1 CP NO.433/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO. 433 OF 2010 ,In WP/7310/2010 Mr.Balu Baliram Suryawanshi, Age: 28 years, Occ. Business/Service, Res.of : At & Post Krishnapur - Bidkin, Tq.Paithan, Dist. Aurangabad 431 005. ...PETITIONER VERSUS 1. State of Maharashtra. 2. Mr. Vijay S.Morye, M.D. / C.E.O. Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012. 3. Mr.Sitaram C.Ghandat - Chairman, Abhyudaya Co-operative Bank Ltd. K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012. 4. Mr.Nityanand M.Prabhu - Director Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off.G.D.Ambekar Marg, Parel Village, Mumbai 400 012. 5. Mr.Raghuram V.Shetty - Director Abhyudaya Cooperative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off.G.D.Ambekar Marg, Parel Village, Mumbai 400 012. 2 CP NO.433/2010 6. Mr.Maruti S.Mehetre - Director Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012. 7. Mr. Achyut L.Kandpile - Director Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 8. Mr. Ashok R.Chalke - Director Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel village, Mumbai 400 012. 9. Mr.Mhatarba S.Kane - Director Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 10. Mr.Harihar S.Jaiswar - Director Abhyudaya Co-opperative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off.G.D.Ambekar Marg, Parel Village, Mumbai 400 012 11. Mrs. Jessie C.D'Silva - Director Abhyudaya Co-operative Bank Ltd. K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 12. Mrs. Ratnamala M.Gorde - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 3 CP NO.433/2010 13. Mr. Sandeep S.Ghandat - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 14. Mr.Jayantilal C.Jain - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 15. Mr. Waman V.Nalbhimwar - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 16. Mr.Jagajeevandas Raai - Director Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 17. Mr. Vinod K.Shah - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 18. Mr.Mohan S.Ghandat - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 19. Mr.Amba P.Patel - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 4 CP NO.433/2010 20. Mr.Shashikant N.Shetty - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 21. Mr.Kishore T.Kadam - Director, Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 22. Mr.D.H.Dawal - DGM Legal & Rec Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 23. Mr.Pradeep V.Kamat - AGM Legal Abhyudaya Co-operative Bank Ltd., K.K.Tower, Abhyudaya Bank Lane, Off. G.D.Ambekar Marg, Parel Village, Mumbai 400 012 24. Smt. Sunayana Kulkarni, The Branch Manager - Aurangabad, Abhyudaya Co-operative Bank Ltd., Samdani Chamber, New Gulmandi Market, Dalalwadi, Aurangabad 431 001 ...RESPONDENTS ... Mr. A.M.Karad, Adv., h/f Mr. Suresh W.Munde, Adv., for the petitioner. Mr.V.H.Dighe, AGP for respondent State. Mr. S.S.Deve, Adv., for respondent no.22. ... CORAM : K.U. CHANDIWAL, J. Dated: December 02, 2011 ... 5 CP NO.433/2010 PER COURT :- 1. Heard learned Counsel extensively. Notice was issued on 25th Nov.,2010, as against respondent no.22. No notices, as yet, are issued against other respondents. 2. The controversy in contempt proceedings stems from a notice of general body meeting published on 1st July, 2010 to Bank's members, informing of convening 47th Annual General Body Meeting of members (shareholders) of the respondent Cooperative Bank to transact the ten subjects illustrated therein. Subject No.2 revolve, "to consider and approve the audited statements of the accounts, the report of the Board of Directors and the report of the statutory Directors for the year ended on 31st March, 2010. The note appended, particularly, clause (2) reads: " If any shareholder desires to have any information in connection with the accounts, he/she is requested to write to the Managing Director at his office at K.K.Tower, Parel Village, G.D.Ambekar Marg, Mumbai 400 012 on or before 24th July, 2010, so that necessary information can be made available." Pursuant to the notice, the petitioner addressed a request letter dated 4th August, 2010 (Exh.C), to the Managing Director of the respondent Bank seeking "Information of the books of accounts 6 CP NO.433/2010 relied for preparing 47th Annual Report 2009-10 / Balance sheet and Profit & Loss accounts of ACBL for F.Y. ending 31.03.2010". 3. Before the ink of letter dated 4th August, 2010, could be dried, inspite of consciously aware, requisition contained voluminous documents, the petitioner approached this Court by writ petition No.7301/2010 on 5th August, 2010, and the Division Bench, by order dated 30.9.2010, observed, "He persuaded this Court to issue notice vide order dated 17th August, 2010". It was also observed that, "on account of undue and unwarranted haste on the part of the petitioner, the respondents (Bank) were required to engage Counsel for appearing in this Court. In that view of the matter, we are inclined to saddle costs on the petitioner". The Division Bench in paragraph No.5 recorded as under: "5. In the result, we pass the following order: (i) The respondent no.3/Bank is directed to furnish copies of the documents, as stipulated in Section 108 of the Multi-State Cooperative Societies Act, 2002. (ii) However, the petitioner is saddled with costs of Rs.7,500/- ( Rupees seven thousand five hundred). The said costs shall be paid by the petitioner to the Library of Advocates" Association at this Bench, within a period of four weeks from today." 7 CP NO.433/2010 It is this order, which petitioner says, is not complied with, in terms of Section 108 of the Maharashtra Multi State Cooperative Societies Act, 2002. This purported non compliance has given rise to Bank seeking a review and a Letters Patent Appeal, from the Division Bench, getting it rejected. 4. Learned Counsel for the petitioner says, the two affidavits tendered by respondent no.22 and the development before all the Courts, vociferously inform of the attempt to willfully nullify and obliterate the effects of order of the Division Bench recorded on 30th Sept.,2010. 5. Before adverting to non compliance of the said order dated 30th Sept.,2010, one should not be oblivious that the public notice commanded the person seeking requisition from the Bank to do so upto 21st July, 2010. The petitioner in his letter dated 4th August, 2010, illustrated that he received notice late. He was consciously aware that in between already the general body meeting of the Bank was held on 1st August, 2010. He maintained that by supplying documents, there would not be prejudice to the information sought by him post annual general body meeting, as he felt, he was legally empowered to seek said information under the provisions of Multi State 8 CP NO.433/2010 Cooperative Societies Act, 2002. 6. The stand referred above, as reflected by the petitioner, will have to be harmoniously read with the statutory arrangement provided under Multi State Cooperative Societies Act, 2002 (said Act). The Division Bench, as stated above, informed to supply the set of documents in conformity to Section 108 of the said Act of 2002. However, with all said and done, Section 108 would have to be read in consonance with Section 106 and 107. Both Sections cannot be dissected, segregated, to give impact and impression that spirit in Section 108 to be followed in its letter and spirit, asserting a mandate of Division Bench in Writ Petition No. 7310/2010. Section 79 of said Act envisages a special type of inspection, with prior requisitions. It provides a protective shield to the Bank. Section 108 cannot be read independent of Section 106 and 107, they are subject matters of inspection under Section 108. Petitioner cannot be permitted to peep in the accounts of other persons. The spirit of Section 108 needs to be read in just and reasonable manner in all events, not to the detriment of Bank to expose it to face prosecutions from other clients for making their accounts public ( beyond permissible limits). 7. It is to be seen, whether the Bank had intentionally committed an act of omitting it's 9 CP NO.433/2010 compliance, or diluting the situation. The Bank, from its very status, is a Multi State Cooperative Bank having nearly 95 to 100 branches in three States. The set of documents the petitioner desired were not the requisition for the general body meeting compliances, it more leaned to ensure that the Bank or its officials are cornered at some place. This is so demonstrated in the petitioners letter dated 7th Oct.,2010, where he desired supply of complete report of XXVIth statutory inspection under Section 35 of the Banking Regulation Act, 1949, supply of copies of One Time Settlement ( O.T.S.) Scheme with cut off date of N.P.A. as 31st March, 2007 according to which the Bank sanctioned O.T.S. packages to different borrowers. He also desired documents for sanctioning OTS packages and closing the accounts wherein ACBL (Bank) had sacrificed Rs.1269.14 lacs, and documents referred and related for provisioning for fraud and misappropriation as Rs.53,000/- as on 31.3.2009. The language in letter display derogation of petitioner. He wanted to spill venom by branding Bank to be at losses due to so called sacrifices. 8. Learned Counsel for respondent no.22 read the two affidavits to impress that the documents called for and reference of Section 108 in the order dated 30.9.2010 necessarily warrants 10 CP NO.433/2010 initiation of arbitration proceedings in terms of Section 83 of the Multi State Cooperative Societies Act, 2002. For such purposes, he referred to an arbitration case No.301/2010 between one Bhikaji Shrikrishna Mondkar Vs. Abhyudaya Co-op.Bank Ltd before the Sole Arbitrator appointed by the Central Registrar, Cooperative Societies, New Delhi. Learned Counsel also relied to the order of learned Single Judge dated 19th Nov.,2010, in Arbitration Petition No.1117/2010 (Coram: Anoop V.Mohta, J.), which was, indeed, a challenge by said Bhikaji to the arbitration award rejecting claims of petitioner, however, granting liberty to exercise rights under Section 108 of the Act. The award of arbitrator, subject of challenge in the writ petition, was, "B. The disputant is however at liberty to exercise his rights under Section 108 only with reference to the books, papers and documents only to the extent of and as specifically defined in Section 106 & 107 of the Multi-State Co-operative Societies" Act, 2002." The learned Single Judge recorded that he does not find any reason to interfere with the order passed and the reasoning so given. No-one can ask informations unless specifically permitted under the provisions of M.S.C.S.Act. Even otherwise, the inspection, except the informations which are received for proper 11 CP NO.433/2010 adjudication of the dispute, so raised, cannot be extended to roving inquiry or general informations other than necessary. This Court observed, "It is rightly observed that petitioner cannot be permitted to bank upon on Section 108 alone divorced from Sections 106 and 107 of M.S.C.S.Act". 9. The submissions of learned Counsel for respondent no.22 for referring the controversy to the arbitrator is illusory, not in tune to the record and not in conformity even to the legal position as matter pertains to non observance of Court's order. 10. It may be, petitioner's tempers are sore with the Bank for other financial reasons as respondent no.22 informed that the petitioner is carrying huge liability in crores. A primary impression, reading the record and long drawn litigation between the petitioner or the Bank or respondent No.22, suggests that to squeeze or to corner the Bank, from proceeding in perspective direction in exercise of its rights, stumbling blocks in the form of speed breakers are raised by making applications after applications, divorced from the legal position. 11. The jurisdiction to punish a contemnor has necessarily to be used sparingly and in 12 CP NO.433/2010 particular, in the cases of flagrant omission, deliberate slackness, and where atrocious power runs in the mind of the authority concerned. The contempt jurisdiction has its in-built limitations. The parameters of the powers of this Court, either under Article 215 of the Constitution, or under Contempt of Courts Act, cannot and should not be obliterated. It should be demonstrated that non compliance of the order was activated with mala fide intention and it was against the professed norms or principle and it has diminished the prospects of the petitioner to agitate his ground on ongoing feud between him and the Bank. The High Court will not be obsessed with the idea that there is deliberate omission and flouting of the orders of the Division Bench, giving rise to invoke the contempt jurisdiction. The document sought by petitioner under umbrella of Section 108, would create a situation of chaos for the Bank. It is impermissible that a member would walk in the Bank and start conducting fishing investigations and un-authorized 'policing' under the garb of Court's order. 12. The issue of the notice under the High Court Appellate Side Rules, or generating an impression of charging respondent No.22 by itself would not tantamount to mean that the Court has found respondent No.22 guilty under the Statute. The law on civil contempt illustrate, it would 13 CP NO.433/2010 be willful breach of the undertaking given to the Court, or willful disobedience of any judgment or order of the court. Under the provisions of Contempt of Courts Act and under Article 215 of the Constitution of India, the conduct of the parties, the act of disobedience and the attendant circumstances are relevant to consider whether a case would fall under civil contempt or a criminal contempt. Disobedience of an order of the Court simplicitor, would be civil contempt; but, when it is coupled with conduct of the parties, which is contemptuous, elongated or prejudicial, or is in flagrant violation of the law of the land, it may be treated as a criminal contempt. 13. The Hon'ble Supreme Court in the case of Maninderjit Singh Bitta vs Union Of India & Ors. (decided on 13 October, 2011, IA NO.10 of 2011 IN WRIT PETITION (CIVIL) NO.510 OF 2005) has observed, " In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the orders of the court, even to constitute a civil contempt. Every party to lis before the court, and even otherwise, is expected to obey the orders of the court in its true spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution." 14 CP NO.433/2010 Having seen these parameters laid down by the Hon'ble Supreme Court, the situation and circumstances in the present case, to repeat, illustrate that the petitioner deviated his course, from the requisition of general body notice to the letter dated 4th August, 2010, then rushing to this Court in Writ Petition No. 7310/2010 and, passing of the order dated 30th Sept.,2010. 14. The documents which the Bank has complied with are illustrated in its communication dated 6th Nov.,2010, which reads as under: "1. The audited Balance Sheet, Profit & Loss A/c as on 31.03.2010. 2. Statutory Auditors Report. 3. Notes forming part of the accounts for the year ended 31.03.2010. 4. Disclosures of information as required by RBI directives. 5. Primary segment reporting as on 31.03.2010. 6. Cash flow statement for the year ended 31.03.2010. The set of documents, referred above, will have to be read in juxtaposition in the realm of 15 CP NO.433/2010 Section 106, 107 and 108 of the Multi State Cooperative Societies Act, 2002. Mere singling out Section 108 in the order dated 30.9.2010 will not attract the provisions of Contempt of Courts Act or under Article 215 of the Constitution to punish respondent No.22. The adherence in the letter dated 6.11.2010 is squarely in the spirit of Section 107 of the Act. Additionally, respondent no.22 has, in the affidavit in reply, tendered apology for delay, if any, caused in compliance of the order. Considering these facts, re-visiting the events and litigation, I hold that there is no need to further prosecute the notice issued in terms of Rule 9 of the High Court Appellate Side Rules and, it is discharged accordingly. Contempt Petition is dismissed. No costs. ( K.U. CHANDIWAL, J. ) ... (agp: 433-10cp)