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PETITIONER: MAJOR GENL.  B.M. BHATRACHARJEE (RETD.) ANDANOTHER

       Vs.

RESPONDENT: RUSSEL ESTATE CORPORATION AND ANR.

DATE OF JUDGMENT04/02/1993

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) KULDIP SINGH (J)

CITATION:  1993 AIR 1632            1993 SCR  (1) 750  1993 SCC  (2) 533        JT 1993 (2)   109  1993 SCALE  (1)444

ACT: Contempt of Courts Act 1971: Section  12-Court’s  orde-Direction  not  to  make   further ’allotment’ of flats--Breach of order-Guilty of Contempt  of Court-Punishment-Imposing of. Words & Phrases: "Allotment"-Meaning of.

HEADNOTE: 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

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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]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Contempt 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

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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  S. 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.  S. 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

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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.

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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.

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             "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.

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             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

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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. 761