13, 14 & 15

which could be sold to meet the decretal claim. However,

the offer was that the sale should be made to a buyer of the

respondents choice. Having regard to the past conduct of

the respondents, we were not prepared to allow the

respondents to handle the private sale of properties

admittedly mortgaged to the petitioner bank. Both the

respondents then filed separate affidavits affirmed on 24th

August 2000 stating that the land could be sold through the

District Judge subject to the approval of this Court. When

the matter was again taken up, it was submitted by the

respondents that the property was the subject matter of

litigation and was under the custody of a Receiver. It now

appears that a suit was filed in 1990 against the

respondents and their son by a third party alleging that the

property admittedly mortgaged to the petitioner had been

agreed to be sold to such third party and at the instance of

these respondents, their son has been appointed receiver

over the property. It does not appear at what stage the

suit is. There is no explanation why the respondents did

not state this fact in the several affidavits filed before

this Court. As it was clear that the respondents were

merely prevaricating, we concluded hearing of the appeal of

the petitioner from the order of the High Court dated 18th

October 1988 by which the High Court had refused to direct

the respondents to pay the Rs.16 lakhs by a fixed date. The

appeal was allowed by us and the amount of Rs. 16 lakhs

deposited by the respondent was allowed to be withdrawn by

the petitioner. It is in this background that the contempt

proceeding is to be decided. We make it clear that the

facts relating to the events which have taken place

subsequent to the issuance of the notices are not material

for the purpose of conviction but are certainly relevant to

the question of sentence. As noted at the outset, the acts

of contempt alleged are ( i ) unauthorisedly dealing with

property custodia legis and (ii) violating orders of Court.

There is and can be no doubt that either of these two acts

if established would tantamount to contempt. Property in

custodia legis means that the property is kept in the

possession and under the protection of Court. Monies

deposited in Court by way of security are held by the Court

in custodia legis to the credit of the party who is

ultimately successful. Any other person dealing with the

account so deposited does so at his or her peril and ..

any litigative disturbance of the Courts possession without

its permission amounts to contempt of its authority.. (per

V.R.Krishna Iyer, J. in Everest Coal Company Ltd. V.

State of Bihar & Ors. 1978 (1) SCC 12. ) The amount of

Rs.16 lakhs had been kept according to the directive of the

High Court dated 28th December 1976 in the custody of the

Sub Judge, Eluru pending disposal of the appeal filed by the

petitioner-bank. Therefore, when the appeal was allowed,

the amount deposited by way of security should have been

returned to the petitioner-bank as a matter of course.

Restitution of the deposit in the event of success was

implicit in the order. There could be no other

interpretation of the order of the High Court of 28th

December 1976. In fact, when the petitioners revision

application against the Sub Judges order dated 30th

December 1985 was ultimately allowed by the High Court on

27th April 1998, it was said, The lower Court having

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allowed the revision petition and dismantling thereby the

order of restitution, strangely allowed the amount, which

was deposited by the Karnataka Bank to be withdrawn by

respondents 1 to 3, which in my undoubted view resulted in

an act of grave error. We need only add that the error

was committed at the instance of the respondents, and the

gravity was enhanced by the action of the respondents in

appropriating the amount unconditionally. It is not

sufficient for the respondent to set up the order of the

Subordinate Judge, Tadepalligudem as a shield. A judicial

proceeding which is otherwise permissible may become an

engine of fraud. Thus in Advocate General, State of Bihar

V. Madhya Pradesh Khair Industries Ltd. 1980 (2) SCR 1175,

it was held that the filing of an application may amount to

an abuse of process. In that case, the respondents obtained

interim orders from a Single Judge which had the effect of

circumventing and nullifying the effect of the orders of the

Division Bench of that High Court. This Court said, The

Court must take into account the whole course of the

continuing contumacious conduct of the respondents from the

beginning of the game. It was concluded that the conduct

of the respondents clearly showed that they were intending

to and had obstructed the due course of the administrative

of justice by abusing the process of Court. In the case

before us, the petitioner-bank anticipating that the

respondents would get payment of the amount had, immediately

after the order was passed by the Subordinate Judge,

Tadepalligudem on 30th December 1985, filed a complaint with

the Registrar, District Court, Eluru requesting immediate

intervention. The complaint was not and indeed could not be

acted upon by the Registry. On 7th January 1986 the

petitioner-bank lodged a complaint about the Subordinate

Judge, Tadepalligudem with the District Judge, Eluru. We

have been informed that after an inquiry was held, the

Subordinate Judge, Tadepalligudem was dismissed from service

in 1986. But the damage had been done. With a cynical

disregard for the administration of justice for which

purpose alone Courts exist the respondents used the

process of the law to defeat that very purpose. No doubt

the jurisdiction that the Court exercises in cases of

alleged contempt is quasi-criminal and the Court must be

satisfied on the material before it that contempt of court

was in fact committed. But that satisfaction may be derived

from the circumstances of the case. [ See: Ram Avtar

Shukla V. Arvind Shukla 1995 Suppl (2) SCC 130 ] The

circumstances obtaining in this case leave no manner of

doubt that the respondents have wilfully dealt with property

which was custodia legis. From the outcome of the inquiry

against the Sub Judge, it is clear that the order was

tainted and the dishonesty of the respondents patent.

Furthermore, the rush with which the matters were concluded

and the monies withdrawn by the respondents speak for

itself. That this was done in furtherance of a plan to reap

an illegal benefit is evidenced by the fact that even though

the respondents had not filed any application for payment to

them of Rs.16 lakhs, anticipating the order that they would

obtain, the respondents opened the current account in the

State Bank of India, Tadepalligudem four days prior to the

passing of the order dated 30th December 1985. That the

account was opened in the same Branch of the Bank in which

the Subordinate Judge, Tadepalligudem had an account, that

the petitioner- banks representative was not given any

notice of the respondents cheque petition before the Sub

Judge, and that the cheque was cleared and the money paid

out to the respondents while the petitioners petition of

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objection was filed, are all circumstances pointing to the

careful pre-planning involved. Significantly, the

respondents have not been able to show us on what basis they

received the money. Their counter claims had been rejected

by the High Court. In the appeal preferred from the High

Courts decision, the respondents had not been successful in

obtaining any stay. All these factors lead only to one

inference and that is, that the Respondents wilfully dealt

with monies in the possession of the Court without authority

of law. We, therefore, have no hesitation in holding the

respondents guilty of the first charge. As far as the

question of disobedience to orders of Court is concerned, in

his order dated 30th December 1985, rejecting the

application of the petitioner-bank for payment of Rs.16

lakhs on the ground that it was not under the appropriate

Section, the Subordinate Judge said: Money cannot lie in

the Court without any specific order or contingency. Then,

the question arose to whom the money should go? Since, the

petitions are dismissed, the Bank of India is not entitled

to the amount. Karnataka Bank (D-6) is a third party to the

suit and the Court can not pay money to him. The Honble

High Court in L.P.A. Nos. 178/76 and 185/76 held that the

money should be paid only to defendant No. 1 i.e. Vijay

Transport and no body else against proper bank guarantee

furnished by Vijay Transport. Vijay Transport has already

furnished bank joint guarantee of Karnataka Bank Ltd. which

was accepted by the Court and it should be kept in force and

valid. Therefore, the only way left to this Court is to pay

money to Vijay Transport in accordance to the directions of

the Hon'ble High Court in A.P. As. Therefore, the money of

Rs.16,00,000/- with interest accrued there for which in the

Courts deposit is to be ordered to pay to Vijay Transport

(R-1) in this case.

The respondents were aware of the order of the High

Court dated 28th December, 1976 which allowed the respondent

No. 1 to withdraw the money only against a bank guarantee

for the same amount. They knew that there was in fact no

subsisting bank guarantee furnished by the respondent No. 1

yet the respondent No. 1 withdrew the amount. The

withdrawal was in violation of the order dated 28th December

1976. Having got the amount of Rs.16 lakhs to which they

were and could not, in any view of the law, have been

entitled to, the respondents enjoyed the benefit of the

amount for about 15 years despite orders passed by this

Court on 22nd September 1986 and 12th August 1998 and it was

not until this Court initiated proceedings in contempt

against the respondents that the money was reimbursed in

driblets by the respondents. The respondents are therefore

guilty on this count also. We now come to the question of

sentence. In Dhananjay Sharma V. State of Haryana and

Others 1995 (3) SCC 757, it was said that: The stream of

justice has to be kept clear and pure and anyone soiling its

purity must be dealt with sternly so that the message

percolates loud and clear that no one can be permitted to

undermine the dignity of the Court and interfere with the

due course of judicial proceedings or the administration of

justice.

It is apparent from the facts already narrated that

both the respondents have polluted the stream of justice.

The respondents have continued with the contumacious conduct

with impunity even after the issuance of the notices to

them. In the narration of facts the phrase order not

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complied with has recurred with disturbing regularity. In

addition the unconditional offer made was resiled from;

the undertaking given to the Court was breached;

adjournments were obtained on the basis of assurances of

payment and settlement which they had no intention to

fulfil. The alleged dispute between the respondent Nos. 2

and 3 was a red herring and an attempt to wriggle out of the

undertaking given to Court . In the respondent No.2s

affidavit in answer to the notice of contempt, she said:

I was under a bonafide belief that I would be

Supported by my husband ( the third respondent in the above

Civil Appeal) and expected to seek the assistance of my son

in my endeavour. I was let down by my husband who

repeatedly kept telling me that he was taking the necessary

efforts without actually doing so. As for my son he

expressed his inability to be of any assistance,

particularly in view of the pending litigation between him

and his father. It was only at the last moment that I

realised that I was being let down and would not be in a

position to fulfill my commitment to this Honble Court. I

was also unable to convey this to my counsel sufficiently in

advance, disabling me from filing an affidavit in this

regard.

The statements are ex-facie contradictory. If there

were a dispute for the last few years between the

respondent No.2 and respondent No.3, the respondent no.2

could not have been under a bona-fide belief that she would

be supported by the respondent No.3. Also no particulars of

the alleged litigation between the respondent No.3 and the

son have been given at any stage. The only litigation

referred to before us was a suit for specific performance

filed by a third party against both the respondents and

their son. It is clear that the undertaking to this Court

was lightly given by respondent No.2 and breached with

impunity. In any event, on the respondents own showing

there was no dispute between them either when the non

compliance of orders of Court took place or when the

property of the Court was wrongly dealt with by them.

According to respondent No.3, he has acted all along as per

the instructions of 2nd respondent and that the money which

was withdrawn pursuant to the order dated 30th December,

1985 had been kept by the respondent No.2 in a fixed deposit

account in the name of their son. In order to bolster this

case, the respondent No.3 sought to rely upon the alleged

public notices published by his son against him and ex-parte

injunctions obtained by his son against his company. No

particulars of the news papers or their dates nor of the

injunction order have been given. Although, the documents

are said to be annexed to the affidavit of respondent No.3,

there are in fact no such annexures. The respondents have

all along acted in concert. They had been filing joint

affidavits before this Court till the notices to show cause

were issued. Significantly the Power of Attorney executed

by respondent No.2 in favour of respondent No.3 has

admittedly not been revoked till today. It is clear from

all these facts that the respondents have compounded the

contumacious conduct with which they were charged with

further acts of contumacy. Their alleged esteem for this

Court and the sincerity of their apology are falsified by

their unrepentant behaviour. Given the nature of the

contempt, punishment in the nature of a fine is not enough.

We have therefore no hesitation in sentencing both the

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respondents to imprisonment in addition to payment of fine.

Both of the respondents shall undergo simple imprisonment

for two months in addition to making payment of a fine of

Rs.2,000/- each. The fine is to be paid within a period of

two weeks from the date of this judgment. In default the

defaulting respondent will undergo a further period of

simple imprisonment for a period of one month.