IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-08-2005 THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE N. KANNADASAN L.P.A.NO.18 OF 2004 and C.M.P.Nos.9499 of 2005 & 12506 of 2004 S. Arumuganainar Senior Manager Transport (South) Bharath Petroleum Corporation Ltd., 1, Ranganathan Gardens, Off: 11th Main Road Post Bag No.1212 and 1213, Anna Nagar, Chennai 40. .. Appellant/Respondent Vs. M/s. Jeenath Roadways 32A, Officers Colony, 2nd Street, Mehta Nagar, Chennai 29. Represented by its Proprietor .. Respondent/Petitioner Appeal filed under Clause 15 of the Letters Patent against the order dated 29.6.2004 in Contempt Petition No.53 of 2004 passed by the learned single Judge. For Appellant : Mr.K. Ethiraj For Respondent : Mr.N.G.R. Prasad for Mr.S. Vijayakumar - - - J U D G M E N T P.K. MISRA, J Though the matter was listed for considering the question of stay/vacating the stay, since the very same question is involved in deciding the appeal, on consent of the counsels, the entire appeal has been heard on merit and is being disposed of by the present judgment. 2. The facts giving rise to the present appeal are as follows :- The present appellant awarded contract to the present respondent for a period of two years in respect of three tank lorries with effect from https://hcservices.ecourts.gov.in/hcservices/ 1.9.2000 and for six tank lorries with effect from 1.11.2000, which provides extension for another year on the same terms and conditions. Dictating some serious violations in respect of two of the tank lorries, two show cause notices were issued on 31.5.2003. Under the show cause notices, it was intimated “... We are suspending all your tank lorries which are in contract with BPCL with immediate effect”. A reply was furnished by the respondent claiming that malpractice had been committed by the concerned driver without the knowledge and connivance of the respondent. Two writ petitions, namely, W.P.No.17962 and 17966 of 2003 were filed challenging such order of suspension and interim orders were passed on 30.6.2003 staying the operation of such suspension order in respect of seven lorries relating to which no malpractice had been detected. On 20.6.2003, an order blacklisting the tank lorries was issued. The operative portion was to the following effect :- “We are therefore, blacklisting your ten tank lorries, which are in contact with BHARAT PETROLEUM CORPORTION i.e. including the seven tank lorries, which are in contract at Tondiarpet Installation along with the crew with immediate effect including ex-MI loads on industry basis as per industry guidelines on transport discipline July 1998.” A counter affidavit in the two writ petitions was filed on 22.7.2003 justifying the order of suspension. In such counter affidavit the subsequent order of blacklisting was also indicated. While the writ petitions were pending, the present respondent filed petition under Section 9 of the Arbitration and Conciliation Act, 1996, numbered as O.A.No.724 of 2003 and an order of stay was passed on 5.9.2003 staying the operation of the order dated 20.6.2003 except with regard to two tank lorries involved in the malpractice. While considering the miscellaneous petitions, both the writ petitions were taken up for hearing with the consent of the counsels appearing for the parties and by common order dated 16.9.2003, both the writ petitions were dismissed. Thereafter, the present respondent filed W.A.Nos.3797 & 3798 of 2003 on 28.10.2003. By the time the writ appeals were taken up, the respondent had also filed O.P.No.708 of 2003 for appointment of an arbitrator. Noticing all these developments, the Division Bench observed:- “4. In view of the fact that the contract period has itself ended and now, the controversy is limited to action of blacklisting both the parties agree that the matter should now be proceeded with by an arbitral Tribunal as per the transport agreement between the parties. Both the parties agree that both the parties should be allowed to raise all such plea as are available to them in law. If the matters are proceeded before the Arbitral Tribunal, now both the parties agree that https://hcservices.ecourts.gov.in/hcservices/ the writ appeals could be disposed of as infructuous. In that view, the writ appeals are declared as infructuous and are disposed of as such.” On 21.1.2004, the respondent filed Contempt Petition No.53 of 2004 alleging violation of the interim order of stay dated 5.9.2003 in O.A.No.724 of 2003. In reply to such contempt petition, the present appellant narrated the developments from stage to stage. In such reply it was also indicated that the Corporation had intimated about the list of tank lorries blacklisted to all other companies as per the existing convention and after receipt of the said notice, such companies were also intimated accordingly. It was also intimated that by the time the order of stay was served, the contract period had come to an end in respect of two tank lorries by 31.8.2003 and in respect of other tank lorries by 31.10.2003. It was specifically stated that as the order was not communicated prior to 31.10.2003, the respondent could not comply with the order, and, therefore, had not violated the order of this court. The applicant/respondent had filed a rejoinder stating that for a period of five months they were kept out of work and the said act of the respondent was not correct. It was further indicated that in respect of other tanker owners, their contract had been extended on adhoc basis and the petitioner was also entitled to similar facility, but the same had been denied by the Corporation. A further reply affidavit was also filed on behalf of the respondent / appellant. The contempt petition was taken up for hearing on 20.6.2004 and was disposed of on 29.6.2004. After noticing the contentions raised by both the parties, the learned single Judge closed the contempt petition with the following observations :- “5. Though this court can punish the respondent, as provided under section 12 of the Contempt of Courts Act for violating the orders, if any, I do not find any wilfulness and deliberate violation of the order of this court. By taking into consideration the submissions made by the respondent in this case, it also appears to be true, I do not propose to give a finding on that aspect. But, however, the respondent is not entitled to cause loss to the petitioner, when its contract period was upto 31-10-2003. 6. The fact that the respondent has not given the contract to the petitioner from 31-5-2003 to 31-10-2003 for 9 tanker lorries is not in dispute. The petitioner has further submitted that they have invested huge amount by availing credit facilities from various financial institutions for the purchaser of tanker lorries and entered into contract https://hcservices.ecourts.gov.in/hcservices/ with the respondent and as the respondent has not given the work, the entire operation has come to a standstill and the petitioner is unable to utilise the vehicles for any other purpose, as they are purchased only for the purpose of transportation of petroleum products for the Corporation. It is also submitted that the said tanker lorries cannot be utilised for any other purpose also, as they were designed only for transportation of petroleum products and thereby they have incurred huge loss. 7. Taking into consideration the inconvenience caused to the petitioner and also the incompatibility expressed by the respondent, instead of punishing the respondent, I feel that the following directions would meet the ends of justice. i) The respondent is hereby directed to give contract work, i.e. transporting the petroleum products to the petitioner, for 6 tanker lorries only, which they have been giving to the petitioner prior to 31-5-2003, for a period of 5 months, commencing from 15-7-2004. ii) Awarding of contract for further period beyond 5 months, as it is said to have been given to the other tanker lorry owners, may also be considered to the petitioner also.” (Emphasis added) 3. The present appeal has been filed invoking Clause 15 of the Letters Patent. 4. A preliminary objection has been raised on behalf of the present respondent regarding maintainability of the appeal. It has been submitted by him that under Section 19 of the Contempt of Courts Act an appeal can be filed against the order convicting/punishing a person under the Contempt of Courts Act and since in the present case the present appellant neither been convicted nor had been punished, the appeal under Section 19 cannot be filed. It is further submitted that the Contempt of Courts Act is a special statute containing specific provisions regarding filing of appeal and if the order passed is not appealable in terms of Section 19, no such appeal can be filed invoking Clause 15 of the Letters Patent. Learned counsel for the respondent has placed reliance upon the decision of the Supreme Court reported in (2004) 11 SCC 672 (P.S. SATHAPPAN (DEAD) BY LRS. v. ANDHRA BANK LTD. AND OTHERS) in support of his contention. 5. Learned counsel for the appellant has submitted that the aforesaid decision of the Supreme Court does not have the effect of taking away the jurisdiction of an appeal under Clause 15 of the Letters Patent. It has been submitted by him that since the Court had found that contempt had not been committed, contempt petition was closed. However, https://hcservices.ecourts.gov.in/hcservices/ while passing such order, the court had passed order, as contained in paragraph 7 of such order which has already been extracted, which prejudicially affects the right of the appellant, therefore, the appeal is maintainable under Clause 15 of the Letters Patent. In support of such submission, he has placed reliance upon the Division Bench decision of this Court reported in 1993-2-LW 225 (R. RAJAGOPAL v. M.P. CHELLAMUTHU & 3 OTHERS). 6. The relevant portion of section 19 of the Contempt of Courts Act, 1971 is as follows :- “19. Appeals. - (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt - (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; . . . ” 7. Clause 15 of the Letters Patent of the Madras High Court is as follows :- “15. Appeal from the Courts or Original Jurisdiction to the High Court in its appellate jurisdiction – And We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of the superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec.108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one judge of the said High Court or one Judge of any Division Court, pursuant to Sec.108 of the Government of India Act made (on or after the 1st day of February, 1929), in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us. Our Heirs of Successors in Our or Their Privy Council as hereinafter provided.” 8. Learned counsel appearing for the respondent has placed https://hcservices.ecourts.gov.in/hcservices/ reliance upon paragraph 148 of the decision in (2004)11 SCC 672 (cited supra), which according to the learned counsel for the respondent, summed up the conclusion in the said decision. In paragraph 148,it has been stated : “148. The upshot of our decision would be: (1) Finality clause contained in a statute, unless attached to an order passed in appeal, would not take away the right of appeal expressly provided for under the special statute. (2) Letters Patent being a subordinate legislation has the force of law but the same is subject to an Act of Parliament. (3) If an appeal is maintainable under sub-section (1) of Section 104 of the Code, no further appeal therefrom would be maintainable in terms of sub-section (2) thereof. (4) A right of appeal being creature of a statute, it may provide for a limited right of appeal or limiting the applicability thereof. (5) Clause 15 of the Letters Patent cannot override the bar created under Section 104 of the Code. Section 104(1) of the Code must be read with sub-section (2) of Section 104; and by reason thereof saving clause in relation to the Letters Patent would not be attracted. An attempt should be made to uphold a right of appeal only on harmonious construction of Sections 4, 104 and other provisions of the Code. (6) However, when an appeal is provided for under a special Act, Section 104 of the Code shall have no application in relation thereto as it merely recognises such right but does not provide for a right of appeal. (7) If a higher status is given to a Letters Patent over a law passed by Parliament including the Code of Civil Procedure, the same would run contrary to the history of the Letters Patent as also the parliamentary Acts. (8) The judgment of this Court must be read as a whole and the ratio therefrom is required to be culled out from reading the same in its entirety and not only a part of it.” 9. In our opinion, the aforesaid submission made by the counsel for the respondent, is not correct. The conclusion, as summarised in paragraph 148 of the judgment, reflects merely the minority view expressed by S.B. Sinha, J for himself and for N. Santosh Hegde, J. A https://hcservices.ecourts.gov.in/hcservices/ careful reading of the entire decision clearly indicate that the conclusion, as per paragraph 148, obviously is not the conclusion of the majority opinion. The majority opinion is contained in paragraphs 1 to 35, whereas the minority view is reflected in paragraphs 36 to 150 and the order of the Court is contained in paragraph 151, which is to the following effect:- “151. In view of the majority judgment, the order of the High Court is set aside and these appeals are allowed with no order as to costs. The matters are remitted back to the High Court for decision on merits.” 10. The minority view can be of no assistance. On the other hand, it was observed in the majority decision as follows :- “ 32. ... Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100-A. ... 34. We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a letters patent appeal an anomalous situation would arise inasmuch as if the matter were to come to the High Court a further appeal would be permitted but if it went to the District Court a further appeal would not lie. An appeal is a creature of a statute. If a statute permits an appeal, it will lie. If a statute does not permit an appeal, it will not lie. Thus, for example, in cases under the Land Acquisition Act, the Guardians and Wards Act and the Succession Act, a further appeal is permitted whilst under the Arbitration Act a further appeal is barred. Thus different statutes have differing provisions in respect of appeals. There is nothing anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The https://hcservices.ecourts.gov.in/hcservices/ District Court does not get a right to entertain a further appeal as it does not have “any law for the time being in force” which permits such an appeal. In any event we find no provisions which permit a larger Bench of the District Court to sit in appeal against an order passed by a smaller bench of that Court. Yet in the High Court even, under Section 104 read with order 43 Rule 1 CPC, a larger Bench can sit in appeal against an order of a Single Judge. Section 104 itself contemplates different rights of appeals. appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected.” 11. In our opinion, there is nothing in the majority view which in any way postulates that the appeal under Clause 15 of the Letters Patent would be barred merely because the impugned order in the contempt petition is not appealable under Section 19 of the Contempt of Courts Act. 12. On the other hand it seems that the question as to whether such appeal would be maintainable has been directly raised and decided in several decisions of this Court. 13. The Division Bench of this Court by the judgment dated 14.8.1990 in Vidya Charan Shukla V. Tamil Nadu Olympic Association and another (C.A.No.5 of 1990 and Letters Patent Appeal No.123 of 1990) while holding that an appeal under Cl.15 of Letters Patent would lie against any order or decision passed in exercise of the contempt jurisdiction of the High Court provided such an order or decision is a ‘judgment’ and satisfied the other requirements of Cl.15 of the Letters Patent, has observed as follows :- “Various judgments, where recourse to an appeal under the Letters Patent has not been permitted, dealt with cases where the Act provided an express prohibition or exclusion of an appeal under any other law. That was the petition in Union of India V. Mohindra Supply Co. AIR 1962 S.C. 256 which concerned with the provisions contained in S.39(2) of the Arbitration Act, and A.I.R. 1965 S.C. 1442 dealing with the Delhi Rent Control Act. Section 100A of the Code of Civil Procedure is again one of such instances where recourse to the Letters Patent cannot be had. Since, in our opinion Section 19(1) of the Act cannot be construed to be destructive of the valuable right of an appeal granted by Cl.15 of the Letters Patent and there is no provision contained in the Contempt of Courts Act alerogating or excluding the provisions of Cl.15 of the https://hcservices.ecourts.gov.in/hcservices/ Letters Patent, we hold that except to the extent of the occupied field covered by Section 19(1) of the Act, an appeal under Cl.15 of the Letters Patent would lie against any order or decision passed in exercise of the contempt jurisdiction of the High Court, provided such an order or decision is a ‘judgment’ and satisfied the other conditions laid down in Cl.15 of the Letters Patent and does not fall in any of the excluded categories. We therefore, overrule the preliminary objection relating to the non-maintainability of the appeal under Cl.15 of the Letters Patent on the facts of the instant case.” 14. The aforesaid decision was followed in 1993-2-LW 225 (cited supra), wherein it was observed :- “ We are in entire agreement with the above view expressed by the Division Bench of this Court in Vidya Charan Shukla V. Tamil Nadu Olympic Association and another (C.A.No.5 of 1990 and Letters Patent Appeal No.123 of 1990). Inasmuch as by the order under appeal, the learned Single Judge has declared that the first respondent is entitled to quarry sand in the area in question for a period of 3½ months and directed respondents 2 to 4 to permit the first respondent, to quarry sand for a period of 3½ months from 1.5.1993. we are inclined to hold that such an order is a ‘Judgment’ for the purpose of clause 15 of the Letters Patent and that the order under appeal satisfies the conditions prescribed in Cl.15 of the Letters Patent. In these circumstances, we have no hesitation in holding that the present appeal is maintainable under Cl.15 of the Letters Patent.” 15. In our opinion, the effect of the aforesaid decisions have not been shaken in any subsequent decision of the Supreme Court or of the Madras High Court. On the other hand, the observations made by the Supreme Court in (1996) 6 SCC 291 (J.S. PARIHAR v. GANPAT DUGGAR AND OTHERS) in paragraphs 4 and 6 supports the views expressed by this Court. 16. In the above view of the matter, we are of the opinion that the present appeal is maintainable. It is therefore not necessary to consider the alternative submission made by the counsel for the appellant relying upon a Division Bench decision of the Calcutta High Court reported in 1997 CRI.L.J. 864 (HOOGHLY DISTRICT CENTRAL CO-OPERATIVE BANK LTD., v. ANOJ KUMAR ROY) that such an order is even appealable under Section 19 of the Contempt of Courts Act. 17. Once it is held that the appeal is maintainable, stage is now set to consider the merits of the contentions raised by the counsels https://hcservices.ecourts.gov.in/hcservices/ for either parties in the present appeal. 18. Learned counsel for the appellant has made the following submissions :- (1) The learned single Judge having held that there was no wilful and deliberate violation of the order of this Court and directed that the contempt petition is to be closed, should not have travelled beyond the scope of the contempt petition by issuing several directions affecting the right of the parties. (2) In alternative it is submitted by him that even assuming that such directions could have been given, in the peculiar facts and circumstances of the present case, when the validity of the suspension order has been upheld in W.P.No.17962 and 17966 of 2003 and W.A.Nos.3797 & 3798 of 2003 had been dismissed, an order of blacklisting had been passed, validity of which was sought to be adjudicated in the arbitration proceedings, no such directions should have been issued. 19. Learned counsel appearing for the respondent on the other hand submitted that even though the contempt proceedings had been closed, the learned single Judge has passed the order in the interest of justice keeping in view the relevant facts and circumstances, and, therefore, such discretionary order does not call for any interference in appeal. 20. Learned counsel for the appellant has relied upon the decision of the Supreme Court reported in (1996) 6 SCC 291 (cited supra). In the said decision it was observed:- “6. The question then is whether the Division Bench was right in setting aside