[2010] 9 S.C.R. 216

REKHABEN H. SHETH

CHARU K. MEHTA & SONS. (SLP (C) No. 35164 of 2009)

JULY 29, 2010

[ALTAMAS KABIR AND A.K. PATNAIK, JJ.)

Contempt of Court - Application by Trustee of a Trust against petitioner and respondent nos. 2-5 for their removal C from trusteeship of the Trust - Order of High Court restraining petitioner and respondent nos. 2-5 from taking any policy decision and entering into financial transaction without prior approval of Joint Charity Commissioner - Issuance of cheque to professionals by petitioner and respondent nos. 2-5 without D prior sanction of Joint Charity Commissioner - Contempt Petition - Show cause notice to petitioner and respondent nos. 2-5 by High Court - On appeal, held: Funds of the Trust were utilized to a considerable extent not for the purpose of Trust but for defending Trustees against allegations brought E against them by Trustee - Thus, order of High Court does not call for interference - Bombay Public Trust Act, 1950 - s. 41 D.

The respondent no.1 permanent trustee of a Medical Trust filed an application against the petitioner and the F respondent nos. 2-5 for their removal from Trusteeship of the Trust on the ground of malfeasance, misfeasance, misappropriation of trust funds and breach of trust. The Joint Charity Commissioner restrained the petitioner and the respondent nos. 2-5 from taking any policy decision G and entering into financial transactions with regard to the Trust without the prior approval of the Joint Administrators. The High Court modified the said order to the extent that the prior approval was to be taken from

H 216

REKHABEN H. SHETH v. CHARU K. MEHTA & 217

SONS.

the Joint Charity Commissioner and not the A Administrators. It is alleged that the petitioner and the respondent nos. 2 - 5 had withdrawn huge amounts from the Trust funds and had issued cheques in favour of solicitors and advocates appearing for them in the litigations pending before the various courts, including B the proceedings before the Joint Charity Commissioner.

The respondent no. 1 filed Contempt Petition. The Single Judge of High Court held that the payments made to advocates would constitute financial transactions with regard to the Trust and, therefore, prior approval of the c Joint Charity Commissioner was required to be obtained before such payments were made to the advocates. It issued notice to show cause on the Contempt Petition to the petitioner and the respondent nos. 2-5. Hence, the Special Leave Petitions.

Dismissing the Special Leave Petitions, the Court

HELD: 1.1 There is no reason to interfere with the order of the Single Judge of High Court issuing notice

on the contempt petition filed by the respondent no.1. It E was observed that the respondent no.1 had raised serious objections in the main application about the payment of advocate's fees from Trust funds for fighting personal litigations of the Trustees. The judge took sufficient care to indicate that except for cognizance of F the allegations made against the petitioner and the respondent nos.2 to 5, cognizance against the other Trustees had not been taken as the material against them were insufficient to frame charges. However, liberty was also given that when sufficient material in support of the G allegations was placed on record, it could take cognizance of such complaint. A chart has been filed on behalf of the petitioner, respondent nos.2 to 5 and the other Trustees to show the amounts which had been

A paid to the counsel amounting to approximately Rs.3%

crores. Although, an attempt was made by to justify such expenditure, the submissions cannot be accepted since as observed by the Single Judge of the High Court, most of the said funds were spent by the petitioner, the s respondent nos.2 to 5 and the other Trustees for defending themselves in respect of the various cases which had been brought against them by the respondent no.1. [Para 15] [224-G-H; 225-A-E]

1.2 It cannot be said that payments made to lawyers C advocates and solicitors does not amount to Contempt in the special facts of the instant case. The fact that the funds of the Trust were being utilized to a considerable extent, not for the purposes of the Trust but for defending the Trustees against the allegations brought against them D by the respondent no.1 cannot be ignored. These are prima facie observations which should not influence the outcome of the matter pending before the High Court which has to decide the matter on its own merits. In these circumstances, the order of the High Court is not E interfered with. [Paras 16 and 17] [225-E-H]

Union of India v. Mario Cabral e Sa (1982) 3 SCC 262; Tamilnadu Mercantile Bank Shareholders Association v. SC Sekar (2009) 2 SCC 784; State of J&K v. Trehan Industries F (P) Ltd. (2005) 11 SCC 459 - referred to.

Case Law Reference:

(1982) sec 262

(2009) 2 sec 784

(2005) 11 sec 459

Referred to.

Referred to.

Referred to.

Para 12

Para 12

Para14

CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 35164 of 2009.

REKHABEN H. SHETH v. CHARU K. MEHTA & 219

SONS.

From the Judgment & Order dated 11.09.2009 of the High A Court of Judicature at Bombay in Contempt Petition No. 123 of 2009 in Writ Petition no. 5732 of 2008.

WITH

SLP (C) 6685 of 2010.

Ashok Desai, Arvind Varma, Jayant Bhushan, Ranjit Kumar, Prateek Sakreria, Gaurav Agrawal, Gopal Jain, Raj Patel, Kanika Agnihotri, Ajay Bhargava, Vanita Bhargava, Abhijeet Swaroop (for Khaitan & Co,) Sameer Parekh, Lalit c Chauhan, Ranjeeta Rohatagi, Somanadri Goud (for Parekh & Co.), Guru Krishana Kumar, Ajay Kumar, Sanjay Jain, Lalit Chauhan, Sanjay Kharde, Asha G. Nair Sanjay Jalan for the appearing parties.

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. These Special Leave Petitions arise out of an order dated 11th September, 2009 passed by

a learned Single Judge of the Bombay High Court in Contempt Petition No.123/09 arising out of an order passed on 9th E September, 2008, in Writ Petition No.5732/08.

2. The Respondent No.1, Charu K. Mehta, is a permanent Trustee of the Lilavati Kirtilal Mehta Medical Trust. She had filed an application under Section 41 D of the Bombay Public Trusts F Act, 1950, against the Petitioner herein and the Respondent Nos.2 - Vijay K. Mehta, Respondent No.3 - Dr. Amritlal C. Shah, Respondent No.4 - Niket V. Mehta, and Respondent No.5 - Sushila V. Mehta in SLP(C)No.35164/09, for their removal from Trusteeship of the aforesaid Trust on the ground of malfeasance, misfeasance, misappropriation of Trust funds, G breach of Trust, etc. An interim application was also filed for the removal/ suspension/dismissal of the colluding Trustees.

Charges were framed against the Petitioner and the aforesaid Respondents by the Joint Charity Commissioner, Mumbai, on H

A 3rd June, 2008, and the Trustees were restrained from taking any policy decision and from entering into any financial transaction with regard to the Trust.

3. The aforesaid Respondents Nos.2 and 3 in B SLP(C)No.35164/09 challenged the said order of the Joint Charity Commissioner in Writ Petition Nos.3849 and 3850 of

2008. By common orders passed in those writ petitions on 11th July, 2008 and 15th July, 2008, the orders impugned in the writ petitions were set aside and the Joint Charity Commissioner was directed to pass fresh orders in accordance with law.

C Thereafter, the Joint Charity Commissioner passed an adinterim order on 9th September, 2008, restraining the Pet:~:oner and the Respondent Nos.2, 3, 4 and 5 herein from taking any policy decision and entering into financial transactions, without the prior approval of the Joint Administrators appointed by this D Court. Aggrieved by the said ad-interim order, the Respondent Nos.2 and 3 herein filed Writ Petition No.5732/08, wherein the High Court modified the aforesaid order passed by the Joint Charity Commissioner on 9th September, 2008. The operative part of the order of the Joint Charity Commissioner was E modified to the extent that the prior approval was to be taken not from the Administrators but from the Joint Charity Commissioner.

4. The Bombay High Court, therefore, confirmed the order F of the Joint Charity Commissioner that the Respondents Nos.1 to 9 in the Application filed before him should not take any policy decision and should not enter into any financial transaction with regard to the Trust without the prior approval of the Joint Charity Commissioner till further orders.

5. In the Contempt Petition filed by the Respondent No.1

herein, it has been alleged that the Petitioner herein and the Respondents Nos.2, 3, 4 and 5 had withdrawn huge amounts from the Trust funds and had issued cheques in favour of solicitors and advocates appearing for them in the litigations

REKHABEN H. SHETH v. CHARU K. MEHTA & 221

SONS. [ALTAMAS KABIR, J.]

pending before the various courts, including the proceedings A before the Joint Charity Commissioner under Section 41 D of the Bombay Public Trusts Act, 1950. Rejecting the defence of the Petitioner and the Respondents Nos.2, 3, 4 and 5 herein that payment of fees to advocates and solicitors did not amount to financial transactions being undertaken by the Trust and that B the services of the advocates and solicitors had to be engaged to defend the interest of the Trust, the learned Single Judge observed that the question as to whether payments to advocates were financial transactions within the meaning of the order passed by the Joint Charity Commissioner, as modified c by the High Court, was still at large.

6. The learned Single Judge arrived at a prima facie view that the payments made to advocates would constitute financial transactions with regard to the Trust and, therefore, prior

approval of the Joint Charity Commissioner was required to be D obtained before such payments were made to the advocates.

While making such observations, the learned Judge also

noticed that the Trust was not a party in many of the proceedings which were initiated by one group of Trustees against the others. The learned Single Judge, accordingly, E issued notice to the Petitioner and the Respondent Nos.2, 3, 4 and 5 herein to show cause as to why action should not be taken against them under the Contempt of Courts Act for having willfully disobeyed the directions contained in the order dated 9th September, 2008 in Writ Petition No.5732/08 by issuing F cheques to professionals without the prior sanction of the Joint Charity Commissioner.

7. It is the said order of the learned Single Judge of the Bombay High Court and the notice issued to show cause on G the Contempt Petition filed by the Respondent No.1 herein, that is the subject matter of the present Special Leave Petitions.

8. Appearing for the Petitioner, Rekhaben H. Sheth, in S.L.P. (c) No.35164 of 2009, Mr. Ashok Desai, learned Senior H

A Advocate, urged that the expression "financial transactions" indicated in the order passed by the Joint Charity Commissioner on 9th September, 2008, subsequently modified by the High Court, did not include the payment of fees to professionals, such as Solicitors, Advocates and Chartered B Accountants for the services rendered by them in the interest of the Trust. It was submitted that such transactions were meant to cover the essential expenses incurred for the day-to-day running of the hospital and were entered into in lieu of goods provided to the hospital. Mr. Desai submitted that it is only for c the purposes of acquiring certain tangible objects that the

hospital could enter into financial transactions and not for other purposes where there was no return involved. In fact, accord:g to Mr. Desai, applying the said expression for effecting payment to professionals would lead to an absurd situation D where every time professional such as an Advocate or Solicitor

has to be engaged, the prior permission of the Joint Charity Commissioner would have to be taken. It was urged that the entire process would be lengthy and self-defeating and would be difficult to put into operation each time matters came up before different Courts for consideration.

9. Mr. Desai contended that the expenses incurred towards payment of professional fees to Solicitors, Advocates and Chartered Accountants were not on account of defending the Trustees in personam but to defend the interests of the Trust F and the hospital against the repeated litigations initiated by the Respondent No.1, Charu K. Mehta, against the other Trustees.

Referring to the various definitions of the aforesaid expression, Mr. Desai contended that the same could not apply to the facts of this case.

10. Mr. Desai also contended that even if it be held that the Petitioner and the Respondent Nos.2 to 5 and the other Trustees had acted against the interests of the Trust in utilizing

its funds for payment to lawyers and other professionals, the H same could at best be a case before another forum, but there

REKf1A.BEN H. SHETH v:.:CHARU K .. MEHTA & 223

SONS. [ALTAMAS KABIR, J.]

was no element-of contempt of Court involved since the monies A paid were.not on.account of, any tangible goods received, but f9r preservation ;; i_nd protection of the Trust. Mr. Desai submitted

that 1 .te, co., ntrnP! ptiti.on which has been filed by the Respondent.t)Jo.1,:upon, VY, hich c:ognizance has been taken _by the.le§lrned Single udge,, was wholly erroneous and was liable B to be s_e( aside .. Mr.~Desai submitted. that the contempt proceedings , had bee11. initiated by the R6spondent No.1, agaiQstall the .other. Trustees with t.he sole intentio11 of harassing the other Trustees cind disturbing the smooth managemeQt of the.Trust. . , , ·, 9 . ,. c

. ·,. 1 ( an the :qi.Jetion of maintainability , of the contempt proceeding's; it was u(ged by Mr. Desai that although Section 19 of the Contempt of Courts Act, 1971, made provisions for aP.p.eals .against orders vyh_ic; h adversely affected those in contempt: &!nc~ appeal was a creature of statu!e the provisions D of, qection ;19 ?f the above Ac; t would still contin.ue to be operative,_,' r - ; . : . • •

p I ·;··· . ~.

'II ·. • j

! I I 1: . . " • i:'.J • . ·. 1?. In.support of the submissions made by him, Mr. Desai

rsfly_ rf.rrd to'?the "decisl8n of this Court in Union of India v.

E Mari6 Ca'bral. e Sa [(1982)' 3 scc 262] and Tamilnadu : ' \.···~ , ii~_) :1' (' . . . ,.. ' ·1,1 .... v - ' •. ·~ • ·,,·, Mercantile. Bank Shareholders Association v. sc Sekar [{2009) 2 SCC.784]: wherein'it had been.reiterated that once a 'period which tlad been presc:ribed under the Act had expired, i '- , j , ... 1 , 1 I l I _,,-. , f 1 f• < contempt p'roceedings which had been initiated earlier could F not be proceedeCl with further. . ._,, - .. 1 .,... - •I _ l Ul..t. r I• f I ..

.; ,;. ;13:' Mr:: Desai's submissibifa were reiterated by learned counsel'appear(ng for 1the respondents in the other Special Leave Petitions. Mr. Rarijit Kumar; learned Senior Advocates, contended that on a mistaken interpretation of the expression G "financial transactions", theHigh Court had taken cognizance of the' 6ontempt"petitiori' filed 'and' had directed notices to issue '"''\••fr•· I : f'C-i'<.)' :"~ .. ,1 11 , thereupon. Referring to'ltie 'order of the Joint Charity

' • •' 11 ' I 1 , <l_ 'Ll I '. ' ' • - _' I j~ . • .

Commissioner dated 3rd, June, 2008, Mr. Ranjit Kumar

~,, ·, ~·:.i , ..... 11 J . 1:...:lJ~· .... ,., r ·._.o: ·~ . .... • . .· 1

~- d H

A submitted that the said order was capable of being decompartmentalized in that the same neither indicated any policy decision nor a financial transaction which could have brought the matter within the ambit of a contempt under the Contempt of Courts Act vis-a-vis the said order. Mr. Ranjit B Kumar further urged that the two have to be read together and

would have to be read conjunctively and not disjunctively so as to give a meaningful and harmonious construction thereto. It was further contended that till a decision was rendered as to what would constitute "financial transactions", contempt c proceedings would not lie, since such decision would

determine whether the alleged contemnors could be said to be in contempt of the order passed by the Joint Charity Commissioner on 9th September, 2008.

14. On the question of issuance of notice, Mr. Jayant D Bhushan referred to and relied upon the decision of this Court in State of J&K v. Trehan Industries (P) Ltd. [(2005) 11 SCC 459], where the question of civil contempt fell for the consideration of the Jammu & Kashmir High Court. Mr. Bhushan pointed out that in the said decision it had been categorically E pointed out that the petitioners therein could not have a cause of grievance persuading them to approach the Supreme Court.

Mr. Jayant Bhushan concluded on the note that no special circumstances existed in regard whereof the Special Leave Petition could have been filed. He lastly pointed out that the Joint F Charity Commissioner had by his order dated 10th October,

2008, suspended the Petitioner and the Respondent Nos.2 to 5 and had appointed an Administrator to look after the affairs of the Trust on the application filed by the Respondent No.1 herein, Charu K. Mehta, under Section 41 D of the Bombay G Public Trust Act, 1950.

15. Having carefully considered the submissions made on behalf of respective parties, we see no reason to interfere with the order of the learned Single Judge issuing notice on the contempt petition filed by the Respondent No.1 herein. The

REKHA.BEN H. SHETH v. CHARU K. MEHTA & 225

SONS. [ALTAMAS KABIR, J.]

learned Judge observed that the Respondent No.1 had raised A serious objections in the main application about the payment of Advocate's fees from Trust funds for fighting personal litigations of the Trustees. The learned Judge took sufficient care to indicate that except for cognizance of the allegations made against the Petitioner and the Re$pondent Nos.2 to 5, cognizance against the other Trustees had not been taken as B

the material against them were insufficient to frame charges.

However, liberty was also given that when sufficient material in support of the allegations was placed on record, it could take cognizance of such complaint. A chart has been filed on behalf c of the Petitioner, Respondent Nos.2 to 5 and the other Trustees to show the amounts which had been paid to the learned

counsel amounting to approximately Rs.3% crores. Although, an attempt was made by Mr. Desai to justify such expenditure, we are unable to agree with his submissions, since as 0 observed by the learned Single Judge of the Bombay High Court, most of the said funds were spent by the Petitioner, the Respondent Nos.2 to 5 and the other Trustees for defending . them$"llves in respect of the various cases which had been brought against them by the Respondent No.1, Charu K. Mehta.

16. We are not convinced with Mr. Desai's submissions that payments made to lawyers, advocates and solicitors does

not amount to Contempt in the special facts of this case. This Court cannot ignore the fact that the funds of the Trust were being utilized to a considerable extent, not for the purposes of F the Trust but for defending the Trustees against the allegations brought against them by the Respondent No.1. There are, of course, prima facie observations which should not influence the outcome of the matter pending before the High Court which has to decide the matter on its own merits.

17. In these circumstances, we are not inclined to interfere with the order of the High Court and the Special Leave Petitions are, accordingly, dismissed, but without any order as to costs.

18. We have, however, been informed by Mr. Ranjit Kumar, H

A learned senior counsel, who has appeared for Amritlal C. Shah,

in S.L.P. (C) No.6685 of 2010, that after the matter was heard, the Petitioner No.3, Vijay K. Mehta, passed away on 23rd July,

2010. Since we have dismissed the Special Leave Petitions, it will now be open to the other Petitioners herein to inform the B learned Court below of the subsequent event and take further steps in that regard.

N.J.

Special Leave Petitions dismissed.