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PETITIONER: ABHIJIT TEA COMPANY PVT. LTD.

       Vs.

RESPONDENT: TERAI TEA CO. (P) LTD. & ORS.

DATE OF JUDGMENT08/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1996 SCC  (1) 589        JT 1995 (8)    90  1995 SCALE  (6)250

ACT:

HEADNOTE:

JUDGMENT: IN THE MATTER OF 1.   Registhar, (Original Side)      High Court of Calcutta 2.   M/s. The New Red Bank Tea Co. 3.   Shri Rabin Pal, Managing Director, The New Red Tea Co.                          O R D E R      Thepetitioner herein  is M/s. Abhijit Tea Co. (P) Ltd. and the  respondents  are  (1)  Registrar  (Original  Side), Calcutta High  Court, (2)  M/s. The  New Red  Bank Tea  Co., Calcutta and  (3) Shri  Rabin Pal,  Managing Director of the 2nd respondent Company. 2.   A Division  Bench of  the Calcutta  High  Court,  while disposing of  Appeal No.  514 of 1992 on 25.4.1994, directed the  Registrar  (Original  Side),  High  Court  of  Calcutta (hereinafter referred  to as  Registrar), the 1st respondent herein  to   refund  a   sum  of  Rs.  19,33,873.74  to  the petitioner. The  said amount  was held  in Court deposit. An application for  review was  filed in  the case.  One of the members of the Bench had, by then, retired. The other member of  the   Bench,  Shyamal  Kumar  Sen,  J.  by  order  dated 21.7.1994, rejected the review application, but directed the Registrar to  hold the  money, for  further  one  week.  The petitioner herein  filed Special Leave Petition (C) No. 9575 of 1994  in this  Court and  assailed the  said direction. A Bench of  this Court  noticed,  another  review  application filed by  the party respondent in the meanwhile, was pending disposal, but,  by  order  dated  16.8.1994  held  that  the direction issued  by the  learned single  Judge was improper and set  aside the  same. The  advocate for  the  petitioner wrote to  the Registrar  on  various  dates  requesting  for refund of  the money  amounting to Rs.19,33.74 with interest evidenced by  communications dated  22.8.1994 (Annexure VI), 24.8.1994 (Annexure VII) and also intimated the Registrar by communication of  the same  date that  all  formalities  for getting the  refund, as  directed, have  been complied with.

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The records  further disclose that the matter came up before Shyamal Kumar  Sen. J.  on 2.9.1994.  The  petitioner  again applied to  the 1st  respondent for  refund on 2.9.1994. The order passed  by the learned Judge on 2.9.1994 recalling the earlier  order  was  also  brought  to  the  notice  of  1st respondent by  communication dated  5.9.1994, with a request to releese the amount in deposit. The review application was heard on  16.9.1994 and  the court  directed the  parties to submit written  notes by  26.9.1994. Stating that the review matter is  pending for  judgment, it  was ordered  that  the Registrar will  not  make  the  payment  "for  a  period  of fortnight" (Annexure  XII). It  is thereafter the petitioner approached this  Court on  23.9.1994  complaining  that  the order passed  by  this  Court  on  16.8.1994  has  not  been complied  with  and  that  appropriate  action  in  contempt against the  1st respondent the Registrar and the parties in the appeal,  who are causing impediments from disbursing the refund to  the petitioner. be initiated. The 1st respondent, Registrar has  filed counter affidavits dated 27th of April, 1995 and  21st of  July, 1995.  Respondent Nos. 2 and 3 have also filed a counter affidavit dated April/May, 1995. 3.   We heard  counsel. In  the review  application Shayamal Kumar Sen,  J., by  order dated 16.9.1994, observed that the 1st respondent,  the Registrar,  will not  make the  payment "for a  period of  fortnight". The same learned Judge, after noticing the  order  passed  by  this  Court  on  16.8.1994, vacated the  earlier order  withholding  payment,  by  order dated 2.9.1994  (Annexure VIII). But the same learned Judge, by order dated 16.9.1994. directed the 1st respondent not to make payment "for a period of fortnight" after the arguments in the  review application  were  heard.  In  spite  of  the categorical order  passed by  this Court  on  16.8.1994  the refund due  to the petitioner was withheld. It is sad indeed to notice  that the  same learned Judge who passed the order dated  2.9.1994  passed  the  later  order  dated  16.9.1994 stating that the 1st respondent will not make payment "for a period of  fortnight". What  persuaded the  learned Judge to hold so, is not clear. 4.   We are  of the view that there is no justifiable reason for the  1st respondent,  in failing  to give  effect to the order passed  by this  Court on 16.8.1994. It was brought to his notice  more than  once on  22.8.1994,  24.8.1994,  etc. about the  order passed  by this  Court. The  learned single Judge of  the Calcutta  High Court vacated the earlier order on 2.9.1994.  The petitioner  again requested  for refund of the amount on the same day and thereafter on 5.9.1994. Prima facie we  are of  the view  that the  1st respondent  has no excuse, whatsoever  in  not  refunding  the  amount  to  the petitioner from  8.9.1994 to 16.9.1994, (It was on 16.9.1994 a judicial order was passed by the learned Judge of the High Court directing withholding of the refund). 5.   The 1st  respondent has,  in his affidavit, referred to Rule 3  A of  Chapter  XXIV  of  the  Calcutta  High  Court, Original Side  Rules and  Rule 51  A of  the said  Rules  to contend that  before making the refund a series of steps had to be taken and that took time. According to him, State Bank of India  is appointed  as the Custodian for any securities, for money  ordered to  be delivered into court on account of any suit,  appeal or  other proceeding and that payments may be made  by issuing  a cheque or draft or pay order drawn on Reserve Bank of India. It is stated that the 1st respondent, on receiving  a memorandum  from  State  Bank  of  India  on 7.9.1994, presented  a Lodgment  Schedule in  proper from on 8.9.1994 itself  and the  Reserve Bank of India was bound to acknowledge the factum of credit of the amount which reached

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him only on 14.11.1994 though dated 15.9.1994. It is further stated that  unless the  1st respondent has knowledge of the fact that  the money  of the  State Bank  of India  has been transferred to  Reserve  Bank  of  India  and  the  same  is credited to  the account of the 1st respondent, he could not issue a cheque. This he could do so only after 14.11.1994 by which time the High court of Calcutta had injuncted him by a judicial order on 16.9.1994 from paying the money. 6.   We heard  counsel for the 1st respondent at length. The 1st respondent was also present in the Court one of the days when the  case came  up for hearing. We perused the relevant rules  placed  before  us.  In  the  affidavit  of  the  1st respondent dated  27.4.1995 in  paragraphs 14  to  20  steps taken from  6.9.1994  to 16.9.1994 have been catalogued. The 1st respondent would say that on receipt of the request from the petitioner’s  counsel on  5.9.1994 and on receipt of the Fixed Deposit  Receipts from  State Bank  of India  the same were duly  discharged by  him for encashment before maturity and the  letter dated  5.9.1994 was  written to  the Bank to credit the  principal amount  with accrued   interest in the deposit account  of the  Registrar with the said Bank and to intimate the  principal amount  with interest. He received a memorandum from  the State Bank of India on 7.9.1994 stating that a  total sum  (principal and  interest) which  has been credited to  the  Depoosit  Account  in  this  case  is  Rs. 24,41,821.74. It  was transferred  to his  personal  account with Reserve  Bank of  India on  8.9.1994. The  only further event that  has taken  place thereafter and before 16.9.1994 seems to  be that  the letter  of the  petitioner’s advocate dated 14.9.1994  to take  immediate  steps  for  refund  was endorsed by him to the Cash Department on the same day. 7.   It is  clear that State Bank of India has intimated the 1st respondent  on  7.9.1994  that  the  total  sum  of  Rs. 24.41,821.74 has  been credited  to his  Deposit Account. It was  transferred   to  the   personal  account  of  the  1st respondent on 8.9.1994. From 8.9.1994 till 14.9.1994 no step was taken  to expedite  the refund  to  be  made.  A  casual statement is  made that  on  14.9.1994  the  letter  of  the petitioner’s advocate  was endorsed  to the Cash Department. On a perusal of the material on record and in particular the counter affidavit  filed by  the first  respondent  in  this contempt  petition  itself,  it  is  clear  that  the  first respondent was  absolutely careless  and indifferent to give effect to  the orders  passed by this Court till the learned Single Judge  of the  Calcutta High  Court made the order on September 2, 1994. The first respondent would appear to have thought that  delay is  a safe  route to tide over the devil and deepsea  forsaking constitutional duty cast on him under Article 142  of the  Constution, as  an arm of the court, to effectuate the  order passed  by this Court dated August 16, 1994.  His   reprehensible  conduct   and  indifference   to implement  the   order  of   this  Court  calls  for  strong condemnation and  in our opinion, he is unworthy to hold any office of responsibility. The same need to be entered in his confidential character  rolls. The  Hon’ble Chief Justice of the High  Court of  Calcutta would  look into his conduct to take action  as is  appropriate in  this behalf. However, no one shall  be left  in lurking  doubt that  by manoeuvre  or otherwise one  would get   over  non-implementation  of  the order of  the court  and was  successful in its avoidance or seem to  be defeated. The arm of the court is long enough to reach injustice  wherever it  is found, should be dealt with appropriately. The  learned Single  Judge passed final order on review application on December 23, 1994 setting aside the order of the Division Bench to which he was a member.

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8.   In this  back drop scenario we deem it appropriate that though the  appeal against  the order  of the learned Single Judge is  pending before  this Court,  instead of relegating the parties to seek appropriate direction therein, as a part of this  order and  as a  logical consequence, we direct the petitioner  to   withdraw  the  amount  on  furnishing  bank guarantee to  the satisfaction  of the Registrar of the High Court, Calcutta  and the  withdrawal will  be subject to the result in  the appeal filed against the order of the learned Single Judge of the High Court dated December 23, 1994. 9.   The contempt application is accordingly disposed of.