“Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings be not initiated”: Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12th January 2022 CM(M) 36 2022 ICICI BANK LIMITED Petitioner Through: Mr. Dayan Krishnan Sr. Advocate with Mr. Ripu Daman Bhardwaj Mr. Deepak Kaushik and Mr. Sanjeev Bakshi Advocates. RASHMI SHARMA Through: None. Respondent HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J. CM No. 2057 2022Allowed subject to all just exceptions. The application stands disposed of. CM(M) 36 2022 & CM No. 2056 2022The present petition under Article 227 of the Constitution of India impugns the order dated 2nd December 2021 passed by the District Judge Commercial Court) 06 Central District Tis Hazari Courts New Delhi Commercial Court) in CSNo. 2857 2021 whereby show cause notice has been directed to be issued to the petitioner Bank to be answered and endorsed through the Chairman as to why CM(M) 36 2022 criminal contempt should not be initiated against him for overreaching the The facts giving rise to the filing of the commercial suit leading to the process of the Court. present petition are as follows: i) The respondent approached the plaintiff for grant of a car loan cum hypothecation scheme of Rs.5 01 000 for the purchase of a vehicle. The loan documents were executed and the loan was duly sanctioned to the defendant on 21st November 2019. ii) The defendant defaulted in payments of monthly instalments towards repayment of the loan and consequently issued a notice dated 16th April 2021 to the defendant to recall the loan facility available to the defendant. iii) In August 2021 the plaintiff filed a commercial suit for recovery against the defendant which was registered as CS No. The summons were issued in the commercial suit on 16th August 2021. The relevant part of the order is set out below: “Issue notice of suitas well as the the annexed accompanying applications with all documents to the defendants on filing of the process fee by the plaintiff. In case any address of the defendant(s) is of outstation the ordinary process be sent through the District Judge concerned. Process be also sent through registered speed post AD. The sealed covers containing the summons and complete paperbook of the case be handed over dasti to the plaintiff counsel for putting the same in the postal CM(M) 36 2022 transmission. The original postal receipt(s) along with the downloaded tract report from the site of India Post be placed on record by the plaintiff counsel on the next date. In case the plaintiff has any e mail fax ID and mobile numberof the defendant defendant be served under Rule12 of the Delhi Court Services of Process By Courier FAX and Electronic Mail Service Rule 2010. The plaintiff shall file the affidavit qua the same. In terms of Rule 13 plaintiff is directed to place on record a copy of the plaint and· documents in electronic format scanned images in compliance of Rule 13 for process. Requisite process fee for sending process by e mail in compliance of Rule 14 be also filed alongwith the copies as above for onward transmission to Nazarat Branch Tis Hazari Courts for service through e mail.” same with In terms of the aforesaid order passed by the Commercial Court the plaintiff took steps for affecting service on the defendant through ordinary process as well as speed post by filing process fee and sealed covers containing the summons and paper book respectively. Pursuant thereto steps were taken for affecting service on the defendant by ordinary process as well as through speed post. In this regard reference may be made to the speed post notices issued and the speed post tracking report as also the report of the Ahlmad attached to the Commercial Court. In addition to the service through the above modes the plaintiff also sent the photograph of the summons issued by the Commercial Court to the defendant by means of WhatsApp since the plaintiff had the phone number of the defendant provided in the loan documents. 7. When the matter came up before the Commercial Court on 2nd CM(M) 36 2022 December 2021 the contention of the defendant was noted by the Commercial Court that the defendant had received a private notice of appearance for the said date through WhatsApp on 30th November 2021 and further that the defendant had not received any notice summons from the Court. The contention of the plaintiff was also noted that the plaintiff had filed the process fee and in addition thereto photograph of the summons was also sent through WhatsApp to the defendant. On the basis of the above the Commercial Court passed the impugned order issuing show cause notice to the plaintiff as to why criminal contempt proceedings be not initiated against the plaintiff. Relevant observations of the Commercial Court are set out below: “Today this kind of debacle was seen in other cases of ICICI Bank Ltd. also but it was ignored. Now it appears that that plaintiff has adopted this kind of practice on a regular basis for the reasons best known to it and it certainly amounts to over reaching the judicial system. No party has a right to start a parallel system along with the judicial proceedings. The plaintiff has been called upon to explain the same. XXX XXX Plaintiff to show cause as to why the action be not recommended against it for the criminal contempt of the court for over reaching the process of the court. Show cause notice be replied forwarded or endorsed through the Chairman of the plaintiff bank for the next date of CM(M) 36 2022 Senior counsel appearing on behalf of the plaintiff assails the impugned order on the following grounds: There was no violation of the order dated 16th August 2021 passed by the Commercial Court inasmuch as the plaintiff had taken steps for the ordinary service as well as service through speed post upon the defendant. ii) Process fee was duly filed in terms of which the summons were prepared for ordinary service by the process server and summons in respect of service through speed post were handed over to the plaintiff to be sent through speed post. iii) Even though steps were not taken by the plaintiff for service through email but the photograph of the summons were duly sent to the defendant through WhatsApp as provided in the order dated 16th August 2021. iv) The photocopy of the summons were sent through WhatsApp only to ensure presence of defendants before the Commercial Court on the next date of hearing. v) Reliance has been placed on the order dated 10th July 2020 of the Supreme Court in Suo Moto W.P.(C) No. 3 2022 to contend that the Supreme Court itself during the period of lockdown had directed service to be affected through various electronic means including WhatsApp. vi) Even if the photograph of the summons were sent to the defendant through WhatsApp no case of contempt has been made out much less 10. None appears on behalf of the respondent despite advance service. In the facts and circumstances of the case no notice is required to be issued to In the considered view of this Court there was no occasion at all for criminal contempt. the respondent. CM(M) 36 2022 the Commercial Court to issue show cause notice for initiating criminal contempt against the plaintiff. Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system. The aforesaid observations were completely uncalled for. As noted above the plaintiff had duly filed process fee and taken steps for issuance of regular summons to the defendant through the ordinary process as well as speed post. The photograph of the summons were sent through WhatsApp only as an additional measure so as to ensure the appearance of the defendant before the Commercial Court. There is nothing malafide in the same and it cannot be said that that was an attempt to overreach the judicial proceedings. It was not that the plaintiff had sought to send the summons through WhatsApp in substitution of the ordinary service to the defendant. It was only sent as a secondary measure to ensure the presence of the defendant on the next date. Therefore Commercial Court has completely gone overboard in issuing notice for initiating contempt proceedings. 12. The Supreme Court in its judgment in Dr. Prodip Kumar Biswas Vs. Subrata Das and Ors. 4 SCC 533 while dealing with the issue of criminal contempt has observed that proceedings for criminal contempt can be initiated only when the act prejudices or interferes or tends to interfere with the course of judicial proceeding or administration of justice. Contempt of court is a special jurisdiction which ought to be exercised sparingly and with great caution. Contempt proceedings should not be initiated lightly. In any case in view of Sections 10 and 15 of the Contempt of Courts Act 1971 only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume CM(M) 36 2022 jurisdiction and issue show cause notice as to why contempt proceedings be not initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. Therefore the impugned order is clearly in excess of the jurisdiction vested with the Commercial Court. In view of the above the order passed by the Commercial Court suffers from patent illegality and is also without jurisdiction and hence cannot be sustained. 15. Accordingly the petition is allowed and the impugned order is set aside to the extent show cause notice for initiating criminal contempt proceedings has been directed to be issued to the plaintiff. JANUARY 12 2022 Sakshi R. AMIT BANSAL J CM(M) 36 2022 

Summary: The issue whether a subordinate court can assume jurisdiction in excess of its authority and serve show cause notice as to why proceedings of criminal contempt should not be initiated against them was before consideration of the bench of Delhi High Court consisting of Justice Amit Bansal in the matters between ICICI Banks vs. Rashmi Sharma CM(M)-36/2022 decided on 12.1.2022. The facts of the case are that the defendant used a vehicle loan from the plaintiff ICICI Bank. When he defaulted on payments, the bank sent him a notice calling back the loan facility. The bank filed a compensation lawsuit against the defendant, after which he was served by the commercial court. The bank then took steps to fulfill the notification of service to the defendant. In addition, the bank sent a photograph of the summons issued by the commercial court to the accused via WhatsApp. In the next hearing, the commercial court decided to give a justified show cause notice to the bank as to why the criminal proceedings were not carried out or launched against them.This situation caused the bank to approach the Supreme Court for the annulment of this decision. The petitioners contended that there is no contradiction to the decision of the Commercial Court dated 16 August 2021, since the plaintiff has taken steps to serve the defendant both through ordinary service and expedited mail.A transaction fee has been duly incurred for the preparation of notifications for ordinary service by the transaction server and delivery of notifications by express mail to the plaintiff for delivery by express mail.Photograph of the subpoena was duly sent to the defendant via WhatsApp as per the judgment of 16 August 2021, although no steps were taken by the Claimant to serve via email. Photocopy of the summons was sent via WhatsApp only to ensure that the defendants are present at the Commercial Court at the next hearing date.Based on the Supreme Court’s decision during the period of the Supreme Court’s isolation, the service has been used by various electronic means, including WhatsApp.Even if the photograph of the summons was sent to the defendant via WhatsApp, no incidents of contempt less than criminal contempt were committed. No one appeared on behalf of the respondents despite advance service, whereas, considering facts and circumstances of the case, there is no requirement for issue of notice to the respondents. The Delhi High Court noted that by sending the summoned photograph to the defendant via WhatsApp, the court did not mean to circumvent the judicial system or to run a parallel system. The court also noted that the bank had paid a processing fee and had taken steps to issue an ordinary summons to the defendant by ordinary process and expedited mail to ensure that the defendant was brought before the commercial court.The court decided that there was no reason for the commercial court to make a figurative reason statement.Likewise, there was nothing malicious and the Court could not say that this was an attempt to circumvent the judicial system.Along with these observations, the lower court decision was annulled to the extent of issuing a show cause notification issued to the bank.