Judgment Case ID: 6996

Judgment:
mpt Petition No. 159 of 1992. IN Special Leave Petition (C) No. 12709 of 1991. From the Judgment and Order dated 26.4.1991 of the Calcutta High Court in Appeal No. 232 of 1990. M.L. Verma	 R. Mukhejee	 J. Gupta and M.L. Chibber for the Petitioners. Ranjan Dutta	 Mrs. N. Dutta	 Mrs. Mridula Ray and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by B.P. JEEVAN REDDY	 J. In a suit for specific performance certain interlocutory orders were passed by a Single Judge of the Calcutta High Court. On appeal a Division Bench of the said Court modified the said orders. A number of special leave petitions were filed in this Court against the orders of the Division Bench. Though the petitioners in these special leave petitions are different	 the contesting respondents in all these cases are common	 namely Russel Estate Corporation and its managing partner Sri Hari Narayan Bhan. For the purpose of this petition	 it is enough to mention that each of the petitioners in these S.L.Ps. is claiming to be entitled to allotment of one or more of the flats being constructed by the respondents at Calcutta. Their complaint has been that ignoring the agreements in their favour	 the 753 respondents have been allotting the constructed flats in favour of third parties thereby seeking to defeat their rights. On 1.8.1991 a Bench of this Court comprising section Ranganathan	 M. Fathima Beevi and N.D. Ojha	 JJ. passed the following order in I.A. No.2 of 1991 after hearing the respondents. "Counsel accepts notice. in the meantime	 till this Special Leave Petition is disposed of	 respondents 1 & 2 should not make any further allotment of any other flats in the building in dispute	 with effect from today. Counsel for the petitioner contends that the allotment of the flat	 originally allotted to him	 to some other person violates an oral order of a Division Bench of the High Court. It will be open to the petitioner to move the High Court for appropriate relief in this regard if so advised." This Contempt Petition is filed complaining that the respondents have allotted certain flats in favour of third parties in violation of the said order. So far as the petitioners in this Contempt Petition (Major) Genl. B.M. Bhattacharjee and Smt. section Laha) are concerned	 they claim to be interested in the flats on the 8th floor of the said building. At any rate the complaint in this Contempt Petition pertains to the said two flats. The petitioners say that the said flats have been allotted to the third parties in the month of January	 1992. They rely upon the report of a group of investigators (National Bureau of Investigation) in support of the said plea. Notice was issued to the respondents. In their counter (filed by Shri Hari Narayan Bhan) it is stated that the two floors on the 8th floor (described as east and west flats) were allotted on 26th April	 1991 itself i.e.	 long prior to the order of this Court dated 1.8.1991. It is denied that the allotment of said flats took place in the month of January	 1992. The correctness of the Report of the National Bureau of Investigation is disputed. It is	 however	 conceded that the possession of the said flats was handed over to the said third parties on 17th August	 1991 which is admittedly a date subsequent to the date on which this Court passed the aforesaid restraint order. It is also not disputed by them that the registered sale deeds in respect of said flats in favour of the said third parties were 754 also executed in March	 1992. The report of the Receiver (Smt. Pratibha Bonnerjea	 a retired Judge of the Calcutta High Court who was appointed as such by an order of this Court dated 7.1.1992) also supports the petitioners ' allegations. The relevant portion of the Report reads as follows: "Present condition of these two flats in the floor. The western apartment in the 8th floor is occupied by one Mr. & Mrs. Kamal Thavrani	 Ms. Thavrani said that they are in occupation of the flat from December	 1991. Mr. K.K. Thavrani said that he had taken both the eastern and western apartments in the 8th floor. He produced a copy of the agreement executed on 26.4.91 on a stamp paper purchased on 26.4.91 by M/s. Russel Estate Corporation. The agreement relates to both the flats on the 8th floor for a total consideration of Rs. 13	40	000. It is stated that the occupiers have taken possession in December	 1991. Mr. Thavrani submits that the conveyance have been registered in March	 1992 but he is unable to produce the registered conveyance as the same is still lying with the Registrar. We found eastern flat was not complete. Wooden work was going on. Photos Nos. 3 to 5 are attached to this effect. " At the bearing of this Contempt Petition the respondents ' counsel took the stand that the delivery of possession on 17.8.1991 and the execution of the registered sale deed in March	 1992 do not constitute violation of the Order dated 1.8.1991. His submission is that this Court merely restrained the allotment of flats. Allotment	 according to the learned Counsel	 means entering into the agreement of sale. Inasmuch as the agreement of sale with respect to the said two. flats on the 8th floor was entered into long prior to the said Order of this Court	 it is submitted	 there is no disobedience to the order of this Court. it is submitted that delivery of possession and the registration of the sale deed(s) is in pursuance of the aforesaid agreement of sale and not in pursuance of any agreement of We entered into on or after 1.8.1991. The counsel further submitted that even on the date when the aforesaid order was passed on 1.8.1991	 the second respondent had represented to this Court that agreement of sale in respect 755 of all the flats have already been entered into. In this view	 it is submitted	 there has been no misrepresentation or suppression of relevant facts on their part. We may mention that when we indicated our disagreement with the above stand during the course of hearing	 the counsel for the respondents	 Shri Dutta took time till 14th of January	 1993 to file a further affidavit/additional counter and/or documents in continuation of the counter already filed. The second respondent has accordingly filed a further affidavit on 14.1.1993. The counsel for the petitioners ' disputes the correctness	 genuineness and validity of the agreement	 allegedly entered into on 26.4.1991 in respect of said flats. According to him	 it is a fabricated document. He points out that the stamp paper for the said agreement of sale was purchased by the Russel Estate Corporation and not by the purchaser of the flats. It is also pointed out that the agreement is not a registered one and that it could have been fabricated at any time putting a back date. It is not necessary for us to pronounce upon the disputed question whether the agreement dated 26.4.1991 relating to the said two flats on the 8th floor is true and genuine. Assuming that the said agreement is true	 we are yet of the opinion that the respondents have committed gross contempt of this Court by their brazen violation of the order dated 18 1991. By the said order this Court directed the respondents 1 and 2 not to make "any further allotment of any other flats in the building in dispute with effect from today. ' Now what does the word "allotment" mean in the context. In our opinion	 the said word must be understood reasonably and having regard to the context. The first respondent is not like a Government Department or Public Corporation where an allotment order or allotment letter is issued from the office in pursuance of which other steps are taken. The first respondent is a proprietary concern	 according to the petitioners	 whereas according to the respondents it is a partnership concern. In either event	 there is no such thing as "allotment" in its case. Even now	 it is not their case that they have issued any orders or letters of allotment. According to them	 there was first an agreement of sale	 then delivery of possession and finally a registered sale deed. We are of the opinion that in the context and circumstances	 the word "allotment" in the said order means making over of the flats. In other words	 it means delivery of possession 756 and registration of the sale deeds. An agreement of sale	 that too unregistered	 has no significance in the context	 difficult as it is to verify its truth and correctness. This court could not be presumed to have interdicted such an uncertain thing. It must be remember that even according to the respondents they had represented to this Court	 at the time the said order was passed	 that they have already entered into agreements of sale in respect of the flats and yet this Court chose to pass the said order. In the circumstances	 it cannot mean anything else than delivery of possession of flats and their sale. It may also mean an agreement of sale but its meaning is certainly not confined to an agreement of sale. To say so	 as do the respondent	 is to rob the order of any meaning or content. Mr. Dutta	 the learned counsel for the respondents contended that the second respondent understood the allotment in a particular manner and that the said misunderstanding	 if any	 was bona fide. We are not prepared to agree. Firstly	 there could not have been any doubt in the mind of Respondent with respect to the meaning of the order. Secondly	 assuming that he had any doubt regarding its meaning	 the least he could have done was to ask for a clarification of the said Order. He could well have represented that he had already entered into an agreement of sale on 26.4.1991 in restpect of these flats and that he may be permitted to deliver possession and/or execute sale deeds in respect of said flats in favour of third parties. He did nothing of the sort. Having placed a highly restrictive and unwarranted interpretation upon the order of this Court	 he went ahead and not only delivered possession of the flats to third parties subsequent to the said order but also registered sale deeds in their favour. He thus rendered the said order nugatory. It was not open to the respondents to place a convenient interpretation upon the order and proceed to act upon it	 thereby totally nullifying the order of this Court. In this context	 we ought to refer to the conduct of the second respondent as disclosed from the order of this Court dated August 7	 1992 to which one of us (B.P. Jeevan Reddy	 J.) was a party. The first two paragraphs of the said order may be quoted in rull. "In these special leave petitions notice was duly served on the respondents and the matters came up for hearing initially before a Bench of this Court comprising of Ranganathan J.	 Fathima Beevi J. and Ojha J. on 31.7.91 and 757 1.8.91when the parties were heard and certain interim orders were passed. Thereafter it was listed before a Bench of this Court (of which Ranganathan J. and V. Ramaswami J. were members) on a number of occasions at which the respondents were represented and no objection was voiced against the hearing of the matters by the said Bench. However	 sometime later an attempt was made on behalf of the respondents to have these matters transferred from this Bench to some other Bench on the allegation that one of the Judges (Ranganathan J.) was biased against the respondents. This request was made before a Bench presided over by the learned Chief Justice by the second respondent who appeared in person and made the request for the transfer of the case. The prayer was rejected by the learned Chief Justice on 11.11.1991. Thereafter the matter was again fisted before a Bench consisting of Ranganathan J.	 V. Ramaswami J. and Ojha J. On different occasions without any demur from the parties. It was then listed before a Bench comprising of Ramaswamy J.	 Yogeshwar Dayal J. and Mohan J. on 4.3.92. This Bench directed the cases to be posted before a Bench of which Ranganathan J. is a member. About this time	 an application seems to have been presented to the Registrar that this case should be transferred to some other Bench. However	 the matters came up before us again some time last week when counsel for the respondents agreed that the matters may be listed this week. The matters were fisted yesterday. A person claiming to be the son of the second respondent made a request that the matter should not be heard by this Bench. We rejected this request and made it clear to him that he should make arrangements for the conduct of the case. The matters did not reach yesterday and when the matters came up today	 a letter dated 6.8.92 written by the second respondent to his counsel revoking the counsel 's vakalatnama has been placed before us. But the respondent No. 2 did not appear before us nor did he make other arrangements for the conduct of the case. Sri Chatterjee	 his advocate on 758 record	 appeared but expressed his inability to conduct the case since his client had withdrawn the vakalatnama. We understand that in one of the matters the respondents are represented by another counsel whose vakalatnama is also seen to have been revoked but she has not appeared or sought permission to withdraw from the case. In these circumstances we have no other option but to proceed against the respondents ex parte. We are unable to accede to the respondents request made on a previous occasion by the son of the second respondent for transfer of case to some other Bench. The circumstances narrated above would show that the respondent has appeared before the Bench on several occasions without protest. The request made for transfer	 after the rejection of the earlier petition by the learned Chief Justice	 is belated and is just an attempt by the second respondent to circumvent the order already passed by the Chief Justice rejecting a request for transfer and only because the Constitution of the Bench is not to his liking. Such a request	 we are clear	 cannot be countenanced. " It should be noticed that the said order dated August 7	 1992 was passed not only in the special leave petitions but also in this very Contempt Petition. The attitude adopted by them before the Receiver (Smt. Pratibha Bonnerjea retired Judge of Calcutta High Court	 appointed by this Court as a Receiver in this case) also discloses the total disregard and disrespect the Respondents have towards the orders of this Court. The Receiver says: "The next day	 by a letter dated 22.8.92	 Mr. H.N. Bhan informed me that he would not submit to the order dated 7.8.92 as the Bench was not properly constituted due to the fact that the Hon 'ble Mr. Justice V. Ramaswami was one of the judges and that an application would be moved for recalling the said order. Thereafter	 there was complete non cooperation by M/s. Russel Estate Corporation. " The conduct of the second respondent as evidenced from the aforesaid material establishes beyond doubt that the second respondent 759 was trying to play with this Court and was consistently flouting its orders. In the circumstances	 the theory of bona fide belief	 now put forward before us by his counsel	 cannot be accepted. We may at this stage deal with the further affidavit filed by the second respondent on 14.1.1993. In para 3 of the affidavit the second respondent has stated that he has the highest regard for this Court	 that he has all along complied with the orders passed by this Court and that he never intended to flout or defy the orders of the Court. He stated further "if in spite of the aforesaid	 any order of this Hon 'ble Court has been violated	 the same has been so done through mistake	 inadvertence and by a misunderstanding of the meaning and purport of that order and surely not intentionally and for which unconditionally apologise for self and on behalf of the Respondent firm and I beg to be excused." Then in paragraphs 4 to 12 he has "without waiving the aforesaid and fully relying thereupon" repeated the contentions which were urged by his counsel before us and which we have dealt with hereinbefore. He stated that he understood this court 's order dated 1.8.1991 as prohibiting only the entering into of agreements of sale and not delivery of possession or registration of the sale deeds. All the said contentions we have dealt with hereinbefore. They need not be reiterated here. So far as the apology contained in para 3 of the second respondent 's further affidavit is concerned	 it may firstly be mentioned that it is not really an unconditional apology though it purports to say so. While tendering unconditional apology in para 3	 the second respondent has tried to defend his action in the subsequent paragraphs. Secondly	 even if we construe paragraph 3 as tendering an unconditional apology	 we are not minced to accept the same having regard to the conduct of the respondent which we have adverted to hereinbefore with reference to the order of this court and the report of the Receiver. Accordingly	 we reject the apology tendered in para 3 of the further affidavit. For the above reasons	 we hold the second respondent guilty of Contempt of this Court. Having regard to the facts and circumstances of this case	 we impose a sentence of one month 's imprisonment in addition to a fine of Rs. 2	000 upon the second respondent. The fine shall be paid into this Court within two weeks from today	 in default thereof the second 760 respondent shall undergo a further imprisonment of two weeks. The second respondent shall also pay the costs of the respondents in this Contempt case which are assessed at Rs. 5	000 within two weeks from today. In case of failure	 the Respondents are free to execute this order as a decree of Court and recover the same from the Respondents. Mr. H.N. Bhan	 who is present in the court	 be taken into custody forthwith to undergo the sentence of imprisonment. G.N. Petition allowed.

Summary:
The present Contempt Petition has been filed complaining that the Respondents had allotted certain flats in favour of third parties in violation of this Court 's order dated 1.8.91. The Petitioners ' interest has been in respect of two flats on the 8th floor. They claimed that the said flats had been allotted to third parties in January	 1992	 long after this Court 's order dated 1.8.91. It was also contended that the agreement to sell was a fabricated document. The Respondents contended that the said flats were allotted on 26.4.91 itself	 though possession of the flats was handed over on 17.8.1991	 and sale deeds were executed and registered in March 1992. It was further contended that inasmuch as the agreement for sale was entered into long before the orders of this Court were issued	 there was no question of disobedience of the orders of this Court. Finding the Respondent guilty of Contempt of Court	 this Court	 HELD : 1.1. Even assuming that the agreement of sale dated 26.4.1991 is true	 the respondents have committed gross contempt of this Court by their brazen violation of the order dated 1.8.1991. By the said order this Court directed the respondents 1 and 2 not to make "any further allotment of any other flats in the building in dispute with effect 751 from today". The word "allotment" must be understood reasonably and having regard to the context The first respondent is not like a Government Department or Public Corporation where an allotment order or allotment letter is issued from the office in pursuance of which other steps are taken. There is no such thing as "allotment" in this case. According to the Respondents there was first an agreement of sale	 then delivery of possession and finally a registered sale deed. In the context and circumstances of the case	 the word "allotment in the said order means making over of the flats; it means delivery of possession and registration of the sale deeds. An agreement of sale	 that too unregistered	 has no significance in the context	 difficult as it is to verify its truth and correctness. This court could not be presumed to have interdicted such an uncertain thing. Admittedly the respondents had represented to this Court	 at the time the said order was passed	 that they have already entered into agreements of sale in respect of the flats and yet this Court chose to pass the said order. In the circumstances	 it cannot mean anything else than delivery of possession of flats and their sale. It may also mean an agreement of sale but its meaning is certainly not confined to an agreement of sale. To say so is to rob the order of any meaning or content. There could not have been any doubt in the mind of the Second Respondent with respect to the meaning of the order. In case of any doubt the least he could have done was to ask for a clarification of the said Order. He could well have represented that be had already entered into an agreement of sale on 26.4.1991 in respect of these flats and that he may be permitted to deliver possession and/or execute sale deeds in respect of the said flats in favour of third parties. He did nothing of the sort Having placed a highly restrictive and unwarranted interpretation upon the order of this Court	 he went ahead and not only delivered possession of the flats to third parties subsequent to the said order but also registered sale deeds in their favour. He thus rendered the said order nugaptory. [755E H	 756A E] 1.2.The conduct of the second respondent as evidenced from the material on record establishes beyond doubt that he was trying to play with this Court and was consistently flouting its orders. [758H	 759A] 2. So far as the apology tendered by the second respondent is concerned it is not really an unconditional apology. While tendering apology the second respondent has tried to defend his action. Even if it is 752 considered as unconditional apology this Court is not inclined to accept the same having regard to the conduct of the respondent Accordingly	 the apology tendered by Respondent No.2 is rejected. [759E G] 3. The second respondent is guilty of Contempt of this Court Having regard to the facts and circumstances of this case	 a sentence of one month 's imprisonment in addition to a fine of Rs. 2	000 is imposed upon him. The fine shall be paid into this Court within two weeks and in default thereof the second respondent shall undergo a further imprisonment of two weeks. [760A B]