1 APP 15 of 2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.15 OF 2004 IN NOTICE OF MOTION NO.331 OF 1996 IN SUIT NO.1179 OF 1994 M/s.Ralhan Developers, a Sole Proprietary Concern of Pramod Kumar Rajkumar Ralhan, Carrying on business at 201, Goyal Shopping Arcade, L.T.Road, Borivali (W), Mumbai – 400 092. ..... Appellant V/s. Goyal Properties & Estates (Pvt.) Ltd., a Company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 406, Pragati Shopping Centre, Daftary Road, Malad (E), Mumbai – 400 097. AND 1. Vijay Tendulkar of Bombay Indian Inhabitant residing at Flat No.104, 11-A, Ashish Complex, Dahisar, Bombay – 400 068. 2. Smt.S.S.Kamalkar of Bombay Indian Inhabitant residing at Flat No.303, Building 11-A, Ashish Complex, Dahisar, Bombay – 400 068. 3. D.B.Dubey of Bombay, Indian Inhabitant residing at Flat No.403, Building 11-A, Ashish Complex, Dahisar, Bombay – 400 068. 2 APP 15 of 2004 4. J.D.Tiwari of Bombay, Indian Inhabitant residing at Flat No.503, Building 11-A, Ashish Complex, Dahisar, Bombay – 400 068. ..... Respondents Mr.Sanjay Jain, a/w Mr.Sumil Purohit i/by Shri A.V.Jain & Associates, for the appellant. Mr.R.D’Souza a/w Mr.Jose George, for respondent No.1. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 06TH SEPTEMBER, 2010 ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) : 1. This appeal is directed against the judgment and order passed by the learned Single Judge dated 23-09-2003, by which the learned Single Judge passed an order of sentencing the appellant into civil imprisonment for a period of one month, for willful disobedience of the injunction order passed by this Court. The learned Single Judge has passed the aforesaid order below notice of motion No.331 of 1996. The learned Single Judge has observed in the order that both the Advocates agreed before the Judge that the facts and law involved in the notice of motion, are similar to the facts and law in Notice of motion No.330 of 1996, except that the appellant who was defending the suit in the present matter, is the son of Rajkumar Relhan, Proprietor of Defendant Company in Notice of Motion No.330 of 1996. The learned Single Judge 3 APP 15 of 2004 accordingly on the basis of the order passed in the notice of motion No. 330 of 1996, passed the impugned order in the notice of motion No.331 of 1996 and the appellant was ordered to be sent to civil imprisonment for a period of one month. It is the aforesaid order which is impugned in the aforesaid appeal. 2. It is pointed out by both the learned Advocates that the alleged contemnor of Notice of Motion No.330 of 1996 had also filed Appeal No.14 of 2004. However, since the aforesaid appellant died, the said proceedings have been terminated on the ground that the same is abated and therefore, this appeal is required to be decided on its own merits. The order passed by the learned Single Jude in Notice of Motion No.330 of 1996 is also produced on record, as on the basis of the said notice of motion, that the impugned order is passed in the present proceedings by the learned Single Judge. 3. In the notice of motion No.330 of 1996, the learned Single Judge found that on the date of the order, the defendants had entered into an agreement in respect of Flat Nos.403, 404, 503 and 504, but the possession of the flats was not parted with. The learned Single Judge also found that admittedly the possession of the flats was parted with by the defendants in relation to Flat Nos.104, 103, 302, 403, 404 and 503 subsequent to the injunction order passed by the Court. 4 APP 15 of 2004 4. The learned counsel for the appellant submitted that the possession was as such parted for renovation/repair work in the flats and therefore, there was no willful disobedience of the injunction order. However, since before the learned Single Judge, the matter was not contested on the aforesaid line and practically infact, it was an admitted fact that the order of injunction was willfully disobeyed, that the learned Single Judge passed the aforesaid order. It is required to be noted that the impugned order does not disclose as to whether powers are exercised under the Contempt of Courts Act, or under Order XXXIX Rule 2-A of the Code of Civil Procedure. The learned counsel for the appellant has drawn our attention to the prayers made in the notice of motion to the effect that the defendants should be sent to civil imprisonment for six months. It is also averred in the notice of motion that there is a willful disobedience on the part of the defendants of the injunction order of the Court and that appropriate punishment may be imposed. The language narrated in the notice of motion, therefore, is in connection with the willful disobedience of the order, which amounts to civil contempt under Section 2(b) of the Contempt of Court Act, 1971. The learned Single Judge has also not stated anything that it is not possible to pass an order of attachment as envisaged under Order XXXIX Rule 2-A of C.P.C. At this stage, it would be expedient to reproduce the relevant observations of the learned Single 5 APP 15 of 2004 Judge, which reads as under : - “It is thus, clear that the defendant – Company has violated the order made by this Court willfully and deliberately with full knowledge of the order. There can be no doubt that the violation of the order was deliberate and willful because the possession was parted with in favour of the respondents for creating complications so that the rights created by the plaintiffs in the suit could be defeated” 5. A conjoint reading of the impugned order, indicate that the learned Single Judge has exercised the powers under the Contempt of Courts Act. Since on behalf of the appellants, apology was already tendered before the learned Single Judge and infact, it is an admitted fact that the order of the Court is violated, it is not possible for us to accept the say of the appellant that there was no parting of possession of flats and as such possession of the flats was handed over for renovation/repair work. On this aspect, therefore, we are totally in agreement with the order passed by the learned Single Judge that the order of the Court was willfully disobeyed. 6. So far as the sentence awarded by the learned Single Judge is concerned, it is required to be noted that this is a matter of civil contempt. It appears that the appellant at the first instance, had already tendered unconditional apology before the learned Single Judge without delay. At this stage, it would be useful to reproduce Section 12(1) of the 6 APP 15 of 2004 Contempt of Courts Act, 1971, as under : - “12.Punishment for contempt of Court (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both : Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Explanation – An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. 7. Since the appellant has already tendered apology at the earliest, in view of the aforesaid provision, ultimately such unconditional apology given at the first instance is required to be accepted. In any case, even if in a given case, the Court comes to the conclusion that tender of apology may not be sufficient, that the second stage is to impose a fine and as a last consequence, in case the Court is satisfied by appropriate reasons, sentence regarding imprisonment is required to be passed. 8. The learned counsel for the appellant has placed reliance on a judgment of the Supreme Court in the case of Smt.Pushpaben and Anr. V/s. Narandas V. Badlani and Anr. (1979) 2 SCC 394, wherein it was held that ‘in case of civil contempt, fine is the rule and imprisonment is the exception and the Court is required to give reasons for imposing sentence of imprisonment”. In our view, when the appellant has already 7 APP 15 of 2004 tendered apology, this is not a case in which the order of imprisonment was required to be passed against the appellant. Considering the said fact, we are of the opinion that the order by which the appellant was sentenced to civil imprisonment, is not sustainable in view of the fact that the appellant had already tendered apology, which is required to be accepted. 9. The learned counsel for the appellant submitted that if the Court thinks it fit, may pass appropriate order regarding the fine. Considering the facts and circumstances of the case, we accept the apology tendered by the appellant before the learned Single Judge. The appellant shall pay a fine of Rs.2,000/- within a period of one month from today. The amount of fine shall be deposited with the Prothonotary and Senior Master of this Court. 10. In view of what is stated above, the appeal is partly allowed to the aforesaid extent, by setting aside the order of imprisonment imposed upon the appellant by the learned Single Judge and the said order is substituted by a payment of fine of Rs.2,000/-, as indicated above. 11. It is also pointed out that regarding the suit property, the Court Receiver is managing the affairs of the disputed property, who in turn, appointed the purchasers as agents of the Court Receiver. The 8 APP 15 of 2004 disputed property is accordingly protected by a separate order in a notice of motion. ( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )